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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, July 01, 2007IBM To Demand Creation of European Interoperability Patent (EIOP).On June 06, 2007, as well as on June 12, 2007, I had reported here and there, respectively, on a tide change in IP politics plotted and beginning to be performed by  IBM, one of the most patent-aware companies on a global scale. It became evident that IBM intends to to step out of line of conventional IP politics ever demanding more, broader, better enforceable, and longer lasting IP rights. Their openly presented co-operation with FFII, their tinkering with means for Balancing Open & Proprietary Innovation as well as their support for the Peer-To-Patent project have made perfectly clear that they want to see fundamental changes in particular on the patents theatre.Now Mr Joff Wild of IAM Magazine has given a report on an interview with Mr David Kappos, vice-president of IP Law at IBM, last week at IBM headquarters in Armonk, New York. An his report comprises some very important statements made by Mr Kappos.According to Mr Wild, IBM wants to have installed the option of granting a European Interoperability Patent (EIOP). Essentially, it is an idea that is based on what Mr Kappos calls the concept of "soft IP", which, he says, is encapsulated within the Blue Skies strand of the EPO's Scenarios project. The EIOP would be, Mr Wild is reporting, an EU-wide patent granted by the EPO that would be "open": EIOP owners would not be able to get injunctive relief - either preliminary or permanent in cases of infringement; instead, EIOP owners would effectively be signing up to the concept of licences of right, so that anyone who wanted to use a patent would be able to do so as long as an appropriate licensing fee was paid. Installing this topic under the umbrella of the Blue Skies scenario leads to some understanding that some top brass at IBM might think that on the patents theatre there will be no longer a doctrine of one size fits all. Different industries might have different needs with regard to patent protection, and from IBM's point of view, softening IP rights might be an appropriate route. It might, however, well be that other branches of the industry, i.e. pharmaceutical industries, would not be happy with the concept of EIOP.What also is quite striking is the change of attitude within IBM towards the FFII. Mr Wild quotes Mr Kappos, saying "[...] The FFII does represent important trends within our industry, such as open innovation and collaborative development ... and we are searching for ways to work with constituencies that operate in this open world. [...] The FFII has a new leadership and we think that it has changed, and become more mature. The FFII is critical if Europe is going to develop as somewhere in which to build a patent system that can exist in a more facilitative and less conflicting nature with open innovation models ... the FFII has influence and a strong voice; something it proved in the CII debate. We feel there is now an opportunity to engage and have a constructive dialogue. [...]"Seven years ago, having in view IBM's personnel of those times, such language could hardly have been imagined to ever happen in reality. The EIPOP proposal appears to effectively represent a shift from a fierce debate on what kind of inventions should be patentable and what not - the debate on pre-grant criteria of substantial law of patentability - towards a more relaxed discussion on modifications of the post-grant effects a patent should have (or not have). I think that in general such a step is overdue, indeed. In 2000 I had participated as a co-author in a study headed by Mr Bernd Lutterbeck of the Berlin University. The report had considered the introduction of a post-grant source code exemption for Free Open Source Software (FOSS), and in view of this particular proposal it had not been welcomed in each and every of the various quarters of the industries. It is not known to me that in 2000 IBM would have been prepared to support such kind of modest proposals. The more I am astonished now in view of such very far-reaching plans of IBM not only to tinker a little bit with bespoken post-grant exemptions but lobbying for implementation of an EIOP embodying a wholesale abandoning of injunctive relief. I have no particular opinion as to whether or not such proposals would have any chance to be adopted on the European political stage. In general, since the beginning of the great politicisation of IP at the end of the 20th century, industry lobbyists might have had a tendency to persuade politicians that more and better enforceable rights are needed. This U-turn of IBM surely will be greeted by the left and greenery forces throughout Europe but I am not so sure what the other camps will do with that. I expect that other branches of the industry, in particular the pharmaceutical industry, will consider strong opposition against IBM's EIOP proposal if this would mean any weakening of conventional patents because it would put their business models at risk. Maybe such plans would go through of they are implemented as alternatives like Utility Models. If EIOPs should ever come into the scope of serious consideration, the introduction of collective licensing schemes which are well-known from modern Copyright regimes should also be mooted. For example, if ICT solutions are covered by a required EIOP which is open to licensing on the basis of a RAND license, a patent collecting society could be set up in order to manage the royalty payment administration. Finally it should be noted that German Patent Law has a provision to turn a patent into something like an EIOP. According to Sec. 23, if the applicant for a patent or the person recorded as patentee in the Register declares to the Patent Office in writing that he is prepared to allow anyone to use the invention in return for reasonable compensation, the annual fees falling due after receipt of the declaration will be be reduced to one half of the amount prescribed in the schedule of fees. The declaration will be recorded in the Register of Patents and published in the Patent Gazette. Any person who wishes to exploit the invention after the recording of the declaration has to notify the patentee of his intention. Notification is deemed to have been effected if it is has been dispatched by registered mail to the person recorded in the Register as patentee or to his registered representative. A statement of how the invention is to be exploited has to be given in the notification. After such notification, the notifying party is entitled to exploit the invention in the manner stated by him. He is, however, obliged, at the end of every calendar quarter, to give the patentee particulars of the use which has been made and to pay the compensation therefor. If he fails to meet this obligation in due time, the person recorded in the Register as patentee may grant him a reasonable extension of time and, if the extension of time expires without result, may prohibit further use of the invention. The compensation will be assessed by the Patent Division at the written request of a party. However, contrary to the concept of the EIOP as promoted by IBM, according to German Patent Law the declaration may be withdrawn at any time by a written communication to the Patent Office insofar as no intention of using the invention has been notified to the patentee. Withdrawal will take effect on filing. Technorati Tags:  Patents
Hello Mr Horns, I did ask David Kappos about reaction from the life sciences industry to the EIOP and also how the new patent would affect small businesses, and he answered both points. They wil be covered in full in the next IAM, but he did say that the EIOP would not replace the current system but would be an additional right. Therefore, life sciences companies would not have to use it; although he did say that there were some circumstances under which they might ... Kind regards, Joff Wild, IAM # posted by : 02 July, 2007 09:03
Mr Horns, Thank you for the excellent impact analysis of IBM's proposals. I have one question about "source code exemptions" for open source that you mentioned from your 2000 report: would this cover authors only, or authors and users both? Regarding the compatability of the EIOP with the existing patent system, one option that has been mentioned (Mr Wild, my apologies if this pre-empts your next report on the subject) is to use the Community Patent as a vehicle. Thus the existing patent instrument remains open for industries that need it, while a (perhaps cheaper) Community Patent would implement the EIOP. The FFII of course welcomes IBM's proposals; while we don't yet see exactly how they would work for the FOSS economy, we trust that IBM will answer that question.
@Pieter Hintens: On June 27, 2004, I wrote: http://www.ipjur.com/2004/06/linuxtag-panel-on-software-patents-and.php3 "The Patent Law should be amended in order to make clear that any communication of computer software code in source code form is exempt from the scope of protection of any patent claims. This is to make sure that CVS repositories and the like on-line on the Internet cannot be closed on demand of patent bearers. The justification of such a measure can be seen in the dual nature of the source code as means for communication of solutions between humans, on the one hand, and as technical means for controlling a computer, on the other hand. Due to the first aspect the source code deserves to be privileged as 'free speech'. This does, of course, not mean that executing source code by interpreters or by running it after compilation and linking is also exempted." And on June 25, 2005, I wrote: http://www.ipjur.com/2005/06/on-borderline.php3 "Let us have a brief look at the system of continental Copyright Law. Nobody would seriously discuss questions like 'Should an opera as such be copyrigtable?' or 'Should architect's blueprints as such be subject to Copyright?'. All such sorts of artistic work are extensively covered by Copyright law. This fact does not mean that putting all kind of artistic works under the regime of Copyright Law does not cause problems, e.g. for broadcasters, researchers, or collectors of art. But the political solution which was reached up to now is a dedicated and fine-tuned system of exemptions, not of complicated or restrictive material rules of copyrightable subject-matter. Where is the link to the problems in the field of patents? Section 11 of the German Patens Act says: 'The effects of a patent shall not extend to [...] the use on board vessels of another State party to the Paris Convention for the Protection of Industrial Property of the patented invention, in the body of the vessel, in the machinery, tackle, gear and other accessories, where such vessels temporarily or accidentally enter the waters to which the territory of this Law extends on condition that such use serves exclusively the needs of the vessel [...].' How lucky our forefathers have been! In view of the increase of globalised trade at the end of the 19th century they did not enter into a discussion as to whether or not 'tackles as such' should be patentable. They simply searched for a pragmatic solution by adjusting the effects of a patent, not by sophisticated debates on the borderline of patentable subject-matter. I am also convinced that the problem of ensuring interoperability to some necessary and reasonable extent which seems to be important indeed cannot be solved on the basis of the concepts of the first layer. Interoperability mostly depends on the structure of the rules governing effects of patents, not of the rules defining patentable subject-matter. However, ensuring interoperability should not be misunderstood as a tool to deteriorate the patent system; it makes no sense to cancel any effects of the patent system by overbroad exemptions." This is, said with English words, essentially the gist of the "source code privilege" as it was mooted in the Lutterbeck et al. report already in 2000. Those thoughts had been intended to be something like a starting point for a broader discussion which, however, in this form never happened. I never have argued that such "exemptions" could solve *all* problems in conjunction with patent law. Post a Comment
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