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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Thursday, November 29, 2007MEPs Again Wanting To Tinker With Patent Law.Mr David Cronin writes for Intellectual Property Watch:"[...] BRUSSELS - Intellectual property rules should be reshaped to ensure that they do not hinder developing countries from gaining access to technology considered vital for addressing climate change, the European Parliament has declared.Read more ...Maybe Mr David Cronin thinks of Document P6_TA(2007)0576 (sorry, at the time being available only in French).Technorati Tags:  Patents
Wednesday, November 28, 2007Croatia Accedes To EPC2000 - Effective January 01, 2008.From the EPO website:"[...] On 31 October 2007, the Government of the Republic of Croatia (HR) deposited its instrument of accession to the European Patent Convention (EPC) and to the Act revising the EPC of 29 November 2000.Read more...Technorati Tags: Patents
CBS Copenhagen: "Licence of Right" in the Context Of The EU Community Patent Proposal. Yesterday I enjoyed the privilege to have been invited to attend to an expert meeting held at Copenhagen Business School (CBS) and hosted by Mr Peter Lotz, Head of the Department of Innovation and Organizational Economics (see photo on the left). The core group of the attendees was made up by some of the members of the project working group entrusted with the preparation of the Background document for the STOA Workshop on Policy Options for the Improvement of the European Patent System held on June 14, 2007, in Brussels. STOA is an official organ of the European Parliament, but its work is carried out in partnership with external experts. These can be research institutes, universities, laboratories, consultancies or individual researchers contracted to help prepare specific projects. The European Parliament defines its position on these issues through reports prepared by its Committees. If Committees decide that it would be helpful to their policy making role to seek out expert, independent assessments of the various scientific or technological options in the policy sectors concerned, then they have STOA at their disposal: the Parliament's own Scientific and Technological Options Assessment unit.The STOA report mentioned above is concerned with the assessment of how the European patent system best fulfils the objective of balancing the exclusive rights granted to inventors with the overall societal concern of maximising technological innovation and distribution of knowledge. The report progresses from the starting position that the European patent system may be operating in certain ways and within certain sectors in a way that improvements can be made.  In yesterday's meeting (which was not in any way formally related to STOA but only sharing participants with the former STOA working group on patents), also representatives from the industry were involved (Mr Jonathan Sage, Governmental Programmes, and Mr Roger Burt, Head of IP EMEA, both of IBM). The meeting had been scheduled in order to launch some sort of a cross-disciplinary evaluation on certain potential issues of future patent politics involving academia, industry, and patent practitioners in the fields of law and economics. In particular, the  "Soft IP" approach launched by IBM earlier this year served as a starting point for the discussion. IBM's proposal is in essence a proposal to re-vitalise the EU Community Patent project in the form of a patent without provisions for injunctive relief but with an intrinsically built-in Licence of Right. Most recent political processes in Brussels were discussed, and the conclusion was that there is a lot of doubt as to the real chances of IBM's undertaking: The EU Commission in fact has decided to launch a re-vitalisation attempt of the EU Community Patent of their own, based on the Common Political Approach dated 3.3.2003, except with an overhauled system of patent litigation. This attempt was recently endorsed by the EU Council, and it does not come as a surprise that any attempts to re-open a debate on substantive law of the EU Community Patent appear to be quite unwelcome there. And, Article 20 (1) of the Draft Regulation of 08. March 2004 (Document 7119/04) does already have an opt-in provision for a Licence of Right. In view of these developments the core of the IBM proposal can be seen, as Mr Lotz put it, as the transfer of the exclusive right into a remuneration right, and that the core issue to be investigated accordingly is whether this makes sense for any patent applicants. Or, framed in terms of society, can an Licence of Right scheme improve the functioning of the markets for technology? This question does not have simple answers. It is planned to do further work, resulting in one or more publications. So, stay tuned. Technorati Tags: Patents
Monday, November 26, 2007Norway Accedes to the EPC2000 - Effective January 01, 2008."[...] On 5 October 2007, the Government of the Kingdom of Norway (NO) deposited the instrument of notification of the European Patent Convention (EPC) and the instrument of accession to the Act revising the EPC of 29 November 2000.Read more ....See also my earlier posting here.It should be mentioned that European patent applications filed on or after January 01, 2008, will include the designation of the new contracting state. However, it will not be possible to designate Norway retroactively in applications filed before that date. Technorati Tags: Patents
Saturday, November 24, 2007Portugal About To Leave EPC By December 13, 2007?TheEPO website on EPC2000 ratification status has been updated.
"The parliament has adopted the Act revising the EPC. It can be expected that the instrument of ratification will be deposited on time."But what about Portugal? The EPO is silent on that issue. Have they been too busy with their half-year term of EU Presidency?See also my earlier posting here.In case anyone of the readers of this blog should have an idea what is going on in Portugal so far I would be happy to receive a comment entry or a personal e-mail to horns -at- ipjur.com. Technorati Tags: Patents
Thursday, November 22, 2007Today in the EU Council: Communication from the EU Commission - "Enhancing The Patent System In Europe"From theRAPID database:"[...] The European Commission has set out its vision, in the form of a Communication, for improving the patent system in Europe and for revitalising the debate on this issue. (IP/07/463). Making the Community patent a reality and improving the existing patent litigation system should, together with supporting measures, make the patent system more accessible and bring cost savings for all. The paper highlights that Europe's current patent system is considerably more expensive than the US and Japanese systems. A Community patent would be far more attractive than models under the present system which is a bundle of national patents. A European patent designating 13 countries is 11 times more expensive than a US patent and 13 times more expensive then a Japanese patent. The existing system of patent litigation in the EU, with the risk of multiple patent litigation in several countries on the same patent issue, leads to unnecessary costs for all the parties involved and causes lack of legal certainty.See also Document 15122/07 exhibiting the formal agenda of the EU Council's 2832nd meeting in the "Competitiveness" configuration.See also my earlier posting here.[UPDATE 2007-11-22] See also a summary in Mr Joff Wild's IAM Blog.Technorati Tags: Patents
Tuesday, November 20, 2007EU Commission On Telecommunication And The Patent System.Fresh from the RAPID database of the EU Commission:"[...] A new standardisation strategy will aim to help the results of R&D to find their way to markets and to boost take up of energy saving technologies. Building on theRead more ..."[...] What are the most important measures proposed?Read more ...Technorati Tags: Patents
Mr Larry Lessig On Common Sense.Normally this Blog is focusing on patent and trade mark law, thereby systematically neglecting copyright law, but today I'll make an exception. I just stumbled overa video clip of some presentation given by Mr. Larry Lessig titled: How creativity is being strangled by the law. As announced on the TED website, he pins down the key shortcomings of some dusty, pre-digital intellectual property laws in the field of copyright, and reveals how bad laws beget bad code.Mr Larry Lessig is currently professor of law at Stanford Law School and founder of its Center for Internet and Society. He is best known as a proponent of reduced legal restrictions on copyright, trademark and radio frequency spectrum, particularly in technology applications.What Mr Lessig is demanding in view of a clash of modern technology with "dusty, pre-digital intellectual property laws" is common sense. Perhaps even in the field of patent law it might be worth to think about common sense and what it might mean with regard to patentability of computer-implemented inventions or collaborative concepts in frameworks like Open Innovation.Technorati Tags: Patents
EU Presidency: EU Patent Jurisdictional System And Community Patent Should Form A Package.The EU council has publishedDocument 15162/07 originating from the Portuguese EU Presidency and addressed to the EU Council (Competitiveness) the purpose of which is to inform the Competitiveness Council of the progress achieved so far in discussions on the single patent litigation system as a basis for an initial exchange of views at Council level:
"[...] Once further consensus has been reached on the jurisdictional system, solutions for the Community patent will be explored since a number of Member States consider that the jurisdictional system and the Community patent should form a package. [...]"This fully supports an important aspect of Mr Gaster's recent presentation. However, currently only a number of Member States, i.e. not all of the EU Member States, are prepared to follow. Hence, it might well be that the project of establishing a Community Patent might fail because of some EU Member States prefer to content oneself with some sort of a European jurisdictional system only. Anyway, the EU Council (Competitiveness) now is invited to take note of this progress report at its forthcoming session on 22-23 November 2007 and to instruct its preparatory bodies to:
here.Technorati Tags: Patents
Thursday, November 15, 20072007 EPO Online Services Annual Conference Closed.Yesterday, theEPO Online Services Annual Conference held in Como, Italy, closed. The motto of the event was "End-to-end electronic processing - how to survive when the EPO no longer accepts paper". As of now, I do not see any report on results of the conference posted on the EPO website.But well-known IPKat Blog brings an interesting report by Ms Barbara Cookson (Filemot). In short, EPO did not issue any spectacular announcements. In particular, the President of EPO, Ms Brimelow, did not announce a particular deadline for the end of doing paper-based business with the Office (as some had expected she would do). Ms Cookson reports that within perhaps 3-5 years, but only when it is ready - as EPO President, Alison Brimelow, was careful to point out - end-to-end electronic processing will be the only option, and change we must. Obviously some more internal problems will have to be sorted out before such step can happen.See also my earlier posting concerning that matter.[UPDATE 2007-11-28] See also this posting on the EPO website:"[...] EPO President Alison Brimelow has assured applicants that the European Patent Office will only stop accepting paper applications once both industry and the Office are "ready".Technorati Tags: Patents
Wednesday, November 14, 2007Will The EU Community Patent Get A Final Chance?I'm a bit late to report on a very interesting presentation ofDr. Jens Gaster of GD Internal Market, EU Commission, Brussels, which has been hosted by the Bavarian chapter of Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht (GRUR) on November 05, 2007, in the premises of the German Patent and Trade Mark Office in Munich. The presentation was given in German under the title "Erste Schritte auf dem Weg zu einer umfassenden Reform des Patentsystems in Europa" which means something like "First steps towards a comprehensive reform of the patent system in Europe".In his presentation, Mr Gaster gave a review of the various attempts made towards a major reform of the EU patent system:
In Mr Gaster's view, the Common political approach dated March 03, 2003 which then later failed spectacularly on the meeting of the EU Council on May 18, 2004, suffered from two major drawbacks:
views that the EPLA as a stand-alone treaty without involvement of the European Community would violate EU law and, hence, is to be treated as a non-starter. However, in the EU Council there appears to emerge some kind of rough political consensus in favour of a new approach which is in fact a blend of the old Commission proposal and the EPLA with much less centralisation in the first instance of infringement litigation proceedings. And, in the light of the newest EU Treaty of Lisbon, majority decisions in this field of law should be possible after ratification thereof. This rough consensus might mature into a full political majority if the French EU Presidency manages to overcome some problems concerning issues like language of proceedings etc. pp.In short, Mr. Gaster believes that the problem of building effective political majorities for a EU-wide patent litigation system can be solved with good luck during the French EU Presidency in 2008. And the EU Community Patent? Nobody seems to believe in realistic chances for this project nowadays, I would be inclined to think. Not so Mr. Gaster. If the problem of a patent court system can be solved, then the EU Community Patent would only be blocked by the obstacle of the question of the language regime. But the auditory of Mr Gaster's presentation might have got the impression that Mr Gaster really thinks it might happen this hurdle be overcome in 2008 because of one might, under the given circumstances, think that the major troublemaker of 2004, the Spanish Government, will be not so lucky next year. Sadly, even under the Lisbon Treaty there is no room for majority decisions in language matters but if the French would press the EU Council in the language question towards a regime where translations of patent claims beyond the three EPC Official languages are for information purposes and legally non-binding, the Spanish might find themselves politically isolated - if they try to block a consensus at all. Hence, if the French Government is very, very lucky in 2008, we might - around Christmas next year - have a far-reaching political consensus or at least some kind of effective political majority not only on a European patent litigation system but also on the foundations of a full EU Community Patent. Or, otherwise, we will by then have lost just another illusion of EU unity. In this context there might even be room for strange theories. One of the readers of this blog wrote in a commentary to my report on the ratification of the London Agreement by France that rumours from within the EPO say that France is going to defer the deposit of the Instrument of Ratification with the German Government. These rumours further say that the delay shall be up to the time when France takes over EU Presidency. And, he detected that news called "London Agreement to enter into force in first half of 2008" under the former link http://www.epo.org/focus/news/2007/20070911.html were removed from news archive of the EPO. He contacted the EPO. They confirmed the removal of the news without further commenting. It should be stressed that such things are rumours, nothing else. But - such rumours fit well into the overall picture of dramatic negotiations to be staged by the French EU Presidency as painted by Mr Gaster in the course of which France might be tempted to utilise the Instrument of Ratification as a dead pledge in the hand of Mr Sarkozy.In the Q&A session after the presentation I asked Mr Gaster for a comment on IBM's proposal to turn the EU Community Patent - within the framework of IBM's recent Soft IP approach - into a new kind of a patent without statutory provisions for injunction relief. Mr. Gaster was fully aware of this approach, argued that IBM had changed their business model recently, but made absolutely clear that in his opinion the EU Commission will not endorse any re-opening of whatsoever discussion on aspects of substantive patent law in order not to put at risk the overall aim of creating a full EU Community Patent. And, finally I asked Mr. Gaster for a comment on the role of patent attorneys before the bodies of the anticipated new European Court system. He had said something to the effect that the EU Commission would follow a political line of protection of acquired possessions for all stakeholders involved, and when I pointed out that squeezing out patent attorneys from revocation proceedings might not be seen as a model of protection of acquired possessions he said something in the direction that in this regard there might be room for political negotiations provided that such issues are put forward adequately. Technorati Tags: Patents
Tuesday, November 13, 2007U.S.: Software Patent Abolition Campaign To Be Launched Soon.Concerning the political debate on patents on computer-implemented inventions (aka "software patents") there had been some period of relative calmness since the failure of the EU Draft Directive on the patentability of computer-implemented inventions in 2005.This might change soon:"[...] What could make the Free Software Foundation (FSF), proprietary software companies, and at least one venture capitalist into allies? The End Software Patents (ESP) coalition, a new organization poised to swing into action next month under the leadership of Ben Klemens.It is reported that according to ESP organizers, there has never been a better time to challenge software patents directly in the United States: "[...] The current state of software patents came into existence in early 1990s in In re Alappat, in which a lower court ruled that, if an algorithm 'includes a physical step of any sort, then that is as physical a process as any machine or chemical,' Klemens says. This was a reversal of the legal assumption that had prevailed until then that a computer algorithm was as distinct from the physical action that produced it as a musician's song is from the process of recording it.It currently appears as if the ESP coalition does not even have launched something like an ESP website but the public echo throughout the Internet is significant.Obiously the ESP coalition is looking for examples of innovative and profitable software companies that have been successful without any patent activity of any sort. While they admit that this success doesn't necessarily correlate with a desire to abolish software patents, they want to better understand real life examples of successful companies that don't care about software patents.I could offer them a list of four successful UK companies explicitly seeking patents on computer-implemented inventions but, of course, that surely is not what those ESP folk would like to have.(Original link thanks to Innovationpartners.)Technorati Tags: Patents
Another EU Memo: "Enhancing the patent system in Europe"The Portuguese EU Presidency has issuedDocument 14912/07 addressed to the Permanent Representatives Committee (COREPER Part 1) and titled "Enhancing the patent system in Europe".In this paper, on the basis of the Working Party discussions, the Presidency considers that considerable progress has been achieved in producing a right basis for further work with respect to the features of a jurisdiction for European and future Community patents: "[...] 5. The essence of the progress achieved to date is reflected inOn the basis of such findings, COREPER is therefore invited by the Portuguese EU Presidency to take note of this progress report and agree that this be submitted to the Council for information, and to call upon the Council to instruct the Working Party:
Technorati Tags: Patents
Wednesday, November 07, 2007Status of EPC2000 Ratification.According to indications as given on theEPO website, the EPO has got (inofficial) information saying that deposit of Instrument of Ratification took place on:
here.Technorati Tags: Patents
Monday, November 05, 2007Still Another Paper Of EU Presidency On Proposed EU Patent Jurisdiction.The Portuguese EU Presidency has created anotherDocument 14492/07 titled Towards an EU Patent Jurisdiction - Points for discussion addresses to the Working Party on Intellectual Property (Patents). The present working document 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 April 03, 2007, and previous work carried out by MS 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 months of September and October 2007.Under the proposal as on file now, the EU Community would establish a specific training framework for patent judges and create a pool of experienced judges that could reinforce local and regional divisions:
And, a another (second) pool of technical experts would be created at Community level. Such experts would provide the judges and the parties with expertise in all fields of technology. According to the recent proposal, the list of the experts concerned should be established by the advisory committee. The pool of technical experts appears to be crafted as a tool for avoiding further discussions on any rights of patent attorneys to represent their Clients before the EU patent jurisdiction as now proposed by the Portuguese EU Presidency. Those who do not want to see patent attorneys acting before this sort of court will be able to argue that their specific technical qualification is superfluous because of all required technical expertise can be drawn from the pool of technical experts filtered by those most experienced patent judges or patent lawyers. Under worst-case assumptions this will mean that in future even patent attorneys entitled to participate in national infringement proceedings (e.g. in Germany) will most likely get deprived of this privilege on EU level. However, if the basic principle of protection of acquired possession is taken seriously by the EU Commission and by the EU Council, a window of opportunity for an amicable solution of this problem should be open at least with regard to revocation proceedings: According to the proposal, the central division of the anticipated new European court system should in particular be hearing direct actions concerning the revocation of patents. There appears to be no stringent reason why patent attorneys entitled to represent their clients in national patent revocation proceedings should be excluded from doing so in the same sort of proceedings before the central division. See also my earlier posting here.Technorati Tags: Patents
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