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

 

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Wednesday, October 25, 2006

 

Will Mr. Stallman be Toppling Linux One Day?

EXTERNAL LINKMr. Daniel Lyons has EXTERNAL LINKpublished on EXTERNAL LINKForbes quite scathing an article on Mr. Stallman's position with regard to Intellectual Property:
"The free Linux operating system set off one of the biggest revolutions in the history of computing when it leapt from the fingertips of a Finnish college kid named Linus Torvalds 15 years ago. Linux now drives $15 billion in annual sales of hardware, software and services, and this wondrous bit of code has been tweaked by thousands of independent programmers to run the world's most powerful supercomputers, the latest cell phones and TiVo video recorders and other gadgets.

But while Torvalds has been enshrined as the Linux movement's creator, a lesser-known programmer - infamously more obstinate and far more eccentric than Torvalds - wields a startling amount of control as this revolution's resident enforcer. Richard M. Stallman is a 53-year-old anti-corporate crusader who has argued for 20 years that most software should be free of charge. He and a band of anarchist acolytes long have waged war on the commercial software industry, dubbing tech giants 'evil' and 'enemies of freedom' because they rake in sales and enforce patents and copyrights - when he argues they should be giving it all away. [...]"
Surely there was an EXTERNAL LINKuproar on Slashdot and apparently, as was to be expected, Mr. Daniel Lyons EXTERNAL LINKgot some hate mail. Maybe that in some details Mr. Lyons' article appears to be a bit imprecise and even biased but altogether I think it is proper to say that Mr. Stallman is the major obstacle for any realistic solution when it comes to discussing patenting of computer-implemented inventions.

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U.S.: Peer to Patent Project Proceeding at Fast Pace.

It is really impressing: The EXTERNAL LINKPeer to Patent project originally pushed by IBM now proceeds at a very fast pace. On October 15, 2006, the opening of a EXTERNAL LINKDeveloper Mailing List EXTERNAL LINKhas been announced. The Community Patent Review project team (NOT to be mixed up with anyting related to the failed European 'Community Patent' approach!) will initiate discussions of technical system architecture in the next couple weeks. Anyone interested in this topic is invited to participate. The focus of the conversation will be technical in nature and will occur on the p2patent-developer mailing list. The initial topic will be establishing a candidate technical architecture that supports the project specification (use cases). On October 20, 2006, there was an EXTERNAL LINKannouncement saying that Mr. Beth Noveck, Director of the Institute for Information Law & Policy at New York Law School and the Community Patent Review project, indicated that EXTERNAL LINKGE has become the newest lead sponsor of Community Patent Review, an effort to create an on-line system to connect experts to patent examiners. EXTERNAL LINKMr. Q. Todd Dickinson, GE's Vice President and Chief Intellectual Property Counsel and the former Under Secretary for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), will serve on the project's Steering Committee. And, on October 24, 2006, the Institute for Information Law & Policy at New York Law School has EXTERNAL LINKannounced that companies holding more than 6% of the total number of this year's U.S. patents will submit their patent applications for "open peer review" under the pilot project at the United States Patent and Trademark Office (USPTO). GE, HP, IBM, Microsoft and Red Hat, the Lead Sponsors of the "Community Patent Review" initiative, will allow some of their patent applications to be reviewed by the public and consent to have public commentary submitted directly to the USPTO for official consideration. The pilot will launch in early 2007 and focus on published but not-yet-granted patent applications relating to computer software.

Whatever the final success or failure of this project will be, it is an utmost interesting experiment. And we patent people here in Europe, what do we do? Did anybody really took notice? Is there any discussion of these ideas ongoing within European Chapters of EXTERNAL LINKFICPI, or within EXTERNAL LINKepi, EXTERNAL LINKCIPA, or EXTERNAL LINKPatentanwaltskammer?

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EPO Patent Examiners on Strike Again.

Earlier this year I had INTERNAL LINKreported on a strike day of the Examiners of the EXTERNAL LINKEuropean Patent Office (EPO). It looks as if the struggle goes on. Heise Newsticker EXTERNAL LINKreports [in German only, sorry] that many Examiners in the Munich premises are on strike today. The Examiners appear not to be prepared at accept a a performance assessment programme "Productivity Assessment for Examiners" or "PAX" for short imposed by the EPO management.

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[UPDATE 2006-10-25 21:00] EXTERNAL LINKEUObserver.com brings a EXTERNAL LINKreport written by Ms. Helena Spongenberg:
"[...] EUOBSERVER / FOCUS - The European Patent Office went on a one-day strike over disagreement on a 'quality or quantity' issue at a time when patent applications are increasing and becoming more complex.

Patent examiners at the Munich-based patent office (EPO) held a staff rally on Wednesday (25 October) due to concerns over the implementation of a new system in 2007 to assess the work of the examiners.

The EPO management wants better results and the patent examiners fear that quantity will reign over quality in the new system.

'The essential issue is, how can we better secure quality in patents,' said EPO spokesman Rainer Osterwalder. `There is a difference in opinions between the management and patent examiners [on this].'

The concern comes at a time when Europe is facing a surge of patent applications from third country companies trying to protect their inventions on the European market.

'There is clearly a surge in patent applications from non-member states,' Mr Osterwalder told EUobserver, adding that the divide is currently 50-50.

'Especially South Korea, China and India are getting very active in applying,' he said. 'The big wave still seems to be coming, but it is starting now.' [...]"
So, it is very interesting to hear that South Korea, China and India eventually are in the process of reaching an acceptable standard of patent acceptance. Perhaps the EPO should do more on recruiting Examiners.

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Wednesday, October 18, 2006

 

Will Mass Creativity Be The Next Big Thing?

From Mr. Bruno Giussani's Blog EXTERNAL LINKLunchoverIP I EXTERNAL LINKlearnt of a British author EXTERNAL LINKCharles Leadbeater who just has released EXTERNAL LINKa first draft of his upcoming book titled "We Think: Why mass creativity is the next big thing" for anyone to read and comment on. Mr. Leadbeater writes in his book:
"[...] The irresistible force of collaborative mass innovation is about to meet the immovable object of entrenched corporate organisation. This book is about that coming conflict and what will emerge from it. [...]"
And Mr. Bruno Giussani provides a comment as follows:
"[...] He has coined the concept of 'Pro-Am' to describe those pursuing activities as amateurs (often unpaid) but setting the same standards as professionals, and has been very influential in shaping our understanding of the developments of the last decade.

With 'We Think' he tries to go beyond that and describe how the increasing involvement of 'large groups of committed and knowledgeable amateurs, working without pay, are creating highly collaborative forms of organization which operate with little hierarchy and bureaucracy and yet mobilize resources of a scale to match the biggest corporations in the world' and analyze what that means for the future of society and businesses. 'Thank to low-cost technology, many more consumers can become producers at least some of the time (...) The next big thing will be us, our power to share and develop ideas without having to rely on formal organizations'. [...]"
When it comes to Intellectual Property in general and patents in particular, things get interesting. Mr. Leadbeater writes in his book:
"[...] We have come to expect that innovation will come from special people - boffins, geeks, designers, artists - working in special places - labs, garages, studios. They create their inventions and push them down a pipeline to waiting consumers. Every invention has a moment of birth and an inventor who can say, in advance, what their clever gizmo is for. Yet in these new endeavours innovation is the work of multiple authors. It is cumulative, collaborative and often depends on the contributions of intelligent users. It takes place all over, not just in specially designated zones. We expect that innovation will not take place unless people have the financial incentive to be creative. That means they have to be able to patent and protect their intellectual property so they can exploit it commercially. Strong patent protection is the basis for innovation, we are told. Yet in these swirling swarms of creativity innovators share their ideas quite freely and welcome it when others borrow what they have done, to improve upon it. They put a lot of unpaid effort into their innovations and then, bizarrely do not seek to profit from them, nor to control their use. [...]

As Edison took on more complex tasks so his methods became more collaborative. Those collaborators are not household names - Charles Batchelor, James Adam, John Kuresi, CharlesWurth - but as Edison admitted, without them, he would not have come up with many of the inventions which made him famous. We think of Edison as a lone inventor in part thanks to the patent system which routinely named employers as the owners and originators of any invention made by an employee. The patent system disguises the collaborative nature of innovation. Edison had a genius for rapidly developing his ideas by drawing on the talents and skills of others. His laboratories were small communities of creativity. As Edison's career progressed it became harder and harder to see him as 'the' inventor. He was the focal point for a mass of intense creative collaboration and joint authorship. [...]"
Apparently, Mr. Leadbeater at least expects to run into, if not even having decided to actively foster, a certain development leading to a situation where the individual inventor has disappeared, drowned in the crowd. Moral rights of creators in general and inventors in particular are fruits of modern times. Would it be some sort of exaggeration to say that, in this respect, Mr. Leadbeater effectively adjures to go back to early mediaeval times where artists and inventors were not known by name? Could such movement really be a progress over a world where the individual counts? We should not forget that some sort of assertive individuality of named creatives is still a lighthouse of modern occidental culture. Later in his text Mr. Leadbeater continues:
"[...] Proprietary systems for owning and controlling knowledge limit its flow and direct it to where people can pay. That is why so much pharmaceutical research is devoted to diseases of the rich and corpulent and so little to diseases of the poor. In most scientific and cultural fields one person's output becomes another person's inspiration or input. If proprietary controls - such as patents and copyrights - put up the price of inputs, then it will price out of the market some innovators who cannot afford to pay the fee to license access to the knowledge.The alternative to proprietary systems for spreading knowledge and ideas has been international versions of traditional public service broadcasters, often state funded and at times politically motivated. [...]"
Such kind of a statement doesn't get better if repeated over and over again but without a sound empirical basis taking into account all relevant facts, not only a selective subset. Pharmaceutical research is utmost expensive and a very bad example in this context. I think that it is virtually impossible to do some "crowdsourcing" of pharmaceutical research on any relevant scale. Mr. Leadbeater further argues:
"[...] In this world, not surprisingly the incumbents have sought out new ways to shore up their position. High capital costs no longer provide a sufficiently high barrier to entry. So instead over the past two decades there has been a massive expansion in the coverage of intellectual property, copyrights and patents, to make new forms of social production too costly or too risky. This extension of intellectual property is presented as merely protecting creators against theft. But one motive is protectionist in the economic sense: a rearguard action to protect an incumbent business model against disruptive, low cost competition. All of this will make it much harder for consumers to become producers and participants, to cut, paste, add, amend, share.[...]"
This appears to be based on a substrate comprising a lot of conspiracy theory. In this generalisation it is overblown.

Surely, mass creativity, FOSS and EXTERNAL LINKcrowdsourcing have found or will find their niches in the world economy. This is particularly true in areas where activities are feasible without heavy investments. No doubt, the Internet has expanded such areas greatly. But we should be aware to avoid unhealthy over-generalisations.

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Tuesday, October 17, 2006

 

German "Pirate Party" Demanding "General Overhaul" of the Patent System.

The EXTERNAL LINKGerman Piratenpartei have eventually distilled EXTERNAL LINKtheir political intentions:
"[...] Das heutige Patentsystem stammt aus einer Zeit industriell geprägter Wirtschaftssysteme. Es geht von langen Innovationszeiten und Erfindungen als Insellösungen aus. Dies ist das Gegenteil der Realität moderner Innovation. Patente werden missbraucht, um ganze Märkte von Konkurrenten zu befreien. Es gibt Patente auf Pflanzen, Gene, Geschäftsideen und triviale Algorithmen. Patentrechtsklagen sind für mittelständische Firmen oft nicht bezahlbar und stellen für diese ein Existenzrisiko dar - suma summarum: das Patentsystem muss sich einer Generalüberholung unterziehen. Diese werden wir mit dem Augenmaß, dass Patente zum Zwecke des Innovationsanreizes geschaffen wurden, durchführen. [...]"
I would like to offer my own English translation as follows:
"[...] Today's patent system has its seeds in a time of an industrially shaped economic system. It is based on long innovation cycles and inventions as isolated applications. This is the opposite of the reality of modern innovation. Patents are misused to remove competitors from entire markets. There are patents on plants, genes, business ideas, and trivial algorithms. Patent lawsuits are often not affordable for SMEs but form existence-threatening risks - in all: the patent system needs to undergo a general overhaul. We shall accomplish this with a sense of proportion taking into account that patents have been created for fostering innovation. [...]"
Obviously they seem to feel that the framework of today's inventions is completely different from that of the world decades ago. But where is the beef? What exactly do they want to say us with such assertions like that in former times inventions have been "isolated applications"? Ok, in the ICT scene, networks might thought to be everything but even today in many fields of technology there are a lot of inventions which do not rely on any network effects. And the clause demanding an "entire overhaul" is extremely vague. However, at least it looks as if anti-patent activists like Mr. Pilch did not succeed to convince the Piratenpartei to demand INTERNAL LINKa complete abolishment of the patent system.

The EXTERNAL LINKrecent failure of the Swedish branch of the international Pirate Party movement, a patent abolitionist group, should not be allowed to lull the users of the patent system into a false sense of political calmness. Patent politics at large is now a long-term business. We need to think in decades. Mr. Axel Pfeiffer, a Patent Attorney in Germany, writes in his article titled "Hard Times For Patents In Europe?", printed in les Nouvelles September 2006, pages 193 to 200, published by INTERNAL LINKLES:
"[...] What can patent opponents substantially do these days? To make a long story short, a great deal. National law revisions are due in some European countries. Maybe someone wants to further the Community Patent. EU legislation with more or less ancillary relevance for intellectual property is on its way. All these activities are playgrounds inviting anti-patent activities. [...]

It is the author's opinion that presently no immediate action on the political front is required. But everybody having an interest in the issue should critically watch the situation. Basically, one can say that the patent community has overslept on the CII issue. When they finally got started, the opponents had advantage of several years. This shouldn't happen a second time. [...]"


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Friday, October 13, 2006

 

Mr. McCreevy's Summary on Future European IP Policy.

Mr. Charlie McCreevy, European Commissioner for Internal Market and Services, provided EXTERNAL LINKhis personal summary on IP policy at the occasion of a Conference titled "The Benefits of the Single Market" in Prague on October 13, 2006:
"[...] Earlier this year I launched a consultation of interested parties on future patent policy in Europe. That process showed that industry clearly supports the Commission's efforts to simplify the patent system in Europe and make it more effective. There are two issues - languages (or the cost of translation) and jurisdictional issues. Industry is not enamoured by the compromise reached by the Council in 2003 on the Community Patent in terms of the proposed solution in respect of language and the jurisdictional system because they don't achieve the cost reductions and the simplification of the system that industry wants. In parallel, there is a strong call for the improvement of the existing European patent system, established by the Munich Convention, by the successful conclusion of the European Patent Litigation Agreement on jurisdiction and by ratification of the London Agreement on the language regime. Before the end of this year I will be proposing that the Commission adopt a communication and action plan aimed at tackling the patent issues all in one approach. In particular, I want to tackle the jurisdictional issue so that we don't have different courts in different countries delivering divergent interpretations on the same patented invention, so that we avoid businesses having to incur the expense involved in having effective patent protection across the Member States. We cannot aspire to being the most competitive economy in the world if we don't find workable solutions to patent application and protection. [...]"
A very brief but concise summary of the present situation. Let us wait and see what Mr. McCreevy will present later this year in his action plan.

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And Again: EU Draft Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights.

In INTERNAL LINKmy earlier posting I had discussed EXTERNAL LINKDocument 11856/06 from the Presidency of the Council of the European Union to the EXTERNAL LINKArticle 36 Committee concerning the EXTERNAL LINKAmended proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights. Recently, with EXTERNAL LINKDocument 13103/06 the outcome of the meeting of Article 36 Committee has been made public:
"[...]

However, during the meeting of Article 36 Committee several Member States (NL, UK, IE, CZ, HU, LV, PL) reiterated their 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, those Member States have expressed doubts as to whether or not the harmonisation of criminal sanctions at the European level would be effective in eradicating such crime. Furthermore, those Member States queried 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 some Member States (at least DK, HU, UK, AT) considered it 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.

[...]

[...] [W]hile it has been affirmed in the judgment [in case C-176/03, added by -AHH] that the Community has criminal law competence in the field on environmental policy, it has not been established that the Community would have corresponding competence in other policy areas in the first pillar. Also the extent of such competence in terms of defining the level and nature of penalties remains an open question. In the present context, the legal situation thus remains unclear as to whether and to what extent the Community has competence to adopt criminal law measures in the field of intellectual property rights on the basis of Article 95 TEC."
This appears to be a rather reluctant, if not negative statement of the Article 36 Committee concerning the Commission's urging demand to go further with regard to strengthen Criminal Law in view of IP infringement.

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Germany to Put Commercial Registers On-Line.

Today, the second chamber of the German Parliament (EXTERNAL LINKBundesrat) has adopted EXTERNAL LINKa bill concerning electronic commercial registers. Starting next year, the electronic register will be accessible via EXTERNAL LINKunternehmensregister.de.

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BBC Offers MP3 Podcast Covering Interview with Mr. Nathan Myhrvold.

As invention and Intellectual Property become ever more important for companies worldwide, Mr. Nathan Myhrvold, head of EXTERNAL LINKIntellectual Ventures and former chief scientist at Microsoft, explains how he is seeking to profit from this change:
"[...] Intellectual Ventures is an invention company. We conceive and patent our own inventions in-house through a world-renowned staff of internal and external scientists and engineers. We also acquire and license patented inventions from other inventors around the world. Our network of invention sources includes: large and small businesses, governments, academia, and individual inventors. These inventions span a diverse range of technologies including: software, semiconductors, wireless, consumer electronics, networking, lasers, biotechnology, and medical devices. Our current focus is on developing our invention portfolio. Over time, we intend to market our portfolio on a broad and non-exclusive basis through a variety of channels including spin-out companies. [...]"
The well-known EXTERNAL LINKBBC Journalist Mr. Peter Day brings an exciting interview with Mr. Myhrvold in his brodcast "In Business" which went on air yesterday. It is also available as a EXTERNAL LINKPodcast [11 MByte mp3].

Mr. Myhrvold thinks of his company eventually becoming in the world of patent assets that what CocaCola is today in terms of trade mark assets and what Microsoft or Hollywood are today in terms of copyright assets. Anti-patent campaigners surely won't like this interview but the more it is worth to be listened at.

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Thursday, October 12, 2006

 

European Parliament Adopting a Resolution on the Future of the European Patent Policy.

The European Parliament today has adopted a resolution on the future of the European patent policy. According to FFII, the EXTERNAL LINKwording finally adopted has been EXTERNAL LINKamended in order to emphasise certain concerns. In particular, Parliament considers that EXTERNAL LINKthe proposed text of EPLA needs significant improvements which address concerns about democratic control, judicial independence and litigation costs. A INTERNAL LINKmore radical draft dismissing the EPLA as proposed by by the Solialists together with the Greens did not get a majority. The well-known activist Mr. Florian Müller EXTERNAL LINKwrites:
"[...] The good news is that the EP is the first institution to have raised major objections concerning the draft EPLA in its present form. The bad news is that the EP stopped short of throwing a spanner in the EPLA works, and we yet have to find the first political body to oppose the EPLA in stronger terms.

Nobody can seriously claim victory or concede defeat based on today's parliamentary decision, which keeps all options open for the future. For a moment I thought to myself that this is going to be a marathon, not a sprint. However, we don't know how much time we'll actually get before it's too late. If we don't manage to turn things around in the very near term, the process may still take very long for procedural and legalistic reasons but the tsunami may become unstoppable (even though it would still take a lot of time to hit the beach). In that respect, the glass that looks half-full is actually half-empty. [...]"
Well, today's resolution of the European Parliament is somewhat vague as well as legally non-binding. However, nevertheless it might exert some influence on political proceedings in future.

Anyway, the users of the European patent system EXTERNAL LINKhave made clear that they want to see a bundle made up of EPLA plus London Agreement, and Mr. McCreevy appears to be ready to give his support. And today the European Parliament has signaled its general endorsement - albeit on the condition of certain improvements of the overall architecture of the European patent system to be established. There is a smell of distrust towards the European Patent Office because of it is, on the political level, not controlled by the European Parliament and/or by other EU bodies but by an EXTERNAL LINKAdministrative Council made up of representatives of the Governments of the EXTERNAL LINKEPC Member States. And, the organisatorical embedding of the Boards of Appeal within the European Patent Office also causes some concerns. Perhaps such concerns might not only have some influence on future negotiations concerning the EPLA but also on the question of whether or not the Boards of Appeal should be separated from the European Patent Office. But that might turn out to be pure speculation.

See also EXTERNAL LINKhere, EXTERNAL LINKhere, and EXTERNAL LINKthere. Heise Newsticker has EXTERNAL LINKanother report but in German only.

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Tuesday, October 03, 2006

 

EU-Consultation on Follow-Up Study on "The Possible Introduction Of An Insurance Against Costs For Litigation In Patent Cases"

The EU Commission - Internal Market - EXTERNAL LINKcommunicates:
"[...] Following the first study on patent litigation insurance, commissioned in January 2002 by the Directorate General for Internal Market and Services aiming to analyse the introduction of a patent litigation insurance scheme in Europe, and in the light of the need for definitive conclusions, a follow-up study was commissioned in 2004 with the aim to evaluate on a highly detailed basis, the feasibility of a small number of alternatives schemes of patent litigation insurance. This follow-up study has now been concluded [...].

The Commission is seeking views of all interested parties on this follow-up study and invite them to submit their contributions by 31 December 2006. [...]"
According to the study, patent litigation insurance has long been considered potentially important as a means of ensuring access to patents to small and medium-sized enterprises which do not have extensive legal resources and are put off from developing, patenting or litigating patents on new technologies owing to the expense and complexities in EU patent systems. However, attempts by the private sector to provide such patent litigation insurance have rarely been successful up to now. The purpose of the Study was to evaluate, on a detailed basis, the feasibility of a small number of alternative schemes for insuring European Patents and, when they exist, Community Patents. Experienced insurance executives were consulted as to the information they would require relating to patent litigation in the EU in order to assess underwriting risks and premiums.

The conclusions of the study were:
  • The status quo does not meet any objectives for a feasible insurance scheme.
  • The possibilities put forward relating to a possible voluntary scheme were not considered robust and attractive enough to justify further consideration given their obvious disadvantages.
  • Only a mandatory scheme is viable and can provide the economic and technical benefits to the EU and individual patentees which would arise from a widespread scheme of Patent Litigation Insurance.
The Study is available on-line EXTERNAL LINKhere together with EXTERNAL LINKanother volume covering various appendices.

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European Patent Politics in Troubled Waters.

On September 28, 2006, Mr. Charlie McCreevy, European Commissioner for Internal Market and Services, provided an Official Commission statement titled EXTERNAL LINKFuture action in the field of patents in the European Parliament's Plenary Session:
"[...] The Community Patent remains blocked in the Council. But recognising the economic importance of patents, I felt it was not a good thing to leave the entire patent agenda in limbo. So, earlier early this year, as you know, I launched a broad consultation of all interested parties on future patent policy in Europe.

The consultation has shown that industry favours the Commission's effort to simplify the patent system in Europe and to make it more cost-effective. There are two major issues here, languages - or translation costs - on the one hand and the jurisdictional system on the other hand. There is strong support for the introduction of a Community patent. However, industry is not enamoured of the political compromise reached in the Council in 2003 on the Community patent. It rejects the proposed solutions on both language and the jurisdictional system. Because they don't achieve the cost reductions and simplification of the patent system that industry is calling for.

In parallel, there is a strong call for the improvement of the existing European Patent system, established by the Munich convention, by the successful conclusion of a European Patent Litigation Agreement (EPLA) on jurisdiction and by the ratification and entry into force of the London Agreement on the language regime. [...]"
The EXTERNAL LINKEPLA proposal has in particular drawn critics by Members of the European Parliament. EXTERNAL LINKMs. Vicki Salmon responded on behalf of EXTERNAL LINKCIPA:
"[...] In his speech to the European Parliament last week, Mr McCreevy urged MEPs to back the new European Patent Litigation Agreement (EPLA), saying it would bring about a 'better, cheaper, more reliable patent system'.

However, some MEPs have already tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic.

Leading UK patent attorney, Vicki Salmon immediately hit back at the nay sayer:

'Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward,' she said.

Speaking on behalf of the CIPA she added:

'We will obviously follow events closely and will use all our influence to help create an efficient and effective court for the users of the European Patent Systems, and in particular British businesses.'

If the EPLA comes into force a single European Patent Court would be created, so patent holders could sue infringers in one place. At the moment they must bring multiple actions in all the separate countries of Europe.

'We in the Institute are in favour of such a move,' said Ms Salmon, 'provided, of course, the details are practical and do not result in an arrangement that is too expensive.' [...]"
See also my earlier posting INTERNAL LINKhere.

And Mr. Florian Müller, well-known activist, fuels EXTERNAL LINKalong with other usual suspects some theories saying that EXTERNAL LINKin the essence EPLA is in fact nothing else than another attempt of the evil forces to advance what they call "software patents". Do they have something like a persecution complex with regard to evil institutions desiring to promote "software patents"? At least Mr. Müller admits that
"[...] SwPat directive was not really about 'introduction' of software patents, but about their legal status in EU member states [...]"
Many anti-patent activists nevertheless continue to blather about "introduction" of "Software Patents".

The other construction site besides EPLA is the EXTERNAL LINKLondon Agreement concluded in London on October 17, 2000, with the aim of creating a cost attractive post-grant translation regime for European patents. The Parties to the Agreement waive, entirely or largely, the requirement for translations of European patents to be filed in their national language. This means in practice that European patent proprietors will no longer have to file a translation of the specification for patents granted for an EPC Contracting State Party to the London Agreement and having one of the three EPO languages as an official language. Where this is not the case, they will be required to submit a full translation of the specification in the national language only if the patent is not available in the EPO language designated by the country concerned. Up to now the London Agreement is not in force. At least France has to perform ratification before this can happen.

Recently a reader of this Blog wrote me:
"[...] The French Conseil Constitutionnel decided that London Agreement did not contravene the French Constitution. This decision has been published in the 28/9 edition of the French Official Journal at

EXTERNAL LINKhttp://www.legifrance.gouv.fr/

and on the website of the Conseil Constitutionnel at

EXTERNAL LINKhttp://www.conseil-constitutionnel.fr/.

Such a decision was expected but compulsory to get the London Agreement ratified. It hence paves the way to the ratification. Albeit some say that the French Parliament will not ratify before the elections of spring 2007 (presidential and legislative) for lack of time or else, I think they will, because it is not a controversial topic to be dealt with. And government and deputies avoid dealing with controversial topics on the edge of elections. [...]"
See also my earlier posting INTERNAL LINKhere.

The widespread acceptance of English is a cornerstone of every cost-efficient global communication. I heavily rely on it. I trust that if I write in English to a colleague or client located somewhere overseas, be it in Asia or elsewhere, that my message is readily understood. I would not be able to afford Japanese, Chinese or other translators if English were not accepted as some sort of lingua franca. It would be a nightmare if business people all over the world start refusing to accept English language but insisting to be addressed exclusively in their own local idiom. This week, German weekly magazine "DER SPIEGEL" runs, in the print edition, a 14 pages title story "Deutsch for sale", lamenting not only that in Germany some odd mixture of German and English called "Denglisch" is gaining ground in everyday life but also offensively attacking the use of English in business, administration and in academia in Germany and by native Germans. In earlier times, when the founder of "DER SPIEGEL", EXTERNAL LINKMr. Rudolf Augstein, was still in office, "DER SPIEGEL" was a liberal publication promoting modern ideas against various backward ideologies. But that title story with its narrow-minded gist of promoting some cosy feeling of Deutschtum bei keeping clean the German language was the worst text I ever saw on this topic (see also this abbreviated EXTERNAL LINKon-line version). In fact, we simply cannot afford clinging to umpteen local idioms in a patriotic mood. Even the European Union staffed with a famous EXTERNAL LINKTranslation Centre will eventually have to learn this.

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[UPDATE 2006-10-04] Mr. Florian Müller EXTERNAL LINKreports on the outcome of the deliberations in the European Parliament as follows:
[...] Initially, the chief negotiators of EPP-ED and ALDE wanted the EP to say an unequivocal Yes to the Commission's plans to get the EPLA ratified with the involvement of the EU. At the same time, the PES, Greens/EFA, GUE/NGL and IND/DEM wanted to say a clear No. On the bottom line, the compromise between EPP-ED, PES and ALDE is to say Maybe, but- and states clearly that 'significant improvements' to the proposal are required and that an important piece, the Rules of Procedure for the envisioned new centralized European Patent Court, is missing. [...]
And, finally Mr. Müller admits what long had been vigorously denied by many activists (emphasis added):
[...] And more or less the same people who now criticize the EPLA (without necessarily being against the idea of a centralized patent court) made a counterproposal that would have abolished software patents in Europe (and admittedly, more than just software patents). [...]
More than ever I feel justified in calling those campaigners "anti-patent activists", not merely "anti-SWPAT-activists".

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Monday, October 02, 2006

 

NPI Approved by WIPO GA as PCT Authority.

According to EXTERNAL LINKreports from The Danish Patent Office, the Nordic Patent Institute (NPI) has been approved as PCT Authority by the EXTERNAL LINKWIPO General Assembly:
"[...] Since Thursday evening there has been festive mood at the Nordic camp in Geneva. WIPO's General Assembly approved at the yesterday's meeting Nordisk Patent Institut (NPI) as a PCT-authority. NPI is an inter-state organization established by the governments in Denmark, Iceland and Norway as a co-operation between the three countries' patent authorities. The approval is an enormous victory because the Nordic countries have for many years worked on establishing a Nordic patent authority together to benefit for the users. Before the foundation of NPI there had been long political negotiations on Nordic plan, while ahead of the meeting in WIPO there have there been some hectic days, where those delegates from the three countries had been faced with critical voices with the correct arguments. The approval is a proof that the many pieces put together in many years' work now finally have fallen on place. The approval as PCT authority entitles NPI to act as International ISA and IPEA in PCT cases. [...]" [Caution - this is a machine translation from Danish!]
See also a EXTERNAL LINKpress release.

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Sunday, October 01, 2006

 

Issue 03/2006 of epi-Information Now On-Line.

The recent issue 03/2006 is ready for download EXTERNAL LINKhere (PDF).

This issue reprints the epi response to the INTERNAL LINKUK Patent Office Consultation on the inventive step requirement in United Kingdom patent law and practice, stressing that the reason why epi replied to this (national UK) questionnaire is that they believe that there should only be one level of inventive step throughout the EPC and/or EU states. They further conclude:
"[...] As a European professional organisation we do not believe it to be appropriate to comment on specific features of UK patent practice. However, we note that only a few patent offices throughout the world examine for inventive step and that there are significant variations in the inventive level required. On a largely subjective basis, and just listing patent offices of which we have some experience, we would say the Australian and South Korean level is about the same as the British level, that the European Patent Office level is slightly higher, that the level in the Netherlands, Japan, Germany, Thailand and Taiwan is somewhat higher and that the level in Austria and Canada is somewhat lower. The level in the United States is very variable and is also judged on somewhat different criteria when two or more documents are considered as prior art. [...]"
Mr. Lyndon-Stanford, in his capacity as chairman, provides a report of the European Patent Practice Committee (EPPC) Meeting of 15 June 2006, augmented by an Addendum of Mr. Leyder, Convenor of the EPC 2000 sub-group of EPPC.

A report on the EXTERNAL LINKFICPI World Congress held in Paris May 22 to 26, 2006, is given by Mr. Johnson.

Furthermore, a report on the Public Hearing on July 12th, 2006, in conjunction with the Consultation on Future Patent Policy in Europe of the European Commission is provided by Mr. Lyndon-Stanford.

In the articles secition, Mr. Holzer presents his paper on effective mechanisms for challenging the validity of patents.

Mr. Martin A. Bader then offers his paper under the title "Riding the Value-chain Upgrade - Patents as a Means of Boosting your Factual Protection Strategies". He concludes:
"[...] As a conclusion, for enterprises that strive for sustainability it has become essential to support their factual protection strategies by legal ones, also taking into account the major current changes of where value creation is shifting to and takes place at, i. e. research and development activities on collaborative basis and support by service innovations.[...]"
A paper of Mr. Boff runs under the title "Reasons to be cheerful?" and discusses aspects of patent economics:
"[...] All factors lead to the supposition that unless there is a major change in the world economy, the number of patent applications filed will continue to increase. What is more uncertain is by how much, and from which countries.

We have had one recent 'blip' in the world economy. The growth rate in PCT filings for USA and EPC states has been an extremely good fit to an exponential growth pattern for many years. [...] However there is a clear discontinuity following 2001. The growth rate in PCT patent filings post 2001 is significantly below that pre-2001. The growth rates indicated for Korea and China indicate that in a relatively short time these countries could each be filing over 10,000 PCT applications per annum.[...]"
Mr. Steenbeek explains INTERNAL LINKtwo new ECJ decisions on cross-border patent litigation.

Finally, Mr. Jean-Michel Zilliox, Director, EXTERNAL LINKEuropean Patent Academy, communicates "What's new from the European Patent Academy".

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