Debate 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 :
afin de clarifier la portée de la directive, remplacement autant que possible du terme "invention mise en œuvre par ordinateur" par le terme "invention contrôlée par ordinateur", ou encore "assistée par ordinateur", qui illustre bien mieux que le logiciel ne peut faire partie des caractéristiques techniques des revendications de brevet;
définition claire du "domaine technique", tant positive que négative : d'une part, il devra être spécifié qu'un domaine technique est un "domaine industriel d'application nécessitant l'utilisation de forces contrôlables de la nature pour obtenir des résultats prévisibles dans le monde physique", bornant ainsi la technique au monde physique ; d'autre part, il faudra spécifier que le traitement de l'information ne soit pas considéré comme un domaine technique au sens du droit des brevets et à ce que les innovations en matière de traitement de l'information ne constituent pas des inventions au sens du droit des brevets;
définition de façon non tautologique de la notion de contribution technique et d'activité inventive, et préciser pour cette dernière que seules les caractéristiques techniques des inventions devront être prises en compte lors de son évaluation;
description de la forme des revendications de façon tant positive que négative, afin que d'une part les revendications sur les inventions contrôlées par ordinateur ne puissent porter que sur des produits ou des procédés techniques, et d'autre part que les revendications de logiciels, en eux-mêmes ou sur tout support, soient interdites;
pour assurer l'interopérabilité, renforcement de la confirmation des droits découlant des articles 5 et 6 de la directive 91/250, par le fait que lorsque le recours à une technique brevetée est nécessaire à la seule fin d'assurer l'interopérabilité entre deux systèmes, ce recours ne soit pas considéré comme une contrefaçon de brevet.
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?
"[...] 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.
BERLIN, Germany - Apr. 14, 2005 -- The gpl-violations.org project has uncovered violations by Fortinet UK Ltd., the UK subsidiary of Fortinet Inc., of the GNU General Public License (GPL). According to gpl-violations.org, Fortinet used GPL software in certain products and then used cryptographic techniques to conceal that usage.
As a result of this violation, the Munich district court has granted a preliminary injunction against Fortinet Ltd., banning them from further distribution of their products until they are in compliance with the GNU GPL conditions.
The GPL licenses software without collecting royalties, but requires any distributor to provide the full corresponding source code and a copy of the full license text.
"This violation by Fortinet is especially egregious since the vendor not only violated the GPL, but actively tried to hide that violation," said Harald Welte, Linux Kernel developer and founder of the gpl-violations.org project. "We are not in any way opposed to the commercial use of Free and Open Source Software and there is no legal risk of using GPL licensed software in commercial products. But vendors have to comply with the license terms, just like they would have to with any other software license agreement."
Fortinet offers a variety of Firewall and Antivirus Products (the FortiGate and FortiWiFi product series), on which Fortinet claims to run the "FortiOS" operating system. However, as the gpl-violations.org project uncovered, "FortiOS" is using the Linux operating system kernel and numerous other free software products that are licensed exclusively under the GNU GPL. This information was not disclosed by Fortinet.
Following a warning notice by the gpl-violations.org project on March 17, 2005, Fortinet did not sign a declaration to cease and desist. Out-of-court negotiations on a settlement failed to conclude in a timely manner.
Thus, the gpl-violations.org project was compelled to ask the court for a preliminary injunction, banning Fortinet from distributing its products, unless they are in full compliance with the GNU GPL license conditions.
About the gpl-violations.org project
In the past 15 months, gpl-violations.org has helped uncover and negotiate more than 30 out-of-court settlement agreements. The gpl-violations.org project is a not-for-profit effort to bring commercial users and vendors of Free Software into compliance with the license conditions as set forth by the original authors. The project was founded and is managed by Mr. Harald Welte, a Linux Kernel developer and Free Software enthusiast. [...]"
This 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.
[...] 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:
- Common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (11979/1/2004 - 16120/2004 - COM(2005)0083 - C6-0058/2005 - 2002/0047(COD)) referred to responsible: JURI [...]"
Now, this means that the debate is open, and it is on the agenda of the Legal Affairs Committee JURI now ...
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.
If you are like me and enjoy the economics of law practice as much as the practice itself, then you're probably familiar with Bruce MacEwen's blog, Adam Smith, Esq., where "law firm management comes under the microscope." (and what can I say about a guy who can work in the word "Jesuitical" in a blog article?*)
In a recent post (Deal Market is Back! But Hey, What About the Rest of Us?), MacEwen mentions an article by Aric Press describing that changes are afoot in the profession and that things are essentially unchanged, and that "both sentiments are exactly correct." This is because clients are dividing their legal work into two distinct categories:
Column A: These are the deals, cases, and issues where price is no object;
Column B: Everything else.
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.
"[...] 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.
The basis for the three-day discussion ending Wednesday at the Geneva-based WIPO is a developing country proposal to change WIPO into a more typical U.N. organisation by raising the profile of development concerns throughout its mission.
The United States, the United Kingdom and others say there is no need for a new body within WIPO, but acknowledge that improvements could be made to the existing system such as through better technical assistance to developing countries. The United States argued for the creation of a partnership database to improve developing country capacity to benefit from intellectual property, and said the issue should be placed into the existing Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD).
'We don't believe the U.N. needs another development agency,' said the lead U.S. delegate. 'We do not support setting up new bodies.' He cited the U.N. Development Program and the U.N. Conference on Trade and Development as the key UN agencies with specific development mandates. [...]"
Probably at the WIPO, a very complex mixture of interests and political pressure seem to have emerged:
Industrial nations seeking to maintain and further develop the present system of Intellectual Property;
Developing nations seeking to obtain specific gains from a modified hand-tailored system of Intellctual Property serving their own interests; and
a bunch of anti-globalisation and anti-IP NGOs seeking to make their own use of the motion of the developing nations for destructing the system of Intellectual Property as it stands now.
Of course, these interests are not completely disjunct; however, I think they can well be identified as separate entities.