CONTENT SYNDICATION
*ATOM* FEED:

CONTENT SYNDICATION
RSS 0.91 FEED:

BLOGROLL OPML:

Search in IPJUR.COM

BLOG@IP::JUR

Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

Disclaimer & About This Website

Visit the archives

Wednesday, June 30, 2004

Danish IP Registers can be searched on-line

The Danish IP registers can be searched on-line:

[Permalink]

(0) comments

UK-DTI Innovation Report published.

From the

web site of the UK-PTO:

"In its role of encouraging successful businesses, the Department of Trade and Industry (DTI) has published a report, 'Competing in the Global Economy: The Innovation Challenge', which explores what innovation is, how it works and what can be done to help spread innovative best practice across the UK.

As part of the DTI, we at the Patent Office were asked to identify what role, if any, intellectual property rights (IPRs) play in supporting innovation. To help us do this, we contacted numerous stakeholders and also placed a list of questions on our website, asking for views on the way intellectual property (IP) helps or hinders innovation, and what could be done to improve things and by whom. The feedback we received confirmed our previous views that whilst IP plays an important role in supporting innovation, there are several issues that need to be addressed. They are:
A lack of awareness of IP;
The difficulties, especially the cost, of enforcing IPRs for individual companies, particularly SMEs;
The difficulties created by high and probably rising levels of IP crime.
As a result of these findings, which are discussed more fully in Chapter 4 of the Innovation Report, we will be working with our stakeholders to build on and take forward initiatives to:
Improve IPR awareness, by:
Targeting SMEs to ensure they can use the IP system effectively. We will build on the success of current initiatives such as HM Customs and Excise-led Business Advice Open Days and provide training in IP to business advisers;

Improving the available evidence-base on IP use and awareness as well as develop appropriate metrics to monitor and assess progress;
Targeting 'innovators of the future' such as business studies, design and technology students and young entrepreneurs to raise awareness of IP. The first element is a revised version of the successful 'THINK Kit';
Improve confidence in protection, by:
Improving the speed and costs of resolving IP disputes, by improving litigation and dispute resolution procedures (e.g. extending he jurisdiction of the Patents County Court as a lower cost alternative to the High Court, and bringing forward proposals in the Patents Bill;
Conducting a feasibility study of new institutional arrangements to help SMEs protect their IPRs;
Step up efforts in the area of IP crime by developing, in conjunction with rights holders and enforcement bodies, a new national strategy for dealing with IP crime, which will involve improving the evidence base, removing administrative overlap, and setting out agreed priorities."

[Permalink]

(0) comments

UK Study: "Patents for Genetic Sequences: the Competitiveness of Current Law and Practice"

In response to the House of Lords Select Committee

report on Human Genetic Databases, the UK Government made a commitment to carry out an investigation into the impact of current UK law and practice regarding patents for genetic sequences. The

Intellectual Property Institute, on behalf of the DTI, has now completed

this study.

The main findings of the study show that current UK law and practice regarding patents for genetic sequences is generally meeting the needs of those currently active in this research area. This study indicates that this is true for both public and private sectors.

[Permalink]

(0) comments

Creation of a Patent Academy by the European Patent Organisation

From a

press statement of the European Patent Office:

"30.06.2004 - 15:18 Uhr, Europäisches Patentamt Pressemappe [Pressemappe]

Munich, Germany (ots) - With a view to fostering the development and harmonisation of patent-related intellectual property law and practice within its member states, the European Patent Organisation has adopted regulations setting up a European Patent Academy. The new institution will be managed by the European Patent Office (EPO) and will have its seat in Munich. In close co-operation with national, European and international institutions and organisations its main task will be to develop a Europe-wide training and education scheme for the benefit of the European patent system. The Academy is expected to commence functioning in the course of 2005. The creation of the European Patent Academy reflects the need to improve intellectual property-related training and education structures in Europe. In most leading industrialised and industrialising countries, the growing relevance of intellectual property (IP) for the knowledge-driven economy has prompted the development of new strategies for IP management. A core element of these strategies is the effective education and training of IP professionals and system users. Specialised IP training centres have been established in a number of regions and countries, such as ASEAN, Japan, Korea, China and the United States. "Europe is in danger of lagging behind these developments and of losing its historically strong IP culture by resting on its laurels", says the outgoing President of the EPO, Ingo Kober. The European Patent Academy will address training and education needs by offering its activities to specific target audiences grouped in five areas. It will promote and support the preparation of candidates for the European Qualification Examination to become a European patent attorney, as well as offer vocational training for professional representatives. The Academy will support initiatives aimed at harmonising patent litigation and enforcement in Europe and increasing awareness by encouraging patent-related IP training at universities. Education and training projects designed for industry and patent system users in the areas of IP creation and management will also offered in its programme, as well as training for civil servants and representatives of national IP offices of the Organisation's member states. Applying the principles of complementarity and subsidiarity, the European Patent Academy will design and implement its activities in close co-operation with national, European and international institutions and organisations. Training will take place where an actual need has been identified. With a Europe-wide training and education scheme, the Academy will create synergies amongst all stakeholders of the European patent system. [...]"

[Permalink]

(0) comments

Sunday, June 27, 2004

LinuxTag Panel on 'Software Patents' and some further Thoughts.

Recently I had been invited to join a

panel discussion on 'software patents' at the

LinuxTag 2004 held on Friday June 25, 2004, in Karlsruhe. The members of the panel had been picked by

Mr. Florian v. Samson, and it seems that I wasn't his first choice - he liked to have some heavyweights from the political stage like

Jörg Tauss or prominent representatives from the industry. But those candidates did prefer not to appear - for whatever reasons. So Mr. v. Samson had to accept a plain Patent Attorney willing to play the role of the 'advocatus diaboli' defending the patent system in front of the audience in the big hall of the Karlsruhe congress venue in the context of the LinuxTag celebrating the High Mass of the German Linux scene. Anyway, if I can trust some rumours, there had been a controversial dispute well before the event between the board of the organisers of the LinuxTag and some fundamentalistic evangelists from the

FFII anti-patent movement, the latter perhaps having preferred a more monolithic panel.

Eventually, the list of my co-panellists had been set as follows:

Mr. Oliver Lorenz, Magix AG, Berlin
Mr. Klaus-J. Melullis, Chairman of the 10th Circuit (Patents), Federal Supreme Court (Bundesgerichtshof, BGH)
Mr. Harald H. Schäfers, Kanzlei Schäfers, Saarbrücken
Mr. Reinier Bakels, CIER (Uni Utrecht), Netherlands

An introduction into the field of patent law was given by

Oliver Zendel, Chairman of the LinuxTag e.V. This presentation aimed to provide a leading-in into the subject-matter of relevance but, to be honest, it was somewhat less than optimal in terms of precision and mastery of the concepts to be presented. My impression was that Mr. Zendel had read some literature concerning patent law just before the event in order to prepare his presentation. His conclusion was that no much benefits are to be expected for the general public from the so-called 'software patents' but merely patent profesionals plus big businesses could gain more profits.

All panellists but me argued basically in a dismissive tone about the conditions and effects of the patentability of computer-implemented inventions. It came to me somewhat as a surprise when even Mr. Melullis openly expressed his dissatisfaction with the current state of the legal affairs in the field of the patentability of computer-implemented inventions. He seems to think that the lawmakers don't really know what they are doing and obviously he would welcome a much more restrictive practice of granting such patents. Mr. Lorenz and Mr. Schäfers complained over alleged detrimental effects of patents on computer-implemented inventions in a more or less unisono fashion. Mr. Bakels in his capacity as a representative of Academia tried to to pour some oil on the troubled water. So it was mostly my job to explain the patent system as it stands to the audince what was, of course, not a trivial job.

There was a lively but disciplined general discussion involving members of the audience after the panellists had given their views in a first round.

For me the summary on the bottom line seems to be that the discussion was mostly centered around problems concerning individuals and smaller companies creating or selling free or proprietary software for PCs and/or Internet-related servers. I mentioned manufacturers of embedded systems e.g. in the elevator, automotive and telecommunications industries but nobody seemed to have the different needs of these brances firmly in view.

My view is that some of the problems as discussed on the panel as well as in the audience can be dealt with best not by restrictive amendments to the material criteria governing the patenability of inventions but by carefully adjusting the effects of granted patents in view of potential infringing constellations involving software running on a matching processor.

After the event I spotted on the web a very interesting article

'The Open Source Paradigm Shift' authored by Tim O'Reilly. He writes:

"[...] My premise is that free and open source developers are in much the same position today that IBM was in 1981 when it changed the rules of the computer industry, but failed to understand the consequences of the change, allowing others to reap the benefits. Most existing proprietary software vendors are no better off, playing by the old rules while the new rules are reshaping the industry around them. [...] If open source pioneers are to benefit from the revolution we've unleashed, we must look through the foreground elements of the free and open source movements, and understand more deeply both the causes and consequences of the revolution. [...] I find it useful to see open source as an expression of three deep, long-term trends:
The commoditization of software
Network-enabled collaboration
Software customizability (software as a service)
[...]"

Contrary to evangelists like Mr. Stallman or Mr. Moglen, Mr. O'Reilly is not an anti-capitalistic activist arguing that 'Open Source' means that the entire value chain should under any circumstances be free from proprietary products or services:

"[...] And so I prefer to take the view of Clayton Christensen, the author of The Innovator's Dilemma and The Innovator's Solution. In a recent article in Harvard Business Review, he articulates "the law of conservation of attractive profits" as follows:
When attractive profits disappear at one stage in the value chain because a product becomes modular and commoditized, the opportunity to earn attractive profits with proprietary products will usually emerge at an adjacent stage.
We see Christensen's thesis clearly at work in the paradigm shifts I'm discussing here.[4] Just as IBM's commoditization of the basic design of the personal computer led to opportunities for attractive profits "up the stack" in software, new fortunes are being made up the stack from the commodity open source software that underlies the Internet, in a new class of proprietary applications that I have elsewhere referred to as "infoware".

Sites such as Google, Amazon, and salesforce.com provide the most serious challenge to the traditional understanding of free and open source software. Here are applications built on top of Linux, but they are fiercely proprietary. What's more, even when using and modifying software distributed under the most restrictive of free software licenses, the GPL, these sites are not constrained by any of its provisions, all of which are conditioned on the old paradigm. The GPL's protections are triggered by the act of software distribution, yet web-based application vendors never distribute any software: it is simply performed on the Internet's global stage, delivered as a service rather than as a packaged software application. [...] And the opportunities are not merely up the stack. There are huge proprietary opportunities hidden inside the system. Christensen notes: Attractive profits . . . move elsewhere in the value chain, often to subsystems from which the modular product is assembled. This is because it is improvements in the subsystems, rather than the modular product's architecture, that drives the assembler's ability to move upmarket towards more attractive profit margins. Hence, the subsystems become decommoditized and attractively profitable.
We saw this pattern in the PC market with most PCs now bearing the brand "Intel Inside"; the Internet could just as easily be branded "Cisco Inside".
But these "Intel Inside" business opportunities are not always obvious, nor are they necessarily in proprietary hardware or software. The open source BIND (Berkeley Internet Name Daemon) package used to run the Domain Name System (DNS) provides an important demonstration. [...]".

The key for understanding what really is happening lies according to O'Reilly in a deeper understanding of a network-enabled collaboration:

"[...] To understand the nature of competitive advantage in the new paradigm, we should look not to Linux, but to the Internet, which has already shown signs of how the open source story will play out. [...]"

Finally, O'Reilly concludes:

"[...] The values of the free and open source community are an important part of its paradigm. Just as the Copernican revolution was part of a broader social revolution that turned society away from hierarchy and received knowledge, and instead sparked a spirit of inquiry and knowledge sharing, open source is part of a communications revolution designed to maximize the free sharing of ideas expressed in code.

But free software advocates go too far when they eschew any limits on sharing, and define the movement by adherence to a restrictive set of software licensing practices. The open source movement has made a concerted effort to be more inclusive. Eric Raymond describes The Open Source Definition as a "provocation to thought", a "social contract . . . and an invitation to join the network of those who adhere to it." But even though the open source movement is much more business friendly and supports the right of developers to choose non-free licenses, it still uses the presence of software licenses that enforce sharing as its litmus test.

The lessons of previous paradigm shifts show us a more subtle and powerful story than one that merely pits a gift culture against a monetary culture, and a community of sharers versus those who choose not to participate. Instead, we see a dynamic migration of value, in which things that were once kept for private advantage are now shared freely, and things that were once thought incidental become the locus of enormous value. It's easy for free and open source advocates to see this dynamic as a fall from grace, a hoarding of value that should be shared with all. But a historical view tells us that the commoditization of older technologies and the crystallization of value in new technologies is part of a process that advances the industry and creates more value for all. What is essential is to find a balance, in which we as an industry create more value than we capture as individual participants, enriching the commons that allows for further development by others.[...] In short, if it is sufficiently robust an innovation to qualify as a new paradigm, the open source story is far from over, and its lessons far from completely understood. Rather than thinking of open source only as a set of software licenses and associated software development practices, we do better to think of it as a field of scientific and economic inquiry, one with many historical precedents, and part of a broader social and economic story. We must understand the impact of such factors as standards and their effect on commoditization, system architecture and network effects, and the development practices associated with software as a service. We must study these factors when they appear in proprietary software as well as when they appear in traditional open source projects. We must understand the ways in which the means by which software is deployed changes the way in which it is created and used. We must also see how the same principles that led to early source code sharing may impact other fields of collaborative activity. Only when we stop measuring open source by what activities are excluded from the definition, and begin to study its fellow travelers on the road to the future, will we understand its true impact and be fully prepared to embrace the new paradigm."

What might this mean with regard to the Patent Law? If Mr. O'Reilly is right with his analysis then

The so-called 'new paradigm' is not necessarily bound to be killed by Patent Law if in particular the networking effects so dramatically facilitated by modern IT can be safeguarded by open standards unencumbered by patents.
The Patent Law can survive as a useful regulatory tool provided it is amended in a sensitive manner to be adapted in accordance with the changes in the industrial landscape.

In particular, I therefore think that:

The ongoing discussion about imposing restrictions to the material law governing the limits of patentable subject-matter will not solve any IT-related problems because of modest amendments will not satisfy the needs of open collaborative problem-solving efforts ('networked' efforts) but a radical cut-back of the patent system banning all patents on signal processing devices and methods (which would please Mr. Stallman by effectively eliminating also patents on computer-implementable inventions) would leave big industries (like automotive and telecommunications industries) in huge market areas without any patent protection which they essentially need in order to stay in business on an international scale.

The Patent Law should be amended in order to make clear that any communication of computer software code in source code form is exempt from the scope of protection of any patent claims. This is to make sure that CVS repositories and the like on-line on the Internet cannot be closed on demand of patent bearers. The justification of such a measure can be seen in the dual nature of the source code as means for communication of solutions between humans, on the one hand, and as technical means for controlling a computer, on the other hand. Due to the first aspect the source code deserves to be privileged as 'free speech'. This does, of course, not mean that executing source code by interpreters or by running it after compilation and linking is also exempted.

Legal tools should be created to ensure that open interoperability standards can be set up which can provable not be blocked by patents of any third parties. On the one hand, Article 6 of the Commission's Draft Directive does not go far enough by only safeguarding the exemptions already granted by Copyright Law. On the other hand, the amendment proposed in Article 6a of the Draft Directive by the European Parliament is outrageously overbroad and killing implicitly every effect of a patent by exempting any doing "whenever the use of a patented technique is needed for a significant purpose". Which purpose is deemed not to be "significant" by the proponents of this amendment?

Preferably, the most relevant interoperability standards should be avaiable RF. In cases where only RAND availability can be assured, the establishment of Collecting Societies similar to those existing in the field of Copyright Law might be considered.

All players in the field of IT technology wishing to survive on a globalised capitalistic market should think twice before deciding to follow essentially anti-capitalistic activists organised by Attac or similar organisations.

How could such goals be achieved? That's surely far from trivial. Perhaps it will be necessary to think on other tracks than traditionally done. I could, for example, imagine the Patent Law to be amended by introducing a rule allowing major standardising institutions like

DIN,

ISO or

W3C to publish a full technical disclosure for a proposed interoperability standard in some kind of an Official Gazette issued by some competent Authority on EU level. Then, each and every patent holder has an opportunity to oppose against this proposal within a certain term of, say, nine months or so. If a patent holder opposes, the standardising organisation as well as the public will be notified accordingly. An opposition can be absolute (i.e. the patent holder refuses to license the patent at all) or relative (i.e. the patent holder is willing to provide a RAND license only). If a patent holder does not oppose in due time the grant of a RF license will be stipulated by law. Such procedure would not unduly harm the interests of patent holders (they merely have to closely watch the Official Gazette and make up their mind) because of they will not be forced to grant any license. On the other side, if no opposition has been filed, the standards bodies can be sure that the proposed standard is in fact patent free. If oppositions are raised, they can re-think on whether or not drop that proposal. However, as in many other cases, the problems are in the gory details. For example, it will not be easy to deal with unexamined or even unpublished patent applications. Furthermore, the proposed procedure might not scale very well. If thousands or even tens of thousands of proposals would be published per year, the burden for the patent owners would be clearly inacceptable. On the other hand, patent owners must be hindered to simply block any standard without even looking at the details by simply filing objections on the basis of each and every patent available in their patent portfolio. If the total number of published proposals per year is sufficiently low this might be achived by requiring a modest Official fee or by imposing a duty to substantiate the Opposition.

[Permalink]

(0) comments

Wednesday, June 23, 2004

The 2003 Annual Report of the European Patent Office has been published.

The

2003 Annual Report of the European Patent Office has been published.

[Permalink]

(0) comments

The 2003 Annual Report of the German Patent and Trade Mark Office has been published.

The

2003 Annual Report of the German Patent and Trade Mark Office has been published.

[Permalink]

(0) comments

Friday, June 18, 2004

OHIM - Madrid Link to start on October 01, 2004?

Communication No 7/04 of the President of the OHIM of 28 May 2004:

"1. On 27 October 2003, the Council has adopted - a Council Decision approving the accession of the European Community to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, and - a Council Regulation modifying Council Regulation (EC) No 40/94 on the Community trade mark to give effect to the accession of the European Community to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks adopted at Madrid on 27 June 1989. (cf. Communication No 8/03 of the President of the Office of 18.11.2003, OJ OHIM 1/2004)

2. On 26 April 2004, the Commission has adopted - Commission Regulation (EC) No 782/2004 amending Regulation (EC) No 2868/95 (the Implementing Regulation), and - Commission Regulation (EC) No 781/2004 amending Regulation (EC) No 2869/95 (the Fees Regulation). Both Regulations are published in OJ EC No L 123 of 27.4.2004. They are republished in the same issue of the Official Journal of the Office as this Communication.

3. This paves the way for the deposit of the instrument of accession of the European Community to the Madrid Protocol, in such a manner that the accession of the European Community should become effective on the

1st of October 2004.
As from that date international applications may be filed with the Office, and the Regulations mentioned above will enter into force. It has to be stressed that the legally binding date will be the date which will be notified by the Director-General of WIPO. The Office will inform the public again once the legally binding date will be known.

4. [...]"

This means that (probably) starting with October 01, 2004, an EU Community Trade Mark can be taken as a basis for an International Registration under the

Madrid System. Moreover, the OHIM will then be available as a designation for an International Registration. The future will show hoew attractive the OHIM - Madrid link is in terms of costs and conditions.

[Permalink]

(0) comments

Munich Linux Project is on Track.

Jo Best

writes in News.Com:

"Munich, the city whose switch to Linux was seen as so significant it attracted a personal visit from Microsoft CEO Steve Ballmer, has announced that its yearlong trial is a success and that it will stick with open source for its PCs.

The change will officially take place on July 1, and 14,000 desktops will permanently migrate to the open-source platform. The pilot was run using Novell's SuSE Linux and IBM products. But the eventual contract - which could be worth tens of millions of euros - will be put out to tender.

The city's move to Linux is the biggest migration ever from proprietary software to open source, and it will call for municipal PCs and notebooks to move from Microsoft Office to OpenOffice and to use the Mozilla browser. City officials voted last year to make the change. [...]"

The current dispute over patents on computer-implemented inventions should not misguide anybody within the IP Community, including but not limited to patent professionals, to ponder any options to win that battle by relying on any assumptions hypothesiseing the decline of Linux - that brand of FOSS is well alive and will stay here for any forseeable future.

[Permalink]

(0) comments

Monday, June 14, 2004

German F.D.P. fishing for Compliments amongst Anti-Patent Activists.

The German

Free Democratic Party (F.D.P.) has started a somewhat odd initiative to launch a

draft resolution [in German only, sorry] on the question of patentability of computer-implemented invention in the lower House of the German Parliament (Bundestag).

So, what's odd with this draft resolution?

On May 27, 2004, a number of MPs belonging to the

parliamentary group of the F.D.P. in the Lower House of Parliament suddenly discovered that the political

agreement as reached in the session of the EU Competitiveness Council on May 18, 2004 was wrong. The draft resolution now demands the German Government to withdraw her support for this political compromise given on that session. Has the German Government ever post festum withdrawn her approval concerning any EU compromise reached on the level of ministers? Doing so surely would evoke a major political crisis of the EU.

The more odd, however, is the statement of grounds given in the F.D.P. draft resolution: "According to Article 10 of the

'Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)' software shall be protected according to the rules of copyright law. [...] A protection of ideas by patent law is hardly compatible with the protection of the manifestation as granted by copyright law."

This is, frankly speaking, rubbish. Article 10 paragraph 1 of TRIPS reads:

Article 10
Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

2. [...]

And, Article 9 paragraph 2 of TRIPS reads:

Article 9
Relation to the Berne Convention
1. [...]

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Finally, I'll give a quotation of Article 1 paragraph 1 of TRIPS:

Article 1
Nature and Scope of Obligations
1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

2. [...]

With other words: Article 10 just makes sure that in any case the expression of the fabric of software code must be protected by copyright law. It does not say that software is to be protected solely by copyright law. Article 1 clarifies that - amongst other provisions - Article 10 codifies a minimum standard of protection for software. According to Article 9, the copyright protection is limited to expressions only, not to the underlying to ideas, procedures, methods of operation or mathematical concepts as such.

The expert jargons of copyright law and patent law are quite different. Some aspects of that what a copyright expert would call an "idea" in the sense of Article 9 would be seen as an "invention" by a patent law expert. No provision in TRIPS or elsewhere hinders the contracting states in providing at the same time both copyright protection with regard to the expression of the fabric of software code as well as patent protection for some novel, non-obvious and technical aspects of the ideas underlying the said expression and becoming effective whenever the software is run on an appropriate processor.

So why all that fuss installed by members of the parliamentary group of the F.D.P. in the German Bundestag?

If they really had the intention to turn away the option for allowing patents on computer-implemented inventions, why did they not launch a corresponding campaign well before May 18, 2004? And why did they afford such addlepated statement of grounds for their sudden turn? To be honest, I don't know.

I would, however, not be very surprised if all that has been a hard-nosed political plot put on stage to happen just after the Brussels decision on May 18 but well ahead of the elections for the next European Parliament which took place in Germany on June 13, 2004 in order to gain, without really affecting the German position in the EU Competitiveness Council, some additional votes from those IT guys who are opposed to the current patent system but think they can't afford to vote green.

[Permalink]

(0) comments

Wednesday, June 09, 2004

A Template for IETF Patent Disclosures and Licensing declarations

The

IESG has approved a document

'A Template for IETF Patent Disclosures and Licensing declarations' draft-ietf-ipr-template-09.txt

drafted by V. See (editor) of Microsoft and the

Intellectual Property Rights Working Group as an Informational RFC.

The new template is designed for use in accordance with the procedure outlined in

RFC 3668 defining the details of the IETF policies concerning IPR related to technology worked on within the IETF. According to RFC 3668,

In the years since RFC 2026 was published there have been a number of times when the exact intent of Section 10, the section which deals with IPR disclosures has been the subject of vigorous debate within the IETF community. This is because it is becoming increasingly common for IETF working groups to have to deal with claims of Intellectual Property Rights (IPR), such as patent rights, with regards to technology under discussion in working groups. The aim of this document is to clarify various ambiguities in Section 10 of [RFC 2026] that led to these debates and to amplify the policy in order to clarify what the IETF is, or should be, doing.

IPR disclosures can come at any point in the IETF Standards Process, e.g., before the first Internet-Draft has been submitted, prior to RFC publication, or after an RFC has been published and the working group has been closed down; they can come from people submitting technical proposals as Internet-Drafts, on mailing lists or at meetings, from other people participating in the working group or from third parties who find out that the work is going or has gone on; and they can be based on granted patents or on patent applications, and in some cases be disingenuous, i.e., made to affect the IETF Standards Process rather than to inform.

RFC 2026, Section 10 established three basic principles regarding the IETF dealing with claims of Intellectual Property Rights:

(a) the IETF will make no determination about the validity of any particular IPR claim

(b) the IETF following normal processes can decide to use technology for which IPR disclosures have been made if it decides that such a use is warranted

(c) in order for the working group and the rest of the IETF to have the information needed to make an informed decision about the use of a particular technology, all those contributing to the working group's discussions must disclose the existence of any IPR the Contributor or other IETF participant believes Covers or may ultimately Cover the technology under discussion. This applies to both Contributors and other participants, and applies whether they contribute in person, via email or by other means. The requirement applies to all IPR of the participant, the participant's employer, sponsor, or others represented by the participants, that is reasonably and personally known to the participant. No patent search is required.

In any case, these documents make perfectly clear that patents on computer-implemented inventions are simply a matter of fact which the Internet community can deal with.

[Permalink]

(0) comments

Tuesday, June 08, 2004

New Law on Design Protection in Germany.

On June 01, 2004, a completely revised Act on Design Protection has entered into force in Germany. The

German text of the Act can be accessed e.g. on the

Transpatent web site.

The former Act was in fact a Copyright-style protection of designs against copying. Independent creations of the same subject-matter had been, at least in theory, possible without constituting an infringement. To the contrary, the new law creates an exclusive right of the creator of a design (or of his successor in title) to bar any third party from exploiting any infringing designs, whether bluntly copied or even created independently and without knowledge of the protected design.

The new Act serves to cast the

EU Directive 98/71/EG into national German Law.

More information is available [in German] on the web site of the

German Patent and Trade Mark Office.

Highlights of the revised law are, inter alia:

- A design shall be protected by a design right to the extent that it is new and has individual character; a design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

- A design shall be considered new if no identical design has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. Designs shall be deemed to be identical if their features differ only in immaterial details;

- A design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community, before the date of filing of the application for registration or, if priority is claimed, the date of priority. The design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

- There is a novelty grace period of 12 months: A disclosure shall not be taken into consideration if a design for which protection is claimed under a registered design right of a Member State has been made available to the public: (a) by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer, or his successor in title; and (b) during the 12-month period preceding the date of filing of the application or, if priority is claimed, the date of priority. This grace period shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title.

- The scope of the protection conferred by a design right shall include any design which does not produce on the informed user a different overall impression. In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.

- The maximum term of protection is now 25 years.

According to the EU Directive, until such time as amendments to this Directive are adopted on a proposal from the Commission, Member States are free to maintain in force their existing legal provisions relating to the use of the design of a component part used for the purpose of the repair of a complex product so as to restore its original appearance and shall introduce changes to those provisions provided that the purpose is to liberalise the market for such parts. However, Germany has not made use of this option.

[Permalink]

(0) comments

EPO Quality Problems?

Mr. Gregory Aharonian reports in the edition dated June 08, 2004 of his

Internet Patent News Service Newsletter

distributed via e-mail about an article recently published in

Nature:

PRESSURED STAFF 'LOSE FAITH' IN PATENT QUALITY
by Alison Abbott, Nature, 3 June 2004, 493

Examiners at the European Patent Office (EPO) are losing confidence in its ability to ensure the quality of the patents it issues, according to two separate staff surveys.

In a survey of some 1,300 patent examiners, conducted by the staff union in April, more than three-quarters agreed with the statement that productivity demands from the EPO's managers did not allow them "to enforce the quality standards set by the European Patent Convention". And 90% said that they did not have time to keep up to date with advances in their scientific fields. In a second survey of 730 examiners, done by the EPO itself, only 9% said they believed that the management was "actively involved in improving quality".

[...]

But some patent examiners privately contend that the pressure to process files encourages them to approve marginal cases, instead of formulating reasons for rejection. [...]

If these allegations should indeed be true it would be high time for organisatorical reforms within the EPO. Besides the general detrimental effects of poorly examined patents, the adversaries of the patent system, namely

FFII,

Attac, and

Greenpeace, are eager to exploit each and every weakness of the current patent practise in order to cover their weak case in arguing against the patentability of computer-implemented inventions, biotechnology inventions, and the like. Such large-scale negligence, if in fact common EPO practise, could not be afforded any further.

Moreover, it is sad to see that the

approach to install a EPO quality control division which was part of the intended EU Community Patent scheme is now to be pronounced dead due to the

failure to reach a compromise on the EU Community Patent.

And then there are more reports about quality problems with regard to the

OHIM ...

< ? law blogs # >