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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Friday, August 22, 2003New on the Horizon: Copyright Problems in Patent PractiseThe Working Group on Reform of the Patent Co-operation Treaty will gather again for its fifth session to be held in Geneva on November 17 - 21, 2003. I would like to highlight one of the topics on the agenda of this meeting which has come to be known to the public via the WIPO website. It is a question which has rarely been discussed thoroughly before (despite the fact that it might well have emerged much earlier) but it might have substantial effect with regard to the current patent practise. The issue is described in some detail in document PCT/R/WG/5/5. The document refers to an earlier paper PCT/R/WG/3/5 which is quoted therein:
"Two delegations observed that the making and sending, by the International Searching Authority, of copies of documents cited in the international search report, as provided by Article 20(3) and Rule 44.3, could involve copyright infringement, in particular where it involved non-patent literature and the first digitisation of a document. The International Bureau observed that the library community may also experience similar problems. It was agreed that the International Bureau, in co-operation with the Delegation of Canada and other Authorities, should study the matter with a view to having the matter considered by the appropriate body or bodies within WIPO." The document describes a variety of different scenarios how to cope with this problem. The crucial point seems to be that copyright laws permit exceptions and limitations to copyright. The scope of permissible exceptions is, however, to a large degree a matter of national law, although a number of overarching general principles exist at the international level. The document finally concludes that a more global, systematic and comprehensive solution may require the conclusion of licensing agreements with the rightholders of the principal sources of non-patent literature by Offices, International Search Authorities and International Preliminary Examining Authorities, as well as the International Bureau. Doing so, however, would require that the right holders are co-operative. And, what happens if certain right holders should in future prefer to protect their rights by fencing in their respective materials by means of DRM (Digital Rights Management) technology? Does that mean that on some day in future patent professionals might receive an International Search Report stating that there exists some "X" document destroying the novelty of the claimed invention but, sorry, a copy of its contents cannot be provided by the patent authority? At the time being the patent professional and the applicant would not have a significant problem even if the ISA refrains from providing of a piece of non-patent prior art literature - in general, copies of articles from journals and magazines as well as photocopied excerpts from textbooks are readily available from appropriate public libraries. But what would happen if if there are no longer libraries making DRM-protected digital stuff available to the public? Perhaps there might be some justification to demand to accept that the applicant is simply out of luck in such cases and should directly walk to the right holder in order to pay for a license. But what about the general public? Usually patent documents show on their first page a list of bibliographical data of relevant prior art documents in order to enable the general public to judge upon the differences between the differences between the claimed invention and said prior art independently. What would happen if certain non-patent literature cited is not readily available to the general public? Surely this would harm the transparency of the patent system. So, I think that the problem as posed by the said PCT/R/WG/5/5 document should be taken serious.
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