"[...] The European Commission has presented two proposals to link the 'Community Design' system, which protects designs within the EU, with the international design registration system of the World Intellectual Property Organisation (WIPO). The proposals would allow companies, with a single application, to obtain protection of a design not only throughout the EU with the Community Design, but also in the countries which are members of the Geneva Act of the Hague Agreement concerning the international registration of industrial designs. The first proposal relates to the accession of the European Community (EC) to the Geneva Act. The second proposal contains the necessary provisions to give effect to that accession, in particular through an amendment of Council Regulation No 6/2002 on Community Designs.
Internal Market and Services Commissioner Charlie McCreevy said: "These proposals will allow EU firms to safeguard valuable design rights with less bureaucracy while at the same time encouraging them to trade with third countries in the knowledge that their design rights are protected. I hope that the Council will now adopt these proposals as soon as possible."
In 2004 the Commission launched a consultation with interested parties on the possible impact on business of EC accession to the Hague system. An overwhelming majority of businesses, professional organisations and Member States were in favour of accession in the near future. [...]"
For more details, see e.g. Document COM(2005)687 final titled "Proposal for a COUNCIL DECISION approving the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs, adopted in Geneva on 2 July 1999 {SEC(2005)1748} (presented by the Commission)" or Document COM(2005)689 final titled "Proposal for a COUNCIL REGULATION amending Regulation (EC) No 6/2002 and (EC) No 40/94 to give effect to the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs" or Document SEC(2005)1749 - Commission Staff Working Document.
EPO: EBA on Claims Relating to a Diagnostic Method Practised on the Human or Animal Body.
The Enlarged Board of Appeal of the EPO has published an Opinion concerning case G 0001/04:
"[...] The point of law referred to the Enlarged Board of Appeal by the President of the EPO is answered as follows: 1. In order that the subject-matter of a claim relating to a diagnostic method practised on the human or animal body falls under the prohibition of Article 52(4) EPC, the claim is to include the features relating to: (i) the diagnosis for curative purposes stricto sensu representing the deductive medical or veterinary decision phase as a purely intellectual exercise, (ii) the preceding steps which are constitutive for making that diagnosis, and (iii) the specific interactions with the human or animal body which occur when carrying those out among these preceding steps which are of a technical nature. 2. Whether or not a method is a diagnostic method within the meaning of Article 52(4) EPC may neither depend on the participation of a medical or veterinary practitioner, by being present or by bearing the responsibility, nor on the fact that all method steps can also, or only, be practised by medical or technical support staff, the patient himself or herself or an automated system. Moreover, no distinction is to be made in this context between essential method steps having diagnostic character and non-essential method steps lacking it. 3. In a diagnostic method under Article 52(4) EPC, the method steps of a technical nature belonging to the preceding steps which are constitutive for making the diagnosis for curative purposes stricto sensu must satisfy the criterion "practised on the human or animal body". 4. Article 52(4) EPC does not require a specific type and intensity of interaction with the human or animal body; a preceding step of a technical nature thus satisfies the criterion "practised on the human or animal body" if its performance implies any interaction with the human or animal body, necessitating the presence of the latter. [...]"
The European Patent Office today has announced the publication of a paper titled "The cost of a sample European patent - new estimates including a study on the cost of patenting" which appears to be based on a study carried out by Roland Berger Market Research in 2004.
I do not know why this rather old paper has been advertised by EPO only just now.
"[...] Motivation
The purpose of publishing an estimate of the cost of a European patent is to provide a simple quantitative barometer of the level and major components of that cost, with a view to providing information to the policy debate and applicants with an order of the cost they will incur. This cost estimate should identify the cost drivers as well as the share of the EPO in the total cost. However, in view of the divers cost levels - field of technology, filing routes, patentee's strategy etc. - a single figure cannot give a reasonable estimate of the expected cost of a particular patent application.1 Nevertheless, the figures should be informative enough for a newcomer to the EPO procedure to obtain a reasonable cost estimate.
In 2004, the EPO decided to update and complement former cost estimates. For that purpose, it commissioned a survey of applicants and attorneys which was carried out by Roland Berger Market Research. That approach guaranteed methodological quality and independence of the survey. Roland Berger queried applicants as well as attorneys and translation services and considered also certain cost components that had been omitted (at least explicitly) in earlier estimates, notably pre-filing costs and in-house costs.
On the basis of the Roland Berger survey, as well as of sources informing of the current EPO and national fees, the EPO has estimated both the cost of an average Euro-direct and Euro-PCT patent. Figures in this introduction, however, refer to the Roland Berger study only, not to the estimates made by the EPO which differ from the study in that they reflect a slightly different cost concept and are also inflation-adjusted.
A survey of more than 250 companies
The study carried out by Roland Berger consists of a survey of 254 companies that have obtained patents by the EPO in 2002/3. The sample included 160 European, 43 US and 51 Japanese companies from all industries, including also 34 SMEs. Respondents were asked to evaluate the cost components of a typical and representative patent of theirs. This business survey was complemented by surveys of translation services and attorneys in order to cross-check the results. It turned out that results from these two smaller surveys are essentially consistent with the survey of patentees.
Major results of the survey
As reported by respondents, the typical Euro-direct patent has 10 claims on 3 pages, 11 pages of description and is validated in 6 countries. The total cost of obtaining a standard Euro-direct patent in 2003 was EUR 30 530 (pp. 97, 117), including:
pre-filing expenditure excluding R&D (EUR 6 240),
internal cost of processing (EUR 3 070),
attorney fees (EUR 4 930),
translation of application and claims (EUR 3 020),
official EPO fees (EUR 3 410),
validation (EUR 9 870).
The cost of a Euro-PCT patent was EUR 46 700 (p. 117). The difference with Euro-direct comes mainly from:
higher translation cost due to a higher number of pages (18 pages description, 15 claims on 5 pages),
supplementary official fees related to the international phase, and
validation in a larger number of countries (8 instead of 6).
[...]"
The amount of costs for validation (read: translation into the various national Official languages) appears to be quite remarkable. We urgently need the London Agreement which is, on the political stage, unfortunately blocked by France up to now.
Compulsory Licensing of Patents Relating to the Manufacture of Pharmaceutical Products for Export to Countries with Public Health Problems.
The EU Council has formally reported in Document 15323/05 on the outcome of the European Parliament's first reading concerning a Proposal for a Regulation of the European Parliament and of the Council on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems.
"[...] In accordance with the provisions of Article 251(2) of the EC Treaty and the joint declaration on practical arrangements for the codecision procedure, a number of informal contacts have taken place between the Council, the European Parliament and the Commission with a view to reaching an agreement on this dossier at first reading, thereby avoiding the need for a second reading and conciliation.
In this context, the rapporteur, Mr Van Hecke (ALDE - BE), presented 75 compromise amendments to the proposal for a Regulation, on behalf of the Committee on International Trade. These amendments had been agreed during the informal contacts referred to above.
The plenary adopted the 75 compromise amendments to the proposal for a Regulation. No other amendments were adopted. The amendments adopted correspond to what was agreed between the three institutions and ought therefore to be acceptable to the Council. Consequently, once the legal linguists have scrutinized the text, the Council should be in a position to adopt the legislative act.
The text of the amendments adopted and the European Parliament legislative resolution are annexed to this note. [...]"
"[...] The Strasbourg Agreement (of 1971) concerning the International Patent Classification provides for a common classification for patents for invention including published patent applications, utility models and utility certificates. The International Patent Classification (IPC) is a hierarchical system in which the whole area of technology is divided into a range of sections, classes, subclasses and groups. The Classification is periodically revised in order to improve the system and to take account of technical development. The current, seventh, edition of the IPC will be in force until December 31, 2005. The next, eighth, edition of the IPC will enter into force on January 1, 2006. [..]"
The IPC 8th Edition will now provide a two level system comprising a relatively simple and stable core level, and a more complex dynamic advanced level. Moreover, there will be the addition of an electronic layer with more than 3000 illustrating chemical formulae.
A guide is available on-line at the website of the WIPO.
EU Commission About to Propose Re-Casting of Copyright Law.
The EU Commission considers to propose to re-cast, inter alia, the Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs in 2006. Recast ist said to be done with a view to improve the coherence and operation of the legal framework and adapt it to the new digital challenges. I currently have no clue as to what that means in terms of practical politics.
What also might be affected by this re-casting initiative are:
Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights;
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases Directive 2001/29/EC of the European Parliament; and
Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The paper further says that Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, and subsequent amendments: Regulation 3288/94, Regulation 1653/2003, Regulation 807/2003, Regulation 1992/2003 and Regulation 422/2004, might need "codification" - whatever that means.
The EU Commission's justification is as follows:
"[...] The review of the acquis must become a continuous and systematic process enabling the legislator to revise legislation taking all legitimate private sector and public interests into account.
To start the process, an initial batch of legislation to be simplified has been identified on the basis of a broad consultation. This continuous process will then be fuelled by input from new, more systematic review procedures for the identification of future simplification priorities based on a broad analysis of the impact of legislation. This process encompasses a thorough economic analysis and will take full account of the EU’s social and environmental ambitions as essential elements of the overarching objective of sustainable development set out in the Treaty. [...]"
"[...] The European Commission has published an evaluation of the protection EU law gives to databases. EU law protects databases by copyright if they are sufficiently creative. Other databases, especially those that are compilations of information or commonplace data, such as telephone directories, music charts or football match listings, may benefit from a new form of protection introduced by the 1996 Database Directive. This protection is known as the 'sui generis' database right, i.e. a specific property right for databases that is unrelated to other forms of protection such as copyright. The evaluation focuses on whether the introduction of this right led to an increase in the European database industry's rate of growth and in database production. It also looks at whether the scope of the right targets those areas where Europe needs to encourage innovation. Stakeholders are invited to comment on the evaluation by 12 March 2006. [...]"
The evaluation paper is available here. Policy options discussed therein are:
Option 1: Repeal the whole Directive;
Option 2: Withdraw the "sui generis" right;
Option 3: Amend the "sui generis" provisions; and
Option 4: Maintaining the status quo.
"[...] Before deciding on its future policy approach with respect to the "sui generis" protection for "non-original" databases, the Commission services deem it appropriate to further consult stakeholders on the four policy options outlined above. Stakeholder consultation should also provide further evidence on the economic impact of "sui generis" protection in stimulating the production of European databases. Stakeholders are invited to submit their observations by 12 March 2006."
"[...] WASHINGTON, Nov. 29 (UPI) -- The world's least-developed nations were given more time Tuesday to provide intellectual property protections.
The World Trade Organization agreed to extend the deadline by seven years until July 1, 2013 to give struggling economies more "flexibility" in developing protections for patents, copyrights and other intellectual property. [...]"
"[...] Vicki Salmon, spokesperson for the Chartered Institute of Patent Agents, feels that European proposals to make wilful patent infringement a criminal act, like trade mark counterfeiting and copyright piracy, show a lack of understanding of the issue and thus would be a retrograde step.
It is the view of Vicki and her colleagues in the Institute that, in an age when Governments are trying to foster competition and technical development, making patent infringement a criminal activity is likely to inhibit these desirable objectives. She said:
'In order for a patent to be valid, the invention which is the subject of any patent application must not have been disclosed in any form at all, anywhere in the world at any time before the date the application was filed. There is not a patent office in the world that can search everything that has ever been published. So there obviously can never be an absolute guarantee that any patent is valid.
It is thus not unknown for organisations, which have information that in their view clearly invalidates a patent to proceed to manufacture products or carry out processes, which would be construed as infringements if the patents were valid. Should the issue reach the courts the alleged infringer will produce the information they have in order to invalidate the patent. If they fail to satisfy the courts they will pay damages.
This is an entirely different state of affairs from the wilful selling of goods or services under a well-known trade mark which clearly belongs to someone else and has thus been counterfeited in order to mislead the public into thinking they are getting the real thing. This is often coupled with other criminal activity (e.g. money laundering or tax avoidance). It is the same with copyright material. Copying someone else?'s films or records and then selling them as the genuine article is really little more than theft.' [...]"
Some more detailed comment of CIPA can be found here:
"[...] However, in providing the background for a case for criminal sanctions for all intentional intellectual property rights infringements, the draft makes several serious errors.
1. The Directive appears to equate all intentional intellectual property infringement to 'piracy and counterfeiting'. It advances a number of harms caused by counterfeiting and piracy ('are a serious threat to national economies and governments') which are at the very extreme even in relation to counterfeiting and piracy; however to attribute such harm to 'intellectual property infringements in general' presents a highly unbalanced picture.
2. Secondly the major part of the preamble to the Directive appears not to seek to justify the application of criminal sanctions otherwise than to counterfeiting and piracy. References to counterfeiting and piracy are used in many places to justify the application of criminal sanctions - 'make it difficult to combat counterfeiting and piracy effectively'; 'counterfeiting and piracy also present problems for consumer protection'; 'this phenomenon [distribution of pirated goods] appears to be increasingly linked to organised crime'; 'Counterfeiting and pirating have become lucrative activities [like]... drug trafficking'; 'additional provisions to strengthen and improve the fight against counterfeiting and piracy are therefore necessary'. However, counterfeiting and piracy are not the same as infringement of intellectual property rights, even if intentional. Not all (by any means) infringements of intellectual property rights, even if 'intentional' can be characterised as counterfeiting or piracy, nor do they have the same effects. The Directive itself makes it clear that the justification for criminal sanctions is in relation to counterfeiting and piracy. The substance of the Directive should also be restricted (at most) to such activities.
3. The preamble to the Directive (and the Directive itself) fail completely to recognise the possibility that (a) there are legitimate competitors to intellectual property rights owners; and (b) that such competitors have rights, as do intellectual property rights owners. Repeated reference is made to the Charter of Fundamental Rights that 'Intellectual property shall be protected'. The Directive should recognise that competitors have rights also, and that criminalisation of intellectual property infringement could have a serious impact on those rights, for reasons which are discussed below. [...]"
I think that CIPA is absolutely right with this statement. It would mean to do to the supporters of the present role of Intellectual Property in our economy a disservice when overshooting the mark by introducing excessive and poorly conceived enforcement measures on the field of patent law. Similar overshootings, not directly caused by the EU Commission but promoted by certain groups from the private sector, can also be observed elsewhere in the field of copyrights. Grassroots groups disliking the general concept of Intellectual Property will accept and be grateful for such points of attack.
"[...] In the Council Decision of 30 August 2003, Member States agreed to allow production of pharmaceutical products under compulsory licences for export to developing countries within the terms set out in the Decision. The agreement can be found here and the accompanying General Council Chairperson's statement may be found here.
On the 6 December 2005 Members approved changes to the TRIPS Agreement to reflect this Decision. This new General Council decision means that for the first time a core agreement will be amended.
This important Decision demonstrates that the willingness of Members to ensure the TRIPS Agreement does not prevent Members from taking measures to protect public health.
On 1 December, the European Parliament and the Council agreed a first reading adoption of a Regulation to allow the granting of compulsory licences for export of copies of patented medicines under the Decision.
The Regulation will ensure that all EU Member States have the same standards, thereby minimising the possibility of diversion of the medicines away from their intended recipients within the EU Single Market. The Regulation must now be translated into all the official languages and is ikely to be in force early next year.
The UK is looking at making any necessary changes to national legislation for consistency with the Regulation. This may encompass changes to both patent legislation and medicine licensing and regulatory procedures (these are being taken forward by the Department of Health and the Medicine and Health Products Regulatory Agency). [...]"
Dutch Cross-Border Patent Enforcement is Virtually Dead.
IPGEEK Blog reports in view of an Opinion of the Advocate General Mr. PHILIPPE LEGER of the European Court of Justice for Case C-539/03:
"[...] The Dutch courts have long been favoured by patent owners for their willingness to provide judgments with EU cross-border effect. Plaintiffs confronted with multinational companies infringing their European patent could sue multiple defendants in one place - The Netherlands – to get an injunction against the defendants in each countries for which the European patent was granted. [...] If the AG’s opinion is endorsed by the Court, than there is little doubt that the cross-border practice by the Dutch Courts is dead. All hopes would be then focused on the future of EPLA, the very promising initiative by some countries to come up with a workable enforcement alternative to the Community Patent, which is currently in an ailing condition too. [...]"
"[...] The questions referred to the Enlarged Board of Appeal are answered as follows: I. (a) The status as an opponent cannot be freely transferred.
(b) A legal person who was a subsidiary of the opponent when the opposition was filed and who carries on the business to which the opposed patent relates cannot acquire the status as opponent if all its shares are assigned to another company.
II. If, when filing an appeal, there is a justifiable legal uncertainty as to how the law is to be interpreted in respect of the question of who the correct party to the proceedings is, it is legitimate that the appeal is filed in the name of the person whom the person acting considers, according to his interpretation, to be the correct party, and at the same time, as an auxiliary request, in the name of a different person who might, according to another possible interpretation, also be considered the correct party to the proceedings. [...]"
getting the sense that the patent system is facing serious problems these days?
When I got into this game in 1983, the then-newly-formed Federal Circuit was supposed to bring uniformity, predictability and even respectability to the patent system. And it did -- for a while.
Under former Chief Judge Markey, the Federal Circuit's decisions made sense. They applied and relied on written statutes -- you know, the kind actually passed by Congress and signed by the President and all. They addressed important issues of patent law and provided clear, practical answers that could be understood and applied in the future. (I didn't always agree with them, but at least you could understand and apply them.) And, most importantly, the decisions appeared to be part of a genuine effort to build a consistent, workable and fair body of law that would resolve disputes justly and promote innovation as intended by the Constitution.
Over the last several years, however, I've wondered whether we are going forward or backward. Is it just me, or is anyone else going crazy trying to figure out what the Federal Circuit is doing? [...]"
"[...] The Chancellor announced that Andrew Gowers, former Editor of the Financial Times, would lead an independent review into intellectual property rights in the UK.
Andrew Gowers said,
'I believe that Intellectual Property is at the heart of Britain's success in the knowledge economy. This review will ensure that we maintain a world-class environment for creativity, design and innovation.'
Terms of Reference
Objectives
The Labour Party manifesto included a commitment to 'modernise copyright and other forms of intellectual property so that they are appropriate for the digital age'.
The UK's IP regime is a critical component of our present and future success in the global knowledge economy. It must provide the optimal incentives for private industry and individuals to innovate and invest to create value, while preventing excessive inefficiencies and monopoly costs which can reduce competition and impede incremental innovation.
The regime is particularly important as our economic competitiveness is increasingly driven by knowledge-based industries, especially in manufacturing, science-based sectors and the creative industries.
Whilst the Government believes the present UK system strikes broadly the right balance between consumers and rights-holders, the review will examine whether improvements could be made and, as appropriate, make targeted and practical policy recommendations. Scope
The review will provide an analysis of the performance of the UK IP system, including:
the way in which Government administers the awarding of IP and their support to consumers and business;
how well businesses are able to negotiate the complexity and expense of the copyright and patent system, including copyright and patent licensing arrangements, litigation and enforcement; and
whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for 'fair use' by citizens are reasonable.
The Government has previously committed to examining whether the current term of copyright protection on sound recordings and performers' rights is appropriate. This will also be conducted within the review. Process
The review will be commissioned by the Chancellor of the Exchequer in his Pre Budget Report and will run for 12 months, reporting to the Chancellor, the Secretary of State for Trade and Industry and the Secretary of State for Culture, Media and Sport. [...]"
"[...] Outgoing Financial Times editor Andrew Gowers, who resigned last week in a cloud of controversy and diffferences with Pearson CEO Marjorie Scardino, said that newspaper groups are in denial about the power of the internet. 'Working in print, pure and simple, is the early 21st century equivalent of running a record company specialising in vinyl,' Gowers said in a column. 'The future lies with the internet, and those newspapers that survive will be those that produce truly original content and learn fastest how to translate it into the all-encompassing, all-singing, all-dancing new medium of the web.' [...]"
I'm in particular curious to learn on what he will do in his report with patents on computer-implemented inventions as well as with DRM technologies.
[UPDATE] See also related posting and comments on the IPKat Blog.
RAPID: 
recent plans of the EU Commission to harmonise criminal sanctions, inter alia, on acts of patent infringement by means of