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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, September 26, 2004AIPLA Response to the National Academies Report entitled "A Patent System for the 21st Century" .The AIPLA has published a response to the National Academies Report entitled "A Patent System for the 21st Century":
"[...] Executive Summary
Thursday, September 23, 2004Malta, Iceland and Lithuania soon to acceed to the European Patent Convention.TheUK-PTO reports that Malta, Iceland and Lithuania have recently completed their parliamentary processes, and will soon become full members of the European Patent Organisation. These accessions mean that applicants will be able to file applications designating Iceland, Malta and Lithuania, but they will not be able to designate these countries retrospectively in earlier applications. It is anticipated that Latvia will also join the European Patent Convention later this year. The European Patent Organisation will soon comprise the following 32 member states: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom.
Further Delay of Directive on Patentability of Computer-Implemented Inventions.There is areport by Heise Newsticker [In German only, sorry] saying that on the  2605th session of the Council of the European Union (Competitiveness - Internal market, Industry and Research) to be held on September 24, 2005, in Brussels the political agreement on the Draft Directive on the patentability of computer-implemented inventions as reached on the previous session of May 18, 2004, will not be formally adopted. The report suggests that albeit the official version is that lack of translator capacity is to blame for the further delay, the additional time buffer might also be of political relevance. For example, Mr. Daniel Cohen-Bendit is reportedly quite sure that the Directive will again be set on the agenda of COREPER for further political deliberations.
[UPDATE] See also the report in electricnews.net.
Proposal by Argentina and Brazil for the Establishment of a Development Agenda for the WIPO .The nextWIPO General Assembly (Thirty-First (15th Extraordinary) Session) will be held in Geneva from September 27 to October 05, 2004. It looks as if this time there will be more political inflammable matter than usual. Argentina and Brazil have tabled Document WO/GA/31/11 conveying a proposal for the establishment of a development agenda for the WIPO. The Document states, inter alia:"[...] While access to information and knowledge sharing are regarded as essential elements in fostering innovation and creativity in the information economy, adding new layers of intellectual property protection to the digital environment would obstruct the free flow of information and scuttle efforts to set up new arrangements for promoting innovation and creativity, through initiatives such as the ‘Creative Commons’. The ongoing controversy surrounding the use of technological protection measures in the digital environment is also of great concern.In an Appendix, some particular proposals are made, inter alia, as follows: It looks as if this debate would have been picked up by other critics of the current IP system who have drafted and signed a Geneva Declaration on the Future of the World Intellectual Property Organization:"[...] Humanity faces a global crisis in the governance of knowledge, technology and culture. The crisis is manifest in many ways.There is already an impressive list of initial signatures.
I do not know whether or not there is a causal link between WIPO debate on the level of Diplomacy and Mr. James Boyle's Manifesto on WIPO and the Future of IP.
All this summarises up to a full scale attack on the political constitution of the WIPO. The large scale public debate on the future of IP seems to be in full swing.
Wednesday, September 22, 2004Legal Protection of Designs - Extended Impact Assessment.The Council of the European Union has published a Commission Staff Working Document No.COM(2004)582 final "Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs - Extended Impact Assessment". The extended impact assessment has been drawn up making use of the available data at the disposal of the Commission. In particular the answers to the questionnaire sent in 1999 (to vehicle manufacturers, suppliers, independent component producers, insurance companies, parts distributors, repairers and consumer organisations), the results of the impact study undertaken in 2003, the various reviews and reports concerning Intellectual Property Rights, IPR, and the data sent to the Commission by other interested parties.
Tuesday, September 21, 2004FICPI Position Paper on the Patentability of Computer-Implemented Inventions.FICPI has published a Position Paper on the European Union Parliament's Decision of 24 September 2003 on the proposed Directive on the Patentability of Computer-Implemented Inventions."[...] FICPI strongly opposes the amendments introduced by the Parliament which do not comply with the obligations of the TRIPS Agreement, believing them to severely weaken the competitiveness of European industry, thus widening the gap between the patent laws in Europe and those of non-European countries. This is seen as undermining the efforts of WIPO towards a world-wide harmonisation of substantive patent law, creating instead of reducing, as originally intended, legal uncertainty for European inventors, businesses and third parties in the field of computerimplemented inventions. It would therefore be preferable to abandon the directive rather than to implement the text adopted by the Parliament either with only insubstantive revisions or without any at all. [...]" Consultation on UK Legislation relating to Community Designs.A newConsultation Process has been launched in the UK. The purpose of this consultation is to seek views on a number of possibilities for legislation which would ensure that the Community designs system works correctly, and that the checks and balances in the system are correct. The particular issues are:
Monday, September 20, 2004"Right to be Heard" will be improved in Germany.TheGerman Federal Government has introduced a Draft Bill concerning legal remedies in cases of violation of the right to be heard into the Second Chamber of the German Parliament ("Bundesrat"). The Bill responds to a former decision of the German Constitutional Court ("Bundesverfassungsgericht") [Sorry, in German only].
2605th session of the Council of the European Union (Competitiveness - Internal market, Industry and Research) on September 24, 2004.The2605th session of the Council of the European Union (Competitiveness - Internal market, Industry and Research) will take place on 24 September 2004 in the Justus Lipsius Building, Brussels, under the Presidency of Mr. Laurens Jan Brinkhorst, Dutch Minister for Economic Affairs and Ms Maria Van der Hoeven, Dutch Minister for Education, Science and Culture.
I am very curious to learn whether or not the Council will formally rubber-stamp the political agreement on the Draft Directive on the patentability of computer-implemented inventions as reached on the previous session of May 18, 2004. The FFII e.V. had announced to turn the table even before the Council has formally voted by influencing politicians in certain countries like NL, PL, HU, and PT.
Friday, September 17, 2004Design Law: CEC proposes to liberalise the Spare Part Market.The European Commission has proposed aDirective of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs.
According to the Commission's proposal, the amendment concerns design protection of spare parts intended to restore the appearance of complex products such as motor vehicles. It aims to complete the Internal Market through the process of liberalisation begun and partially achieved in Directive 98/71/EC, so as to increase competition and offer consumers greater choice as to the source of spare parts used for repair purposes. At the same time it maintains the overall incentive for investment in design as it does not affect design protection for new parts incorporated at the manufacturing stage of a complex product. At present, the Directive does not exclude the protection of spare parts by a design right, in other words, the protection conferred on the design of the new part in the primary market can equally well apply to the spare part in the secondary market or aftermarket. The Commission argues that in spite of the fact that Member States were not able to agree on harmonisation in the aftermarket, article 14 of the Directive did stipulate that Member States shall maintain their existing laws in this regard and may change those provisions only in a way that liberalises the spare parts market (the “freeze plus” solution). What is more, Article 18 of the Directive provides for the Commission to analyse the consequences of the Directive and to come forward with any changes to the Directive to complete the market in spare parts. As the Directive did not change the status quo for existing spare parts regimes in MS, except to allow for liberalisation, an analysis of the consequences of the Directive itself at this stage would not assist in deciding what further changes are necessary. Instead, the Commission focussed its study on the specific issue of design protection in the aftermarket. Now that all Member States have transposed Directive 98/71/EC into their national legislation the situation is as follows:
Sunday, September 12, 2004How to avoid some blind alleys.Here and there press releases and other statements from individual patent professionals or of their associations and Institutes appear which might be read as if they would suggest a view according to which an "Open Source Community" is to be blamed for causing all of that current turmoil in patent politics. Disgusted by the outspoken preference of some groups within that Open Source Community for the intellectual commons, perhaps some patent professionals might covertly or openly think that the world might be a better place to live and work if Free / Open Source Software (F/OSS) does not exist. However, such conclusions would be misleading.Independently of any pros and cons of F/OSS it surely would be wise if every serious discussion of patent policy is based on the assumption that F/OSS is here to stay. F/OSS is simply a success story, and any attempt to turn it down in order to save some particular details of the present patent system would surely be hubris. Some observers even think of F/OSS as an embodiment of a new paradigm of allocation and distribution of intellectual resources. The stakeholders in this field of software creation and distribution are not only those secularistic redeemers like Richard Stallman from FSF and his followers from the Eurolinux Alliance fiercely fighting pro intellectual commons and against the present patent system but also more business-minded people, some of them even wearing a conventional business suit and actively utilising the patent system. IBM for example hugely profits from bringing Linux-related hardware and support services to market, at the same time being one of the most active companies with regard to patent filings. The Linux distributor SuSE AG now belongs to Novell, Inc., which had been active in patenting at least in the past. And, vice versa, there are a lot of SMEs making their profit in conjunction with closed-source software and nevertheless supporting Eurolinux Alliance in their anti-patent fight. There is simply no one-to-one mapping of closed-source software and F/OSS, on the one hand, to pro-patent and anti-patent moods, respectively, on the other hand. The reality is more complex, despite the fact that some anti-patent NGOs loudly claim to be the only and true stakeholders of the F/OSS scene. In 1994, the European Patent Office had published the results of a representative survey concerning the acceptance of the patent system in Europe. This study clearly pointed out that SMEs significantly underused the patent system. Now, it seems as if in those days SMEs have passively ignored the patent system whereas nowadays some of them are no longer staying aside but, inflamed by Eurolinux, actively attempting to undermine the patent system. Therefore, one of the key insights for curing the present crisis of the patent system might be that one of the more important causes thereof is a scarcity of acceptance of the present patent system by SMEs in the field of IT. This deficiency might be considered partially home grown as it looks as if in the 80es and 90es of the past century little efforts have been made by patent professionals to remove in the general public the widespread urban myth that software-related inventions cannot be patented at all in view of Article 52 EPC. Perhaps the current difficulties can be seen as something like a late nemesis in return for the lapses that occurred during those years.
Saturday, September 11, 2004Mr. Hartmut Pilch on "Industrial Copyright".Mr. Hartmut Pilch, President of theFFII e.V., has launched another proposal how to wreck the patent system: "[...] Copyright is already the main IP system for non-aesthetic creations such as instruction manuals, software, architecture and, to varying degrees in different jurisdictions, functional industrial design. It is considered to be appropriate for logical creations (as opposed to 'technical inventions' in the classical patent theory). Currently many people observe 'convergence' of both, and the trend is to solve more problems at the level of logical creations. [...]"So, the question seems to be under which circumstances it might be necessary to drop the complex and costly procedure of verbalisation of an invention for filing it with a competent Authority for registration. In fact, an important difference between the respective subject-matters of copyright law, on the one hand, and patent law, on the other hand, is of a statistical nature: The statistical probability that any given creative text of a substantial length authored by a human being is reproduced accidentally and independently by another human being is virtually vanishing. If two texts authored by two different persons are identical or very similar then this may have two reasons:
However, this scheme does not work with inventions in the sense of the patent law. If two different persons A and B are bringing an alloy to market composed of 57% of metal X and 43% of metal Y, person A being ahead in time relatively to person B, then there is no statistical hint or evidence available which might help to determine whether B has copied the alloy or has independently re-invented the same. Independent co-inventions may occur at a non-vanishing probability, and in order to award the first inventor, patent law cannot be confined to any exclusive right of copying an invention. To the contrary, it is necessary that a patent provides an exclusive right to make commercial use of a patented invention irrespective of whether it is copied or re-invented independently. The fact that in most countries the first-to-file applicant is awarded a patent but not the true first inventor is based on a procedural fiction that in most cases the applicant is in fact the true first inventor or has the right to patent the invention obtained from the true and first inventor. Any first and true inventor not hurrying to the Patent Office to apply for a patent is effectively punished for this delay because any second inventor can successfully obtain the patent. This effect is acknowledged in most countries except the U.S. in order to simplify the grant procedure. Inventions are not self-explanatory in the same sense as copyrightable subject-matters are. A thing made of that alloy in itself does not document the invention because of nobody knows that it is just the composition of the alloy which makes that thing distinct. Inventions do not document themselves; they have to be documented by means of verbalisation. Moreover, if A and/or B simply are in possession of the technical teaching to produce and use said particular alloy without bringing any embodyment of the invention to market or publishing a verbalisation if the invention then there is no visible indication whatsoever from which the general public could learn something relevant about the inventor of the alloy. The grant of a patent requires that the applicant is in possession of the invention. Not required is that a tangible embodiment of the invention really exists; it is enough that the inventor just knows what and how to do. The problem is that the identification and verbalisation of an invention is complex and, hence, expensive. Moreover, specialists have come up for doing that job. And here we recognise what is the real point for Mr. Pilch favouring a "Copyright Only" doctrine: "Features of future Integrated System of I2P: [...] low complexity, care to avoid creation of special interest groups that hijack the legislative process. [...]"Ah, identifying and verbalising inventions for purposes of the patent law would require patent professionals like Patent Attorneys, those ugly guys who tend to "hijack the legislative process". In order to eliminate them out of the knowledge business economy, Mr. Pilch is desperately seeking an alternative concept which avoids such verbalisation. Strange enough, as a promoter of openness in the software business in form of F/OSS, Mr. Pilch favours a culture of secrecy with regard to inventions: "Publication of claims and disclosure at an early stage impose burdens and disrupt rather than support the natural system of innovation incentives based on fast movement, business secret, competition etc. There are at best a few exceptions where codification of claims with their inevitable corollary of early disclosure could still be justifiable in the future. These are related to special circumstances where high burdens are already imposed by facts such as governmental safety certification requirements (e.g. clinical testing) [and] expensive experimentation with forces of nature (classical domain of "technical invention")."It is really hard to understand the logic of such proposals if there is such a thing at all.
Friday, September 03, 2004UK Intellectual Property Research: "The Extent and Value of Intellectual Property in United Kingdom Firms".Just from theweb site of the UK-PTO:The following economics papers were written as part of a research project funded by the Patent Office, entitled: "The Extent and Value of Intellectual Property in United Kingdom Firms":
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