Archive for the ‘international’ tag

Biotechnology, Bioterrorism & the First Amendment

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Last year, two teams of researchers funded by the National Institutes of Health (NIH) succeeded in genetically modifying the H5N1 avian flu virus.  The modified virus is capable of respiratory transmission between ferrets, suggesting that it would also be transmittable between humans and potentially capable of causing a “pandemic of disastrous proportions” with mortality rates exceeding 50%. The central controversy arose around attempts to prevent publication of the research findings, which some considered a “blueprint for bioterrorism.  The U.S. National Science Advisory Board for Biosecurity (NSABB) met to discuss the issue and adopt a solution that would both protect national security and be consistent with scientific freedom and the First Amendment.  While the NSABB recommended redacting details from the paper, the international community came to a different conclusion.  At a meeting convened at the World Health Organization in Geneva, international experts felt that the papers should be published in full. On the domestic plane, preventing publication of scientific research raises issues of free speech and the First Amendment.  The Supreme Court has consistently read the First Amendment broadly, as evidenced by the landmark Pentagon Papers case.  In New York Times v. United States, the government sought to prevent the New York Times from publishing a top secret study on the U.S.’s policy in Vietnam.  This marked the first time that the federal government sued the press to prevent it from disclosing information for reasons of national security. The Supreme Court recognized that there was a “heavy presumption against” restraints on the press, and found that the government did not meet this burden. Even in instances – as with the H5N1 research – where the U.S. government has funded research, this does not give it the power to censor publication.  In Board of Trustees of Leland Stanford Jr. University v. Sullivan, the Court ruled that federally funded scientific research should not be subject to prior restraint.  That is, the government may choose whether or not to fund research, but if it chooses to fund a certain study, it may not restrain the dissemination of findings from that research without a compelling state interest. Although First Amendment jurisprudence is strong, freedom of speech does not extend to every situation.  The Court ruled in Chaplinisky v. New Hampshire that certain utterances may be of such low value “that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Since New York Times v. United States, courts have found themselves judging cases in which it is necessary to balance the value of free speech against other interests, such as security.  In 1979, the Court in United States v. Progressive, Inc. recognized that “First Amendment rights are not absolute,” and enjoined the press from publishing an article with technical details on constructing a hydrogen bomb.  The Court ruled that the threat to national security met the standard established in New York Times v. United States. In the case of the H5N1 research, a redacted publication may survive a First Amendment challenge under the reasoning of the court in Progressive.  In both instances, free speech must be balanced against the potential threat to life and security.  The government could evoke the war on terror to argue that heightened restraints on speech are necessary when it comes to issues of biosecurity during wartime. Another possible solution to the H5N1 controversy is for Congress to legislate in this domain.  One of the Supreme Court’s main reservations in New York Times v. United States was that the judges did not want to legislate from the bench; they saw this as an issue of separation of powers.  In recent years, Congress has considered expanding legislation to protect national security over freedom of the press.  After the upheaval caused by Wikileaks, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act was introduced in Congress.  This proposed legislation would amend the Espionage Act, providing greater protection for classified government information. Unfortunately, as the H5N1 controversy has shown, problems relating to security and free speech do not end with domestic law.  The two researchers who led the H5N1 study were from universities in the U.S. and the Netherlands, and the international community and the World Health Organization have already become heavily involved.  Even if redacting the articles would survive a First Amendment challenge in the U.S., these efforts would be fruitless if other countries chose to publish the data in science journals abroad.  With increasing international collaboration in scientific research and greater security risks posed by research findings, it may soon become necessary to create a set of international standards for biosecurity. One major problem with international standards to suppress speech in the interests of security is determining who decides when these standards have been met.  In the case of the H5N1 research, would the U.S. and the Netherlands be the sole decision makers?  This seems certain to displease other nations who have an interest in the sensitive information or in voicing their opinions.  On the other hand, if all nations had a say in weighing the benefits of publication against security interests, then the risk of sensitive information getting out could grow even greater. Threats to biosecurity like the H5N1 research will continue to present themselves in the years to come, and political leaders should seek to address these issues both domestically and internationally.  While First Amendment jurisprudence may pose an obstacle to preventing the dissemination of dangerous information, a coordinated effort on the international level is also necessary.  With clear standards for undertaking research and withholding sensitive findings from the press, threats to biosecurity may be contained without prejudice to scientific freedom.

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March 21st, 2012 at 1:40 pm

Bollywood & Hollywood: Opportunity for Collaboration through Reform of Policies Governing Copyright and Plagiarism

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The Bollywood film industry has been using ideas from foreign films since its inception. This “borrowing” has ranged from melodies for background scores to entire plot summaries and even translated dialogues. However, with the advent of technology and the increasing popularity of Bollywood cinema in the United States, we are beginning to see American film producers “borrowing” Bollywood film elements as well. Prominent examples are the use of the Bollywood song “Chamma Chamma” from the Hindi movie China Gate as a dance number in Moulin Rouge; the use of the Bollywood song “Chaiyya Chaiyya” as the title song for the Hollywood movie Inside Man; and the Black Eyed Peas sampling of songs from both Don and Apradh on the track “Don’t Phunk with my Heart”. The media exchange between both nations is increasing as Bollywood actors and directors are entering the Hollywood industry while Hollywood filmmakers and production companies are trying to break into the Bollywood media market. As the cross-border media sharing intensifies, the need for answers regarding legal implications for both nations increases. While both countries have copyright statutes and are signatories to numerous treaties regarding intellectual property rights there is a lack of enforcement of these provisions in the Indian courts. There is a great need for international collaboration between the United States and Indian governments to work towards a solution to this legal issue. As evidenced by the Indian High Court’s ruling against Will Smith’s production company’s suit against the Bollywood producers who re-made Hitch without permission, the two governments have vastly different approaches to intellectual property rights enforcement. Without some way for Hollywood and Bollywood film producers to compromise and reach a mutual understanding regarding sampling each other’s productions, the creativity that could be fostered by increased communication is hindered. Furthermore, without some sort of reprimand for producers who abuse their “sampling” privileges and effectively steal whole works of others, relations between these two film industry giants will be frayed. For further reading on this topic, check out this, this, & this.  

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March 20th, 2012 at 2:54 pm

Twitter’s New Country-Specific Censorship Policy: An Attack on Free Speech or a Legally Necessary Move?

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The social media website Twitter announced in a recent blog post entitled “The Tweets Must Still Flow” its plan to enact a new censorship initiative. “Starting today,” Twitter announced, “we give ourselves the ability to reactively withhold content from users in a specific country – while keeping it available in the rest of the world.” Twitter explained that the site will “withhold specific content only when required to do so in response to what we believe to be a valid and applicable legal request.” (Twitter’s message is available at blog.twitter.com.) The message was met with widespread protest, with users taking to their Twitter accounts to accuse Twitter of “selling out” and to propose a Twitter boycott for today, January 28, using hashtags like #TwitterBlackout and #TwitterCensored. Angry Twitter users have framed the move as an attack on free speech and the freedom of expression. Others, however, have praised Twitter for its full disclosure on the issue and for being upfront about its legally-mandated censorship policy. Spokespersons for Twitter insist that the move has been largely misinterpreted. They argue that the negative effects of this initiative are being exaggerated, and that in fact the move is pro-freedom of expression as it will remove contested tweets in countries where they might be illegal while still allowing them to remain visible throughout the rest of the Twitter world. (Under its previous policy, when Twitter deleted a particular tweet, the deletion was global.) Twitter representatives maintain that Twitter is actually increasing its transparency because it will inform users when particular tweets have been deleted due to requests from governments or other entities. Twitter plans to replace the contested Tweet with a “Tweet withheld” message, and to post information about country-specific deletion requests it receives on the website Chilling Effects, an anti-censorship website. This arguably represents a less “secret” form of censorship than a system where a message is deleted without acknowledgement. Twitter argues that such a policy is necessary because laws vary between countries, and that it plans to impose censorship narrowly. Opponents, however, argue that Twitter is more than a social resource; it has in fact been an important tool in not only social but also political movements worldwide. (for instance Egypt) Twitter was, for example, pivotal in orchestrating Occupy Wall Street and the Arab Spring uprisings in Egypt. Countries lacking a democratic system, where such an avenue for freedom of expression is arguably needed most, will no longer be able to depend on Twitter. According to the Associated Press, a letter from Reporters Without Borders, an entity which advocates for freedom of press, argued that “Twitter is depriving cyberdissidents in repressive countries of a crucial tool for information and organization,” and insisted that the new censorship policy be abandoned. The move raises many questions. For one, is it legitimate for the definition of freedom of expression to vary from one country to another? How responsive will Twitter be to requests for removal of governments, companies, or other outside parties? (That is, how will Twitter go about determining what is or is not “ a valid and applicable legal request”?) Will removals, as Twitter promises, truly be imposed as narrowly as possible? Will tech-savvy Twitter users find a way around the country-specific censorship? Is this move, as many have suggested, ultimately aimed at gaining access to countries where Twitter has been blocked (for instance, China)? Finally has, as Forbes magazine put it, Twitter “commit[ted] social suicide”?

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February 1st, 2012 at 4:28 pm

Beijing Requires Real Name Registration for Micro-blog Users

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SINA WEIBO is the most widely used micro-blog in China, which has more than 300 million users by the end of 2011.  WEIBO is like the Chinese version of Twitter.  On December 16th, 2011, “Beijing Micro-blog Development Management Rules” were released by Beijing Municipal Government Information Office and Beijing Police Department, requiring WEIBO users to register with their real identities and micro-blogging service providers must verify their user identifications. This policy represents a continuing effort of government control over the online world in China.  By the end of 2011, China had more than 500 million web users. The rapid growth of the popularity of internet had greatly challenged the government’s control capacity and had put great pressure on it.  Using the internet for educational or business purposes is encouraged by the government, but using the internet to spread pornographic or subversive materials is not permitted. “The government is strengthening its control over microblogs after a bullet train crash in July 2011 that killed 40 people prompted an online outpouring of criticism of the official response.” Currently, Chinese users do not have access to Facebook and YouTube without using a VPN, and have restricted access to Google on concerns that those websites might contain information that is pornographic or subversive due to a less restrictive standard of information filtering. It is unclear how much this policy will hurt the micro-blogging business, especially SINA WEIBO.  SINA’s stock price dropped as much as 11% before closing the day up 5%, and SINA’s stock price is on an upward trend since then.  Despite the real name registration requirement, more and more micro bloggers are using WEIBO as their primary source of news.

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January 25th, 2012 at 1:30 pm

When in Doubt, Force Someone Else to do it: A Quick Look at Spain’s New Sinde Law.

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While the Stop Online Piracy Act (SOPA) lumbers its way through the American legislature, a remarkably similar act has found its way into legitimate law on the other side of the pond. Just in case no little chickens have been by to tell you that the internet's sky-high potential for the free expression of ideas is about to come crashing down, SOPA is an anti-internet piracy bill. Introduced in late October of last year, the bill would allow the US Department of Justice (DOJ) and copyright holders to seek injunctions against sites containing allegedly infringing material. As law, the bill would empower courts to halt services essential to website survival. Infringing sites could be cut off from advertising payoffs, links on search engines, and internet service providers could even be ordered block users from accessing the site. Familiar internet goliaths such as Google, YouTube, Twitter, and others are crying out that passing the SOPA will destroy the internet as we know it. Pretty soon there will be solid evidence of whether or not these claims hold water. Spain recently passed the Sinde law which is, while not an exact replica, essentially a Spanish SOPA. What makes the Sinde law interesting, however, is not just its similarity to the SOPA, it's also that America appears to have bullied Spain into passing the law. According to Spanish newspaper El Pais (you'll need a translator if you don't speak the native tongue - or you can just read The Guardian's account), a letter from US Ambassador Alan Solomont to the Spanish Prime Minister indicated that the US would frown upon a Spanish failure to pass the piracy law. Reminding Spain of its status on the Special 301 Report - a list of countries deemed to have sub-par internet piracy protections - the ambassador warned that a "downgrade" from there could be disastrous. Joining that group, in the ambassador's words, of "the worst violators of global intellectual property rights" would subject Spain to "retaliation actions" including disintegration of tariff agreements and a WTO referral. Regardless of any nefarious behind-the-scenes letters, it will be interesting to see how the Sinde Law changes the face of the internet in Spain. Given the speed at which the American Congress moves, we might get to see some of the long-term effects of SOPA-like censorship before we have to worry about the any sky shattering legislation passing stateside.

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January 25th, 2012 at 1:21 pm

Not Just China and India: ITU Reports Growing Access to Telecom in Developing World

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The International Telecommunications Union (ITU) has released a snapshot of worldwide access to telecommunications in 2011.  A full third of the global population now has internet access, up from only eighteen percent five years ago.  Furthermore, the developing world now houses the majority of internet users, with broadband access increasing as well.  More remarkably, a majority of developing world internet users now reside outside of India and China. This growth in access has profound consequences.  Much of the international focus on internet piracy and intellectual property issues has centered on countries like China and India.  While these states remain important players in piracy, the growth in other developing country access multiplies opportunities for internet piracy. While Congress debates SOPA, and while country specific efforts in India and China attempt to limit internet piracy, the global proliferation of internet access at broadband speeds may necessitate a multilateral approach to combat internet piracy.  Whether or not the international community can reach consensus on a unified approach to internet piracy, however, remains to be seen.

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January 11th, 2012 at 12:33 pm

Expansion of Cyber Warfare… Possibly

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In a small town outside Springfield, Illinois, a controversy emerged this past month as to whether or not the U.S. had fallen victim to its first known industrial cyber attack.  In a public water district, a water pump malfunctioned causing it to turn on and off until the piece of equipment eventually burned itself out.  Cyber-security expert and blogger Joe Weiss notified the media that the Illinois Statewide Terrorism & Intelligence Center had identified the event as a cyber attack launched from somewhere in Russia.  Subsequently, the Department of Homeland Security and FBI pursued investigations and concluded that there was no actual evidence of hacking of the controls to the facility.  No malicious intrusion appears to have occurred.  According to a source with DHS, the Russian IP address found in the computer log was present because the contractor, who had remote access to the computer system, was there on personal business. As implausible as this and similar scenarios might seem, where hackers could gain control of industrial equipment anywhere in America—outside action movies—the U.S. has already been implicated in committing this exact activity.  Last year, the Stuxnet worm was discovered and linked to U.S. and Israeli governments as an attempt to derail Iran’s nuclear program.  The worm spread to hundreds of thousands of computers but was designed, ostensibly, so specifically as to execute a process only to destroy a network of the centrifuges in Iran’s nuclear facility.  While Stuxnet originally mystified security companies and programmers, it now exists as (1) a well-studied “playbook” for those wishing to design a similar computer worm and (2) part of an acknowledgement that the U.S. is innovating beyond cyber espionage and into industrial cyber warfare.  Realizing that the cyber arms race favors the innovation of hackers, which is often unpredictable for those working cyber defense, many are asking if there is any possible legal regime applicable to this type of attack. Those trying to determine international rules of law are grappling with almost boundless uncertainty.  Questions of interpretation deal with whether a cyber attack might trigger the collective self-defense provision in Article V of the NATO Charter or qualify as the use of force according to Article 2(4) of the U.N. Charter.  However, a practical issue any lawmaker faces is that it may be next to impossible to know with certainty where an attack is coming from. The U.S. has endeavored to establish a legal framework for cyber warfare within its own government regarding policies and rules of engagement, but even there deliberations are “ongoing.”  This year, instead of waiting for answers from international bodies, the Pentagon clarified the U.S. view that these attacks may constitute acts of war.  Just recently, the U.S. joined efforts at the NATO cyber defense research center in Estonia, whose government was temporarily crippled by a cyber attack years ago that is presumed to have come from Russia.  Likewise, in the past week the U.K. announced its own Cyber Security Strategy that voiced intentions to pursue an aggressive cyber defense policy. Still, one important consideration should emerge while we’re worrying about cyber warfare: there is still no evidence of any significant physical harm befalling anyone due to cyber warfare.  These worries can be overblown.  There are few, if any, successful cases of cyber industrial sabotage—even Stuxnet probably only worked to destroy a tenth of its target centrifuges.  On the other hand, many people, even experts, may have vested interests in with raising cyber security fears.  As engaging and serious as this discussion sounds, we should take cyber security threats with a grain of salt.  Before considering retaliation, we especially need to make sure that the problem is not simply a glitch within our own equipment controls.  

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December 7th, 2011 at 4:12 pm

Is a Computer Better Than You at Negotiating?: The Use and Usefulness of Online Dispute Resolution

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My first semester of law school, our torts professor explained to the class that we were training for a career in which we would essentially become nothing more than very expensive transaction costs. I’m pretty sure her intention with this comment was to cut short a circuitous and unproductive discussion that had developed about the cheapest-cost-avoider and economic efficiency. I think she just wanted to move onto the next case. But the comment has stuck with me. I was reminded of it again recently when I came across a Wall Street Journal article entitled: “At GE, Robo-Lawyers: Oil-and-Gas Unit Tests Online Resolution to Control Costs.” The article considers a software system called CyberSettle that allows parties to submit settlement bids into a double-blind program. If the bids come within a certain range in any of the rounds, the case settles for that amount. If the bids fail to match up in any round, the dispute gets bumped to online mediation. A facilitator uses the uploaded documents from each party to work out a compromise, without revealing the other party’s numbers. The settlement rate for CyberSettle clients is 65%. CyberSettle is not a new service. The company’s patents date back to 1998 and some of its biggest clients have been using it in some capacity for many years. The service is used not only by General Electric, but also Wal-Mart and several other corporations and insurance companies. Until recently, New York City used it as well. Additionally, CyberSettle enjoys a strategic partnership with the American Arbitration Association, which allows customers to begin settlement talks using the CyberSettle platform and then, if that fails to resolve the dispute, the parties can seamlessly transition to traditional AAA services. The appeal of an online dispute resolution (ODR) program such as CyberSettle is clear. It is an opportunity to limit the expensive transaction costs that come with using counsel to settle a dispute. Where the claim is small, attorney’s fees can otherwise easily out price the amount at issue. Criticism of ODR is concentrated on the challenges of removing the human element from the settlement process. Some claimants will want the cathartic experience of airing grievances in addition to monetary compensation. Other claimants, especially larger and more sophisticated corporations, would rather engage their own counsel than use a website. Additionally, at least one big former client of CyberSettle found that the system was not cost-effective. This year New York City stopped using the software for small personal-injury and property-damage claims, with a purported projected savings of $600,000 annually. Comptroller John Liu found that the same work could be done in house with claims adjusters who negotiated by phone. (It should be noted, however, that these numbers appear to be politically charged and controversial, seeing as the previous Comptroller claimed that use of CyberSettle saved the city $33.4 million from 2004 through 2008.) Regardless, there is a warranted debate about the usefulness of the program. While ODR may not be right for every kind of dispute, it does appear to fit a particular segment of legal fights very well. The way GE is currently using the service is for small claims with suppliers. GE Oil and Gas only uses Cybersettle for claims under €50,000, for what the company calls “micro-disputes,” and only in Italy. This GE unit now writes an ODR requirement into contracts with many of their Italian industrial suppliers. ODR works well for this category of claims because these disputes are less likely to have the same emotional attachment as personal injury claims and often involve smaller companies with less sophisticated legal counsel. In these situations it serves both the bigger corporation and the smaller supplier well to use an automated system with less transaction costs, at least as a first attempt at settlement. Indeed, the International Centre for Dispute Resolution launched a program in September suggesting that ODR is a particularly good way of dealing with supplier and manufacturer disputes. In an economic atmosphere that encourages companies to cut costs wherever possible, it makes eminent sense that executives would look to expensive legal fees as an area worth addressing. But how far will ODR expand? Should ODR be limited to certain kinds of disputes? What do you think?

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October 12th, 2011 at 12:11 pm

New Movement on the European Union Patent

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European patents are presently granted by the European Patent Office (EPO) under the European Patent Convention (EPC), but they remain expensive for patent seekers, roughly ten times as expensive as an American patent.  This expense is due in large part to translation costs that must be incurred for patents to be recognized in various countries.  These translation requirements have recently been lowered as a result of the London Agreement, but still nearly 75% of the cost for the acquiring typical patent is from the need to have it translated into various languages.  Additionally, the current European patent is essentially a bundle of patents, which must be registered, renewed, and enforced at the national level.  To remedy problems with the European patent, there has long been discussion about creating a single, centrally enforceable unitary European Union Patent (EU Patent).  However, consensus among member states for creating such a system has been impossible to attain, delaying various attempts to make the EU Patent a reality.  In the past year, new movement has been seen culminating at the December 2010 meeting of the Competitiveness Council. In December 2009, unanimous agreement was finally found for creating a specialized patent court system, which would include a common court of appeals, and a single EU patent, which would grant intellectual property rights across all European Union member states.  However, agreement over a method to bring down translation costs for the EU patent had not yet been found.  The proposed translation arrangement would allow for the EU patent to be issued in English, French, or German – the working languages of the European Union. During 2010, suggestions were fielded in an attempt to find agreement for the translation system, including one from the European Union’s Internal Market Commissioner Michel Barnier in July 2010.  Mr. Barnier’s proposal would have allowed countries where English, French, or German were not among the official languages to file in their an official language with subsequent translation into English, French, or German to be reimbursed by the EPO.  However, Italy was unyielding, accusing the European Commission of linguistic discrimination.  Throughout the fall of 2010, discussions about the languages of translation continued with the hope of finding a compromise.  These ended with a final attempt at compromise during the Competitiveness Council meeting in November 2010 after which the Belgian presidency released a statement saying, “[w]e have left no stone unturned...[h]owever, in spite of the progress made, we have fallen short of unanimity by a small margin.”  In the end, both Spain and Italy refused to compromise, remaining adamant that any EU Patent must also be translated into Spanish and Italian to avoid discrimination. At a meeting of the European Union’s Competitiveness Council on December 10, 2010, the ministers of eleven member states – Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden, and the UK – announced their mutual agreement to implement the EU Patent through enhanced cooperation.  Enhanced cooperation allows member states that wish to establish closer cooperation with each other to work together.  It is meant as a last resort when European Union member states as a whole cannot reach agreement within a reasonable amount of time.  Under the Lisbon Treaty, at least nine member states must agree to enhanced cooperation.  Now, the European Commission has approved the enhanced cooperation has requested a Council of Ministers vote by qualified majority authorizing the enhanced cooperation of twelve member states – the original eleven plus Poland.  If authorized, all members of the Council may participate in any deliberations concerning the implementation of the EU Patent, but only those member states participating in the enhanced cooperation may vote.  The enhanced cooperation agreement remains open for any member state to join at a later time.  Mr. Barnier hopes the whole process will be concluded by the end of 2011.  Both Italy and Spain continue to oppose initiating enhanced cooperation; however, the Hungarian delegation, currently holding the European Union presidency, have expressed their commitment to finding an agreement on the EU Patent issue as soon as possible. In response to the proposal for enhanced cooperation, Belgian Minister for Enterprise and Simplification Vincent Van Quickenborne said that the agreement meant “that in the future the cost of a European patent will be reduced by a factor of 10, and the result will be that the cost of a patent in Europe will be competitive and comparable to that of the cost in the United States and Japan, and this will of course greatly benefit competitiveness in our industry.”  However, Mr. Van Quickenborne might be too optimistic.  No opinion has yet been issued by the Court of Justice of the European Union as to the legality of the proposal for a European Jurisdictional System for Patents, so questions still remain as to where and how EU Patents could be enforced.  Without this, a least part of the purpose of the EU Patent is undermined.  Regardless, the recent movement for enhanced cooperation means that the EU Patent will remain central to European Union political debates throughout 2011.

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January 18th, 2011 at 1:35 pm

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