From Case Law T 0858/02 - 3.5.3 of the Boards of Appeal of the European Patent Office:
1. When considering the nature or category of a claimed invention attention must be paid to the substance of what is claimed, rather than only taking into account how the claimed subject-matter is designated, which can be deceptive.
2. An electronic message is not automatically excluded from patentability under Article 52(2)(d) EPC as a presentation of information. This will depend on whether the message is defined by its structure or its content."
On September 14, 2004, the EU Commission had published a Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs. The European Commission had chosen to propose to give consumers more choice and value when they buy visible replacement vehicle parts, such as bonnets, bumpers, doors, lamps, rear protection panels, windscreens and wings. The proposal would amend the legal protection of designs Directive (98/71) by removing Member States option to maintain design protection for such items. The proposal would allow independent part manufacturers not linked to the producers of finished vehicles - to compete throughout the EU market for visible replacement parts, potentially worth some EUR 10 billion annually. The Commission estimated that these parts are 6-10 % more expensive in Member States where they are subject to design protection. Non-visible parts, like engine or mechanical parts, are not concerned by the proposal. Neither are components in new vehicles.
"[...] Your rapporteur wishes to express his strong support for the Commission's Proposal. It is not satisfactory that we have a single market for new cars but no single market for spare parts.
A liberalisation of the secondary market of spare parts will lead to more competition and push the development of the internal market. The prices will become more elastic. Innovation is not negatively affected. In fact it might be increased since VM will tend to design the parts of their products in such a way that independent suppliers will find it difficult to manufacture these spare parts. Your rapporteur supports the claim for intellectual property, but in our opinion it is no obstacle for a liberalisation of this market. In addition, it is remarkable that there is only one single case where a VM sued another VM for the copying of design in the primary market, even if some models greatly resemble each other. SMEs will benefit from the liberalisation. The liberalisation will have positive effects on the employment in the EU and finally the individual consumer will be able to have the freedom of choice and should be able to accept the responsibility for that choice.
A liberalisation of the secondary market of spare parts is the right way forward. [...]"
"[...] (1a) Whereas the abolition of design protection is contrary to internationally recognised intellectual property principles and would set a dangerous precedent as regards protection of intellectual property rights in other sectors; whereas this would be the case even though the European Union has promised, in particular within the WTO, to use its influence to ensure that the intellectual property protection arrangements accepted in third countries will put an end to counterfeiting and forgery;
(3a) Design protection is a lawful right granted to manufacturers of spare parts for complex products to compensate them for their innovation efforts.
(3d) Whereas to abolish design protection outright would benefit neither consumers nor European SMEs and SMI;
(3e) Whereas to abolish design protection would be contrary to the Lisbon strategy, the aim of which is to foster the Union's capacity for innovation and for research and development;
1. Protection as a design shall apply for a period of ten years for a design which constitutes a component part of a complex product used within the meaning of Article 12(1) of this Directive, for the purpose of the repair of that complex product so as to restore its original appearance.
I am curious as to to learn of the result of a later plenary vote of the European Parliament to come.
"We collect here proposals for a reform of the patent examination system. In particular, FFII and others have endorsed proposals for privatisation of this system by careful distribution of burdens of proof. Such a reform would result in debureaucratisation and, by consequence, dissolution of the European Patent Organisation, which some have called "an intergovernmental creature that no longer has a place in today's European Union". A lean privatised patent examination system would, as a side effect, also solve the problems of the Community Patent. [...]"
"[...] Trade sources report that Lamy also said that Members would have to agree on a public health amendment to the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) by Hong Kong. [...]"
"[...] New Delhi: India is pressing for changes in the WTO TRIPs regime in order to protect traditional knowledge and prevent bio-piracy.
Secretary in the Ministry of Environment and Forest Prodipto Ghosh said in a presentation at the National Seminar on TRIPs-CBD and subsidy issues here yesterday that coordinated changes in the trade-related intellectual property rights (TRIPs) regime of the World Trade Organisation (WTO) and the Convention on Biological diversity (CBD) were the key requirements of a multilateral access and benefit sharing regime.
Joint Secretary in the Ministry of Commerce and Industry, Anthony de Sa, explained that the issue was important for developing countries as piracy of biological material and misappropriation of traditional knowledge was taking place. Hence, India, along with some other mega-biodiverse developing countries, is demanding a legally binding regime which would enjoin all WTO members to amend their IPR laws.
This was to include the following three principles: Disclosure of country or origin of source of biological material or traditional knowledge, Prior Informed Consent (PIC), and Equitable Benefit Sharing, de Sa said. [...]"
"[...] - The issue of patenting life forms has remained extremely contentious since the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) came into being along with the World Trade Organization (WTO) in 1995. The countries of the North and the South are clearly divided over the debate whether life forms should be made patentable. Whereas most of the countries of the North advocate the patenting of life forms, most countries of the South are against it. The major question that arises in this context is Can monopoly right be exercised over something given by nature? The answer is No. It should therefore be clear why patenting life forms should be prohibited. Patent gives monopoly right to the 'so called' creator.
The developing and the least developed countries are arguing for the reconciliation of two multilateral agreements ? Convention on Biological Diversity (CBD) that was formally proposed at the end of the Earth Summit in 1992 and TRIPS. CBD is supposed to be the first multilateral agreement that has recognized the sovereign rights of states over their genetic resources. It has also included the provisions of prior informed consent and benefit sharing. It has recognized the contributions that different communities across the globe have made in conserving genetic resources utilizing their traditional knowledge and practices. [...]"
Well, it looks as if in Hong Kong the debate on IPR issues might really get quite turbulent.
Polish Politics might be about to undergo a change.
BBC reports about the recent general elections in Poland:
"[...] Centre-right parties with links to the former Solidarity movement in Poland have ousted the left in the country's general election. [...]"
I ask myself as to whether or not this might change Poland's future position concerning certain issues of Intellectual Property (IP) protection. Readers might well remember that the former Polish Government had attempted to block the formal adaption of the EU Draft Directive on the patentability of computer-implemented inventions in the EU Council. For a brief albeit quite biassed view see here.
I just stumbled across an interesting posting of Mr.John Lambert in his blog nipc IP/it Update. Apparently, the UK Patent Office has rejected a Patent Application No. GB 0204357.8 which had been filed on February 25th, 2002, in the name of Oracle Corporation. The application is entitled "Mark-up language conversion". It was published on August 27, 2003, with the serial number GB 2385686 A. Claim 1, as amended, reads as follows:
"1. A method of converting text written in a first mark-up language and comprising a document file and a document type definition (DTD) file, to a second mark-up language which does not utilize a DTD file, the method comprising operating a processor to carry out the following steps:
i) scanning the DTD file to extract definitions;
ii) scanning the document file to locate cross- reference tags and to identify cross-referenced text; and,
iii) scanning the document file to locate successive blocks of text defined between respective start and end tags of the same type and, for each block, creating equivalent tags and text in the second mark-up language using, where necessary, the extracted definitions and cross-references from steps i) and ii)."
Surely there is some room for controversies as to whether or not such claim should be considered allowable. But a statement given by the Hearing Officer, Mr. Stephen Probert, really strikes:
"[...] If computer programs are not to be foreclosed to the public, then it is clear to me that I cannot allow this application to proceed to grant. Not only would the present claims (if granted) foreclose computer programs to the public but, on my reading of the claims, there is little or nothing else that would be foreclosed by them. I therefore conclude that the advance in the art that is said to be new and not obvious, is not 'new-and-notobvious' under the description 'an invention' in the sense of Article 52. [...]"
Nobody should forget that nothing else than an invention can be patented. If there is a real invention it does do no harm to the patentability if software is used in one or more embodiments of the invention. Neither does that fact that a patent on a technical invention might in some cases interfere with the creation and distribution of software; this effect is not based on any patenting of software as such. There is no such thing in Patent Law like a feed-back from the infringement side of a patent, i.e., the legal effects of a granted patent on software markets, to the patentable subject-matter side, i.e., whether or not a certain invention should be considered patentable. The judgement would have been much clearer if Mr. Probert would have confined his grounds more conventionally on the issue as to whether or not the subject matter of the claims in question convey a technical invention which is new, inventive, and industrially applicable in the sense of the Patent Law. I guess that Mr. Probert's thinking will not survive further supreme Case Law to come.
Again this a vivid illustration of the profound confusion in Patent Law which was to be rectified by the now failed EU Directive on the patentability of computer-implemented inventions.
"ANTI SOFTWARE PATENT campaigner Florian Mueller received a nomination today as one the EV50 Europeans of the Year.
The award is for campaigning in European politics, and Mueller was notable for his efforts to overturn attempts by lobbyists to rush through software patent legislation.
Mueller's nomination was made by the European Voice, and runs against people like Bono, Sir Bob Geldof, Harry Potter author JK Rowling, German chancellor Gerhard Schroeder and even retiring prime minister, ukele player and Cliff Richard fan Tony Blair. [...]"
There are various categories to vote on. One of them is "Campaigner of the Year". Certainly the various grassroots anti-patent campaigns of the years 2003-2005 against the original gist of the Draft Directive on the patentability of computer-implemented inventions have contributed to the history of the lobbying business. Stirring the minds of many thousands of influencal people by a big campaign built on the basis of ridiculous misrepresentations of facts, thereby starting virtually from scratch by utilising Internet communications, surely was a quite unique undertaking. Those campaigns have made lobbying to arrive in the Internet age. Maybe that Mr. Müller as the founder of nosoftwarepatents.com might be seen as one of the key originators of those campaigns deserving such a "Campaigner of the Year" decoration in, however, a somewhat cynic sense.
But Mr. Müller proclaimed as "European of the Year"?? Ouch.