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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, September 29, 2007European Patent Network EPN - The Unknown Entity?According to the explanations as given on the EPO website, a European Patent Network (EPN) is about to be set up as a result of the strategy debate from June 2004 to June 2006 on co-operation between the EPO and the national IP offices (NPOs) of the EPC Member States (see also my earlier postings  here and there). The target is said officially to be new co-operation initiatives should be designed to improve the efficiency of Europe's patent system.However, it appears as if that strategy debate has been a somewhat unharmonious undertaking. The idea of the EPN means in reality that there will be some workload shifting from EPO to NPOs in order to help the national central authorities to survive the ever growing acceptance of the EPO amongst applicants all around the world. It should not come as a surprise that any such measures have a tremendous potential to foster a fierce struggle for economic resources. Council Document CA/93/07 dated June 04, 2007, and titled Governance of the EPO: a Staff Perspective leaked to FFII helped to shed some light on the struggle behind the scenes related to that matter: A 2006 Staff Survey containing questions relating to the EPO Administrative Council unveiled that there is a deep trench of distrust between the Administrative Council made up by national representatives of the EPC Member States, on the one hand, and a vast majority of EPO staff, on the other hand. Open comments collected by the survey provided some answers as to why EPO staff does not trust its Administrative Council. Of these open comments 93.7% were negative, 5.5 neutral (mostly "no comment") and only 0.7% positive. In particular, more than two-thirds of the comments pointed at conflicts between national or personal interests, and the interests of the EPO. From these comments the representatives of the staff concluded conclude that staff perceives the delegations in the Administrative Council as representing their "own" interests rather than the interests of the EPO. One of the two major issues that stood out amongst the open comments in the 2006 staff survey was decentralisation. The push towards decentralisation of some Member States in the Administrative Council was perceived by the staff as an attempt to weaken and even to dismantle the EPO to the benefit of national offices. Now I've got some hint asserting that full ranks of the EPO management (about 400 employees) will have a three days seminar in Prague during the coming week to discuss the EPN. One of the focus points will be something like a meta-project called "Domain 'Building EPN'", and the view of the head of the team in charge with that matter thinks that the EPN should be understood as a network of equal partners between the NPOs and the EPO. According to his approach, the role of the EPO within the EPN will change from dominance to co-operation on a variety of issues. The NPOs, so goes his vision, will be the local partner and service provider for industry and especially SMEs, the EPO will be one partner and can provide central services and a back office for the network on request. Then the EPO will be responsible for delivering European Patents of standardised high quality (EQMS). Innovation support for the users (i.e. SMEs and innovation society at large) in all member states will be delivered by the NPOs which can rely on support from the EPO if requested.  Still according to my source, the vision of the EPN, i.e. the role of NPOs and EPO within the network, still needs to be confirmed with the NPOs, on the one hand, and the EPO, on the other hand. Furthermore, the EPO has to progress in a way that creates trust and dissipates suspicion of dominance and control. EPO staff, goes the text, has to deal with NPO representatives in a networking fashion. The NPO partners in the network will be asked to take over tasks and duties which they contribute to the benefit of the European Patent System and help to migrate from "patents only" to "innovation". And, finally, indication is made that all partners will have to understand that the NPOs have a clear role and there is no policy to reduce or abolish them. The EPN has four main pillars:
 The EPO staff union SUEPO appears not to be happy about all that. A recent paper of theirs summarises the results up to now of the Utilisation Pilot Project as follows: "[...] A carefully-planned pilot project designed to establish benefits from utilising the work of the National Patent Offices is being undermined by lack of interest from the applicants. [...]"The paper complains about the role of NPO project teams involved in the assessment and preparation of the UPP findings. Moreover, the paper says that in reality, instead of the projected 1500 patent applications to be processed on the UPP track the total received so far after nine months of project duration is a meager figure of just 14 filings. Of these, 6 are said to have been assessed with "mixed" results, which, in the understanding of SUEPO, means outright "negative". Of the total of 14 filings, 12 are from Austria, and one each from Denmark and the UK, with none from Germany. None is in a high-tech field. The conclusion as drawn from SUEPO is as follows: "[...] Nothing could more clearly show the irrelevance of NPO work for the applicants, who are abstaining with their feet. [...]"This situation makes SUEPO to think about how applicants could be lured or even forced in future to give work to the NPOs. In this context, SUEPO gives a particular interpretation of the desired "Common Entry Point to the EPN" by assuming that EPO plus NPOs will, within a further project called "e2e" (electronic end-to-end processing), not further give applicants any choice. According to SUEPO, this project foresees a single central entry point to the EPN for all European filings so that the "network" can decide who does what. Furthermore according to SUEPO, the EPO will eventually be fragmented into a decentralised structure in which examiners are employed locally and under local working conditions, and technical fields are assigned per NPO. In my view it is virtually impossible at the time being for the general public to properly assess the EPN debate due to lack of sufficient and sound information. Creation of a co-operative network including EPO, OHIM, and NPOs sounds as if there might come up something like a win-win concept. However, the concerns as uttered by SUEPO people are well suited to cast a cloud over the EPN as currently being planned by EPO and by the political stakeholders behind the Administrative Council. I do not know as to whether or not those concerns are well-founded or not. Of course, if for example the applicants were denied direct interaction with individual Offices because of they are coerced to accept funneling via some sort of common EPN portal a number of critical questions should come up. But if SUEPO is right it might well be reasonable to assume that there is a much broader but up to now partially hidden agenda behind the topic of How To Survive When The EPO No Longer Accepts Paper.One of the crucial points might well be the usual secrecy of the deliberations of the Administrative Council. Official papers tabled on its sessions are made accessible by the general public on a very selective basis only, and the regular summaries of the results as published in the Official Gazette usually do not give any particular insights into the debate preceding the final decisions. It certainly would be a significant improvement if the processes within the Administrative Council could be more transparent. The national Governments of the EPC Member States might wish to have a look at the on-line document repository of the EU Council where the general public can gain insights by inspecting a wealth of documents without charge on their computers over the Internet. Only if there are specific reasons, Official documents of the EU Council may be withheld from public file inspection. Far from being absolutely perfect, such a regime might, however, well be suitable for consideration as a template for a more open document regime of the Administrative Council of the European Patent Organisation.Technorati Tags:  Patents
Thursday, September 27, 2007EPC2000 and London Agreement Nodded Through by French National Assembly.In his BlogChroniques de la propriété intellectuelle, Mr Pierre Breese, a patent attorney located in France, has just reported that the French National Assembly yesterday, on September 26, 2007, has passed ratification Bills (here and there) concerning EPC2000 as well as the London Agreement, respectively. According to Mr Breese, next step will be the presentation of both Bills to the French Senate on October 09, 2007.[UPDATE 2007-09-27] See also a more extended report on the Le blog du droit européen des brevets.Technorati Tags: Patents
Tuesday, September 25, 2007EC Submits Instrument of Accession to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs."[...] The European Community submitted yesterday to the World Intellectual Property Organisation (WIPO) in Geneva its instrument of accession to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs. This 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. It will simplify procedures, reduce the costs for international protection and make administration easier. The system will become operational for businesses on 1 January 2008. [...]"Read more ...Technorati Tags:  Designs
Thursday, September 20, 2007WIPO Director Under Pressure To Resign.Mr William New ofIntellectual Property Watch is reporting:"[...] An effort has been made by some countries, led by the United States, to hold a discussion at the high-level assemblies on questions around WIPO Director General Kamil Idris' alleged decades-long misreporting of his age on official documents.Read more ...[UPDATE 2007-09-24] See this further report on IP Watch; in particular this Official WIPO paper defending the issue.[UPDATE 2007-09-25] See this further report on IP Watch.Technorati Tags: Patents
EPO Notice on Implementation of the Transitional Provisions of the EPC 2000.Today published on the EPO website:Notice from the European Patent Office dated 20 September 2007 on implementation of the transitional provisions of the EPC 2000 applicable during the transition from the EPC 1973 to the EPC 2000:"[...]More detailed information on the transitional phase can be found in Implementation of the Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000.Technorati Tags: Patents
Sunday, September 16, 2007U.S.: Mr Mark A. Lemley and Mr Nathan Myhrvold Suggest Mandatory Publication of Patent Assignment and License Terms.Froma paper titled "How to Make a Patent Market" by Mr Mark A. Lemley and Mr Nathan Myhrvold: "[...] Willing licensors and licensees can't find each other. Patent auctions often fizzle, because without a thick market - one with an array of buyers and sellers bidding on price - no one can know whether they are getting a steal or being had. When parties do license patents, the prices are (to the extent we can tell) all over the map. And the rest of the world has no idea what those prices are. This in turn means that courts lack adequate benchmarks to determine a 'reasonable royalty' when companies infringe patents. The lack of a real, rational market for patent licenses encourages companies to ignore patent rights altogether, because they can't make any reasonable forecast of what it would cost them to obtain the licenses they need and because they fear that they will pay too much for a technology their competitors ignore or get on the cheap. At the same time, ignorance of prices permits unscrupulous patent owners to 'hold up' companies that make products by demanding a high royalty from a jury that has no way of knowing what the patent is actually worth. Mr Mark Lemley is the William H. Neukom Professor at Stanford Law School and a patent litigator at Keker & Van Nest. Mr Nathan Myhrvold is CEO of Intellectual Ventures, former CTO of Microsoft, and founder of Microsoft Research.With regard to EPO and the German Patent and Trade Mark Office, the mere fact of a patent assignment as well as the parties involved already get published. Concerning some further aspects of Intellectual Ventures' IP portfolio strategy, see e.g. a posting made by Mr Joff Wild on his IAM Blog.Technorati Tags: Patents
Changes To OHIM Opposition Proceedings.FromCommunication No. 5/07 of the President of the OHIM, Mr Wubbo de Boer, of 12 September 2007 on changes of practice in opposition proceedings:"[...] In order to streamline opposition proceedings, the Office has decided to make a number of changes to both the admissibility and the adversarial phases. The main aims are to simplify the admissibility check process; provide clarity on the division of costs when either an opposition or a CTM application is withdrawn; and reduce the administrative burden associated with requests for repeated extensions of suspension periods. [...]"In particular, the changes comprise:
 Trade Marks
How To Survive When The EPO No Longer Accepts Paper?"[...] The European Patent Office is pleased to invite you to its annual Online Services conference, which this year will take place in the beautiful Lake Como area, Italy, on 13 and 14 November.Read more ...So, this informal indication appears to be more than explicit about what is to be expected from EPO in coming years concerning on-line filings policy. Of course, up to now - at least as far as I know - there is no publication of any particular law in the making that would ban paper-based applications. However, paper-based filing is mentioned merely in the Implementation Regulations of EPC 2000, namely in Rule 49 thereof. And, the Implementation Regulations can easily be amended by the Administrative Council without need for a Diplomatic Conference. Provided that there is a sufficient political desire in the Administrative Council, paper-based filings can be made history with little formal effort.In selecting this topic as guiding theme of the Epoline Annual Conference, the EPO wants to tune in patent applicants as well as their representatives to the ambitious goals of making the entire EPO process a paperless undertaking. Should such a step be bemoaned or be combat? I think: not in general. Converting public administration bodies to electronic communication is surely to be seen as adequate in the internet age. Nonetheless there is a darker side of EPO's ambition. In my view it is to be expected that EPO will show some tendency to solve its own problems in an unilateral approach which might be, if deemed necessary by EPO, well at the applicant's (or their representatives) expenses. I am quite afraid that the migration path to the paperless EPO as to be touted in Como later this year will also show a tendency towards a unilateralism when it comes to setting of technical standards by the epoline team. In view of the gory technical details thereof perhaps also epi might not be willing or even able to produce a viable and thorough review. One of the points is that EPO traditionally has served the quasi-monopoly of Microsoft Windows on desktop computers by designing epoline software strictly based on product lines of Microsoft. To the contrary, for example the German Patent and Trade Mark Office has taken a more open approach by writing a lot of software in Java which can be made quite easily more platform-independent. Any unilateral approach of the EPO strictly excluding each and every usage of non-Microsoft based software by applicants and/or their representative within the context of epoline and electronic filing might well have a significant potential to curb innovative approaches of implementing case management software apart from the mainstream.Technorati Tags: Patents
Thursday, September 13, 2007The Linux Foundation Announces First Legal Summits.Anannounement taken from the website of The Linux Foundation:"[...] The first LF Legal Summit will be held October 25 - 26, 2007 in Boston and will only be open to Linux Foundation members and their legal counsel, which will include representation from HP, IBM, Intel, Novell and other leading open source companies. At this invitation-only Summit, members will focus on the issues of greatest common interest with regards to open standards and licensing. Presentations and working sessions will focus on building a legal defense infrastructure for Linux and evolving intellectual property rights policies optimized to support open development models.The Linux Foundation was created in 2007 by the merger of the Open Source Development Labs and the Free Standards Group. The Linux Foundation is a nonprofit consortium dedicated to fostering the growth of Linux. The Linux Foundation desires to promote, protect and standardise Linux by providing unified resources and services needed for open source to successfully compete with closed platforms. The Linux Foundation sponsors the work of Linux creator Linus Torvalds and is supported by leading Linux and open source companies and developers from around the world including, inter alia, Fujitsu, HP, Hitachi, IBM, Intel, NEC, Novell, and Oracle.It should be understood that the involvement of such heavyweights of ICT industries makes absolutely clear that in practice today Linux is a matter of technology, business, and business models, not of ideology. Open / Free Software is here to stay for a long time, and it would be unwise not to take it into calculation when discussing issues of Intellectual Property law.Technorati Tags: Patents
Wednesday, September 12, 2007WIPO: Attempts to Strengthen the Role Of PCT ISR in National Phases.Ms Liza Porteuswrites for Intellectual Property Watch:"[...] NEW YORK - A supplementary international patent search will be introduced and likely approved during the World Intellectual Property Organization (WIPO) General Assembly meeting later this month, WIPO Deputy Director Francis Gurry told Intellectual Property Watch on Tuesday.Furthermore, according to Mr Gurry we are witnessing a 500-year shift because, for the last 500 years, most of the world's technology has been produced in European languages but now, as Mr Gurry argues, we are seeing roughly a quarter of it being produced in Japanese, Chinese and Korean. Because of the increasing linguistic diversity, it is increasingly difficult for a single office to cover all languages, Gurry added, suggesting a supplemental international search which would enable an applicant to request, in addition to the principal search, a supplementary search from another international authority, e.g. a search conducted by the Chinese patent office. Times are changing, indeed. Other relevant issued discussed in New York include:
Remarks of Jon Dudas "Global Trends in IP Protection: A U.S. Perspective" - Global Forum on Intellectual Property Protection and Innovation, Beijing , China, March 27, 2007. Under this approach, a patent office would give priority to examining applications for which it was the office of first filing. The office would wait to examine applications for which it is the office of second filing - until search-and-examination results are available from the other office. This approach would work well with the Patent Prosecution Highway framework.Technorati Tags: Patents
Tuesday, September 11, 2007London Agreement to Enter into Force in First Half of 2008."[...] The French government adopted on 24 August 2007 a bill authorising ratification of the London Agreement. It will be discussed in the Assemblée Nationale and French authorities expect it to be voted by late November 2007. The deposit of ratification instruments could be expected early 2008. The Agreement would then enter into force three months later.Read more ...Technorati Tags: Patents
Monday, September 10, 2007Ratification of EPC2000 in France.I've just spotted theBlog of Mr Yves Marcellin, Avocat au Barreau de Paris.Most interestingly, Mr Marcellin provides a Blog posting with a link to the French EPC 2000 Ratification Bill: "[...] Projet de LoiObviously the EPC 2000 ratification by France is on the way. But surely this is not a matter of the law of "Union européenne" as the EPC is a stand-alone treaty, not secondary EU law. Technorati Tags: Patents
Wednesday, September 05, 2007How will EPC Language Regime Look Like After London Agreement Has Entered Into Force?Theimminent ratification of the London Agreement by France provides incentives to have a deeper look at the entire ratification status thereof. The EPO website provides a table as set out below: * On 4.6.2003, the Danish Parliament amended the Danish Patents Act in order to implement the London Agreement (compulsory translation of the claims into Danish, description must be available in English). The date of deposit of the instrument of ratification and thus of entry into force of the amendment to the Patents Act will be decided by the competent minister. ** On 18.5.2006 the Swedish Parliament approved of the London Agreement and amended the Swedish Patents Act in order to implement the London Agreement (compulsory translation of the claims into Swedish, description must be available in English). The date of deposit of the instrument of ratification and thus of entry into force of the amendments to the Patents Act will be decided by the Government. According to Article 1 (1) of the London Agreement, any State party to this Agreement having an Official language in common with one of the official languages of the European Patent Office shall dispense with the translation requirements provided for in Article 65, paragraph 1, of the European Patent Convention. This appears to hold for:
London Agreement, any State party to this Agreement having no official language in common with one of the official languages of the European Patent Office shall dispense with the translation requirements provided for in Article 65, paragraph 1, of the European Patent Convention, if the European patent has been granted in the official language of the European Patent Office prescribed by that State, or translated into that language and supplied under the conditions provided for in Article 65, paragraph 1, of the European Patent Convention. This appears to hold for:
Technorati Tags: Patents
German Patent Act Amended in View of EPC2000.In anearlier posting I had reported on a Draft Bill for implementation of the Act of November 29, 2000, revising the Convention on the grant of European Patents ("Entwurf eines Gesetzes zur Umsetzung der Akte vom 29. November 2000 zur Revision des Übereinkommens über die Erteilung europäischer Patente"). This Bill comprises various amendments to German law in accordance with the provisions of the EPC2000.The corresponding Act has been published in the Official Gazette (Bundesgesetzblatt Teil I Nr. 45, Seite 2166ff.) just today, on September 05, 2007.Technorati Tags: Patents
Mr Franco Frattini and Technical Teachings on the Internet.Mr Franco Frattini, European Commissioner responsible for Justice, Freedom and Security, talking aboutEU counter-terrorism strategy in the European Parliament on September 05, 2007:"[...] This brings me to the Internet and the way this tool, which has brought amazing advantages to our world, is being misused by terrorists. We all know that terrorists enjoy the benefits of the internet just as much - or even more so - as ordinary citizens, for instance to plan their attacks or to disseminate messages of concrete incitement to commit terror attacks.Well, making the publication of detailed instructions on all kinds of terrorist tactics, including the production of explosives on the Internet punishable - what could that mean for the patent people? Of course, a lot of patented recipes for explosives are available on-line in the various on-line patent document repositories within the appropriate IPC classes. And, surely, a lot of other technical teachings disclosed in Millions of patent documents not related to explosives potentially could also be misused by terrorists (and, of course, also by other criminals) for a broad spectrum of illegitimate purposes. There should be no illusions about the perils for an open and effective patent system lurking behind such political language as just today used by Mr Franco Frattini. The economic well-being of our today's European societies is based on the free access unhampered by regulations to - speaking in patent jargon - a broad spectrum of technical teachings. And, sadly to say but inherently true, virtually all of these technical teachings are more or less of something like a dual-use nature: They can be used for legitimate purposes, on the one hand, and they can also in one or the other form be misused for a bunch of illegitimate ends, including terrorism, on the other hand. Politicians like Mr Franco Frattini should think twice before mooting serious restrictions of technology-related information on the Internet. Just taking down a few obscure websites offering bomb-making recipes might soon turn out to be no more than a populist scam to calm down uninformed members of the public. It would under no circumstances stop terrorists from gaining technology-related knowledge for their criminal purposes. Effective measures to control dissemination of such dual-use technology open to potential misuse would, inter alia, require heavy censorship not only on the Internet and on patent documents but also on all paper-based technical magazines, student textbooks, and a vast range of research papers. The result would be something that looks very very different compared to our free western societies all politicians pretend to defend; it would in fact mean no less than to install some kind of capsuled priesthood of technology experts segregated from the rest of the society. Students in technology disciplines would, under such policy, be required to obtain a security clearance before being allowed to matriculate; it might be worth to take notice of the fact that some of the 9/11 pilots had been enroled as students at Hamburg University before. Forget anything like plannings based on the Lisbon Agenda under such circumstances.Rigorously extending the legal basis for issuing secrecy orders has already been mooted since more than four years; see my earlier posting and my commentary on German Home Secretary, Mr. Wolfgang Schäuble, recently arguing in public 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.Technorati Tags: Patents
Tuesday, September 04, 2007Patent Highway Between The UK And USA."[...] A 12 month pilot scheme launched today will speed up processing patent applications in the UK and the United States of America.Read more ...See also a text concerning the Patent Prosecution Highway (PPH) agreement with Japan. For more general explanations, see on the Trilateral Website.Technorati Tags: Patents
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