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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, May 26, 2004EU Concil Political Agreement on Patentability of Computer-Implemented Inventions now published.General Secretariat of the Council has published with Document 9713/04 the text on the basis of which the  Council (Competitiveness) on 18 May 2004 reached a political agreement with a view to the adoption of its common position on the above-mentioned proposal.
Friday, May 21, 2004Other Macroeconomic Effects of Patents.There is aninteresting paper authored by Jochen Bigus of Hamburg University - Institute of Law and Economics:"Abstract:(Link thanks to Patently Obvious).
Wednesday, May 19, 2004Patentability of Computer-Implemented Inventions: Views & Comments.There was a very interestingcomment by Lucy Sherriff in The Register:"EU software patents: how the vote was wonSo, the various reports were indeed true saying that the German Government had intended to support some of the interests of the clientele of the FFII. Not quite surprisingly, the EU Commission welcomed the Council agreement on Directive on computer-implemented inventions:"[...] The European Commission has welcomed the Competitiveness Council's political agreement on a 'common position' on the proposed Directive on computer-implemented inventions. The proposed Directive aims to boost innovation by ensuring that those who invest in developing genuinely new products that depend on computer implemented technology can, like those who develop other products, get a fair reward. It would achieve this without sealing off the software market to new initiatives and new inventions. The Commission supports the text adopted by Council, which it believes restores the overall balance between the interests of the rights holders and other parties (competitors and consumers) struck by the original Commission proposal presented in February 2002 (see IP/02/277, MEMO/02/32). However, there are still differences between the positions of the Council and European Parliament and, under the procedure known as 'co-decision', both institutions must agree before the measure can become EU law. Once the Council has formally adopted the 'common position' without discussion at a forthcoming meeting, the text will be transmitted to the Parliament to begin its second reading after it has reconvened in September following the June 2004 elections.We'll wait and see in order to watch the coming moves of all the stakeholders in view of the position of the European Parliament ...
Tuesday, May 18, 2004EU Council has voted on Patent Matters. The dice is cast. The EU Competitiveness Council today has reached a compromise on the criteria for the patentability of computer-implemented inventions and has also once more failed to agree on the EU Community Patent. From Document 9081/04 (Presse 140): "[...]The Council reached political agreement by qualified majority with the Austrian, Italian and Belgian delegations abstaining and Spain voting against, on a common position concerning the proposal for a Directive on the patentability of computer-implemented inventions. Once this text has been formally adopted by the Council, it will be submitted to the European Parliament for second reading. The agreed text concerns:From BBC on-line in view of the failure of the talks on the EU Community Patent:"EU patent plan hits the buffersSo, I'm not really unhappy about this because of the pending proposal was insufficient. In particular, some mediterranien EU Member Sates were not prepared to abandon the requirement of providing a translation of the full set of claims into their respective national languages. Hence, it is a bit unclear to me whether or not the heads of Governments of the EU Member States will deal with the EU Community Matter on their next summit. Anyway, it is a real achievement that the anti-patent activists from FFII e.V. did not win this time. However, the second reading in the European Parliament is to be scheduled after the European general elections probably in autumn or winter later this year, and it is to be expected that the then new-elected MEPs will face the heaviest lobbying from the FFII they have ever seen.
Friday, May 14, 2004EU Competitiveness Council, Brussels, 17-18 May 2004.RAPID indicates with MEMO/04/114: "[...] Proposal for a Directive on the Patentability of Computer Implemented Inventions (JT)Concerning the proposal for a Directive on the patentability of computer implemented inventions, it is quite unclear to me how this corresponds to recent indications made by Mr. Hucko on behalf of the German Government.
Thursday, May 13, 2004U-Turn in the German Position on Patentability of Computer-Implemented Inventions?There is areport [in German, sorry] saying that yesterday Mr. Hucko, a senior Official in the German Federal Ministry of Justice, has publicly indicated a U-turn of the policy of the German Government with regard to the patentability of computer-implemented inventions. According to this report, Germany would, contrary to the COREPER agreement, vote in the next session of the Competitiveness Council to be held on coming Monday May 17, 2004 against the pending proposal of the Irish EU Presidency. I currently do not have any confirmation of the report.
[Update:] FFII e.V. provide a comment as follows - "Warning: what the German justice ministry promised and what not
Friday, May 07, 2004EPO: No Right to claim Priority on the Basis of WTO/TRIPS Membership alone.The Enlarged Board of Appeal (EBE) has written in aDecision dated April 26, 2004 on cases G 0002/02 and G 0003/02:"The TRIPs Agreement does not entitle the applicant for a European patent application to claim priority from a first filing in a State which was not at the relevant dates a member of the Paris Convention but was a member of the WTO/TRIPs Agreement."The EBE argues that the European Patent Organisation as an international organisation having an internal legal system of its own, the EPC. The boards of appeal of the EPO have the task of ensuring compliance with the autonomous legal system established by the EPC and are bound by the provisions of the EPC alone (Article 23(3) EPC). In this task, however, the boards also refer to legal sources outside the EPC, including, for example, the VCLT 1969 and the TRIPs Agreement. Thus, while the boards of appeal may be guided in their decisions by the provisions of other international instruments, they have no obligation to apply them directly.
Monday, May 03, 2004SPLT / Patent Law Harmonization.Nipper's Patent Law Blog pointed me to a very interesting paper: The JP-PTO, the AIPLA, the JIPA (Japan Intelletual Property Association) and the UNICE (European industry group) have issued a joint resolution recommending reducing patent law harmonization issues to: (1) a first-to-file system of priority, (2) an international grace period, (3) a definition of prior art having no geographic limitations, and (4) a definition of how and when pending, published patent applications are to be used as prior art. The chances for all further ambitions of harmonisation of the substantive patent law seem to be dim.
Legal Basis for .eu TLD has been published.TheCommission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration has been published.
Sunday, May 02, 2004The Accession of Ten new EU Members is accomplished. And Now?So, the first day of May 2004 has passed and theaccession of ten new EU Member States is accomplished. Surely there will be a lot of impact on business in general as well as on Intellectual Property Law in particular. In this context and for obtaining further insights into the prospects of business in Europe, I can recommend a very illuminative video clip on Building a Europe for Business which can be viewed via the web site of the World Economic Forum held in Warsaw on April 30, 2004. (Link thanks to Juian Bond and to the Blog of Loic Le Meur)
Saturday, May 01, 2004OHIM in Trouble: Are six Minutes of Examination Time enough for each CTM Application?According to areport by IPKat, the entire OHIM Staff Committee has resigned on April 26, 2004. The former Staff Committee has issued a press release, blaming its decision on the failure of OHIM management to consult with the Committee, particularly on employment policy. The Committee has also voiced its concern at what it sees as a decline in the quality of granted Community trade marks (CTMs). According to the IPKat Blog, the main accusation is that OHIM is putting time targets before quality. In 2004, the target for examining each trade mark was cut from 11 minutes to just six minutes. In such a short period of time, errors are common. They claim that “The actual, legal quality of our work, the legal value of our product simply does not matter anymore.” Guidelines are not being updated and there is no harmonised practice in OHIM between the different services and the different Boards of Appeal. Moreover, staff are being forced to carry out tasks they were not hired or trained to do and the resultant decisions are unsatisfactory. Additionally, quality control is unsatisfactory and difficult files are being left aside in favour of easier files which are quicker to deal with. As a result, reports IPKat, according to the Staff Committee marks are not being properly examined, leaving them more vulnerable to cancellation.
If these reports should indeed turn out to be based on true facts, then it seems to be high time that the involved circles of the public step in into a more critical debate over the current practise at the OHIM. By launching appropriate reforms, it must be avoided that in addition to the quarrels over the quality of the patent examination procedures done by the various Patent Offices also another line of obvious weakness concerning the quality of the trade mark examination procedures comes up. See also my earlier posting.
ECJ on compulsory Copyright Licenses.On April 29, 2004 theEuropean Court of Justice (ECJ) has published a landmark decision in the case C-418/01 concerning compulsory copyright licenses.
By a first question, the Regional Court of Frankfurt/Main had asked, essentially, whether the refusal to grant a licence to use a brick structure for the presentation of regional sales data by an undertaking in a dominant position which owns the copyright to another undertaking which also wishes to provide such data in the same Member State, but which, because potential users are unfavourable to it, cannot develop an alternative brick structure for the presentation of the data that it proposes to offer, constitutes an abuse of a dominant position within the meaning of Article 82 EC. By a second question, the Frankfurt Regional Court questions the effect that the degree of participation by users may have on the development of a brick structure, protected by copyright and owned by a dominant undertaking, on the determination of whether the refusal by that undertaking to grant a licence to use that structure, is abusive. By its third question, the national court is uncertain, in the same context and for the purposes of the same assessment, as to the effect of the outlay, particularly in terms of cost, that potential users have to provide in order to be able to purchase market studies presented on the basis of a structure other than that protected by copyright. Now, the ECJ has determined that: "[...] For the purposes of examining whether the refusal by an undertaking in a dominant position to grant a licence for a brick structure protected by copyright which it owns is abusive, the degree of participation by users in the development of that structure and the outlay, particularly in terms of cost, on the part of potential users in order to purchase studies on regional sales of pharmaceutical products presented on the basis of an alternative structure are factors which must be taken into consideration in order to determine whether the protected structure is indispensable to the marketing of studies of that kind.In particular, the very last statement sounds somewhat strange: "[An abuse of a dominant position is given only if] the refusal is such as to reserve to the copyright owner the market for the supply of data on sales of pharmaceutical products in the Member State concerned by eliminating all competition on that market." "All competition on that market"? What can this phrase mean? Can, under such case law, compulsory licensing as a potential countermeasure against the abuse of a dominant position ever be enforced? How should this "elimination of all competition" ever be measured reliably? Of course, it should be kept in mind that this case will most likely be exploited by companies like Microsoft. And, perhaps the gist thereof might one day even be applied by the courts in patent cases. Will the practical impact of the EU competition law diminish so far? [UPDATE: See e.g. Reuters via News.Com: "An intellectual property case at the EU's highest court on Thursday sparked a fresh clash between Microsoft and the European Commission over whether the ruling would strengthen the EU executive's case. [...]"]
New Commission Regulation (EC) No 772/2004 of 27 April 2004 on Technology Transfer Agreements.A newCommission Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements has entered into force today. The core provision of the new Regulation says in Article 2 thereof: "ExemptionIn the Articles 3 to 7of the new Regulation, a number of exceptions from the general rule given with Article 2 is defined, concerning e.g. market-share thresholds, certain hardcore restrictions like the restriction of a party's ability to determine its prices when selling products to third parties or the limitation of output, except limitations on the output of contract products imposed on the licensee in a non-reciprocal agreement or imposed on only one of the licensees in a reciprocal agreement, and certain excluded restricting clauses as any direct or indirect obligation on the licensee to grant an exclusive licence to the licensor or to a third party designated by the licensor in respect of its own severable improvements to or its own new applications of the licensed technology, any direct or indirect obligation on the licensee to assign, in whole or in part, to the licensor or to a third party designated by the licensor, rights to its own severable improvements to or its own new applications of the licensed technology and any direct or indirect obligation on the licensee not to challenge the validity of intellectual property rights which the licensor holds in the common market, without prejudice to the possibility of providing for termination of the technology transfer agreement in the event that the licensee challenges the validity of one or more of the licensed intellectual property rights. The Commission may withdraw the benefit of this Regulation on a case-by-case basis where it finds in any particular case that a technology transfer agreement to which the exemption provided for in Article 2 applies nevertheless has effects which are incompatible with Article 81(3) of the Treaty. However, there is no longer any provision comparable with that of Article 4 of the former and now expired Regulation 240/96 according to which the exemption provided could also apply to agreements containing obligations restrictive of competition which are not covered by the exemption Articles on condition that the agreements in question are notified to the Commission and that the Commission does not oppose such exemption within a period of four months.
There is a transitional period for certain prior agreements; the prohibition laid down in Article 81(1) of the Treaty shall not apply during the period from 1 May 2004 to 31 March 2006 in respect of agreements already in force on 30 April 2004 which do not satisfy the conditions for exemption provided for in this Regulation but which, on 30 April 2004, satisfied the conditions for exemption provided for in Regulation (EC) No 240/96.
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