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Issue 02/2007 of the Official Journal of the EPO has been Published on the EPO Website.

Today,

Issue 02/2007 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 3.4.02 dated March 22, 2006, T 619/02 - 3.4.02 concerning mental acts and aspects of technicality of inventions:

"[...] I. The perceptual processes taking place in the mind of a test person presented with odours in an odour selection test do not constitute mental acts within the meaning of Article 52(2)(c) EPC [...]. Nonetheless, human perception phenomena cannot be qualified as being of a technical nature [...].

II. The prerequisite of technical character inherent to the EPC cannot be considered to be fulfilled by an invention, as claimed, which, although possibly encompassing technical embodiments, also encompasses ways of implementing it that do not qualify as technical [...].

III. The technical character of an invention is an inherent attribute independent of the actual contribution of the invention to the state of the art and consequently the potential of a claimed method to solve a problem of a technical nature should be discernible from the aspects of the method actually claimed [...].

IV. Neither the fact that the result of a method may be usable in a technical or in an industrial activity, nor the fact that the result may be qualified as being useful, practical or saleable expresses a sufficient condition to establish the technical character of the result of the method or of the method itself [...].

V. If, apart from a possibly commercially promising but purely aesthetic or emotional and therefore technically arbitrary effect, the distinguishing features of an invention over the closest state of the art do not, in the context of the claimed invention, perform any technical function or achieve any technical effect, no specific objective problem of a technical nature can be considered to be solved by the invention [...]. [...]"

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Tuesday, February 27, 2007

Word Of The Day.

"[...] Problems of EU decision-making are not primarily caused by the number of Member States. Again, one only needs to look at history: the EU-9, 10, 12 and then 15 were perfectly capable of sitting on the Community patent or, say, the European Company Statute, for 20 or 30 years. [...]"

Ms. Meglena Kuneva, Member of the European Commission, responsible for Consumer Policy, Berlin, 26 February 26, 2007. For full text, see

here.

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European Union

Monday, February 26, 2007

Peer-To-Patent: Call for Volunteers.

The

Peer-to-Patent team is busy with preparing the launch of the project.

Mr. Dennis Crouch, Member of the Advisory Board for Community Patent Review, now calls for volunteers. Details are available

here.

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Labels: Peer-To-Patent

European Parliament / JURI: IPRED2 In Trouble.

From a

recent press statement of

FFII:

"[...] Brussels, 26 February 2007 - The European Parliament's Legal Affairs Committee (JURI) vote on the 'IPR Enforcement Directive' (IPRED2), originally scheduled for tomorrow, was postponed today for the third time. [...]"

According to FFII, they have learned that one of Mr. Zingaretti's concerns is that further weakening the definition of "commercial scale", or even outright removing that requirement from the directive, would hit consumers.

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IPRED2

Sunday, February 25, 2007

A New Strategy Of FFII.

According to

a report concerning a talk of

Mr. Pieter Hintjens, President of

FFII, recently held at

FOSDEM, the patent critics of FFII will continue their approach

to influence IP policy by means of a threefold strategy:

Organising a series of European patent conferences (EUPACO);
Creating a European Software Market Association (ESOMA); and
Creating a Campaign for Ethical Patents (ETHIPAT).

The series of EUPACO conferences was already widely known; see e.g.

my earlier posting.

According to the FFII, ESOMA is intended to form a European association representing independent IT firms, professionals, and consumers. They say ESOMA was founded in January 2007 by the FFII. On the

ESOMA website, the mission of the organisation is defined as follows:

"[...] Affordable global communications has turned software from a rare substance into an essential commodity. The new challenge is how to do business in this new world. Forward-looking firms build services on top of commodity software. But some firms want software to remain costly. They see commoditisation as an attack on their business model. Today, in Europe, there is a heavy push to apply the patent system to software. A minority of large, powerful software firms sponsor studies, workshops, think tanks, and forums. They lobby politicians. They push industry groups to promote their vision of expensive, proprietary software backed by patents.

So who represents the independent software market? Politicians don't like talking to smaller firms. This means that SMEs who work hard to create innovative small businesses are excluded, ignored, and sidelined in favour of a powerful, rich, and vocal minority.

We are the European Software Market Association

The European Software Market Association (ESOMA) is your new voice.
We are a voice that speaks for the independent software market.
We believe that standardisation is the best way to grow the IT market.
We believe that closed, licensed standards are bad for business.
We believe that the current patent system is unsuited for software. [...]"

At the time being, only three companies are mentioned as ESOMA members:

iMatix Corporation, Brussels, Belgium
Virtua Sistemas Inteligentes, Malaga, Spain
ENTIA, Madrid, Spain

ETHIPAT dwells on aspects of ethics and morality and offers a declaration as follows:

"[...] I, the undersigned, support this statement:

The European patent system discriminates against:
The Public, by letting those who benefit from the patent system set the rules for everyone.
Real innovators, by granting patents too easily and in areas where patents are not needed.
Fast-moving industries, by pretending that one size fits all.
The free market, by granting overbroad monopolies that lock out innovation and competition.
Smaller businesses, by creating risks and costs that small firms cannot afford.
Open research, in software, medicine, and more, by blocking the free flow of ideas and knowledge.
This discrimination is unfair, and it is costly. We all pay for it, with higher prices, fewer jobs, and less freedom.

I call on the EU to build a new patent system on these principles:
Fair to the public. It must be made by elected lawmakers of democratic European Union.
Fair to innovators. It must allow patents only where needed to spur innovation.
Fair to all industries. It must adapt to the fast-growing diversity of technology and business.
Fair to a free market. It must ensure that patent monopolies are narrowly focused.
Fair to small businesses. It must provide affordable, fast, narrow and predictable rights.
Fair to open research. It must protect the independent creation of original works. [...]"

It appears as if FFII intends to create a new political project, covering three areas of interest:

A "Think-Tank" unit implemented by EUPACO;
An ESOMA organisation targeting SME businesses (in competition with established organisations in this field like BITCOM or EICTA); and
An ETHIPAT campaign mainly targeting individuals as an offer for continuing involvement to those activists who had been actively fighting against the Draft Directive on patentability of CIIs (perhaps something like a broadened re-vival of the former Eurolinux Petition for a Software Patent Free Europe).

The statements as presented on the three websites mentioned all appear to be a bit vague. This might be understood as a necessary prerequisite to gather as much crowd as possible, even at the expense of drawing targeted criticism from ant-patent extremists. We will have to wait and see which kind of political demands will emerge from this structure later on. I do not expect that such things like

epomustgo.org are gone now.

[UPDATE 2007-02-26] A video of Mr. Pieter Hintjens' speech is available

here (caution - some 182 MB!) It is an .ogg file that can be played, at a push, by means of a

Real player if you shouldn't have at hand some

matching free software.

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Saturday, February 24, 2007

Fall-out From Alcatel-Lucent vs. Microsoft.

As many of the readers of this Blog may have noticed from the mass media, a U.S. court recently has

awarded

Alcatel-Lucent a sum of USD 1.5bn to be paid by

Microsoft as a compensation for MP3-related patent infringement. However, I am inclined not to be overly surprised if the sum as awarded last week should be reduced substantially upon Microsoft's appeal or as the outcome of some sort of settlement. Nevertheless, it is a huge sum of money.

Details of the judgement have come to be known thanks to the

PatentMonkey Blog. What appears to be interesting beyond the present case is some

confusion arising from the fact that allegedly "Fraunhofer has licensed MP3 to Microsoft in return for a USD 16m license fee". Yes, Microsoft has taken a license in some patents held by Fraunhofer but that does not mean that a product brought to market is automatically immune against other patents of any third parties. Pratent law does not provide any instruments for "licensing MP3". It merely allows to license one or more specific patents. And, one particular item sold might be covered by a multitude of patents. Before bringing any item to market it bis necessary to undertake a clearance screening in order to identify patents which might be infringed thereby.

Think, for example, of an iPod sold by Apple. Let us assume that the various methods to compress and reproduce audio signals utilised by such device are either patent-free or properly licensed. Even under such assumption, Apple might theoretically be liable for patent infringement if say, the plastics material from which the device housing is made, infringes a patent of a chemicals company. Or a particular snap-in mechanism used in assembling the housing might also theoretically infringe third party's patents.

And, of course, even a certain method of data manipulation might be covered simultaneously by more than only one patent.

In this particular case, it looks as if the particular implementation of MP3 brought to market by Microsoft was not only covered by Fraunhofer's MP3 patents but also by patents held or acquired by Alcatel-Lucent. Apparently Microsoft has failed to undertake a proper clearance before starting selling MP3-related software products.

Mr. James DeLong, who surely is not known as an anti-patent crusader,

writes in a ruminative mood:

"[...] Were the Lucent/Alcatel patents clear enough to be found, and for their applicability to be assessed? If so, then why did Microsoft and others fail to license them - they were certainly willing to pay the Fraunhofer Institute, which was thought to be the rights holder.

Did Alcatel/Lucent lie in the weeds, failing to assert any rights until large numbers of companies had committed significant capital? If so, how should this affect the suits? If not, why is the tech world so surprised? I recall reading, though I cannot put my finger on where, that there has been considerable bitterness over accusations that the MP3 rights holders (whoever they are) let the standard-setting process go forward without informing the world of their claims. If this is so, it is important.

How should damages be assessed in the tech world, where every product involves the use of hundreds of patents? As a thought experiment, if MP3 is worth $1.5 billion for Microsoft alone, and if you compare this with all the other IP that goes into Windows (and Microsoft annually shells out multi-millions in license fees), and all the other IP used by other users of MP3, then what total value does one come up with - and does it bear any relationship to the total revenues of the industries?

Are juries the right forum for complex patent litigation? The Constitution provides a right to a jury trial - perhaps it should also provide a right to a NON-jury trial to cover situations where a jury is the equivalent of a dice roll.

Are there issues of the interpretation of ambiguous claims? If so, then should ambiguity be interpreted against the drafter? This does not seem to be the case in patent law, where the appellate court recasts the claims construction runes de novo. [...]"

Maybe that this particular lawsuit points to some problem of information management in the field of patents where it appears to be utmost difficult to conduct a proper patent clearance for any given product.

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Thursday, February 22, 2007

OHIM: Lessons Still to be Learnt in Establishing Compatibility For On-Line Filings.

From the

OHIM Newticker page:

"[...] The OHIM is evaluating the compatibility of its e-business services with the new version of Internet Explorer (version 7). Proper functioning of those services is at present only guaranteed with Internet Explorer version 6 and Netscape 6.2. [...]"

This really appears to be sub-standard performance of OHIM. Perhaps one day the persons responsible for the IT infrastructure at the OHIM might be inclined to consider that it never can be a good idea to design, implement and deploy an IT customer interface on the basis of some proprietary functions in the applicant's software.

It looks as if some OHIM Officials together with their web designers who have been in charge with the development of the current OHIM e-filing facilities have been obsessed by a vision of transposing the filling-in of conventional OHIM forms in a 1:1 fashion to an electronic counterpart, thereby relying on special particularities of the CSS and/or JavaScript implementation in selected browsers.

Such strategy is doomed to fail from the very beginning because it is absolutely clear that the line of browser development will ever continue without a standstill. And, it would even be dangerous in view of security issues for applicants and/or their representatives to maintain outdated versions of browsers just in order to do e-filings with OHIM. Perhaps somebody at OHIM should have a closer look at e-commerce systems like Amazon or Ebay which are really successful and which do not require the utilisation of outdated browser versions.

Preferably the OHIM e-filing facility might be entirely re-written on the basis of open standards, i.e. HTML 4.x (or XHTML) and CSS as approved by

W3C.

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OHIM

First Step of Ratification of EPC2000 by Germany.

Today, I only would like to mention that on Friday, February 16, 2007, the Second Chamber of the German Parliament (

"Bundesrat") has, on its 830th session, given its

nod to the

ratification of the EPC2000 by the Federal Republic of Germany. Now that matter will be passed to the First Chamber of the German Parliament (

"Bundestag") for a final plenary vote. I expect this to happen shortly and without much debate.

As can be seen on the

table provided by the EPO, (besides Germany) Belgium, Cyprus, France, Ireland, Italy, Luxemburg, Portugal, Sweden, and Turkey are still on the list of countries having to do their homework.

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Labels: EPC2000

Monday, February 19, 2007

DE: Hamburg University To Launch Research Project on Intellectual Property Rights in Europe.

I just have stumbled over a

call for participation issued by

Dr. Sebastian Haunss and

Dr. Lars Kohlmorgen of the Centre for Globalization and Governance at the Institure of political science of the Hamburg University, Germany:

"[...] At the University of Hamburg's Centre for Globalization and Governance a team of social scientists is conducting a research project about conflicts around intellectual property rights. More specifically we are interested in the two EU directives on measures and procedures to ensure the enforcement of intellectual property rights (IPRED 1) and on the patentability of computer-implemented inventions (CII Directive/Software Patents).
You'll find more information about the research project on our website at:

http://www.ipgovernance.eu.

Our study aims to explain why in the first case the decision making process followed the dominant maximalist rights culture, while in the second case arguments of the proponents of alternative regulatory modes have been heard. We assume, that one reason for these differences might be found in different actor constellations. Thus, our research focuses on actor networks and we need to know as much as possible about the interactions among the actors involved in these conflicts.

To assess these interactions we have compiled, from our interviews and from some additional sources, a list of persons and organizations that were mentioned as having played a role in the two conflicts. This list is the core of our questionnaire, and we ask all actors involved to specify with whom on this list (and beyond it) they cooperated and from whom they received information in the course of one or both of the conflicts.

All data gathered with this questionnaire will be treated with utmost confidentiality and will only be used for the purpose of this academic research project. We will not disclose any personal information gathered within this research project to any third party.

Filling out the questionnaire will take about 20 minutes and would greatly help our research project.

The questionnaire can be found online at the following address:

http://www.ipgovernance.eu/questionnaire/questionnaire.html

Or you can download a pdf-Version of the questionnaire that can be filled out offline and returned by mail or e-mail at:

http://www.ipgovernance.eu/questionnaire/Questionnaire_IPGov.pdf

[...]"

A more general project description is available

here. The project appears to be funded by the

Fritz-Thyssen-Foundation.

My first thought was "Well, why shouldn't these scholars do some empirical research on conflicts around intellectual property rights?". But then I decided to have a brief look at the questionnaire and I got quite irritated. The main point of the entire questionnaire, question 5, reads:

"Please qualify the importance of the following actors and assess the extent and intensity of your interaction with them."

And, thereafter are listed:

23 Names of MEPs
44 Names of Associations / Companies / Lobbyists
6 Names of Persons in the EU Commission

Plenty of fill-in space is provided for naming other individuals or groups not originally included with the questionnaire. For each of these entities, the questionnaire asks the participant to specify:

whether he/she has received information regarding the failed CII Directive;
whether he/she was in loose co-operation regarding the failed CII Directive;
whether he/she was in close co-operation regarding the failed CII Directive;
whether he/she has received information regarding the IPRED1 Directive;
whether he/she was in loose co-operation regarding the IPRED1 Directive;
whether he/she was in close co-operation regarding the IPRED1 Directive.

Ok, the researchers have promised to keep all data confidential. But what they intend to do is nothing else than to create a full network graph showing the flow of information between the individuals and/or other entities of interest. As there are not only high-profile MEPs and EU Commissioners on the list (which perhaps, but only perhaps, might be in a position where they are expected to accept such intrusive studies) but also less well-known individuals (where questions might arise as to possible violations of their right to privacy), not to forget blank field for filling in any other names you like I wonder whether this research is a bit too much data-hungry.

And, I won't go into any further speculations about any hidden agenda possibly associated with this kind of research project.

[UPDATE 2007-02-26] Today I've got a phone call from Dr. Haunss. He was quite unhappy with my Blog post, in particular in view of the "hidden agenda" question (see above). After an amicable discussion on that matter, one important aspect emerged. When reading the call for participation and the questionnaire my thoughts had been: Why on earth do they go on such a minefield where the matter in question appears to be quite a long time away from becoming history? Yes, the IPRED1 and CII Directives do represent closed issues in a technical sense as IPRED1 had been rubberstamped by the EU bodies while the CII Draft Directive finally had failed. But the related debates go on and on; keywords are, for example, IPRED2 and EPLA. In my view, it had not been entirely implausible that the interest of various anti-patent campaigners in the final results of such an empirical study might be much larger than that of the pro-patent camp. My speculation had gone into a direction what if the entire research project might have been briefed by FFII activists.

However, Mr. Haunss argued that despite such undeniable obstacles as sketched in my posting they are eager to do the research now because of they fear that under the conditions of the Internet age in ten or twenty years many relevant documents and traces of this interesting and important political debate might have disappeared into thin air. Moreover, they had arranged interviews with some MEPs to get a baseline of facts from which to start the project. They see their own project as a piece of professionally conducted and independent empirical research where under some circumstances the analysis of social networks is generally deemed to be essential.

I am not a sociologist and I do not have any idea as to whether or not any attempts to empirically analyse social networks under conditions of a political battlefield can make any sense. Mr. Hauss' concerns regarding the risk of loss of important documents in the digital age is not entirely implausible. Time will tell us. Anyway, it never was my intention to discredit empirical research of that kind across-the-board.

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Intellectual Property

Saturday, February 17, 2007

President of FFII Wants To See New Laws And New Institutions.

Some of the readers of this Blog might

remember that last year Mr. Pieter Hintjens, President of FFII e.V., had registered a domain name "epomustgo.org", installing a wiki under that address which was, however, removed a short time after the registration completed. Obviously there had been some internal discussions within FFII as to whether or not it would make sense to publicly demand dissolvement of the European Patent Office.

Now we are reading

in an interview with Mr. Hintjens (emphasis added by me, AHH):

"[...] The battle will continue until we have new laws that clarify what can and cannot be patented, and new institutions that make those laws work. The current patent system dates from 1972, it's outdated, and hardly compatible with the EU. [...]"

They obviously keep on dreaming of replacing EPO by something different. And, on the

EUPACO website, indication is given

to the effect that:

"[...] A new European patent system should be an EU institution and should fall under proper democratic control. EPLA, the main EPO/Commission proposal, would move the EPO outside EU oversight, and although it contains some possibly useful elements, needs critical review. [...]"

Further material from

EPACO-1 held in Brussels on Janurary 24, 2007, is available

there.

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(1) comments

Friday, February 16, 2007

Learning From Constructive Criticism.

Sometimes even negative feedback can be quite valuable. There are many situations where politeness might damp down willingness to utter constructive criticism, and daring to give some unwelcome indications might under such circumstances well be perceived as a merit. When someone is listening to criticism, there can be a chance to learn something. This does not only hold for individuals but also for groups or even whole professions. Therefore I am always very interested to listen and tend to prick up my ears whenever someone with knowledge in the business gives some sort of reasoned appraisal with regard to some aspect of the business of the profession of patent attorneys.

During past weeks and months Mr. Joff Wild of the

IAM Blog has opened some of such chances to learn. For example, in his

posting dated December 05, 2006, he wrote that it is always worth remembering that were the EPLA, the London Protocol and/or the Community Patent ever to see the light of day as viable options, a lot of people could be adversely affected; not least those working in national patent offices, patent attorneys and patent lawyers - all of whom would run the risk of seeing traditional sources of work (national patent applications, translations, litigation etc) become scarcer. Later on, Mr. Wild

wrote in his Blog under the date of February 01, 2007:

"[...] The problem in Europe, however, is that there are very strong vested interests with a huge stake in the system as it currently is. For example, if translations are less important moving forward, that is going to have a substantial impact on the income of many patent attorneys in many countries. Likewise a single European patent court is going to mean less litigation work for a large number of lawyers, while the availability of a patent that covers the whole of Europe spells danger for national patent offices. With all this in mind, let's consider who are among those most closely involved in the negotiation process. You've guessed it: national patent offices, patent attorneys and patent lawyers. Just what incentive do they have to find a way forward that will work? Throw in a very vocal and well organised lobby opposed to many forms of patenting on ideological grounds and you have a recipe for no meaningful progress at all. [...]"

This has caused Mr. David Pearce of the well-known

IPKat Blog to make a

posting attempting to put Mr. Wild's criticism into perspective:

"[...] The IPKat would like to point out in a friendly way that patent attorneys as a body, ably represented by the Chartered Institute, have a clearly stated position of approving the EPLA, and have certainly not tried to block these moves. Furthermore, translations do not in fact have a great impact on attorney fees, since they are almost always outsourced to specialist firms, whose fees are simply passed on to the client. There is no great advantage for anyone in perpetuating a fragmented European patent system. [...]"

In response, Mr. Wild

argued:

"[...] I would like to stress that I was talking about Europe as a whole and not about the UK. I am aware of CIPA's support for the EPLA and the London Agreement (indeed, I have commented on it here), but support from national patent attorney associations in other European countries has been far more lukewarm, if it exists at all. We ran this piece in December about the situation in France, for example.

As I understand it, there is also considerable opposition in countries such as Spain (where, I believe, around 85% of typical attorney work is from translations). It is also the case that many of those most intimately involved in patent reform discussions are those who may feel they have most to lose from meaningful reform. Despite its importance to Europe's economic future, patent reform is seen as a technical issue by policy makers and so best left to "experts"; there is very little front line political interest in what is happening in negotiations, one of the reasons why I believe nothing much is happening - no-one is banging heads together and demanding a viable consensus for change be found. This may be what lies behind comments made by both Charlie McCreevy and Wubbo de Boer at the pan-European IP Summit, which also took place in December and which were also reported on the IAM blog.

At the 2004 pan-European IP Summit, IAM did a survey of attendees and asked them about their views on European patent reform. One of the questions was:
Do you think delays in introducing a Community patent system arise from:
1. Genuine worries that need to be resolved?
2. Vested interests trying to delay or sabotage the process?

Of those responding, 31% thought it was down to No. 1 and 56% thought it was down to No. 2. Now, obviously, this was not a scientific survey and the sample was small, and we are now just over two years further down the line, but from the conversations I have had with IP owners and many IP attorneys, I think those figures are a broadly accurate reflection of perceptions in Europe. I also think it is down to IP owners to change those perceptions by providing meaningful evidence of why the patent system is so important and why it needs to be changed. I do not blame people who are earning a decent living from the current system for resisting change, I blame those who want change for not investing enough time and money in ensuring that it happens. [...]"

While I do clearly see the point raised by Mr. Pearce I nevertheless would like to defend Mr. Wild uttering some less favorable thoughts on the general role of patent attorneys. The size of the patent profession throughout Europe has considerably soared during the past fifteen years (I guess that the number of German Patentanwälte has nearly doubled over that period), and the often rude and pointless agitation of various anti-patent campaigners against patent attorneys might further amplify some kind of robust professional self-esteem because of it might, when riding the crest of a wave, feed perceptions that criticism to the present state of business activities of patent attorneys is null and void in general. Comments like those supplied by Mr. Wild might serve as a reality check: Some circles (surely a minority yet) of the industry appear to perceive patent attorneys perhaps more as a the lesser evil than as a pure blessing. Read Mr. Wild

writing on December 10, 2006, after having had some conversations with in-house consultants in Brussels, saying that he is not sure how long they are going to be happy giving work to attorneys who are resisting proposals that companies believe will be of significant benefit. After all, Wild asks "is it wise to employ someone who you believe does not have your best interests at heart"?

Another point of interest might be assessing the present and future role of collaboration over the Internet in the context of innovation processes. I entertain some suspicion that a significant part of the profession might not be fully aware of what is happening all over in the society now. Patent attorneys should not ignore Schumpeter's concept of

creative destruction - one day it might also be turned against that what patent attorneys are offering in their sort of business. And the economic competence of patent attorneys is perceived as being quite low, causing the President of the EPO

publicly thinking about another profession emerging and filling this gap in the landscape of IP businesses.

Alarm bells should be ringing at the headquarters of the various patent attorneys' associations.

Constructive criticism with regard to the present role of patent attorneys might help to create and safeguard a sustainable business model for the future which, in ten or twenty years, will most likely not be identical to that which we have today.

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Labels: Patent Attorneys

Monday, February 12, 2007

Word Of The Day.

"[...] A patent in Stockholm is worth next to nothing if the ideas it protects aren't protected in China. [...]"

Mr. Peter Mandelson, EU Trade Commissioner, Stockholm, February 08, 2007. See

this.

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Sunday, February 11, 2007

Rough Weather Ahead For EPLA.

There seems to be rough weather ahead for the

EPLA. This treaty would, if ever enacted in its present Draft form, set up a court system for patent litigation cases which is legally independent from the system of institutions as provided by the EU. With orther words, the EU might lose influence in a certain sector of patent politics. While the European Commission reluctantly has moved towards supporting the EPLA, in the European Parliament there some scepticalness appears to prevail.

Anti-patent campaigners fighting against EPLA had, after having got some input from the EU Commission, already as early as July, 2006,

contemplated that the EPLA might perhaps not be compatible with mandatory EU Law. By means of a

resolution dated October 12, 2006, on future patent policy in Europe, the European Parliament requested its Legal Service to provide an interim opinion on EU-related aspects of the possible conclusion of the European Patent Litigation Agreement by the Member States in the light of overlaps between that agreement and the

acquis communautaire and to clarify legislative competences in this field.

Yesterday,

IPEG Blog has

unearthed some preliminary version of the Opinion. And the result appears to be quite negative:

The Opinion stresses that the competence of Member States to enter into the envisaged EPLA may not be separated from the issue of the existence of a Community competence to conclude that agreement, which may limit or exclude Member States competence Where the Community's competence is exclusive, the Member States may not conclude such an agreement.
Member States may not undertake such commitments outside the Community fiamework; such action would in principle contravene their obligations under Article 10 EC, and in particular the requirement to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.
Compliance with Article 98[1] of EPLA would prima facie constitute a breach of Article 292 EC Treaty.
It follows that the Community's competence is exclusive for the matters governed by EPLA and Member States therefore are not entitled on their own to conclude that Agreement.

Of course, this non-binding Interim Legal Opinion does not mean that the European Court of Justice would decide along the same lines of thinking. However, it looks as if this obstacle should be taken as a very serious one.

The real matter behind this quarrel over EPLA is twofold:

On a first level, EU institutions, in particular the European Parliament, fear to suffer a loss of political influence on further developments.
On a second level, critics of the patent system argue that the EPLA could be used to enforce patents on computer-implemented inventions as granted by the European Patent Office (EPO). To certain anti-patent campaigners, fighting the EPLA means fighting the enforcement of (certain) patents granted by the EPO.

Politicians acting on the EU level should not forget that there had been a very straightforward way to kill the EPLA: Namely, to establish a reasonably crafted EU Community Patent System along with a related well-balanced system for litigation and enforcement. However, the political class has failed to create such a Community Patent, in the first instance due to lack of readiness to compromise with regard to the question of the language regime. Furthermore, the ligigation system proposed for Community Patents did not win the support of major stakeholders.

What did Mr. McCreevy

recently say? "The proposal for an EU-wide patent is stuck in the mud". Right is he.

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Labels: EPLA, Patents

(1) comments

Thursday, February 08, 2007

Patent Data Dissemination - Challenges of the 21st Century.

Mr. Joff Wild recently

wrote in his

Blog:

"[...] But, again, if you look at FP7 there does not seem to be any IP-related requirements. Ownership of rights is discussed, but there dos not seem to be anything that obliges anyone using European money to ensure what results from the R&D in question is protected; which seems utterly ridiculous to me. But it gets even worse. There was a very brief presentation from Nigel Clarke who works on the EPO's Espacenet patent database, a source of close to 60 million patent documents from around the world. Clarke explained how it can be used to get an idea of whether proposed research work has already been carried out, but there is no obligation for anyone seeking FP7 money to consult it. Likewise, those evaluating FP7 applications will not be required to consult the database either. We are therefore faced with the possibility of Europe funding research that will lead to the creation of a product that has already been invented. We all know that this kind of thing happens in industry all the time, it just strikes me as bizarre that the EU is not doing all it can to ensure that it does not happen with public money. Quite simply, it displays a fundamental lack of joined up thinking. [...]"

There is no doubt that

esp@cenet ist one of the best products (if not the best product) in the field of patent information that we currently have. From esp@cenet general public can obtain nicely formatted PDF files each comprising a full patent document. And those documents can now be obtained in one large file, no longer on a page-by-page basis at it was not so long ago. Relevant patent documents can be identified by some sort of a full text search engine.

I am convinced that nicely formatted PDF patent documents are proper tools for Patent Office personnel, for patent owners and for patent attorneys because of they are very handsome representations of a single unique patent. However, for the general public seeking to gain any sort of overview over the patent situation in a particular field of technology patent documents are outdated and outmoded tools of the 20th century. Engineers and other employees in companies normally don't really like to read piles of patent documents supplied by the patent department or by an external patent attorney. They think that a duty to read such stuff resembles an imposition or even unreasonable demand. One reason is that lists of potentially relevant patent documents generated by full-text keyword search often comprise utterly irrelevant documents, and it is tedious to go through dozens, if not hundreds of patent documents for separating a small amount of wheat from a huge amount of chaff.

One fascinating aspect of the

Peer-to-Patent project (which perhaps might be

operational in April 2007) is that not only prior art is identified for use by the Patent Examiner but also that volunteers outside the Patent Office get in touch with patent data in a structured way based on state-of-the-art IT technologies. But this side-effect of that project can be seen only as a start.

In my view it is overdue that Patent Offices sitting on huge amounts of raw data get involved into a political debate as to how and by which technical measures the general public can exploit the knowledge frozen therein in an advanced way. Preferably there should be some XML based standard representation for patent raw data, and as many of the Patent Offices of the World as possible should open their raw data treasure chambers.

The European Patent Office appears to be a vanguard so far as they are offering some sort of a SOAP-based interface enabling access to raw data.

One of the primary aims could be to encourage and to facilitate the creation of interesting patent-related

mash-up applications by a multitude of vendors.

And, encouraging development of florishing mash-up applications does not go well with demanding a fee for providing raw data. Many Patent Offices want to see cash in return for raw data, in some cases marginal costs in the amount of a few thousands of Euros per year. But the patent applicants have already paid for the publication of their applications through the Official application fees, and demanding even small amounts of money increases transaction costs and hinders the development of a large number of mash-up applications.

I do not pretend having the ultimate mash-up killer application up my sleeve but I would expect that some brilliant ideas might come up after some time.

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UK: Law Lords Won't Bother With Patents On CIIs.

my earlier posting I had reported on speculations as to a possible final judgement of the House of Lords concerning patentability of computer-implemented inventions (CIIs) in view of the

Decision in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from the High Court of Justice Chencery Division (Patents Court) - Neutral Citation Number: [2006] EWCA Civ 1371 - given by The Hon Mr Justice Lewison, The Rt Hon Lord Justice Jacob, and by The Rt Hon Lord Justice Neuberger, the case known as Aerotel Macrossan. Now there is a

report in

ITweek saying:

"[...] The Law Lords refused Australian businessman Neal Macrossan leave to appeal against a court decision last year that his invention of an automated system that compiles the necessary documents for incorporating a company in the UK could not be patented.

A patent application for the web-based system had been rejected by the Court of Appeal in October on the grounds that it was a 'business method' and a 'computer program', both of which cannot be patented under patent law.

But Macrossan's lawyers had argued that the Court of Appeal judges had used new criteria for judging what constituted a successful patent application that were out of step with those used in the rest of Europe and that there was a need for clarification on the points of law surrounding what software is patentable.

The Lords rejected this line of argument, claiming the case 'does not raise an arguable point of general public importance'. [...]"

So, the case 'does not raise an arguable point of general public importance'? Huh?

Anyway, see also further commentary on the

IPkat Blog.

[UPDATE 2007-02-15] See also

Mr. Macrossan's comments on the Lords' decision and

further material on that case on the

ukcorporator.co.uk website.

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Labels: Aerotel, Macrossan, Patents, UK

FFII About To Conquer The New World.

It looks as if

FFII e.V. is about to start a crusade

to proselytise the masses in the United States in their fight against patents on computer-implemented inventions aka software patents:

"[...] Why is US patent reform the answer to the problems which are dealt with, which manifested in the multimillion Microsoft-Novell deal? The answer is simple: Andreas Jaeger has suggestions for reform but the debate in the USA does not take off. As long as companies defend themselves with patent deals and patent portfolios, or waste their time on discussions about prior art searches, everything remains lost.

However, there is chance for substantial reform. Interested US citizens can take the European lesson and become founding fathers of FFII USA. At least a mailing lists exists for the sleeping nation which handed over software liberty to patent agents. [...]"

I guess that it will be a tough challenge for FFII to gain substantial political support throughout the U.S.

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Labels: FFII, Patents

Wednesday, February 07, 2007

PCT Filings on the Surge.

Mr. William New writes on IP-Watch:

"[...] A record number of applications for international patents were filed in 2006, and Asian economies are leading the rapid growth, officials from the World Intellectual Property Organization said on 7 February. [...]"

In particular, there appears to be an extremely strong growth in demand from Japan, Korea and China.

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Monday, February 05, 2007

Final Report on Consultation on the Inventive Step Requirement in United Kingdom Patent Law and Practice.

Today, the

UK Patent Office has published the

final report on the

Public Consultation on the requirement of the inventive step held in 2006:

"[...] The overall message of the responses is that respondents are happy with current law and practice. Where there are difficulties, these are mostly confined to specific situations rather than 'across the board' failings. For example the 'obvious to try' formulation used recently by the UK courts when refusing some biotechnology patents caused concern to some respondents involved in that sector. [...]"

However, the entire consultation might be read with some caution. In August 2006, a pseudonymous patent practitioner

wrote in the comment section of this Blog at the occasion of the publication of preliminary results that the consultation was not taken seriously by anyone in the industry because it was clearly not a serious consultation. In his view it was peppered with market speak and inflammatory language like "trivial patents" and asked questions which even seasoned patent professionals such as he himself couldn't begin to answer. Nevertheless, UP Patent Office promises to take action as follows:

"[...] These conclusions follow directly from responses to the public consultation exercise and are fully consistent with recommendations made by the Gowers review. Follow-up actions indicated will be undertaken during 2007.
There is no need for any change to the basic law as it relates to inventive step.
There is a possible problem in the consistency of application of the inventive step test in high technology fields, and work will be carried out to investigate this further.
Continuing professional development for examining staff at the Patent Office will emphasise the need to maintain technological knowledge up to date, and to continually refine searching skills. This echoes recommendations made by the Gowers review.
Use of the facility to make third party observations on patentability under s.21 of the Act will be encouraged, such efforts already being in line with the recommendations of the Gowers review. [...]"

The Office had received only meagre 26 responses. These included responses from representative trade bodies and professional associations as well as individuals and firms. Patent Office says that work on the consultation was under way in parallel with the call for evidence by the

Gowers Review of Intellectual Property, but publication of this response has been delayed in order to take account of relevant Gowers Report recommendations.

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