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Sunday, July 08, 2007

EPO Conference: Where Will Europe Go When It Comes To The Question Of Patentability Of CIIs?

On Thursday of last week I took the chance to attend to the conference

Computer-implemented inventions: where do we stand in the debate on 'software patents'? organised by EPO and held in Brussels.

Anything to report?

Well, when starting the morning session and introducing into the matters to be discussed, it was mentioned by Mr Oswald Schröder, Principal Director, Head of Communications at the EPO, that on last Wednesday, just a very few days after having taken office as President of EPO, Ms Brimelow had given a speech to EPO staff in the The Hague premises, stressing that she would prefer fewer and better patents.

During Panel 1: The EU institutions' view there was a brief review of the status quo by a MEP proponent and a MEP opponent of the Directive, namely Mr Jorgo Chatzimarkakis, ALDE, and Ms Eva Lichtenberger, Green Party, respectively. At first, it become very clear that a re-launch of a sectoral Directive on the patentability on computer-implemented inventions is not to be expected anytime soon, contrary to some rumor emerging from a

business lunch some days ago. Not much insight beyond that what was already known two years ago when the Directive had failed could be gained, and allegations and counter-allegations were made as to the "ideological" and/or "fact-ignoring" nature of the debate on the patentability of CIIs. When, during the discussion,

Mr Erik Josefsson from

EFF (formerly FFII Sweden) participating as an attendant of the conference stepped in, issuing during debate time some quite cross comments on the EPO's CII practice, one could feel as if time would have moved back by two years, directly into the very final phase of the dying proposal of the EU Commission of a CII Directive.

Although it was not entirely clear why his presentation would fit into just this panel, Mr Jonathan Sage from IBM Europe gave his presentation on his employer's position in the IP game just after the statements of both MEPs. In a certain sense, this talk was the real bundle of explosives thrown into the debate during the entire conference: His explanations with statements from the very core as well as out of the vicinity of IBM's new global IP strategy of

Soft IP were received with a certain degree of more or less outspoken scepticalness by the representatives of some other big companies usually also heavily involved in the IP business.

During Panel 2 on EPO practice, Mr Stephen Hey, Principal Director, Computer Cluster, Mr Nildo Ciarelli, Director, Computer Cluster, and Mr Stefan Wibergh, Technical member, Board of Appeal 3.5.01, explained the current status quo in quantitative as well as qualitative terms. It looks as if EPO has, in this Cluster, managed to match the search backlog but additional efforts remain to be made when it comes to substantial examination. I did not bore myself with noting down the numerous facts and figures describing the current quantitative state of the affair within the EPO but hope that the presentation slides of those talks will appear on the EPO website soon. It was a very technical session without much political appeal.

At the beginning of Panel 3 on The users' perspective, Mr Keith Beresford, European Patent Attorney and UK Chartered Patent Attorney, London, talked about UK/EPO: A look at specific cases. His presentation illuminated the widening gap between the practice of the EPO in general and of its Boards of Appeal, on the one side, and the practice of the UK-IPO and the UK Courts, on the other. Moreover, it appeared as if the general practice of the UK-IPO is even more restrictive than it would be required by recent UK case law. Mr Beresford's talk vividly illustrated the consequences of the failure of the EU Directive which had been designed to avoid such rifts by harmonising this sector of patent law throughout the EU. Certain quarters of the UK industry susceptible to the patentability of CIIs are now quite upset because of this situation. Mr Daniel Doll-Steinberg, CEO, Tribeka Ltd., talking about Patent values, business models, filing and process, costs, uncertainty and language and Mr Thomas Wünsche, CEO, EMS Thomas Wünsche, talked about an SME perspective of the patent system, Mr Wünsche showing more scepticalness and pointing out more difficulties and deficiencies of IP for his business than Mr Doll-Steinberg who apparently perceived IP more as a component of a success story.

Finally, Panel 4 was devoted to the quality controversy, based on the assumption that concerns about an influx of trivial patents for CII have repeatedly been voiced and can still be heard today. This session aimed to offer a more precise definition of what may be understood by patent quality, how it manifests itself and to what extent Europe is concerned by the problem in the given context. Mr Pieter Hintjens, President FFII, talked on Quality, diversity and institutions, giving a very pragmatic talk on the requirement of legal certainty and other goals to be achieved. Mr Bernhard Fischer, Strategist Global IP Group, SAP, shed some light on the patent strategy of SAP, stating that only a very small fraction of European patent applications matures to the grant of a respective European patent. This did, however, not come to me as a surprise because I ever hat thought that it must be somewhat difficult to prosecute applications which virtually always show some heavy leaning towards business methods because of the field of business of SAP. When discussing some examples of typical subject-matter filed by SAP and ending up in a formal rejection by the EPO, Mr Fischer could demonstrate some conceptual potholes in doctrine and practice of the Boards of Appeal of the EPO when allowing patents on certain inventions when straightly directed to manufacturing processes but rejecting virtually the same core of subject-matter when claims are directed to the underlying principles of supply chains and logistics. Mr Francisco Mingorance, Director of Public Policy, BSA Europe, gave a talk on Patent quality issues in the context of the US patent reform, closing stressing that with regard to the patent system, no attempts should be made to fix what isn't broken. In particular, focus was made on the fact that despite IBM being Member of BSA there is some discrepancy towards IBM's enthusiasm in view of its plans on Soft IP.

Summarising up, where has been the beef? I would say that a general change of climate was to be perceived along the parole as given by Ms Brimelow one day earlier in The Hague but there appears to be a substantial divide between different industrial actors on the patents theatre as to how far this change should or could go. IBM on the one end, promoting semi-revolutionary concepts like the EIOP, and other comapnies perhaps like SAP and some BSA Members, on the other end. And, surely some sort of a greyscale in between them.

Two years ago, just after the European Parliament having voted down the Draft Directive on the patentability of computer-implemented inventions, speculations had grown as to whether there might be some radicalisation of anti-patent NGOs. As far as this can be judged today, this question can clearly be answered negatively. The

Scenarios Project undertaken by the EPO as well as taking office of Ms Brimelow have fueled a creative but controversial debate amongst the users of the EPO patent system themselves with long-term consequences unknown today. Most likely the IP system will change much more during coming ten or twenty years than it had changed during the period from 1980 to now. Some of us will see.

[UPDATE 2007-07-10] See also the

Official EPO report covering that event as well as

Mr Joff Wild's remarks thereon.

[UPDATE 2007-07-23] The presentations shown at the Conference are

available on-line now.

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