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

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Sunday, January 30, 2005

Notice to the Readers of my Blog.

As you may know, this Blog runs utilising the

blogger.com blogging system. However, blogger.com only supports an

Atom feed.

In 2004, I had utilised a certain service of

blogstreet.com in order to create a RSS compatible feed. A couple of weeks ago, blogstreet.com has ceased this service. Hence, I would like to ask you not to use any longer my RSS feed based on blogstreet.com.

Instead, I now try to utilise

feedburner.com for converting my

Atom feed into a

RSS feed where necessary. Feedburner.com should be compatible with any aggregator by checking its identification and then supplying RSS or Atom as appropriate.

No Indications so far that the Draft Directive on CII will be adopted by EU Council Tomorrow.

Tomorrow, Brussels will see the

2636th meeting of the Council of the European Union in its General Affairs and External Relations Configuration. The

list of "A" items to be adopted without further discussion does not, at the time of writing of this posting, mention the Draft Directive on the patentability of computer-implemented inventions.

The latest rumours can be

seen on Groklaw:

"[...]Two Groklaw readers in Denmark say it's in the papers there that Denmark is joining Poland in trying to slow the vote down long enough for a restart, hopefully. That's the good news.

Here's the bad. Guess who is headed to Europe and arrives the day before the JURI meeting on the 2nd? Bill Gates himself. This is getting to be like an old James Bond flick. [...]"

So, I'm again curious what actually will happen next week.

Saturday, January 29, 2005

Draft Commission Regulation Amending Regulation (Ec) No. 2869/95 on the Fees Payable to OHIM.

From the

UK-PTO website:

Proposed Reduction of Fees

1. In November 2005, the Office for Harmonization of the Internal Market (OHIM) will have been in operation for nearly ten years and will start accepting requests for renewal of the oldest Community trade mark registrations. This new stream of revenue will substantially change the financial position of OHIM. Article 139 of the Community Trade Mark Regulation specifies that "the fees shall be fixed at such a level as to ensure that the revenue in respect thereof is in principle sufficient for the budget of the Office to be balanced." This new revenue stream presents the European Commission with an opportunity to review and propose a general reduction in the fees payable to ensure the maintenance of a balanced budget as required by Article 139.

2. The Commission has therefore presented the attached draft Regulation for consideration by the Commission Working Group (Trade Marks). The proposal includes a substantial reduction to many fees such as the filing fee and renewal fee. A further reduction is proposed for applications that are filed electronically.

3. The proposal also includes increases to some fees with a smaller impact on the overall budget. These increases relate to the opposition, cancellation and appeal fees, with the Commission explaining that they better reflect their actual value.

4. The Working Group will next meet on 17 March 2005 when a detailed discussion of these fee reductions will take place.

5. If you wish to comment on this proposal, or if you have any questions concerning available options, please let me know by Friday, 11 March 2004. You can send your comments by e-mail, fax or letter to:

Mark Bryant
Room 3B46
The Patent Office
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ

Tel: +44 (0)1633 814792
Fax: +44 (0)1633 814922
E-mail: mark.bryant@patent.gov.uk

See also

ECTA's position on this issue.

Friday, January 28, 2005

The Risks of OSS Utilisation in the Context of a Commercial Business.

A couple of months ago a Client had asked me for an opinion concerning legal risks of including some Open Source Software (OSS) into a proprietary product. After inspection of the relevant software packages (some mathematical libraries) in depth it turned out that they all were licensed under some kind of BSD-style license which should not bar any commercial utilisation.

However, what indeed surprised me a little bit was a flavour of sloppiness of the legal documentation attached to the source code files. One of the OSS projects concerned was shipped with different license texts in the module headers. Which of the variants should be considered as legally binding? Another point was that in view of another OSS project there were prima facie problems with the list of contributors. In the headers of the source code modules only one person was named. However, on

sourceforge a list of developers was named. Something seems to be wrong. Most probably the list of developers on sourceforge was more or less up-to-date but the headers of the source code modules had not been updated since those time when the original founder of the project had started with coding. In a third case a University was named in the Copyright list. It was quite unclear what role this institution actually had played in the context of software development and whether or not the OSS licensing had been approved by any competent person acting on behalf of said University.

Regardless of whether OSS is distributed under the GNU GPL or (like the case discussed above) under some BSD style license, it should be strived by all persons involved for keeping the legal documentation up to date at any time. Under all circumstances the documentation should state the correct license text as well as a correct list of contributors as well as the extent of the particular contribution of each contributor.

I would like to guess that with regard to the SCO lawsuits all high-profile OSS projects like the Linux kernel development have reconsidered their documentation practice. However, there are many smaller and less prominent projects out there where substantial problems might exist in this respect.

A risk for any business using OSS might, for example, be that later on some person shows up, explaining that he or she is also a contributor to the source code but never has agreed to the dissemination under an OSS license. Such scenarios might theoretically also be utilised as a tool for attacking OSS projects by deliberately causing legal problems by improperly injecting code into the codebase.

I do not want to be misunderstood. I do not want to say that this risk is not manageable and that therefore businesses should refrain from using OSS. But I would like to point out that some parts of the ongoing discussion on legal risks of the utilisation of OSS might miss the point. Some main problems appearing during the coming years might perhaps not arise from particular problems of the license texts as such but from more factual problems, in particular the determination of who actually has contributed to the source code and under which conditions.

Hence, maintainers of OSS projects might wish to ensure that so far the project documentation is up-to-date at any time.

Thursday, January 27, 2005

Patent-Related Clauses in Sun's CDDL.

From Sun's

Common Development and Distribution License (CDDL) Version 1.0:

"[...] 6. TERMINATION.

[...]

6.2. If You assert a patent infringement claim (excluding declaratory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You assert such claim is referred to as �Participant�) alleging that the Participant Software (meaning the Contributor Version where the Participant is a Contributor or the Original Software where the Participant is the Initial Developer) directly or indirectly infringes any patent, then any and all rights granted directly or indirectly to You by such Participant, the Initial Developer (if the Initial Developer is not the Participant) and all Contributors under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively and automatically at the expiration of such 60 day notice period, unless if within such 60 day period You withdraw Your claim with respect to the Participant Software against such Participant either unilaterally or pursuant to a written agreement with Participant.

6.3. If You assert a patent infringement claim against Participant alleging that the Participant Software directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.

6.4. In the event of termination under Sections 6.1 or 6.2 above, all end user licenses that have been validly granted by You or any distributor hereunder prior to termination (excluding licenses granted to You by any distributor) shall survive termination. [...]"

Interesting. Surely a better approach to find a status of co-existence between Open Source Software (OSS), on the one hand, and patents on computer-implemented inventions, on the other hand, than that futile fight of those anti-patent campaigners against any patentability of such kind of inventions. However, the above clauses should be carefully checked against applicable EU law.

Finally They have Come to Their Senses: DE-BVDW Now Supporting EU Council's Version of CII Regulation.

The German

Bundesverband Digitale Wirtschaft (BVDW) e.V (German Federal Association of Digital Economy) have now eventually chosen

to support the EU Draft Directive on the patentability of computer-implemented inventions in the form as politically agreed upon by the EU Council in May last year. In former times the Association had been more sceptical towards the EU proposal. This latest turn of events is a blow to the various anti-patent NGOs because of the BVDW represents

numerous SMEs of the digital economy which were said (by anti-patent campaigners) to be more or less unanimously against the Draft EU legislation.

Meanwhile there are

saying that the Polish branches of Siemens, Nokia, Philips, Ericsson and Alcatel have communicated to the Polish Prime Minister, Mr Belka, a letter with their official statement on the patent directive. This letter is said obbying Poland to accept the directive in the form as politically agreed upon by the EU Council in May last year.

Wednesday, January 26, 2005

epoline Annual Conference 2004.

Last year, the

epoline Annual Conference was held in Salzburg, Austria, on 23 and 24 November 2004. I had been invited as a speaker, and now I have converted the slides of my presentation "Quo Vadis? - Does IT really matter for Patent Professionals?" to a

PowerPoint file. I have been talking about electronic filing, blogs, and social networking software. Some main topics thereof:

Most probably, electronic filing will never live up to the expectations unless there is a global open XML-based standard for exchange of IP business data not only between applicants (or their representatives), on the one hand, and the Patent Offices. Also needed is an open XML-based standard for exchanging IP business data between law firms (private practices), on the one hand, and their clients, on the other hand, as well as for IP business data exchange amongst law firms (private practices). If electronic filing is effectively restricted to communications with the Offices then law firms (private practices) will see little incentives to invest in such eCommerce technologies. At the time being, only the Patent Offices have real benefits from the introduction of the electronic filing procedures: They can avoid the costly step of proofreading raw OCR results. The law firms (private practices) merely have the costs and problems associated with the introduction of the electronic filing procedures. This might change if also the communication in all directions is taken away from traditional paper-based methods.
Blogs will be an important tool for facilitating communication between the general public and patent professionals. An important example quite drastically demonstrating the necessity of improving the communication between patent professionals and the general public (in particular the media and politicians) is the ongoing debate on the patentability of computer-implemented inventions. It appears to be quite a disaster how much the communication between patent professionals, on the one hand, and the general public, on the other hand, has been hampered by a very effective dissemination of numerous misrepresentations and lies of the various anti-patent lobbying groups by exploiting their superiority in terms of Internet utilisation. In fact the Internet has dramatically changed the rules of public communications. The various anti-patent NGOs are widely enjoying the benefits of their extended Internet skills. They are in fact forming geographically distributed 'on-line communities' with flat hierarchies. This establishes a fast flow of information amongst the acting persons, enabling quick political actions on short-term notice if so needed. In contrast, patent professionals as well as their Institutes and associations are in fact insofar effectively handicapped because of their respective communication structures are different. They do not have in common anything like such on-line community. Their groups tend to be structured more hierarchically, and the dissemination of relevant information amongst all of the patent professionals is accomplished in a slow top-down manner, preferably by traditional paper-based media. However, it would not be surprising if in future the political processes of formation of opinion in the general public will turn more and more to the Internet, thereby causing that such groups organised as on-line communities will eventually set the pace. If this should be true, groups in a more traditional way might be earmarked as losers of the future. Hence, the patent professionals and their associations and Institutes might perhaps wish to adapt soon or risk that their voices will doomed to be heard less than ever. In the US, a handful of patent attorneys have started blogging, and as usual, the Europeans are lagging behind.
Finally, I have done some speculative assessment of social networking software and its future potential and limitations concerning the IP business.

BTW, the organisation of the event by the epoline team was superb, and it was fun to be a speaker.

Sun Grants Global Open Source Community Access to More than 1,600 Patents.

Just

seen on the web (See also

"SANTA CLARA, Calif., Jan. 25 /PRNewswire-FirstCall/ - Sun Microsystems, Inc. (Nasdaq: SUNW) today announced the largest single release of patent innovations into the open source community by any organization to date, marking a significant shift in the way Sun positions its intellectual property portfolio. By giving open source developers free access to Sun(TM) OpenSolaris related patents under the Common Development and Distribution License (CDDL), the company is fostering open innovation and establishing a leadership role in the framework of a patent commons that will be recognized across the globe.

'As the largest business contributor to the open source community, Sun has always been an ardent believer in open standards and the open source process going back to the inception of this company,' said Scott McNealy, Chairman and CEO, Sun Microsystems, Inc. 'The release of more than 1,600 patents associated with the Solaris(TM) OS far eclipses any other vendor's contribution. Today represents a huge milestone for Sun, for the community, for developers and for customers.'

Sun's goal in offering access to these patents is to help facilitate innovation and help users get new open source products and technologies to market faster without having to obtain patent licenses from Sun. The new approach underscores Sun's belief that license agreements for software are not as significant as the company who stands behind its products. Sun is also addressing current issues and increased scrutiny in U.S. and international patent law which has increasingly granted overly broad patents on abstract processes.

In removing the emphasis on intellectual-property rights as an inhibitor to innovation, Sun is leveling the playing field in key emerging markets and helping to revive an innovation system that is straining under a record number of patent filings globally. More markets are looking for ways to monetize their knowledge economy and patents are becoming the profit center. With growing attention on locking up intellectual property in countries like China - which has seen a five-fold increase in the number of patent filings from 1991 to 2001 - Sun is ensuring that software will be available to open source developers and that progress continues unabated.

'By gaining access to these Solaris OS patents, participants in the open-source community now have a tremendous opportunity to build unique and innovative technologies for a wide range of markets,' said Stacey Quandt, Senior Business Analyst, Open Source Practice Leader, Robert Frances Group. 'An IP contribution of this magnitude has the potential to deliver exceptional value to developers and strengthens the overall open source community.'

Addressing the patent system that is under siege, Sun's pledge of open access reduces the quagmire for developers who previously had to walk through a minefield to avoid infringement and enables them to confidently produce derivative works without fear of reprisal or patent claims.

Radically reducing risks associated with using and developing open source software, Sun is firmly standing behind our products and the worldwide development community. Armed with access to Solaris OS platform intellectual property, OpenSolaris developers and customers alike no longer need patent protection or indemnity from Sun's and other participants in the OpenSolaris community for use of Solaris-based technologies under the CDDL and OpenSolaris community process.

By releasing the OpenSolaris OS platform under the CDDL, the open source community will immediately gain access to 1,600 active Sun patents for all aspects of operating system technologies that encompass features ranging from kernel technology and file systems to network management, to name a few. Patents for Sun's newest technologies, such as the anticipated Dynamic Tracing technology, will also be available under the open access program. [...]"

So, IBM offers 500 patents. SUN does so with 1.600+ patents. Anybody to outbid this?

Monday, January 24, 2005

What about the EU Council's Agenda?

Today, Mon, 24 Jan 2005 14:01:20, Mr. Bruno Waterfield of

www.eupolitix.com

"Governments back EU software patent

Europe�s governments have reached agreement on an EU software patent despite concerns over the legislation�s impact on business.

The controversial rules � which critics argue could hit competition in Europe�s �1 billion software market � are now set for a battle in the European Parliament.

National capitals have buried differences over the EU patent law in spite of lingering concerns that small or medium sized software firms could lose.

Poland, with some support in Hungary, Latvia, and the Netherlands, has ended deadlock, leaving MEPs set to raise concerns in a second parliament reading.

Warsaw has blocked progress on the patent claiming that the rules will damage Polish business � fears that will surface when parliament debates the legislation again.

On a first reading MEPs tried to limit the impact of the EU patent on software by restricting its scope to computer-related inventions.

The 'Computer Implemented Inventions Directive' is regarded in Brussels as a key test for future competitiveness.

"The European Commission warmly welcomes the political agreement," said a spokesman on Monday."

Er, provided that this message is right, does that mean that those

anti-patent campaigners have been fooled by the EU Council's administration in view of

today's agenda for the 2635th meeting of the Council of the European Union in its Agriculture and Fisheries configuration? Or is it simply a fake message?

[UPDATE_0] 2004-01-24 16:03 Ok., just now they have withdrawn their report:

"CORRECTION: Europe�s governments have not reached an expected agreement on an EU software patent amid continuing concerns over the legislation�s impact on business. [...]"

[UPDATE_1] 2004-01-24 16:14 See also on

Heise Newsticker.

[UPDATE_2] 2004-01-25 10:45

From zdnet.co.uk:

"[...] An EU Council spokeswoman said on Monday that the Computer Implemented Inventions Directive (CIID), which many say will allow widespread software patenting in Europe, is likely to be ratified on 31 January. [...]"

Saturday, January 22, 2005

DE-CSU: "The language of the Federal Republic of Germany shall be German".

According to a

press report [in German only, sorry], the Secretary General of the Christian Social Union (

CSU, the Bavarian counterpart to the Christian Democratic Union,

CDU, established elsewhere in Germany), Mr. Markus Söder, has argued in favour of a proposed amendment of the German Basic Law (in other countries such law would be called "constitution") stipulating that "The language of the Federal Republic of Germany shall be German". Up to now, there are only statutory regulations in various laws setting out that German is the default language to be used by the authorities and the courts.

I am not in favour of any such motions to install the German language even tighter into the law. There are huge problems within the EU caused by the Babylonian multitude of Official languages throughout the various EU Member States. We will have to reduce this huge number of languages required for official purposes in order to keep the EU procedures workable.

If the CSU proposal were actually implemented it could, for example, be much more difficult to reach a political solution concerning the problem of the translation of European Patents into the Official languages of the designated states. A very convincing proposal supported by the industry and which is also an aspect of the

London Agreement is to accept English as a common language for patent publications. Such pragmatic solutions might be rendered virtually impossible if the German language would be constitutionally enshrined as the obligatory language throughout Germany. Perhaps even this website might become illegal because of I refrain to provide my blog and other related contents also in German.

We should be prepared to accept English as the "pilot language" for all Official purposes in the context of the EU integration.

Poland again to seek EU Software Patent Rule Delay.

campaignforcreativity.org writes:

"BRUSSELS, Jan 21 (Reuters) - Poland will again seek to put off the adoption of controversial new rules on patenting computer inventions if European Union ministers decide to debate the issue next week, the Polish government said on Friday.

The planned law has sparked a heated debate on whether the EU should steer away from patenting computer programmes or follow the U.S. model of granting patents to Internet business methods such as online bookseller Amazon's famous "one-click shopping".

Poland, a large EU member whose backing is crucial for the adoption of the proposed rules, says it did not withdraw support of the planned law but said it wanted to ensure the rules would not open the door to the patenting of pure computer software.

EU President Luxembourg has hoped Poland would approve the planned legislation at an EU ministers meeting on Monday, but the Warsaw government said it was not yet ready. "If the Luxembourg president decides to include the draft of this directive in the agenda of the meeting, Poland will ask for its removal and postponement until Poland finishes all necessary analyses," the government's European Integration Committee said in a statement.

Poland raised eyebrows among many governments in December when EU ministers were expected simply to rubberstamp a compromise text agreed in May after tough discussions which saw several countries abstaining and one, Spain, voting against.

Diplomats say the delay may restart a debate on the issue and pave the way for more aggressive lobbying from the Open Source community of independent software developers, who oppose the rules and fear they may stifle innovation and favour large IT players.

The European Parliament, whose support is needed for the rules to become EU law, has already clashed with EU governments by proposing to restrict the scope of inventions that would be patentable.

Poland is concerned that the proposed legislation, in its current shape, could harm the operations of small software developers while favouring big ones, such as Microsoft, officials say."

I am curious. Let's wait and see.

[UPDATE_0] 2005-01-22 See also

this information on the FFII website.

[UPDATE_1] 2005-01-22 There are also other reports like

"[...] The current deadlock over the European Union's fiercely contested plans to allow patents for software will be unblocked next week when Poland gives the green light to a controversial deal struck by ministers last May. [...]"

It's confusing. Really.

Thursday, January 20, 2005

EU Draft Directive on Patentability of CII back on the Agenda of the EU Council on 2005-01-25?

From the

FFII e.V. website:

"[...] Brussels, Wednesday 19th Jan 2005 -- The EU Software Patent Directive has been or will be scheduled on the agenda of the Agriculture and Fishery Meeting of the 24th of January as an A item, i.e. an item that is to be adopted without a vote. This was announced today by officials of the European Commission and of the EU Council Presidency at various meetings. The entry is not on the official meeting calendar yet. [...]"

Tuesday, January 18, 2005

IP Protection & Awareness in Europe deserves to be improved.

From the

Innobarometer 2004:

"[...] - The vast majority of innovative enterprises have not taken steps to protect their invention through patenting or trademark registration -

Only a small minority of innovative enterprises in the EU have taken measures to protect their intellectual property through patenting or the registration of international trademarks.

As the graph below shows only 12% of firms interviewed have applied for a patent and only 14% have actually registered one or more international trademarks. Given the high proportion of enterprises confirming that they have introduced new products or services, this result is somewhat surprising. This could be explained by the irrelevance of patents for firms in the service sector but we could nevertheless wonder if certain firms are receiving an adequate financial award for their invention as the vast majority have not even requested the licence for exclusive rights to sell their innovative product. [...]"

Furthermore, there is another interesting statement:

"[...] The typology breakdown shows that the 'successful, innovative' group can be singled out for the relatively higher proportions of enterprises which have applied for a patent (41%) and those which have registered one or more international trademarks (46%) compared to the respective average results for the European Union. [...]"

Perhaps the anti-patent campaigners of

FFII e.V. might take notice thereof. More IP, more success. Or vice versa.

Fresh Disputes around Server-based Blog Aggregators.

I am used to utilise

bloglines.com as my server-based RSS/ATOM feed aggregator. I think that it provides a great service for free and, what counts most for me, I can use it from any computer which is connected to the Internet. No client-based RSS/ATOM feed aggregator could do that job for me.

However, every server-based news aggregator inevitably makes its business by re-distributing content of third parties. And here the quarrels start.

Mr. Martin Schwimmer operates his well-known

Trademark Blog. Last Friday he had

posted as follows:

"This website is published under a Creative Commons license that allows for non-commercial use, provided there is attribution. Commercial use and derivative works are prohibited.

It was brought to my attention that a website named Bloglines was reproducing the Trademark Blog, surrounding it with its own frame, stripping the page of my contact info. It identifies itself as a news aggregator. It is not authorized to reproduce my content nor to change the appearance of my pages, which it does. In response to my inquiry to Blogline's CEO as to whether they sell advertising, he indicated that they 'are not currently running advertising.' Nevertheless, the Blogline's home page currently is soliciting 'targeted advertisements.' I would also assume that Blogline is accumulating commercially-useful mailing lists (its privacy policy appears to allow it to sell information). The privacy policy also has a provision entitled 'mergers and acquisitions' clearly allowing it to sell its lists.

Thus, in my view, Bloglines' reproduction of my site is a commercial derivative work. Bloglines has agreed to remove my site from its service and I thank it in advance for its cooperation. [...]"

On Saturday January 15, 2005 Mr. Schwimmer

"[...] It's not so much the stripping of the frame thing that bothers me - it's the prospect of:

Creating the free content for advertisements that Bloglines will sell to other trademark law firms. This isn't baseless conjecture - read this discussion of Bloglines' plans for advertising keyed to the content of blogs. At least with Google's contextual ad program, the blog creator gets some money.

Bloglines is also accumulating and possibly selling a list of my subscribers without so much as a hello, how are you, may we do this? My decision to remove my site, viewed as rash by some, was triggered as much as what I viewed as the disingenuous nature of the response I received from Blogline when I wrote them.

That bothers me more than the frame stripping. I know that other RSS readers frame strip. [...]"

Mr. Schwimmer has demanded bloglines.com to stop distributing his RSS feed, and they have complied. In the effect, Mr. Schwimmer's Blog is now inaccessible via bloglines.com.

Recently there have been

similar disputes in Germany concerning another server-based news aggregator [In German only].

What about a possible solution? It would be extremely disappointing if the blogosphere would not only be divided into various RSS and ATOM formats for XML feeds but also by wars between various camps about acceptable business models for content aggregators, in particular for server-based content aggregators. And I know for sure that I will continue to utilise a server-based aggregator service, be it bloglines or something different. And I can't afford to go manually to Mr. Schwimmer's Blog. Sorry, but with much regret I think I will then have to abandon reading the Trademark Blog rather than to switch to some client-based software deemed to be acceptable for Mr. Schwimmer.

[UPDATE] 2005-01-19 See also

Mr. Dennis Kennedy's post on that matter.

Thursday, January 13, 2005

EVCA strongly encourages Council to adopt Directive on Computer-Implemented Inventions.

Quoted from a

EVCA position statement:

"[...] EVCA strongly encourages the Council to adopt the proposal for a Directive on Computer-Implemented Inventions (CII) as per the political agreement of the Council of 18 May 2004. [...]"

The European Private Equity and Venture Capital Association (EVCA) has over 900 members of which a significant number invest in young innovative companies developing new and inventive software.

Tuesday, January 11, 2005

IBM's Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS.

IBM has taken

a strong action concerning its patent portfolo vis-a-vis Open Source Software ("OSS"):

"[...] IBM hereby commits not to assert any of the 500 U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software.

In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software. [...]"

What follows is a list of 500 U.S. patent numbers and a very interesting statement:

"[...] IBM's Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS

The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program�s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge..

Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software.

In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software. [...]"

This means that IBM not only waives the right to enforce a considerable list of patents against OSS but also threatens any third party daring to attack OSS with their respective own patent portfolio. I think such move is unprecedented in the entire history of patent practise. It underlines that IBM sees itself as one of the major players in the OSS game - they have built a lot of their business around it. IBM is part of the OSS community, and they act in conformity therewith - despite the fact that other guys who pretend to be the real representatives of OSS would like to disagree.

A Leader on ZDnet.co.uk says:

IBM's decision to make five hundred patents available for open source use is a welcome start to 2005. Despite Bill Gates' recent comparison of open source reformers with communists, the most compelling analysis of IBM's move is that it is entirely in the company's capitalistic interests so to do. It has decided that open source creates an environment in which it can be competitive: patents threaten open source. By making a public, irrevocable and unambiguous commitment to use its patents in a way that encourages open source development, IBM expects to reap concrete commercial advantages. This is not a philosophical or moral decision.
[...]"

And what do those anti-patent campaigners do? Do they appreciate IBM's move? As it might have been expected they are dismayed.

Nosoftwarepatents.org shouts:

"[...] Recently IBM made an unsubstantial non-aggression promise with respect to Linux, and now they show off again. It's just diversionary tactics. Let's put this into perspective: We're talking about roughly 1% of IBM's worldwide patent portfolio. They file that number of patents in about a month's time.

In Europe, IBM is a driving force behind the extension of the scope of patentability with respect to software. If IBM wants to assume the role of a post-Christmas benefactor, they'd better stop their aggressive patent lobbying in the EU and their shameless squeezing of small and medium-sized companies with that IBM 'patent tax'. Let's take it from there. We can still talk about some kind of patent pittance after that. [...]"

And Mr. James Heald (

"At the most basic level, this is obviously a good thing for OSS projects, because here are 500 patents OSS developers no longer have to worry about. IBM have indicated that this is only the beginning, and I hope that other companies will follow its lead.

It's also I think a clear recognition of the commercial benefits that IBM is seeing from Open Source software; and the particular difficulties that patents present for OSS.

So on that level it's a welcome piece of enlightened self-interest from IBM.

But it's unfortunate that software patents exist, that this sort of gracious permission is even necessary.

And it unfortunately does nothing to protect OSS and SMEs from patent attack from other companies out there, who may not share IBM's interests in promoting Open Source (including of course one rather large company from Redmond).

Ultimately this is at best only a sideshow. We should not get distracted from the real software patent issue, which is getting a directive which clearly confirms no software patents in Europe."

On the same line of arguing, the Leader quoted above concludes:

"[...] IBM needs to go further. As a member of EICTA, it remains publicly committed to a strong software patent regime in Europe: a strange position for a company simultaneously trying to negate the dangers of the American system. At the least, it needs to make its European position consistent with today's action -- and the time to do so is now, as momentum builds within the European Union for a complete rethink on the issue. [...]"

All this appears to be misguided. Why should the closed-source part of the software business be deprived of the patent protection for its computer-implemented inventions if the survival of OSS business concepts can be safeguarded by other less drastic means?

See also the discussion on

EP Motion set to fail?

In my

yesterday's blog I had reported about a motion of 61 MEPs to re-start the legislative procedure for the EU Draft Directive on the patentability of computer-implemented inventions suggesting to have a second "first reading" of the proposal in the European Parliament. Today it becomes apparent that this motion might be doomed to fail. Moreover, there seem also some political tensions between the Greens in the Parliament, on the one hand, and

FFII e.V. as well as

nosoftwarepatents.com, on the other hand.

euractiv.com writes:

"[...] There was no indication on 10 January that the motion would stand a chance of being voted on by Parliament any time soon. Under article 55 of the Parliament's rules of procedures, the initiative would need to come from the committee in charge of the dossier.

But the plan could end up going nowhere as it failed to secure support from Green MEPs who have persistently campaigned against the patentability of computer-implemented inventions (CII).

A spokesperson for the Greens told EurActiv that the initiative 'will fail' as it would first need approval from the Conference of Presidents of political parties in parliament. The group, he added, could end up damaging the whole project of blocking the patentability of computer-implemented inventions. 'This is not the right way to do it,' said the spokesperson. [...]"

The anti-patent camp in the European Parliament seems to be divided into

a group of MEPs (many of them from Poland) supporting the motion and others preferring to carry on with the result of the first reading of 2003.

Furthermore,

TechWorld writes:

"[...] The Commission declined comment on the motion to restart the legislative process or to specify when the Council vote is now expected to take place.

While the motion has a real chance of derailing the progress of the Council of Ministers' version of the 'Patentability of Computer-implemented Inventions' directive, Leo Baumann of the European IT and communications industry association (EICTA), said he doesn't expect the group will be successful in its request. "It's possible to do that but you need a majority of the European Parliament and the approval of the conference of presidents (leaders of the political groups). I don't expect it to happen," Baumann said.

The EICTA believes that some software needs patent protection. Its members include software firms like Microsoft, SAP and Sun, hardware makers like HP and Intel and telecom companies like Ericsson and Nokia.

The EICTA has warned that restarting the legislative process would only succeed in continuing the current uncertainty over patenting computer-implemented inventions, possibly for years. Thus far, the EU has been unable to bring into line the myriad interpretations given to patent law by different European national courts. [...]"

[UPDATE0] 2005-01-11 The Parliamentary Group of the Greens in the German Bundestag seems to think positively about the re-start motion; see this

press statement (Sorry; in German).

[UPDATE1] 2005-01-14 Now it appears as if also

the Parliamentary Group of the Greens in the European Parliament supports a motion to re-start the procedure [In German only; sorry]. More press coverage

Monday, January 10, 2005

Mr. Jerzy Buzek and other MEPs requesting to re-start with EU Legislation on Patentability of Computer-Implemented Inventions.

FFII

reports that:

"[...] A motion for a resolution, signed by 61 Members of the European Parliament (MEPs), calls for a new first reading of the software patent directive. The motion has received particularly warm support from MEPs from Poland and other new member states. However, many veteran MEPs also welcome the initiative as a way out of a crisis, into which the Council is preceived to have plunged the directive project by failing to conduct a proper first reading. [...] The motion, initiated by Jerzy Buzek (Christian Democrats, former prime minister of Poland) and Adam Gierek (Socialists, Poland), sees two conditions fulfilled, each of which allows a return to first reading according to the procedural rules of the European Parliament.

The first reason is that since the previous first reading, the situation has substantially changed. Here the motion cites recent concerns about patent risks for public administrations and indemnification obligations imposed on service providers. Secondly, the Parliament itself changed by elections, in which 10 countries voted for the first time.

Among the signatories are many prominent MEPs, including a former Commissioner, several vice presidents of the EP, vice chairmen of several groups, members of the bureau of several groups and a multitude of (main and vice) chairmen and chairwomen of various committees (including the JURI Committee, which is responsible for this directive in the European Parliament). According to sources in the EP, many more MEPs wanted to sign the motion but could not be included due to time constraints. According to the Parliament's rules of procedure, the question of "renewed referral" (rule 55) must be decided immediately after a directive returns to the Parliament, and a return was to be expected any time during the last few months. [...]"

There is also

some coverage on nosoftwarepatents.com and, in German, on

heise.de.

Why are those anti-patent campaigners attempting to re-start the legislative process? Haven't they got the

maximum of their wishes during the first reading of the Commission's proposal in 2003?

I am inclined to think that the chief strategists on the anti-patent campaigner's side (having mooted such move since several weeks together with their political allies amongst the MEPs), namely Mr. Pilch and Mr. Müller, have recognised that in 2003 the anti-patent movement has overshot their mark by introducing a bunch of partially self-contradictory amendments into the result of said first reading. They might think that it was too easy for the EU Council to put aside many of the amendments adopted by the European Parliament during the first reading because of such flaws in the resulting text. Having a second chance to get from the Parliament another version of a very restrictive Draft Directive without such flaws might be one reason. And, if the EU Parliament gets a second chance to propose an amended text to the EU Council, there would necessarily be another political debate amongst the representatives of the EU Member States, effectively cancelling the

political agreement as reached in May 2004.

The best way to escape the current turmoil might, however, be the EU Commission to simply withdraw the original proposal tabled in 2002. Then the game would be over, and the anti-patent activists would be effectively blocked destructing the patent system on EU level. Perhaps the present motion of the EU Parliamentarians might open such option. Then the matter could be left for ten years or so to the competent Courts in the various EU Member States and to the Boards of Appeal of the European Patent Office (EPO).

Tuesday, January 04, 2005

Mr. Martin Sick Nielsen of AIPPI on the 11th Meeting of the OAMI Users� Group.

The

AIPPI has published a

report drawn up by Mr. Martin Sick Nielsen on the 11th Meeting of the OAMI Users� Group in Alicante, Spain, November 29, 2004. There are interesting aspects; e.g. that the OHIM plans to introduce electronic file inspection later this year.

Trade Marks might be affected by Proposal to Regulate Nutrition and Health Claims Made of Foods.

I wasn't aware of this but

thanks to the UK-PTO website I now know of the following:

"The purpose of this communication is to draw your attention to the possible consequences for owners of brand names (including registered and unregistered trade marks) of a proposal for a Regulation of the European Parliament and of the Council on nutrition and health claims made on foods (COM (2003) 424 ).

The proposed Regulation aims to harmonise Community rules on the use of nutrition and health claims on food in order to protect consumers from false and misleading claims and to enable free movement of goods within the Community. It will establish a positive list of permitted nutrition claims and procedures for pre-market authorisation of health claims. In the UK, this will replace the present voluntary system which operates with an agreed code of practice and a system to authorise health claims.

Within the meaning of the Regulation, some brand names may be considered as nutrition or health claims and unless they are "permitted" or have obtained "pre-market authorisation" their use will not be allowed. [...]"

Golly Gosh. I strongly dislike this "nanny" attitude of the EU Commission in nutrition and/or health matters vis-a-vis the consumers which all seem to be deemed incompetent.

FT.com: "Many fear that, after an already tortuous process, the fight could drag on into 2006"

Mr. Tobias Buck

writes in FT.com concerning the EU Draft Directive on the patentability of computer-implemented inventions:

"[...] Officials still expect the draft law to be waved through by the member states later this year. However, that will mean that the text is passed on to the European parliament for its approval - which is widely expected to put up even tougher resistance to the idea of patents in the software industry.

Many fear that, after an already tortuous process, the fight could drag on into 2006."

We shall wait and see.

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