Networks hanging loose: the domestic sources of US–EU patent disputes

ABSTRACT

Intellectual property assets and most notably patents are assumed as most crucial instruments for an effective commercial exploitation of technological inventions. Although both the US and Europe agree in principle that an enhanced cooperation between their patent offices would foster the economic development, various negotiation rounds to harmonize patent application standards have been frustrated during the last 30 years. In our article, we claim that neither the US nor the member states of the European Patent Organization are willing to invest their regulators with a comprehensive negotiation mandate. As long as the decision-making substantially remains within the competencies of domestic institutions, societal actors in both economic spheres prove able to impede any rapprochement. The article concludes with a few tentative generalizations about the relationship between transnational regulatory networks, their institutional embeddedness, and domestic actors’ constellations.

KEYWORDS:

• Intellectual property
• regulatory regimes
• regulatory networks
• transatlantic relations
• patent regulation

Notes

1. The paper summarizes initial findings of an ongoing research project funded by the Fritz Thyssen Foundation (Project No. 53240309). Empirical evidence has been obtained by internet-based enquiries, personal talks during various meetings and conferences at the World Intellectual Property Organization (WIPO) in Geneva, at the German Federal Patent Court (Munich), and at a conference organized by the European Patent Office in Brussels. Furthermore, 77 interviews have been conducted in Geneva, Brussels, and Strasbourg, and Washington, DC. A first version of the article has been presented at the ECPR Joint Session 2008 (11–16 April, Rennes) as well as at the workshop ‘Domestic Sources of Transatlantic Regulation’ (27–28 June 2008, Berlin). We are deeply indebted to the participants of these conferences, most notably to Sebastian Haunss (University of Konstanz), Susanne Lütz (Free University Berlin), Ken Shadlen (London School of Economics), Alisdair Young (University of Glasgow), and Peter K. Yu (Drake University Law School). Furthermore, we would like to thank three anonymous reviewers for their helpful comments.

2. Minor exceptions to the absolute novelty standard in Europe (e.g. in the case of international exhibitions) remain disregarded for the sake of simplicity.

3. Interview 038, Patent Office representative, telephone interview, 11 July 2007; interview 069, European Patent Office representative, Brussels, 13 November 2008.

4. Interview 044, government official, Geneva, 31 July 2007; interview 046, intergovernmental organization officer, Geneva, 31 July 2007.

5. Interview 034, think tank representative, telephone interview, 27 June 2007.

6. Interview 064, member of the European Parliament, telephone interview, 4 November 2008; interview 035, Patent Office representative, telephone interview, 29 June 2007.

7. Interview 038, Patent Office representative, telephone interview, 11 July 2007.

8. Interview 063, government official, Berlin, 30 October 2008; interview 040, NGO representative, telephone interview, 19 July 2007.

9. Interview 069, European Patent Office representative, Brussels, 13 November 2008.

10. Interview 063, government official, Berlin, 30 October 2008; interview 069, European Patent Office representative. Brussels, 13 November 2008.

11. Interview 038, Patent Office representative, telephone interview, 11 July 2007.

12. Interview 075, US Senate representative, Washington, DC, 21 November 2008.

13. For detailed calculations, see for the House Judiciary Committee, see: <http://www.opensecrets.org/cmteprofiles/overview.php?cmteid=H13&cmte=HJUD&congno=110&chamber=H> (accessed 12 July 2010). For the Senate Judiciary Committee, see: <http://www.opensecrets.org/cmteprofiles/overview.php?cycle=2010&cmteid=S17&cmte=SJUD&congno=110&chamber=S> (accessed 12 July 2010).

14. Interview 038, Patent Office representative, telephone interview, 11 July 2007; interview 034, think tank representative, telephone interview, 27 June 2007.

15. Apart from all 27 EU member states, Croatia, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Monaco, Norway, Switzerland and Turkey have joined the European Patent Organization. Albania, Bosnia and Herzegovina, and Serbia have an observer status. The European Patent Office is, after the United Nations’ bureaucracy and the European Commission, the world's third largest international secretariat.

16. Interview 065, European Commission official, Brussels, 12 November 2008; interview 066, European Commission official, Brussels, 12 November 2008.

17. Interview 052, Patent Office representative, Warsaw, 16 September 2008.

18. Interview 048, Patent Office representative, telephone interview, 10 August 2007.

19. Interview 066, European Commission official, Brussels, 12 November 2008.

20. Interview 069, European Patent Office representative, Brussels, 13 November 2008.

21. Interview 038, Patent Office representative, telephone interview, 11 July 2007

22. Interview 066, European Commission official, Brussels, 12 November 2008; interview 069, European Patent Office representative, Brussels, 13 November 2008.

23. Interview 048, Patent Office representative, telephone interview, 10 August 2007.

24. Interview 069, European Patent Office representative, Brussels, 13 November 2008.

25. Interview 069, European Patent Office representative, Brussels, 13 November 2008.

26. The European Patent Convention bars ‘software as such’ (Art. 52.2) from patent protection. Since it has become clear that the exemption will not be abolished in near future (see Eimer, 2008), major information technology companies in the US are hardly involved with the harmonization debate.

27. Interview 069, European Patent Office representative, Brussels, 13 November 2008.

28. Interview 040, NGO representative, telephone interview, 19 July 2007; interview 063, government official, Berlin, 30 October 2008.

29. Interview 065, European Commission official, Brussels, 12 November 2008; interview 066, European Commission official, Brussels, 12 November 2008.

30. Interview 063, government official, Berlin, 30 October 2008; interview 066, European Commission official, Brussels, 12 November 2008.

31. Interview 062, member of the European Parliament, Strasbourg, 22 October 2008.

32. Interview 022, open source lobbyist, Geneva, 3 March 2006; interview 020, open source lobbyist, Brussels, 17 October 2006; interview 048, Patent Office representative, telephone interview, 10 August 2007.

33. Interview 048, Patent Office representative, telephone interview, 10 August 2007.

34. Interview 033, Patent Office representative, telephone interview, 20 June 2007; interview 039, government official, answered questionnaire, received 25 June 2007.