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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, March 27, 2004The Myth of the Software Patent Thicket. Ronald J. Mann of the University of Texas School of Law has published a research paper Law and Economics Working Paper No. 022 under the title "The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms". Mr. Mann writes in the abstract:"This paper is the first part of a wide-ranging study of the role of intellectual property in the software industry. The project focuses on the software industry because of the importance of that industry to the modern economy, because of the importance of innovation to that industry, and because of the well-known difficulties of accommodating traditional intellectual-property regimes (patent, copyright, and trade secret) to innovation in the industry. [...] The paper closes by discussing the implications of the patent analysis for recent debates about the value of patents in the software industry. The paper presents evidence about existing practices in the industry suggests that technology in fact is readily available, rebutting the prominent claims of a patent thicket that is supposedly stifling innovation in the industry. On the contrary, I argue, to the extent patents have an important effect in the industry, it is an effect that inures primarily to the benefit of the smaller firms trying to find a foothold from which they can compete."I expect the activists from the FFII e.V. will dislike that paper because of its pro-capitalistic approach to the problems posed. However, Mr. Mann gives in his paper a note on the future of Open Spurce Software (OSS):"[...] In my mind, the biggest question about the effectiveness of software patents relates to the interrelation between commercial software development (the topic of this paper) and the open-source movement. This paper relates almost entirely to the commercial software industry, where software is developed and commercialized in an institutional way. My evidence suggests that within that framework patents are useful, largely because they offer more benefits than costs to small firms. However, coexisting with the commercial software industry is a large and apparently growing open-source community, which develops software largely without commercial investment or affirmative IP protections.304 Those who work in that community may have little or no need for patents. The cooperative nature of development obviates any need for the actual and implicit cross licensing that disseminates access to technology throughout the commercial software sector. Similarly, because open source developers do not depend on outside equity investment to any significant degree, the limited ability to appropriate a software invention poses little harm to them.It is somewhat disturbing that he writes about allged patent infringement in the context of the SCO row. As far as I know there are merely copyright / trade secrets issues at stake. (Link thanks to Lawrence Solum's Legal Thoeory Blog).
Thursday, March 25, 2004Working Document 7230/04 partially released.In my earlier posting I mentioned two new Documents 7377/04 and 7230/04 which had then been marked as "LIMITE". Today, Document 7230/04 has been partially released. It shows very few amendments over its predecessor Document 5570/04. The discussion of the interoperability clause in Article 6a seems to be too much sensible for a publication.
Tuesday, March 23, 2004Extension of European Patents to Croatia will be possible very soon.In anotherNotice the European Patent Office (EPO) has indicated that on June 16, 2003, the President of the European Patent Office and the Minister for European Integration of the Republic of Croatia had signed an agreement on co-operation in the field of patents (Co-operation and Extension Agreement). The agreement enters into force on April 01, 2004. From this date it will be possible to extend the protection conferred by European patent applications and patents to the Republic of Croatia.
Monday, March 22, 2004European patent applications may also be filed in electronic form with the DPMA using the PaTrASINT software.ANotice from the European Patent Office dated 19 March 2004 concerning the electronic filing of European patent applications with the German Patent and Trade Mark Office (DPMA) has been published, saying that as from 22 March 2004 European patent applications, including all drawings, may also be filed in electronic form with the DPMA using the PaTrASINT software provided free of charge by the DPMA. Users of PaTrASINT software must comply not only with the technical and legal requirements which apply when European patent applications are filed electronically at the DPMA but also with the EPC's provisions and the EPO's rules governing the filing of patent applications and other documents.
Thursday, March 18, 2004EPLA Final Draft published.TheSwiss Patent and Trade Mark Office IGE reports that the working group on litigation and its subgroup has been working on a draft proposal for a European Patent Litigation Agreement and a statute for a European patent court for the past four years According to the working group, the draft is now sufficiently completed that it can be presented to a diplomatic conference. However, because of the ongoing work being done regarding the Community patent, the group did not feel in a position to convene such a meeting. The Administrative Council of the European Patent Organisation is meeting December 8, 2004 and the working group intends to meet immediately afterwards to reevaluate the situation regarding a diplomatic conference. I guess it will be very interesting to see if the collapse of the deliberations on the EU Community Patent might cause a revival of the EPLA.
Council Deliberations on the Patentability of Computer-Implemented Inventions.Council deliberations on the patentability of computer-implemented inventions have taken place behind closed doors; there exists aDocument 7377/04 on some proposal for a new Article 6a: Interoperability clause (dated 2004-03-15) as well as Document 7230/04 with a new consolidated/annotated text (dated 2004-03-17), both papers marked "LIMITE".
Tuesday, March 16, 2004Standards and Intellectual Property.A few weeks ago, three RFCs related to Intellectual Property have been published by theInternet Engineering Task Force (IETF):
DRAFT Criteria (in development) for the Evaluation of a patent policy for a Standards Setting Organization drawn up by GTW Associates.
Monday, March 15, 2004Emergency Meeting of EPO and EU Officials in View of Community Patent Failure.After the collapse of the deliberations of the EU Council on the Community Patent there seems to be a strong need for the EU to discuss the consequences thereof with the representatives of the EPO. Anurgent meeting of the EU Coordination Group as been scheduled to be held on March 17, 2004 in Munich. Representatives of the EU Member States, Acceding States and the Commission will hold a coordination meeting in connection with the meeting of the Administrative Council of the European Patent Organisation (16 - 18 March 2004).
Sunday, March 14, 2004FFII Advisor Dr. Karl-Friedrich Lenz on certain Aspects of Patent Law.Mr.Karl-Friedrich Lenz, Law Professor at the Aoyama Gakuin University in Tokyo, has provided a comment on my earlier posting on the removal of a certain US Patent disclosing how to extract ricin from castor beans from the public on-line patents database mainatined by the U.S. Patent and Trade Mark Office (USPTO). Dr. Lenz writes: "[...] On the other hand, Axel H. Horns might be right in commenting that the basic social contract behind the patent system is granting a temporary monopoly in exchange for public information. That would mean that the very fundaments of the patent system require that every lunatic on the planet is served by the Patent Office with information about how to use ricin for the next large scale attack.Firstly and on a more pragmatic level I must say that Dr. Lenz's proposal to remove the said patent from other on-line databases is as futile as the manipulation of the public database of the U.S.-PTO was because of the said patent document has been in the public since more than fourty years, and surely there are too many copies out there barring any attempt to successfully re-collect all of them. These copies are not only availabe in more or less centralised databases but also in collections of patent documents stored on CD-ROMS and sold to everybody who wanted to have them, not to forget the paper-copy collections maintained in many places around the world. A lot of patent information centres, companies with an interest in patents, patent searchers, patent document suppliers and the like own vast collections of patent documents on CD-ROMs or even on paper. You can't put such stuff back into the bottle after more than forty years, and any attempt to calm down the genral public by such actions is in effect nothing else than disinformation. Secondly, I would like to note that the said patent, if seen from the perspective of 1962 (the year in which the patent was granted and published), is not necessarily as directed to "lunatics" as attributed by Dr. Lenz. I am neither a chemist nor a pharmacologist but I know that sometimes poisonous substances extracted from various plants might be valuable pharmaceuticals if given at a very low dosage or if chemically modified. So far as I know today there is no medical usage of ricin or of ricin derivates but might it have been worth in 1962 just to consider thinking of such potential "positive" usage of ricin? It is a rather simple task to point at the risk of terroristic misuse of ricin from today's point of view. It is quite another task to foresee future implications of any new technology.
Finally, I think that it is necessary to point out some more general implications of Dr. Lenz's proposal. It is not very difficult to use the "International Patent Classification (IPC)" scheme to wade through myriads of patent documents e.g. in the field of explosives (e.g. IPC Classes C06B, C06C) or weaponry technology (e.g. IPC Classes F41, F42). Should all these documents be kept secret? Moreover, reportedly the bombs in the Madrid commuter trains have been triggered using some mobile phone technology. Theorectically, patent documents in this field might have been helpful in preparing such devices. Why not trying to keep secret even all patent documents in the field of telecommunication? Where to draw the line between public and secret technology?
Each and every effective technology has a certain potential to provide power to those individuals who are in a position to make use of it. To tackle the fear of terrorism this way would ultimately mean that any powerful technology must be locked away and hidden from the general public, and only a small sworn-in fraternity of "monks of technology" trusted by the state can be allowed to deal therewith as it is currently attempted to enforce with regard to nuclear weapons technology (without much success as it looks). This would be, needless to say, absolutely incompatible with any concept of an open society. And, of course, forget about economic prosperity in such hypothetical state with a totalitarian approach of general technology control.
The above-quoted comments provided by Dr. Lenz are interesting all the more as he surely can be seen as an influencial adivsor of Mr. Pilch, President of the FFII e.V. So it is not very much surprising that Dr. Lenz considers public anxieties against mis-use of technology as a "strong argument" to harm the patent system even if he gives some lip-service to assure that he is interested in preserving a free Internet. Effectively, there are strange parallels between the position of this advisor to the FFII e.V. and proposals coming from another side as already reported in my earlier posting there.
Friday, March 12, 2004EPO (unfriendly?) take-over by EU cancelled? There is another aspect of yesterday's failure to reach an agreement on the EU Community Patent in the Council which should not be overlooked.
The EU Community Patent would have been installed by means of a formal accession of the European Community (EC) as a contracting party to the to the European Patent Convention (EPC). To this end, the EPC would have been modified e.g. according to provisions proposed with Document 14551/03. Effectively, the EU would have aquired voting right in any future Diplomatic Conference for a revision of the EPC (Article 172 EPC) as well as in the Administrative Council (Article 4 No. 2 lit. b EPC). So far, the EC would have been one contract party to the EPC amongst many others. However, there is a certain 'trick' on the basis of Article 11 Sect. 2 of the Treaty on the European Union:"[...] The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.Hence, in the effect the EU would have been in a position to dominate any Diplomatic Conference as well as the Administrative Council because of the other EU Member States would have not been allowed to depart from the Official EU policy. So, the project of a EU Community Patent ever was to a certain degree a plan for something like an (unfriendly?) take-over of the European Patent Organisation and, hence, of the European Patent Office (EPO) by the EU. I do not have any privileged knowledge from inside the EPO but I would not be very much surprised if today some of its Officials have received the news from the collapse of the Council deliberations on the Community Patent with some relief. Frits Bolkestein on the failure of the Council on the EU Community Patent.Rapid brings a statement of Commissioner Frits Bolkestein:
Who is to blame for the EU Community Patent deadlock?Associated Pressreports: "[...] Diplomats said Germany backed the business groups but Spain was adamantly opposed to any compromise seen as undermining the value of their language. [...]" Working Party on Intellectual Property of the EU Council further evaluating Computer-implemented Inventions.The Working Party on Intellectual Property of the EU Council has been summoned withDocument CM 1009/04 to continue on March 30, 2004 in closed session with the examination of the amendments proposed by the European Parliament at first reading (Document 11503/03) concerning the proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions on the basis of the Presidency working document contained in Document 7230/04 (to be issued shortly).
Outcome of first reading of Directive on the Measures and Procedures to ensure the Enforcement of Intellectual Property Rights.The General Secretariat of the EU Council has publishedDocument 7012/04 conveying the outcome of the European Parliament's first reading in Strasbourg, March 8 to 11, 2004, concerning the Proposal for a Directive of the European Parliament and of the Council on the measures and procedures to ensure the enforcement of Intellectual Property rights .
Thursday, March 11, 20042570th Council meeting - Competitiveness - (Internal market, Industry and Research) Brussels, March 11, 2004.Quotes from the PROVISIONAL VERSION ofDocument 6648/04 (Presse 62):
NEWSFLASH: The EU Community Patent is dead.EUpolitix.com comes with fresh news from today's session of the Council of the European Union:"Years of national bickering continue on Thursday as EU governments failed to broker a concessionary deal over the creation of a European patent system.In principle, it would be a nice idea to have something like a EU Community Patent. So far and on the one hand, this is bad news, but not coming unexpectedly. On the other hand, this is also goods news: The EU deserves a better approach than that which formed the basis of the current deliberations in the Council, and the failure to reach a compromise also means that a botchy pseudo-solution for a unified EU patent system could be avoided. The commitment to a full duty to translate into all EU languages had corrupted the idea of a Community Patent from an early stage on. In practice, the EU Community Patent would have been dead on arrival if it would have been agreed upon on the basis of the pending proposal because of the main users of the patent system surely would have preferred the old EPO bundle patent. There had been a much better approach issued by the industry: Just accepting a one-language EU Community Patent in English. EurActiv.com had reported:"[...] Thierry Sueur, responsible for intellectual property at the French business union (MEDEF) and Vice-Chairman of the Patent Working Group at UNICE, said he was in favour of a single-language system to eliminate translation costs. He argued that translations were read by only a fraction of researchers anyway and that litigations would then be reduced to almost nothing.Doing so would have been a pragmatic and wise idea. But this is now not the situation in which we stand. There is another positive aspect of the Council's failure which should not be overlooked: If the EU Community Patent is definitively dead for the coming decades, the prospects for the European Patent Litigation Agreement EPLA to be implemented might rise. And the EPLA surely will be better for Europe than the patents court system as intended by the Commission in conjunction with the Community Patent because of EPLA is more de-centralised.
Ex-post Censorship of published Patent Documents?Dan Gillmor writes in his blog:"[...] Bruce Schneier, in an e-mail, writes: In October 1962, the U.S. Patent Office granted patent [...]165 regarding the use of ricin as a biological weapon. Published patents are, of course, publicly available. That's the point.Is this the beginning of a more widespread attempt to establish something like an ex-post patent database censorship? Those proactive Officials within the US-PTO who have removed said '165 patent might have started a dangerous game. Availability of patent documents to the general public is one of the essential cornerstones of the patent system. And there is an awful lot of potentially dangerous "dual use" technology disclosesd in the patent literature of the world. Classified "secret patents" have ever been a foreign matter to any open patent system. Fortunately, even in the "cold war" times only for a very small fraction of patent applications a pre-publication secrecy order was issued. Scrutinising already puiblished patent documents in order to pick candidates for ex-post censorship challenges the basic social contract behind the entire patent system: Grant of a temporary monopoly in exchange for public disclosure of an invention. Hence, attempting to exert some kind of ex-post censorship on already published patent documents puts the entire patent system at risk but does not help to combat crime or terrorism (those bad guys will manage to obtain a copy anyway, if they desire to do so).
Wednesday, March 10, 2004There will be no such thing like a Community Patent. Most probably.EUPolitix.com writes on the results to be expected from the Competitiveness Council tomorrow on March 11, 2004:"[...] Brussels has blasted national capitals for failing to deliver on a new European patent.
Tuesday, March 09, 2004Council Regulation (EC) No 422/2004 of 19 February 2004 amending CTMR now in the OJ.The Council Regulation (EC) No 422/2004 of February 19, 2004 amending Regulation (EC) No 40/94 on the Community trade mark has finally beenpublished in the Official Journal L 70 Volume 47 March 09, 2004.
EUROPARL voted on Directive on Measures and Procedures to ensure the enforcement of Intellectual Property Rights.Today the European Parliament has voted in favour of the COREPER compromise proposal for a Directive on Measures and Procedures to ensure the enforcement of Intellectual Property Rights which is available withDocument 6376/04. Despite explicit critics manifested in a number of different amendment proposals finally the COREPER version came through. Most probably the Council will accept the result as it stands, and it will enter into force in some forseeable time.
The result of all that does not look like a profound and sound piece of legislation. The Draft text suffers from its hasty transformation from a tool against large commercial product piracy to an instrument for enforcing Intellectual Property on a universal scale. It is, however, a relief that some insane clauses for criminalising non-commercial Intellectual Property violations mooted during the proceedings are not included in the final result. Paul Meller reports:
"[...] The version of the Intellectual Property Rights Enforcement Directive agreed by the European parliamentarians does away with a controversial proposal to slap criminal sanctions on private individuals who exchange music files over the Internet. [...]"It is sad to see that obviously the European Parliament seems to be somewhat overstrained with complex Intellectual Property regulatory issues. After having passed bizarre amendments to the Draft Directive on patentability of computer-implemented inventions the MEPs today have in a similar field taken another decision which is at least questionable. Perhaps some MEPs might have preferred not to dare casting another vote which might be seen as being against Intellectual Property. However, I would have preferred the other way round, namely accepting the Directive on patentability of computer-implemented inventions more or less in the original form (if such Directive is considered necessary of helpful at all) and seriously modifying the other Directive today voted in the plenum. Much will now depend in the flexibility of national governments and parliaments when casting the soon-to-be Directive into national law.
Thursday, March 04, 2004EU Community Patent: Yet another Proposal for a Compromise on the Languages Regime.A furtherDocument 6581/04 has been changed from "LIMITE" to "PUBLIC". Conveying another political proposal for a compromise on the languages regime concerning the EU Community patent and dedicated to the preparation of the Competitiveness Council on March 11, 2004, it had been issued on February 23, 2004 by the Irish Presidency, originally directed to discussion in the COREPER session on February 25, 2004. Changes in relation to an earlier Document 15086/03 are indicated in the text.
CED on the special Problem of Digital Intellectual Property.TheCommittee for Economic Development (CED) has published a report under the title "Promoting Innovation and Economic Growth: The special Problem of Digital Intellectual Property".
Mr. Alexander von Mühlendahl OHIM Vice-President until October 31, 2005.The term of office of Mr Alexander von Mühlendahl as Vice-President of theOffice for Harmonisation in the Internal Market (OHIM) has been renewed for the period from 1 September 2004 to October 31, 2005.
Wednesday, March 03, 2004Patents as a Currency in the external Technology Market.For those readers of my blog who are able to read texts in German I would like to give an indication of astudy published in December 2003 by members of the Fraunhofer Institut für Systemtechnik und Innovationsforschung under the title "Erfindungen kontra Patente - Schwerpunktstudie zur technologischen Leistungsfähigkeit Deutschlands". According to the English executive summary given therein, the starting point of the analysis is the apparent discrepancy between the rather modest increase in R&D expenditure of German industry and the doubling of the German patent applications in the 1990s. The objective was threefold: First, on the basis of a patent database analysis the study sought to analyse in depth the structure of the German industrial patentees and their patenting behaviour. Second, the study tried to reveal the driving forces for the increase in patenting in the 1990s. Accepting that some efficiency gains in corporate R&D have contributed to a growth in patenting, the major hypothesis was that the motives to file for a patent application have broadened and shifted in meaning. A third purpose of the investigation was to determine the consequences such a potential shift might have for the usage of patents as an indicator for R&D activities and technological performance.
Again according to the executive summary, the key finding of the analysis is that for the very large firms which determine the changes in the patent numbers, there is no connection between increase in the R&D expenditure and rise in patent applications; simultaneously by comparison with the sample as a whole for these large companies the motives blocking, internal performance incentive and exchange have gained the most in significance in the last few years. Therefore, as the increase in patent applications cannot so much be traced back to R&D increases, it is rather determined by the fact that the large applicants for patents have been using patents in the technology competition in a targeted manner (blocking) and understand them as currency in the external technology market as well as an indicator in internal R&D management. The main result, therefore, is that patenting has become a multi motive game the dynamic of which is essentially the result of a patent race of the large enterprises.
Monday, March 01, 2004Report on 95th meeting of the Administrative Council of the European Patent Organisation (2 to 4 December 2003).TheReport on the 95th meeting of the Administrative Council of the European Patent Organisation (2 to 4 December 2003) has been published on-line as part of the content of the OJ issue 02/2004.
EPO to open "Virtual Classroom".TheEPO has announced a first Internet-based training event concerning esp@cenet using the medium of the virtual classroom. Without leaving the office, participants can sit at their own computer and follow the lesson guided by online expert tutors.
Alan Greenspan on IP.Remarks by Chairman Alan Greenspan at the Stanford Institute for Economic Policy Research Economic Summit, Stanford, California February 27, 2004 on Intellectual Property:
[...] If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system--developed for a world in which physical assets predominated--for an economy in which value increasingly is embodied in ideas rather than tangible capital? The importance of such questions is perhaps most readily appreciated here in Silicon Valley. Rationalizing the differences between intellectual property rights as defined and enforced in the United States and those of our trading partners has emerged as a seminal issue in our trade negotiations. Reuters has a report on that speech which is available here.
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"I am disappointed that more than two years after the deadline set by the Lisbon European Council, and a whole year after the Council agreed the main principles, today's Council has still proved incapable of agreeing this crucially important initiative. European industry desperately needs access to pan-European patent protection at reasonable cost with minimum red-tape and maximum legal certainty.
"2570th Council meeting
