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Thursday, September 25, 2003The situation the day after.After having studied the result of yesterday's voting of the European Parliament I must say that the situation is much more worse than I had feared before. The gist of what the directive says is that preferably no patents should be granted on anything that is related to computers, and if under some narrow preconditions exceptionally a patent is ever granted there are such burdens put upon the applicant that it would be rendered virtually worthless. For example, Article 2, point (bb) of the Directive now narrows the term "industry" to the "automated production of material goods". This is simply absurd. Even worse, Article 5 of the Directive as amended by the European Parliament now requires that "Member States shall ensure that whenever a patent claim names features that imply the use of a computer program, a well-functioning and well documented reference implementation of such a program shall be published as a part of description without any restricting licensing terms." Any patent professional with a minimum of experience in this field knows that this provision is not only an undue burden on the applicant but also simply unworkable. I could give more examples but I recommend to study the full list of adopted amendments linked in my posting earlier this day.The Eurolinux activists clearly have overshot their mark: They have managed to bring so many of their preferred amendments in a redundant, self-contradictory and amateurish fashion into the wording of the Directive that every person skilled in IP law recognises without need for further explanation or persuasion that the text as amended by the Parliament is rubbish. This will clearly help the EU Commission as well as the EU Council to move this version into the trash bin. Also it can be expected that the U.S. would start formal WTO proceedings against the EU due to violation of Article 27 of the TRIPS agreement if the EU Council should be trapped so much in bewilderment that they eventually conclude to allow this amended draft to enter into force. The misinformation campaign staged by the Eurolinux Alliance is really horrendous. The most abhorrent but nevertheless successful tactics instrumentalised by FFII e.V. was the allegation repeated again and again that in particular the EPO has granted tens of thousands of so-called "software patents" (i.e. patents on computer-implemented inventions) in contradiction to the law as it is codified by the European Patent Convention (EPC). But there is no provision in the EPC that would prevent such patents on computer-implemented inventions. Article 52 of the EPC only bans patenting of programs for computers "as such" (whatever that precisely might be). Moreover, and most decisive, the competent Boards of Appeal of the EPO which enjoy the legal independence and status of a court have repeatedly dealt with that question, expressively allowing such patents to some extent. Hence, a corpus of lawful case law exists properly defining the limits of patentability under the current regime of the EPC. In turn, the allegations made by Eurolinux at least implicitly mean that the officers of the EPO would be guilty of perversion of justice. This is completely nonsense. The wording of Article 52 EPC is indeed somewhat unclear in particular in the paragraphs 2 and 3, and there is no argument for excluding the current status of the EPO case law from the status of legitimate interpretation of that codified law by competent judges populating the Boards of Appeal. A very sad fact, however, is that the general public and in particular some prominent broadsheet newspapers were taken in by that propagandistic disinformation campaign. Contrary to the assertions again and again made by Eurolinux, the original draft Directive as proposed by the commission never intended to "open the floodgates" for "software patents", to "legalise" vast numbers of patents already validly issued by the EPO, or the like. The truth is that the EU Commission only had intended to preserve and codify some "status quo" reached by the practice of the Boards of Appeal of the EPO. List of adopted amendments to the Directive is available on-line.The European Parliament meanwhile has published a .pdf document exhibiting the texts adopted at the sitting of Wednesday September 24, 2003. The adopted amendments concerning the Directive on patentability of computer-implemented inventions can be inspected on pages 6-21.
Wednesday, September 24, 2003Plenary Vote of the European Parliament: An earthquake in the patent landscape.In principle, the Official results of today's plenary vote of the European Parliament are available to everyone equipped with an Internet access: The"Minutes of proceedings - Result of roll-call votes - Annex 2" have been put into the web. The lists of various amendments on which the voting was based are also available on-line (A5-0232/2003: amendments, A5-0299/2003: amendments, A5-0259/2003: amendments, A5-0238/2003: amendments, A5-0302/2003: amendments, A5-0306/2003: amendments).
The tedious task of producing an Official consolidated version has, of course, not been completed yet, and only with some caution it is possible to asses the facts that have been set by the European Parliament. However, it nevertheless seems to be quite clear that many MEPs have made some of the positions lobbied for by FFII e.V. to their own. For example, Article 4, paragraph 3a has been inserted into the Directive stating "In determining whether a given computer-implemented invention makes a technical contribution, the following test shall be used: whether it constitutes a new teaching on cause-effect relations in the use of controllable forces of natures and has an industrial application in the strict sense of the expression, in terms of both method and result." Article 5, paragraph 1 a of the Directive now requires that "Member States shall ensure that patent claims granted in respect of computer-implemented inventions include only the technical contribution which justifies the patent claim. A patent claim to a computer program, either on its own or on a carrier, shall not be allowed."
The much debated new Article 6a of the Directive now says: "Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement." The above-mentioned findings are, of course, merely of a provisional nature until an Official consolidated version of the Directive is published. It can hardly be assumed that the Council will be inclined to approve the result of today's voting of the European Parliament within the working context of the Codecision Procedure without further changes in a second reading, in particular in view of TRIPS. It would not be very surprising if another political row would emerge out of the present situation because of the majority of MEPs who today have voted in favour of the FFII-inspired amendments most probably will not be pleased if they see their results rebuked by the Council. Perhaps a way out might then be considered in simply dropping the Directive and seeking to muddle through on the basis of the national law or, as already hinted by Mr. Bolkestein, trying to solve the problem by means of an agreement outside the context of the EU lawmaking process.
In view of this case Mr. Pilch, president and "spiritus rector" of FFII e.V., has already announced in a public mailing list that if the Directive is set to be abolished by the Council or by the Commission, FFII e.V. would lobby in favour of the amended Directive: "The Directive now is our project", he wrote, "the roles have swapped".
The users of the patent system have just suffered a severe political defeat, even if the Council manages to rectify the current situation. This was probably the very first time since the patent disputes of the nineteenth century that patent law was in the headlines. The controversy on patents will continue, that is for sure. Directive on patentability of computer-implemented inventions passes European Parliament.There arereports on Slashdot according to which the Directive has passed the European Parliament but, however, apparently with an awful lot of amendments inspired by Eurolinux, in particular by FFII e.V.. The full picture of all details will become available probably by tomorrow.
The minutes of yesterday's debate in the House are available online. Well before the vote took place, Commissioner Mr. Fritz Bolkestein had said: "Unfortunately, I cannot be as positive about most of the amendments which have been tabled to the McCarthy Report and which have to be considered here today. The problem with many such measures is that even if they were considered to be worth looking at, they all share one thing in common: they introduce a special regime for computer-related inventions. In patent law and practice it is a fundamental principle that inventions ought to be assessed in a neutral manner with regard to the type of technology on which they rely. The patent examiner will of course examine each individual invention for its inventive element, but he or she has no preconceptions that an invention that uses a certain type of technology is per se innovative or not. This principle is in fact enshrined in international law, in particular the TRIPS agreement, where it is stated that patents shall be available in all fields of technology and patent rights enjoyable without discrimination on that basis. There are some amendments which pose less of a problem for the Commission and we might therefore accept them. I am thinking especially of certain of the amendments directed at the report which the Commission must prepare on the operation of this directive, although I should emphasise that the Commission is not prepared to accept that, in this respect, 'Anything Goes'. Anything which imposes unreasonable demands, given the limited resources at the Commission's disposal, could not meet with our approval. The need to remain within the scope of the directive should also be borne in mind. Some of the amendments proposed are too broad in their effects. That said, I shall make a few brief remarks. Firstly to Mr Rocard, who said that the proposal does not guarantee that there will be no software patenting as such. The proposal lays down a specific hurdle that must be cleared before any invention can be patented. The invention must make a non-obvious technical contribution: this guarantees that non-technical software will never be patented but genuine technical inventions will get the protection they deserve. I also say this to Mr MacCormick who asked me to ensure the directive is watertight against leakage. This requirement of the technical contribution does so. I hope this will satisfy Mr De Clercq. My second specific remark is addressed to Mrs Echerer, who said that if a small part of a problem is patentable then the whole problem is patentable. Patents are about solutions to technical problems and a patent has to cover the whole, not just a small part, of the solution to a problem. It is only infringed if the whole solution is used. It does not, therefore, monopolise every separate component part which contributes to the solution. On the matter of SMEs, which many Members mentioned: in so far as SMEs are users of patents, I wish to stress that nothing becomes patentable that is not patentable now. In so far as SMEs may be inventors of software, they also need to be protected and would get the protection they deserve under the directive. I say this to Mr Oreja and Mrs Thyssen in particular. Let me echo the words of Mr Wuermeling who said: 'whoever opposes this directive must know that the present practice will be continued.' Therefore, if you do not want the present practice to continue, please vote in favour of this directive."
When winding up the debate, Ms. Arlene McCarthy MEP had concluded: "Mr President, I did not want to make this point during my speech, but it is necessary that it should be made. In the ten years that I have been an MEP I have never encountered such a personal, aggressive and abusive campaign as I have with this particular directive. I have been bullied and harassed by lobbyists. My staff have been bullied to the extent that one of them had to take days off with a stress-related illness. " High Noon in the European Parliament: Narrow vote expected.Media coverage (see e.g.here, here, here, and here) say that today at noon there will be a narrow vote in the European Parliament concerning the Directive on the patentability of computer-implemented inventions.
Monday, September 22, 2003European Parliament to vote on Wednesday 24 SeptemberThe agenda for the session of the European Parliament has been made final.Tomorrow Ms. McCarthy will present the JURI report 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)] Committee on Legal Affairs and the Internal Market. The vote of the House will be on Wednesday.
Patent Quality ImprovementThe quality of the work done by Patent Offices is coming under scrutiny. For example, on Thursday, July 24, 2003, the Subcommittee on Courts, the Internet, and Intellectual Property of the Committe on the Judiciary of the U.S. House of Representatives has held aHearing on "Patent Quality Improvement". In Europe, the EPO is internally mooting similar approaches.
Wednesday, September 17, 2003European Parliament worries about Community PatentAs reported on September 15, 2003 in an"Item Note", in a letter dated 26 June 2003, the President of the European Parliament had expressed the European Parliament's wish to be consulted again in the event of substantial changes being made to the Commission's initial proposal. Provided that COREPER agrees, the Council intends to consult the European Parliament again once the text being examined by the Council has reached a sufficient degree of maturity.
A progress report on the Community Patent dated September 12, 2003 is availabe here.
EPO decision T 1177/97 on "technical character": "Method using a programmed digital computer system for translation between natural languages"Another decision of the EPO Technical Board of Appeal 3.5.1 dated July 09, 2002 under the numberT 1177/97 - 3.5.1 concerning the patentability of computer-implemented inventions has also been published on the EPO website.
According to this decision, the use of a piece of information in a technical system, or its usability for this purpose, may convey a technical character to the information itself in that it reflects the properties of the technical system, for instance by being specifically formatted and/or processed. Such information when used in or processed by the technical system may be part of a technical solution to a technical problem and form the basis for a technical contribution of the invention to the prior art. Information and methods related to linguistics may thus in principle assume technical character if they are used in a computer system and form part of a technical problem solution. Problem-and-solution approach: treatment of non-technical aspects [EPO Decision T 641/00 - 3.5.1 "Two identities/COMVIK"]A decision of the EPO Technical Board of Appeal 3.5.1 dated 26 September 2002 under the numberT 641/00 - 3.5.1 has been published on the EPO website today. The subject-matter thereof is related to the problem of patentability of computer-implemented inventions.
In a move which might be considered to look like hurrying obedience to the gist of the so far non-enacted Draft Directive on the patentability of computer-implemented inventions the headnotes of the decision say that an invention consisting of a mixture of technical and non-technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character whereas features making no such contribution cannot support the presence of inventive step. Although the technical problem to be solved should not be formulated to contain pointers to the solution or partially anticipate it, merely because some feature appears in the claim does not automatically exclude it from appearing in the formulation of the problem. In particular where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met.
Tuesday, September 16, 2003ECJ upholds Language Regime of the OHIM.In the Case C-361/01 P the European Court of Justice (ECJ) has defended the restricted language regime of the OHIM allowing only a subset of five languages (English, French, German, Italian and Spanish; cf. Article 115 CTMR) out of the full set of eleven Official languages of the EU (Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish).
In a CTM application, which was in Dutch, the applicant had indicated Dutch as a second language. By a decision the examiner had dismissed the application on the ground that a formal condition, that is to say the requirement that the applicant indicate English, French, German, Italian or Spanish as a second language, was not satisfied. An application for annulment of the decision of the OHIM was lodged at the Registry of the Court of First Instance. However, the Court of First Instance dismissed the action. The case came to the ECJ. The appellant advanced two grounds of appeal. The first is incorrect interpretation by the Court of First Instance of Article 115 of Regulation No 40/94. The second is infringement by the Court of First Instance of Community law and, more specifically, of Article 6 of the Treaty, in not declaring Article 115 of the Regulation No 40/94 to be unlawful. However, the ECJ concluded that according to Article 115(4), the language of proceedings before the Office is to be the language used for filing the application for a Community trade mark, although the second language chosen by the applicant may be used by the Office to send him written communications. It follows from that provision that the option of using a second language for written communications is an exception to the principle that the language of proceedings be used, and that the term written communications must therefore be interpreted strictly. Since the proceedings comprise all such acts as must be carried out in processing an application, the Court concluded that the term procedural documents covers any document that is required or prescribed by the Community legislation for the purposes of processing an application for a Community trade mark or necessary for such processing, be they notifications, requests for correction, clarification or other documents. Contrary to the Office's submissions, all such documents must therefore be drawn up by it in the language used for filing the application. In contrast to procedural documents, written communications, as referred to in the second sentence of Article 115(4) of Regulation No 40/94, are any communications which, from their content, cannot be regarded as amounting to procedural documents, such as letters under cover of which the Office sends procedural documents, or by which it communicates information to applicants. In the light of the interpretation to be given to Article 115(4) of Regulation No 40/94,the ECJ concluded that the Court of First Instance was right to assume that Regulation No 40/94 cannot be taken, in itself, as in any sense implying differentiated treatment as regards language, given that it in fact guarantees use of the language of the application filed as the language of proceedings. Moreover, the appellant had submitted that the Court of First Instance erred as to Community law, in particular Article 6 of the Treaty, in dismissing the appeal in so far as it had been argued by the appellant that the entire language regime established by Article 115(2) to (6) of Regulation No 40/94 was unlawful, because of first of all, the said regime infringes the fundamental principle of equality of languages. This principle arguably manifests itself several times in Community law. Thus, one example is Article 248 of the EC Treaty (now, after amendment, Article 314 EC), which provides that all the language versions of the Treaty are authentic. Another is Regulation No 1, which lays down the official languages of the Community, provides that any national of a Member State may write to an institution in one of the official languages and receive a reply in that language and states that the Official Journal of the European Union is to appear in all eleven official languages. The third paragraph of Article 8d of the Treaty, which was inserted in that provision by the Treaty of Amsterdam, confirms the right of every citizen of the Union to write to any of the institutions or bodies referred to in that article or in Article 4 of the EC Treaty (now Article 7 EC) in one of the languages mentioned in Article 248 of the Treaty and to have an answer in the same language. The applicant also refers to the Court's settled law on the principle of equality, of which the prohibition of discrimination on grounds of nationality mentioned in Article 6 of the Treaty is one expression. Under that case-law, particular importance is attached to the protection of rights and to facilitating matters for citizens as regards languages. The ECJ nevertheless dismissed the case also in view of this second ground, saying that the appellant has not advanced any arguments that call into question the conclusions reached by the Court of First Instance with regard to the objective reason that justifies the difference. Any other decision of the ECJ might well have rocked the structure of various EU institutions in their foundations. In particular, if the ECJ would have allowed the secong ground as put forward by the appellant, this would have been a blow even to the ongoing attempts to find a workable language regime for the Community Patent.
Friday, September 12, 2003Germany: Amended Copyright Law ["Urheberrechtsgesetz"] enters into force.In accordance with theDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society Germany now has adapted the corresponding national law accordingly. The Bill on the Regulation of Copyright Law in the Information Society [Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft] has been published on September 10, 2003 in the Official Gazette.
The bill was most controversial. One of the major points was the protection of "technological measures" as required by the Directive. For the purposes of the Directive, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. In view of the directive, all EU Member States have to provide adequate legal protection against the circumvention of any effective technological measures, which a person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective. Furthermore, EU Member States have also provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures. There are a lot of other measures now enacted in Germany, e.g. the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Thursday, September 11, 2003Germany is now ready for takeoff concerning e-Government procedures in IP practice.The Directive on electronic exchange in legal relations of the practice of Intellectual Property business ["Verordnung über den elektronischen Rechtsverkehr im gewerblichen Rechtsschutz (ERvGewRV)] had already been published in the German Law Gazette ["Bundesanzeiger"] on August 08, 2003.
Now, also the Directive on legal proceedings before the German Patent and Trade Mark Office in patent matters [ Verordnung zum Verfahren in Patentsachen vor dem Deutschen Patent- und Markenamt (Patentverordnung – PatV)] has come out creating further legal prerequisites for starting with e-filing with the German Patent and Trade Mark Office. Supplementary, there is also the Fifth Directive amending the Directive on Trade Marks [Fünfte Verordnung zur Änderung der Markenverordnung].
These texts, in particular the Directive on electronic exchange in legal relations of thepracticee of Intellectual Property business, have a bright side and a dark side. On the bright side they enable the utilisation of generic XML based data formats. On the other side, they have a tendency to foster a monoculture of operating system platforms throughout the circles of prospective users of those e-filing techniques. The German Patent and Trade Mark Office is strictly committed to XML formats whereas the German Federal Patent Court (Bundespatentgericht) also allows murkier data formats like MS-Word 97 or 2000. HTML is said to be allowed for filing with the Patent Court "if it can be displayed with Microsoft Internet Explorer Version 5.x". Is that an example for proper regulation for e-Government technology? But there are things still more worse than that. The most dispiriting aspect of the current situation is that each and every submission has de facto to be digitally signed using a very particular software GERVA in version 1.12 or higher to be purchased exclusively from DATEV e.G.
Of course, this GERVA software only runs on MS-Windows platforms. Forget about your Apple-OS or Linux machines.
Another proposal for a Council Regulation amending Regulation (EC) No 40/94 on the Community trade mark.Today, the administration of the Council of the EU has published anotherProposal for a Council Regulation amending Regulation (EC) No 40/94 on the Community trade mark. This document conveys a compromise text as the result of recent deliberations done by the Council.
One of the major aspects of this compromise seems to be to propose to make the search report non-obligatory. The applicant has, at the time of filing a CTM application, the option to request a search report provided payment of an additional Official fee is made. However, in any case the OHIM will draw up, once the Office has accorded a date of filing, a Community search report citing those earlier Community trade marks or Community trade mark applications discovered which may be invoked under Article 8 CTMR against the registration of the Community trade mark applied for. Moreover, the Communications sent in accordance with Article 39 (6) CTMR will be maintained, i.e. upon publication of a CTM application the OHIM will inform the proprietors of any earlier CTMs or CTM applications cited in the Community search report of the publication of the Community trade mark application. Furthermore, provisions are proposed which would allow to divide CTM applications and registrations. A very helpful amendment concerns the introduction of an instrument to have a continuation of proceedings in case of a term has not been met. An applicant for or proprietor of a CTM or any other party to proceedings before the OHIM who has been unable to observe a time limit vis-à-vis the Office may, upon request, obtain the continuation of proceedings, provided that at the time the application is made the omitted act has been carried out and that a request is presented within two months following the expiry of the unobserved time limit, accompanied by payment of a fee for continuation of the proceedings. Obvious errors of the OHIM could be corrected "ex officio" according to the proposal. Another restriction would be lifted: There is no longer any restriction on the persons eligible to act as proprietors of CTMs. Any natural or legal person, including authorities established under public law, can be the proprietor of a CTM if the draft gets through. There are further amendments buried within the text, e.g. concerning insolvency proceedings, which shall not be dealt with here in detail. In total, the text seems to be a candidate for a good "bugfix release" of the CTMR.
Wednesday, September 10, 2003German Ratification Draft Bill concerning London Agreement on Patent Translations.The German Government has submitted two Draft Bills concerning the ratification and implementation of theAgreement on the application of Article 65 of the Convention on the Grant of European Patents ("London Agreement") with the Upper House ("Bundesrat") of the German Parliament.
The Official Printed Matter No. 566/03 conveys a formal Ratification Bill whereas the Official Printed Matter No. 567/03 presents a Bill for amending the German Law on International Patent Treaties.
Once having having passed the Upper and Lower Houses of the German Parliament, the respective Acts will enter into force only in accordance with the respective provisions of the London Agreement, i.e. on the first day of the fourth month after the deposit of the last instrument of ratification or accession by eight Contracting States to the European Patent Convention, including the three States in which the most European patents took effect in 1999. Sadly, up to now there are little prospects that France will ratify the Agreement in any foreseeable time. Any State party to this Agreement having an official language in common with one of the official languages of the European Patent Office will then dispense with the translation requirements provided for in Article 65, paragraph 1 of the European Patent Convention. Any State party to the London Agreement having no official language in common with one of the official languages of the European Patent Office has to dispense with the translation requirements provided for in Article 65, paragraph 1 of the European Patent Convention, if the European patent has been granted in the official language of the European Patent Office prescribed by that State, or translated into that language and supplied under the conditions provided for in Article 65, paragraph 1 of the European Patent Convention.
German Draft Bill on national implementation of EC biotechnology directive.TheDirective 98/44/EC of the European Parliament and of the Council of 06 July 1998 on the legal protection of biotechnological inventions has up to now not been implemented in German national law. Only recently the European Commission had decided to refer, amongst other Member States, Germany to the European Court of Justice as she has still not implemented said Directive 98/44/EC. The Directive should have been written into national law by 30 July 2000.
Now, the German Government has submitted a draft bill [In German] concerning the implementation of the said Directive to the Upper House ("Bundesrat") of the German Parliament.
The Draft Bill closely follows the wording of the Directive. In particular, inventions are deemed to be patentable even if they concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used. Furthermore, biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature. The Bill confirms that the human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions. However, an element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of that element is identical to that of a natural element. And, perhaps most important, the industrial application of a sequence or a partial sequence of a gene must be disclosed in the patent application. In order to reflect ethical concerns raised by the public, and in accordance with the Directive, inventions will be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation. And, in particular, the following list of inventions is deemed to be unpatentable: (a) processes for cloning human beings; (b) processes for modifying the germ line genetic identity of human beings; (c) uses of human embryos for industrial or commercial purposes; and (d) processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes. About two years ago, in the case C-377/98, the European Court of Justice had to decide on a request made by the Kingdom of the Netherlands for annulment of Directive 98/44/EC. On October 09, 2001 this request had been rejected by the ECJ.
Tuesday, September 09, 2003What will happen next with regard to the EU Community Patent?Well, that matter is in the pipeline and on the agenda of theCouncil of the European Union. However, it looks as if this purely formal assertion would be the most confident statement possible at the time being.
In fact, based on the basic agreement reached on March 03, 2003, a Proposal for a Council Regulation on the Community patent had been published. Meanwhile, the Council has offered an amended version thereof.
According to the proposal, the EU would join the European Patent Convention, and by selecting the "EU Community Patent" a patent applicant would be able to obtain patent protection for an invention throughout the entire territory of the EU. But there are the gory details. There is a long list of problems. The most nasty matter, however, is to deal with the question of the languages in which the EU Community Patent is to be made available. The most efficient solution would be simply to require that every EU Community Patent has to be made available in English. De facto, English is the "lingua franca" of the modern globalised economy, and concerning all persons involved therein it can be deemed that they have a sufficient command thereof. Industry circles have been in favour of such approach. But, regrettably, in terms of today's political conditions of force, such language regime is simply a non-starter. In particular a number of mediterranean countries fiercely opposed against any such reasonable and simple solution. Finally, the basic proposal exhibited a compromise of that kind which is typical for many EU controversies: According to a recital of the draft proposal, the language regime for the Community Patent will, up to grant, be the same as the one provided for in the European Patent Convention. This means that the applicant has to present a complete application document in one of the three official languages of the EPO (English, German, French) as well as, at the time of grant of the patent, a translation of the claims into the two other EPO languages. The applicant must, at the time of grant of the patent, file a translation of all claims into all official Community languages except if a Member State renounces the translation into its official language. The translations will be filed with the EPO and the costs borne by the applicant, who decides on the number and the length of claims to be included in the patent application, thereby having an influence on the cost of translations. If the translations are not deposited in due time a Community Patent will be deemed to be void ab initio. If the translations into Community languages other than those required for the granting of the patent under the provision of the EPC are produced and deposited at the EPO within a maximum of two years of the granting of the patent, the holder of the patent can exploit the rights conferred by that patent as from the date of publication of the notice of granting of the patent. The traditional users of the European Patent Office seem to be dismayed about this proposal because of the costs associated with preparing the required claims translations, namely for all EU languages in the worst case. Maybe that the industry will not even make use of the EU Community Patent at all because of those translation costs. The United States form a market of comparable size and can be reached in terms of patent protection with a single language, namely English. Why do the Europeans think they need dozens of languages for their patent system? However, the political compromise as reached on March 03, 2003 on the language regime seems to be quite unchangeable, and any attempt to push towards some alterations in this respect would doom the entire project of the EU Community Patent to fail. There might be very few loopholes to escape the detrimental consequences of the envisaged language regime: A number of EU Member States might prefer to waive the translation requirement; and/or the EU Council might reach a position according to which the translations to be filed merely have informal character, whereas only the original text of the language of the proceedings is legaly binding. In this case, computer-generated cheap low quality translations might perhaps be used for dissemination of information about the claims granted. Both assumptions are vague. The Italian EU Presidency wants to finalise that matter by November 11, 2003, possibly together with the adoption of a Regulation amending the Community Trade Mark Regulation and with obtaining a Political agreement on a Directive on the enforcement of intellectual property rights.
Maybe that the EU Community Patent merely plays the role of a vanguard concerning the question of the language regime within the EU. I think that also in other areas of the administrative and political life the current tendency to adopt and cultivate each and every EU language will inevitably fail eventually due to the enormous complexity and costs of such undertaking. In the patent system as well as elsewhere we need an education that makes all Europeans bilingual in the next generation: If (virtually) everybody throughout the entire EU has a sufficient command of the English language, all economic and political processes can be facilitated enormously. And, moreover, the English language could one day serve to create something like a true European public which is absent today. This is not a quixotic utopia. The Scandinavians are well ahead on this road even today.
Saturday, September 06, 2003Social Democratic MEPs agree on common position on patents on computer-implemented inventions.There is a freshreport [in German] according to which the Social Democratic group of MEPs have agreed on a common position which would impose further restrictions on patents on computer-implemented inventions.
Patents, State secrets, and the threat of terrorism.Secret or "classified" patents are always something like "foreign matter" in the system of patent law. Normally the way a patents works can be described as giving a temporary monopoly in exchange for public disclosure. However, virtually all countries with a patent law have an exception implemented therein: For the sake of "national security" or something like that a "secret patent" can be granted which conveys a monopoly without public disclosure.For example, Sect. 50 of the German Patent Act says that if a patent is sought in respect of an invention which is a State secret, the Examining Section shall order ex officio that no publication shall take place. The competent supreme federal authority shall be heard before the order is issued. The latter authority may request that an order be issued. In accordance with Section 93 of the German Penal Code, State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the external security of the Federal Republic of Germany. Now, Mr. Hans-Jürgen Breith, a former Head of Ministerial Department, has published an article in a German IP print medium (GRUR 2003, No. 7, pages 587 to 592) questioning the current legal prerequisites for issuing a secrecy order with respect to a German patent application. Mr. Breith argues that in view of the threat of globalised terrorism more patent applications should be covered by secrecy orders than what is already done today. In particular, he complained that in general the German practise is such that only patent applications with a subject-matter classified at least at the "secret" level are deemed to be eligible for a secrecy order. Moreover, he argued, only matters which constitute a danger to the external security can have the status of a "State secret". Terrorism does, however, not always affect the external security, Mr. Breith argues. So, Mr. Breith wants to see the legal prerequisites for a secrecy order in German patent law be decoupled from the concept of the "State secret" as defined in the German Penal Code. Instead, he would prefer a regulation within the German Patent Act giving a basis for issuing secrecy orders if the public disclosure of a patent application would create a danger to the external or internal security of the Federal Republic of Germany. So, also threats against the internal situation would also be covered and, moreover, the requirement "of serious prejudice" would be eased. I fear that such amendment to the German law would turn out to be a Pandora's box. Mr. Breith's proposal is overbroad and gives the authority far too much room for issuing secrecy orders. I think there are immense numbers of patent applications, the technical teaching of which, if misused, could be seen as a threat to the external or internal security of the Federal Republic of Germany. This holds e.g. with regard to the chemistry of explosives. But, no doubt, even IT matters might fall under this category, e.g. cryptography-related patent applications or security instruments for the operation of the Internet. And, finally, I think the proposal to decouple patent secrecy orders from State secrets might effectively turn out to be a penalisation of patent applicants compared with non-applicants - if some sensible subject matter below the level of a State secret is not in a patent application, the inventor and the applicant may freely speak over the invention if they desire so. But once the patent application is filed and classified they would be silenced.
Wednesday, September 03, 2003OHIM struggling with common Web standards?In ashort note published on the OHIM website, announcement is made that it has been decided to make the CTM Bulletin available on the website as of September 2003 and to replace the paper version of the CTM Bulletin by a PDF Bulletin on CD ROM. As of September 01, the subscribers to the paper version of the CTM Bulletin will receive a PDF version in replacement. The Bulletin should be available under this URL.
However, I have tried to gain access with my latest Netscape 7.02 browser as well as with the MS Internet Explorer 5.50 but both attempts failed: Netscape suffered a "JavaScript Error" while the Internet Explorer completely freezes in when attempting to execute some embedded JavaScript code like "javascript:displayBulletin('2003/071');". Moreover, the OHIM recently proudly had announced its facilities for on-line filing. A few weeks ago I considered to make use of this part of the OHIM website but it also failed both with MS Internet Explorer as well as with Netscape.
So I am rather curious to learn if any user of the OHIM website has managed to overcome these obstacles at all. Perhaps the Office would be well advised to talk to their techies (or perhaps sub-contractors?) for advising them to create a more usable website which is not narrowly tailored to a very particular environment at the user's side. Probably most of the JavaScript code cluttering the website should be reviewed with scrutiny.
Monday, September 01, 2003WTO member governments reach compromise over intellectual property protection and public healthThedecision waives WTO Member Countries’ obligations under a provision of the WTO’s intellectual property agreement. Article 31(f) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement says that production under compulsory licensing must be predominantly for the domestic market. This effectively limited the ability of countries that cannot make pharmaceutical products from importing cheaper generics from countries where pharmaceuticals are patented.
In fact, the procedure to be observed by the poorer countries is rather complex, and prospective profits from illegal pharmaceutical trafficking are immense. Time will show whether or not this scheme really works.
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