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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, April 20, 2005Debate on CII in Legal Affairs Committee of the European Parliament.Mr. Michel Rocard, former French Prime Minister, Rapporteur of the Legal Affairs Committee of the European Parliament for the Draft Directive on the patentability of computer-implemented inventions, is an outspoken opponent of the Common Position on the Draft Directive on the patentability of computer-implemented inventions (CII) finalised by the EU Council last March; see my earlier postings here and there. He has authored a  Document de Travail [in French only] setting out his thoughts on that subject.In particular, Mr Rocard seeks to introduce into the Directive a clause according to which a technical contribution must be defined as a 'controllable force of nature' or in terms of 'physical forces'. Such a narrow definition would obviously remove protection from inventions in a wide range of 21st century technologies, for example in view of computer-based technologies making use of physical considerations but not actually interfereing with any real-time physical interaction. Mr. Rocard also presses for severe limits on patentability of inventions that interoperate with other products or services. Removing protection for this aspect of computer-implemented inventions would in effect mean that they shall have no protection at all. In detail, Mr. Rocard writes: "[...] Afin que la directive puisse permettre le brevetage d'inventions contrôlées par ordinateur tout en empêchant la brevetabilité des logiciels, il sera nécessaire d'intervenir sur les points suivants :In particular Mr. Rocard's proposal to re-name the Directive from "patentability of computer-implemented inventions" to "patentability of computer-controlled inventions" or "patentability of computer-assisted inventions" makes me quite suspicious that he perhaps might not really have understood the very basics of the patent law: The distinction of the invention, on the one hand, seated in the realm of the intangible s, from the implementation or embodiment thereof, on the other hand, seated on the real world of tangibles and natural forces. Can an invention ever be "assisted" or even "controlled" in any meaningful sense of the strict concept thereof? Meanwhile the print edition April May 2005 issue 11 of the 'Intellectual Asset Management Magazine'("iam") is out, bringing a cover story with a dispute between Mr. Craig Opperman, a U.S. Patent Attorney working in California, and Mr. Jason Schultz, manager of EFF's Patent Busting Project. Mr. Opperman writes:"[...] I am not sure that underlying patent philosophy is to grant patents only to induce inventions that would otherwise not be made. Patents never have been intended to be an alternative to first-to-market incentives and many innovation incentives exist: first-to-market, patents, and others. Even so, there is plenty of evidence that software patents induce innovation. Many software start-ups would not have been financed without patent filings. Without funding, they would not have brought products to market, and would instead have languished with nothing more than ideas. Thus, patents are linked to capital, which in turn funds innovation. [...] It is precisely because software is so easily reproducible that software innovations should be patented. If they were not, the software giants would relentlessly copy young, innovative companies, and, because of their substantial resources, would squelch them. Survival of the fittest would become survival of the fattest ad, without software patents, few would compete in markets dominated by the behemoths, and innovation would be reduced substantially. [...]"Mr. Schultz refuses this view: "[...] In the United States, the power to grant patents comes from the US Constitution which states that Congress shall grant patents and copyrights to: 'Promote the Progress of Science and Useful Arts.' Thus, it is generally agreed that patents are granted as incentives to increase the rate of innovation and artistic progress, not imply as protection schemes to prevent larger competitors from entering marketplaces of smaller companies. This, the central question for any patent policy discussion, at least in the US, is this: does the particular patent regulation in question give us additional innovation and social benefit that the public would not otherwise enjoy without the regulation? If the amount of innovation is the same as we would otherwise have, than the regulation does not serve any public interest. [...] There is no doubt that many VCs require patent portfolios as escrow before investing. But this may be because they want to maximise their return, not because of they want to maximise overall innovation or public good."One point is to remark here that this debate is quite U.S.-centred in view of a certain particular promulgation in the quoted clause of the U.S. Constitution. As far as I do know we do not have similar clauses in Europe, at least not in Germany. The legitimacy of patenting computer-implemented inventions is not singularly bound to the creation of an additional amount of innovation. A second point is that Mr. Schultz is playing down the role of corporate profits. In a fashionable mood he groups the public interest as standing opposed to corporate profits. Is this really true under all circumstances? I doubt. Perhaps it is necessary to have a broader discussion of Adam Smith in the context of patenting.
Saturday, April 16, 2005Munich Court Again Enforcing GPL.Fromgpl-violations.org:"Munich court grants preliminary injunction halting salesThis is not the first injunction granted by the Munich Court on the basis of the GPL clauses. So, at least in the Court District of Munich the mandatory source-code distribution clauses of the GPL should be deemed as enforceable. And, there are at the time being absolutely no factual indications that the Federal Supreme Court (Bundesgerichtshof, BGH) in Karlsruhe would take a different view. Hence, also all commercial software vendores are well-advised to respect the GPL clauses when exploiting FROSS published under the GPL. Common Position on Patentability of CII has now reached JURI.From the"Minutes of the Sitting of the European Parliament of Thursday April 14, 2005:[...] The President announced, pursuant to Rule 57(1), that the following common positions had been received from the Council, together with the reasons which had led to their adoption, and the Commission's position on: Now, this means that the debate is open, and it is on the agenda of the Legal Affairs Committee JURI now ...
Wednesday, April 13, 2005AIPPI Report concerning the Implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Health.AIPPI has published a Report concerning a survey on the Implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Health.
The German Patent and Trade Mark Office has Chosen a new Logo.TheGerman Patent and Trade Mark Office (DPMA) has chosen a new Logo: The official explanatory text of the DPMA obviously drafted by a creative agency says that the rectangle is intended to represent patents and utility models whereas the shape like a drop of ink on a sheet of paper sybolises copyright, registered designs and other sorts of more artistic Intellectual Property.Whether I like the new sign? Umm... hmmm... if I would dare to issue a comment on that sign, well, my first thought after having seen it was that the rectangle represents the building of the DPMA headquarters here in Munich, whereas the drop symbolises the trace of a paint bomb thrown to the wall of the building by furious anti-patent campaigners from FFII, Attac, and/or Greenpeace ... I only can hope that the Official version of the interpretation of the new sign will prevail over otherwise different fatal associations. Can Patent Legal Work be a Commodity?ThePatent Baristas recently wrote:"[...]Interesting question! In think that there in fact is a borderline between "Column A work" and "Column B work". But where to draw this line? I do not think that drafting a patent application should ever be "Column B work". There are, however, in the course of patent as well s trade mark prosecution a lot of more formal steps which are clearly "Column B work". An extreme example is the entire renewal service business which, during the past ten to twenty years or so, has significantly slipped out of the hands of patent attorneys in favour of highly computerised specialised agencies. My analogue to a computerised patent attorney' office of the future is today's banking business: If you are a businessman wanting to get a EUR 10,5 Mio. loan (and if you are welcome with such a desire at all) you will have a decent talk with a competent bank manager. But if you want to withdraw some money from your account or simply need to know the bottom line of your account you will be referred to dedicated computer systems. In the same way if a client has a certain problem to be solved requiring intellectual capacities of an attorney, then he should be served by a qualified attorney and billed accordingly (whether or not on the basis of the billable attorney's hor, that's quite another thing). However, the formalities work as done today in the entire legal business seems somewhat archaic to me, like as if the bank clerks would still continue to compute the account balances by hand. There should be more room for automatisation in the formalities sector. For example, if a U.S. Client wants to get a European Community Trade Mark via the OHIM in Alicante, Spain. The usual way of business might go as follows: The managing director of a U.S. company dictates a letter requesting his U.S. attorney to organise work for a European Trade Mark Attorney in order to file for the desired trade mark application. The U.S. attorney reads his Client's letter and starts dictating another letter to a European Colleague, repeating the indications of the trade mark, the list of goods and services, etc.pp. Then, a European Trade Mark Attorney repeats these steps by typing essentially the same information into a PDF form to be filed with the OHIM. Reporting goes the other way round, essential with the same degree of fussiness. If all persons in this sketch would replace the old-fashioned letters by e-mail messages there would be little difference: The messages interchanged are not so well-structured that they could in fact be processed automatically. There are efforts to implement electronic filing procedures with the major Patent and Trade Mark Offices also in Europe, of course. But all these projects only help to solve a part of the problem, namely the isolated act of filing an application (or subsequent documents) with the competent Office by the electred representative. The problem of imposing a formalised and computer-readable structure on all of the formalities communications amongst the Client and the various national/international representatives (Law Firms etc. pp.) organising the Intellectual Property business in its entirety seems not to be tackled seriously, at least at the time being. In my view what really is needed is some kind of a universal open XML-based standard for interchanging Intellectual Property business data, e.g. for encoding a commercial request to file for a certain patent or a certain trade mark, or for reporting an Office Action back to a representative or to the Client. By means of such an universal standard, the IT systems of the various Patent and Trade Mark Offices, of the Law Firms, and of the Clients could be interconnected by an Internet-based network. And, all the services created for the Client by means of this network of nodes processing XML-based messages would be commodities. There are also pseudo-commodities. If a mayor Client company issues, say, 50 orders for patent drafting to a single Law Firm, then there is clearly room for some kind of statistics. In such or similar situations large companies might be lead into temptation to offer only a flat rate per case. This can only work if the Client and the Law Firm know each other very well since long years and if there is a basis of mutual trust that the Client company will not only let the difficult inventions be converted into patent applications on the basis of the flat rate but also simpler ones.
Tuesday, April 12, 2005More Hot Debates in Geneva.Intellectual Property Watch reports:"[...] Developed and developing countries faced off Monday over whether and how the U.N. World Intellectual Property Organisation’s mission should be transformed to better address the needs of developing countries.Probably at the WIPO, a very complex mixture of interests and political pressure seem to have emerged:
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