Thank you for your quick answer! You are right, the Europeans are “somewhat” of the opinion that harmonization means: US please take our law.

In my opinion that is mainly for the reason that in Europe you always have a dozen people discussing on the table before anything it is decided and all these dozen people (or countries) simply completely distrust each other. Because it takes the Europeans so long to come to terms with themselves they are simply not open to any compromise since that would destroy any solution they have found in Europe. To put it short: Europe cannot move – not because they don’t want to but simply because that would kill it. So they try to avoid an open discussion about this and the Americans have any reason to be annoyed about that. Furthermore they were lucky that most over Asia took over the European (= German) law so that they can say they are the majority.

On the other hand I am of the opinion that some central differences between the (formal) European and American Patent Law (i.e.: First to File, Oppositions, No Discovery, No Inequitable Conduct, No “Fraud”, Patent Litigations for 50.000 bucks) simply make sense and the Americans should seriously consider whether they should not adopt some of those.

All of this is formal Patent law and you might say: What about the material Patent law (i.e. Patent on Biotech, Software etc.)

You are right in that sense that the European have quite lost some terrain by being to harsh on Biotech-Patents and also on Software. But (unfortunately I have to admit) in my view the Biotech sector was never heavily dominated by Europe, so there was no movement to the US since there was simply nothing to move.

Europe has the problem that only in a few countries (i.e. IMHO Netherlands, Germany, Denmark, Austria, Scandinavia, Switzerland – although the latter is not really Europe or only partly) exists an innovative industry whereas in the other countries simply more or less nothing is invented. That goes for France, the UK, Italy where it is not much, but also for e.g. Spain and Greece where it is simply disastreous. Therefore many countries in Europe are frankly not interested in having strong patents plainly for the fact they do not have any industry that would benefit from it. They fear that patenting would increase prizes and that’s why they even (secretly or openly) oppose patents.

On the other hand Europe has the EPO and the EPO due to the “EPO 2000″ simply makes its own law now. Therefore rules and granting procedures concerning Biotech and Software have moved quite heavily concerning the US position (although not explicitly stated it is so). You may therefore expect that the EPO will take over many of the US positions concerning these fields in the future.

The EPO does not like business methods, however. But (as I learned from Bilski) at least the CAFC doesn’t like them, too. And the “machine or transformation” test (although de jure denied but maybe de facto the test to be applied in the future) is much harsher than (e.g. ) the Hitachi-Decision of the EPO, where the EPO more or less declared everything technical. So maybe there will be somewhat of an alignment (or “harmonization”) in the future – and that would be that the EPO shifts its position.

Sorry that I took so much of your time, but thank you for reading all this! I look forward to your answer!

Best regards,

Herbert

I wonder if you have actually read my writings. You ask whether I have ever considered whether some parts of European Patent Law that are not different from the US just to be different but because they make sense. Of course I have thought of that, and if you read what I have written you wouldn’t ask the question. I ALWAYS say that the appropriate path should be to figure out what makes sense and choose that. Unfortunately, the Europeans are by and large opposed to that philosophy. They invariably believe harmonization talks are talks about having the US adopt European law, principles and philosophies. If you are familiar with the debate you know that to be true.

So let me ask you… why doesn’t Europe adopt those aspects of US law that make for a better patent system? Why must Europe always demand that the US change to meet its laws and not do things that make sense?

Anyone who seriously and objectively looks at the issues knows that the European view of patentable subject matter kills industries in Europe and forces them elsewhere and the expansive view of patentable subject matter in the US is why our economy has far more innovation and both large companies and start-up companies than does Europe. It is also why the biotech sector, which used to be heavily dominated by Europe, has largely moved to the US. So why would Europe continue to pursue laws that make no sense and drive away innovative businesses?

-Gene

first of all: I am from Europe (actually from Germany to explain).

Did you ever think about the following: That some parts of European Patent Law are there not to oppose U.S. law but simply because they make sense ? And that the U.S. should take them simply because they are better ?

If the U.S. Patent Law is so good, why was it not adapted by the Chinese when they started they patent system in the early 80s of the last century ?

I have been in China quite often and talked to some of the people which were in charge when China “made” their patent system. China did it like always: They studied which systems were available worldwide and then picked they thought would be the best system. And that was not the U.S. System. It was the German system.

China send a couple of hundred patent examiners to the GPTO to study how patents should be examined. Many of them eventually left the SIPO to found their own firms (which is a funny situation for me when you visit these firms and the big boss of them all tells you – in German – how much fun it was to drink beer in the Englische Garten in Munich).

Secondly:

You write:

“The United States is the dominant market in the world, all companies want US patents and there is simply no reason to harmonize our laws. ”

That may be true for now – but what happens when China and Japan want their money back ? (As you have correctly quoted in one of your other blogs: its not your money you borrow it from China and Japan).

Interested in your thoughts and (possible) answer, I remain

Truly yours

Herbert

To see how they are treating Fox news and disregarding freedom of speech and right to press makes me wonder what other barriers will they cross on their way to dissolving our common law constitution. Today people are looking at the here and now and not looking at the principles in which his administration and cut down anyone who has questioned them.

When a president can’t be questioned he moves into the role of a dictator (good or bad) and when that occurs we the people lose the voice (and vote) of the people.

Amen! I think you hit the bullseye!

-Gene

No wonder so many individuals cling to their guns and religion.