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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Friday, November 28, 2003Dim prospects for European Patent Litigation Agreement EPLA.According to a Status Report published on the web site of the Swiss PTO called "Institut für Geistiges Eigentum" ("IGE"), the Working Party on Litigation met November 19-20, 2003 for the 5th time with the intention of resolving the as yet undecided points in the Draft Agreement on the establishment of a European patent litigation system (European Patent Litigation Agreement; EPLA) and the Draft statute of the European Patent Court, which were finalized by the sub-group, before convening a ministerial conference. They were successful on minor points, but, in particular, the general reticence among various countries regarding the financing of the court is still an obstacle.
Moreover, according to said Status Report, the issue of whether EU Member States are competent to negotiate on their own behalf because of EC Regulation 44/2001 (Brussels Regulation I) was also left unresolved. This problem, among others, led the EU Member States to see no possibility to convene a ministerial conference next year.
Again according to said Status Report, the Swiss Delegation subsequently drew attention to the analogous situation for potential conflicts between the future EC regulation on the law applicable to non-contractual obligations ("Rom II"; Proposal for a Regulation of the European Parliament and the Council of 22.7.2003; COM (2003) 427 final; 2003/0168 (COD)) and the EPLA and suggested that the EU Member States try to find a solution that will prevent future problems of this kind.
As another obstacle to a ministerial conference, the EU Member States noted the development of the Community Patent and its own court system. The Working Party on Litigation has closed with a declaration saying it will meet again after the meeting of the Administrative Council of the EPO on December 8, 2004 to reevaluate the situation. Until this meeting, consultations should be made to eliminate potential conflicts between Community law and the European patent litigation system.
Competitiveness Council (Internal Market, Research, Industry) reaches political agreement on changes to CTM system.The Competitiveness Council (Internal Market, Research, Industry) has, at the session held at Brussels on November 26 and 27, 2003 agreed to amend the Community Trade Mark system. According to document15141/03 (Presse 337), the Council unanimously reached a political agreement on the draft Regulation modifying the CTM Regulation 40/94/EC. After finalisation of the text, the Council will adopt this Regulation at a forthcoming meeting. The document says: "This proposal aims at completing the existing Regulation by clarifying and supplementing new aspects of the functioning of the Community trademark thereby improving the efficiency of the system and increasing its added value. One of the main elements of the Presidency compromise text concerns the current searching system. On that basis, the search as regards prior national trademarks carried out by national trade mark offices is rendered voluntary. If the applicant chooses to have a search done this will be done by all the national offices participating in the search system. The search as regards prior Community trademarks carried out by the Community Office remains compulsory. Moreover the new Regulation will establish criteria in relation to the search reports aimed at improving the quality of searches. A transitional period of four years is provided for before the implementation of this new search system. The Regulation on the Community Trade mark has been in force since 1994, allowing for registrations of trade marks covering all Member States of the European Union. According to the Commission, the Community Trade mark system has generally proved to function well but in the light of the experience gained with its operation, the Commission considered that changes were called for."
Competitiveness Council (Internal Market, Research, Industry) fails to reach compromise on Community Patent.The Competitiveness Council (Internal Market, Research, Industry) has, at the session held at Brussels on November 26 and 27, 2003 failed in a spectacular way to set up a framework for the EU Community Patent system. According to document15141/03 (Presse 337), the Council examined outstanding questions on the draft Regulation creating the Community Patent. At the end of the discussion, the Presidency noted that although there was broad agreement on the compromise text, complete agreement could not be reached at that stage as the question of the period for filing compulsory translations of the claims of the Community patent remained unresolved.
ECJ on audio trade marks.On November 27, 2003 theECJ has delivered an important  decision in re C-283/01 on audio trade marks. In particular, the Court decided that "Article 2 of Directive 89/104 must be interpreted as meaning that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that its representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective. In the case of a sound sign, those requirements are not satisfied when the sign is represented graphically by means of a description using the written language, such as an indication that the sign consists of the notes going to make up a musical work, or the indication that it is the cry of an animal, or by means of a simple onomatopoeia, without more, or by means of a sequence of musical notes, without more. On the other hand, those requirements are satisfied where the sign is represented by a stave divided into measures and showing, in particular, a clef, musical notes and rests whose form indicates the relative value and, where necessary, accidentals."
This case law will surely further reduce the attractiveness of audio trade marks throughout the EU. Despite some euphoria in earlier years after the opening of the trade mark system for sound marks, the requirements for obtaining a trade mark registration for such marks are quite high and many companies will now think twice before relying on such non-standard branding concepts.
Wednesday, November 26, 2003Today beginning of the 2547th meeting of the Council of the European Union Competitiveness (Internal Market, Industry and Research).Today in Brussels ministers gather together for the 2547th meeting of the Council of the European Union Competitiveness (Internal Market, Industry and Research). According to theProvisional Aganda we should expect major decisions concerning the fate of the EU Community Patent as well as concerning some amendments of the Regulations governing the Community Trade Mark.
What seems to be clearly missing is any topic on the agenda concerning the Draft Directive on the patentability of computer-implemented inventions. I am inclined to guess that de facto the second procedural option presented in document No. 13955/03 of the EU Council will be adhered to. This position started from a consideration that there would not be sufficient time to enable a common position to be adopted and transmitted to the European Parliament in time for the latter to conduct a second reading before dissolution next year. In view this case, an option was mooted to proceed with less urgency but with a view to transmitting the Council's common position at a time which would allow the European Parliament to begin a second reading as soon as possible after the elections. However, the newly-elected European Parliament would have the option of confirming its opinion at first reading and proceeding to a second reading, or of recommencing the codecision procedure.
As far as I can see now there is no room anymore for the first procedural alternative which had been preferred by the EU Commission. This option had been "to organise work with a view to transmitting the Council's common position to the European Parliament in time for the latter to conduct a second reading before dissolution. This would imply transmission before the Parlementary session beginning on 12 January 2004. Bearing in mind the time required for finalisation of a common position by the legal/linguistic experts, this in turn would imply a political agreement by the Council (Competitiveness) at its meeting on 27 November 2003. Adoption of this option would require the necessary resources to be made available, in particular in terms of meeting time, to allow the Working Party and the Permanent Representatives Committee to give due consideration to the amendments proposed by the European Parliament with a view to preparing the political agreement and the common position. "
Wednesday, November 19, 2003Will the EU Directive on the patentability of computer-implemented inventions be delayed?There is a freshreport [in French] suggesting that a further discussion of the pending proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions will not be on the agenda of the meeting of the Council (Competitiveness) on November 26 and 27, 2003 due to a request of France demanding more time for deliberations.
Community Patent: Intellectual Property Attachés (Patents) have examined outstanding reservations.According to a certainTELEX N° TX05144EN/* OF 14/11/2003 issued by Secretary-General/High Representative Mr. Javier Solana, on last Monday November 17, 2003 the Intellectual Property Attachés (Patents) have examined outstanding reservations in (unpublished) documents 14233/03 PI 112 + ADD 1 and 14551/03 PI 113, as well as a proposal for a new Article 45a of the proposal for a Regulation on the Community patent. No results have come to be known so far.
Proposal for a EU Council Regulation amending Regulation (EC) No 2100/94 on Community plant variety rights.The Secretary-General of the European Commission has prepared aDocument No. 14215/03 on a "Proposal for a Council Regulation amending Regulation (EC) No 2100/94 on Community plant variety rights".
In an "Explanatory Memorandum" forming a part of the above-mentioned Document, a statement concerning the political reasons for the proposed amendment is provided as quoted below: "Article 29 of Regulation (EC) No 2100/94 on Community Plant Variety Rights is inconsistent with Article 12 of the Biotechnology Patents Directive 98/44/EC on the legal protection of biotechnological inventions. In February 1998 the Council called on the Commission to examine this inconsistency and to submit an appropriate proposal to amend Regulation (EC) No 2100/94. A plant variety may be protected by a plant variety right but may also contain one or several biotechnological inventions which are themselves protected by a patent, e.g. patented genetic components. These intellectual property rights may be owned by different persons. In the case of disagreement between the various intellectual property owners, both legislations provide that compulsory measures (exploitation rights or cross licensing) may be granted to ensure that the plant variety or patent may be exploited, but only when justified. Under Regulation (EC) No 2100/94 this may be done only on the grounds of 'public interest'. Under Directive 98/44/EC, a compulsory exploitation right can be granted if it would constitute a 'significant technical progress of considerable economic interest', but not a general 'public interest'. The proposed amendment to Regulation (EC) No 2100/94 will resolve this inconsistency: 1. It will provide coherence of the system of compulsory licensing provided for by Regulation (EC) No 2100/94 on Community plant variety rights and Directive 98/44/EC on biotechnological inventions. 2. To enable the exploitation of a patented biotechnological invention, the Community Plant Variety Office can grant to the patent holder a compulsory licence for the use of a protected plant variety containing his invention. Applicants for the compulsory licences must demonstrate that; - they have applied unsuccessfully to the holder of the plant variety right to obtain a contractual licence; and - the biotechnological invention constitutes a significant technical progress of considerable economic interest compared with the protected plant variety. 3. The holder of the patent can be granted a cross-licence to exploit the plant variety containing his biotechnological invention, if the holder of a plant variety right has been granted a compulsory licence for the use of this patented invention under Directive 98/44/EC. "
Saturday, November 15, 2003Progress Report.The General Secretariat of the EU Council has issuedDocument 14720/03 dated November 13, 2003 addressed to COREPER. The title of the Document is "Preparation of the Meeting of the Council (Competitiveness) on 26 and 27 November 2003". The Document merely says: "[...] The Council's Working Party on Intellectual Property (Patents) has recently initiated its examination of the amendments proposed by the European Parliament in order to identify which amendments might be acceptable to the Council, with a view to the Council adopting its common position in due course. The Permanent Representatives Committee (Part 1) is invited to take note of this report and decide whether or not to forward it to the Council (Competitiveness). "
Thursday, November 13, 2003News on the European Patent Litigation Agreement (EPLA)Asreported on the website of the Swiss Patent and Trade Mark Office (IGE), the working party on litigation will meet in Munich for the fifth time November 19th and 20th, 2003 to discuss the substance of the finalized proposals for a European Patent Litigation Agreement (EPLA) and a court statute. Also on the agenda is whether a diplomatic conference should be convened for the purpose of signing the documents.
Tuesday, November 11, 2003EPO launches new website.The European Patent Office (EPA) has launcheda new version of its website. Also the esp@cenet site now comes as version 3 thereof in the same new and fresh look.
At a first glance, the new user interface of esp@cenet looks smarter than the old one. The content of a certain subset of all patent documents are now available as HTML text. However, there seems to be at least one significant impairment: The old version had provided a printable PDF image of a retrieved patent document, although merely in a somewhat boring page-by-page fashion. Now the entire patent document comes as a single PDF file - but which is not printable. Hence, as reading a complex patent document on the screen is next to impossible, this functionality of the new esp@cenet version might well be considered to be virtually useless. It should also be noted that even the (public) discussion of technical measures how to circumvent the anti-printing protection of esp@cenet would be considered a crime under the new copyright rules which are enforceable throughout Europe as far as the Directive 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 has been cast into national law.
I have not yet grasped why the creators of the new version of esp@cenet have (voluntarily?) accepted to deteriorate their service form the very beginning. There seem to be no real copyright restrictions preventing them from providing full featured printable PDF images of patent documents. Perhaps, I guess, there are some non-public agreements with commercial vendors of patent documents.
Monday, November 10, 2003EPO quality control division to come together with EU Community Patent.The EU Council has just published someDocument No. 14068/03 concerning the "Revision of the European Patent Convention - Articles 153 to 178 and proposed new Article on the Protocol on Centralisation". Why has the EU any power to deal with particulars of the European Patent Convention? So, in fact, if the project of a EU Community Patent should ever become reality, the EU would accede to the EPC. And, in this context, various amendments would have to be made with regard to the EPC in the course of another Diplomatic Conference. In particular, with regard to Article 15 of the Convention describing the overall structure of the European Patent Office, interesting changes are on the horizon.
The interesting point and the reason why I am dwelling on that matter is the fact that obviously the EU Council is actually mooting to create a (1) The quality control division shall be responsible for: a) examining, on its own initiative or upon request, the quality of the work being undertaken by the European Patent Office and by the central industrial property offices which intervene in the granting procedure of european patent applications, including european patent applications designating the European Community; b) giving recommendations on all questions relating to the definition of an assurance scheme for a uniform quality of the work in respect of the processing of patent applications; c) implementing the assurance scheme for a uniform quality with the cooperation of the European Patent Office and the national industrial property offices concerned. The quality control division shall consist of independent members. These members shall be appointed for a term of five years by decision of the Administrative council on a proposal from the President of the European Patent Office. They cannot be removed from their functions during this period, except if there are serious grounds and if the Administrative council, on a proposal from his president, takes a decision to this effect. The members of the quality control division may not be members of the Receiving Section, Examining Divisions, Opposition Divisions, Administration Division for the Community patent, Boards of Appeal, Enlarged Board of Appeal or of the Legal Division. In their decisions and reports, the members of the quality control division shall not be bound by any instructions and shall comply only with the provisions of this Convention. (2) Every year, the quality control division reports to the Administrative council on the execution of its mission and on the results of the quality controls which it carried out or made carry out. It can recommend the Administrative council to adopt preventive or corrective measures in order to guarantee a uniform quality of the patents granted by the European Patent Office. The Administrative council examines in all cases these recommendations and takes if necessary a decision pursuant to section IVb of the Protocol on centralization. (3) At the occasion of the presentation of the annual report referred to in the preceding paragraph, the quality control division can present to the Administrative council a proposal for preventive or corrective measures. The Administrative council decides on this proposal at the qualified majority, after having heard the European Patent Office or the central industrial property office concerned. The Administrative council may propose amendments to the proposal presented. If the quality control division approves the amendments suggested by the Administrative council, this last adopts the measures proposed. In other cases, the proposal is submitted to a conciliation committee whose mission is to reach, within a period of time set by the administrative council, a common agreement on preventive or corrective measures. If the conciliation committee does not present a common proposal, the administrative council takes note of the proposal of the quality control division but this one does not produce any effect. (4) The quality control division can, however, if it considers it necessary for the proper functioning of the european patent system based on the Convention, and after consultation of the Administrative council, impose preventive or corrective measures on any interested party if the results of the controls carried out with regard to this interested party are similar for a three consecutive years period of time and if the proposals relating to such measures have not been the subject of an agreement within the Administrative council under the terms of the preceding paragraph. I have got the impression that these very far-reaching provisions are to be seen - at least in part - as a response to some criticism uttered by persons from academia as well as by NGOs, both arguing that major patent offices and, inter alia, also the EPO are issuing too many of the so-called "trivial patents" for which the requirements of novelty and/or inventive step have not been scrutinised sufficiently. The EU Council surely is on the right track here, in particular because of the exhibition of a political intention to make clear, contrary to the position of the FFII e.V., that the problem of "trivial patents" is of patent examination, not of patent law in general.
Thursday, November 06, 2003Amendments of the European Parliament: Preliminary analysis undertaken by the Commission services taken as basis for COREPER.There are some interesting news: Despite some scepticism expressed about a week ago in myearlier posting, the EU Council administration has decided to publish the said document No. 13955/03 of the EU Council prepared by the General Secretariat, addressed to COREPER and concerning a "Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions - Examination of the amendments proposed by the European Parliament at first reading: procedure".
The document now published says that on the basis of a preliminary analysis undertaken by the Commission services, and taking into account the Council's common approach in the Annex to 14017/02, it appears to the Commission that the 64 amendments proposed by the European Parliament may be divided into four categories:
(a) amendments which could be accepted unconditionally (Amendments 1, 2, 3, 85, 7, 8, 9, 11, 12, 13, 15, 16, 17, 19, 71, 23, 26, 27 and 28); (b) amendments which could be accepted subject to reformulation (Amendments 92, 25 and 89); (c) amendments which might be susceptible to compromise (Amendments 88, 31, 34 (= 115), 86, 55rev (= 97, 108), 104 (= 120), 24, 81 and 93); (d) amendments which would be unacceptable (Amendments 32 (= 112), 84, 114 (= 125), 36 (= 42, 117), 107 (= 69), 38 (= 44, 118), 45, 100 modified by 57 (= 99, 110), 70, 60, 102 (= 111), 72, 103 (= 119), 76 and 94). With other words, the EU Commission has set up a "white list" of amendments which could be accepted unconditionally or subject to reformulation, a "grey list" of amendments which might be susceptible to compromise, and a "black list" of amendments which are considered to be unacceptable, the Council obviously being inclined to take this position more or less as a starting point. However, the delegations have not yet taken a final position on this breakdown of amendments into categories. In order to see which topics are actually on the above-mentioned lists, the reader might be inclined to refer to the published document 11503/03 Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions – Outcome of the European Parliament's first reading (Strasbourg, 22 to 25 September 2003).
Hence, it looks as if the Commission would be prepared to negotiate things like definitions such as 'technical field' meaning 'an industrial application domain requiring the use of controllable forces of nature to achieve predictable results'. Surprisingly it looks as if they might also be prepared to enter into talks about a requirement proposed in amendments 104 and 120 according to which 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 would have to be published as a part of description and without any restricting licensing terms. Nevertheless, the preliminary analysis undertaken by the Commission services forms a good starting point for the coming deliberations because of it makes sufficientlyy clear that the amendmentss collected on the "black list" are far beyond being eligible for any further serious consideration. This is for sure good news for the European industry but also for sure there will be a public uproar staged by FFII e.V.
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