EP

Today, the European Patent Office (EPO) has made available (@EPOorg on Twitter) a second edition of An overview of the national patent litigation systems in Europe available for download on-line. The text provides an overview of the national patent litigation systems across the European Patent Organisation's 38 Contracting States and presents an at-a-glance description of the different national revocation, nullity and infringement procedures currently in place. The competent courts dealing with these matters at first instance and appeal are also depicted.

In principle this publication should be warmly greeted as the EPO is well known for providing high quality contents on its website.

However, what has irritated me in this case is that they don't simply offer a download link as usual but lead me to a form (see screenshot picture above) where I am requested to fill in a number of mandatory fields before going on with the download:

• First name
• Surname
• Job title
• Organisation/Company
• City
• Country
• e-mail address

What if a member of the general public is interested in this matter without being affiliated with an organisation or a company? Is EPO about to refuse to give away such papers to interested private individuals? Well, and there are "Terms of Use":

"Patent Litigation in Europe has been prepared by the European Patent Office (EPO). Although the study has been prepared with great care, it cannot be guaranteed that the information therein is always accurate and up to date. The information is not meant to be a comprehensive study, nor to provide legal advice.

The Patent Litigation in Europe study and any of its parts may be modified or translated on condition that the EPO is credited as the provider of the original, and that it is clearly stated that changes have been made to the original material, that the modified or translated version has not been authorised by the EPO, and that the EPO shall not be responsible for the correctness of any such modified or translated version. Any other reference to the EPO, and in particular its official logo, shall be removed from any such version.

This document may be used and reproduced for non-commercial purposes, provided that appropriate acknowledgement is given to the EPO. Reproduction for commercial purposes is subject to the prior written approval of the EPO."

Let us repeat: "This document may be used [...] for non-commercial purposes [...]". Well, does that mean that e.g. patent attorneys are not allowed to use that paper because of their dealings are inherently of some commercial nature? Maybe that someone at EPO might wish to learn something about CC licensing instead.

So: Why on earth do EPO dare to make download of this paper dependent on prior filling in lots of personal data into download form? Does EPO staff now think that the institution is entitled to act like any commercial company offering "white paper" in exchange for personal data?

[UPDATE 2011-02-01 16:50] Obviously one hand at the EPO does not know what the other is doing. Thanks to @Topalovi I now know that the paper is also directly accessible via the EPO search engine.

EPO Financing Trends (Source: Document CA/33/10)

On the website of the EPO Staff Union (SUEPO) a number of relevant Documents from the Administrative Council of the European Patent Organisation (EPOrg) running the European Patent Office have appeared:

• Document CA/39/10 dated 2010-02-23: Fee Reform and Sustainable Financing - Document 1: "Support for evidence based policy"
• Document CA/33/10 dated 2010-05-20: Fee Reform and Sustainable Financing - Document 2: "Cost-coverage, yes, but not everywhere"
• Document CA/36/10 dated 2010-05-20: Fee Reform and Sustainable Financing - Document 4: 'Continue enhancing certainty in the patenting process'
• Document CA/38/10 dated 2010-02-26: Fee Reform and Sustainable Financing - Document 6: 'Predictability of national renewal fee policies'
• Document CA/82/10 dated 2010-05-18: Fee Reform and Sustainable Financing - Timetable
• Document CA/91/10 dated 2010-06-09: Summary of the Study on the Economic Dimensions of the Fee Structure in the European Patent System

As already indicated in my earlier posting, in September and October 2009 three regional workshops on Fee Reform and Sustainable Financing took place between the European Patent Office (EPO) and the EPC Member States. Representatives of 27 Member States attended the regional workshops. The EPO organised an additional fourth workshop in Munich with representatives of epi, FICPI, Business Europe, EU Commission DG Market and WIPO.

At the 117^thmeeting the Administrative Council in March 2009, the European Patent Office (EPO) had launched a debate on sustainable financing and fee reform. This debate emerged from the process of Strategic Renewal launched jointly in May 2007 by both the current and previous Presidents of the EPO.

In this context, Document CA/100/09 of the Administrative Council (AC) of the European Patent Organisation (EPOrg) running the European Patent Office (EPO) outlines a roadmap developed by the EPO following a debate in the session of the AC in March 2009 on sustainable financing and fee reform.

The roadmap to support the strategy on sustainable financing and fee reform is divided into three time lines. Short term are those actions that can be expected to be delivered in the 2009/2010 time period. Medium term are those actions that can be expected to be delivered in the 2011/2012 time period. Long term are those actions that can be expected to be delivered from 2013 onwards.

Google, Inc.

"The U.S. Patent and Trademark Office Wednesday announced it has reached a two-year 'no-cost' agreement with Google to make patent and trademark data electronically available for free to the public in bulk form.

Saying it currently lacks the technical capacity to offer such a service itself, the PTO said the two-year agreement with Google is a temporary solution while the agency seeks a contractor to build the PTO its own database that would allow the public to access such data in electronic machine-readable bulk form.

PTO Director David Kappos said in a statement that the move is part of its efforts to comply with President Obama's Open Government initiative by 'making valuable public patent and trademark information more widely available in a bulk form so companies and researchers can download it for analysis and research.' [...] Up until now, the PTO only provided such data in bulk form for a fee."

And what are the provisions currently set by EPO?

Aside from weekly publication data, bulk data are accessible only for a fee.

Perhaps EPO might wish to contact Google, Inc.

See also my earlier posting here.

As reported earlier on this Blog, under the date of October 22, 2008, the President of the European Patent Office (EPO), Ms Alison Brimelow, had referred a set of basic questions to the Enlarged Board of Appeal concerning the patentability of computer-implemented inventions (Case G 03/08).

Just today the Enlarged Board of Appeal of the European Patent Office has published an Opinion concerning this referral. The conclusion is that the referral of 22 October 2008 of points of law to the Enlarged Board of Appeal by the President of the EPO is inadmissible under Article 112(1)(b) EPC. The headnotes given by the EBoA are as follows:

1. In exercising his or her right of referral a President of the EPO is entitled to make full use of the discretion granted by Article 112 (1) (b) EPC, even if his or her appreciation of the need for a referral has changed after a relatively short time.
2. Different decisions by a single Technical Board of Appeal in differing compositions may be the basis of an admissible referral by the President of the EPO of a point of law to the Enlarged Board of Appeal pursuant to Article 112 (1) (b) EPC.
3. As the wording of Article 112 (1) (b) EPC is not clear with respect to the meaning of “different/abweichende/ divergent” decisions the provision has to be interpreted in the light of its object and purpose according to Article 31 of the Vienna Convention on the Law of Treaties (VCLT). The purpose of the referral right under 112 (1) (b) EPC is to establish uniformity of law within the European patent system. Having regard to this purpose of the presidential right to refer legal questions to the Enlarged Board of Appeal the notion “different decisions” has to be understood restrictively in the sense of “conflicting decisions”.
4. The notion of legal development is an additional factor which must be carefully considered when interpreting the notion of “different decision” in Article 112 (1) (b) EPC. Development of the law is an essential aspect of its application, whatever method of interpretation is applied, and is therefore inherent in all judicial activity. Consequently, legal development as such cannot on its own form the basis for a referral, only because case law in new legal and/or technical fields does not always develop in linear fashion, and earlier approaches may be abandoned or modified.
5. Legal rulings are characterised not by their verdicts, but by their grounds. The Enlarged Board of Appeal may thus take obiter dicta into account in examining whether two decisions satisfy the requirements of Article 112 (1) (b) EPC.
6. T 424/03, Microsoft does deviate from a view expressed in T 1173/97, IBM, concerning whether a claim to a program on a computer-readable medium necessarily avoids exclusion from patentability under Article 52(2) EPC. However this is a legitimate development of the case law and there is no divergence which would make the referral of this point to the Enlarged Board of Appeal by the President admissible.
7. The Enlarged Board of Appeal cannot identify any other inconsistencies between the grounds of the decisions which the referral by the President alleges are divergent. The referral is therefore inadmissible under Article 112(1)(b) EPC.

This result does not come as a surprise. Renowned experts like Prof Straus as well as ambitious newcomers like Tufty the Cat already had indicated that the problem of inadmissibility might well be the Achille's heel of Ms Brimelow's referral.

The Opinion appears to reach a political culmination point in Sect 7.2.7:

"Given its object and purpose, the right of referral does not extend to allowing the President, for whatever reason, to use an Enlarged Board referral as a means of replacing Board of Appeal rulings on CII patentability with the decision of a putatively higher instance. For example, a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting or because consistent Board rulings are called into question by a vocal lobby (cf. the present referral, page 2, Section 1, paragraph 3). Even the essentially commendable desire for harmonisation expressed by Lord Justice Jacob in the Aerotel/Macrossan judgment can be taken up by the Enlarged Board only to the extent possible under the EPC, even if his suggestion might significantly advance the cause of legal uniformity in Europe. When judiciary-driven legal development meets its limits, it is time for the legislator to take over."

Well, in this particular case the legislator is not prepared to take over. It is, however, clear that the EBoA felt a bit abused by the President's attempt to use it as an instrument to clarify a political issue which had already caused the legislator to fail.

Bottom line: The Enlarged Board of Appeal won't interfere in the business of defining the limits of patentability of computer-implemented inventions; stick to present case law as it is known. Nevertheless, the G 03/08 Opinion provides some lengthy comments on available case law and how to properly understand its meaning.

On Friday, December 07, 2007, I had reported on a decision of the EPO Opposition Division revoking a patent EP0927945 originally awarded to  Amazon.com, Inc.,  on April 23, 2003, during the 'hot phase' of the debate on the patentability of computer-implemented inventions.The title of the patent was 'Method and system for placing a purchase order via a communications network ' Claim 1 thereof read as follows: