[Fsfe-ie] Prison Over Patents? EU Law Unites Foes

teresahackett at eircom.net teresahackett at eircom.net
Wed Dec 14 18:00:11 CET 2005

Sent to [Upd-discuss] by Seth Johnson. It is referring to IPRED2.


-------- Original Message --------

> http://www.iht.com/articles/2005/12/09/business/patent.php

Prison over patents? Proposed EU law unites foes

By Paul Meller The New York Times


BRUSSELS For once, declared adversaries are on the same side of
an argument in the technology industry: They are urging European
lawmakers to drop legislation that would impose prison time on
patent violators, which they say would stifle innovation across

Heavyweights like Nokia and Microsoft on one hand, and the
grass-roots Foundation for a Free Information Infrastructure on
the other, are making common cause against wide-ranging
legislation proposed by the European Commission that would
criminalize all intellectual property infringements, including
patent violations. The law would provide blanket protection to
all forms of intellectual property across the 25 countries of the

A World Trade Organization treaty covering European Union
countries allows prison sentences for copyright and trademark
infringement, but it does not cover patents, which are variously
protected in member countries, mostly by the threat of fines.

The European Commission, which is readying the law for debate in
2006, was emboldened by a ruling by Europe's top court in
September that allowed criminal sanctions in enforcing European
laws. The intellectual property proposal would be the first
Europewide law to make use of the new powers.

But an early skirmish, drawing opponents from the technology,
heavy industry and drug sectors, is beginning.

Tim Frain, director of intellectual property at Nokia, called the
inclusion of patents within the scope of a European law
"ludicrous." Frain, who is based near London, advises managers at
Nokia on the risks of infringing existing patents when they
develop new functions for mobile phones.

Frain indicated that patent holders wanted protection but not
penalties of imprisonment as they tested the boundaries of other
patents. "It's never black and white," he said. "Sometimes
third-party patents are so weak that I advise managers to go
ahead and innovate because, after making a risk analysis, we feel
we can safely challenge the existing patent."

He added, "But with this law, even if I'm certain the existing
patent is no good, the manager involved would be criminally

Hartmut Pilch, a campaigner with Foundation for a Free
Information Infrastructure, said, "It is hard to predict what the
impact of this law would be because it would be enforced at a
national level, by national police forces, who I am sure have
much better things to do than to chase petty patent

Less than six months ago, he and Frain were on opposite sides of
a fiercely fought lobbying battle over a proposed law on software
patents. But the latest proposal has brought the two together.

"This law doesn't make much sense for anyone in the patent
world," Pilch said.

The commission, however, takes the opposite view. "Regarding the
substance of the proposal, our view is the reverse of the people
you have been speaking to," said Friso Roscam Abbing, a
commission spokesman on justice issues. "We believe that we need
to protect innovators, therefore we want to send a strong signal
to those people infringing intellectual property that they face
criminal sanctions."

The aim of the draft law is to harmonize the various laws across
Europe to deter counterfeiting of medicines, watches, designer
clothes, music, movies and many other things. It follows a string
of laws passed in the EU over the last six years to help
designers and inventors protect themselves from imitators, who
can churn out copycat products at a fraction of the price of the
originals. Better protection of European creations is seen as a
way to foster innovation.

But the proposed new law would have the opposite effect, critics
say. "The law could trigger abusive criminal litigation, which
would have a chilling effect on innovation," said Francisco
Mingorance, European affairs manager at the Business Software
Alliance, a trade body that represents Microsoft and Apple
Computer, among others, in Brussels.

Some of the biggest patent owners have themselves been accused of
patent infringement. Microsoft owns around 5,000 patents and is
currently fighting 32 infringement claims, the company's
spokesman in Brussels, Tom Brookes, said.

Greg Perry, director general of the European Generic Medicines
Association in Brussels, described the plan to criminalize patent
infringements as "nonsense."

"At times, researchers need to breach an existing patent in order
to challenge it," he said. "With this law in place, it would be
the end of your career, and probably your company's too, if you
were found guilty under criminal law."

Generic-drug producers are constantly battling makers of patented
drugs for the right to reproduce their most popular pills.
Pharmaceutical companies try to keep the patent monopoly on their
best-selling drugs as long as they can. Indeed, in June, the
commission found the British pharmaceutical company AstraZeneca
guilty of abusing the patent protection on its anti-ulcer drug,

"By criminalizing this whole area, lawmakers will be putting a
steel-ring-fence around drug patents, many of which may not be
justified," Perry said.

For the music and film industry, the law adds little to their
legal armory. "We are grateful for the efforts of the European
Commission to protect intellectual property, but in the fight
against copyright abuse, this is a modest proposal," said Thomas
Dillon, legal counsel in Brussels for the Motion Picture
Association, which represents most Hollywood studios.

"This proposed law doesn't add anything for us," he said. "The
only area where it does have a new effect is in its inclusion of

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