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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Monday, April 26, 2004EU Directive on the Patentability of computer-implemented Inventions - another Proposal for a political Agreement.It looks as if there is another proposal for a political agreement concerning the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions . This Document 8731/04 is, however, currently classified as "LIMITE". It is created by the Irish Presidency and directed to COREPER, perhaps for the session on April 28, 2004.
Tuesday, April 20, 2004EBA of EPO on Disclaimers.The Enlarged Board of Appeal (EBA) of theEuropean Patent Office (EPO) has taken a Decision in the case G 0001/03 concerning the allowability of disclaimers:"Headnote:See also related case G 0002/03.
Saturday, April 17, 2004Serious Discontent of major U.S. IT Industry concerning current US-PTO practise.Susan Kuchinskas writes in an article:BERKELEY, CALIF. --- Executives of a group of top-tier technology companies plan to roll up their sleeves to help solve problems at the U.S. Patent Office.A major proposal issued in this context is the introduction of a post-grant Opposition procedure which is already common troughout Europe. So, although the anti-patent movement surely will attempt to benefit from these debates, that what those activists want surely is not what is demanded by the major U.S. IT industry. (Link thanks to Patently Obvious)
Thursday, April 15, 2004Germany: Injunction to Enforce GPL.There is a freshreport on slashdot saying that the GPL has been enforced for the first time in court in Germany: "Injunction to Enforce GPLA very interesting case, indeed. We shall wait and see if this decision will be upheld by the Munich district court during the main court proceedings.
Wednesday, April 14, 2004Yet another Eurolinux Demo.TheEurolinux coalition has once more organised an anti-patent rally in Brussels. Fresh photos are available here.
Patent Philosophy.In hisBlog Karl-Friedrich Lenz, Law Professor at the Aoyama Gakuin University in Tokyo, has provided some commentary on various postings on my own blog which you are currently reading. In an article Dr. Lenz quotes from my  FAQ on patents:"Q5: What is the most important purpose of the patent system today?Dr. Lenz then argues: "He then goes on to dismiss our side of the debate as a bunch of communists [...]"This is definitively not true. In fact, in my FAQ I wrote: "Patents are closely related to the concept of a "market" which in turn makes sense only within capitalistic economic structures. Therefore, lobbying against modern global capitalism can also be camouflaged as a battle for the rights of programmers against the patent system. So far it would perhaps not to be deemed frivolous to say that the contemporary anti-patent movement also has some aspects directing to a more general critics of global capitalism. [...]"The concept of "communist" used by Dr. Lenz intrinsicly involves a specfic role of the state, see e.g. Vladimir Lenin:"From the moment all members of society, or at least the vast majority, have learned to administer the state themselves, have taken this work into their own hands, have organized control over the insignificant capitalist minority, over the gentry who wish to preserve their capitalist habits and over the workers who have been thoroughly corrupted by capitalism — from this moment the need for government of any kind begins to disappear altogether. The more complete the democracy, the nearer the moment when it becomes unnecessary. The more democratic the "state" which consists of the armed workers, and which is "no longer a state in the proper sense of the word", the more rapidly every form of state begins to wither away.However, as we all know, the state did not "wither away" in the dictatorial communist societies of the twentieth century. And, an essential difference between old-fashioned "communists" of the past century and some radicalised proponents of the "intellectual commons" criticising the globalised capitalism which are behind many aspects of the current patent debate might be that the latter do not center their specific utopia around a particular concept of a state. They want more or less to be left alone from any state interventionism. Hence, I do not believe that there will be any benefits for either side from mongering with concepts like "communist" or "communism" in the current debate on Intellectual Property. In his posting, Dr. Lenz further discusses various other patent theories like the model of a contract of providing a full disclosure of an invention in turn for the grant of a temporary monopoly, or the usefulness of the disclosure of computer-implemented inventions. All these theories can have a potential to shed more or less light on certain aspects of the patenting process. I did not write that patents are exclusively to be seen as instruments to secure fair market values for inventions; I merely discussed that this aspect seems to be of particular importance at present. What I wanted to stress is that patents are (also) a means to a specific end of greatest importance in a globalised capitalistic economy, namely to make sure that the proprietor of the patent can obtain a fair price for the patented invention. Please note that I wrote "invention", not "software". There are at least two different aspects to be discussed on separate threads: Software written down and stored on a suitable data carrier as a fabric of code which is open for monopolisation by means of the Copyright Law, on the one hand, and software running on a matching processor as an embodiment of an invention, the latter open for monopolisation by means of the Patent Law, on the other hand. There is no "double protection" of software by both of Copyright and Patent Law: The subject-matter of these legal instruments are utterly different, namely the particular fabric of code and the abstract invention behind said fabric of code. So, what about the "fairness" of the price obtained by the proprietor of a patent? I only can state in an emotionless mood that the price depends, as ever, on the ratio of supply and demand. Many companies dealing with embedded systems seem not to have any specific problems with patents on computer-implemented inventions; see e.g. the telecommunications industry. Most of the trouble with the patent system seems to be related to open Personal Computers (PCs) and certain server computers mainly for usage in the context of the Internet which can be programmed freely by an end user. It would be wise to concentrate on specific problems in this field instead of attempting to foster an anti-globalisation and anti-capitalistic world revolution by means of destructing the patent system. What should be considered is the introduction of a source code exemption for Free Open Source Software (FOSS) as well as the introduction of collective licensing schemes which are well-known from modern Copyright regimes. For example, if IT standards are covered by a required patent which is open to licensing on the basis of a RAND license, a patent collecting society could be set up in order to manage the roalty payment administration. Of course, RF licensing schemes have many advantages in the context of IT standards; however, I think that it would be naive to assume that RAND licenses can be avoided in total.
Tuesday, April 13, 2004Status of EU-Directive on Measures and Procedures to ensure the Enforcement of Intellectual Property Rights.The General Secretariat of the Council hasinvited COREPER to suggest to the Council, as an A item of one of its forthcoming meetings, to approve the amendments proposed by the European Parliament at first reading and adopt the proposed Directive as amended, the text of which, following scrutiny by the Legal/Linguistic experts, appears in document PE-CONS 3636/04 PI 33 CODEC 354 OC 224, with Austria and Italy abstaining; and to enter into its Minutes the statement contained in the Addendum to this Note:Statement by the Commission:
Thursday, April 08, 2004Technology Transfer Block Exemption (TTBE): EU Commission adopts new safe Harbour for licensing of Patents, Know-how and Software Copyright.On April 07, 2004, the European Commission hasadopted new rules for applying competition policy to the licensing of patents, know-how and software copyright. The rules aim at reducing bureaucracy and increase legal certainty for companies as more licensing agreements will benefit from a regulatory safe harbour, saving many agreements from individual scrutiny. According to thge Commission, they will also effectively contribute to the dissemination of technology and know how within the European Union, in line with the objectives set at the Lisbon Council in 2001. The new policy is part of the fundamental reform of the enforcement rules for antitrust which will come into force on May the 1st.
Wednesday, April 07, 2004Preparation of the Council's Common Position concerning Computer-Implemented Inventions.Concerning the pending Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, there is a newDocument 8253/04 plus an Addendum thereto on the preparation of the Council's common position. Both papers are currently classified "LIMITE".
Tuesday, April 06, 2004New RSS Feed for this Blog.AsBlogMatrix has died away, I have switched over to BlogStreet for the RSS 0.91 feed. Please update your feed URLs in your favourite content aggregators. The Atom feed powered by Blogger remains unchanged. Thanks.
Friday, April 02, 2004EU Community Patent: The Zombie Project that won't die?From thePresidency Conclusions (extract) - European Council Meeting in Brussels
25 and 26 March 2004: "[...] The recent agreement on the Directive on strengthening the enforcement of intellectual property rights is welcome. However, agreement on the Community Patent is now long overdue and the European Council calls for further efforts to complete work on this proposal. [...]"Perhaps they are hoping that the new Spanish Government will be more compliant to agree to a compromise on the language issue.
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