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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Thursday, January 29, 2004Coming SPLT Deliberations in 2004.On May 10 - 14, 2004, the WIPO Standing Committee on the Law of Patents (SCP) will gather in Geneva for the tenth session to continue deliberations on a Substantive Patent Law Treaty (SPLT). A number of relevant documents are available on the WIPO website. The present revised version of the draft Substantive Patent Law Treaty takes into account the views expressed in the Standing Committee on the Law of Patents at its ninth session which was held from May 12 to 16, 2003.
Concerning Articles 11 to 16 of the recent SPLT draft version, since no discussion was held on these provisions at the ninth session of the SCP, the text of the draft SPLT contained in document SCP/9/2 is kept substantially unchanged. This is also relevant for Article 12 defining material conditions of patentability. In particular, it is still to be determined whether "Subject matter eligible for protection shall include products and processes which can be made and used in any field of activity" or "Subject matter eligible for protection shall include products and processes, in all fields of technology, which can be made and used in any field of activity" shall apply. The clause "in all fields of technology" might well make a difference concerning business methods and computer-implemented inventions. Within this context, Document SCP/8/8 "Summary of the Chair" of the eigth Session (November 25 - 29, 2002) reads: "[...] A couple of interventions suggested that the presence or absence of the word 'technical' went beyond the issue of patentable subject matter. On the other hand, it was recognized that the term 'technical' was a fundamental issue for a number of delegations. It was agreed that the discussion concerning the term “technical” in Rules 4 and 5 should be postponed until the SCP reached a conclusion regarding patentable subject matter under draft Article 12(1). [...] "
However, the fate of the SPLT might well be dim. There are rumours that currently in particular the US are not very eager to push this project ahead. Ok, we shall wait and see.
Wednesday, January 28, 2004EPO Patents on diagnostic methods: Referral to the EBA.From theEPO website: "In accordance with Article 112(1)(b) EPC, the President of the European Patent Office has referred points of law [in German] relating to the interpretation of the term "diagnostic methods practised on the human or animal body" within the meaning of Article 52(4) EPC to the Enlarged Board of Appeal. The case is pending under ref. No. G 1/04. Until the Enlarged Board of Appeal has issued its decision in this case, all proceedings before the EPO first-instance departments (examining and opposition divisions) where the decision depends entirely on the Enlarged Board of Appeal's decision will, in accordance with T 166/84 (OJ EPO 1984, 489), be suspended. "
New reports on OHIM strike.In an earlier posting I indicated that IPKat reported on rumours saying that Employees of the Office for Harmonization in the Internal Market (OHIM) in Alicante were on strike because they consider the Community Trade Mark system to be in danger due to bad management and staff policies. Now IPKat has another report saying that it was not a hoax at all. However, it looks as if there has been media coverage only locally in Spanish.
Tuesday, January 27, 2004More on measures and procedures to ensure the enforcement of intellectual property rights.Heise Newsticker reports that FFII is currently hosting Document 16289/03 dated December 19, 2003 with a partially publicly accessible consolidated/annotated text of the "Proposal for a Directive of the European Parliament and of the Council on measures and procedures to ensure the enforcement of intellectual property rights". The paper gives an impression of the political aims of the past Italian Presidency (which has terminated by December 31, 2003) intending to criminalise IP violations to a somewhat greater extent than the amendments proposed by the Legal Affairs Committee of the European Parliament had suggested. See also my earlier posting here.
Sunday, January 25, 2004News from the EU Community Trade Mark.The Council of the European Union has just published aDocument 15681/03 conveying the latest draft of a Council Regulation (EC) amending Regulation (EC) No 40/94 on the Community trade mark.
Saturday, January 24, 2004UK Patents Bill - More Insights.In anearlier posting I reported about a Bill pending in the UK parliament that aims to enable the UK Patent Office to provide an independent non-binding opinion on patent validity or infringement to settle disputes over patent rights without parties having to resort to expensive litigation.
Today I have spotted another Document explaining the aims of that Bill more in detail. "Patent holders currently generally employ several professionals - patent agents, and often solicitors and barristers too - and go through the full hearing-decision-appeal process (the costs of which are generally greater in the High Court than before the comptroller or in the Patents County Court) before they will receive any compensation for an infringement of their patent. However, by this time it is often too late as they have lost market share for the patented product and this may never be recovered. [...] A recent DTI economics paper concluded that the costs to a company of identifying infringement and enforcement can act as a deterrent. [...] If nothing is done, this high level of dissatisfaction will continue and may dissuade companies from making effective use of patents which could in turn lead to less certainty about rewards for innovation and so reductions in the investment in R&D in UK businesses. Ultimately this could lead to a reduction in the UK’s international competitiveness", the paper concludes. The remedy is seen as follows: "[...] Providing low-cost neutral assessment of validity and/or infringement instead of (or prior to) any proceedings taking place could encourage early settlement of disputes at lower cost and so benefit all. "
No doubt, patent agents / attorneys, solicitors, etc. are absolutely well prepared to provide opinions on validity and infringement. Why all that fuss? The keyword is "low-cost". It appears to be that patent attorneys / agents, solicitors, barristers etc. are considered as being too expensive, and the competent courts as being too slow. The UK Patent Office is deemed to be "low-cost" and "fast". How to accomplish that? Perhaps by (hidden) subsidies lowering the costs of such undertakings of the Patent Office? BTW, as a German Patentanwalt and European Patent and Trade Mark Attorney I do not see that I would be directly affected by the Bill that is currently pending in the UK. But I guess that the UK Parliament is playing only the role of a vanguard for a pan-European tendency coming within a decade or so. Microsoft Patenting Office XML Formats?There seems to be something like anuproar within the FOSS scene concerning attempts by Microsoft to obtain a patent appearently in conjunction with some Office XML Formats. There is, for example, a pending European patent application03009719.0 published on January 02, 2004 as EP publication EP 1 376 387 A2.
Claim 1 as published in the application reads: "A computer-readable medium having computer-executable components, comprising: a first component for reading a word-processor document stored as a single XML file; a second component that utilizes an XSD for interpreting the word-processor document, and a third component for performing an action on the word-processor document. " Another independent claim 11 reads: "A method for handling a word-processing document, comprising: parsing the document, wherein the document is contained within a single XML file and includes all of the instructions necessary to display the document according to how a word-processor would display the document; and interpreting the document according to an XSD. " There are two more independent claims with related respective subject-matters in the application. It should be clear that there is a significant difference between a patent claim written in a patent application and a granted and enforceable claim. It is always a good practice to draft claims very broad when authoring a patent application but everybody should expect such claims to be further limited during the patent examination procedure. Without having investigated this claim in depth I am fairly sceptical that it will be granted in this form in view of tons of XML related prior art stuff available to be public before the priority date of that application which was June 28, 2002. Instead of raging against patents on computer-implemented inventions (which are to stay here, that is for sure) those who are afraid of overbroad claims in the field of XML word processing software should be prepared to collect any available prior art in the field in order to be sure that the patent eventually granted can be limited to the novel and non-obvious core of the subject-matter as disclosed in the application. Furthermore, I am really curious on how the European Patent Office (EPO) might eventually assess the technical contribution of the invention which might - in view of the present political row on patents on computer-implemented inventions - be expected to be more savagely scrutinised during patent examination than ever before.
Friday, January 23, 2004Jon Dudas new Head of USPTO.Jon Dudas became acting Under Secretary of Commerce for Intellectual Property and acting Director of the U.S. Patent and Trademark Office (USPTO) on January 12, 2003. As a private practitioner in the early 1990s, Dudas had a significant intellectual property practice that included extensive trademark and copyright work. During his six years as Counsel to the Subcommittee on Courts and Intellectual Property, and Staff Director and Deputy General Counsel for the House Committee on the Judiciary - the birthplace of all federal intellectual property statutory law - he guided enactment of major patent, trademark and copyright policy, including the most sweeping revisions to American patent law since 1952, the 1999 American Inventors Protection Act, and the passage of the Digital Millennium Copyright Act, the 1998 law implementing two landmark international treaties protecting creative works in the digital age. Dudas was also instrumental in the passage of the 1996 Trademark Anti-Counterfeiting Consumer Protection Act, a law making it more difficult for seized counterfeit merchandise to re-enter the consumer marketplace. For more, see here.
Thursday, January 22, 2004Next Big Thing?Recently there is something like a new hype (see e.g.here, here, or here) around some kind of new social networking systems like LinkedIn.com. To contact any user, you first must seek an introduction from someone else in that person's network. Introduction requests can travel through several degrees, with each person taking a bit of responsibility for the ultimate online meeting. Trying LinkedIn.com and quoting Robert Ambrogi I am inclined to say: "I was pleasantly surprised to find quite a few people I knew were already members. I'm not sure where this will lead, but it is fun to play with." (Member of LinkedIn? Knowing me? You can always send me a connection request at horns@ipjur.com.)
Tuesday, January 20, 2004UK Patent Law to be updated.AUK Patents Bill, to update, modernise and improve patents law, has been published on January 16, 2004. The Bill proposals aims to provide a more supportive framework, particularly for small businesses, to enforce patent rights and ensure that UK patent law continues to underpin and promote innovation.
The Bill includes measures which are deemed to help those trying to resolve disputes over patent rights, and provisions to ensure compliance with international commitments that help UK businesses. The Patents Bill would: * enable the UK Patent Office to provide an independent non-binding opinion on patent validity or infringement to settle disputes over patent rights without parties having to resort to expensive litigation; * bring UK patent law into line with the revised European Patent Convention to reduce bureaucracy and make it simpler for UK businesses to operate across Europe; * modernise UK patent law to be more responsive to customers needs by for example, allowing the Patent Office to make amendments to application forms without amending regulations; and * modify existing protection for alleged infringers to encourage out-of-court settlement of disputes whilst still deterring patent owners from making unreasonable allegations of infringement. An explanatory note is available here.
What in particular seems to be remarkable that the UK Patent Office is about to be enabled to enter into competition with Patent Attorneys and Patent Agents concerning consultatory services in infringement cases. I guess that this should be seen in conjunction with the fact that there is some expectation that the European Patent Office (EPO) will get a dominant position compared with all other national Patent and Trade Mark Offices throughout Europe. So, and perhaps fostered by EU policy, national Offices will have to seek for other tasks in order to survive.
The 1977 UK Patent Act had made available a number of ways in which disputes regarding patents may be resolved in proceedings brought either before the courts or before the comptroller. For instance, the monopoly rights granted by a patent may be enforced in infringement proceedings brought under section 61. The validity of the patent may be challenged either as a defence in such proceedings, or in proceedings for the revocation of the patent under section 72; and issues of both infringement and validity may be decided in the context of proceedings for groundless threats, brought under section 70. Furthermore, the question whether an act or a proposed act constitutes an infringement of a patent may be decided in proceedings brought under section 71 (and questions of validity may also be raised in such proceedings). In relation to validity, among the points most frequently litigated are the issues of novelty and inventiveness (section 1(1)(a) and (b)), which often involve the assessment of complex and difficult questions of fact. Resolving such issues can be very costly for the parties concerned. A certain clause of the Bill accordingly makes available a new procedure for exploring issues of infringement and validity, which (while not leading to their final determination) is intended to be of value in resolving actual or potential disputes. The new procedure will enable the comptroller to issue, on request, non-binding opinions on questions of validity relating to novelty or inventive step, and on questions of infringement. The ability to request such opinions from a neutral body is thought to be helpful to parties who wish to settle disputes without launching full proceedings. However, it will also be possible to seek such opinions where there is no actual current dispute. For example, a person might want an opinion about whether a certain activity would infringe a patent, before investing resources in that activity; and a patent proprietor might want an opinion about whether "prior art" of which he has just become aware is relevant to his patented invention, before he decides whether to amend the scope of his patent. It is envisaged that a fee will be charged for providing an opinion. Deliberations concerning a Directive on measures and procedures to ensure the enforcement of intellectual property rights.OnJanuary 23, 2004 a Working Party on Intellectual Property will continue the examination of the proposal for a Directive on measures and procedures to ensure the enforcement of intellectual property rights on the basis of Document 16289/03, taking account also of amendments proposed by the Legal Affairs Committee of the European Parliament. Originally this meeting had been scheduled for February 23, 2004. It looks as if the Irish EU Presidency is pressing towads a political compromise to be reached very soon.
A Revised Presidency compromise proposal for Articles 10 to 27 dated November 28, 2003 from the Presidency had been published with Document 15295/03 and Document 15295/03 ADD 1.
The original proposal of the EU Commission is available with Document 6777/03.
Monday, January 19, 2004Amended EPC Guidelines for Examination now available.TheEuropean Patent Office (EPO) has published the English version of the amended Guidelines for Examination (December 2003 edition).
The Guidelines are addressed primarily to EPO staff but they might also be of assistance to the parties to the proceedings and patent practitioners. However, the Guidelines are neither part of the EPC nor part of Case Law. They are not legally binding but just EPO internal administrative instructions. For the ultimate authority on practice in the EPO, it is necessary to refer firstly to the European Patent Convention itself including the Implementing Regulations and the Rules relating to Fees, and secondly to the interpretation put upon the EPC by the Boards of Appeal and the Enlarged Board of Appeal.
Friday, January 16, 2004Impact assessment of possible options to liberalise the aftermarket in spare parts.TheEU Commission has published a Final Report to DG Internal Market dated November 18, 2003 and compiled by the European Policy Evaluation Consortium (EPEC) concerning an Impact assessment of possible options to liberalise the aftermarket in spare parts.
The aim of the study was to examine how four alternative sets of legal rights in respect of design protection would translate into future impacts on competition, community industrial sectors and consumers, against a baseline formed by the present situation. According to the study, there are two main groups of actors that have clear, and opposite, stakes in the debate: • Manufacturers of complex products (the vehicle manufacturers in this instance) consider that design protection for spare parts is an inevitable consequence of the Intellectual Property Right (“IPR”) concerned. The existence of a design right provides compensation for investment in design and rewards creativity. According to this view, primary and aftermarkets are not separable, and to make any such distinction would be artificial and should be avoided in the interests of consistency in the application of general IPR principles. • Independent producers and distributors of component parts of complex products, however, consider that design protection – meant to promote innovation and competition in the primary market (i.e. of new vehicles) – shall not be extended to the aftermarket since this creates unjustified monopoly situations. The prices of spare parts would be lower where they are not designprotected. Independent producers and distributors suggest that a limit to this IPR must be established to avoid a negative impact on competition, and to avoid manufacturers gaining full control over the aftermarket. Abolition of design protection in the aftermarket, without altering design protection in primary markets, could be established through the introduction of a repair clause. The study concludes that the aftermarket in spare parts can in principle be liberalised. However, in economics’ terms, it will never be a perfect market, since it is determined by many rigidities in different elements of the value chain, by complementarities between primary and aftermarket, by information asymmetries, and finally, by costs for control, somewhere or at many places in the value chain, depending on the option that is chosen.
Thursday, January 15, 2004OHIM Employees on strike?IPKat reports about rumours saying that Employees of the Office for Harmonization in the Internal Market (OHIM) in Alicante are on strike because they consider the Community Trade Mark system to be in danger due to bad management and staff policies.
I have absolute no idea whether these rumours are to be taken serious or merely a bad hoax. Irish EU Presidency on Intellectual Property.In abrochure drafted by the Irish EU presidency indicated their goals in the field of Intellectual Property as follows:
"[...] A knowledge-based economy must have effective instruments and laws to protect and promote investment in research and innovation. The enforcement of intellectual property rights, a common regime for the community patent, community trade mark regulations, and the protection of software inventions form an important underpinning to the research and knowledge-based economy. We will ensure that progress is made in these areas, which play an essential part in supporting our adjustment to new and higher value economic activities. [...] A knowledge-based economy must have effective instruments and laws to protect and promote investment in research and innovation. A harmonised approach to enforcement of intellectual property rights, EU wide protection of patents afforded by a community patent, and the protection of software inventions, form an important underpinning of the research and knowledge-based economy. We will ensure that progress is made on these areas which play an essential part in supporting our adjustment to new and higher value economic activities. The Community Patent is important for European industry and must be available to firms at reasonable cost. The Irish Presidency will make every effort to ensure its adoption. With a view to completing the internal market in the area of intellectual property rights, an important initiative is the Directive on enforcement which aims to harmonise enforcement measures in respect of those IP rights which have already been substantively harmonised at Community level. It is the intention of the Irish Presidency to make every effort to achieve a common position within the Council on this initiative. [...]"
Wednesday, January 14, 2004German Govenment to promote Novelty Grace Period?On January 07, 2004 theFinancial Times Deutschland reported in an article written [in German!] by Birgit Jennen and Wolfgang Proissl that the German Government is mooting to push towards the introduction of a novelty grace period into patent law. According to the report, the matter is to be dealt with on EU level during the Irish EU presidency. The BDI is said to be opposing any such proposal.
Parallel imports of proprietary medicinal products in the EU.The Secretary-General of the European Commission has publishedDocument 5173/04 conveying a Commission communication on parallel imports of proprietary medicinal products for which marketing authorisations have already been granted.
The Communication intends to update the 1982 Commission Communication on the same subject and aims at giving some guidance on the practical application of the jurisprudence of the European Court of Justice to national measures relating to parallel imports, from one Member State to another, of proprietary medicinal products for which marketing authorisations have already been granted in the Member State of destination. The Document says, inter alia: "[...] Regarding industrial and commercial property rights protected by Member State legislation, that legislation may not be used to oppose the importation of a product which has been lawfully placed on the market in another Member State by, or with the consent of, the proprietor of that right. Moreover, the trade mark proprietor may not use his right in order to prevent repackaging of a product imported in parallel when: •the use of the trade-mark right by the owner, having regard to the marketing system which he has adopted, will contribute to the artificial partitioning of the markets between Member States; • the repackaging cannot adversely affect the original condition of the product; • it is stated on the new packaging by whom the product has been repackaged; • the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark and of its owner; and • the proprietor of the trade mark receives prior notice before the repackaged product is put on sale."
Tuesday, January 13, 2004EPC will enter into force for Poland on March 01, 2004.On 30 December 2003, the Government of the Republic of Poland (PL) deposited its instrument of accession to theEuropean Patent Convention (EPC) and to the Act revising the EPC of 29 November 2000. The EPC will accordingly enter into force for Poland on March 01, 2004. For more details, see the the Notice from the European Patent Office.
Monday, January 12, 2004Biological Diversity and IP Law.On January 08, 2004 the Secretary-General of the European Commission has published aDocument 5155/04 under the title "Commission Staff Working Paper - Annex to Communication from the Commission to the European Parliament and the Council The implementation by the EC of the 'Bonn Guidelines' on access to genetic resources and benefit-sharing under the Convention on Biological Diversity". Before, on December 23, 2003, the General Secretariat had published Document 16354/03 on Convention on Biological Diversity (CBD) concerning the Seventh ordinary Meeting of the Conference of the Parties (COP 7) to CBD and the First Meeting of the Parties (MOP 1) to the Cartagena Protocol on Biosafety (Kuala Lumpur, Malaysia, 9-27 February 2004) including Council conclusions.
Friday, January 09, 2004Chasing the wild goose with VBA running on MS-Word?In a recentarticle Mr. Paul Brewin of EPO had written: "[...] waiting for the market to produce an easy to use word processor that could also create XML documents has turned out to be a wild goose chase". Indeed. Well said.
But what has happened until now? The EPO as well as the German Patent and Trade Mark Office both have created independently from each other some kind of a word processor capable of creating XML documents: The EPO has published PatXML. PatXML creates a template within Word, conforming to EPC/PCT articles and rules, which gives assistance when preparing patent applications. In addition to comprehensive help screens, PatXML also features "pop-up" screens helping to enter data such as patent citations. Moreover, it is possible to copy, cut and paste or import text and images from existing documents (not only in Word format) into PatXML. The data will be converted to XML and all images will also be converted to a standard format with links inside the XML text data - all of this hidden from the user.
The German Patent and Trade Mark Office has published similar MS-Word templates.
What does that mean? So, well, in terms of IT language I would say that both Offices have seen a need to create some kind of a "word processor that [can] also create XML documents". How to accomplish this? The "normal" way might have been to select a general purpose programming language like C++ or Java and starting with an implementation of such XML authoring tool. But doing so from the very scratch would surely be rather expensive. So both Offices thought twice and decided to select another programming platform which brings more advanced functionality for word processing, namely the "Visual Basic for Applications" (VBA) script language that comes with MS-Word.
On the one side, this decision looks very attractive for the Offices: The costs for purchasing the platform environment are easily shifted to the applicant or patent professional, most of them already having copies of MS-Word running in their offices. Moreover, there is also a psychological momentum: The users are accustomed to the "look and feel" of that software and will not feel bewildered by some novel XML engine. This way the Offices can easily promote electronic filing on the basis of XML character encoded data helping to reduce costs by eliminating any costly OCR proofreading steps. However, on the other side, the question has to be asked whether VBA in MS-Word is really a well-suited platform for creating XML authoring tools. I am in doubt. At least doing so means to give a particular software vendor a competitive advantage which can hardly be justified. The future use of such VBA-based XML tools will teach us more about the technical reliability and stability of the approach taken by the Offices. There would have been alternatives, e.g. a development on the basis of OpenOffice. Furthermore, there are a lot of platform -independent XML tools written in Java available.
epoline-eOLF is Open Source Software but not under the GNU license.Today I have spent several hours with resaerching and installing theepoline electronic on-line filing software eOLF created and distributed by the European Patent Office. When browsing the epoline website I stumbled over a note saying that eOLF is available including the source code at www.sourceforge.net:
"To support the objective of offering customers the option to 'draft once, file anywhere' (a global standard for e-filing) and to provide a sound basis for harmonisation and interoperability of online filing systems, the epoline Online Filing software has been made available on www.sourceforge.net. Users are thereby guaranteed software continuity, independence and security, since the software is completely open. To ensure international uniformity and harmonisation, the EPO will form a release board with other interested parties as the USPTO and WIPO. " Sounds interesting. I decided to visit sourceforge to inspect some source code files, and after downloading a self-extracting archive file (running, of course, only under MS-Windows!) I got a popup window dispaying a certain License saying:
"[...] Each User grants to the other Users a non-exclusive, worldwide, royalty-free license under its copyrights or patents as far as these rights relate to Program or Modified Program or the Modifications as such or the use of these, to copy, use, distribute the Program or Modified Program, and to distribute and sell Own Software incorporating the Program or Modified Program therein. Each User may distribute and/or sell the Program or Modified Program as they see fit as long as a reference is made to the Open Source Library. In each distribution or commercial or public use of the Program or Modified Program the User shall specifically point out that he is acting strictly on his own behalf and not on behalf of the EPO or any other governmental or intergovernmental organisation. [...]" Moreover, there is a more detailed description of that "Release Board": "[...] a. The EPO, together with other interested parties, will form a Release Board in order to ensure the international uniformity and harmonisation in this area to the largest extent feasible. b. The standing members of the Release Board shall be representatives from the EPO, USPTO, JPO, and WIPO. c. Membership of the Release Board will be open to all those persons, commercial companies or entities who can make substantial contributions in terms of time, technology, knowledge, or industry expertise to the Program and who share in the vision to create an open platform for Online Filing of Intellectual Property Documents built by an open community of tool providers, operating under an open source model, with a license that grants royalty free and world wide re-distribution rights in the Program and its Modifications. To be a Member, the person, company or entity must complete a written membership application in such form as shall be adopted by the Release Board. The nomination and content of the membership application must be included in a notice submitted to the open Source Library, at least ten (10) days prior to any vote on the applicant's admission, which notice may be by electronic means. Members are approved for admission or removal by a 75% majority of all existing Board Members. Membership shall only become effective once the applicant has executed the Membership Agreement in such form as shall be adopted by the Board. d. The Release Board shall assess all modifications for their compliance with the International Standards including Annex F of the PCT Administrative Instructions Part 7 and those agreed by at least 75% of the Standing Members of the Release Board will at its sole discretion be incorporated by the Release Board into a new Certified Release. This Certified Release will then also be made available under this licence via the Open Source Library along side any other software versions submitted by interested parties. The Release Board will review modifications to ensure their consistency with good programming practice and for any security ramifications. [...]" This gives a rather illustrative insight into the objects aimed at by the EPA concerning this publication of the epoline-eOLF source code. A very brief inspection of some of the source code files makes me think that most parts of the software are coded in Pascal or some more object-oriented dialect thereof. Strange enough that fact but, moreover, I have seen virtually no comments spread over the active lines of code. Have they been removed deliberately before giving the files to sourceforge or have there been no comments at all? The sourceforge project area looks rather defunct but the latest files are of December 2003. Hence, it looks as if the epoline team have just dumped the latest versions of the source files on sourceforge but the real development work is done within the EPO and behind closed doors.
At the time being I have no clue whether or not the eOLF source code is really fairly platform independent. When browsing some of the source files I spotted identifiers having strings like "AxtiveX" in their names, and I am somewhat in doubt that the program can ever be made run under any other operating system than MS-Windows. The crucial point of having free access to the sources of eOLF might, at least theoretically, be to enable exploitation of the software not only for electronic filings with some Patent Offices but also for the electronic exchange of work between applicants and their representatives as well as between representatives in different jurisdictions on the basis of some open XML-based standard to be worked out in future. However, the quite uncommon programming language as well as the other particular facts surrounding the sourceforge eOLF project make me somwehat sceptical that such idea might ever flourish. It might well be that the sourceforge platform is only means to a particular end, namely the co-opartation of the EPO with other Patent and Trade Mark Offices as well as with a few major vendors of mainstream case management systems running under MS-Windows.
Wednesday, January 07, 2004CEC publishes Proposal concerning a Community Patent Court.The EU Commission recently has published aProposal for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent as well as a Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance .
According to the proposal, the Court of Justice shall have jurisdiction in disputes relating to the infringement and the validity of the Community patent. Which actions relating to those disputes are allowed will be governed by the Community patent regulation. The draft Community patent regulation foresees in this respect an action to stop infringement as well as an action for the declaration of non-infringement. The Court may also order the confiscation of infringing items or other appropriate penalties. Concerning the validity of a Community patent, the draft regulation provides for an invalidity action (Article 31) and a counter claim for invalidity. As agreed by the Council in its 3 March 2003 common political approach, the Community jurisdiction shall be established at the latest by the year 2010. Until that time national courts of Member States will have jurisdiction. The Community jurisdiction will only be established after a transitional period in which national court shall have jurisdiction. It is proposed that the Community Patent Court will consist of seven judges including the president. With the normal composition of the bench being three judges, six judges would allow to form two chambers within the Community Patent Court. The seventh member would appear necessary for the reinforcement of a chamber where needed, e.g. due to illness of a judge or for the chamber presided over by the president of the Community Patent Court who also has to assume tasks related to the administration and the representation of the Community Patent Court. In special circumstances provided for in the Rules of Procedure, the Community Patent Court could sit in an enlarged composition, for example in cases where fundamental questions of patent law are concerned or in a reduced composition which could be the case for interim measures or simple cases in main proceedings. The judges should be assisted in their work throughout the handling of the case by technical experts as agreed upon by the Council in its 3 March 2003 common political approach. For that purpose, use of "assistant rapporteurs" as foreseen in Article 13 of the Protocol on Statute of the Court of Justice shall be made. Such assistant rapporteurs, specialised in different technical fields, should actively participate in the preparation, the hearing and the deliberation of a case. However, they would not have a right to vote on the decision to take. Their input would be important in helping the judges to focus from the start of proceedings on the essential technical questions involved. Their role would not be to make the use of experts entirely superfluous but to enable the court as a whole to understand the technical aspects of the case quickly and accurately which is relevant for an efficient handling of a case and for a legally sound decision. The Community Patent Court, though attached to the Court of First Instance should have its own registrar. With a view to an entirely different type of litigation and the case load of the Community Patent Court, a separate registrar would appear to be necessary to ensure swift and efficient proceedings before the Community Patent Court. According to the proposal, in patent litigation questions of technology play an important part in order to reach a legally sound decision. Technical expertise is required not only on the side of the Community Patent Court contributed by assistant rapporteurs but also on the side of the parties. The first and second paragraphs recognise this important role of technical expertise for the parties giving European Patent Attorneys the right of audience before the Community Patent Court. A reference to the list maintained by the European Patent Office for the purpose of legal representation before it will ensure appropriate and uniform standards for qualifying persons which must be met for efficient proceedings. Where a European Patent Attorney appears before the Community Patent Court, he will enjoy the necessary rights and immunities and the Community Patent Court will have the powers normally accorded to courts of law under the conditions laid down in the Rules of Procedure.
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