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Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

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Tuesday, September 26, 2006

Is Publishing Patent Applications After 18 Months Too Late?

"[...] I.B.M., the nation's largest patent holder, will publish its patent filings on the Web for public review as part of a new policy that the company hopes will be a model for others.

If widely adopted, the policy could help to curb the rising wave of patent disputes and patent litigation.

The policy, being announced today, includes standards like clearly identifying the corporate ownership of patents, to avoid filings that cloak authorship under the name of an individual or dummy company. It also asserts that so-called business methods alone - broad descriptions of ideas, without technical specifics - should not be patentable.

The move by I.B.M. does carry business risks. Patents typically take three or four years after filing to be approved by the patent office. Companies often try to keep patent applications private for as long as possible, to try to hide their technical intentions from rivals.

'Competitors will know years ahead in some cases what fields we're working on,' said John Kelly, senior vice president for technology and intellectual property at I.B.M. 'We've decided we'll take that risk and seek our competitive advantage elsewhere.'

The more open approach, I.B.M. says, is intended as a step toward improving the quality of patents issued in general because the process of public review should weed out me-too claims that are not genuine innovations.

'The larger picture here is that intellectual property is the crucial capital in a global knowledge economy,' said Samuel J. Palmisano, I.B.M.'s chief executive. 'If you need a dozen lawyers involved every time you want to do something, it's going to be a huge barrier. We need to make sure that intellectual property is not used as a barrier to growth in the future.'
[...]

The I.B.M. policy seeks to address that problem by taking a page from the open-source style of collaboration over the Internet. Just as open-source software is improved and debugged by a far-flung network of people looking at the code and spotting flaws, I.B.M. hopes that a similar process can improve patent quality.

'This is a creative response to that fundamental issue in the patent system,' said Josh Lerner, a professor at the Harvard Business School.

I.B.M. is not the only institution interested in using Internet collaboration to help improve the patent system. Last month, the patent office agreed to try a pilot project of soliciting outside comments on patent filings, including claims of prior art and originality.

I.B.M. is one of several companies that have agreed to submit some patent applications for open peer review as part of the project, beginning early next year. The others include Microsoft, General Electric, Hewlett-Packard, Oracle, Intel and Red Hat. [...]"

"[...] In order for innovation to flourish in a global knowledge-based economy, a new set of principles guiding the creation, ownership and equitable exchange of intellectual goods should include the following tenets:

1. Inventors file quality patent applications for novel and non-obvious inventions of certain scope.
2. Patent ownership is transparent.
3. Market participants act with integrity.
4. IP value is fairly established based on the dynamics of an open market.
5. Market infrastructure provides flexibility to support differing forms of innovation.
6. Realistic introductory levels of global consistency exist for all of the above.[...]"

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Sunday, September 24, 2006

Will Proposed Directive on Criminal Measures Aimed at Ensuring the Enforcement of IPR also Cover National Law?

"[...] The Commission has justified its proposal on the basis of research which shows that there are considerable differences regarding criminal penalties in the legislation of the Member States. In the view of the Commission, such disparities between the national systems of penalties hamper effective action against counterfeiting and piracy.

However, some delegations have raised concerns with respect to the need for further criminal measures against the violation of intellectual property rights. While acknowledging the phenomenon of cross-border and organised counterfeiting and piracy, many delegations have expressed doubts as to whether or not the harmonisation of criminal sanctions at the European level would be effective in eradicating such crime. In consequence, there have been doubts whether there is need for criminal measures taken by the Community and whether such measures would be in accordance with the principle of subsidiarity as set out in Article 5 TEC.

It has also been pointed out that the time-limit for bringing into force the laws, regulations and administrative provisions necessary to comply with the Directive 2004/48/EC has expired only recently, on 29 April 2006. Consequently, from this point of view it has been considered premature to enter into discussions about future criminal measures before the effectiveness of the civil law and administrative measures at the Community level has been assessed.

The Presidency notes out that the need for criminal measures in the field of intellectual property rights may be discussed irrespectively of the question of the appropriate legal basis and/or the nature of the future legal instrument (directive or framework decision).

[...]

Several delegations have underlined the necessity to make a distinction between rights under Community law and rights under national law. They are of the view that intellectual property rights which are not harmonised at the Community level should be excluded from the scope of the instrument. This view is closely related to the question of the competence of the Community legislature in adopting criminal measures. Several delegations have referred to the conclusions of the informal JHA meeting held in Vienna of 13 and 14 January in this matter (see point III).

Some delegations were nevertheless of the opinion that the scope of the instrument should be the widest possible and cover not only the rights harmonised at the Community level but also rights regulated only in national laws. They stressed the need to combat counterfeiting and piracy effectively at the Community level irrespective of whether the offences concern rights under Community law or rights under national law.

V. QUESTIONS

1) Do the Member States, irrespective of the legal basis of the future legal instrument, deem there to be need for further criminal law measures in order to protect intellectual property rights? Should the work await the evaluation process of Directive 2004/48/EC on civil law and administrative measures in order to clarify whether there is a need for criminal law measures?

2) Should the outcome of case C-440/05 between the Commission and the Council, currently pending before the Court of Justice, be awaited in order to clarify Community competence in the field of criminal law in different policy fields?

3) If the work with the Directive is to be continued at present, should this be done on the basis of the amended Commission proposal for a Directive or should the scope of the Directive be limited to the intellectual property rights harmonised in Community legislation?

The Article 36 Committee is invited to discuss the questions mentioned above."

"[...] The Society has a number of serious concerns about the Commission's amended proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property ('IP') rights (hereafter 'the Directive'). Such are the strength of these concerns that we would oppose the adoption of this Directive in its present form for the following reasons.

a. We do not believe that there is a sufficient legal base in the EC Treaty for all the provisions contained in the proposed measure. It is inappropriate for an EC Treaty measure to be so prescriptive in relation to criminal sanctions.

b. We do not believe it is appropriate or practicable for criminal sanctions to be extended to the full range of intellectual property infringements. For instance, we are very concerned by the extension of criminal sanctions into the field of patents.

c. We question whether there is a public interest in the EU adopting such a measure and whether sufficient thought has been given to its practical implications.

[...] As such, we would recommend that the current measure be limited to cover only matters of counterfeiting and piracy and not patent or design rights. The Commission should submit a new proposal for a framework decision containing some of the elements of the original measure proposed in 2005. A number of practical issues set out below will also need to be addressed before we could support the proposal. [...]"

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On The Pool of Core Certitudes Of The Anti-Patent Campaigners.

"[...] "Patents on software are formally disallowed under the European patent system, but are routinely granted by the European patent office, according to critics. [...]"

"[...] The law is fixed. The law specifically disallows software patents. [...]"

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Friday, September 22, 2006

German Court Uphelds GNU GPL.

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Wednesday, September 20, 2006

PSE Group in European Parliament Attacking EPLA, Endorsing London Agreement.

"[...] The Socialist MEPs will next week table a motion in Strasbourg to scrap the McCreevy plan for a new Munich-based court system to oversee patent law. The system would be outside the reach of both the European Parliament and the Court of Justice.

The Socialist move comes one year after the European Parliament rejected proposals from the Commission and Council for a software patent bill.

The Socialist motion, tabled by former French Prime Minister Michel Rocard and Austrian social democrat leader in the European Parliament, who is group spokeswoman on legal affairs, Maria Berger, calls for 'balance between the interests of patent holders and the broader public interest in innovation and competitive markets.' [...]"

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Tuesday, September 19, 2006

German Government to Revise Regulations for Legal Services.

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Monday, September 18, 2006

No Dangerous Effects of Patents on Computer-Implemented Inventions.

"Abstract:

In the late 1980s and early 1990s, people in the software industry often said that the coming of patents would spell doom, particularly for small companies. The entry of new firms - the seedbed of growth in the industry - would dry up, and only large, bureaucratic and decidedly non-innovative firms would remain. This paper concludes that these predictions were wrong. New firm entry remains robust, despite the presence of patents (and, in some cases, perhaps because of them). Successful incumbent firms have adjusted to the advent of patents by learning to put a reasonable amount of effort into the acquisition of patents and the building of patent portfolios. Patent data on incumbent firms shows that several well-accepted measures of 'patent effort' correlate closely with indicators of market success such as revenue and employee growth. Whatever the effects of patents on the software industry, this paper concludes, they have not killed it. [...]"

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Saturday, September 16, 2006

News from the Community Patent Review Project.

"[...] The project is not just incomplete -- it can backfire, too. When the patent office knows about prior art, it interprets that prior art in the weakest possible way. Courts usually decline to consider any prior art that the patent office has studied. (This is not an official legal rule, but it is usual practice.) Thus, our main chance of invalidating a patent in court is to find prior art that the patent office has not studied. Furthermore, patent applicants can use this information to write patent claims that cover important activities while avoiding the known prior art that could invalidate the claims. The patent office is eager to help patent applicants do this.

If the worst thing about the project were its inability to solve the whole problem, it would still be better than nothing. But given that it can also backfire, it can be worse than nothing.

Some large companies are starting to recognize the problem that software patents cause; but since they have research labs and large patent portfolios, they do not want to eliminate software patents. They only want to get rid of the absurd ones that are likely to cause trouble for them. So they now call for measures to "improve patent quality." The OSDL project responds to this appeal, but it doesn't serve the needs of software developers and users in general.

What programmers need, in order to do their work safely, is the abolition of software patents. That is what we should campaign for. Perhaps the worst problem in the OSDL's project is that it appears to offer a solution to the software patent problem, which isn't really one. If we are not careful, this can sap the pressure for a real solution. [...]"

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Friday, September 15, 2006

Anti-IP "Pirate Party" Movement Creating German Organisation, Lashed by FFII.

"[...] Die Piratenpartei Schwedens fordert die Abschaffung des Patentwesens. Der FFII hält dies für eine politisch sinnvolle Forderung, die allerdings durch flexible Verhandlungsangebote ergänzt werden kann. Hierzu gehört insbesondere die Wiederaufnahme der bereits vom Europäischen Parlament befürworteten Forderungen nach Einhaltung des gesetzlichen Verbots von Softwarepatenten und Wiedereinführung des klaren Technikbegriffs der 70er Jahre, demzufolge eine Erfindung den Wissensstand auf naturwissenschaftlichem Gebiet bereichern muss. [...]"

"[...] The Pirate Party of Sweden demands the abolition of the patent system. FFII esteems this as a politically reasonable postulation which, however, might be supplemented by flexible offers to negotiate. Inter alia, these offers in particular comprise re-uptaking of demands endorsed by the European Parliament to enforce the legal ban on software patents as well as the re-introduction of the clear concept of technicality of the 1970s according to which an invention needs to augment the state of knowledge on the field of science of nature. [...]"

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Please read the Disclaimer & About This Website (Pflichtangaben gemäss TDG) section. Feel free to contact PA Axel H Horns via e-mail horns@ipjur.com. BEWARE: DO NOT SEND CONFIDENTIAL INFORMATION UNENCRYPTED VIA E-MAIL. USE OF ENCRYPTION SOFTWARE IS HIGHLY RECOMMENDED. PA AXEL H HORNS IS PROVIDING SUPPORT FOR ENCRYPTED E-MAIL MESSAGES USING PGP OR PGP COMPATIBLE FORMATS. THE PGP PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE HERE. THE GnuPG PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE HERE. 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:
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