 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, December 28, 2004Iplawbulletin: "USPTO invites Allies to discuss Common Strategy In growing WIPO Dispute". iplawbulletin.com has reported (Reg. req'd) that the USPTO has invited certain allies to discuss a common strategy in the growing dispute concerning the mission of the WIPO. This seems to be a clear move against political activities  to soften the global IP regime as recently launched by various NGOs politically sponsored in particular by Brazil and Argentina in view of the role of the WIPO. The U.S. have already indicated that they would not be prepared to follow.
It looks to me as if the U.S. would consider to marginalise the WIPO deliberations e.g. concerning SPLT (which do not go very well because they are over-ambitious and, at the same time, hampered by anti-IP interests of certain countries as well as NGOs) in favour of a "coalition of volunteers" handpicked by the US Government and determined to push forward a globalised IP system.
Sunday, December 26, 2004GPL 3.0: Anti-Patent Clauses are mooted by Mr. Stallman and others.Mr. Stephen Shanklandwrites on News.Com:"Sprucing up open source's GPL foundationThe anti-patent clauses mooted by Mr. Stallman and others might advantageously be worded carefully not to violate applicable law, e.g. the EU Commission 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. As no details of Draft GPL 3.0 are publicly known so far, no assessment can be attempted here at the time being.
Friday, December 24, 2004UK Intellect: 'Council's Decision Fails UK Hi-tech Innovation'.Intellect is the trade body for the UK based information technology, telecommunications and electronics industry. Their 1,000 members employ more than 1.1 million people and make a huge contribution to the UK economy accounting for around 10% of GDP.
In a recent Press Release they say:
"Intellect, the trade association for the UK hi-tech industry has today voiced its dismay over the decision of the European Council to defer the adoption of the Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII). BBC on how Patents protect InnovationFrom theBBC web site:"Simon Gentry of the Campaign for Creativity and Joff Wild, Editor of Intellectual Asset Management magazine take issue with technology analyst Bill Thompson's recent column in which he argued that a new European directive could put software writers at risk of legal action.One of the very few media articles not cluttered by myths and misrepresentations caused by the outrageous disinformation campaign masterminded by the FFII e.V. and by nosoftwarepatents.com.
Thursday, December 23, 2004EICTA: "Industry condemns Council failure to support European high-tech Innovation".EICTA on the recent events in conjunction with the Draft Directive on the patentability of computer-implemented inventions:
"Brussels, 21 December 2004 – EICTA, the voice of Europe’s information and communications technology and consumer electronics industry has expressed extreme disappointment regarding today's decision by the Council to further postpone adoption of a Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII). Why it is so difficult to regulate Lawyers [...]FromThe Economist:"Asking a businessman to reform the legal profession is like encouraging a dog to herd salmon: he will be out of his element and liable to get soaked." Changes to UK Patent Law.TheUK-PTO has published an interesting set of slides explaining changes to UK Patent Law as of September 22, 2004, Januar 01, 2005, and also later on. According to the UK-PTO, The Patents Act 2004 makes significant changes to the UK's main statute on patents – the Patents Act 1977. The 2004 Act received Royal Assent on 22 July 2004, although none of its provisions came into force on that date. Instead, the provisions are brought into force by commencement orders, of which there have now been two. Commencement Order No. 1 brought some minor provisions into force on 22 September 2004. Commencement Order No. 2 brings some of the major provisions of the 2004 Act into force on 1 January 2005.
In particular, on Januar 01, 2005, amendments will enter into force with regard to
Tuesday, December 21, 2004Breaking News: Adoption of Draft Directive on the Patentability of Computer-Implemented Inventions has been postponed.The German Ministry of Justice just sends a press statement indicating that on request of the Polish delegation at today's EU Council meeting the Dutch Presidency has taken item 16 of the Official list of "A" items off the agenda.This does not mean that the political agreement as reached in May this year has failed. For now, it only means that behind the scenes the hard fighting on the Council's self-conception will continue. EU Council Votings on "A" Items: The Political Perspective.It is a pity that the Administration of the EU Council is not so far compatible with the Internet era as to provide a life video stream of the voting on the so-called "public deliberation items"; cf.my previous posting. So we are not able to watch the proceedings in order to learn what's really happening.
There are a lot of Internet publications in these days complaining that the EU Council has somehow violated the law (at least its own Rules of Procedure) when adopting the Draft Directive on the patentability of computer-implemented inventions despite the fact that the present text has been heavily criticised by Officials of various national Governments.
For example, Prof. Dr. Lenz, Member of the Advisory Board of the FFII e.V., writes:"[...] Having an approval without a vote is somewhat surprising for those lacking the deeper understanding of the Rules gained by not bothering to actually look at them. Exactly what kind of magic produces an approval without a majority?Obviously, Mr. Lenz assumes that when it comes to the adoption of "A" items on the agenda of the EU Council, each and every representative of the various EU Member States just reproduces the vote as given months earlier when the same matter was on the agenda as a "B" item. I do, however, not share such understanding. In my view, when "A" items are to be formally approved, all representatives of the EU Member States vote with "yes" or give some implied signs expressing approval. So, I would like to think the formal adoption of "A" item matters is always given unanimously irrespective of any political dissent at the time of reaching the political agreement. By the way, this also explains why Ms. Künast was so disgusted of the perspective to head the German Official delegation at today's EU Council meeting: Under the present de-facto working scheme of the Council as sketched above she would not have had a single millimetre of political space for manoevring against the Draft Directive so much disliked by her. Due to strong political reasons, not legal constraints, she simply would have had to cast her "yes" vote and be silent. The reason of such behaviour is purely due to political motivations, not due to any legal reasons. In my understanding the EU Member States are in any legal sense free to vote as they like if it comes to the adoption of "A" items on the agenda. However, they all seem to voluntarily accept an unwritten rule saying that after a political agreement has been reached on the basis of deliberations held in a "pilot language" like English, no further substantial discussion will ever be re-opened afterwards when the result of the deliberations held in that pilot language are carefully worked out in all Official languages of the EU. Why do all of the EU Member States act in compliance with such unwritten rule? I think that all involved Officials are terribly aware that the Council's capability to act would inevitably be deteriorated if a conflicting precedence case would be allowed by re-opening the political debate on the Draft Directive on the patentability of computer-implemented inventions. What would come next? There are so many controversial topics to be resolved by the EU Council. For example, a few months later a EU Member State might feel encouraged to re-open the political debate on some agricultural Draft Regulation because of some local farmers have protested against some of its clauses. In the effect, nobody could any longer be confident that the costly and tedious process of preparing and aligning translations after having reached a political agreement would make sense because of at the end of the game the EU Council might be faced with the necessity to start all over again. And, providing dozens or hundreds of translators in a room next to the hall where the representatives of the EU gather during EU Council meetings for doing the translation work in real-time and parallel to the political deliberations seems to be absolutely unworkable. In particular, extensive language checks to be done by legal and linguistic experts in order to make sure that the meaning of the agreed text is the same in all languages take many hours, if not days. The meetings of the EU Council would have to be turned into some sort of a "convent" lasting for weeks, not just hours or a few days. Raising English to the rank of a "Primary Official Language" would solve that problem but is surely not politically reachable.
And, Mr. Lenz sees a contradiction between this usual procedure of the EU Council and Article 14 of its Rules of Procedure: "Deliberations and decisions on the basis of documents and drafts drawn up in the languages provided for by the language rules in forceSo, it might well be that in May this year the preparatory documents, i.e. the results of the first reading of the European Parliament as well as the papers from the EU Commission, had been tabled in all Official languages. This does, of course, not mean that each and every twist of the political discussion during the Council's meeting has to be translated in real time into all other Official languages. Moreover, I have not heard of any complaints in accordance with Article 14 paragraph 2. Furthermore, perhaps Mr. Lenz might give a hint where the "rules in force governing languages" he thinks to be applicable are actually codified.
Monday, December 20, 2004Rumours.There are somerumours [in German only, sorry] saying that the EU Council in its Agriculture and Fisheries Configuration will not adopt the Draft Directive on the patentability of computer-implemented inventions tomorrow. I have no clue whether or not there is any substance on such reports.
[UPDATE0] (2004-12-21) FFII e.V. reports that there are quarrels behind the scenes because of Ms. Künast, German Minister for Consumer Protection, Food and Agriculture, is member of the German party Bündnis90/Greens. Ms. Künast is said to have a certain more personal problem when officially representing the Federal Republic of Germany today in the EU Council because of as a member of the Greens she is strictly against the present text of the Draft Directive on the patentability of computer-implemented inventions to be formally adopted. In this situation, the rumours say that Ms. Künast intends to waive her protocolary position as head of the German Official delegation at the EU Council in favour of another high-ranked ministerial Official or Ambassador so that she herself can't be blamed to have rubber-stamped the so much disliked Draft Directive. All such rumours are, of course, unconfirmed yet.
[UPDATE1] (2004-12-21) Document 16107/04 comprising the list of "A" items to be approved by the EU Council today in fact does exhibit the Draft Directive on the patentability of computer-implemented inventions under item number 16. The subsection title is "Public deliberation items", whatever that means.
[UPDATE2] So, now (2004-12-21) I have been told of this Press Document suggesting that "Public deliberation item" indeed means that Journalists and general public can follow the debates/deliberations (close circuit TV distribution) at the EU Council's press centre in Brussels. (I think that it must be a somewhat boring procedure but, anyway, why don't they stream that on the Internet?)
Anti-Patent Campaigners fail to understand EU Council Process.Up to now it looks as if theCouncil of the European Union ("EU Council" for short) in its Agriculture and Fisheries Configuration is set to formally adopt the Draft Directive on the patentability of computer-implemented inventions (Document 11979/04) just tomorrow. There is a big deal of brouhaha amongst various groups of anti-patent campaigners concerning this step. They argue that in Europe, democracy is now in danger because of the EU Council is set to formally adopt the Draft Directive in its Agricultural and Fisheries configuration as an "A" item without a discussion, not in the Competitiveness configuration as a "B" item with a discussion. For example, Mr. Jan Wildeboer is quoted in Groklaw as follows:"[...] The situation in Europe concerning software patents is moving from democracy to anarchy. [...]"They are all missing the point. On the meeting tomorrow, the representatives of the EU Member States will not act as politicians (this is what they already had done in May earlier this year) but, so to say, more in a fashion like a notary public: They (or their Officials accompanying them on their trip to Brussels) will have to scrutinise whether or not the English text as tabled is identical with that one on which in May 2004 a political agreement was reached, and whether or not each of the bunch of Official translations of the Draft Directive into the various other Official languages of the EU is accurate. If both conditions are met, the EU Council will do right to formally rubber-stamp the political agreement reached earlier.
I had described the gist of this two-step procedure in an earlier posting. As long as all Official languages of the EU Member States have the same weight with regard to text of secondary EU Law, there seems to be no other choice than first to choose a "pilot language" for politically deliberations on the matter in order to rubber-stamp the bulk of translations later. This is exactly what most probably will happen tomorrow.
Of course, in theory there would be a very good solution for any of such translation-related problems: Choosing English as a "Primary Official Language" for conducting all political deliberations throughout the EU, and in a second step, producing certified but non-binding translations into all other Official Languages of the EU in a later but purely administrative step, without any further involvement of the EU Council on the political level. However, it seems also to be quite clear that such solution is infeasible at least at the moment. In particular the EU Member States of the "Club Mediterrané" (i.e. the EU Member States in the Mediterranean) surely would strongly object to any such attempt to reduce the Babylonian language mix within the EU.
Thursday, December 16, 2004EU Council to rubber-stamp Draft Directive on Computer-Implemented Inventions next Week.FFII e.V. reports:"[...] According to several independent governmental sources, the software patent agreement of 18th of May will be adopted as an uncontroversial item (A-item) by the Agriculture (or Environment or Fishery) Council on Monday or Tuesday next week. Neither the Mertens group yesterday nor the diplomats at Coreper today raised any objections. Several countries made unilateral statements in which they distance themselves from the proposal and point to the European Parliament as the bearer of their hopes. [...]"There is a further report in ITworld.com which is a bit imprecise:"[...] European Union (E.U.) governments have rubber-stamped rules governing the patentability of inventions implemented by computers, known as the software patents directive, standing by an agreement they reached in May, according to an E.U. spokesman.The ambassadors gathered in COREPER can't rubber-stamp anything. However, they can pave the way for rubber-stamping by deciding to put that matter as an "A" item on the agenda of the next available EU Council meeting. This is what they actually have done. See also Document 14574/04 of the General Secretariat addressing COREPER, asking the latter to recommend the EU Council to adopt, as an "A" item on the agenda for a forthcoming meeting, the common position as in 11979/04 and the statement of reasons as in 11979/04 ADD 1, and enter in its Minutes the statements contained in the Addendum to this Note. And, moreover, there is also a further Document 14574/04 ADD 1 COR 1(en) exhibiting an interesting statement of the Dutch EU Council Presidency:"3. Statement by the Netherlands
Wednesday, December 15, 2004UK Patent Practice Working Group Meeting on "Climate Change" in view of Technicality Requirements.On theUKPTO web site the Minutes of the Patent Practice Working Group Meeting held on Tuesday October 05, 2004, at Concept House, Newport, have been published:"[...] 3. Hearings on patentabilityIndeed, the "political climate" in Europe is more and more firmly against any widening of the criteria for patentable subject-matter. To the contrary, the various anti-patent lobbyists are exercising a huge political pressure on Patent Offices and Courts to define the patentability criteria as narrow as possible. Not only in the UK but also in Germany and elsewhere. A lot of money has been wasted around 1999/2000 during the last phase of the dot-com boom era for preparing and filing patent applications directed to border areas of computer-implemented inventions which looked promising at filing date but now, under today's "political climate" conditions, are considered to be "hopeless" cases. Those investors fleeced of the patent rights for their inventions might wish to thank the various anti-patent campaigners for their losses. BTW, the last item on the agenda of the meeting was: "[...] 9.4 Website information"E-mail notification"? Sounds rather outmoded. Could please someone explain to the Internet Development Team the advantages of RSS / Atom Feeds?
Trilateral Information Dissemination Policy.TheEuropean Patent Office (EPO) just has published a statement concerning "Information Dissemination Policy and the Private Sector" on the so-called "Trilateral web site":"The Trilateral Offices considered the letter from the Trilateral Alliance of Intellectual Property Information and Services Companies addressed to the heads of the Trilateral Offices , and confirmed the following for the acceleration of patent information dissemination:Well, ... I must confess that I do not understand the gist of this text. Even Google is silent on that "22nd Memorandum of Understanding on Trilateral Cooperation in the Field of Industrial Property". Where is that ominous "letter from the Trilateral Alliance of Intellectual Property information and Services Companies addressed to the heads of the Trilateral Offices" available on the Internet? Is all that merely gobbledygook? Could anybody please give me a hint on how to read such statements? Perhaps the European Patent Office should at first start with improving the dissemination of patent-related information on the Internet by abandoning the boring page-by-page download mode currently implemented in espacenet. The publication of patent documents is already paid by the applicant's fees, so why should the Patent Offices be so much considerate of commercial document suppliers' interests?
[UPDATE] One of my readers has indicated that indeed espacenet will move towards the download of full documents next year - I obviously had missed this announcement. Thanks.
Tuesday, December 14, 2004UK Government says "no" to US Software Patent Model.There is a freshpress statement concerning today's DTI meeting on the patentability of computer-implemented inventions which was held in London:"[...] Minister for Science & Innovation, Lord Sainsbury, today outlined the Government's firm commitment to a patent system which fosters and supports innovation in all areas of technology, including inventions which rely on software.So, now I am a little bit astonished that neither FFII nor nosoftwarepatents.org have up to now published any specific complaints about that event. No doubt, such screaming and shouting will happen later this week. Most probably it was a waste of time for the DTI to try to convince those hard-nosed anti-patent campaigners anyway.
[UPDATE0] There is a report on ZDNet:"[...] At the end of a raucous meeting in London on Tuesday, the minister for science and innovation, Lord Sainsbury, and the UK Patent Office agreed to consult further on the pivotal issue of what should constitute 'technical contribution' when used to decide whether a particular software patent should be granted. [...]"[UPDATE1] There is another report in The Register.
Monday, December 13, 2004COREPER discussing Patentability of Computer-Implemented Inventions.Obviously the Dutch EU Presidency is considering how to push ahead with the formal vote of the EU Council on the Draft Directive on the patentability of computer-implemented inventions. On theagenda of the 2077th meeting of the Permanent Representatives Committee (COREPER Part 1) summoned to happen today and tomorrow there is a topic indicating that the formal adoption of the Draft Directive will be discussed. All the work of the EU Council is prepared or co-ordinated by COREPER, made up of the permanent representatives of the member states working in Brussels and of their assistants. The work of this Committee is itself prepared by some 250 committees and working groups consisting of delegates from the member states. Sources from the FFII e.V. say that this might be an indication that the Draft Directive will be adopted by the EU Council on its last session this year. However, on December 22, 2004 the EU Council will meet in the Agriculture and Fisheries configuration. Although this looks rather strange, it is not objectionable in a legal sense to adopt a patent-related Draft Directive in session of the EU Council in its Agriculture and Fiheries configuration because of there is only one EU Council usually staffed diffrently in accordance with specific topics: The Council meets in nine different configurations depending on the subjects being examined.
Thursday, December 02, 2004German Bundestag again to debate Patentability of Computer-Implemented Inventions.In myearlier posting I had reported that the FFII e.V. had obtained a draft version [in German only, sorry] dated November 10, 2004 of a multi-partisan resolution of all four parliamentary groups (Social Democrats, Greens, Christian Democratic Union plus Christian Social Union, and Liberal Democrats) to be tabled to the plenary of the lower chamber ("Bundestag") of the German Parliament later this year or early in 2005. Now, the draft has been finalised as Official Document No. 15/4403 [in German only, sorry] and officially launched for parliamentary proceedings.
Some Woes of the Spanish Government.FFII e.V. reports that the Spanish Government continues to oppose the EU Council's version of the Draft Directive on patentability of computer-implemented inventions. According to their Wiki, during a plenary session of the Spanish Senate on 1st of December 2004, the Spanish Minister of Industry, Mr. Montilla, has answered a question posed by senator Jordi Guillot on the position of Spanish government on the Draft Directive on computer-implemented inventions:"[...] the proposal of Directive should have the largest possible social consensus, given its big impact on the IT industry and all other users of IT. Some examples are some regional governments of Spain like Andalucia, Extremadura and Valencia that include open source platforms in their initiatives to promote information society. Moreover, the text debated in the Council does not reflect the general sense derived from the debates in the European Parliament. Also, only a few of the numerous amendments approved by the Parliament, and only those with little modifying effect, have been accepted by the Council. All those were the reasons that led Spanish to vote against the proposal. Delegations of Austria, Belgium and Italy abstained and, since the blocking minority was not reached, the formal common position is due to be adopted by a future Council of Ministers.Uuh ... "The will of the Government is that those inventions that are not patentable before the approval of the Directive should continue being excluded from protection of the patent legislation after the Directive takes effect", said the Minister. Where is the problem? Could please anybody explain to the Spanish Government the gist of the Draft Directive in the Council's version, thereby pointing out why it merely represents a "snapshot" of the recent case law of the Boards of Appeal of the European Patent Office?
Wednesday, December 01, 2004Extension of European Patents to Bosnia and Herzegovina (BA) .From the web site of theEuropean Patent Office:Furthermore, Lithuania today acceded to the European Patent Convention as 30th member state of the European Patent Organisation. Welcome in the EPC Club.
|