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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, October 17, 2007EPO Touting "A New Patent Information Policy For Europe". On the EPO website an  announcement is given concerning a new policy on patent information:"[...] EPO Vice President Curt Edjfäll outlined how the Office's new patent information policy will make patent documents more accessible to small and medium-sized enterprises in a speech to the EPO Patent Information Conference this week.Hmmm.... should I be impressed by that announcement? A good starting point for greatly improving epoline.org facilities might well be:
From Patent Information News issue 3/2007 I have learnt that the EPO has also begun work on implementing a "fair use" policy which will allow the OPS system and esp@cenet to be monitored and, if necessary, for access to them to be restricted. They say these services are meant for individual searching and were not intended for high-volume usage by machines, or for bulk data delivery. More details of our "fair use" policy will appear soon. I hope this won't apply to SOAP interfaces of the EPO database. Anyway, this does not sound as if EPO would be prepared to encourage mash-up solutions of third parties. If EPO should really, really be afraid that they might not have sufficient funds to pay for some heavy-duty Internet infrastructure able to cope with the server load of a data-hungry Internet public eager to tinker with patent data they might wish to consider giving raw data right now to Google. Whatever you might think about Google's business model and business politics, they at least have proven in a striking way that they have enough datacenter power to host huge amounts of data and give them away to the general public for free.Concerning Raw data resources (formerly INPADOC website), they say in their Information News that "More information is available at www.epo.org/patents/patentinformation/raw-data.html".However, if I try this URL (at the date of posting, 2007-10-17) I only get some "Page not found!" error message. [UPDATE 2007-10-18] A friendly anonymous commentator has made me aware that a hyphen in the printed magazine does not come from hyphenation but forms part of the URL: www.epo.org/patents/patent-information/raw-data.html".I intend to review this section later but what I especially do not understand is why, from a political point of view, EPO still insists to hand over bulk raw data only under some sort of quite restrictive Reseller Agreement or Licensing Agreement. If EPO really desires to be serious with "barrier-free access" to patent data they should abolish fees and unnecessary restrictions. I do not have figures available but I guess that the revenue streams generated from selling EPO data products can't be that huge compared to the other revenue streams from Official fees. Take, for example, the above-mentioned License Agreement. It, inter alia, requires that "the Licensee shall take all necessary security measures, at least equal to but not restricted to those taken by it with regard to other similar databases, to ensure the integrity of the Original EPO-Database(s) and to safeguard them from un-authorized - irrespective of whether in total or in part - access, copying, changing, translation, adaptation and use". Such clauses surely are well designed to prevent any non-commercial dissemination projects on the Internet based on bulk raw data to be provided from EPO. The general thinking behind such contractual provisions appears to be one of the most significant barriers to a broader and "barrier-free" dissemination of patent data.See also my earlier posting  there.Technorati Tags:  Patents
OHIM Launching Public Consultation on Draft Guidelines For Renewing Registered Community Designs.From theOHIM website:"[...] OHIM has launched a public consultation on the draft guidelines drawn up for renewing Registered Community Designs.Mr Vincent O'Reilly, Director of Department for Industrial Property Policy at OHIM, says that comments on this document would be welcome no later than December 15, 2007. These should be sent by e-mail to: The process of formal adoption of the guidelines is expected to be finalised in 2008. The purpose of the Renewal Guidelines is to explain how, in practice, the requirements of the Regulation on the Community Design1 (CDR) and the Community Design Implementing Regulation (CDIR) as well as the Community Design Fees Regulation (CDFR) will be applied by the Office in the renewal of a registered Community design. The Guidelines assist the members of the Register service to consistently apply the Regulations to the renewal proceedings and serve as a guide to the parties concerned. There is also an annex to the RCD Renewal Guidelines exhibiting the computer screen layout of the eRenewal form.I am wondering about why OHIM did not make it to launch this public consultation a little bit more ahead of November 01, 2007 ... Technorati Tags:  OHIM
Monday, October 15, 2007EU Patent Jurisdiction: Details of New Proposals From Portuguese EU Presidency.A few days ago I had posteda short notice concerning a new proposal of the Portuguese EU Presidency in view of future patent jurisdiction. Now, the EU Council has just published Document 13675/07 titled "Towards an EU Patent Jurisdiction - Points for discussion". It originates from the Portuguese EU Presidency and addresses the Working Party on Intellectual Property (Patents). According to the text, the present non paper aims at setting out in more technical detail the possible features of a future unified and integrated patent litigation system which, it is hoped, could find the support of Member States (MS) and users. It is based on the results of the deliberations of the Council Working Group following the Commission's Communication dated 3 April 2007 and previous work carried out by Member States and users, in particular in the context of work on the European Patent Litigation Agreement (EPLA). Moreover it reflects the first reactions of Member States and stakeholders during informal consultations carried out during the month of September 2007. Highlights are:
Document 13878/07 defending some particulars of the German model of patent jurisdiction:
Both papers cited here are silent on the question of the admission of patent attorneys to the new court system in question. In this contest the current situation appears to be quite precarious in particular for patent attorneys in Germany and in the UK. Recently there has been some unfavourable development in the field of trade marks: Taken as such, the Case T-315/03 decided by the EU Court of First Instance (CFI) on June 08, 2005, appears not very much exciting: A certain applicant did not get his desired registration "ROCKBASS" for
discussion of that ROCKBASS matter on IPKat.However, the entire case comprised a second level of dispute: A legal row over the question as to whether or not a Patentanwalt is entitled to speak on behalf of a Client before the CFI. In this case the Applicant insisted on his Patentanwalt being allowed to speak on his behalf before CFI, and even went as far as to appeal to the European Court of Justice (ECJ) with regard to this aspect of the matter (Case C-301/05 P). But it soon become clear that those circles are not even willing to think of allowing a Patentanwalt to act before both European Courts even if under supervision of a Rechtsanwalt (lawyer). The problem of representation by a qualified patent attorney is even more crucial in the field of patents; see e.g. the Second Venice Resolution where, under number 5, proposal is re-affirmed not to allow patent attorneys as representatives in EPLA cases. In short, the community of judges at CFI/ECJ and at other Courts in the EU Member States appears to be quite resolved not to tolerate or even support any attempt to allow patent attorneys to appear in those Courts. As the level of regulation and required traineeship as well as of professional rights of patent attorneys varies throughout the Member Countries of the EU from country to country, it is not to be easily expected that many or even all Governments of EU Member States can be convinced to endorse any attempt to establish a stronger position of patent attorneys without any reservation. But it is a mainly political issue. The desire appears to be paramount not to disturb the established delicate balance between lawyers, on the one hand, and patent attorneys, on the other hand. By this, some well-established positions on a national scale in some EU Member States, e.g. of UK and German patent attorneys to represent their Clients before various Courts, are in danger of going to the dogs when national institutions are replaced by European counterparts. The Portuguese proposal will be discussed in camera Wednesday October 17, 2007, on the session of the Working Party on Intellectual Property (Patents), see Document CM 3266/07.Technorati Tags: Patents
Mr Charlie McCreevy Again on Patents.Mr Charlie McCreevy, European Commissioner for Internal Market and Services, at the occasion of a Honorary Fellowship speech, Royal College of Surgeons, Dublin, October 12, 2007:"[...] But to maximise our prospects of success, we will have a lot to do at European level to move our economies up the value chain. Clearly Europe needs to quickly develop a bigger and more efficient knowledge based economy. That sounds like a cliché. But we can only do it through effective action: Action that will produce more innovators, educated in Europe, remaining in Europe and registering and protecting their patents in Europe. But can we really expect young inventors or start-up businesses that are the seed corn of our future prosperity to register and protect their patents in Europe if the cost of doing it is 11 times greater than in the United States? Against this background, should we be surprised that we are so far behind on innovation? The excessive costs are not the product of some externalities that we cannot control but of an unwieldy litigation regime and a cumbersome patent registration regime across 27 Member States instead of a single patent regime and simple litigation regime for all Member States. The solution to this problem is within our hands and that is why I have put forward some ideas over the past six months for moving forward in this area. It is simply not acceptable for issues such as language to stand in the way of sorting this problem out. The sooner we address it, the more innovation in Europe there will be, and the more new investment, growth and jobs we can create. [...]"Read more ...Technorati Tags: Patents
Prominent Critic of Patent System Wins Nobel Prize.US economists Mr Leonid Hurwicz, Mr Eric Maskin and Mr Roger Myerson have won the Nobel prize for economics,BBC reports.Mr Maskin is well-known for his critics concerning the patent system. Take, for example, the paper written in 1999 by Mr James Bessen and Mr Eric Maskin on Sequential Innovation:"[...] How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary - as it certainly has been in those industries - competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980's provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry. [...]"Awarding the Nobel prize does not automatically mean that such theories are ever interpreted correctly. However, this decision of the Nobel committee shows how far theories dealing with the patent system in a rather inclement way are mainstream amongst scholars in the field of economy. See further information on Mr Maskin's relationship with the patent system here.Technorati Tags: Patents
Thursday, October 11, 2007Reuters: Portuguese EU Presidency About To Offer Yet Another Patent Jurisdiction Proposal.Reutersreports:"[...] BRUSSELS, Oct 11 (Reuters) - EU President Portugal has proposed a new EU patent jurisdiction to end a deadlock over how to defend innovations under the 27-nation bloc's laws, a document obtained by Reuters showed on Thursday. [...]"The report further says that the Portuguese proposal would create an EU patent jurisdiction, borrowing heavily from the draft European Patent Litigation Agreement of EPLA which appears to be failed by not gaining appropriate political majorities. Technorati Tags: Patents
OHIM Boards of Appeals 2006 Case Law Overview Now Available On-Line.From theOHIM's website:"[...] The annual overview of selected decisions by OHIM's Boards of Appeal is grouped by types of decision, such as procedural issues or grounds for refusal. The overview for 2006, available in PDF format, was prepared as a pilot project by the Board's Documentation and Support Service. Future annual reviews are planned for publication in the early months of the following year. [...]"See the overview here [PDF].Technorati Tags: OHIM
The Economist on Open Innovation.In thelatest issue of The Economist there is an interesting article on Open Innovation. It brings a concise review of some more or less well-known pros and cons thereof, citing some of the success stories like Procter&Gamble or IBM as well as critics like Mr David Gann and Mr Linus Dahlander, both of London's Imperial College, who argue that firms have always been open to some degree and that the benefits differ depending on their line of business. Those using older technologies, for instance, may benefit less. The costs of open innovation, in management distraction or lost intellectual property rights, are not nearly as well studied as its putative benefits, they say. Nevertheless, what can be observed today is that there is an increasing number of companies demonstrating that a centrally planned approach is giving way to some more open, even somewhat anarchic, new model of innovation. And, for example, Mr Janez Potočnik, European Commissioner for Science and Research recently stated, on the High Level Conference on the European Research Area 'The Future of Science & Technology in Europe', Lisbon (Portugal), October 08, 2007:"[...] Increasingly, businesses thrive in an environment of 'open innovation', where connections with each other and with public research institutions are vital to explore ideas and develop products more effectively than would be the case alone. [...]"What does this mean for more formalised ways of dealing with intellectual property, in particular patents? The Economist concludes - in particular in view of branches where Open Innovation plays a role: "[...] For one thing, patents are becoming much less important nowadays than brands and the speed at which products can be got to market. It is true that some of the rising stars in developing economies are beginning to take out more patents, but many of their innovations are still kept quiet as trade secrets. So fluid are their markets, and so weak the historical patent-protection in them, that bosses often prefer to keep things in the dark - and come up with the next innovation as necessary to stay ahead of the competition.Then a final conclusion is offered: "[...] For a business that uses open and networked innovation, it matters less where ideas are invented. Managers need to focus on extracting value from ideas, wherever they come from. Unfortunately government planners, who are often obsessed with national innovation policies and the need to create clusters like Silicon Valley, have not learnt this lesson. History also shows that countries that come up with new technologies are often not the ones that commercialise or popularise those inventions. Richard Halkett, of Nesta, a British research body devoted to innovation policy, jokes that the right policy for governments should be 'never invented here'. He may be right. [...]"Perhaps patent people might wish to think about that. More related articles in this week's issue:
 Open Innovation
Monday, October 08, 2007France Making a Sea Change Shift Towards Supporting the EPLA?From theIPEG Blog:"[...] The rumor goes that France is due to make a sea change shift towards supporting the EPLA, an initiative to harmonize the way patents are being litigated in Europe. The French Research Minister (heading the French Ministère de l'Enseignement supérieur et de la Recherche) Valérie Pecresse, has sent a letter (or is about to do so) to her German counterpart, expressing the French support for EPLA. [...]"Read more ...It should be understood that at the time being this is nothing else than a rumor. No confirmation whatsoever appears to be available. Technorati Tags: EPLA
Saturday, October 06, 2007Will The Days Of WIPO Soon Be Numbered?A few days ago, Mr William Newwrote in IP Watch:"[...] The annual General Assemblies of the UN World Intellectual Property Organization ended in a stalemate Wednesday with no approval of a new budget or proposed cuts in patent fees and no decision on the fate of embattled Director General Kamil Idris, according to early reports from some participants.Now things seem to turn from bad to worse. Mr Bradley S. Klapper, Associated Press Writer, on Chron:"[...] The United States is currently examining a range of responses if WIPO member states continue to protect Idris from scrutiny. Possible withdrawal from the organization is being examined, though such a move is not imminent, said a U.S. official, speaking on condition of anonymity because of the sensitivity of discussions.Mr Joff Wild from IAM Magazine now has picked up this matter, pointing out that even if the U.S. were to leave the WIPO Convention U.S. companies would still be able to make use of the Patent co-operation Treaty (PCT), the Madrid Protocol, and a whole host of other international IP treaties. As pointed out by Mr Wild, the crucial point is not that the US has signed the WIPO Convention but that it is a member of the Paris Union for the Protection of Industrial Property. He further argues: "[...] For WIPO, on the other hand, the consequences could be extremely damaging, especially if the US were followed by other countries from the developed world which are also frustrated by the current Idris impasse. Without their membership, WIPO's policy-making role would effectively come to an end, leaving the Geneva-based organisation as little more than a clearing house for international IP applications.Currently I do not believe that these most extreme consequences will actually happen because of the pressure on Mr Idris will soon become unbearable. And, if they should ever happen, then because of other matters from the past like the upcoming of the debate on an WIPO Development Agenda attempting to turn WIPO round from a pro-IP organisation into something like an agency for fostering Intellectual Commons, effectively stalling the SPLT negotiation process. This surely has made the Bush administration in Washington unhappy, and current warnings to leave WIPO might perhaps be seen as a nice example of the U.S. impressing the rest of world by mooting some extension of unilateral politics in order to facilitate reaching own political objectives. Nobody should forget that WIPO actually is an agency of the United Nations, see Article 1 of the Agreement between the United Nations and the World Intellectual Property Organization. The political ambivalence of the U.S. in view of their overall relationship with the United Nations also now appears to extend over their relations with WIPO.Anyway, Mr New also has reported that Switzerland, in its role as host country of the World Intellectual Property Organization, this week issued a call for an immediate search for a new leader of the organisation in order to address concerns of mismanagement and lack of credibility.See also a report on Tribune de Geneve, Switzerland, editor-in-chief Pierre Ruetschi quoting the quarrel could have serious consequences for Geneva. The future of WIPO is at risk, Ruetschi said, because its credibility has been undermined by the Idris affair. The US is looking for other ways of regulating intellectual property and if it decides to go it alone 'the days of WIPO are numbered.'[UPDATE 2007-10-08] See also Inside Views: Open Letter From Staff To The Director General Of WIPO.Technorati Tags:  WIPO
Thursday, October 04, 2007UK Consultation on Proposed Changes Relating to EC Legislation on Compulsory Licences and on Supplementary Protection Certificates.The UK-IPO has published on their website aconsultation document seeking comments on proposed changes to the Patents Act 1977 relating to EC legislation on compulsory licences and on supplementary protection certificates.Comments on the draft Regulations are asked for by October 31, 2007. Technorati Tags: Patents
OHIM Now Equipped With A Fifth Board of Appeal.From theOHIM website:"[...] A fifth Board of Appeal, chaired by President of the Boards, Paul Maier, has been set up in order to deal with the growing workload.Read more ...Technorati Tags: OHIM
Issue 03/2007 of epi-Information Now On-Line.The recent issue 03/2007 is ready for downloadhere (PDF).From the Table of Contents:
Technorati Tags: Patents
Wednesday, October 03, 2007News From EPO Transforming Itself (EPO 2.0).There is no doubt that currently EPO is deep within a process of self-transformation, the limits and consequences of which currently appear not yet to be properly assessable by the general public. I would like to point to two interesting postings on the EPO website which are not just brand-new but which are, I assume, less known than deserved.A first interesting item worth to be mentioned is the speech given by Mr R. Grossenbacher, Chairman of the Administrative Council, at the ceremony of the handing over of office between A. Pompidou and A. Brimelow on June 28, 2007: "[...] But let me speak about the Office. As I said before, its main task is an operational one. To fulfil this task, it must behave as a businesslike international service enterprise. It should not compare itself to international organisations with political functions, but to the most efficient national civil services and to private service companies; that's the benchmark. We should not rely on the perpetual and unchanged existence of the Office's tasks. If we did, we would narrow both the political and operational freedom of action. On the contrary, we must make sure that the Office becomes capable to react, within a reasonable timeframe, to changing political and economic demands. This will not hamper the values of a 'Public service', which are often and not always to the best of understanding translated into terms like 'customer orientation' and other MBA terminology. On the contrary: It must lead to excellence in public service.Ominous "Board 28" mentioned by Mr R. Grossenbacher is nothing else than the Board of the Administrative Council as set up by the Decision of the Administrative Council of 5 June 2003. Originally it was created merely to assist the Chairman of the Administrative Council in preparing the Administrative Council's work. Moreover, at the invitation of the Chairman, the chairmen of the Budget and Finance Committee and the Committee on Patent Law are to be regularly involved in the Board's discussions. But on the 106th meeting of the Administrative Council of the European Patent Organisation (26 to 30 June 2006), Board 28 was mandated to conduct a study on the "big picture" of how the European patent system should best deal with its future workload, as proposed by the EPO. The study is to be concluded by the end of 2007 and I expect that it will comprise major statements concerning, inter alia, building the European Patent Network, enhancing the patent examination quality (raising the bar, i.e. making it harder to obtain a patent), and UPP. The Council noted that the Board of the Administrative Council has to work in close contact with all stakeholders and would report regularly to the Council. Today I'm not aware as to how such contacts with all stakeholders are implemented but I guess that this is dealt with in a sphere of confidentiality.The other publication on the EPO website I wish to mention is titled People, places, procedures and products - A vision for intellectual property examination - 2030, authored by Mr Jay Lucas, USPTO and Mr John Bambridge, EPO. Mr Bambridge is the Director of Epoline and, hence, represents something like a "techie" in the discussion of EPO 2.0.Starting point of this scenario is the fact that new office technologies of today offer planners for future intellectual property offices wide opportunities to improve procedures under which their offices will operate, the places where their employees may reside, the people who may choose to be their employees and the intellectual property products that they offer the public. In the scenario, the authors make a short visit to that world, dropping in on a few members of the intellectual property community of the future and watching them working during a typical day. They intend to offer this glimpse as a spur to the imaginations of our readers, as a starting point for a discussion in a meeting room or friendly pub. I'll give a brief quoting from the second part thereof:"[...] When she first started at the USPTO as a young examiner there had been five buildings on campus, six if you counted Madison East and West as two. Then, one by one, the buildings had closed, as regional offices around the country opened and home offices around them started to flourish. Two, three, eight, twenty regional offices opened, each the sun for a constellation of employees working in their apartments, houses, local conference centers and even street cyber cafés. The Office had truly gone national, thanks to high tech communications. Her husband Girard had even suggested that they move back to Texas, and work from the remote office in that state, but only jokingly. They both enjoyed the Kennedy Center, Wolf Trap, the Smithsonian and the other diversions of the capital city too much. So as Leslie rose in the USPTO management ranks, and as the Office headquarters shrank to just a single building, her hassles grew.OK, this clearly appears to be something like the result of a brainstorming session between U.S. and EP technology-driven innovators who attempt to finalise the very realistic concept of a European Patent Network (EPN) once it would be radicalised and generalised on the basis of the Trilateral co-operation.It should be understood that this scenario does not necessarily represent the views of President of the EPO, of the Administrative Council or of "Board 28". However, the mere fact that the EPO has agreed to publish this on the Official EPO website indicated that top-level executives and members of governing bodies might not feel appalled when confronted with such ideas. And it does not come as a surprise that in view of such prospects, not all EPO staff is full of enthusiasm. It is worth to note that the essay of Mr Lucas and Mr Bambridge does have a chapter titled "inventor" but no corresponding part describing the scenario from the perspective of an applicant or professional representative (patent attorney). Technorati Tags: Patents
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