Patent Quality and Language Regime: A Voice from the Industry.
In an earlier posting I had hinted to an ongoing discussion about possible models of co-operation between the European Patent Office and the intellectual property offices of EPO member states, with emphasis on the PCT work. Now, a remarkable comment provided by Mr. Werner Kovac, Head of Patent Department of Magna Steyr AG & Co. KG, has been published:
"[...] The Protocol on Centralization did not have the historical objective to ensure that the EPO had enough work in the early years, but to concentrate the specialized knowledge necessary to cover all fields of technology and to ensure highest and uniform quality. The exceptions granted in the Protocol were made to muster consent to the Munich agreement, as a preliminary stage for full concentration.
In order to cover all fields of technology with highly competent specialists, the number of examiners necessary today is 1000 at least, it may have been 100 sometimes in the past. It is difficult to imagine how an NPO with a staff nearer to 100 than to 1000 can endeavour to cover the whole field with the necessary competence.
As far as PCT is concerned, it should have been only in English from the very beginning. It would have saved us the discussion we have now at hand and, into the bargain, publications in Japanese and Russian, which many of us cannot read. The PCT system should be mainly for big companies worldwide, they have attorneys who can work in English.
The best service NPOs can provide to their economies is to receive first filings and provide a comprehensive and reliable search report in good time as a basis for further decisions. After such filtering, PCT cases would be less in number and could be mastered by EPO alone. Recognizing this as their main task, would allow NPOs to specialize, even to excel, in the fields of their home industry, and to provide valuable service with a limited number of examiners.
As things have developed to the present situation, the following is the position from the point of view of our field of industry:
a) Applicant must have the choice of the ISA, with the exception of c)
b) EPO must be free to decide freely, wether an ISR (or ISO for that matter) from a particular NPO is acceptable or not,
c) EPO should have the possibility to delegate searches (ISR ) to NPOs of their free decision and choice (without any possibility of intervention) for peak-shaving. But EPO must keep the ultimate responsibility. This would give NPOs who successfully specialize and excel in particular fields of technology a fair chance, even the chance to grow.
d) The question of fees is secondary to quality.
The issue of quality needs special attention. Comparing even EPO’s proclaimed efforts to maintain high quality (and encouraging enhancement of the quality of filed applications) with one’s own experience in day-to-day work, one cannot help seeing a discrepancy.
If, then, NPOs in their subject papers stress the importance of quality, there is a tinge of lip service. They may be confident that a truly stringent quality control is too labour-intensive to be feasible. There is also a temptation to quench criticism by intervention.
Therefore cooperative quality assurance will not do, quality would inevitably converge toward a lower level. Instead, a completely independent quality control body is an absolute necessity. This body must consist of very experienced patent professionals, with the power to enforce corrective action.
Without such a body, a pessimist could see the European Patent system going down the drain very slowly, so slowly that it will not be remarked until it is too late. The members of the Council are implored not to sacrify the best Patent system in the world (though far from perfect) to short-term and petty national interest."
Mr. Kovac's advocacy pro patent quality reforms and against excessive translation requirements should be most welcome amongst all patent professionals, IMHO.
the term "state of the art" in Article 54 EPC should, in compliance with the French and German text, be understood as "state of technology", which in the context of the EPC does not include the state of the art in commerce and business methods. The term "everything" in Article 54(2) EPC is to be understood as concerning such kind of information which is relevant to some field of technology. From these considerations it follows that anything which is not related to any technological field or field from which, because of its informational character, a skilled person would expect to derive any technically relevant information, does not belong to the state of the art to be considered in the context of Articles 54 and 56, even if it had been made available to the general public before the relevant priority date.
Ricoh Company, Ltd.,, Japan, had filed a claim directed to an order management system for automatically placing an order with one of a plurality of suppliers. The Board of Appeal identified a non-empty technical contribution which was, however, deemed to be obvious.
an arrangement of menu items (or images) on a screen may be determined by technical considerations. Such considerations may aim at enabling the user to manage a technical task, such as searching and retrieving images stored in an image processing apparatus, in a more efficient or faster manner, even if an evaluation by the user on a mental level is involved. Although such evaluation per se does not fall within the meaning of "invention" pursuant to Article 52 EPC, the mere fact that mental activities are involved does not necessarily qualify subject matter as non-technical since any technical solutions in the end aim at providing tools which serve, assist or replace human activities of different kinds, including mental ones.
Canon K.K., Japan, had filed a claim directed to an image processing apparatus for the conversion of non-hierarchical image data into hierarchically encoded image data and to image processing under user control for searching an image.
Patent agents: Italy and Luxembourg still do not comply with EU Law.
Rapid has reported that in its judgment of 13 February 2003 (case C-131/01), the Court censured Italian legislation which requires service providers to be enrolled on a national register and to have a residence or place of business in Italy in order for them to provide their services. Similarly, in its judgment of 6 March 2003 (case C-478/01), the Court found the requirement laid down in Luxembourg law for patent agents to have a place of establishment at the address of an approved representative before they can provide a service to be incompatible with Article 49 of the EC Treaty, which lays down the principle of the free provision of services.
In December 2003, the Commission sent Italy and Luxembourg letters of formal notice (IP/03/1764) in which it called on them to comply with the above-mentioned judgments. However, the necessary measures have still not been notified to the Commission by the competent national authorities.
The German Government is currently again contemplating the pros and cons of the patentability of computer-implemented inventions. This is not quite "business as usual" because of at least in theory the dice is cast on the level of the EU Competitiveness Council held in Brussels on May 17 to 18, 2004. A political vote had been cast which was closer to the original proposal "Common Approach" of the EU Commission and of the EU Council than to the outcome of the first reading in the European Parliament. The normal course of events to be expected would be that the political vote of the EU Competitiveness Council is confirmed by the European Council and then mailed to the President of the European Parliament in order to initiate the procedure of second reading. But apparently this has not happened yet at least as I can see in the public EU databases. I do not know why there is such a delay; maybe the recent European Council held on June 17 and 18, 2004 had been just too busy with deliberating the EU Constitution as well as with finding a new President for the EU Commission. Other sources might prefer to bring such delay in connection with certain difficulties in the Netherlands.
Of course any research efforts done to empirically uncover the economic circumstances of the patent system are most welcome in order to improve the same. However, it must be undertaken in a methodically clean way. In this case, it is inevitable that no significant and meaningful quantitative analysis of the returning questionnaires will be possible. If the survey would have been prepared in a respectable way, a random sample would have been drawn from all of the relevant companies operating in Germany, and the distribution of the questionnaire would have been limited to that sample. However, in the present situation, the anti-patent activists - who are absolutely Internet-savvy - have made enormous efforts in order to ensure a wide circulation of the questionnaire in the patent-averse circles around the FFII. Some activists even started an anti-patent campaign within one of the upcoming Internet-based social networking systems, i.e. OpenBC. It is absolutely clear that other industry associations working in a more conventional way are rather forlorn in this race. Most of the questionnaires returned by the very close deadline will come from freelancers or companies close to the FFII, and the result will be accordingly. Hence, it is to be expected that a vast majority of the questionnaires to be returned will exhibit a more or less patent-averse mood. All the efforts of the German Govt will therefore bring a result which is as far as quantitative aspects are concerned as reliable as any click-through survey on the web. As everybody knows, such polls are simply not representative.
Miraculously Dr. Sandl, Senior Official in the BMWA and originator of the survey project, raised his voice in a public mailing list and responded to the discussion of the methodical problems thereof, indicating his interest in unadulterated quantitative results. However, with regard to the lack of a random sample and related problems, he merely shrugged his shoulders, indicating that he is well aware of such methodical problems.
So far not much has happened. But if you should read in August 2004 or so some hot news saying that the German software industry has voted with a majority of, say, 90% of the companies that so-called "software patents" are evil, you should be somewhat cautious.
EPO Strategic debate - PCT consultation process, November 2004.
There is an ongoing discussion about possible models of co-operation between the European Patent Office and the intellectual property offices of EPO member states, with emphasis on the PCT work (i.e., ISA / IPEA). The question is how to share the workload and, of course, the fee revenues. From the microsite of the European Patent Organisation:
"PCT consultation process
Strategic debate, November 2004
In the context of recent developments such as the introduction by WIPO of the ISO or the granting of ISA status to the Finnish Office, the Administrative Council of the European Patent Organisation has decided at its June 2004 meeting to launch a strategy debate on the co-operation within the Organisation.
Two significant events have already been arranged: the Council will begin defining the exact scope of the discussion and establishing its objectives at its autumn meeting (27 to 29 October 2004), and then hold an extraordinary meeting devoted entirely to this strategy debate from 24 to 26 November 2004.
The debate needs to be conducted in an open and transparent manner. To this end, the Chairman of the Council is making his personal position paper (which confines itself to suggestions about relevant goals in the given context), along with the position papers received from member states of the Organisation, available to the interested public and to the numerous parties in the process (see CA/70/04 + Addenda).
To facilitate the broadest possible consultation, the secretariat of the Administrative Council has set up the following address for those who wish to submit their views:
These submissions should be in electronic form only, and in one or more of the Organisation's official languages (English, French, German). In submitting their views in this way, the contributors authorise the Organisation to publish them on this site and to refer to the source. They also accept that the Organisation reserves the right not to publish every contribution.
It should be noted that only submissions made in good time for the Council meetings can be given due consideration."
The main goals of the Eiropean Patent Office are set out in Document CA/70/04:
"1.1 Expanding the strong position of the EPO to a leadership role within the PCT system: This goal can only be achieved by further increasing the profile of the Office as a PCT authority because in other economic areas, the national European offices are barely known as PCT authorities. Strengthening the position of the Office means, first of all, creating the capacity to be able to process PCT registrations from anywhere in the world on time without exception. Secondly, it entails the ability to set standards for quality, and thirdly, offer attractive prices. In doing so, Europe could put itself in the position to define the quality standards of PCT work worldwide. The introduction of the 'written opinion' has made this even more important because the PCT product could become a sort of 'certificate of patentability'.
1.2 Further the harmonisation of patent procedure in Europe: This goal is about much more than harmonising legislation and guidelines, and controlling quality standards for Office products. It has to do with knowledge transfer 'brain-to-brain', with the creation of a unified doctrine ('unité de doctrine') among all patent experts in Europe, whether examiners, patents attorneys or judges, and finally, with education.
1.3 Keeping the EPO on a solid financial footing: This is a central condition for guaranteeing a strong European Patent Office. The financial results for 2003 were poor in comparison with previous years. This alone is not enough to worry about; however, there is a series of trends which need acknowledging and response. The relative frequency of sick leave or attempts to expand privileges, for instance, can indicate a danger that the discrepancy between EPO salaries and those of national governmental employees is growing. In addition, the shift to International Financial Reporting Standards (IFRS) (which will show the financial situation of the EPO in a much clearer, and unflattering, light) is delayed. Finally, as the discussion of an academy and 'improving the synergy' during the AC meeting of March 2004 has shown, large financial burdens that would be difficult to control might be looming on the horizon. This all shows that the goal of keeping the EPO financially sound is not attainable without increased efforts.
1.4 Maintaining the integrity of the EPO: Since its expansion, the EPO is no longer a 'limited circle' of pioneers. There are new interests which must be considered if the EPO wants to continue developing in the interests of its integral role in the European economy.
A number of national Governments have provided responses; see here.
Worried about losing money, the entertainment business is peddling false links between DVD pirates and terror cells
Duncan Campbell
Saturday July 17, 2004
The Guardian
If you buy a pirated DVD from a bloke in the pub, you could be personally responsible for the deaths of innocent women and children in terrorist attacks. That, essentially, is the message being promoted this week by the Industry Trust for Intellectual Property Awareness (Itipa), the body that represents some of the world's largest film companies. This week it launched a £1.5m "public awareness campaign" to inform people of supposed links between the "Del Boy" characters who sell pirate DVDs and terrorist cells.
Posters claiming that "terrorist groups sell DVDs to raise funds" are at the heart of the campaign. Anyone renting a video will now be receiving the same message. So where is the evidence for this claim?
The industry group cited as its chief witness Ronald Noble, secretary general of Interpol. It quoted him as saying: "The link between organised crime groups and counterfeit goods is well established, but Interpol is sounding the alarm that intellectual property crime (IPC) is becoming the preferred method of funding for a number of terrorist groups." The "preferred method of funding"? A call to the Interpol office in Lyon seems appropriate. We are referred to Mr Noble's speech last July,to the US House of Representatives committee on international relations, on the subject of the links between IPC and terrorism.
In his speech, Mr Noble began by pointing out how difficult it is to establish links between IPC and terrorism: "Much of the financing is of an indirect nature and it is difficult to attribute direct links between an individual involved in IPC and funds remitted to a terrorist organisation." His list of specific examples started with Northern Ireland, where he noted that paramilitary groups were involved in counterfeit cigarette trafficking although "it is unknown how much of the money generated... goes to terrorist groups and how much is retained as criminal profit... Other aspects of IPC in Northern Ireland appear to have no terrorist involvement." Advertiser links Charity - British Red Cross
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In Kosovo, his second example, he referred to the availability of counterfeit "CDs, DVDs, clothes, shoes, cigarettes and computer software" and concluded that "it is suspected [my italics] that funds generated from IPC benefit both criminal organisations and extremist groups". As for north African radical fundamentalists: "Sympathisers and militants may engage in a range of criminal activity including IPC."
Further, "one counterfeiting case has been reported in the media, where there are alleged connections to al-Qaida". The evidence here suggests that al-Qaida "may have indirectly obtained financing through counterfeit goods. Danish customs intercepted a container containing counterfeit shampoos, creams, colognes and perfumes... It is difficult to establish the provenance of the funds."
Mr Noble's final conclusion was that it was possible to suggest that IPC could be used to fund terrorist groups - something of a leap from the campaign posters' claim that "terrorist groups sell DVDs to raise funds". So Mr Noble would seem to be saying that there is a lot of counterfeit crime of all kinds around, and some of the funds just might go to terrorist groups, although there is no hard evidence of any DVD/terrorism connection.[...]"
Such exaggerated arguing as done by the Itipa in the field of Copyright might severely damage the credibility of anyone arguing in support of Intellectual Property. In particular, all patent professionals should do their best to avoid any such kind of temptation when publicly defending their field of Intellectual Property. It is in fact a trap, and escaping is difficult. Simply stick to the facts. They are, as in the case of IP piracy, grave enough.
The German Chancellor Mr. Gerhard Schroeder and Mr. Heinrich von Pierer, CEO of Siemens AG, have yesterday announced that in Munich an IP arbitration board will be created. The event hosted by the German Patent and Trade Mark Office in the premises of the "Deutsches Museum" was a general roundup to strengthen the role of IP legislation.
IHT: "Europe's software patent policy under siege"
The International Herald Tribunereports about the recent status of the proceedings in view of the EU Draft Directive on Patentability of Computer-Implemented Inventions:
Europe's software patent policy under siege
Jennifer L. Schenker/IHT IHT
Wednesday, July 07, 2004
PARIS The adoption of a European Union law on software patents could be in doubt after accusations of missteps and mishaps during a May 18 meeting of the EU Competitiveness Council in Brussels.
Officials in a number of European countries say that votes cast by ministers during the meeting to hammer out political differences did not reflect the position of their governments.
Among the accusations: that the Dutch minister misinformed his national Parliament about the directive’s status; that a stand-in for the Danish minister was coerced into a ‘‘yes’’ vote; that the German minister accepted last-minute changes to amendments made by his own country that were contrary to the wishes of the government; and that the Polish government, which originally abstained, was not asked for its opinion when the final agreement was recorded.
The political storm, which has spread to national parliaments in Germany and Denmark and provoked questions about the EU directive in Poland and Portugal, is the latest twist in a bitter fight between large corporations with significant research investments and scores of patents and small and midsize software companies, academic institutions and supporters of ‘‘open source’’ software, who oppose software patents.
[...]
In what could be an unprecedented move, the Dutch Parliament last week asked to change the ‘‘yes’’ vote that it cast at the May meeting to support making software patentable throughout the European Union. Motions have been introduced in parliaments in other countries, including Germany, to consider a change in their own votes.
The hope of some opponents of patents on software is that this will provoke a new vote by the entire Competitiveness Council — an economics advisory group that is part of the EU Council of Ministers — and reverse the outcome, making software ineligible for patents. The council can make binding decisions, provided it is not blocked by the European Parliament.
'There were a lot of abstentions already, so we think if we can show that Holland has changed its vote, it might have a domino effect,’ said Arda Gerkens, a representative of the Socialist Party in the Dutch Parliament who helped spearhead the move to have the Netherlands change its vote. [...]"
The Legal Observatory of the European Parliament as of today still indicates as recent status of that matter "Awaiting Council common position". A political thriller, indeed ...
"[...] The provision of software for the "Similarity Discovery Service". A user of this service (a potential applicant for a patent) will be able to submit a technical text and receive a list of similar documents retrieved by an automatic comparison of this text with existing patent documentation at the European Patent Office.
The main elements of this service will be:
receipt of a technical text via the internet by a server located in a national patent office,
posting of the technical text to the European Patent Office over a pre-existing secure network (PATNET),
comparison of the technical text with the content of a full-text database stored on a server at the European Patent Office and the production of a ranked list of similar patent documents,
returning of the list of similar documents to the national patent office over the secure network and
forwarding of the list of similar documents to the user by email.
The installation of the service and its subsequent maintenance will also form part of a contract for the supply of the "Similarity Discovery Service".
[...]
The project is split into four phases:
Phase 1: demonstration of the feasibility of the solutions proposed in a test environment,
Phase 2: demonstration of the feasibility of solutions proposed in a production environment,
Phase 3: implementation of a fully operational "Similarity Discovery Service" operating between one national patent office and the European Patent Office,
Phase 4: extension of Phase 3 to other national patent offices.
The European Patent Office will not commit to Phase 2 or any subsequent phase until it has evaluated and accepted the results of the preceding phase. It shall have absolute and sole discretion as to whether or not to proceed with any phase.
Award of the contract can only take place after the necessary supervisory bodies of the EPO have been consulted. This should be completed in October 2004. [...]"
Sounds interesting. I'm quite curious on whether or not such a project will really be implemented some day ...
Posted by CowboyNeal on Friday July 02, @10:20AM from the changing-our-mind dept.
Sanity writes "On May 18th, by a thin majority, the European Council of Ministers voted in favor of throwing out the European Parliament's efforts to keep software patents out of Europe. According to an FFII press release, the Dutch Parliament yesterday voted to change its Minister's vote, which was in favor, to an abstension. This is an unprecidented move and a great coup for those fighting against software patents, never before has a country reversed a vote in this manner. While this is not sufficient to reverse the decision of the Council of Ministers, it does pave the way for other countries, many of which were pressured into an affirmative vote, to do the same. Now is the time for citizens of the EU to put pressure on their national governments to follow the Dutch lead." [...]"
So, the headline should read correctly "Dutch Parliament urges NL-Govt. to Reverse Vote on Patentability of Computer-Implemented Inventions". Currently I have no clue whether or not this move will have any effect at all. See also my earlier posting on a corresponding initiative in the German Parliament kicked off by the F.D.P.
New decision of German BGH on the Patentability of Computer Implemented Inventions.
On May 24, 2004 the German Federal Supreme Court (Bundesgerichtshof, BGH) has issued another important decision (X ZB 20/03) on the patentability of computer-implemented inventions. More analysis soon on this blog.
Alain Pompidou takes up office as President of the European Patent Office
Munich, 1 July 2004 -- Alain Pompidou took up office today as President of the European Patent Office (EPO). The 62-year old Frenchman succeeds a German, Ingo Kober, who, having held this post since 1996, is now going into retirement. Elected in December 2003 by the Administrative Council of the European Patent Organisation, the supervisory body of the Organisation, Alain Pompidou becomes the fourth President of the EPO since it was set up in 1977.
In a first statement, the new President paid tribute to his predecessor's significant contribution to developing the European patent system. The EPO with 6 100 employees is not only the fourth biggest international organisation in the world, it is also one of the most successful. Today, European patents have legal force in the 28 member states of the European Patent Organisation and in five other states with links to the Organisation, a geographical area of 540 million inhabitants. Mr Pompidou considers the two main objectives of his presidency to be "to improve, in conjunction with the member states, the performance of the European patent system, and to strengthen international co-operation. At Office level, this will mean boosting efficiency by drawing more on each individual's potential and creating real dynamic concertation with the staff".
Alain Pompidou has had a long and distinguished academic and political career. With doctorates in medicine, science and biology, he has been a professor in the medical faculty of the University of Paris since 1974 and was also a director of a Paris hospital. As a representative of his country in several European and international organisations, and as an adviser to the French government, most notably to the prime minister, he was instrumental in developing numerous research and technology projects and programmes. He was a member of the European Parliament from 1989 to 1999, and was particularly concerned over this period with the patentability of biotechnology inventions and bioethics.
As a member of the Committee on Energy Research and Development, he also played a key role in shaping the EU's Framework Programme for Research.<
Feel free to contact PA Axel H Horns via e-mail
horns@ipjur.com. BEWARE: DO NOT SEND CONFIDENTIAL INFORMATION UNENCRYPTED VIA E-MAIL. USE OF ENCRYPTION SOFTWARE IS HIGHLY RECOMMENDED. PA AXEL H HORNS IS PROVIDING SUPPORT FOR ENCRYPTED E-MAIL MESSAGES USING PGP OR PGP COMPATIBLE FORMATS. THE PGP PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE
HERE. THE GnuPG PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE
HERE.
Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
earlier posting I had hinted to an ongoing discussion about possible models of co-operation between the European Patent Office and the intellectual property offices of EPO member states, with emphasis on the PCT work. Now, a remarkable 
comment provided by Mr. Werner Kovac, Head of Patent Department of 
