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Tomorrow will be the very last day in Office for Ms Alison Brimelow, President EPO. As Wikipedia knows, Alison Jane Brimelow CBE is a British civil servant and former Chief Executive and Comptroller General of the UK Patent Office, now known as the Intellectual Property Office. She is the fifth and current President of the European Patent Office, a position she holds since July 01, 2007. Born in 1949 in Havana, Cuba, she is one of the two daughters of Sir Thomas Brimelow, a British diplomat, who was Permanent Under-Secretary in the British Foreign Office in 1973-75 and Member of the European Parliament in 1977-78, and Jean Cull. She holds a degree from the University of East Anglia.

On June 25, 2010, the UK-based magazine Managing IP has honoured her with the Outstanding achievement award for her work in intellectual property during her career at the UK Patent Office and at the helm of the EPO.

Today, the Supreme Court of the United States (SCOTUS) has issued the long-awaited decision in the case 08-964 Bilski et.al. v. Kappos. The headnote goes as follows:

"Petitioners’ patent application seeks protection for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes. The key claims are claim 1, which describes a series of steps instructing how to hedge risk, and claim 4, which places the claim 1 concept into a simple mathematical formula. The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand. The patent examiner rejected the application on the grounds that the invention is not implemented on a specific apparatus, merely manipulates an abstract idea, and solves a purely mathematical problem. The Board of Patent Appeals and Interferences agreed and affirmed. The Federal Circuit, in turn, affirmed. The en banc court rejected its prior test for determining whether a claimed invention was a patentable 'process' under Patent Act, 35 U. S. C. §101 — i.e., whether the invention produced a 'useful, concrete, and tangible result', see, e.g., State Street Bank & Trust Co v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373 — holding instead that a claimed process is patent eligible if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. Concluding that this 'machine-or-transformation test' is the sole test for determining patent eligibility of a 'process' under §101, the court applied the test and held that the application was not patent eligible.

Held: The judgment is affirmed.

All members of the Court agreed that the patent application at issue falls outside of USC §101 and, in consequence, a patent could not be granted, because it claims an abstract idea. However, despite the fact that the Bilski patent has not been granted it looks as if the U.S. Supreme Court did not kill patents on business methods entirely. The same holds for patents on computer-implemented inventions.

In November 2007, Dr. Jens Gaster, GD Internal Market, EU Commission, Brussels, had given a presentation which was then hosted by the Bavarian chapter of Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht (GRUR) on the premises of the German Patent and Trade Mark Office in Munich; see my report here. The presentation had been 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". 

Now, labeling of that project has changed, we talk about the EU Patent and, corresponding thereto, the European and Community Patents Court (PC).

After some political progress had been reached on the session of the EU Council on March 28 and 29, 2009 (2945^th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research)), an important breakthrough was obtained on December 04, 2009.

At the beginning of the year 2010, the fate of both ambitious projects appeared to be substantially dependent from two external developments:

• The languages issue had been factored out of the texts agreed upon on December 2009. A political compromise still need to be obtained.
• The EU Council had taken a decision to allow for a re-examination by the European Court of Justice (now Court of the European Union) of the compatibility of the drafted agreement on a single court system for solving patent disputes with EU law.

There appears to be no visible progress with regard to the languages issue since end of 2009. With regard to the referral to the Court, significant news came after the hearing held on May 28, 2010 - see my reports here and there.

However, during the IPBC held in Munich earlier this week, Ms Margot Fröhlinger, Director of Knowledge-Based Economy inside the DG Internal Market of the European Commission, said that both the EU patent and the unified patent litigation system in Europe are "not in the best shape"; see the report in the VisaePatentes Blog. Mr Joff Wild in the IAM Blog went one step further and wrote that the EU patent is dead in the water.

In this situation, Mr Gaster today traveled to Munich and, again organised by GRUR on the premises of the German Patent and Trade Mark Office, gave a lecture on the state of the affairs concerning the EU patent reform.

Politicians love to preach on 'innovation'. Europe shall become the most innovative region on earth, and, of course, Germany requests to have a full share of the fruits of her orientation towards technological progress.

The lower chamber of the German Parliament, the Bundestag, is a distingushed body centrally situated within the landscape of German political culture, representing more than 60 years of successful post-nazidom democracy.

But if innovation meets Bundestag, strange things may happen. A couple of days ago, Mr Jimmy Schulz, a MP from the parliamentary group of the Liberal Democrats, was due to deliver a speech. Instead of traditionally preparing a paper printout of his presentation and reading aloud therefrom, he thought it might be useful to be innovative and use some of the new electronic gadgets available in our days instead.

In my previous posting I had reported and commented on certain lobbying efforts of (newspaper) publishing companies. Those entities were used to run on a long-established business model which apparently is doomed to fail in the age of the Internet. But the publishing companies in question won't let their business model die without further fighting, and they are cudgeling hard to push the state into politics offering help by creating a new type of auxiliary copyright bespoken to the suppositious needs of this branch of businesses.

The reason offered as justification for such doing - which of course would degrade the prospects of other entities running different and conflicting business models - is that traditional press media are essential to the functioning of a parliamentary democracy. Others, however, doubt that the role of traditional print media is that singular to justify the creation of additional IP rights.

There are different business models which did not exist since long but the proponents of which are lobbying to push the politicians and public to accept them as legitimate forms of doing business. In this context, I think of so-called Non-Practicing Entities (NPEs), companies monetising patents by issuing licenses but not providing any other goods or services. Others strongly prefer to name such entities Patent Trolls, and it becomes clear that there is a big dispute on the legitimacy of their business model.

It is a well-known fact that in particular numerous newspaper publishing companies are currently suffering from an increasing downturn of their classic paper-based business model.Their long-established but obviously now depreciated business model had been centered around the exploitation of the relative scarcity of news contents. Paying buyers of paper copies who can also be fed with advertising material were attracted, creating a handsome stream of revenues both from buyers of paper copies as well as from advertisers. Now the Internet has gained dominance, creating an abundance of free news contents and, in addition, offering vast chances for effective and cheap on-line advertising. Hence, print runs as well as total turnover generated by advertising are declining, and publishers find it very hard to maintain revenue streams essentially needed for their survival. Maintaining a publishing company on the basis of advertising revenues of a free website alone also appears to be difficult.

In this situation, instead of realising that their business model is - at least on the long run - as dead as mud and going back to the drawing board in order to invent innovative new ones, German publishing companies started fighting for the status quo ante. Their first targets were news aggregators like Google News, arguing that they ought to pay to the publishers because of their business relies on publisher's contents, but the publishers soon had to recognise that they can't win their fight by means of copyright law as it stands now. According to established case law, deep linking is generally allowed in Germany unless particular circumstance of the individual case let such doing appear unfair. And, of course, publishing companies are not only free to decide on whether or not they will operate a website with free contents but they also have the power to install a paywall restricting access to paying customers. And, finally, news aggegators will respect the robots.txt crawler exclusion convention, and there would be no technical difficulty to prevent say, Google News, from indexing their contents. Hence, if publishers don't like their on-line products to be indexed by aggregators, remedies are easily available. However, simply abandoning to be included in the indexes of the aggregators taken alone does not generate any additional revenue streams.

What can publishing companies do in such situation?

Ms Neelie Kroes, European Commission Vice-President for the Digital Agenda

On June 10, 2010, Ms Neelie Kroes, European Commission Vice-President for the Digital Agenda, gave an address at the Open Forum Europe 2010 Summit on 'Openness at the heart of the EU Digital Agenda' in Brussels.

Exactly two years ago, Ms Kroes already had given another speech on interoperability. Key points were:

• Interoperability boosts competition and we need more of that.
• For devices or applications to be interoperable - to work together - all concerned parties must agree to a common way of "doing things".
• Formal standards are one way to get there.
• More transparency in formal standard-setting can lead to more efficient outcomes.
• Public and private procurers of technology should be smart and build their systems as much as possible on standards that everybody can use and implement without constraints: this is good for the bottom-line because it promotes competition between suppliers and prevents vendor lock-in.

Ms Kroes also has been in charge for the Final Report On Competition Inquiry into the Pharmaceutical Sector. Maybe some individuals might think that se might be a bit biased against the patent system.

In her recent speech, Ms Kroes stressed that she sees herself as a big fan of open standards. She said she believe in openness, and she believes in practising what one preaches. According to Ms Kroes,