Governance of the European Patent System: A Separation of Powers Approach

1. Governance of the European Patent System: A Separation of Powers Approach Professor Peter Drahos The Australian National University, Canberra and Queen Mary, University of London 9 November 2006

2. Current governance of the European patent system governance European patent system EPO insider governance Patent Attorneys Big business users

3. Separation of powers approach to governance Transparency balance Target concentrations of power External audit process European patent system Transparency registers

4. Traditional models of governance State Law Food safety Aviation Pharmaceuticals etc

5. Modern networked governance model Public or private actor State Public or private actor Public or private actor Public or private actor Public or private actor Public or private actor

6. WTO’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) United States multinationals with large IP portfolios European multinationals with large IP portfolios Japanese multinationals with large IP portfolios USTR World Trade OrganizationTRIPS

7. Doha Declaration on TRIPS and Public Health NGOs eg MSF Oxfam Publichealthadvocates Developingcountrygovernments Developedcountrygovernments Civilsocietyactivists

8. A transparency balance:existing model filtering effect PO acts as a secretariat for Review/Inquiry Big users, patent attorneys Advisory Committee PO staff Patent Office Policy Committees

9. A transparency balance:membership and appointment to committees transparent Open source Scientists Users of patented technologies Big users, patent attorneys Advisory Committee PO staff Policy Committees Patent Office

10. Patent quality: an external audit check litigation opposition Scientists Companies Software organizations EP Granted patents (100%) EPAC Health NGOs EPOinternal audit process

11. ‘even experts have trouble making accurate searches’ Patent granted Generic drug company enters patent system here

12. Transparency Registers Island of certainty Patent granted Generic drug company enters patent system here

13. Concentrations of power that compromise patent quality Patent Office Senior Managers Output targets Patent attorneys Large numbers of applications Examiners A separation of powers approach would increase the independence of examiners consistent with the goal of improving quality

14. Professor Peter Drahos, Director Centre for Governance of Knowledge and DevelopmentRegulatory Institutions Network (RegNet)The Australian National University, Canberra peter.drahos@anu.edu.au cgkd.anu.edu.au