Welcome to Eponia, Europe's New Rogue State?

from the above-the-law dept

It would be easy to assume that the European Patent Office (EPO) stands in the same relationship to the European Union as the USPTO does to the United States, but that's actually wide of the mark. The EPO is a very strange beast indeed, as its Wikipedia entry makes clear:

The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.
Far from being some boring government office like any other, the EPO is like a mini nation-state. This curious fact has been taken as the starting point for a witty post on the IPKat blog about a little-known country, Eponia:
a small landlocked state mainly based in Munich, though it has established colonies in The Hague, Berlin, Vienna and Brussels. Few people are born in Eponia (though it is rumoured that quite a few have been conceived there); most are settlers -- though they prefer to call themselves by a less provocative term, Examiners.
Here are some details about its financial operation:
One of the most buoyant economies in Europe, Eponia enjoys a unique and apparently inexhaustible source of income: patent tourism. Pilgrims come from far and wide to place their supplications before the local sages, or Boards of Appeal. Well-wishers also ply Eponia with money in order to obtain patents, cancel patents, amend patents or sometimes just to accelerate or retard the rate at which these much-desired services are delivered. Those whose petitions for a patent are successful often find that they are blessed with plenty, and that their influence extends from one end of Europe to the other. Some say that this good fortune can persist for getting on for 20 years, so long as occasional sacred donations, quaintly termed "renewal fees", are paid. What other country in Europe can offer such attractions? The horseshoe, the four-leaf clover, the leprechaun pale into insignificance in comparison.
And let's not forget about more elevated matters:
The national religion of Eponia is contained in a document known as the European Patent Convention, whose Articles (far more numerous than the Church of England's mere 39) are held to have been dictated directly into the ear of Blessed Bob van Benthem by a divine voice in the form of a holy hummingbird. While of less mystical origin, the Rules are also greatly revered. Like any sacred text, its superficial meaning is open to misinterpretation, and only specially trained priests are initiated into the deeper meaning of its rites and rituals (enigmatically referred to as "Guidelines"). When sufficiently inspired, those who are closest to achieving spiritual ecstasy can be seen and heard to be "talking in tongues", which embrace English, German and French -- but never Spanish or Italian.
It's a great piece, but its gentle humor exposes a serious point about the EPO: it is literally above the law. That could be a problem because of a major change to the European patent landscape: the introduction of the unitary patent:
A unitary patent will be a European patent granted by the EPO under the provisions of the European Patent Convention to which unitary effect for the territory of the 25 participating states is given after grant, at the patentee's request.
Unitary patents will be granted and administered by the EPO, and will have effect across most of the European Union. However, they will not be directly subject to the European Union. A perceptive paper by Dimitris Xenos, entitled, "The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe", explores some of the problems this could cause once the associated Unified Patent Court (UPC), the sole arbiter of unitary patent disputes, comes into operation :
The UPC will operate in relation to an upgraded framework of patents that are granted by the European Patent Office (EPO), with such patents being able to have unitary effect in all participating states (i.e. those which have approved the relevant EU Regulation). By replacing the jurisdiction of the national courts in enforcement and invalidity proceedings of such patents, the UPC will take exclusive competence to determine all disputes relating to patents with unitary effect. The new system has all the main characteristics of a federal court, apart from the name. However, although a federal structure is adopted, important elements are strikingly different. First, the EU states do not form a federation under which benefits are pursued for the common good of one state and second, there is no legislative authority to influence the economic policy which underlies the determination of the legal principles and standards that define patents as objects of property in the UPC system.
That emphasizes once more that the unitary patent system has been decoupled from the normal legislative and democratic processes of the European Union, and thus will be under no obligation to take heed of the economic interests of the European citizens. Here's why that is likely to be a problem:
There is no precedent in the political history of modern democracies where important property issues affecting the economic sustainability and development of a country, and the proprietary rights and business prospects of its people, were conclusively and exclusively taken by a judicial body at supranational level. A democratic policy-making process for the determination of patents as objects of property exists, of course, in all countries of the world, including the US, whose system the UPC tries to imitate. The difference is that the US unified patent system does not escape democratic control, and the economic policies that it serves are widely debated by legislators, judges, economists, lawyers and industry players, all of whom are residents of the same country.
It's still early days for the unitary patent and the Unified Patent Court, so it's not yet clear how the new system will work, and how serious the problems will be. The danger is that Eponia might turn out to be not so much a quaint oddity in the European political landscape as a dangerous rogue state with serious negative consequences for the region's businesses and citizens.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 2:31am

    The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.

    European politicians and civil servants must have felt that they needed an emergency safe haven, just in case they upset the people they are meant to represent.

     

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  2.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 3:25am

    Therefore interesting things will happen.
    OK, US economy will fall.
    EU:s economy will fall.
    We all get proper Global Recession.

    On the second hand, money (regardless of currency) is still imaginery so what could possibly go wrong?

     

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  3.  
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    Andreas (profile), Aug 6th, 2014 @ 3:28am

    Hmm. So technically speaking, if a band of terrorists decides to set up base in the EPA office, police/military are not allowed to enter the premises?

     

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  4. This comment has been flagged by the community. Click here to show it
     
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    Whatever (profile), Aug 6th, 2014 @ 5:30am

    Entertaining story, but it appears to be just that, a story. The creation of a sort of monster in the closet that the kids will believe in.

    The thing is having a EPO instead of a patent office in each country has significant benefits and of course, some draw backs. The significant benefits are a more universal application of patents across Europe, and resolution of disputes that are not required to be repeated over and over again in each member country. The idea is there, and it's a good one.

    The drawbacks are clear as well. It certainly does limit the ability for member states to enact legislation in this area. It means that unneeded patent extentions cannot be enacted in one country to protect local industry, or to artificially keep others out of a market.

    The problem here is that the European isn't really a working federal system, it's still way to disjointed and has way too many moving parts. Start removing the extra parts from a process, and some people get upset.

     

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  5.  
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    Mr. X, Aug 6th, 2014 @ 6:04am

    Working for the USPTO here....we were told that local authorities (VA police) have no jurisdiction to enter the USPTO because these are federal buildings. In this regard we compare to the EPO. In regards to everything else, yes, our decisions can be appealed all the way to the U.S. Supreme Court, and even our budget needs to be approved by congress (despite being self funded).

     

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  6.  
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    Anonymous Coward, Aug 6th, 2014 @ 6:29am

    So who pays for this Holy Patent Land?

     

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  7.  
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    Seegras (profile), Aug 6th, 2014 @ 6:56am

    Re:

    > who pays for this Holy Patent Land?

    We all pay, with goods whose cost consist to a third of a fee to the Eponians and to local lawyers.

    We all pay, with innovation disrupted, and slowed down.

    We all pay, with monopolist incumbents destroying smaller competition.


    "The granting [of] patents ‘inflames cupidity', excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits...The principle of the law from which such consequences flow cannot be just." -- The Economist, July 26, 1851

     

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  8.  
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    Anonymous Coward, Aug 6th, 2014 @ 7:15am

    Most EU organizations consider themselves above the law. How else can you explain the huge number of EU treaties and regulation that are permanently broken by said organizations.

    The EU and all its organizations are just organized crime that writes the laws.

    Fuck them all.

     

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  9.  
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    gnudist, Aug 6th, 2014 @ 8:03am

    With a name like eponia you'd think it was a land for bronies

     

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  10.  
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    Alien Rebel (profile), Aug 6th, 2014 @ 9:11am

    Men In Black

    Maybe you recall that MIB is funded by patents; it's just that now they have their very own patent office, too. (The case officer at MIB who oversees my activities here on Earth says it's no big deal).

     

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  11.  
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    Anonymous Coward, Aug 6th, 2014 @ 10:02am

    Re:

    Entertaining story, but it appears to be just that, a story. The creation of a sort of monster in the closet that the kids will believe in.

    Care to point to specific items in the story which you think are false, or are you just being contrarian for the usual reasons?

    The significant benefits are a more universal application of patents across Europe, and resolution of disputes that are not required to be repeated over and over again in each member country.

    That's not necessarily a good thing. Just take a look at how different countries have dealt with Apple's patents and ask yourself about the implications were the UPC to reach the same decision as the worst of these. Having your own patent court protects your own country's companies against bad decisions by others.

    The drawbacks are clear as well. [...] It means that unneeded patent extentions cannot be enacted in one country to protect local industry, or to artificially keep others out of a market.

    Interesting concept of "drawbacks" you have there. I'm not convinced it's true, though. Federalization does not prevent local industries from influencing policy, and it's not as if Europe as a whole doesn't have industries or markets it would seek to protect.

     

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  12.  
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    DogBreath, Aug 6th, 2014 @ 10:08am

    Re:

    Eponia sounds roo much like Elbonia. Scott Adams should sue.

     

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  13.  
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    DogBreath, Aug 6th, 2014 @ 10:18am

    Re:

    No problem. If any of "authorities of the States in which the Organisation has its premises" have an issue and are not allowed on site, I'm sure it can be resolved with the "external delivery" of an "appropriate representative", as it is nearly impossible to refuse.

     

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  14.  
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    DogBreath, Aug 6th, 2014 @ 12:51pm

    Re: Re:

    *too

     

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  15.  
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    Nevian Caernarvon, Aug 6th, 2014 @ 12:56pm

    How?

    Eponia is superlegal. Likely extralegal. What court would he sue in?

     

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  16.  
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    John Fenderson (profile), Aug 6th, 2014 @ 1:35pm

    Re:

    "The drawbacks are clear as well"

    You didn't even hint at one of the most major drawbacks: it turns patents into a kind of contagion such that when bad patent law is enacted, there's nothing that individual states can do to fix it.

     

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  17.  
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    DogBreath, Aug 6th, 2014 @ 6:35pm

    Re: How?

    If this was still the 20th century, I'd say sue them in Vatican City under the Fundamental Law of Vatican City State. After all, no one expects the Holy See.

    But as it is now the 21st century, I'm sure he could find some Corporate Sovereignty Tribunal to award damages, seeing as they are the real ones in power these days.

     

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  18.  
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    Whatever (profile), Aug 6th, 2014 @ 7:07pm

    Re: Re:

    As I said, the drawbacks are clear (and many mentioned in the story). That would include that the member states can no longer change patent law to suit local needs or to create a more competitive marketplace compared to others. I could go on, but I figured the drawbacks are pretty obvious and well covered.

     

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  19.  
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    Eldakka (profile), Aug 6th, 2014 @ 7:49pm

    Re:

    The EPO (like any sovereign nation's embassy) is free to request and allow the police to enter the premises to perform its functions. e.g. the 1980 Iranian embassy siege https://en.wikipedia.org/wiki/Iranian_Embassy_Siege

     

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  20.  
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    Whatever (profile), Aug 6th, 2014 @ 9:22pm

    Re: Re:

    Care to point to specific items in the story which you think are false, or are you just being contrarian for the usual reasons?

    Like many tales, the basis is in fact, which makes it easier and more palatable for people to swallow whole. You don't notice the logical gaps between the steps.

    While it is correct that the offices are not controlled by the states directly (and they are treated in many ways like embassies), the EPO as a whole is created at the behest of the states and, according to Wikipedia is "The actual legislative power to revise the European Patent Convention lies with the Contracting States themselves when meeting at a Conference of the Contracting States". Thus the states do in fact control it.

    Basically, the story draw two sides of a square, and let's you conclude you are looking at a triangle, when in fact it's a square.

    When you understand that basic concept, you can understand the rest of the story is, well, a story. It's based in fact, but it's a bit of a flight of fancy because it ignores the source of actual control.

    Having your own patent court protects your own country's companies against bad decisions by others.

    You are correct, but that creates very problem this sort of organization is made to avoid. You can see it in the Apple / Samsung situation (recently mostly resolved or at least de-litigated), where a patch work of yes and no decisions makes it all but impossible for these companies to operate clearly inside the European Union. Economically, it's a disaster for both the companies and the public, who may be denied a product because they live on the wrong side of a border.

    Federalization does not prevent local industries from influencing policy

    Again, you are correct, but this sort of system means that countries cannot arbitrarily change the rules to try to gain advantage or extra protection for industries at the expense of others in the zone. It is a drawback for governments who lose that small economic lever, and a drawback for politicians who can't pull on it to curry voter favor.

     

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  21.  
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    John Fenderson (profile), Aug 7th, 2014 @ 8:16am

    Re: Re: Re:

    Ah, I misunderstood what you wrote. I thought that you were enumerating the clear drawbacks in the following sentences, not leaving them unsaid.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    GEMont, Aug 7th, 2014 @ 6:22pm

    ..the end is hardly nigh...

    Actually, I'm pretty certain that the single most pertinent sign of the end times, is the one where politicians in a display of incredible group intelligence, do the right thing.....

     

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  23.  
    identicon
    Another, Aug 19th, 2014 @ 4:29am

    Re

    This article is besides the point and gives a wrong view of the reality. It is mixing up internal affairs and patent affairs. The EPO is not above the law. The EPO has its own law and this only concerns internal affairs and not the patent law. The patent law is dfined by teh EPC that is finally coming from the member states. The EPO is the execution body of the EPC. The EPO is not an organism living besides states and economy. The unitary patent is not a playground of the EPO but of the EU and its member states. The EPO does only implement it, like it does with the patent law.

     

    reply to this | link to this | view in thread ]


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