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Tuesday, April 24, 2007

EU Presidency Questionnaire on Patent Politics.

The Presidency of the EU Council has devised a

Presidency questionnaire related to the

Commission Communication on enhancing the patent system in Europe and addressed to the Working Party on Intellectual Property (Patents).

According to the paper, it is the Presidency's intention that the Working Party on Patents should first discuss issues arising in the Commission communication with regard to the Community patent and an integrated jurisdictional system for patents.

The questionnaire in this paper is not to be regarded as exhaustive. It remains open for any other questions or issues raised by delegations.

Furthermore, the introduction of the paper stresses that progress in enhancing the patent system in Europe requires a consensus among all Member States. It is therefore particularly seen as important for all delegations on the Working Party to reply to the questions relating to Member States' circumstances or positions.

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writes on EUobserver.com:

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Thursday, April 19, 2007

Mr. Verheugen Spreads Some Optimism.

Ms. Helena Spongenberg

"[...] Mr Verheugen told journalists in Munich that he had become more optimistic that the EU would get over its 20-year deadlock and have a community patent 'in the next five years.'

His renewed optimism comes after the president of the EPO - Alain Pompidou - said at a press conference on Wednesday (18 April) that France is likely to this year ratify the 2000 London Agreement which limits the languages used.

France's delay in ratifying the deal put the whole agreement on hold. [...]"

I'll buy it only if I see it having arrived.

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U.S.: Yet Another Attempt For A Patent Reform.

Mr. Dennis Crouch reports on his Blog

Patently-O that on April 18, 2007, bipartisan legislators in both the U.S. Senate and House of Representatives introduced sweeping patent reform measures in legislation termed the Patent Reform Act of 2007. For details, read

here.

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Wednesday, April 18, 2007

On the New Political Strategy Of FFII.

On Tuesday May 15th, 2007,

FFII will have their third Conference on Patent Law

EUPACO-2 in Brussels. According to FFII, topics are:

What is the future of the EPO and the national patent offices in an integrated Europe?
How can Europe's patent system be re-engineered to overcome its fragmentation?

Guess who will be the keynote speakers.

Mr. Richard Stallman? Or,

Mr. Hartmut Pilch?

No.

The list of speakers includes, inter alia:

Mr. William Kovacic, Commissioner, Federal Trade Commission (U.S.). Mr. Kovacic previously served as General Counsel for the FTC at the time of its landmark study, To Promote Innovation, The Proper Balance of Competition and Patent Law and Policy.
Mr. Ron Marchant, former Chief Executive and Comptroller General, The Intellecutal Prioperty Office, formerly The Patent Office (UK).
Dr. Bruno Van Pottelsberghe, Chief Economist, EPO.
Mr. David Ellard, EU Commission, DG Internal Market.
Dr Roger Burt, Intellectual Property Law Counsel, IBM Europe.

What is the political message behind this list?

It should in particular be noted that Mr. Burt of IBM had already been speaker on the previous conference

EUPACO-1. There must be something going on motivating IBM to send Mr. Burt to FFII twice within a short time interval.

I think that it is quite clear that under its President

Mr. Pieter Hintjens the FFII is more eager than under his predecessor Mr. Hartmut Pilch not only to serve the interests of the moralist subgroup within the crowd of the FFII followers. It appears as if FFII wants to gain political influence by acquiring a more pragmatic appeal. In the announcement of EUPACO-2, FFII write:

"[...] Patents are moving from an isolated specialist area of law to center stage in the global political economy. Patent policy today is a matter of public debate with holds profound implications for innovation, economic growth, health, communications, and the generation, management, and dissemination of knowledge.

In Europe, there is unresolved controversy over software patents and the inability to reach political consensus on the community patent, EPLA, or other approaches to integrating the European patent system. However, debate among scholars, stakeholders, practitioners, and the public has provided insight into how the patent system of the future should look. Recent economic research raises questions about the relationship of patents to R&D in some fields, and there is growing concern about how SMEs can participate in a costly system. [...]"

Recently Mr. Hintjens

picked up the

open letter of patent Examiners, arguing:

"[...] The patent system will explode for a very simple reason: software patents, combined with the greying of West's industries. The collapse of product-driven innovation makes US and European big industry desperate to turn their temporary lead in some areas into a longer-term hegemony. Ok, so we can't make our own products any more, but we can damn sure tax those Chinese on every product they make for the next twenty years.

Software patents are that tool, and the patent offices have been the compliant partners in hacking the patent system to allow these.

And having opened Pandora's box, there is no way to close it without radical changes. There is no quality filter that will stop the explosion in software patents. "Quality" is a buzzword but it'll become a curse in a year or two, as the backlog of patents continues to grow without respite. it's not just bad-quality patents that are spamming the EPO and other patent offices. Even good software patents (given any conceivable definiton of 'good' that the patent offices can define) are so numerous and complex that they will snarl the system to death.

It now takes 7-8 years to get an EPO patent examined. When the backlog hits the symbolic 10 year mark, things are going to get really crazy.

The only fix to the patent system's woes is a global ban software patents, and if policy makers still need some form of reward for documentation and publication of engineers' secrets, something like the Ethical Patent.

As the Campaign for Ethical Patents put it: Less is more. [...]"

So, the political strategy seems to be clear:

In a first step, analysing critics of the current patent practice, identifying issues that are brought forward not by conventional anti-patent grassroots activists but by experts and/or insiders of the patent system like Examiners or representatives of the Industry;
In a second step, promoting re-interpretation of the issues identified in the first step mentioned above to foster own political objectives like a ban on patents on computer-implemented inventions and the like.

In the effect, widely discussed matters like scaling and quality problems are re-interpreted towards a ban on "software patents".

I am a little bit concerned that FFII might, at the end of the day, be quite successful with this strategy because of they have got the chance to fill a void which has been created during the past years by virtue of some sort of selective inactivity of other stakeholders. Is it allowed to consider that traditional institutions have long been (and perhaps are still) much to apologetic of each and every of the particular features of the patent system as it stands now? Can we exclude that some people therein might, for example, fear that any open discussion of scaling problems of the patent system might not automatically lead to a better, improved, and strengthened patent system but to a contribution to the political destruction thereof? In the past, the EPO has undertaken some efforts to offensively approach the problem of patent quality but I do not know as to how much this has carried into broader circles of the patent community outside of the Patent Offices. The FFII, in its more pragmatic outfit, advertises to create opportunities for publicly discussing alleged and/or actual shortcomings of the patent system on expert level.

In the era of the Presidency of Mr. Hartmut Pilch, FFII did not count much on established experts from the patent community. To the contrary, Mr. Pilch had explicitly argued that patent experts could not be trusted because of similar shared career paths and interests. Like Mr. Stallman, Mr. Pilch seems to be more like a moralist than a pragmatist. His successor now appears to be willing to attempt to harness the expert's brainpower for the interests of FFII. If he should be able to manage the re-positioning of FFII this way, his organisation might well become a hub for public discussions of any patent reform approaches irrespective of whether or not the traditional stakeholders of the patent system like it.

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Tuesday, April 17, 2007

EU Patent Politics.

Mr. Tove Gerhardsen recently

wrote on

IP Watch:

"[...] New EU Push on Harmonisation Patents

On 3 April, the European Commission presented a communication proposing a harmonised patent litigation system in Europe, leaving it to the European Parliament and Council to take the issue forward [...].

Harrie Temmink of the intellectual property unit at the Commission's trade directorate told the meeting that the German presidency will hold three meetings on the patent issue in May and June. He said that the communication was meant to restart negotiations on a harmonised court system, hoping it could lead to a single patent system in Europe, which he said remains a top IP priority for the Commission.

Erik Nooteboom, head of the industrial property unit at the Commission's trade directorate, said that 'we have entered the last round,' emphasising that this was an attempt to force member states to take a stand and show their positions. He said that France, for example, had first supported a proposal for a European patent court (European Patent Litigation Agreement, or EPLA) and a proposal to ease the language requirements (the London Protocol) but later changed its mind, and that the main reason for the 2003 EPLA proposal having failed was that Germany had difficulties with the centralisation in Luxembourg."

This appears to underscore the enormous difficulties and uncertainies of current EU patent politics: Nowhere a big breaktrough seems to be near.

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the potential accumulation of huge cash reserves:

EU Commission To Be Requested To Assess OHIM CTM System.

On Friday April 13, 2007, the Presidency of the Council of the EU has published

Document 8375/07 with Draft council conclusions regarding the financial perspectives of the OHIM and the further development of the community trade mark system. Starting point is the enormous success of the OHIM:

"[...] THE COUNCIL OF THE EUROPEAN UNION,

1. [...];

2. EMPHASISES that the establishment of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)2 has been an enormous and unprecedented success; since the beginning of its operation in 1996 OHIM has contributed substantially to strengthening the competitiveness of the European Union; OHIM's success proves the value to business of Community wide trade mark rights which are efficiently administered and granted, are effectively enforceable and give legal certainty to all stakeholders throughout Europe;

3. NOTES that the work of OHIM has been very well received by all stake holders; consequently, the number of trademark applications and registrations at OHIM has exceeded the most optimistic predictions; as a result, OHIM has experienced annual budget surpluses which, by the end of 2006, resulted in cumulative cash reserves of more than EUR 200 million despite a reduction of the applicable fees which took effect in 2005; [...]"

Something should be done concerning

"6. RECOGNIZES that lower fees may facilitate access by users, including SMEs, to the Community trademark system and EMPHASISES that the accumulated fees paid by the users should not disproportionately exceed the overall costs of the Community trade mark system; [...]"

In view of this situation, a call for action is issued:

"11. CALLS on the Commission to :

:: in the short term, make proposals on:

- an immediate reduction of the fees charged for the application, registration and renewal of Community trade marks;

- the introduction of structural criteria which facilitate regular adaptations of Community trade mark fees in the Comitology procedure; these criteria should contribute to a long term balance of the OHIM's budget, ensure a continuous high quality of OHIM's performance, and take account of OHIM's cooperation with the trade mark offices of Member States; the criteria should respect the principles of prudence and sound financial management; in addition these criteria should keep the fee system reliable and transparent for users and its future adaptations predictable; the proposal should be accompanied by an impact assessment;

- encouraging joint projects of OHIM and national trademark offices which enhance the overall functioning of the Community trademark system;

:: in the medium term, conduct a comprehensive study on the overall functioning of the Community trade mark system.

This study should in particular :

- assess the coexistence of the Community trade mark system and national trade marks, including the territorial requirements for genuine use of Community trade marks;

- evaluate the effects of the Community trade mark system on national trade mark offices, as well as the contributions of such offices to the overall functioning of the Community trade mark system;

- evaluate the effects of the recent reforms;

- address the effects of the Community trade mark system on SMEs and start-up enterprises."

Interesting: "assess the coexistence of the Community trade mark system and national trade marks" and "evaluate the effects of the Community trade mark system on national trade mark offices" - what do those texts really mean? Are some of the EU Member States complaining about the OHIM's success, drying up work for national TM Offices? Or, to the contrary, is somebody daring to propose to wind up national TM registration? I don't know.

Anyway, there will be an examination of the said draft council conclusions on the financial perspectives of the OHIM and the further development of the Community trade mark system

behind closed doors on April 19, 2007, in Brussels with the Intellectual Property Attaches (Trade Marks).

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Trade Marks

Monday, April 16, 2007

Beware of Floods of Secrecy Orders In a Bleak Future.

The German Home Secretary,

Mr. Wolfgang Schäuble, has

recently argued in public [in German only, sorry] that any distinction between the external security of the state (i.e. the question of peace and war), on the one hand, and the internal security of the state (i.e. the question of justice and law enforcement), on the other hand, should be deemed obsolete in the age of terrorism. I wont't buy any of such approaches; they appear to be quite excessive and even explicitly dangerous for our democracy over here.

Why do I mention this on a Blog on Intellectual Property?

Well, some time ago (in 2003, to be precise) I had published

this posting on patents, state secrets, and the threat of terrorism, reporting on some strange Gedankenexperiment undertaken by a retired ministerial official to extend the potential scope of secrecy orders to patents. That man had mooted to provide a regulation within the German Patent Act giving a basis for issuing secrecy orders if the public disclosure of a patent application would create a danger to the external or internal security of the Federal Republic of Germany.

If such thinking should prevail, expect a flood of secrecy orders covering almost every ambivalent patent application that might, perhaps merely under some remote circumstances, be used within a certain context the Government considers to be critical for internal security. In such a scenario, will, say, cryptography-related patent applications or other broadly used interesting technologies be locked away from the general public? Moreover, the European Patent Office is not entitled to deal with secret inventions. Issuing more secrecy orders would in the effect strengthen national patent offices at the expense of the EPO.

One of the noblest functions of the patent system, the broad dissemination of technical knowledge, is already hampered by scaling problems due to the explosion in application numbers during past decades. However, this problem can - at least in my personal view - be overcome by utilising more good ICT. Significantly broadening the legal basis for issuing secrecy orders might be a coffin nail for the benefits of the patent system in society. The problems caused by such bad politics cannot be overcome by any technical means. They should be avoided by helping to vote down such misguided approaches as currently under debate.

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Patent Office Professionals Organisation:

POPA on Crisis of Patent System.

Ever heard of POPA? According to

their website it is a

"[...] The Patent Office Professional Association (POPA) is an independent union of professional employees formed in 1964. The Association is not affiliated with any national union and acts independently, answering only to the desires of the professionals it represents. All dues go directly to the representation of professionals right here in the Patent and Trademark Office. The Association represents all professionals in the Patent and Trademark Office excluding managers and trademark professionals. [...]"

Obviously it is an organisation covering professionals at the

US-PTO only.

However, on Friday 13, 2007, they have published an

Open Letter From a Coalition of Patent Examiner Representatives which is not limited to U.S. nationals. The letter is directed to:

Mr. Jon Dudas, Director, United States Patent and Trademark Office;
Prof. Alain Pompidou, President, European Patent Office;
Dr. Jürgen Schade, President, Deutsches Patent- und Markenamt;
Mr. David Tobin, Commissioner of Patents, Registrar of Trademarks and Chief Executive Officer, Canadian Intellectual Property Office; and
Dr. Friedrich Rödler, President, Österreichisches Patentamt.

The text is signed by Examiners of the U.S. PTO, EPO, CIPO, German PTO, and Austrian PTO.

They argue that many in the intellectual property community have come to realize that an increase in patent applications does not necessarily represent an increase in technological progress. They now recognize that poor-quality patents can become a hindrance to, rather than a stimulus of, innovation and economic growth. They understand that a strong patent system requires high patent standards and quality examination. According to their letter, in many patent offices, the pressures on examiners to produce and methods of allocating work have reduced the capacity of examiners to provide the quality of examination the peoples of the world deserve. They even go as far as to say that the combined pressures of higher productivity demands, increasingly complex patent applications and an ever-expanding body of relevant patent and non-patent literature have reached such a level that, unless serious measures are taken, meaningful protection of intellectual property throughout the world may, itself, become history. In particular, they are demanding:

Increase the quality of examination by providing patent examiners with more time to search and examine patent applications;
Acknowledge the importance of protecting the intellectual property of inventors while simultaneously protecting the public domain by removing from any reporting, rating or incentive systems any bias with respect to granting or not granting patents;
Guarantee the independence of the examination process so that it is governed solely by the legal framework;
Ensure that examiners have the opportunity to maintain their legal and technological competence by providing adequate and continuing legal and technological training;
Maintain staff skills with search, examination and administrative tools by providing regular update training;
Recognize the considerable investment patent offices have in their staff by developing and maintaining collaborative rather than adversarial relations with employees and their representatives; and
Strengthen the world's patent systems by encouraging your respective governments to provide standards of patentability that reward innovation while discouraging undeserving patent applications so as to provide a strong presumption of validity for issued patents.

It appears to me as if this open letter might be an intitiative to put recent

SUEPO-initiated strikes at the EPO on a broader, more international basis. They seem to fear that ceretain political as well as scaling problems connected with the patent system it its present shape might undermine any prosperous future thereof.

I would like to read some portions of that letter as a call for higher standards concerning the non-obviousness requirement of a patentable invention aka inventive step. But in practice the inventive step is filled with real meaning by the competent courts, not by the Examiners.

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Monday, April 02, 2007

Pilot Measures Fostering UK/JP Co-Operation.

From the

UK-IPO website:

"[...] Commissioner Nakajima of the Japan Patent Office (JPO) and Ron Marchant, Chief Executive of the UK Patent Office (UKPO), formally sign the Patent Prosecution Highway pilot agreement in Tokyo today (26 March 2007).

The main aim of the pilot is to improve the quality of patents and the efficiency of processing applications at both offices. The pilot will begin in July 2007 and will run for a year.

The pilot will allow patent applicants who have received an examination report by either the UK Patent Office or the Japan Patent Office to request accelerated examination of a corresponding patent application filed in the other country. Patent applicants will be required to submit search and examination reports prepared by the other patent office in order qualify for accelerated treatment. This will allow each office to benefit from work previously done by the other office, which in turn will reduce examination workload and improve patent quality. [...]"

In my vew this looks like a political demonstration. As explicitely indicated in the press statement, the initiative will help promote international efforts to develop work sharing arrangements aimed at reducing cross-national duplication of effort inherent in the patent system, which was a key recommendation in the recent Gowers Review of Intellectual Property. However, I'm not so optimistic as to the real practical benefits of exchanging such work results in advance of further harmonisation of patent law and patent practice in UK and JP. Time will tell us.

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