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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, January 30, 2007Issue 01/2007 of the Official Journal of the EPO has been Published on the EPO Website.Today, Issue 01/2007 of the Official Journal of the EPO has been published on the EPO website.This issue comprises, inter alia, a Decision of Technical Board of Appeal 3.5.02 dated March 22, 2006, No. T 388/04 - 3.5.02 concerning "Patentable inventions - business, extent of exclusion":"[...] I. The extent to which subject-matter or activities are excluded from patentability under Article 52(2) and (3) EPC is notionally distinct from, and may be considered independently of, the question of inventive step.Technorati Tags: Patents
Germany as a Place for Innovation.I would like to give a hintto a new study by Boston Consulting Group (BCG) titled Germany as a Place for Innovation ("Innovationsstandort Deutschland"), which is however only available in German. The report is based essentially on patent data analysis concerning EPO, USPTO and WIPO patent data.The results are less than flattering for Germany:
Aureka from MicroPatent.Technorati Tags: Patents
Friday, January 26, 2007German Government Initiating Ratification of EPC2000.The German Government has initiated the national ratification process for thenew European Patent Convention as concluded on the Diplomatic Conference in 2000, the so-called  EPC2000. Two Bills have been presented to the Second Chamber of the German Parliament ("Bundesrat"):
"Patents shall be granted for inventions in all fields of technology, provided they are new, involve an inventive step and are susceptible of industrial application. "This appears to be a clarification in accordance with TRIPS. Currently, Sect. 5 of the Patents Act stipulates that an invention shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. However, methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body are deemed not be inventions which are susceptible of industrial application. This theory of industrial non-applicability will now be abandoned. Instead, Sect. 2a Patents Act will be amended by simply stating that patents shall not be granted for methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. In both variants, this provision does not apply to products, in particular substances or compositions, for use in any of these methods.Technorati Tags: Patents
Wednesday, January 24, 2007German Government Passes "Bill for Improving the Enforcement of Intellectual Property Rights".Inmy earlier posting I had reported that in the German Ministry of Justice the draughtsmen had completed their work on a first Draft "Bill for Improving the Enforcement of Intellectual Property Rights" for casting the EU Directive 2004/48/EG titled "Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights" into national German law. The new Bill would, if passed by the German parliament, affect the enforcement of German Patents, Utility Models, Trade Marks, Designs as well as Copyrights.Today the Draft Bill [in German only, sorry] has been approved by the German Government [in German only, sorry]. It will appear in Parliament soon.Up to now German civil law has very little, if any, provisions to be used by the plaintiff for exploring yet unknown facts in the sphere of the defandant. The new bill provides that if there is in all likelihood a case of patent infringement, the infringer may be ordered to hand over documents or other objects to the Court and/or to the injured party or may allow the injured party to directly or indirectly inspect premises, technical processes and the like. This appears to be like a change of paradigm in German IP law. Some problematic amendmends allowing the exploitation of telecommunication traffic data even in, inter alia, patent infringement cases are still included in the Draft Bill: "[...] § 140bI would like to offer a translation as follows: "[...] Sect. 140bIn the effect, this means that, in the context of proceedings concerning patent infringement and in response to a justified and proportionate request of the claimant, a competent judge may order that information on the origin and distribution networks of the goods or services which infringe the patent be provided by means of analysing telecommunication traffic data. Similar provisions are included in the Bill covering Utility Model, Trade Mark, and Registered design infringement cases. There appears to be no precedent for this telecommunications clause in the EU Directive 2004/48/EC to be cast into national German Law. It seems to be a national political decision of the German Government to go that step further. The reasons given in the appendix to the Draft Bill relate to the possible utilisation of the Internet for acts of patent infringement: "[...] Absatz 9 betrifft den Sonderfall, dass dem Dritten die Erteilung der begehrten Auskunft nur unter Verwendung von Verkehrsdaten im Sinne des § 3 Nr. 30 des Telekommunikationsgesetzes (TKG) möglich ist. Dieser Fall ist bei Rechtsverletzungen im Internet denkbar, wenn Daten mit Hilfe von dynamischen IP (internet protocol)-Adressen, vor allem über so genannte FTP (file transfer protocol)-Server, im Netz ausgetauscht werden. Potenzielle Rechtsverletzer können in solchen Fällen meist nicht unmittelbar über Bestandsdaten ermittelt werden, sondern nur mit Hilfe von Verkehrsdaten. Verkehrsdaten enthalten nähere Umstände der Telekommunikation - insbesondere zeitliche Umstände einer bestimmten Datenverbindung und deren Zuordnung zu einem Telefonanschluss - und unterliegen dem einfachgesetzlich (§ 88 TKG) und verfassungsrechtlich (Art. 10 Abs. 1 GG) geschützten Fernmeldegeheimnis.I would like to offer my own translation as follows: "[...] Para. 9 relates to the special case wherein the third party effectively can obtain the desired information only by utilisation of traffic data in the sense of Sect. 3 No. 30 of German Telecommunications Act (TKG). This case is conceivable in conjunction with infringements committed on the Internet if data exchange is made in the network by using dynamic IP addresses, in particular via so-called FTP servers (File Transfer Protocol). In such cases, potential infringers can, in most cases, not be investigated by utilisation of static data but only by utilisation of traffic data. Traffic data comprise particular circumstances of the telecommunication - in particular date and time of a particular data connection and the correlation thereof to a subscriber telephone line - and are subject to the secrecy of telecommunications as protected by simple law (Sect. 88 of German Telecommunications Act) as well as by the constitution (Article 10 Para. 1 of the German Basic Law).As it is also the case in the context of criminal sanctions against patent infringers as recently mooted on EU level, patent law appears not to be the right turf for allowing deep cuts into civil rights of any third parties because of the inherent enormous complexity thereof. Drastic measures might, under some circumstances, be appropriate to combat 1:1 counterfeiting piracy where infringing goods can easily be identified also with no or little expertise. But patent law is different. The German Draft Bill stresses that the enforcement of this "Right of Information" shall be limited to cases where providing such information is not disproportionate in the individual case - whatever that might mean in practice under the given circumstances.The present Bill stipulates that the Court responsible for ordering to hand out telecommunication data shall exclusively be the regional court (Landgericht) of that area where the third party obliged to give information (i.e. the Internet user, not the telecommunications company) has its domicile, is seated, or has a place of business. Let us assume that plaintiff argues that thousands of Internet users scattered all across Germany have used some service over the Internet which allegedly infringes some patent claim. If plaintiff decides to do some power play, judges in the regional Courts of all affected regional court districts would be confronted with requests to hand out telecommunication traffic data in accordance with the provisions of this bill. They never have seen that matter before, and they have to go through maybe thousands of pages full of complicated technical details. Hence, such decisions are not dealt with in the context of the main infringement proceedings but rather remotely in an accessory stlyle, perhaps much like issuing a search warrant. How on earth could an unfortunate judge sitting behind his desk in a Court somewhere in Germany properly determine on any reasonable time scale whether or not a complex software application say, for example, exchanging over the Internet voice-over-ip data in some intertwined Skype-like style with a multitude of other computers partially located in Germany, partially located abroad, might infringe a particular German patent with an independent claim running over one and a half pages if he is asked to allow a large-scale confiscation of Internet traffic data of German Internet users from their respective Internet access providers? And, of course, the provision of an analogous clause in the context of German Utility Model law appears to be a bad mishap. Does German Government really intend to allow exploitation of telecommunication traffic data on the basis of a non-examined intellectual property right? The judge in charge with the request would also have to assess the validity of the Utility Model in question. Maybe such judge would perceive two options as to how to get rid of this problem: The first would be to adopt a practice of virtually blind-signing any request presented by a would-be victim of patent infringement as it is today's general practice well beyond the field of IP law in the crime-related circuits of the courts when the public prosecutor asks a judge to sign a search warrant. The second would be to turn away such requests giving a reason that an act of patent infringement could not be properly established. Anyway, the language of the reasons as given by the Government are recruited on the field of Copyright piracy (where they are heavily debated) and do not give any confidence that the drafters of the bill actually have understood the Internet. Why should be a data transmission undertaken by means of FTP be more dangerous or illicit than, say, on the basis of HTTP? By the way, in fact most of the legal problems with file sharing software are somehow related to the utilisation of peer-to-peer protocols, neither to FTP or to HTTP.Hence, it appears not to be clearly excluded that the Draft Bill would, inter alia, allow traffic data of ordinary Internet users be accessed not only for copyright enforcement purposes (already fiercely under dispute) but also for patent and trade mark enforcement cases, provided a competent court issues the required warrant. Perhaps such undertaking in the context of patent, utility model, and maybe even trade mark law should be seen as somehow overbroad and, hence, inappropriate. Technorati Tags: Patents[UPDATE 2006-02-05] The Draft Bill has eventually surfaced in the Parliamentary stage as Printed Matter of the Second Chamber of the German Parliament ("Bundesratsdrucksache") No. 64/07.
Sunday, January 21, 2007Speculations About Multilateral Patent Reforms of the Future.On November 11, 2006, I hadreported on a link to a (now removed) publication according to which patent authorities from Japan, the United States and Europe (aka Trilateral Co-operation) will begin discussions toward the introduction of a system for mutual recognition of patents. The related Summary of the 24th Trilateral Conference held in Tokyo on November 17, 2006, mentiones as follows: "[...] The USPTO introduced a new work-sharing proposal for consideration and discussion in which Offices would focus on first-filed applications and take up second-filed applications only when search/examination information is available from the office of first filing.Read in some interpreting way, this might mean that they are mooting a procedure for rubber-stamping earlier examination results. But the statement appears to be quite vague, if not nebulous. There appears to be another proposal to reform international patenting looming: "[...] Bearing in mind the EPO's reservations, the Trilateral Offices will continue to discuss the JPO proposal for a New Route while recognizing the importance of constructively exploring other options for users.Now, FICPI have made available to the general public a Document EXCO/CL06/CET/1304 assessing such proposal:"[...] The New Route Proposal is an initiative of the Japanese Patent Office, which was presented to the Trilateral Summit of European, US and Japanese Patent Offices in Munich on November 17, 2005. [...]Technorati Tags: Patents
Friday, January 19, 2007European Firms and their Attitude Towards Intellectual Property: A Study Undertaken by EIU.TheEconomist Intelligence Unit has published a paper authored by Mr. Paul Tyrrell (Editor: Mr. Denis McCauley) under the title: The value of knowledge: European firms and the intellectual property challenge (Link thanks to Mr. Joff Wild in his IAM Blog). The Document is an Economist Intelligence Unit white paper, sponsored by Qualcomm. They have conducted an online survey of senior executives from across Europe in September to October 2006. In all, 405 individuals, including 102 CEOs and 85 other C-level executives, took part. Additionally, also in-depth interviews with several European executives having direct responsibility or knowledge of their firm's management of intellectual property were made, as well as with independent European experts on intellectual property. "[...] European companies are changing their approach to intellectual property (IP) management. Protection of the company's 'crown jewels' - its patented or copyrighted assets - remains paramount, as infringement threats from the developing world multiply and litigation increases at home. Pressure from shareholders is also building, however, to make use of swollen IP portfolios to improve top-line results. [...]"In particular, the paper finds:
Technorati Tags: Intellectual Property
Further Information on Financial Status of OHIM.In myearlier posting I had reported that according to some press release OHIM is generating substantial cash reserves arising from several causes including steadily rising numbers of trade mark and design applications, increased productivity and improved efficiency of the agency, as well as growth in e-business. Despite recent fee reductions these cash reserves are expected to grow further in the coming years. By the end of 2005 cumulative cash reserves reached more then EUR 130 million, while cumulative reserves could easily reach EUR 375 million by the end of 2010 and nearly EUR 700 million by the end of 2016.Now, the Secretary-General of the European Commission has published with Document 5390/07 a Communication from the Commission to the European Parliament and the Council the financial perspectives of the OHIM (Document COM(2006) 865 final of the Commission dated December 22, 2006) hich contains a lot of details, in particular the graph below illustrating the estimated cumulation of cash reserves: The EU Commission states: "[...] The Commission believes it is timely to consider a structural approach to OHIM's financial management. OHIM has been in operation for more then ten years, during which it has successfully managed major events such as the introduction of e-filing, the enlargement with ten new Member States in 2004 or the first round of trade mark renewals in 2005. It is now an opportune moment to stabilise budget practice. [...]"Stay tuned. It surely will be interesting to see what the EU Member States, in their interest to save a business case for their national Offices, will argue about that matter in the EU Council and elsewhere. If the EU Community Trade Marks gets cheaper, more and more applicants might consider to switch over from national registrations to the OHIM system even if they need protection only in a handful of countries. If money would be no longer a decisive factor, the vulnerability of a Community Trade Mark to third party attacks on the basis of any conflicting prior right in anyone of the numerous EU Member States will surely be a limiting factor. Technorati Tags: OHIM
Monday, January 15, 2007UPP Starts in Germany on March 01, 2007.Within the framework of theUtilisation Pilot Project (UPP) adopted by the Administrative Council of the European Patent Office the German Patent and Trade Mark Office will, from March 01, 2007 onwards, randomly pick a limited number of first filings of patent applications and dispatch tickets for participating in the UPP. This means that some applicants and/or their representatives will find an information leaflet attached to a search report or to an Office Action, explaining the UPP and enabling the applicant, on a strictly voluntary basis, to request special processing for a related subsequent priority-based European Patent application.See the Official Notice of the President of the German Patent and Trade Mark Office [in German only, sorry].The European Patent Office will process all UPP patent applications on the fast lane; they promise to deliver the first Office Action within 6 months from filing of the European patent application. The objectives of the UPP are to test the process by which work carried out during the priority year on a first filing at a National Patent Office (NPO) can be further utilised by an applicant and the EPO in the treatment of a subsequent filing. Following this test, the European Patent Office (EPO) and the member states of the European Patent Network (EPN) should be able to answer the following questions:
presentation [in German only, sorry] given by Mr. Fastenbauer of the Austrian Patent Office.Technorati Tags: Patents
Saturday, January 13, 2007Open Source Software: Mind Mr. Schumpeter's Memento of Ongoing "Creative Destruction". The latest podcast [MP3 Audio] of Mr. Peter Day's BBC 4 In Business broadcast is announced as follows:"[...] Peter Day talks to some of the rising stars of the new revolution and finds out how the computer industry is changing yet again.Despite some small inaccuracies concerning a few legal and technical terms this podcast deserves a broader audience. Implicitly referring to Mr. Schumpeter, Mr. Day unfolds the history of the 20th century as a succession of a first era covering the first half of the century when increasing cheap mass production of goods in order to be able to satisfy the basic demands of the people was of primary concern, followed by a second era ending with the dotcom bubble, where goods could be produced in excess of demand so that the consumer, iconised by the credit card, moved into the focus. Now, according to Mr. Day, we have entered another era where more and more people appear to embody a doubled nature of being both consumer and creator at the same time.  Mr. Day illustrates his findings by way of examples taken from the world of open source software. He clearly refers to that what Mr. Stallman would insist to call Free Software but Mr. Day doesn't bother with such particularities. Anyway, he presents sketchy portraits of a bunch of entrepreneurs and start-ups leaving the closed conventional business models of the 20th century well behind. His podcast closes with a hint towards the term creative destruction, coined by Mr. Joseph Schumpeter, as Wikipedia knows: "[...] Creative destruction, introduced in 1942 by the economist Joseph Schumpeter, describes the process of industrial transformation that accompanies radical innovation. In Schumpeter's vision of capitalism, innovative entry by entrepreneurs was the force that sustained long-term economic growth, even as it destroyed the value of established companies that enjoyed some degree of monopoly power. [...]"Now, accidentially on the same date of Mr. Day's podcast, the EU Commission has published a Study on the Economic impact of open source software on innovation and the competitiveness of the Information and Communication Technologies (ICT) sector in the EU: "[...] Direct economic impact of FLOSSThis conveys an important message in particular for the patent people: Whether you like it or not, be prepared to see that the Open Source business model is here to stay, and expect that in some core fields of software engineering such collaborative approaches are virtually unstoppable. The report has examined the Open Source Model for software, and I can't really believe that it would work in other industries where heavy investments into tangible goods are a prerequisite of innovation. It might not come as a surprise that the overall attitude of the report towards the patent system as it stands today is quite negative. The authors appear to have little legal knowledge, and somewhere in the text they re-iterate the fairy tale that "new laws codify rejection of software patentability in Europe" (page 195). They like to quote other authors with the same attitude affirmatively, e.g. by saying"algorithmic patents lead to frequent repetition of research without significant innovation and use of sub optimal techniques in commercial software" (page 121, referring to a paper of Mr. Philippe Aigrain published in 2001). However, the lengthy paper nevertheless also bears some intersting points like this here (page 114ff.): "[...] There is considerable evidence on the relationship between FLOSS dvelopment, innovation and the ICT industry, of which some examples have been provided above. With regards to innovation, it may be useful to compare the role of FLOSS, which in its nature supports diffusion of knowledge, to patents that are justified for, among other things, promoting disclosure of knowledge and resulting innovation. In fact, patents have been found empirically to be a poor means of promoting disclosure.With other words, the patent system as it stands appears not to be well-suited for supporting creativity and inventiveness of the crowd. Too few engineers or other prospective inventors read patent documents on a regular basis. The promise of the patent system to give a knowledge feedback does not live up to the expectations at the time being. Something needs to be done. A part of the problem surely lies with the zealots of various anti-patent campaigning organisations who do desire to exploit certain problems with the patent system as a pretext for abolishing (or at least crippling) it. However, there is another significant contribution to that problem which appears home-grown. Not long ago, it was not even possible to have a free download of a full patent document without a hassle. We are now happy that e.g. esp@cenet and Depatisnet offer such PDF files. But that is, on the long run, not enough. Let us revert to a keyword already mentioned above: mash-up. Why do we not see any relevant large-scale mash-up applications with patent data? Compare the situation with that in the field of geo-data: Google simply has "enforced" free availability of satellite imagery plus related map data by commercially buying them up and integrating them into their products, enabling blossoming of numerous mesh-ups based on the on-line availability of geographic data. Would such solution also be feasible with regard to patent databases? Google has already started with dealing this way by providing U.S. patent data. However, I am a bit sceptical because of quasi-statically delivering PDF or TIFF files with images of patent documents is per se insufficient. What is needed is some sort of API, e.g. a SOAP interface to bibliographic, text and legal status data. And the Patent Offices are sitting on that data. Only the European Patent Office appears to have opened a public SOAP interface to their wealth of data so far. Why don't other Offices follow? And, how can anyone reach a consensus on some standard format accepted by all Patent Offices?From a legal point of view, a community of creators of copyrighted works like software appears to be perfectly authorised to set up a copyright regime that fits with their goals and desires. This is the positive part of Open Source licenses like the GPL. However, from a legal point of view such communities do not have the slightest lever to ban enforcement of patent rights of any third parties. In thinking to utilise the GPL as a political instrument against the patent system in its entirety there lies some ill-plotted hubris, the dark side of the GPL. Nevertheless it might be wise to think of improving the patent system in a way that it becomes more useful for individual inventors and SMEs than it is today. And many of those problems are somehow related to the dissemination and analysis of patent data. When should it be possible to solve such problems if not now, in the era of the global data networks and virtually unlimited computing power? If the patent community does not recognise the need for reforms in due time they might later on face the truth in Mr. Schumpeters's word of "creative destruction" as an intrinsic principle of modern capitalism in some unpleasant moment. Technorati Tags: Patents
Wednesday, January 10, 2007U.S.: Supreme Court Easing Requirements Of Challenging Of Patents.Mr. Pete Yostwrites for AP:"[...] WASHINGTON - The Supreme Court made it easier Tuesday to challenge patents, bolstering arguments by some in business that they are too readily granted and can stymie new drugs and other innovations. [...]This might be interpreted an interesting sign that the U.S. Supreme Court appears to be ready to challenge some long-standing precedents set by the U.S. Federal Circuit that might be seen as having put too much weight on the patent holder's position when it comes to the proper understanding of the presumption of validity. Technorati Tags: Patents
Thursday, January 04, 2007EU Trade Mark Law To Be Re-Codified.FromDocument 17103/06 prepared by the European Commission under the title "Directive of the European Parliament and of the Council to approximate the laws of the Member States relating to trade marks (codified version)": "[...] In the context of a people's Europe, the Commission attaches great importance to simplifying and clarifying Community law so as to make it clearer and more accessible to the ordinary citizen, thus giving him new opportunities and the chance to make use of the specific rights it gives him.There is another Document 17104/06 bearing the title "Proposal for a Council Regulation on the Community trade mark (codified version)" which corresponds to the above-mentioned Directive.Technorati Tags: Trade Marks
Wednesday, January 03, 2007DKPTO Sold IPscore Software to EPO.The EPO has recentlyreported that they have acquired a software named IPscore originally developed by the Danish Patent and Trade Mark Office. The EPO will be offering it to national patent offices and their patent information centres for further distribution. The advertising on the website of the Danish Patent and Trade Mark Office asserts as follows:"[...] IPscore 2.0 is a unique evaluation tool, developed to provide comprehensive evaluation of patents and technological development projects. IPscore 2.0 is an easy and user-friendly tool that can be used by all businesses with a small or large portfolio of patents and development projects.More details are discernible from these presentation sheets. A user of IPscore has to provide values for some 40 so-called assessment factors for every invention to be processed by the IPscore software. These values are used to produce a lot of diagrams and reports. There appears to be no rigid mathematical model behind those assessment factors. Hence, the answer to the question as to whether or not utilisation of IPscore would make sense mostly depends on the quality of the more or less subjective values entered into the computer running IPscore by the user with regard to the said assessment factors: Garbage in, garbage out.IPscore 2.0 runs on top of Microsoft Access 2000. I am in doubt as to whether this might count as an advantage. Nevertheless, in former times where the Copyright was at the Danish Patent and Trade Mark Office, the price tag was set to DKK 18.000,-- (roughly equal to EUR 2.400,--) for a version in English. A Danish-only version was sold for DKK 9.950 (roughly equal to EUR 1,325). There is no indication which price will in future be demanded by the EPO. Technorati Tags: Patents
Monday, January 01, 2007Changes As Of January 01, 2007.As of today, January 01, 2007,Romania and Bulgaria have acceded to the EU. This means, in particular, that both countries are now covered by the EU Community Trade Mark.Germany has taken over EU Presidency for the first half of 2007. It is expected that the German Government will focus during its term, inter alia, on Intellectual Property matters [emphasis added, --AHH]:"[...] [T]he Presidency will strive to improve the European patent system, particularly by making progress with the uniform patent dispute resolution system called for by the European business community. [...]On March 29 and 30, 2007, a Conference on Patent Law will be organised by the Federal Ministry of Justice, Berlin. The ninth Edition of the Nice Classification of goods and services for trade marks, published in June 2006, has entered into force today.Also the first revision to IPC8 has come into force today. Technorati Tags: Intellectual Property
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