Mr. Günter Verheugen, Vice-President of the European Commission and responsible for Enterprise and Industry, recently argued on a SME-Conference held in Brussels on April 26th, 2006, titled "Financing European Enterprise" as follows:
"[...] However, Europe has not been able to fully benefit from its science and innovation base. Rapid commercialisation of ideas and research happens too rarely in Europe and we often let others to commercialise our ideas.
For example, next week on 2 May at the European Inventor of the year awards, Karlheinz Brandenburg who invented the MP3 format and revolutionised the world of music while he was a postgraduate student at the University of Erlangen in southern Germany is one of 3 nominees for a lifetime achievement award. If finally selected, I suspect this well deserved prize will not be presented to him by the patent examiner in Munich who rejected his original patent application firmly convinced that music could not be fed down a phone line. Today, thanks to the Internet, MP3 is the international standard for audio-coding. More than 200 million people have installed a software player on their computers and sales of MP3 players topped 50 million last year. How unfortunate it is though that the scepticism of the patent examiner was also shared by the EU industry and that the commercialisation of Mr Brandenburg's invention has primarily benefited a US company. As for Mr Brandenburg, he is now the director of the Fraunhofer Institute for Digital Media Technology in Ilmenau and the holder of 25 patents, with several more pending. It is crystal clear that innovative research is not the problem. What we need is to be able toe to benefit more from our research and innovation. For this, we need more risk taking, more vision - and more finance.
This brings me to the theme of the day - how to ensure that European enterprises get financing for their growth. [...]"
Hm ... it might be really interesting to learn more on the case by means of an epoline on-line file inspection. However, if the application in question should really be EP 89902498, then we are out of luck - it hasn't been scanned yet and perhaps will never be because of the paper files are since long destroyed.
[UPDATE] 2006-04-28 I think that I'd got the application number wrong. More likely, the patent application in question might have been No. 87905587 published as EP 0 287 578 B1. The file is available for epoline inspection. At a first glance, this file looks as if the application would have been examined throroughly. Isn't that exactly what we want to see in view of the ongoing patent quality discussion?
"FUSSBALL WM 2006" Lacks Distinctiveness, Says German Supreme Court.
Today, the German Supreme Court ("Bundesgerichtshof", BGH) has ruled [in German only, sorry] that the word sign "FUSSBALL WM 2006" (the English equivalent thereof would be something like "FOOTBALL W[ORLD] C[HAMPIONSHIP] 2006") is non-registrable as a national German Trade Mark for all of the goods/services because of complete lack of distinctiveness. Another sign, "WM 2006", was considered to be distinctive only for goods and/or services not related, in the view of the related trade circles, to the coming event in Germany.
Originally, the German Patent and Trade Mark Office had accepted both marks for approximaltely 850 goods/services as applied for by FIFA. Then, upon multiple cancellation requests based on absolute grounds of non-registrability, the Office had cancelled both marks. FIFA appealed, and the Federal Patents Court ("Bundespatentgericht") had allowed both marks for resgistration but only for a certain subset of the original list of goods/services.
But the story was not over. Both FIFA as well as one of the parties to the cancellation proceedings brought the case to the Federal Supreme Court for revising the matter as to the points of law.
Now, after the Federal Supreme Court has issued a decision, the "WM 2006" case will again go to the Federal Patents Court in order to find the exact wording of the list of goods and/or services for which this sign is acceptable as a registred mark in Germany. The "FUSSBALL WM 2006" case is terminated; there will be no registration at all.
I don't know as to whether or not they will get a final decison of the Patents Court well in advance of the WM event.
But - nobody should prematurely assume that now the way is free to make unrestricted use of those "WM 2006"-related signs. There might be co-pending applications and/or registrations elsewhere. Take, for example, the co-pending Community Trade Mark 002155521 "WM 2006". This registration is also subject to cancellation procedures.
Issue 04/2006 of the Official Journal of the EPO has been Published on the EPO Website.
Today, Issue 04/2006 of the Official Journal of the EPO has been published on the EPO website. Starting with page 267 of that issue, a somewhat controversial Case Law T 713/02 - 3.3.01 is published:
"[...] Headnote
I. Even where the Formalities Officer allowed a request for correction of priority data, that matter is not thereby decided in the applicant's favour in binding form prior to the decision terminating the granting procedure and is, thus, open to review by the Board of Appeal. [...]
II. The examination of a request for correction of priority data after the publication of the application is not to be restricted to that portion of the facts and circumstances which in a decision of a Board of Appeal in another case was considered not to preclude the correction. Therefore, in the present case, it cannot be ignored that the requested correction by addition of an earlier priority date would eliminate from the state of the art pursuant to Article 54(2) EPC a highly relevant document, which the applicant had previously de facto accepted as comprised in that state of the art. [...]"
"[...] For the time being, the EPO's departments of first instance do not follow the findings that no decisions, except where a total loss of rights should be remedied, may be taken in the applicant's favour prior to the decision terminating the granting procedure. [...]"
"[...] The Committee for Economic Development, which includes senior executives from companies such as IBM, Citigroup, Goldman Sachs and General Electric, published a report earlier this week recommending the use of increased openness to promote economic growth.
The report, entitled "Open Standards, Open Source, and Open Innovation" (click here for PDF), pointed out that in 2001, the CED had recommended that business methods not be patentable. It also called on the Patent Office to improve the way it searches for evidence that a patent shouldn't be granted because it isn't innovative.
'The Patent and Trademark Office should make increased use of the Internet in seeking to document 'prior art,' particularly in the area of information technology, where the Internet provides new capabilities to reach the most knowledgeable commentators. A 'Slashdot for prior art' should be the goal,' the report said, referring to the online technology-discussing community.
[...]"
The report concludes:
"[...] The benefits of openness are becoming more apparent and are likely to grow as we learn to utilize the new capabilities enabled by information and communications technologies. These benefits are challenging our conventional wisdom about innovation and the incentives needed to stimulate it. And, they are suggesting new ways of acting based on the special characteristics of the digital world, which are far different than those that developed based on what we knew of the physical world.
Years ago, the theory of the tragedy of the commons was developed in economic literature. It argued that users of a commons (such as a grazing field shared by an entire community), who had no particular or individual stake in the success of the commons, might act in such a way as to maximize their own short-term interests at the long-term expense of the commons and the community that used it. Thus, the actions of a few could harm the interests of many, and of society as a whole.
The digital world provides an opportunity to think of the commons differently. The use of the digital commons by everyone does not necessarily exclude its use by anyone. To the extent that new information and communications technologies allow more and more people to contribute their own genius, the digital world offers new opportunities from the commons and for the commons.
Openness is not an overriding moral value that must prevail in every circumstance. But, its extraordinary capability to harness the collective intelligence of our world requires us to consider its implications carefully, nurture it where possible, and avoid efforts to foreclose it without compelling reason. We should not miss the opportunity to harvest the benefits openness might bring. [...]"
More in particular, the report says:
"[...] Proposed legislation or regulations regarding intellectual property rights should be subject to the Adelphi Charter test, which establishes a presumption against the grant of any new rights, requires that proponents of new rights bear the burden of proof, and calls for rigorous analysis of the impact of the proposed changes. [...]
The Patent and Trademark Office should consider whether there are workable systems that would reward intellectual property rights holders for increasing access to the intellectual property they control.[...]"
The website defining and promoting the "Adelphi Charter" can be found here. Item 4 of this Charter says:
"Intellectual property protection must not be extended to abstract ideas, facts or data."
Well, what do they mean with abstract ideas? Doesn't the patent system since long grant exclusive rights concerning abstract ideas? Or, is a technical invention something different?
transformational jobs are things like manufacturing, mining, and agriculture—today one job in five, whereas a century ago only one job in five was anything else;
transactional jobs are things like retail sales, accounting, and banking and brokerage;
tacit jobs involve 'searching, coordinating, and monitoring activities required to exchange goods, services, and information'; For instance, 'Running supply chains, managing the way customers experience products, reviving brands, and negotiating acquisitions.'
[...]"
In this context, Mr. MacEwen points to a publication of McKinsey&Company titled "Competitive Advantage through Better Interactions". Surely the entire IP business should be seen as part of the "tacit" sector. I think it would be quite interesting to discuss, on the basis of this conceptual framework, the role of the IP people in the context of innovation in general and oftware-related businesses in particular. In a more general context, Mr. MacEwen writes:
"[...] As McKinsey characterizes it, lawyers and similar people who deal with ambiguity and exercise judgment are engaging in 'tacit, complex interactions' (as opposed to explicit transactional interactions, which can be and are being automated, outsourced, or just plain eliminated [as when the bar-code scanner is integrated with the supply chain so that inventory and reordering can be removed from human hands]). As the economy focuses more and more on 'knowledge workers', then, 'as Adam Smith predicted, specialization tends to atomize work and to increase the need to interact.'
So the question for sophisticated law firms becomes, can we increase the productivity of our interactions? Can we, in other words, do for the tacit workers what we've already done for the transactional workers?
The first thing we can say is that it's clear that 'This shift toward tacit interactions upends everything we've known about organizations since the days of Alfred Sloan.' Gone is the pyramidal structure with tacit work only at the top; in are tools to help people collaborate more effectively both inside and outside their firms. Decision support tools can take care of checklists and deadlines, and automatically point the way towards best practices. Here's a concrete example:
"Kaiser Permanente is one of the organizations now pioneering the use of such technologies to improve the quality of complex interactions. The health care provider has developed not only unified digital records on its patients but also innovative decision-support tools, such as programs that track the schedules of caregivers for patients with diabetes and heart disease. Although it is hard to determine quantitatively whether physicians are making better judgments about medical care, data suggest that Kaiser has cut its patients' mortality rate for heart disease to levels well below the US national average."
One can only imagine the fear and loathing experienced by doctors who were asked to abandon their notebooks and manila file folders and to 'trust' the digital records.
Similarly, cutting-edge law firms will need to step back from the (false?) comfort of hierarchical staffing and move towards 'environments that encourage tacit employees to explore new ideas, to operate in a [...] more team-oriented and unstructured way.'
Feeling trepidation? Here's the good news: 'Such capabilities will be difficult for competitors to duplicate. Best practices will be hard to transplant from one company to another if they are based on talented people supported by unique organizational and leadership models and armed with a panoply of complementary technologies.' [...]"
I wonder what consequences, if any, such considerations would have / should have with regard to the current business of IP professionals. At least, I think, this topic appears to be closely related to that question. A significant improvement of tacit interactions provided by patent professionals might be bound to efforts for "closing the loop", i.e. facilitating the exploitation of some "knowledge feedback" from the patent system into the various R&D and marketing processes of the enterprises out there.
Under normal circumstances I would be very reluctant to use this blog for advertising any sort of a new gadget. But in this case I am tempted to allow an exception.
I appreciate to scan file wrappers with a document scanner equipped with some ADF (Automated Document Feeder) and like to work henceforth with resulting .TIFF of .PDF image files on my computer. This works well if I am at my desk or, at least, carrying my notebook computer with me. It would be quite nice to have a lightweight eBook reader with which I can carry tons of scanned papers with me for convenient reading at any time whenever I want to do so. But up to now PDAs and eBook readers appear not to be so well-suited for such purposes.
In 2004, Sony had showed up with a cool gadget called Sony Librie with electronic paper, i.e. some sort of passive but ultra-sharp display device. However, this product was a commercial disaster because of the software running on it provided a very rigid and mandatory DRM schema which rendered the attractive hardware rather useless for many legitimate purposes. Indeed, very few people really need such sort of closed proprietary device ignoring commonly accepted standards. Moreover, as far as I know, it was for sale only on the Japanese market anyway. It never reached Europe.
"[...] Digital written content can now be read as easily and conveniently as the printed word on paper. The iRex Technologies E-reader provides true reading comfort, flexibility and versatility. It can be read outdoors, in sunshine or shadow. As well as reading you can also write comments, mark or underline sections, for a true two-way paper experience. And all of this at the lowest power consumption.
Digital written content is now readable on a truly portable, consumer friendly device. Designed for intuitive ease of use, the iRex Technologies E-reader, uses wireless Internet connectivity, PC connection or flash memory to deliver content. This means you can now always have ALL the reading material you want with you at all times. To read wherever you want to read it. Making the iRex Technologies E-reader suitable for multiple professional and leisure uses. Multi format support enables virtually any operating system to be used. [...]"
If it is really true what is said about that device the software running on it will be based on some sort of Linux, capable to deal with usual open or semi-open formats like PDF or MP3. The device exhibits, via USB, an interface like a memory stick and, hence, can easily be loaded with contents files originating from MS-Windows, Apple Mac, and Linux computers. I strongly hope that it will also be possible to read pulti-page .TIFF files on that device.
It is not yet available for sale but may be so in second half of April 2006, says the iRex Website. The price is unknown. Let's wait and see.
One of the more common theories (there are many others) of the patent system says that the inventor or applicant, when filing for a patent, gets an exclusive right to the respective patented invention only in return for a public disclosure thereof.
But how can the public take in the stream of public disclosure generated by the patent system for some sort of intellectual digesting?
In the early times of our modern patent system, there had been two basic instruments for accomplishing the second part of this theory:
The Official Gazette edited by the Patent Office giving lists of recently granted patents, and
Typeset printed paper copies of patent documents, to be ordered and billed on a one-by-one basis.
This ancient technical means had worked well for smaller numbers of patent applications. But do they also scale well in a world with literally millions of patent documents generated annually?
I am seriously in doubt.
Ok, I greatly appreciate that now, roughly ten years after the begin of the popularisation of the World Wide Web, we have reached a state of the affairs where PDF files of patent documents ara available on the Internet for free download in a single file without need for boring page-by-page download-and-printing exercises. And some offices like the EPO have implemented a very convenient system for patent status queries and file inspections. However, others did not, for example the German Patent and Trade Mark Office. You have to register for DPINFO access, and there is no electronic file inspection.
But that what has been reached so far can, in my view, even in case of the EPO be seen only as some kind of an absolute minimum of information services necessary to defend the patent system.
As far as I know patent documents are not a most popular reading in the companies affected by the patent system.
A first reason might be that the language of patent documents is not that of the ordinary man on the street. It is also not the language of the engineers and scientists. The reason is the necessary double-nature of patent documents embodying at the same time a technical disclosure document as well as a legal document.
But a second reason is that it appears to be utterly difficult to locate relevant documents in the haystack of millions of other documents. Here probably more Internet-based technology could and should step in.
In practice, some companies maintain sort of a search contract with a patent document supplier. They get, on a weekly or monthly basis, a stack of piled-up patent documents selected by patent classification, keywords or identity of the applicant. Then the paper documents are circulated amongst staff members. This appears to be somewhat time-consuming and ineffective. It certainly does not boost the popularity of exploiting patent documents. Perhaps some measures might ease the situation a little:
Providing individualised RSS feeds with data on selected patent documents. This looks as if it should not be uttlerly difficult to obtain but up to now I do not have seen such a thing.
Implementing collaborative filtering mechanisms in order to facilitate the discrimination between important and less important patents. The Community Patent Project (no, not that one) goes a step into this direction. If in the industry there would be a generally accepted culture of participation in a peer-to-peer-assisted patent system, then I should be inclined to assume that this not only would effectively reduce the number of illiegitimate patents but also significantly increase the general awareness and knowledge amongst engineers employed by the industry about important patents in a given field of technology. This might well pay off for the employer not only by avoiding unnecessary infringement lawsuits but also by benefiting from a broader knowledge of the employees with regard to the technology of the competitors.
Undertaking attempts to accomplish a technology transfer concerning data mining and knowledge management technologies towards more widespread applications in the field of patent information processing.
Many aspects of such proposals would point into the direction of value-added services which might not be expected to be provided for free by the Patent Offices. However, I really could imagine that e.g. the EPO should provide at least IPC-specific RSS feeds for free.
Concerning value-added services to be offered by others, the major suppliers for raw data would be, of course, the Patent Offices. Despite the fact that their patent information retail business is now for free, they want to see money for their wholesale raw data business. Still more annoying is the attitude e.g. of the EPO to claim rights on patent raw data as "proprietary information" as you have to accept if you have "reseller status".
The corresponding version of the Standard Agreement of the German Patent and Trade Mark Office [In German, sorry] appears to be still more preposterous. They earnestly require that the user of raw data makes sure that any piece of secret information accidentially put into the data streams by the Office is filtered out and kept under secrecy by the other party to the contract. If the Office amends data, the data user is obliged to communicate this to each and every of his or her customers.
Such kind of "Standard Agreement" might render open collaborative Internet-based projects concerning patent information virtually impossible. This surely is not the way patent information should be distributed and managed in the age of the Internet. The patent applicants have already paid for the publication of patent documents with their fees. And not a single one institution in the patent business would, in a time where the overall economic efficieny of the patent system is put into question in its entirety, do itself a favour in hampering the free flow of patent information over the Internet.
"[...] Government negotiators addressing the global harmonisation of patent systems today could not agree on a work programme for a key World Intellectual Property Organization committee, effectively stalling debate on the issue until the end of the year.
'It is not yet the time', said Ron Marchant, chief executive and comptroller general of the United Kingdom Patent Office, who chaired the end of the meeting on the issue. Nations 'need to rethink' their positions, he said. [...]"
FFII reports that Mr. Adam Gierek MEP (PL) has asked the Commission to provide a statement on the relationship between the case law of the European Patent Office (EPO) and the legal framework under consideration for the Community Patent:
"A patent system can play a fundamental role in establishing an appropriate legal status for innovations and ensuring that their originators are properly rewarded. I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law.
Fortunately, the courts in the Member States are making use of their right to rescind patents granted by the EPO for software and business methods. The difference in approach between the EPO and, for example, the Polish patent office is illustrated by the fact that the latter has for months been refusing to grant two patents to applicants granted patents by the EPO. To date, the Polish courts have upheld these decisions.
Recently, the High Court of England and Wales ruled that two patents granted by the EPO were invalid on UK territory and emphasised the need for computer programs to be excluded from the scope of patent law even in cases where the use of a program produces a physical effect.
Before the vote held in the European Parliament on 6 July 2005, the rapporteur, Michel Rocard, said that 'rejection [of the directive] is a message directed at the European Patent Office. The European Parliament has refused to ratify the recent judicial errors by extending the scope of patentability to certain software programs'.
However, the EPO has not heeded that message and has not changed its practices.
Given the above, does the Commission still stand by the position set out in point 2.3.2 of the proposal for a Council Regulation on the Community patent (COM(2000) 412 final - 2000/0177(CNS)), namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
So, Mr. Gierek worries about certain aspects of the practice of the European Patent Office (EPO) "which are undermining the social acceptability of the patent system with patents being granted for solutions that are not patentable under the current law". What is that phrase intended to mean? There appears to be some subtext saying that the EPO is granting patents contrary to the law. Just that well-known old and boring prayer wheel of the various anti-patent campaigners groups. Does Mr. Gierek really think that certain patents granted by the EPO on computer-implemented inventions "are not patentable under the current law" just because he and his supporters dislike them? With other words, is he assuming powers of a superior "Board of Ultimative Appeals" above the real Boards of Appeal of the European Patent Office?
With all due respect, Mr. Gierek, but I beg to differ. Patentable unter the EPC is exactly that what the Boards of Appeal of the EPO consider as being patentable. No less, nothing more. And the Members of the Boards of Appeal are independent in their decisions from the opinions of the EPO management, see Article 23 EPC. This has nothing to do with the fact that the Boards of Appeal are, in organisatorical terms, part of the EPO.
BTW, in this context I would like to point out that plans to create the full organisational autonomy of the EPO's Boards of Appeal are not entirely dead: According to a statement on the website of the EPO, the organisational autonomy of the Boards of Appeal was extensively discussed in the Administrative Council in June and in December 2003. Even if some states are reluctant and doubt the necessity of changing the present status of the Boards of Appeal, the majority of reactions were positive. Also SACEPO warmly welcomed this initiative. In November 2003 the Administrative Council's Committee on Patent Law started to examine the details of the proposal - a discussion which continued in 2004. At its meeting in June 2004, the Administrative Council found that establishing the Boards of Appeal as the third organ of the European Patent Organisation on the basis of the present draft should be one of the items of the agenda of a future Diplomatic Conference revising the EPC.
EPC: How Much Set Theory to be Applied by the Applicant when Preparing a Sequence of Divisional Applications?
How much set theory will have to be applied by the Applicant when preparing a sequence of Divisional Applications under the European Patent Convention? This question appears to be quite open as in Case T 1409/05 the Board of Appeal has just referred following questions to the Enlarged Board of Appeal:
"[...] Headnote: [...]
(1) In the case of a sequence of applications consisting of a root (originating) application followed by divisional applications, each divided from its predecessor, is it a necessary and sufficient condition for a divisional application of that sequence to comply with Article 76(1) EPC, second sentence, that anything disclosed in that divisional application be directly, unambiguously and separately derivable from what is disclosed in each of the preceding applications as filed?
(2) If the above condition is not sufficient, does said sentence impose the additional requirement (a) that the subject-matter of the claims of said divisional be nested within the subject-matter of the claims of its divisional predecessors?
or
(b) that all the divisional predecessors of said divisional comply with Article 76(1) EPC?[...]"
In this context, see also T 0039/03 referred to the Enlarged Board of Appeal in 2005. This matter concernes the question whether or not a divisional application which does not meet the requirements of Article 76(1) EPC because, at its actual filing date, it extends beyond the content of the earlier application, can be amended later in order to make it a valid divisional application.
Having regard to Article 8 of its Rules of Procedure, the Enlarged Board of Appeal has decided to consider the points of law referred to it by the Technical Board of Appeal 3.4.02 in case T 39/03 (G 1/05) and by the Technical Board of Appeal 3.4.03 in case T 1409/05 (G 1/06) in consolidated proceedings.
"[...] The EPLA would change the judicial system in Europe for patent litigation. Any dispute involving a patent granted by the European Patent Office (EPO) would go before a new European Patent Court (EPCt). The judges serving on the EPCt would be handpicked: unlike the national courts that decide on patent infringement cases now, the EPCt would (almost certainly) have the EPO's philosophy with respect to software patents. The EPCt would uphold the kinds of software patents that national courts throw out now. And the EPCt would probably have a general tendency to rule in favor of right holders rather than the defendants.
If we talk and think too much about the community patent, we only distract ourselves from the new row over software patents in Europe, which has already begun and which is all about the EPLA. Microsoft, SAP, the Business Software Alliance, UNICE (an umbrella organization of various big industry associations from all over Europe), the EPO, the patent extremists in certain national governments, the associations of lawyers in general and patent attorneys in particular: they all push for the EPLA like crazy. [...]"
This appears to me as a crude mixture of facts, errors, and innuendos:
One of the characteristics of the EPLA is that litigation cases will, in the first instance, go to local courts, not to a centralised European Patents Cort.
There is no doubt that also under the current system of patent litigation in place throughout Europe, patents on computer-implemented inventions (CIIs) are already enforceable. It is true that after closure of Opposition Proceedings before the EPO European Patents can in principle be revoked (nullified) by national Courts if there are sufficient reasons. These reasons are governed, however, by the European Patent Convention EPC, not by national law. In Germany, the Federal Patents Court ("Bundespatentgericht") seated in Munich is competent to hear such nullification cases. Afterwards cases can go up to the German Supreme Court ("Bundesgerichtshof", BGH) seated in Karlsruhe. In the past both Courts have made perfectly clear that they are in principle willing to uphold patents on CIIs, provided that certain criteria of technicality are met. It is true that there do exist or at least can exist borderline cases where patents on CIIs granted and uphold by the EPO and the Boards of Appeal of the EPO are or will be revoked by the Federal Patents Court and/or by the German Supreme Court. It had been the intention of the EU Commission to eliminate such divergencies by the Draft Directive on the Patentability of CIIs which eventually failed during the second reading in the European Parliament last year. But nevertheless it appears to be quite irresponsible to argue that under the current patent enforcement regime infringers of patents on CIIs are safe.
Allegations indicating that "hand-picked judges" would be political slaves of the EPO system are merely embarassing lapses if not underpinned with substantial proof.
An enlarged version of Mr. Müller's tractate comprising the EPLA-related call to the arms is available there.
And, why do many patent people support the EPLA? Well, I think because it serves the society by providing an improved way of enforcing patents based on local courts but harmonised on a European level.
"[...] Let me describe the FFII. You take a big bag, you fill it with ten cats. These are the FFII activists. Nice, friendly, but they have claws and killer instincts. Now you put a dog in the bag. This represents the professional lobbyist. Smelly, subservient, and willing to do anything for a piece of meat. Close bag, listen to the noise, open bag. That is what the FFII does to the normal cosy process in which big business defines laws, lobbyists explain these to politicians, who then wrangle the laws into existence.
There is something about working with brilliant individuals who have a total, unshakeable, systematic conviction that they are on the side of right. You can't buy them, you can't bully them. Every threat just makes them more stubborn. Every underhand manoever makes them more angry. For every one that burns out, five more appear, angrier and better informed than ever [...]"
Hm. Would you please tell me where is the borderline between unfaltering determinedness governed by a responsible personal conscience, on the one hand, and some kind of closed-minded self-righteousness like the behaviour of fundamentalists, on the other hand?
So, the picture imagines ten cats acting on behalf of FFII versus only one single dog sent by the evil proponents of the patent system. Ok., at least the framework of the figures as indicated might be right in terms of the order of magnitude. Taken the numbers of activists, the anti-patent campaigners clearly outnumber the voices of the patent people, at least as far as counted on the Internet. And, they are confident to see later on that the effect of the treatment of the pro-patent people by the efforts of anti-patent campaigners will at least be as severe as the wounds grated into the flesh of the poor single dog by virtue of the claws of the ten angry cats. Time will show as to whether or not this utopia will become reality one day.
But what about the "total, unshakeable, systematic conviction that they are on the side of right" of those anti-patent activists? This sounds quite like hubris. Do you want to see any substantial political influence or power handed over to guys who are proponents of some total and unshakable conviction not only in questions concerning first principles of our western industrialised societies but also concerning very particular questions of how to implement sector-specific laws? Apparently there seems to be little extra space for some kind of healthy pragmatism.
Recently even a professor of law and history of law at Columbia University is publicly reasoning about a possible death of the patent system, imaginating a future "confrontation of cataclysmic proportions" between proponents of the patent system and the anti-patent crowd, whatever that might mean but provoking a pseudonymous comment playing around with an answer like "they will go out in the streets and burn cars and embassies" in an only to a half portion jokey and ironic fashion.
It appears as if Mr. Hintjens likes telling tales with animals well beyond cats and dogs. In another post he wrote about rabbits and foxes:
"[...] In the 1980's, scientists studying the population curves of snowshoe rabbits and foxes (ok, it was lynxes but no-one except Canadians and Scots knows what they are) in the Canadian north, found the populations went up and down in cycles. Basically, rabbits breed faster than foxes, so a rabbit population can grow in one season much faster than the fox population, stopping only when they reach the limit their grassy ecosystem can support. The rabbits have a great first couple of years, but then the fox population catches up, and suddenly there are too many predators for the rabbits. The rabbit population crashes, and a little later, so do the foxes.
What I'm saying is that innovation is rabbits, and soft patents is foxes. Software patents eat innovations. They hunt them down, jump on them, bite through their necks, rip their bodies to shreds, and feed them to their young. It's really like that, but with more violence.
Now, the government official responsible for Rabbit Production, who comes for a couple of months to monitor the rabbit population, sees that the rabbits are breeding wonderfully (he's obviously not an Australian), and the foxes too. He sees that the more foxes, the more rabbits! It's amazing! He goes off and starts a fox farm, releasing even more foxes into the wild, because he's jumped to the conclusion that rabbits generate spontaneously from foxes. Correlation and causation are two entirely different things, but the rabbit man does not understand this.
And our large software firms, who are buying patents as fast as they can. What are they? Well, imagine very large, very juicy, and very, very stupid rabbits, who have found nothing better to do than help the government official breed foxes...
You can hardly be angry with Big Software. The bigger they come, the harder they fall. [...]"
So, in Mr. Hintjens' view, "innovation" is equal to rabbits, and "soft patents" (whatever that term might mean) are equal to foxes. Whereas such kind of tales surely have the potential to be widely adopted by many of his followers to achive a huge propagandistic effect, he owes us any solid substantiation for such kind of oversimplication. The truth is that the patent system does not kill "innovation" as such but enhances the prospects of some kind of business models wherein innovation processes can be embedded at the expense of others wherein innovation processes can be embedded either. But discussing the complex effects of patents on real-world business models is a much harder task that cannot be done by simply telling tales. While it is true that any statistical correlation, taken as such, between "innovation" (whatever the instruments used for measurement might be), on the other hand, and "IP protection", on the other hand, does not implicitly indicate any cause-and-effect relationship exploitable by leveraging IP protection to create more innovation, it is also true that such correlation is no evidence for any cause-and-effect chain the other way round or for the non-existence of any related cause-and-effect relations.
Mr. Hintjens sketches a political scenario at the end of which comes a total breakdown of the patent system:
"[...] I'll sketch what I believe are the five [eight?, AHH] stages of the software innovation and patent boom and bust cycle.
First stage: software comes into its own as a domain of technology. Up to about 1980, software was still seen as a branch of mathematics. By 1985 this was no longer the case.
Second stage: large software manufacturers convince the patent offices to change the definition of "subject matter" so that software becomes patentable. In the USA this happened in the early 1990's. In the EU this happened informally, through half-licit legal interpretation.
Third stage: large patent holders push for software patents to be granted more easily, and patent offices start to grant patents on non-software methods, mainly business methods. In the USA this happened from 1999 onwards, and in the EU more or less in parallel with software patents. Governments, seeing the boom in patents, run their hands with glee, thinking this is the precursor to a new golden age.
Fourth stage: specialist patent firms understand that soft patents (software and method patents) are an excellent opportunity, and start to invest massively in these patents. This happened in the USA and EU more or less at the same time, from 2000 onwards. Again, the growth in patents impresses everyone except the engineers and specialists who are actually involved in innovation, who start to get very concerned.
Fifth stage: patent holders, who represent a new and wealthy propertied class, lobby for better enforcement of their patents, no matter how trivial or obvious, once granted by the patent offices. The enforcement happens through the courts. In the EU, patent owners lobby for EU-wide standards on enforcement. In the USA, national enforcement was never an issue. In the EU it is the burning issue today.
Sixth stage: software patents start to attack the process of innovation and people panic. Discussion starts about whether this was all such a good idea, and how to raise the quality of software patents. The USA has started to enter this debate, and the EU has been wallowing in it, largely thanks to the FFII, for years.
Seventh stage: legislators understand, too late, that there is no way to separate the bad software patents from the good. Any filter or gate or barrier that lets through good patents (if such animals exist), also lets through an infinite horde of bad ones. Industry starts to clamour for a general ban on software patents. In the USA and EU, we are several years away from this.
Eight[h] stage: legislators are faced with the task of undoing everything that has happened since stage two. I don't want to speculate on how this can even be done. Can patents, once granted, be revoked without creating incredible outcry? [...]"
So, "can patents, once granted, be revoked without creating incredible outcry"? Of course, they can't be revoked that easily because of the posession of rights granted by a state like patents constitutes a position protected by the provisions of the respective consitution protecting the status of property. Unless ... well, unless the anti-patent crowd would decide to implement something like this ominous "confrontation of cataclysmic proportions" as mentioned above. I think at least at the time being we should not go further into the details of such options here. But the grant of new patents could well be hampered in future if there were political majorities demanding such a step.
Mr. Hintjens argues that "[...] there is no way to separate the bad software patents from the good. Any filter or gate or barrier that lets through good patents (if such animals exist), also lets through an infinite horde of bad ones." If this assertion is considered to be true: Why on earth does FFII press for some kind of amendmends for radical narrowing the range of patentable subject-matters in patent law?
This gives me an opportunity to reiterate my observation that most part of the anti-patent crowd appears to be glued to a hostile discussion of the pre-grant aspects of the patent law only. Obviously they like to ignore the entire set of post-grant instruments for aligning IP with reality. Take, for example, not only the system of exemptions embodied within (continental) Copyright Law but, in the realm of patents, also Article 5ter of the Paris Convention:
"[...] In any country of the Union the following shall not be considered as infringements of the rights of a patentee:
(1) the use on board vessels of other countries of the Union of devices forming the subject of his patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of the said country, provided that such devices are used there exclusively for the needs of the vessel;
(2) the use of devices forming the subject of the patent in the construction or operation of aircraft or land vehicles of other countries of the Union, or of accessories of such aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said country.[...]"
Solving the problem of a potential hampering of the world trade caused by the threat of locking up foreign ships in seaports on the basis of local patents enforceable on the territory to which the respective seaport belongs on the post-grant side of the patent law was a much better idea than, on the pre-grant side, starting a debate on whether or not the body, machinery, tackle, gear and other accessories of a vessel "as such" should be patentable.
The Honourable Mr. Justice Mann of The High Court Of Justice - Chancery Division / Patents Court - in London has handed down a Decision cited as [2006] EWHC 705 (Ch) dated April 03, 2006. The decision is about UK application GB 0314464.9 filed as a UK national phase of PCT Application PCT/AU2001/001526 and titled "Automated method of acquiring the documents necessary to incorporate a company" which had, on March 22, 2005, previously been rejected by the UK Patent Office. Now, Mr. Mann has dismissed the Appeal filed by the Applicant:
"[...] If one looks at the substance of the invention it is basically a computer program. The claim contains a reference to other elements, but it is the substance that matters, rather than a technical dissection of the claim - see Fujitsu Ltd's Application [1997] RPC 608 at 618. That substance is a computer program. Claim 1 describes its operation. Mr Macrossan's submissions seek to say that it is more than a computer program because the process involved ends up with the production of something - appropriate corporate documents. Other cases in which inventions have been held to be computer programs do not have such an end product, it is submitted. Mr Macrossan cited them in his submissions to the hearing officer and incorporates them into his submissions on this appeal. He cites Raytheon, Fujitsu (supra), Hutchins [2002] RPC 264 and others and says that none of them produced a physical end product. I do not regard that as being a distinguishing feature for present purposes. For example, while in Fujitsu the end product was apparently the display of a crystal, there is nothing to indicate that the result would have been any different if it had been a physical printout rather than a computer display. That is not, in my view, a basis for distinguishing those earlier cases.
I therefore consider that the hearing officer was right in her decision and that the alleged invention in this case is a computer program. [...]"
The rejection in the UK does not come as a surprise to me. However, in the patent family there is also a co-pending European Patent Application No. 01997756 which, up to now, has not yet entered into effective substantial examination, i.e. there appears to be no examination report yet. I am curious to learn later on as to how the EPO will deal with that subject-matter.
"[...] On the question of exclusions, the Judge explained that the approach taken by the Patents Office and the courts had changed in the time since [The Examiner] made her ruling. [...]"
A True Rarity: Weblog of the Danish Patent and Trade Mark Office.
Blogs operated by patent examiners appear to be quite infrequent but what I have seen yet really is a rarity: A Blog operated on the Official website of a patent and trade mark Office. In this case, it is the Weblog of the Danish Patent and Trade Mark Office. A quite severe drawback seems to be, however, that it is written entirely in Danish ...
The deadline for submission of replies is extended until 12 April 2006.
Please note that this deadline determines which replies will be taken into account for the hearing on 13 June 2006.
However, we welcome all replies submitted after the deadline. They will be duly analysed and taken into account by the Commission in formulation of the future patent policy in Europe."
The anti-patent activists behind www.nosoftwarepatents-award.de have elected EP 249293 "Processor-based data and/or graphics display apparatus" of Philips Electronics UK Ltd. as "Software Patent of the Month - March". It appears as if they have considered the independent claim of the patent which might be related to that what is now known as context menue as being obvious.
What they did not mention on their website so prominently, however, ist the fact that priority date for that patent was June 10, 1986 (!). Was a sort of "context menue" really obvious in those days?
Moreover, there is not only a first patent document EP 249293 B1 dated February 23, 1994 but, after closure of Opposition proceedings, also a further second patent document EP 249293 B2 dated May 21, 1997, and comprising claims with a scope narrower than that of the claims of the B1 version. As usual, the click-trough from the campaign website to the so-called "Gauss" system of the FFII reveals the claims of the laid-open document A1 but not the claims as granted.
The Economist: "China Discovers the Virtues of Intellectual Property"
From recent issue of THE ECONOMIST (Reg. required):
"[...] A COURT case involving counterfeits and China is nothing new - except this time, it is the Chinese company that is doing the suing. In February Netac, a company based in Shenzhen, took PNY Technologies of New Jersey to court in Texas and so became, it is thought, the first mainland firm to sue an American one for patent infringement. [...]"
Obviously this is a very interesting turning point in view of the common gossip saying that mainland Chinese business people are somewhat reluctant when it comes to IP protection ...
"[...] The 20th Session of the Committee of Experts accepted that "Legal services" should be transferred from Class 42 to Class 45 of the Nice classification. As "Legal services" are mentioned in the heading of Class 42, and are to be added to the heading of Class 45, the wording of the headings of these classes is to be revised as follows:
Class 42:
Original class heading Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; legal services. New class heading Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.
Class 45:
Original Class heading Personal and social services rendered by others to meet the needs of individuals; security services for the protection of property and individuals. New class heading Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.
The headings of the Nice Classification form part of the Trade Marks Rules (Schedule 3). Therefore, any change to the class headings will require a revision of these Rules by Statutory Instrument. If you wish to make any comments on the changes, you can send them to me at the address below, no later than 30 June 2006. [...]"
Each and every European Patent Attorney is, by virtue of statutory provisions, a member of epi, the Instutute of the professional representatives entitled to act before the European Patent Office. The Institute is an international non-governmental public law corporation and has its own by-laws and code of professional conduct. At present, the Institute which represents the first all-European patent profession comprises about 8.000 members from 31 European countries, both from industry and free profession.
Inter alia, epi publishes a quarterly journal "epi Information". According to epi, its primary objective is to inform members of epi's current activity. Officer reports, from Council meetings, and major reports from Committees are included. In addition, the journal encourages members to use its pages for an exchange of information and professional experiences. The epi-Information journal is open to the public; it can not only be found off-line in various well-assorted public libraries but also on-line.
The recent issue 01/2006 is ready for download here (PDF).
In the Editorial section, Mr. Johnson complains about certain deficiencies in the day-to-day practice of the EPO, suggesting to form a "EPO Users' Group":
"[...] [T]here are 'smaller' questions they do ask, in the context of the EPO, such as 'why are my problems not understood, (by the Examining Division, Opposition Division etc).' A case in point is the appointment of Oral Proceedings. We know of a recent case where an attorney was summoned to two completely separate Oral Proceedings, on two entirely separate cases, on the same day, at the same time. His perfectly reasonable request for one to be shifted fell on totally unsympathetic ears - as we understood it, he was told that another attorney should represent the client on one of the cases. This attitude does not serve the system, the Office or the users well at all. A small shift in attitude by the Office to such issues, which matter to applicants, would go a long way to lessening criticism of the Office. Perhaps a way forward would be to set up a Users' Group which could meet with the Office say annually to discuss aspects of procedure, changes to be implemented etc. We understand that such a system works well at the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), where meetings between the Office and the Users, represented in the main by NGOs meets in Alicante once a year. Such a body would not be to usurp the excellent work done by SACEPO. A 'Users Group' would channel feelings of the Users to the EPO about such matters as Summons to Oral Proceedings, general handling of cases, actual and perceived frustrations felt by Users, etc. The Office in turn could present its views to the Users. [...]"
Furthermore, there is an article of Mr. Torlot presenting "The European Patent Academy - An Approach for EQE Candidates" (pages 10 to 12). Mr. Lyndon-Stanford presents an Opinion on the Patent Profession rendered by CNIPA, dealing with a concern that with the low pass rates of the European Qualifying Examination (EQE) in some member states of the EPC the patent attorney profession could be effectively extinguished (page 15). There is also an article of Ms. Stolzenburg, Ms. Ruskin and Mr. Jaenichen "Of incomplete complete inventions: T 1329/04-3.3.8" (pages 15 to 27):
"[...] The present article deals with the question of when an invention should be considered as being complete. So far it appeared as if this issue had been settled to the effect that there is a complete invention if the technical teaching provided in a patent application can be performed by the (average) person skilled in the art without inventive effort on the basis of the disclosure provided. Experimental data in the application as filed supporting the enablement of the technical teaching were not required, i. e. 'performable' was sufficient while 'performed' was unnecessary. Decision T 1329/04 of Technical Board 3.3.8 has abandoned this established principle. Instead it took the position that a subjective test has to be applied according to which it is to be determined whether, in the absence of experimental data in the application as filed, it was plausible to the (average) person skilled in the art that the invention would really work as described. Consideration of later data confirming that the technical disclosure of the application as filed was entirely correct was refused. The decision is in the area of biotechnology but its principles would be equally applicable in all other areas of technology since, based on Article 52 (1) EPC, the requirement that there must be a complete invention is the common denominator for all patentability requirements. Thus: when is an invention complete? [...]"
Ms. Krekora discusses the question "Should patent attorneys know pharmaceutical law?" in her article "Reform of European Pharmaceutical Law & Patent Protection" (pages 27 to 28). Finally, Mr. Kulhavy presents an article on "Begründung der Definitionsmethode zur Prüfung erfinderischer Tätigkeit" [In German], pages 28 to 32.
Altogether, despite the fact that epi Information usually comprise a lot of internal trivia, I think the journal is worth to be read by wider circles interested in the working of the European Patent Convention.
Feel free to contact PA Axel H Horns via e-mail
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of: