ESF Workshop, September 1-2, 2014

Transcription

1 ESF Workshop, September 1-2, 2014 Good Patent Governance Best Practices in Europe and the US Esther van Zimmeren University of Antwerp, Government & Law

2 Introduction Good Governance Principles CG GGP Proposal Regrouping European Patent System General Patent Reform main issues Compliance test US Patent System General Patent Reform main issues Compliance test Concluding Remarks Overview 1

3 Embracing Administrative Common Law (Gillian E. Metzger, 2012) Introduction Why good governance & patent law? - US APA Stuart M. Benjamin & Arti K. Rai, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 Geo. L. J., Comparative law variety in doctrines, e.g. Chevron deference - No European Administrative Law, no European Administrative Procedure Act (APA) 2

4 Introduction Why good governance & patent law? - Why now? Patent Reforms in Europe and the US implementation ongoing ( + Japan and Korea as well, see Nari Lee) Excellent opportunity for optimizing governance processes and systems To what extent have patent reforms contributed? Identify global best practices lessons for BRICS countries/developing countries Momentum 3

5 Introduction Why good governance & patent law? - Why now? Patent Reform Scope Analysis - Processes and Institutional Changes - Distinction ex ante and ex post (compare Christine & Nari) - Ex ante = institutional framework/governance system + governance experiments + reform processes + resulting system - Ex post = emphasis on review processes (compare Christine, Nari and Herwig & van Zimmeren i.e. IP licensing models, market) 4

6 Introduction Definition - OECD, World Bank, IMF, UNDP, UN Commission Global Governance, European Ombudsman Secretary General UN: By good governance is meant creating well-functioning and accountable institutions - political, judicial and administrative that citizens regard as legitimate, through which they participate in decisions that affect their lives, and by which they are empowered. Good governance also entails a respect for human rights and the rule of law generally. Political or legal principles? 5

7 European Ombudsman: Code of Good Administrative Behavior Art. 41 EU Charter on Fundamental Rights Introduction European Commission, White Paper European Governance (2001) - Legitimacy - Transparency - Participation - Accountability - Effectiveness objectives patent system - Coherence Other - Subsidiarity & proportionality - Access to justice - Impartiality/objectivity Conflicting principles? Trade-offs - (fairness, equality, due care, integrity, division of powers, no misuse of power, legal certainty, legitimate expectations, political stability, etc.) 6

8 Good Governance Christine Godt selection GG principles - Transparency - Inclusion (input legitimacy) - Accountability - Expertise (output legitimacy) - Collective Rules (group self-governance) - Regulatory Context/Complexity - Territorial Sovereignty - Consistency v. Complexity - Appropriate financing 7

9 Good Governance Christine Godt selection GG principles - Transparency - Inclusion (input legitimacy) Collective Rules (group self-governance) - Accountability Accountability - Expertise (output legitimacy) - Regulatory Context/Complexity - Consistency v. Complexity Transparency Effectiveness Participation Coherence - Territorial Sovereignty - Appropriate financing Proportionality/Subsidiarity Access to Justice Objectivity/impartiality 8

10 Europe General - European Patent Governance System Complexity Epistemic Patent Community EPO v. National Patent Offices EPO v. EU External judicial review access to justice Legal uncertainty Patenting & litigation costs Patent quality raising the bar EPO Management v. EPO staff Strikes (transparency, ethics, human rights) 9

11 Patent Reforms - Patent Package Main issues Enhanced cooperation procedure Location central division: Paris/London/Munich Competence CJEU CJEU Spain Cases C-146/13 and C-147/13 - EPO acts not subject to CJEU review CJEU Opinion 1/09 - Meroni case law delegation/implementing powers - Art. 118 TFEU uniform protection - Misue of power enhanced cooperation - Autonomy/uniformity UPC Agreement - Non-discrimination (translations) Europe UK House of Commons Scrutiny Committee 10

12 Principles Transparency Participation/inclusion Input legitimacy Accountability Effectiveness /expertise Output legitimacy Coherence/consistency v. complexity Subsidiarity & proportionality Access to justice Impartiality/objectivity European Patent Governance System & Reforms Reform Process Fall 2012 Role UK House of Commons Scrutiny Committee, President s Blog, Advice legal services on compatibility 1/09 Enhanced cooperation, Reform Process Fall 2012 Role UK House of Commons Scrutiny Committee, Post-grant opposition third parties, Third party observations, Written statements, EPO Scenarios for the future, EPO User consultations (2011), EP Policy Options Report & workshops (2007), EC consultations & public hearings, SACEPO, ESAB EPO/Administrative Council, EC/Council/Heads of State/EP, national patent offices, Review EU Biotechnology Dir. Raising the bar initiative, PPH, EPO Clean Energy Report, EPLA Proposal (2005), London Agreement (2000) Three layers, EU Biotechnology Dir. Implementation EPO Rules, EPO classification initiatives, EPO s liaison offfice Brussels, European Roundtable on Patent Practice, European Patent Judges Symposium, EPO President s Referral BoA Enhanced cooperation, UPC National courts (standing?), Proposal autonomy EPO BoA (2003), CJEU, UPC - Opt out?, ADR 11 Client focus?

13 US General - Rule-making-authority USPTO - USCAFC v. district courts - USCAFC v. USPTO deference - USCAFC v. ITC - USCAFC v. Supreme Court - Pilot Projects - Notice-and-comment rulemaking Note: Criticism notice-and-comment rulemaking, e.g. empirical studies - systemic bias in favor of regulated firms (Wendy E. Wagner et al., Kimberly D. Krawiec) USPTO staff telework Ethics 12

14 US Patent Reforms Leahy-Smith America Invents Act Rule making authority USPTO funding - First-inventor-to-file - Patent trial and appeal board inter partes review/post-grant review third parties - Pre-issuance submission third parties - Review business method patents - Exceptions interest groups: universities (prior user rights), tax strategies, pharma company US 13

15 Principles Transparency Participation/inclusion Input legitimacy Accountability Effectiveness /expertise Output legitimacy US Patent Governance System & Reforms Director s Forum, USPTO Notice-and-comment rulemaking Peer Review Pilot (2007), Roundtables USPTO, Patents Ombudsman (2010), Notice-and-comment, inter partes review/post-grant review third parties, Pre-issuance submission third parties US congress, Notice-and-comment USPTO rule-making authority, USCAFC v. Supreme Court, Patent Quality Task Force, PPH, Priority Document Exchange (2011), Patent Application Backlog Reduction Stimulus Plan ( ), First Action Interview Pilot Program ( ), Quick Path Information Disclosure Statement (QPIDS) pilot program (2012), Green Technology Pilot (2009), Accelerated/prioritized examination (2006), Patents for Humanity (2012), After Final Consideration Pilot Coherence/consistency v. complexity Access to justice First-inventor-to-file (global coherence), USCAFC v. USPTO (deference) Third parties Myriad standing issue, patent activism US Supreme Court Impartiality/objectivity Client focus 14

16 Best practices - Patent Reform Processes EU consultation procedures, but US extensive hearings, but - Other Global coherence? Specialized v. general courts EPO Scenario s Project broader impact patent system Increased availability post-grant review procedures Pilot projects, notice-and-comment rulemaking (APA) ADR (Patent Package) Concluding Remarks Transparency, participation, accountability, expertise, effectiveness, coherence Special interest groups Epistemic patent community 15

17 FYI October 17 th "The EU Patent Package: Multidisciplinary and International Perspectives - UA and KU Leuven - economic, legal, governance, university and industry perspective with respect to the patent package - broader context of ongoing patent reforms in the US and Japan and the general trend of establishing specialized IP courts throughout the world 16

18 Thank you for your attention! Any questions? 17