 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Friday, August 29, 2003European Parliament defers voting.Now it is official. The chairmen of the political groups in the European Parliament have decided yesterday to defer the vote on the draft Directive on the patentability of computer-implemented inventions. Originally scheduled for June 30, 2003 and a first time deferred up to September 01, 2003, the plenary meeting on this day will not see the examination of the the final report of the Committee on Legal Affairs and the Internal Market of the European Parliament on the proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (COM(2002) 92 - C5-0082/2002 - 2002/0047(COD)) which now will not take place before September 22. Torn in their centre between proponents and adversaries of patents on computer-implemented inventions, the various political groups represented in the European Parliament want to attempt once more to clarify their position. In fact, the opponents of the draft Directive inside and outside of the house will in the coming weeks surely struggle ceaselessly in order to persuade a majority of the House to reject the proposal which originally was drafted by the EU Commission.
It should, however, not be forgotten that the draft Directive can enter into force only if it passes a full  co-decision procedure. This means that only if the EU Commission, the EU Parliament as well as the Council should eventually reach a "Common Position", the Directive will become law. And, it is hardly imaginable that even if the Eurolinux coalition should persuade a majority of the House that patents on computer-implemented inventions are evil that any amended Directive text providing clauses severely restricting the patent law of the EU Member States would survive the deliberations in the Council. This is in particular true in view of the bindings originating from the WTO treaties which surely would be carefully observed by the national governments in order to avoid any unnecessary struggle with the United States. So far, there is little reason to worry.
However, taken as a symbol in itself, any adoption by the European Parliament of the view taken by the Eurolinux coalition would be a blow to the further prospects of the system of Intellectual Property in Europe. It is a sad fact that much of the impact generated up to now by the Eurolinux coalition is based on falsehoods and semi-truths. For example, Eurolinux claims that patents on computer-implemented inventions (they call such things "software patents") are illegal under current EPC law. This is definitively wrong. The EPC does not exhibit any clause preventing such patents on computer-implemented inventions. What is missing is any serious attempt to to conciliate between the positions of both camps. On the one hand, those individuals and companies refusing to make use of the patent system but relying on Intellectual Commons will have to accept that others want to establish a market-based knowledge economy. There will be no such society solely based on a culture of Intellectual Commons in any foreseeable future. However, on the other hand, Intellectual Property laws should be modified in a way to provide activities based on the Commons sufficient air to breath.
Thursday, August 28, 2003Rumours say that report of the Committee on Legal Affairs and the Internal Market of the European Parliament has been withdrawn.There are unconfirmed rumours that, in view of the pressure exerted by Eurolinux and other parts of the public, the report of the Committee on Legal Affairs and the Internal Market of the European Parliament on the proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions has been formally withdrawn. The views taken by the Members of the European Parliament seem to be extremely divergent so that even the final ballot which was scheduled to take place on September 01, 2003 is said to be postponed indefinitely, maybe up to October 2003 or so.The game seems indeed to be open again.
Wednesday, August 27, 2003The Battle on the European ParliamentToday the Eurolinux coalition stages a street demonstration in Brussels against the EU Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions which is due to pass the European Parliament on September 01, 2003.There are unconfirmed rumors that some Members of the house are eager to further postpone the final ballot in the plenum in order to have more time for discussions. The opinions seem to be very divided over the proposed Directive. E-Government in Intellectual Property PractiseThe burst of the dot com bubble did not mean that e-commerce was over. Neither e-government has been rendered obsolete. When looking at the Intellectual Property business this insight is reconfirmed by the mounting efforts of the various patent and trade mark authorities to establish facilities for electronic filing. Today, the WIPO hasannounced the first ever electronic patent application submission without paper copy filing. And, the EPO proudly announces the epoline Online Filing version 2.00. Moreover, the Swiss Patent and Trade Mark Office welcomes more than 50 percent of the trade mark applications in electronic form.
This efforts of the authorities surely are driven by the need to save money which in the past was spent for OCR scanning and proof-reading. At the time being it looks as if for applicants and their representatives the participation in e-government is more or less voluntary. However, the WIPO already offers a free reduction for e-filing, and others surely will follow. For example, the German Patent and Trade Mark Office will offer a EUR 10,00 discount on e-filing provided they have started their e-filing facilities which is expected to occur later this year or in 2004. So, sooner or later anyone insisting on paper filing will effectively be punished by higher fees. And, in the event that many patent and trade mark professionals should collectively refuse e-filing technologies, the respective governments surely will be creative in finding ways how to persuade them. Don't forget: e-filing will neither be introduced to please the geeks nor to enhance the prestige of some bureaucratic institutions but for saving real money which in the past was wasted for OCR proof-reading. But will the patent and trade mark professionals also benefit from this new technology? Big question. In the first place, introducing e-filing costs extra money and requires re-engineering of many internal business processes. A chance for obtaining profits from e-filing would probably emerge only if a sufficient number of patent an trade mark professionals would really embrace e-commerce technologies. This means that also the data exchange between client and attorney as well as between co-operating attorneys is switched over to XML data exchange technologies based on open standards. Up to now there seems to be little drive visible with regard to such developments.
Saturday, August 23, 2003WIPO opting out from discussion on open collaborative models to develop public goodsAccording to Article 3 of the Convention Establishing the World Intellectual Property Organisation (WIPO) the objectives thereof are to promote the protection of intellectual property throughout the world through co-operation among States and, where appropriate, in collaboration with any other international organisation, and to ensure administrative co-operation among the Unions.A document titled Vision and Strategic Direction of the WIPO explains the current policy on how to obtain these objectives, saying, inter alia, "[...] The traditional intellectual property system sustained the industry-based economies and underpinned the process of globalisation. The new intellectual property system that will help to further sustain the knowledge-based global economy has to be developed [...]. Political imagination, goodwill and collaboration among Member States, the market sector and the Secretariat are key elements in the success of WIPO's mission. Thus, it is essential to approach this mission with a vision founded on the relevance of intellectual property and of WIPO to the welfare of humanity."
Obviously the knowledge-based global economy offers some very particular stumbling blocks for the said new intellectual property system. The enormous success of the GNU-licensed open source software as well as the mounting debate on "public goods" have created facts closely related to the intellectual property system which can hardly be ignored any longer. Now it has come to be known that the WIPO had originally been convinced earlier this year by a certain proposal to hold a meeting about "open collaborative models to develop public goods". One of those models is open source and free software. Surprisingly, the meeting was now cancelled. As far as it is known, Lois Boland, director of international relations for the U.S. Patent and Trade Mark Office, had indicated vis-a-vis WIPO officials that "open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights." She is quoted as saying: "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO." So, in the effect, the WIPO has opted out from any further serious discussion concerning the relationship between IPR and the Commons, or, "public goods". Apart from the impression that Ms. Boland perhaps might not have completely understood the relationship between the GNU license and Copyright Law, there can be no doubt that such discussion will take place elsewhere. There is no way to stop or suppress it. The more promising way would be to enter into an open debate about a future co-existence, perhaps even balance, of Intellectual Property and Intellectual Commons. It would therefore surely be advantageous for all stakeholders involved if the WIPO would re-think about opting out from this matter.
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 documentPCT/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.
Thursday, August 21, 2003German Act on Employees Inventions: Reform Bill is still missing.In 2001, the German Government was about to make drastic changes to the German Act on Employees Inventions. In particular, the complex rules requesting the employee to report an invention and subsequently setting a term for the employer to claim the invention are to be abandoned in favour of a more streamlined process transferring the rights to the invention to the employer per default. Moreover, the right of the employee to receive additional remuneration depending of the economic effects of the invention was to be substantially simplified. But this bill never passed the German Parliament in its 14th legislative period which ended in October 2002. Only a very limited and particular amendment was enacted in 2002 concerning university inventions. As of February 07, 2002, inventions made by professors, lecturers and scientific assistants, in their capacity as such, at universities and higher schools of science are governed by the amended law. They are longer free inventions as they had been before.According to the applicable provisions of the German Constitutional Law ("Grundgesetz"), bills not having passed the house until the end of a legislative period must be re-introduced in the next legislative period if the Government wants to stick to them at all. Now the 15th legislative period of the Bundestag is ongoing but it looks as if up to now the Government has not re-introduced any reform bill concerning the German Act on Employees Inventions into the legislative process. Maybe that they are currently busy with other matters.
Wednesday, August 20, 2003Industrial Property – Quo Vadis?At the time being we have vacation season throughout the EU member states but I expect some very interesting debates to continue very soon. First of all, the plenary assembly of the European Parliament is due to vote on September 01, 2003 on a proposal for a European Directive on the patentability on computer-implemented inventions. The Council common position is expected for September 22, 2003. The starting point of all that will be defined by the final report of the Committee on Legal Affairs and the Internal Market of the European Parliament on the proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions(COM(2002) 92 - C5-0082/2002 - 2002/0047(COD)).
While approving the general idea of patentability for computerised inventions, the committee sought to clarify and tighten up the wording of the Commission's proposed directive and at the same time strike a balance between Members of the European Parliament sharply differing views. According to the committee, in order to be patentable, a computerised invention should be one that could have an industrial application. Moreover, it should involve a technologically inventive step. The Eurolinux Alliance opposing the draft directive are meanwhile ceaselessly agitating in order to prevent the approval by the European Parliament, arguing "The directive proposal as prepared by Arlene McCarthy MEP would impose US-style unlimited patentability of algorithms and business methods such as Amazon One Click Shopping". We will have to wait and see whether or not they can exert sufficient impact based on such ill-conceived and misleading arguing to the members of the European Parliament for obtaining a perceivable shift in policy.
There are other developments which, on the long term, might be more important than the public uproar currently staged by Eurolinux. For example, there is a closed shop conference organised by the European Commission in close co-operation with the Italian Presidency of the European Council and scheduled to be held in early October under the title "Industrial Property – Quo Vadis?". This gathering is devoted to the future role of IP in creating wealth and employment and stimulating innovation and competition. Issues to be addressed are said to include the relationship between Intellectual Property Rights and competition policy, limits on the scope of patentability, for example whether patents for software and business methods aid or block innovation and how to tackle the problem of access to patented medicines for people in the developing world. It looks like as if this conference would be intended to be something like a continuation of the Columbanus Symposium 2002 "The Expanding Scope of Patent Law" on a higher and more formal level. For example, Professor Hugenholtz who chaired the said Columbanus Symposium will also be one of the speakers talking about "The Final Frontier - What should be the limits of patent protection for software?"
It seems to be quite clear that, on the one hand, the blatant agitation of the Eurolinux Alliance will probably have limited impact. On the other hand, behind the scenes and out of reach of the limelight of the various vigorous (and often clueless) public debates we have seen during the past years there are serious and well-informed discussions underway concerning not only the benefits of intellectual property law but also the limitations. I expect that the long term policy of the European Union will strongly be influenced by more informal findings of such gatherings.
Tuesday, August 19, 2003U.S. accession to Madrid SystemNow it has beenpublished officially: The Madrid Protocol will enter into force in respect of the U.S. on November 02, 2003. This will mean that, on the one hand, German applicants will be able to aquire trade mark protection in the U.S. by simply filing a request for an International Registration, and, on the other hand, U.S. applicants will be able to get trade mark protection in Germany without filing a national application there.
| ||||||||||||||||
