The Patent Lobby

An influential patent lobby is pushing hard for "reforms" to drop any meaningful limits of the patent system. Instead, structural deficiencies of the patent system and increasingly unethical conduct by some people should be on the reform agenda.

The patent bureaucracy has become a "state within the state". Although Europe prides itself in the separation of powers, that principle is hardly applied to the patent regime. The European Patent Office, for instance, has semi-legislative authority and an executive function, yet it is under no independent jurisdiction nor under any parliamentary control. If you want to appeal any decision by the EPO, all you can do is file a complaint with them. Since the EPO finances itself through its fees, it obviously has an interest in extending patentability, like an octopus that tries to reach out and grab as much as possible.

Even where patent courts are formally independent, the judges tend to be former patent examiners. In Germany, the standard career path is to start as a patent examiner, then become a patent judge, then go back to the patent office and head a department there before ultimately becoming a presiding judge at the patent court. There are some good reasons why that is so but it's interesting to observe that those judges who are not part of the patent system are much more likely to take a critical perspective on software patents. You're only independent if your own career is not linked to the system.

Regrettably, the patent bureaucracy is very much involved in the attempt to legalize software patents. The "working parties", who are put in charge of reform proposals like EPLA or the failed software patent directive, basically consist of members of the patent system. Instead of independent experts taking a strategic decision as to how much patentability is really in the interest of Europe, the beneficiaries of broad patentability are entrusted by the governments of the EU member states with the task of defining the patent legislation.

Patent attorneys ask for unlimited patentability of almost everything. Anyone can figure out why that is so. The more things are patentable (including software), the more patents are applied for and the more patent litigations take place. Most patent attorneys will look rather at their own benefit than at the immense damage that the patent system causes to society.

Let's state it clearly: The people in the patent system are no worse than other human beings. It's simply in human nature to keep an eye on one's own benefits more than on what is good for the overall economy and society. Organizations also follow certain rules, one of which is that they want to grow.

The way in which the European Patent Office rates performance is a good example of how flawed the system is. Patent examiners are usually not the problem. They may make mistakes but everyone does. There are patent examiners that have a very critical view of the system in general, and of software patents in particular. Like most people, patent examiners take pride in doing a good job, and hate the notion of having to settle for less. However, the EPO gives a patent examiner one rating point per patent application processed, regardless of whether the patent is granted or the application rejected, and rejection is several times more work. So if a patent examiner does his job too thoroughly, he is seen as being "unproductive"! Just imagine if the police gave a detective one rating point for each case, irrespective of whether he solves it or gives up.

If the members of the patent system can't be blamed, who is responsible? All those politicians who would have the chance to properly define and govern the patent regime but leave a perverted and corrupted system unchanged.