From the ridiculous to the... even more ridiculous?

I've been following the progress of In Re Bilski before the US Supreme Court, because it's got the potential to set the rules for business method (and thus software) patents for the next few years.

Unfortunately, it seems that lawyers' view of what constitutes a "good" patent has hit a new and hilarious low. Take this extract from the oral arguments (thanks to Groklaw for pointing it out):

JUSTICE KENNEDY: But it would be different, it seems to me, than what you are -- let's assume you can't patent an alphabet. I assume that is true. And you can take an alphabet to make beautiful words, and -- and so forth. You -- you want to say that these -- these electronic signals can be used in a way just like the alphabet can be used. And many of the scientific briefs say that their process is different, that they are taking electronic signals and turning them into some other sort of signal. But that's not what you are doing.

MR. JAKES: That may be, but those signals could also be transmitted. On -- on your question about the alphabet you said look at the Morse claim 5, which was an alphabet to Morse Code. That's exactly what it was.

CHIEF JUSTICE ROBERTS: So you reject -- you reject the substitute. You think you can patent an alphabet because it is a process of forming words.

MR. JAKES: It could be, yes.

In what world does this seem like a sane and reasonable way for patentability rules to evolve?

ACTA: write to them!

I've now written to both the Green MEP in my region, Caroline Lucas, and my MP, Humfrey Malins.

My e-mail to Caroline Lucas was fairly straightforward to write. Firstly, she's an MEP, and thus European-level matters are more directly relevant to her interests. Additionally, the Commission have been ignoring direct calls, by MEPs, lead by the Green Party, for more transparency in ACTA, so I know that she already agrees that there's a problem.

Dear Dr. Lucas,

In December 2008, lead by the Green Party, the European Parliament adopted a resolution regarding ACTA which:

"... Calls on the Commission and the Member States to negotiate ACTA under conditions of the utmost transparency towards EU citizens, especially with regard to the definitions of the terms "counterfeiting" and "piracy" and the criminal sanction measures foreseen; takes the view that the social impact of the agreement as well as the impact on civil liberties must be assessed; supports the establishment of a task force to examine the implementation of the agreement, by promoting this subject in dialogue between the European Union and third countries and as part of cooperation measures with those countries..." [P6_TA(2008)0634]

Furthermore, in March 2009, the Parliament and Council adopted a Regulation that required that:

"In accordance with Article 255(1) of the EC Treaty, the Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available. [Am 109]" [P6_TA-PROV(2009)0114]

Nevertheless, many months later, the ACTA text under discussion is still being discussed behind closed doors, without the opportunity for review or discussion by those whom it will affect if adopted. I would greatly appreciate an explanation as to why this is, and what the Parliament, the Green Party and you yourself are currently doing to address this.

Yours sincerely,

Peter Brett

Writing to Humfrey Malins was more challenging. Firstly, European Commission-level negotiations aren't something that the Commons has any real direct influence on. However, the fact that the Baroness of Uphallow is the European Commissioner for Trade provided a way to demonstrate the ACTA negotiations' direct relevance.

Dear Humfrey Malins,

The UK, as part of the European Commission, is currently in the process of negotiating the plurilateral Anti-Counterfeiting Trade Agreement.

This process has been concealed behind a veil of utmost secrecy, despite repeated demands by the European Parliament and Council for greater transparency (see: P6_TA(2008)0634 and P6_TA-PROV(2009)0114). Only a rough outline of the structure of the proposed treaty is available to the billions of people who will be affected by its provisions. I do not believe that, in the case of a trade treaty, such secrecy serves the public interest. The quality and fairness of the results of the process can only be improved by allowing the people in whose name the treaty is being negotiated to see and discuss the actual provisions being suggested.

I have already written to my MEPs, but the Commission has made it quite clear that they intend to continue to ignore the European Parliament's position on this issue. Catherine Ashton is the UK Commissioner and holder of the Commission's Trade portfolio, and as such is responsible for the Commission's role in the ACTA negotiations. (It is interesting to note that the Baroness of Upholland has no background in trade issues and has never been elected to public office.)

Would you be willing to ask the Prime Minister to direct Baroness Ashton to encourage the EU ACTA delegation to open the process to public scrutiny, please? It seems to me this would greatly serve the public interest.

Yours sincerely,

Peter Brett

Hopefully I'll get some useful and timely replies. We'll see!

ACTA: what lurks in the shadows?

Over the last two years, a number of countries and multi-national blocs have been negotiating a new treaty called the Anti-Counterfeiting Trade Agreement (ACTA). The UK Intellectual Property Office, for example, claim that:

The Anti-Counterfeiting Trade Agreement (ACTA) seeks to coordinate international cooperation on IPR enforcement practices, to tackle effectively counterfeit and pirated goods.

Whether or not you feel that the premises on which the proposed treaty is founded are benign (the Pirate Party UK, of which I am a member, opposes it in principle), the most disturbing thing about this treaty is the veil of total secrecy behind which all of the negotiations and details of the proposed treaty provisions have been concealed. (Recall that, in most countries, international treaties which have been ratified by the government have the force of law).

Indeed, the public was not even aware of what, exactly, the proposed agreement would cover until a discussion paper was leaked in May 2008.

On the EU side, the negotiations are being carried out by the European Commission, which has routinely denied or stalled all attempts to give transparency to the process. They have even ignored repeated demands from the European Parliament for drafts and documentation of the process. In December 2008, for example, the European Parliament adopted a resolution which:

Calls on the Commission and the Member States to negotiate ACTA under conditions of the utmost transparency towards EU citizens, especially with regard to the definitions of the terms "counterfeiting" and "piracy" and the criminal sanction measures foreseen; takes the view that the social impact of the agreement as well as the impact on civil liberties must be assessed; supports the establishment of a task force to examine the implementation of the agreement, by promoting this subject in dialogue between the European Union and third countries and as part of cooperation measures with those countries.

The Commission failed to comply. Several months later, in March 2009, the European Parliament and Council adopted new regulations on transparency in government, and as part of this they specifically singled out the ACTA negotiations as an area in which transparency was sorely needed.

In accordance with Article 255(1) of the EC Treaty, the Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

Nevertheless, these documents are still not available. Although there are judicial procedures by which the Parliament can compel the Commission to act, these take a long time, long enough that the details of ACTA might not be made available until the negotiations are concluded and the treaty's provisions presented as a fait accompli.

It's therefore been recommended that citizens of EU countries pressure our individual governments to make the process more transparent. For example, I have recently filed a request under the Freedom of Information Act for details of the UK's part in the ACTA negotiations and, specifically, for draft documents, and I'll be writing to my MP later today to ask him whether he feels that such secrecy in negotiations of a trade treaty is really in the public interest.

Watch this space.

Update: I've made additional FOI requests of the Department for Business, Innovation and Skills, and the Foreign and Commonwealth Office.

Update 2: BIS say that I should contact UKIPO. How fortunate that I already have done so!