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EU Patent - Background Note On Machine Translations

nospam@example.com (Axel H Horns) — Mon, 06 Sep 2010 17:42:26 +0200

In an earlier posting I had reported that, on the first day of the Belgian EU Presidency, the EU Commission had published a Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent. This Document suggests to require human quality translations of EU patents only in case of a dispute. Otherwise, machine translations are deemed to be sufficient for informing the general public.

On September 03, 2010, the General Secretariat of the EU Council has published Document 13166/10 titled Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent - Background note on machine translations. The paper is addressed to Working Party on Intellectual Property (Patents). In particular, it conveys in its Annex a background note on machine translations for the EU Patent, drawn up by the Commission services, as a basis for discussions at the meeting of the Working Party on Intellectual Property (Patents) on September 08 and 09, 2010.

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EU Patent: Advocates General Suggesting To 'Rise The Bar' In a Different Way

nospam@example.com (Axel H Horns) — Mon, 23 Aug 2010 16:13:37 +0200

Only now I have stumbled upon Opinion 01/09 - Statement by the Advocates General of the Court of Justice of the European Union concerning the European Patent and the Community Patent Court as planned by the EU Council; see my earlier postings here, there and there. The date on that Document (Original in French only) is July 2, 2010; however, the Opinion was not published on the Official website of the Court of Justice of the European Union (formerly known as European Court of Justice, or ECJ for short). A link to the French version was posted on August 19, 2010, on EPLAW Patent Blog.

I won't understand those childish games played by interested circles inside of and close to the EU Council in a futile attempt to withhold such important documents from the eyes of the general public.

Anyway, what the Advocates General have to say to the proposal submitted by the EU Council last year is highly relevant:

A first snippet from the Document makes clear that the Advocates General are not opposed to the general layout of the proposed Patents Court (PC) to resolve certain classes of disputes between individuals:

"61. We should first examine whether the European Union judicial system, as resulting from the treaties, prohibits assigning to the future PC sole competence to hear certain disputes between individuals in the Community patent field.
62. The Advocates-General do not believe that that is the case."

The bombshell, however, appears a bit later in the Document:

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European Patent Organisation Discussing Fee Reform and Sustainable Financing (III)

nospam@example.com (Axel H Horns) — Wed, 07 Jul 2010 18:51:00 +0200

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

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Biotechnological Patents: Court Of Justice Of the EU Decides Against Patent Theory Of Monsanto

nospam@example.com (Axel H Horns) — Tue, 06 Jul 2010 14:29:00 +0200

Today, the European Court of Justice (former ECJ) has published the decision in Case C-428/08, reference for a preliminary ruling under Article 234 EC from the Rechtbank's-Gravenhage (Netherlands), made by decision of 24 September 2008, received at the Court on 29 September 2008, in the proceedings

Monsanto Technology LLC

Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH,

Intervener in support of the defendant: Argentine State:

Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism.
Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it.
Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable.
Articles 27 and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) do not affect the interpretation given of Article 9 of the Directive.

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Validation Costs Of European Patents And The Languages Issue

nospam@example.com (Axel H Horns) — Mon, 05 Jul 2010 22:42:00 +0200

(Source: 11805/10 ADD1 / SEC(2010) 796)

The EU Council recently has published

Document 11805/10: Proposal for a Council Regulation on the translation arrangements for the European Union patent. This is merely a wrap-up of the original EU Commission Document as discussed in my earlier posting here.
Document 11805 ADD1: Commission staff working document: Impact Assessment accompanying document to the Proposal for a Council Regulation on the translation arrangements for the European Union patent.
Document 11805 ADD2: Commission staff working document: Summary of the Impact Assessment accompanying document to the Proposal for a Council Regulation on the translation arrangements for the European Union patent.

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EU Draft Council Regulation On The Translation Arrangements For The EU Patent Published

nospam@example.com (Axel H Horns) — Thu, 01 Jul 2010 14:17:05 +0200

On December 04, 2009, a (partial) political breakthrough had been achieved by the EU Council: A number of conclusions on an enhanced patent system in Europe were fixed on that day.

EU Council Document 16113/09 ADD 1 served as a basis for the political concord and conveyed a revised proposal for a Council Regulation on the European Union patent drawn up by the Presidency for discussion at the meeting of the Council (Competitiveness) on December 04, 2009. Article 61 thereof stated that the Regulation shall be accompanied by a separate regulation, which shall govern the translation arrangements for the EU patent, adopted by the Council with unanimity in accordance with Article 118, second subparagraph of the Treaty on the Functioning of the EU. This Regulation shall come into force together with the separate regulation on the translation arrangements for the EU patent.

Just today, on the first day of the Belgian EU Presidency, the EU Commission has published a Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent.

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BREAKING NEWS: SCOTUS Opinion in re Bilsiki is out!

nospam@example.com (Axel H Horns) — Mon, 28 Jun 2010 17:00:00 +0200

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.

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Will The EU Patent And The European and Community Patents Court (PC) Get A Final Chance?

nospam@example.com (Axel H Horns) — Thu, 24 Jun 2010 23:25:00 +0200

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.

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Ms Neelie Kroes Defending Open Standards

nospam@example.com (Axel H Horns) — Thu, 17 Jun 2010 18:18:00 +0200

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,

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European Patent Organisation Discussing Fee Reform and Sustainable Financing (II)

nospam@example.com (Axel H Horns) — Mon, 14 Jun 2010 13:01:00 +0200

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.

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European Patent Organisation Discussing Fee Reform and Sustainable Financing (I)

nospam@example.com (Axel H Horns) — Fri, 11 Jun 2010 16:45:00 +0200

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.

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The EU Patent and the Treaty on the Functioning of the European Union - TFEU

nospam@example.com (Axel H Horns) — Thu, 10 Jun 2010 19:36:13 +0200

At last some transparency has come into the quarrels over the question as to whether or not the proposals for creating a European and Community Patents Court (PC) having jurisdiction not only over EU Patents on the territory of the EU but also with regard to non-EU countries being signatory to the European Patent Convention (EPC) are compatible with the Treaties of the European Union. While the EU Council still refuses to disclose their referral to the Court of Justice of the European Union (formerly ECJ; see heavily redacted Document 9076/09), PatLit Blog was kind enough to make sure that the Report of the Court Hearing dated May 18, 2010, is readily available on the Internet.

What is at stake?

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Proceedings Of The Court of Justice of the European Union On EU Patent

nospam@example.com (Axel H Horns) — Tue, 08 Jun 2010 18:02:13 +0200

Court of Justice of the European Union (former ECJ)

In some earlier posting I had reported that, on the occasion of the 2945^th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research) - held on May 28, 2009, and in accordance with a Presidency proposal, a decision was taken to allow for a re-examination by the European Court of Justice (now: Court of Justice of the European Union) of the compatibility of the drafted agreement on a single court system for solving patent disputes. However, the EU Council did not publish any Documents from which the gist of the questions put before the ECJ could be derived.

In another posting on this blog almost a year ago I had complained of the EU Council's refusal to fully publish Document 9076/09 discussing particulars of the referral. The redacted version accessible under the link as given here does not disclose any substantial details of the matter at stake.

Now there is a report on the ipeg blog saying that oral proceedings ('Hearing') before the Court took place on May18, 2010. It appears as if no documents concerning the case Avis 1/09 have been disclosed by the Court so far.

However, the iped blog refers to a text set up by Mr Jochen Pagenberg who was present at the Court hearing.

In the paper - which is said to be a preliminary snippet of some larger publication to be expected soon - Mr Pagenberg writes

"What can be expected from the Opinion of the ECJ? A clear affirmative answer in favour of compatibility of the present Agreement is highly unlikely in view of the persistent questions and serious doubts concerning the lack of judicial EU control over the EPO granting procedure. Beyond this the controversial legal basis between the Member States about the court system as a whole, and particularly with respect to the combined jurisdiction for EU and EP patents will most probably be addressed by the Court and can hardly be resolved to the satisfaction of all Member States."

Does this announce a very sharp surprise - 'lack of judicial EU control over the EPO granting procedure'? If I understand Mr Pagenberg correctly it might happen that the Court will decide eventually to throw out the very basics of the envisaged architecture of the EU Community Patent, namely the accession of the EU to the EPC. Will the European Patent Office have to be re-invented as a puely EU body? We shall wait and see.

[UPDATE 2010-06-09] Obviously a highly relevant posting on the PatLit Blog by Jeremy Phillips has escaped my attention. In his posting, Jeremy brings a link to a text with an Official Hearing report. This text also sheds some light on the wording of the referral as well as on political positions of various national Governments.

(Photo: (C) by TPCOM on Flickr licenced under a CC Licence)

German Piratenpartei: The Hype Is Over

nospam@example.com (Axel H Horns) — Fri, 04 Jun 2010 00:29:00 +0200

Google Trends for 'Piratenpartei'

The various Pirate Parties which now are active in a large number of countries demand - specific for every country - various modifications of the current system of Intellectual Property law. Hence, they clearly are of relevance for IP professionals. Today I would like to provide an update on the fate of the German branch of the Pirate Party movement, the Piratenpartei.

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USPTO Making Bulk Data Available To The Public Via Google -- Hello, EPO, Are You Listening?

nospam@example.com (Axel H Horns) — Wed, 02 Jun 2010 21:32:30 +0200

Google, Inc.

I just stumbled on an article on techdailydose.nationaljournal.com by Ms Juliana Gruenwald titled PTO Teams With Google On Trademark, Patent Database:

"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.