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The WTO angle and TRIPS November 22, 2004

Posted by mais in IP Systems, Patent, TRIPS, WTO.
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The WTO angle and TRIPS: “The WTO angle and TRIPS

By Lawrence B. Ebert

Of the Ballmer quote: ‘Someday, for all countries that are entering the [World Trade Organization], somebody will come and look for money owing to the rights for that intellectual property.’

Section 5, Article 27, paragraph 1 of TRIPS recites:

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

Paragraphs 2 and 3 don’t say anything about business method or software patents.

[http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm#5]

David Berlind writes: Given the significant overlap between the members of the WTO and the European Union [EU], I’m having a tough time imagining how, if Europe can’t uphold patents on software, the WTO can. One poster observed that the EU could take the position that business methods/software are not a ‘field of technology’ or perhaps even ‘inventions.’ Further, if the USA did even try to get WTO to force a change in the EPC, the EU would counter-attack with TRIPS complaints about various aspects of the US patent system which currently favour US-based inventors. –> Mutually assured standoff.

Berlind also wrote of the WTO remark: ‘the easiest way to get rid of a potential customer forever is to sue them. Especially when that customer is a government. Governments usually have pretty big budgets.’

Within the US, patent holders have sued customers. Go back to the days of the Selden patent on the automobile. One of the advertising slogans for licensed cars was ‘Don’t buy a lawsuit.’ Henry Ford said that this tactic by the Selden patent holder (ALM) launched Ford’s business. In the pharma business today, many claims on drugs are written such that patients, doctors, and pharmacists could be sued for use of competitor’s infringing drugs. For example, this could have happened with omeprazole. But, of course, it didn’t. In the area of copyright, there have been some exemplary suits brought by the RIAA against consumer-infringers, but this is tricky business.

A different website gives a different example.
http://www.linuxworld.com.au/index.php/id;1874419189;fp;4;fpid;1

–>Up to now, not many users have faced such threats. When asked for an example of a user actually getting sued over intellectual property rights, Microsoft spokesmen go back four years.

In 2000, Allan Konrad, a computer scientist, sued three dozen corporations, including General Motors, Ford Motor, The Boeing Co., Daimler Chrysler, United Air Lines and Eastman Kodak. Konrad held three patents and ownership to the mechanism of Web-based delivery of information. He went after corporations serving Web information from back-end databases.

‘Microsoft worked to get IBM, Sun and AOL, whose products were also implicated, to step in collectively on behalf of our customers. We hired one law firm to defend them, paid the cost of that. The outcome was very positive, the infringement claims were thrown out,’ said David Kaefer, director of business development at Microsoft.

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