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Sunday, July 29, 2007Lawmaking Interfering With Business Models. At the end of June 2007 there were  news heralding that after 15 years of dithering, Germany and Denmark have finally approved plans to build a bridge across the Fehmarn Strait in the Baltic Sea. I think that it is safe to assume that Executives at Scandilines were not amused: They run the largest ferry company in the southern part of the Baltic, currently operating, inter alia, a ferry link between Putgarden (on Fehmarn, Germany) and Rødbyhavn (Denmark). Of course, by completion of the bridge, the ferry link will be rendered obsolete. They will have to shut down service on this route. I cite this event here because of it is a nice example where a political decision has heavily interfered with business models of companies: By a mere stroke of a feather, one business model, that of offering ferry services for cash, has been demolished, and another one, pre-financing a huge bridge structure (with state subsidiaries?) and allowing others to drive over it for cash has been newly created. There might be legitimacy issues if a state suddenly decides to hamper one business model while starting fostering others.With regard to this very particular example of replacing a ferry link by a permanent bridge, proponents might argue that constructing a bridge always represents a significant progress over a mere ferry link in terms of speed, convenience and, at least on the long run, lower costs. During the first half of the 20th century, most of all companies were run on the basis of a very few traditional business models: Making goods or delivering services immediately in return for money. Giving away valuable goods and/or services for free and re-financing by revenue streams generated elsewhere was virtually unknown. In the newspaper and broadcaster markets we had learnt in the later decades of the past century that it was possible to run a company entirely on the revenues generated by advertising while distributing the main products for free. The upcoming of the Internet has enabled many other business models which had been unthinkable in the pre-digital era. Closely related is the surge of the Open Source economy in the software field. There are masters of the art of optimising business models in today's business ecosystems like IBM. Well, I would even dare to go as far as to say that the particular business model implemented by a company under today's conditions represents its innermost core of value. Businesses blossom and fail with their respective business models. According to Wikipedia, the term business model describes a broad range of informal and formal models that are used by enterprises to represent various aspects of business, such as operational processes, organizational structures, and financial forecasts. Although the term can be traced to the 1950s, it achieved mainstream usage only in the 1990s. Many informal definitions of the term can be found in popular business literature, such as the following:"A business model is a conceptual tool that contains a big set of elements and their relationships and allows expressing the business logic of a specific firm. It is a description of the value a company offers to one or several segments of customers and of the architecture of the firm and its network of partners for creating, marketing, and delivering this value and relationship capital, to generate profitable and sustainable revenue streams." Ostenwalder, Pigneur and Tucci (2005)In other words as used by Vadim Kotelnikov, the business model spells-out how a company makes money by specifying where it is positioned in the value chain. Chesbrough and Rosenbloom specify six functions of a business model:
Take as an example for bitter fights on business models in the age of the Internet the immense lobbying efforts undertaken by motion pictures as well as phonographic recording industries on a global scale in order to convince lawmakers of the advantages of their approaches to create a legal environment with additional carnassial teeth of IP enforcement provisions wherein their respective companies can survive without need to abolish their old-fashioned business models. But are those companies worth to be preserved at all? Or should they, if they refuse to change their business models, simply be allowed to go down the abyss of Internet while the general public watches this spectacle, some priests of the knowledge society standing by, rhythmically re-citing  Schumpertes's credo of creative destruction? And now, I eventually come to patent politics. In my view it seems to be clear that the patent system as it stands today fosters some business models and hampers others. But if lawmakers were to adjust patent law somehow they ever would improve conditions for certain companies based on business models fostered by the provisions of such amended patent law while deteriorating conditions for other companies which had florished under the previous state of the affairs. For example, the patent system as it stands today - including its option to hand down injunctions - clearly enables companies to be run on the basis of business models which are typical for so-called patent trolls (whatever this concept might mean precisely; my argumentation here does not depend on any details thereof). If, for example, IBM does not like such patent trolls, they might lobby in favour of something like an European Interoperability Patent (EIOP). But mere EIOPs cannot form a substrate on which patent trolls can survive. Should we therefore put those patent trolls on a red list of endangered species, arguing that a legal ecosystem sould be preserved where they can survive? Maybe there are not be many who would, in this particular question, be ready to rise their voices in favour of patent trolls because of they appear to be quite unpopolar in these days.However, in reality the problem is much worse because of there is not only something like a bipolar antagonism between, say, IBM, on the one hand, and a few patent trolls, on the other hand. Any significant amendment of IP laws will have at least side effects on many other businesses, whether such effects may be intended or not. And I do not see any system of metrics for gaining some common ground when it comes to taking a judgement on which particular business models deserve to be fostered and nurtured by means of some bespoken IP laws and which do not. I have argued since years in favour of post-grant measures to adjust the patent system to the needs of society rather than to conduct quite fruitless political debates on criteria of substantive law of patentable subject-matter and, hence, can, at least in view of this aspect, meet IBM's EIOP proposals with some sympathy because of they help steering away from fruitless debates on desirable criteria of patentable subject-matter. However, this cannot render concerns irrelevant that the fate of enterprises might be affected for good or bad by blind or badly understood patent law legislation. Only one thing is for sure: Some businesses will bite the dust anyway: Remember Schumpeter's creative destruction. Technorati Tags:  Patents
Saturday, July 28, 2007EPO/UK-IPO/DPMA: Productivity Benchmarking Study in the Patent Grant Procedure Available On-Line.The European Patent Office (EPO), the German Patent and Trade Mark Office (DPMA) and the UK Intellectual Property Office (UK-IPO) have published anindependent study drafted by Ernst & Young which benchmarks productivity in the patent grant procedure at the three offices. According to the Offices, the purpose was to identify best practice in the patent search and examination procedures with a view to enabling each office to adapt its own practice in the interests of streamlining and efficiency. The study clearly identifies disparities in productivity between the EPO and the two national offices, although some of the differences are largely due to varying procedures. In particular, the analysis found that EPO's productivity falls significantly behind the level of the national offices and identified a 50% difference in productivity between the EPO and the national offices. Howver, this difference is said to be to some extent caused by the methodical features, since effort for written opinions and the involvement of the examining division cannot be properly accounted for. According to the study, the total effect of these features and eight other explanatory factors may explain a productivity difference of 35% - 45% with two factors remaining that may be able to explain the residual:"[...] The following factors contribute most to explaining the productivity difference:Hmmm ... The evident difference in sickness days indicates that some sort of motivational issue exists at the EPO and is very likely to impact productivity - is work at EPO so much unhealthier than work at NPOs or should sickness days be understood as days of industrial action? Or am I completely misguided so far? Technorati Tags: Patents
Friday, July 27, 2007epi information 2/2007 Available On-Line.epi information 2/2007 is now available on-line:
Patents
Thursday, July 26, 2007Accession of the European Community to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs."[...] The European Commission adopted two Regulations which are necessary to give effect to the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs. The adoption follows the Council's approval of the EC accession to the international design registration system of the World Intellectual Property Organisation (WIPO) on 18 December 2006. The EC accession will allow EU companies, with a single application, to obtain protection of a design not only throughout the EU with the Community Design, but also in the countries which are members of the Geneva Act.Read more ...See also:
 Registered Designs
Tuesday, July 24, 2007More Details On IBM's EIOP Proposal.A few days ago I got hold of a copy of anon-paper prepared by IBM going into further details of their proposal for creating a European Interoperability Patent (EIOP) aka Soft IP which does not provide a title to issue an injunction to an infringer but only a title to collect license royalties. I can publish that non-paper here with IBM's permission.IBM now argues that the EIOP proposal would fit very well to revitalise the stalled debate on the EU Community Patent. One of the major points according to IBM is that patent law already recognises the concept of an innocent infringer - one who did not know of some infringed patent or could not reasonably be expected to have known of the patent. IBM's Soft IP concept would extend the notion of the innocent infringer. One context within which this has been discussed is the European Community Patent where the cost of the patent would be prohibitive if translation into all the languages of the European Community were required, and yet those potential infringers in countries not using the language of filing of the patent application will be vulnerable to being an innocent infringer simply because the patent is not in their own language. Here IBM tries to jump into the gap by suggesting that the entire EU Community Plan should be revived on the basis of their Soft IP paradigm which in some lesser extent relies on an assumption that everybody active in commerce should have read all of the potential relevant patents because of under Soft IP rules there is no risk of being served with an injuction order.A bold approach indeed - a private company attempting to revive a project that was stuck in the mud since a failed political attempt to overcome diverging national interests in the EU years ago. However, IBM might be seen as one of the very big global players on the IP theatre, and, hence, I think that those suggestions put on the table by them deserve at least to be taken seriously. In my opinion, the latest non-paper of IBM as mentioned above should preferably be seen in the context of at least two earlier related ones of their publications:
 When reading all of these IBM papers I have the feeling they might have been heavily influenced by that what Mr Henry Chesbrough is used to call Open Innovation: The central idea behind open innovation is that in a world of widely distributed knowledge, companies cannot afford to rely entirely on their own research, but should instead buy or license processes or inventions (i.e. patents) from other companies. In addition, internal inventions not being used in a firm's business should be taken outside the company (e.g., through licensing, joint ventures, spin-offs). In contrast, closed innovation refers to processes that limit the use of internal knowledge within a company and make little or no use of external knowledge. In consequence, an obvious demand to adapt IP law accordingly to facilitate such models might emerge.  In his recent book Open Business Models, Mr Chesbrough attempts to explain how to make money in an Open Innovation landscape. He proposes a diagnostic instrument for assessing a company's current business model, and explains how to overcome common barriers to creating a more open model. He also offers examples of companies that have developed such models - including Procter & Gamble, IBM, and Air Products. In addition, Chesbrough introduces a new set of players - innovation intermediaries - who facilitate companies' access to external technologies. He explores the impact of stronger IP protection on intermediate markets for innovation, and profiles firms (such as Intellectual Ventures and Qualcomm) that center their business model on innovation and IP. In particular, Mr. Chesbrough suggests to link intellectual property to the technology life cycle. At least slide 6 of Mr Burt's presentation at EUPACO-1 appears to be inspired by Mr Chesbrough's IP life cycle model.In total, my overall impression is that IBM have reckoned their future prospects in terms of the most likely evolution of their business model, particularly in the light of the EPO Scenarios Project, and have reached to the conclusion that they probably might thrive most on the basis of the Open Innovation paradigm. Now it appears as if they will harness all their political influence to lobby for a legal environment of IP protection where Open Innovation can flourish. This can hardly be seen as illegitimate per se. I expect IBM to start some kind of a lobbying action in favour of Soft IP as early as this autumn or so. The most crucial question might be what other industries with different business models will say then. I guess that branches like pharmaceutical companies might not be amused. IBM writes in the non-paper that they want "to consider the Soft IP concept in relation to the Community Patent, but equally it could apply in relation to the European patent as a whole (a single patent covering all EPC Contracting States)". In my view this sentence renders any assertion given otherwise that the "Soft IP" Community Patent route would be strictly optional somewhat blurred - if the traditional EPC bundle patent were also converted to Soft IP there would be no much room for "optional" approaches at least on EPC level. IBM will need to clarify this somehow, I presume.Technorati Tags: Patents
Monday, July 23, 2007Another Interview With Ms Alison Brimelow, President Of EPO.Ms Alison Brimelow has given anotherinterview which has been published on the Internet platform of the German weekly WirtschaftsWoche. The interview starts with a discussion of the huge backlog of patent application in the order of approximately 200,000 files pending, and Ms Brimelow is worried about certain consequences thereof:"[...] Wenn Unternehmen Geld machen können auf der Basis von Patenten, die noch nicht erteilt worden sind, wird ihre Wertschätzung für Patente drastisch sinken. Das könnte unangenehme Konsequenzen für das globale System haben.[...]"I would like to offer my own translation as follows: "[...] The esteem of patents by companies will slump if they can make money on the basis of patents not yet granted. This might have unpleasant consequences for the global system. [...]"Furthermore, Ms Brimelow argues with regard to the situation of SMEs under the current patent system: "[...] Je größer die finanziellen Ressourcen eines Unternehmens sind, desto leichter fällt es ihm mitzuspielen. Ich mache mir ernste Sorgen über die Konsequenzen für kleine und mittelgroße Betriebe. Ich habe kürzlich ein britisches Telekomunternehmen besucht. Es hatte eine kleine Zahl von Patenten angemeldet aus dem einzigen Grund, um so zum unumgänglichen Gesprächspartner für einige Konkurrenzunternehmen zu werden. Die Manager sprachen sehr deutlich davon, dass es für sie mit ihrem Budget sehr schwierig sei, eine solche Art von Spiel mitzuspielen. Größere Unternehmen tun sich da leichter. Dieses Ungleichgewicht beunruhigt mich. [...] Manche der großen Unternehmen sagen auch, dass sie Zweifel haben, ob es immer so weitergehen kann. Wir sind an einem Punkt angekommen, an dem wir darüber diskutieren müssen, wie wir aus der problematischen Situation wieder herauskommen. [...]"Again my translation: "[...] The larger the financial ressources of a company are, the easier it is for them to participate in the game. I am seriously worried about the consequences for SMEs. Recently I have visited a British telecom company. They had filed for a small number of patents solely in order to become a dialogue partner for competitors that cannot be by-passed. The managers explicitly stated that with their budget it is very difficult to participate in this kind of a game. It is easier for bigger companies. This imbalance worries me. [...] Some of the big companies also say that they are in doubt continuing this way further. We have reached a point where we have to discuss how to get out of the problematic situation. [...]"And, at the end of the interview, Ms Brimelow argues that shorter product cycles on the markets might cause that less patents get a renewal by their respective holders, causing a shortfall of income for the beneficiaries of the patent renewal fees. This might cause problems in about a century, she said. It is hardly conceivable that any of Ms Brimelow's predecessors in Office might have given such kind of an interview before. Times are changing. Technorati Tags: Patents
Thursday, July 19, 2007Peer-To-Patent-Project: 1078 People Have Signed Up To Be Reviewers.ThePeer-To-Patent Project reports that 1078 people have signed up to be reviewers. Should this figure be seen as a disappointing turnout or are roughly a thousand reviewers at the end of the first month of regular operation of the peertopatent.org website a sign of growing success? Technorati Tags: Patents
Friday, July 13, 2007EU Presidency: Towards an Enhanced Patent Litigation System and a Community Patent - How to Take Discussions Further.The EU Presidency (now: Portugal) have drawn up someDocument 11622/07 addressed to the Working Party on Intellectual Property (Patents) titled Towards an Enhanced Patent Litigation System and a Community Patent - How to Take Discussions Further. From the contents thereof:"[...] 1. Further to requests by the Competitiveness Council on 4 December 2006 and the European Council on 8-9 March 2007, the Commission on 3 April 2007 presented a Communication entitled 'Enhancing the patent system in Europe' (COM (2007) 165 final, Council doc. 8302/07). The Communication is a follow up to a stakeholder consultation that the Commission carried out in 2006 and aims at building consensus in order to create an improved patent system in Europe that is more accessible for stakeholders, in particular SMEs. Towards this end it sets out available options for a single European patent litigation system and addresses outstanding issues concerning the proposed Community patent.Concerning the degree and mode of decentralisation of the first instance of the patent litigation system, contrary to the political approach of 2003, delegations now feel that the first instance should be decentralised. However, there are different degrees of decentralisation imaginable. From the discussions under the previous Presidency it appears that there is broad consensus about the need to have a centralised appeal court dealing with both matters of fact and law in relation to both infringement and invalidity. The discussions under the previous Presidency have furthermore shown that there is a need for ensuring technical expertise in the court proceedings both at first and second instance. One way of achieving this result would be to appoint not only legally but also technically qualified judges. Another way could be to have technically qualified assistants, however without a right to vote, to assist the judges throughout the handling of the case. In the context of the question of litigation costs the Document notes that in other fields of inter partes proceedings including IPR matters operating costs of tribunals and courts of law are normally borne by public budgets. In the case of an integrated patent judiciary possible options could thus involve financing of operating costs of regional chambers or decentralised first instance courts by Member States budgets and of the appeal court by the Community budget. With regard to the translation problem in the context of an EU Community Patent, one possibility could be to provide for machine translations of patent claims. The Portuguese Presidency believes that this option merits further reflection and will in particular provide Member States with more information about the state of play of the EPO's European Machine Translation Programme.Well, I would prefer an English-only solution because I'm a bit sceptical as to the possibilities in any foreseeable future of reliable automated translation of delicate linguistic structures as they are usually present in patent claims. However, I would accept to be proved wrong by facts, of course. Technorati Tags: Patents
France to Ratify London Agreement Soon.There are growing indications saying that France might ratify theLondon Agreement soon. In a press release [French only, sorry] published yesterday, the Mouvement des Entreprises de France MEDEF writes that some desire expressed by Ms Valerie Pecresse, Minister for the Higher Education and Research, and Mr Jean-Pierre Jouyet, Secretary of State to the European Businesses, to see France engaging in the process of ratification of the agreement of London, is considered to be excellent news. This goes well with an earlier report given by Mr Joff Wild on his IAM Blog. This is great news, and if proven to be true it might significantly boost the system of European patents granted by the EPO. If France really were to ratify, the London Agreement would enter into force and, because of translation of huge numbers of patent documents into various European languages could be avoided, the cost of obtaining patent protection on the basis of a European Patent granted by EPO would be significantly reduced. The rejection of London Agreement by the Institute of the French patent attorneys will not be enduring because of the interests of the industry, as Mr Wild puts it:"It's a funny world in which an organisation would oppose something which its members' clients seem to be very enthusiastic about."On the long run, it is as simple as that. Technorati Tags: Patents
Wednesday, July 11, 2007Austria To Be Referred To ECJ Over Its Legislation Restricting The Free Movement Of Services For Patent Agents.A freshpress release from the EU Commission:"[...] The Commission has decided to bring proceedings before the Court of Justice against Austria for its legislation on patent agents, which it considers infringes Article 49 of the EC Treaty. The Commission considers that it is disproportionate to oblige all patent agents legally established in another Member State to enter themselves in the Austrian register, hold insurance for this purpose, be subject to all Austrian disciplinary rules other than those linked to professional qualifications (disregarding any rules they are already subject to in the State where they are established) and to work together with a local representative. [...]"Technorati Tags: Patents
Discontinuation Of Standard And Special Searches By The European Patent Office.I'm a bit late to mention thisnote which is available on the EPO website:"[...] In connection with the creation of the European Patent Network, the Administrative Council of the European Patent Organisation decided on 28 June 2007 that the European Patent Office will cease to perform standard and special searches.Hmm, the German Patent and Trade Mark Office had done a similar step years ago, abandoning searches unrelated to patent and/or utility model applications ... I can only hope that in future it will not be really difficult to find a competent service provider do do patent searches timely and for a reasonable fee. The EPO searches had enjoyed a good reputation at least in certain fields of technology. Will the NPOs (National Patent Offices) really be willing & able to fill the gap? Or, did the Administrative Council take this decision just in order to eliminate the EPO in this market segment as a competitor of NPOs? I dont't know the specific backgrounds. Technorati Tags: Patents
Tuesday, July 10, 2007EPO BoA: The Mere Possibility Of Serving A Technical Purpose Or Of Solving A Technical Problem Is Not Sufficient.The EPO has published DecisionT 0306/04 - 3.5.01 of the Boards of Appeal dated March 02, 2007, stating that the mere possibility of serving a technical purpose or of solving a technical problem is not sufficient to avoid exclusion under Article 52(2) and (3) EPC.European patent application No. 99 954 776.3 (published as WO-A-00/28451) was directed to an automated finite capacity scheduler. The main portion of discussion by the Board of Appeal goes as follows:"[...] 3. The subject of the present method claims is the scheduling of tasks in an industrial process, i.e. the placing of tasks in a timetable, schedule or any other type of list for allocating resources to activities over time.To me this decision does not come as a surprise. It illustrates that today filtering mechanisms brought into action within EPO and its attached Boards of Appeal against patenting of abstract mathematical methods not rooted in any identifiable and properly disclosed physical activity within some technical context are effectively thrown out. In this particular case, the applicant did not even mention in claim 1 of the main request a computer for carrying out the steps of the method. In another case T 1351/04 - 3.5.01 dated April 18, 2007, the same Board gave some indication as to the meaning of "technical means": An index file containing management information to be used for searching a file is a technical means since it determines the way the computer searches information, which is a technical task. A computer-executable method of creating such an index file can therefore be regarded as a method of manufacturing a technical means, also having technical character.According to the BoA, the claimed method requires the use of a computer. It has therefore technical character and constitutes an invention within the meaning of Article 52(1) EPC (cf T 258/03 - Auction method/HITACHI, OJ EPO 2004,575). Furthermore, and again according to the Board, a certain distinguishing feature in claim 1 according to which each node in the index includes the starting position information and number information used for retrieving records contributes to a technical solution of a technical problem. The Boad of Appeal makes extended use of the language technical solution of a technical problem. This appears to be remotely similar to the guiding doctrine of the German Federal Supreme Court ("BGH", Bundesgerichtsof). Technorati Tags: Patents
Monday, July 09, 2007Ms. Danuta Hübner On "Innovating Regional Economies - European Response To Globalisation".Ms Danuta Hübner, European Commissioner responsible for Regional Policy,talking on a Seminar "Challenges and Issues for the Spanish Treasury in the global economy" in Santander, July 09, 2007:"[...] So, how are European regions scoring on innovation? A model examples here can be Stockholm and Eindhoven (Brainport) regions, which are responsible for more than 200 patent applications per million. On the other end of the scale, however, one third of European regions recorded less than one patent per million (in 2000). 86 regions with 123 million people have an innovative performance below the EU average, the great majority being located in new Member States, Spain, Greece, Portugal and southern Italy. [...]"What I really would like to know is whether such statistics are based on the seat of the patent applicant (then such conclusions as drawn by Ms Hübner would be quite meaningless because of the applicant can sit anywhere on the globe for an invention actually made in some particular region) or on the seat of the inventor(s) (which might lead to some usable statistics). Technorati Tags: Patents
Sunday, July 08, 2007EPO Conference: Where Will Europe Go When It Comes To The Question Of Patentability Of CIIs? On Thursday of last week I took the chance to attend to the conference Computer-implemented inventions: where do we stand in the debate on 'software patents'? organised by EPO and held in Brussels. Anything to report? Well, when starting the morning session and introducing into the matters to be discussed, it was mentioned by Mr Oswald Schröder, Principal Director, Head of Communications at the EPO, that on last Wednesday, just a very few days after having taken office as President of EPO, Ms Brimelow had given a speech to EPO staff in the The Hague premises, stressing that she would prefer fewer and better patents. During Panel 1: The EU institutions' view there was a brief review of the status quo by a MEP proponent and a MEP opponent of the Directive, namely Mr Jorgo Chatzimarkakis, ALDE, and Ms Eva Lichtenberger, Green Party, respectively. At first, it become very clear that a re-launch of a sectoral Directive on the patentability on computer-implemented inventions is not to be expected anytime soon, contrary to some rumor emerging from a business lunch some days ago. Not much insight beyond that what was already known two years ago when the Directive had failed could be gained, and allegations and counter-allegations were made as to the "ideological" and/or "fact-ignoring" nature of the debate on the patentability of CIIs. When, during the discussion, Mr Erik Josefsson from EFF (formerly FFII Sweden) participating as an attendant of the conference stepped in, issuing during debate time some quite cross comments on the EPO's CII practice, one could feel as if time would have moved back by two years, directly into the very final phase of the dying proposal of the EU Commission of a CII Directive.Although it was not entirely clear why his presentation would fit into just this panel, Mr Jonathan Sage from IBM Europe gave his presentation on his employer's position in the IP game just after the statements of both MEPs. In a certain sense, this talk was the real bundle of explosives thrown into the debate during the entire conference: His explanations with statements from the very core as well as out of the vicinity of IBM's new global IP strategy of Soft IP were received with a certain degree of more or less outspoken scepticalness by the representatives of some other big companies usually also heavily involved in the IP business. During Panel 2 on EPO practice, Mr Stephen Hey, Principal Director, Computer Cluster, Mr Nildo Ciarelli, Director, Computer Cluster, and Mr Stefan Wibergh, Technical member, Board of Appeal 3.5.01, explained the current status quo in quantitative as well as qualitative terms. It looks as if EPO has, in this Cluster, managed to match the search backlog but additional efforts remain to be made when it comes to substantial examination. I did not bore myself with noting down the numerous facts and figures describing the current quantitative state of the affair within the EPO but hope that the presentation slides of those talks will appear on the EPO website soon. It was a very technical session without much political appeal. At the beginning of Panel 3 on The users' perspective, Mr Keith Beresford, European Patent Attorney and UK Chartered Patent Attorney, London, talked about UK/EPO: A look at specific cases. His presentation illuminated the widening gap between the practice of the EPO in general and of its Boards of Appeal, on the one side, and the practice of the UK-IPO and the UK Courts, on the other. Moreover, it appeared as if the general practice of the UK-IPO is even more restrictive than it would be required by recent UK case law. Mr Beresford's talk vividly illustrated the consequences of the failure of the EU Directive which had been designed to avoid such rifts by harmonising this sector of patent law throughout the EU. Certain quarters of the UK industry susceptible to the patentability of CIIs are now quite upset because of this situation. Mr Daniel Doll-Steinberg, CEO, Tribeka Ltd., talking about Patent values, business models, filing and process, costs, uncertainty and language and Mr Thomas Wünsche, CEO, EMS Thomas Wünsche, talked about an SME perspective of the patent system, Mr Wünsche showing more scepticalness and pointing out more difficulties and deficiencies of IP for his business than Mr Doll-Steinberg who apparently perceived IP more as a component of a success story. Finally, Panel 4 was devoted to the quality controversy, based on the assumption that concerns about an influx of trivial patents for CII have repeatedly been voiced and can still be heard today. This session aimed to offer a more precise definition of what may be understood by patent quality, how it manifests itself and to what extent Europe is concerned by the problem in the given context. Mr Pieter Hintjens, President FFII, talked on Quality, diversity and institutions, giving a very pragmatic talk on the requirement of legal certainty and other goals to be achieved. Mr Bernhard Fischer, Strategist Global IP Group, SAP, shed some light on the patent strategy of SAP, stating that only a very small fraction of European patent applications matures to the grant of a respective European patent. This did, however, not come to me as a surprise because I ever hat thought that it must be somewhat difficult to prosecute applications which virtually always show some heavy leaning towards business methods because of the field of business of SAP. When discussing some examples of typical subject-matter filed by SAP and ending up in a formal rejection by the EPO, Mr Fischer could demonstrate some conceptual potholes in doctrine and practice of the Boards of Appeal of the EPO when allowing patents on certain inventions when straightly directed to manufacturing processes but rejecting virtually the same core of subject-matter when claims are directed to the underlying principles of supply chains and logistics. Mr Francisco Mingorance, Director of Public Policy, BSA Europe, gave a talk on Patent quality issues in the context of the US patent reform, closing stressing that with regard to the patent system, no attempts should be made to fix what isn't broken. In particular, focus was made on the fact that despite IBM being Member of BSA there is some discrepancy towards IBM's enthusiasm in view of its plans on Soft IP. Summarising up, where has been the beef? I would say that a general change of climate was to be perceived along the parole as given by Ms Brimelow one day earlier in The Hague but there appears to be a substantial divide between different industrial actors on the patents theatre as to how far this change should or could go. IBM on the one end, promoting semi-revolutionary concepts like the EIOP, and other comapnies perhaps like SAP and some BSA Members, on the other end. And, surely some sort of a greyscale in between them. Two years ago, just after the European Parliament having voted down the Draft Directive on the patentability of computer-implemented inventions, speculations had grown as to whether there might be some radicalisation of anti-patent NGOs. As far as this can be judged today, this question can clearly be answered negatively. The Scenarios Project undertaken by the EPO as well as taking office of Ms Brimelow have fueled a creative but controversial debate amongst the users of the EPO patent system themselves with long-term consequences unknown today. Most likely the IP system will change much more during coming ten or twenty years than it had changed during the period from 1980 to now. Some of us will see.[UPDATE 2007-07-10] See also the Official EPO report covering that event as well as Mr Joff Wild's remarks thereon.[UPDATE 2007-07-23] The presentations shown at the Conference are available on-line now.Technorati Tags: Patents
Wednesday, July 04, 2007Ms Alison Brimelow, President of EPO, On EPO's Success Story And Why The Office Needs To Adapt To A Moving Landscape."[...] I have a consistent theme, which is that huge backlogs change the nature of the patenting system and create ambiguities which can be exploited in ways unforeseen by those who established the patent system. This is moving us away from the classic justification of the system. If you spend several years waiting for a decision, you and others can play 'rich man's poker', taking a bet on what your rights are going to be and discussing your commercial relationships in the shadow of that pending set of applications. I use the phrase 'rich man's poker' very deliberately as this is a game much better suited to companies with long pockets than to the small. This means that SMEs have an additional struggle in terms of effectively deploying the fruits of their innovation.Read more ...Ms Brimelow's approach to her new office certainly goes well with some other changes of the climate on the theatre of Intellectual Property politics.Technorati Tags: Patents
EPO Enlarged Board Of Appeal on Divisional Applications.Apparently theIPKat Blog has got some clue pointing out that the Enlarged Board of Appeal has taken a final decision in the Case G0001/05 concerning allowable subject-matter in divisional applications. The text of the decision has not been published on the EPO website so far but you are free the conduct an on-line file inspection into the EPO Official file wrapper of the application 99100131.4 where a copy can be downloaded.The following questions had been referred to the Enlarged Board of Appeal by T 0039/03:
In order to avoid any procedural traps, the Enlarged Board of Appeal encourages applicants to file divisional applications with the same description and claims as the root application, however, with the claims in a different order so that the claims first in order were directed to the subject-matter of specific interest in the divisional application, and then at a later stage filing amendments to bring the application into the form they particularly desired. Furthermore, the Enlarged Board of Appeal stated that an amendment to remove added matter not disclosed in the parent application as filed from the divisional application as filed is allowable irrespective of whether the earlier application is still pending or not. In a chain of consecutive divisional applications, content which has been omitted on filing a member higher up the sequence cannot be re-introduced into that member or in divisional applications lower down the sequence from it. The decision surely will be greeted by patent attorneys; see e.g. the Amicus Curiae Brief in re G01/05 (Divisional Application) (see on page 58) on behalf of epi.Technorati Tags: Patents
Sunday, July 01, 2007FSF releases the GNU General Public License, Version 3TheFree Software Foundation (FSF) has released the final text of Version 3 of the GNU General Public License."[...] States should not allow patents to restrict development and use of software on general-purpose computers, but in those that do, we wish to avoid the special danger that patents applied to a free program could make it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render the program non-free. [...]"Read more ...Technorati Tags: Patents
IBM To Demand Creation of European Interoperability Patent (EIOP).On June 06, 2007, as well as on June 12, 2007, I had reportedhere and there, respectively, on a tide change in IP politics plotted and beginning to be performed by IBM, one of the most patent-aware companies on a global scale. It became evident that IBM intends to to step out of line of conventional IP politics ever demanding more, broader, better enforceable, and longer lasting IP rights. Their openly presented co-operation with FFII, their tinkering with means for Balancing Open & Proprietary Innovation as well as their support for the Peer-To-Patent project have made perfectly clear that they want to see fundamental changes in particular on the patents theatre.Now Mr Joff Wild of IAM Magazine has given a report on an interview with Mr David Kappos, vice-president of IP Law at IBM, last week at IBM headquarters in Armonk, New York. An his report comprises some very important statements made by Mr Kappos.According to Mr Wild, IBM wants to have installed the option of granting a European Interoperability Patent (EIOP). Essentially, it is an idea that is based on what Mr Kappos calls the concept of "soft IP", which, he says, is encapsulated within the Blue Skies strand of the EPO's Scenarios project. The EIOP would be, Mr Wild is reporting, an EU-wide patent granted by the EPO that would be "open": EIOP owners would not be able to get injunctive relief - either preliminary or permanent in cases of infringement; instead, EIOP owners would effectively be signing up to the concept of licences of right, so that anyone who wanted to use a patent would be able to do so as long as an appropriate licensing fee was paid. Installing this topic under the umbrella of the Blue Skies scenario leads to some understanding that some top brass at IBM might think that on the patents theatre there will be no longer a doctrine of one size fits all. Different industries might have different needs with regard to patent protection, and from IBM's point of view, softening IP rights might be an appropriate route. It might, however, well be that other branches of the industry, i.e. pharmaceutical industries, would not be happy with the concept of EIOP.What also is quite striking is the change of attitude within IBM towards the FFII. Mr Wild quotes Mr Kappos, saying "[...] The FFII does represent important trends within our industry, such as open innovation and collaborative development ... and we are searching for ways to work with constituencies that operate in this open world. [...] The FFII has a new leadership and we think that it has changed, and become more mature. The FFII is critical if Europe is going to develop as somewhere in which to build a patent system that can exist in a more facilitative and less conflicting nature with open innovation models ... the FFII has influence and a strong voice; something it proved in the CII debate. We feel there is now an opportunity to engage and have a constructive dialogue. [...]"Seven years ago, having in view IBM's personnel of those times, such language could hardly have been imagined to ever happen in reality. The EIPOP proposal appears to effectively represent a shift from a fierce debate on what kind of inventions should be patentable and what not - the debate on pre-grant criteria of substantial law of patentability - towards a more relaxed discussion on modifications of the post-grant effects a patent should have (or not have). I think that in general such a step is overdue, indeed. In 2000 I had participated as a co-author in a study headed by Mr Bernd Lutterbeck of the Berlin University. The report had considered the introduction of a post-grant source code exemption for Free Open Source Software (FOSS), and in view of this particular proposal it had not been welcomed in each and every of the various quarters of the industries. It is not known to me that in 2000 IBM would have been prepared to support such kind of modest proposals. The more I am astonished now in view of such very far-reaching plans of IBM not only to tinker a little bit with bespoken post-grant exemptions but lobbying for implementation of an EIOP embodying a wholesale abandoning of injunctive relief. I have no particular opinion as to whether or not such proposals would have any chance to be adopted on the European political stage. In general, since the beginning of the great politicisation of IP at the end of the 20th century, industry lobbyists might have had a tendency to persuade politicians that more and better enforceable rights are needed. This U-turn of IBM surely will be greeted by the left and greenery forces throughout Europe but I am not so sure what the other camps will do with that. I expect that other branches of the industry, in particular the pharmaceutical industry, will consider strong opposition against IBM's EIOP proposal if this would mean any weakening of conventional patents because it would put their business models at risk. Maybe such plans would go through of they are implemented as alternatives like Utility Models. If EIOPs should ever come into the scope of serious consideration, the introduction of collective licensing schemes which are well-known from modern Copyright regimes should also be mooted. For example, if ICT solutions are covered by a required EIOP which is open to licensing on the basis of a RAND license, a patent collecting society could be set up in order to manage the royalty payment administration. Finally it should be noted that German Patent Law has a provision to turn a patent into something like an EIOP. According to Sec. 23, if the applicant for a patent or the person recorded as patentee in the Register declares to the Patent Office in writing that he is prepared to allow anyone to use the invention in return for reasonable compensation, the annual fees falling due after receipt of the declaration will be be reduced to one half of the amount prescribed in the schedule of fees. The declaration will be recorded in the Register of Patents and published in the Patent Gazette. Any person who wishes to exploit the invention after the recording of the declaration has to notify the patentee of his intention. Notification is deemed to have been effected if it is has been dispatched by registered mail to the person recorded in the Register as patentee or to his registered representative. A statement of how the invention is to be exploited has to be given in the notification. After such notification, the notifying party is entitled to exploit the invention in the manner stated by him. He is, however, obliged, at the end of every calendar quarter, to give the patentee particulars of the use which has been made and to pay the compensation therefor. If he fails to meet this obligation in due time, the person recorded in the Register as patentee may grant him a reasonable extension of time and, if the extension of time expires without result, may prohibit further use of the invention. The compensation will be assessed by the Patent Division at the written request of a party. However, contrary to the concept of the EIOP as promoted by IBM, according to German Patent Law the declaration may be withdrawn at any time by a written communication to the Patent Office insofar as no intention of using the invention has been notified to the patentee. Withdrawal will take effect on filing. Technorati Tags: Patents
Ms Alison Brimelow Today Took Office As President Of The European Patent Office. "[...] Alison Brimelow took office as President of the European Patent Office on 1 July 2007. [...]"Read more ...In 2003 she was elected President of the European Patent Office jointly with Professor Alain Pompidou, whose term of office ended in June 2007. She resigned from the UK Civil Service on 31 December 2003, but remained part of the UK delegation on the Administrative Council, and was the Council's Deputy Chair from December 2003 to 2006. See also my earlier posting here.Technorati Tags: Patents
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