05 October 2005

Public Patent Foundation

I am about to mention something that is likely to dismay many of my clients who are already unhappy with our patent system. There exists in the USA an organization called The Public Patent Foundation which claims to represent the public interest in the patent system. Its message is that "Wrongly Issued Patents and Unsound Patent Policy Harm the Public" and I think that is true.

The Foundation appears to have four main sets of activities, namely:

- protecting the public domain
- representing the economically disadvantaged
- educating and advocating, and
- establishing a patents commons.

Its supporters appear to include the Creative Commons which aims to strike a fair balance between the rights of copyright owners and the public here as well as in the USA, the Electronic Frontier Foundation (about which I shall write more later) as well as at least one set of angels, albeit one that specializes in socially and environmentally responsible projects.

The Foundation is more than a talking shop. It actually intervenes in patent cases before the courts and US Patent and Trademark Office. It came to my notice courtesy of Baker & McKenzie because it has filed "briefs" (that is to say, written submissions) in two proceedings before the US federal supreme court where it is alleged that patentees are using their rights to restrict competition. That may have implications for us in Europe since one can count on the fingers of one hand the number of times art 82 EEC has been invoked successfully (off the top of my head I can think of only Magill but I dare say there are more).

Interestingly, some of the things the Foundation advocate are not all that removed from the agenda of John Mitchell's Patent Reform Group. Patent quality is a case in point. It may be that small business and consumers could be allies.

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