BLOG@IPJUR.COM

Mr Gene Quinn (LinkedIn) from ipwatchdog.com has collceted on his Blog a shortlist of known IP Patent Blogs, and I'm pleased to see that IP::JUR is included. If you mind you can have a closer look and participate in a survey which only allows you to pick one top blog but which does give you the option to list all of the blogs you read regularly. The survey can be accessed here. It will be open until end of June 2009.

Last fall I had reported that after a substantial amount of preparatory work undertaken by German Ministry of Justice ("Bundesjustizministerium") under Ms Brigitte Zypries, the German Government ("Bundeskabinett") had finalised a Draft Bill for Unification and Modernisation of Patent Law ("Entwurf eines Gesetzes zur Vereinfachung und Modernisierung des Patentrechtes"; in German only).

Highligts were:

• To reduce the current huge backlog of pending nullification appeal cases ("Nichtigkeitsberufungen"), the German Federal Supreme Court is set to be changed from an instance fully revising factual and legal points to an instance competent substantially only for legal points. Hence, in future there will be only a single instance where facts and evidence can be presented, the Federal Patents Court ("Bundespatentgericht"). The court system will simply be cut back by eliminating the option of presenting fresh facts and evidence during appeal in patent nullification cases;
• Improvements concerning the legal basis for implementation of electronic workflows in throughout the German Patent and Trade Mark Office, the Federal Patents Court as well as the Federal Supreme Court;
• Cancellation of a current provision of German Patent Act according to which any person who has brought an infringement action may bring a further action against the defendant on account of the same or a similar act on the basis of another patent only if, through no fault of his own, he was not in a position to assert that patent also in the earlier suit.
• Broadening of the Opposition procedure in German Trade Mark Law; also non-registered elder rights shall be eligible as a basis for a Notice of Opposition;
• Reform of the German Act on Employees' inventions ("Arbeitnehmererfindungsgesetz") by introducing a legal fiction to the effect that claiming by the employer of an invention made by an employee is assumed per default.

Today I have seen a press release from German Government announcing that this Bill was approved by Parliament just today. Entry into force will depend on how fast the Bill will get the signature of the Bundespräsident (President of the Federal Republic of Germany) in order to be ready for advertising in the Bundesgesetzblatt (Official Federal Law Gazette).

Below find links to some more related materials (in German only, sorry):

• Protocol of the debate in the German Bundestag on January 22, 2009;
• Statement of the Upper Chamber (Bundesrat) of the German Parliament;
• Counter-Statement of the German Government in response to the statement of the Upper Chamber (Bundesrat) of the German Parliament
• Report an Vote of the Legal Commission of the German Parliament ('Rechtsausschuss')

On May 28 and 29, 2009, a EU Council meeting (2945^th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research)) will take place in Brussels. It will be chaired by Mr Vladimír Tošovský, Minister of Industry and Trade, and Ms Miroslava Kopicová, Minister of Education, Youth and Sports, of the Czech Republic currently representing EU Presidency. The afternoon session on May 28, 2009, will be devoted to the examination of the project for creating a Community Patent and a Unified Patent Litigation System (UPLS).

Mr Michael Geist recently reported that World Trade Online has run an article on the current state of the secretive ACTA negotiations, setting out a number of interesting items:

1. The scope of ACTA coverage: The Europeans would like to extend ACTA to patents. Canadian officials are known to want to limit it to copyright and trademark.
2. Anti-camcording provisions: The Europeans are not supportive of a specific anti-camcording provisions. The U.S. obviously is and pressured Canada to enact such a provision in 2007.
3. Dispute Resolution options: The Europeans prefer a "peer review" approach to review compliance. Other countries are known to support a judicial process complete with penalties for non-compliance.
4. Internet-related provisions: The Europeans are not prepared to go beyond existing EU law of any Internet provisions. This potential makes the European Parliament's support to block a three strikes system important.

The source of such information is said to be Mr Pedro Velasco Martins, Administrator at the European Commission.

I do not quite understand why EU appears to be eager to include patents into ACTA: On April 25, 2007 the European Parliament (EP) had passed a legislative resolution on an amended Commission proposal for the IPRED2 Directive (see Documents 10329/06, 10967/06, 10967/06 COR 1, 10967/06 COR 2, 11856/06, 13103/06) aiming, on a purely European level, at the same objectives as ACTA, and adopted it, subject to a large number of amendments; see Document 8732/07 and Document 10714/07. The amendments refer, inter alia, to the Recital stating that the scope of the Directive shall be restricted to the infringement of intellectual property rights harmonised in Community legislation, i.e. excluding patent rights, utility models and plant variety rights. Is here someone trying to cheat by re-introducing problematic patent matters into international enforcement provisions after such inclusion on EU level had failed?

The matter of internet-related enforcement should be monitored carefully; there are numerous stakeholders out there readily prepared to allow choking of the Internet as we know it today provided that some particular interest are satisfied (mandatory internet filtering, HADOPI-like provisions, and all that).

Elections to the European Parliament will be held in the 27 Member States of the European Union (EU) between June 04 and 07, 2009. According to Wikipedia, 736 Members of the European Parliament (MEPs) will be elected by proportional representation to represent some 500,000,000 Europeans, making these the biggest trans-national elections in history.

What consequences will these elections most probably have for European politics in the field of Intellectual Property?

On a first short-term level, almost none. The pending big projects of implementing a EU Community Patent as well as a Unified Patent Litigation System apparently are not subject of the election campaigns of the established parties in the European Parliament. New approaches to tackle sectoral harmonisation issues like the patentability of computer-implemented inventions (aka 'software patents') are by far not in sight.

However, it might be that on the long run the next European Parliament perhaps could mark a tide change in IP politics. Let me explain that.

The European Patent Office recently has published a special edition 1/2009 of the EPO Official Journal (PDF, 6.2 MB, 321 pages) covering the 14^th European Patent Judges' Symposium held in Bordeaux from September 16 to 20, 2008.

In his introduction, Mr Messerli, Vice-President EPO Directorate-General 3 and Chairman of the Enlarged Board of Appeal explicitly mentioned the problem of the Court status of the Boards of Appeal of the EPO:

"[...] The second issue I would like to mention is the project on the organisational autonomy of the boards of appeal with which most of you are already acquainted. The boards of appeal perform a judicial activity. However, their judicial character is obscured by the fact that they are part of the European Patent Office – its Directorate-General 3 – i.e. of the body whose decisions they are called to review. This situation has led to some criticism from certain quarters, including parties to appeal proceedings, alleging a lack of independence on the part of the boards. Therefore, and to make the independence of the boards of appeal unequivocally clear, our proposal is to separate the boards and their support services – today's Directorate-General 3 – from the European Patent Office, and to establish them as the third organ – the Judiciary – of the European Patent Organisation, functioning side by side with the Administrative Council, which could be compared to the legislative power, and the European Patent Office, which is comparable to the executive branch.

Although it is important to make the boards' independence clearly visible, the project does not entail huge changes; in particular, the competences the boards have today would not be changed and nothing new would be added. I say that because the concern is sometimes voiced that this project might be at odds with the efforts to create a European patent litigation system. I do not think these concerns are justified: on the one hand, and as I have said, the competence of the boards to hear appeals at the patent-grant stage remains the same. On the other hand, a new European patent litigation system would create courts at the European level which would take over the tasks the national courts of the states participating in such a system have today, namely infringement and invalidation. These different competences already exist today and, therefore, legally nothing would be changed by giving the boards of appeal organisational autonomy.

The detailed project on the organisational autonomy of the boards of appeal was presented to the Administrative Council of the EPO back in 2004. The Council found that the proposal was ready to be put on the agenda of a diplomatic conference, which is needed because the implementation of organisational autonomy requires an amendment of the European Patent Convention.

Unfortunately, no such diplomatic conference is likely to take place in the immediate future. So, we will have to wait and in the meantime, we use – as I do now – any opportunities arising to draw attention to the importance of this project, and welcome, of course, any support we may get in this matter. [...]"

So far the words of Mr Messerli. However, a very difficult problem might arise in view of the seat of any new and independent organisation supporting the Boards of Appeal: Due to usual political customs it appears not to be likely that Germany would be selected as host country for independent Boards of Appeal. Instead, the many new EPC Member States from East Europe might well stand up and demand that the new organisation be seated in one of their countries. What about the Boards of Appeal e.g. to be re-located to Warzaw, Poland, or Budapest, Hungary? Or, why not, to Ankara or Istanbul? Most probably many of the current Members of the various Boards of Appeal will balk even when merely mooting to move to one of the new EPC Member States or to Turkey.

Please note that the Symposium was held before Ms Brimelow referred those four questions to the Enlarged Board of Appeal; nothing related thereto can be found in the OJ special issue. [UPDATE 2009-05-22: See discussion in the Comments section below of Robin Jacob mentioning the referrals.] However, a lot of interesting stuff is included:

With Document 9549/09, on May 08, 2009, the Czech EU Presidency has addressed the EU Permanent Representatives Committee COREPER (Part 1) concerning the preparation of the EU Competitiveness Council of May 28 - 29, 2009 with regard to the project titled Enhancing the patent system in Europe concerning:

• Proposal for a Regulation of the Council on the Community patent, and
• Draft Agreement creating a Unified Patent Litigation System.

At its meeting on December 01, 2008, the EU Competitiveness Council had taken note of a progress report prepared by the French Presidency (Document 16006/08) and instructed the Working Party to continue work on the patent litigation system and the Community patent with a view to finding solutions and reaching agreement in both areas as soon as possible. In line with this Council mandate, the Czech Presidency has convened six Working Party meetings so far, with about equal time having been devoted to the unified patent litigation system and the Community patent.