To: Elizabeth Shaw <email@example.com>
Jennifer Lucas <Jennifer.Lucas@uspto.gov>
cc: Jeffrey D. Kovar <Kovarj@ms.state.gov>
Manon Anne Ress <firstname.lastname@example.org>
From: James Love <email@example.com>
Consumer Project on Technology
Re: CPT's January 12, 2001 comments on IPR aspects of Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters
In June 2001, there will be an important diplomatic conference to consider a proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. This convention is the first major effort to address important jurisdiction issues for cyberspace, as they related to commercial matters. There are many important Internet related issues in the proposed convention, but perhaps non more vexing than those involving speech and intellectual property issues.
By making foreign judgments easier to collect, the proposed Convention will effectively extend the reach of national laws concerning patents, trademarks, copyright, trade secrets, unfair competition, libel, slander and of course nearly all other commercial matters. This can result in citizens of any country being impacted by laws in other countries. This will be true even for bad laws.
Governments who are involved in the Hague Convention negotiations are supposed to decide, by June 2001, if there will be a new global convention on jurisdiction and recognition of judgments, and if so, what will be the rules, and which areas of law will be covered. In the current draft, all aspects of civil and commercial law are covered, unless it is specifically exempted in Article 2. (It should be noted that the convention covers governments when they are engaged in civil or commercial disputes.)
The Convention is complex and the subject of several controversies, details of which are available here: http://www.cptech.org/ecom/jurisdiction/hague.html These comments will focus on only two important areas, the impact of the convention of free speech, and on the public's rights under intellectual property laws.
CPT asks that the convention be modified to explicitly protect free speech, and to exclude intellectual property, as it has for maritime, matrimonial, insolvency, wills and successions, and other areas of law.
In facilitating the collection of foreign judgments, the convention will increase the liability that citizen's face when publishing or receiving information or software, conducting business, or otherwise using the Internet. The reach and importance of foreign libel, patent, copyright, trademark and other laws will be expanded. Activities that are legal in one country can result in costly liabilities, so long as they constitute infringements or other civil liabilities in foreign countries.
Here are a few examples of areas where the proposed convention will present important problems:
While the USA is considered the most aggressive country in terms of issuing software patents, there is no reason to believe that this will be true in the long run, particularly if software patents are issued in countries that (a) have even worse systems for examining patents than the USA, or (b) seek to adopt an even more aggressive patent strategy in order to "tax" foreign e-commerce. By making it easier to collect foreign judgments, the Hague convention will shift the burden of paying for such patents to foreign citizens, giving every country an incentive to adopt anti-consumer policies. Foreign countries have latitude in determining how damages for infringement are calculated, and a wide range of activities can generate foreign infringement liability.
Business Methods patents raise the same issues. Right now there is considerable controversy in the USA over the appropriateness of issuing patents on business methods, and indeed, even if one accepts the controversial notion that business methods are an appropriate topic for patents, there is ample evidence many such patents are of poor quality, for example due to inadequate research of prior art or poor judgments regarding standards for novelty. One can argue that this is a US domestic problem. But if the Hague convention on judgments covers patents, it will be a much larger issue. Why wouldn't one see foreign countries become very aggressive in terms of issuing business methods patents? And if they did, what recourse would we have under the Hague Convention? And what evidence do we have that foreign governments can do a better job than the US PTO on patent examination, or that the foreign courts will provide a competent and fair forum for evaluating business methods and software patent infringement claims?
(For more information regarding the Nottinghamshire case, see: http://samsara.law.cwru.edu/comp_law/index.html#Not
and for an analysis of the Shayler case, see: http://www.thenation.com/issue/000522/0522wiener.shtml)
These are only a few examples of a much large class of problems that are presented by inclusion of intellectual property in the Hague Convention on Jurisdiction and Foreign Judgments. CPT encourages the US government to hold public meetings to discuss the IPR aspects of the Hague convention.
As noted above, CPT's web page on the Hague Convention is here: http://www.cptech.org/ecom/jurisdiction/hague.html. CPT also asks that the US government find the resources to provide a web page on the Hague convention that is updated regularly with current information about the Convention, and provide information about how citizens can provide comments to governments who are participating in the Hague negotiations, or participate in important Hague meetings, including the June 2001 diplomatic convention.
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036