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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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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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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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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)

OHIM: Proposals For Trade Mark Reform Under Fire

nospam@example.com (Axel H Horns) — Sat, 15 May 2010 18:11:40 +0200

At OHIM, Alicante, Spain

On May 12, 2010, the General Secretariat of the EU Council has sent Document 9412/10 titled Future revision of the trade mark system in the European Union - Adoption of Council conclusions to the EU Council (Competitiveness configuration). According to a statement given with the Document, the Commission had, in line with an invitation received by the Council in May 2007 (9427/07), launched a study on the overall functioning of the trade mark system in Europe. This study, which has been awarded to Max Planck Institute for Intellectual Property, Competition and Tax Law (MPI) in Munich, should be finalised towards the end of 2010. The preliminary findings of the study were presented to delegations at the meeting of the Working Party on Intellectual Property on 25 March 2010. Following this presentation, the Presidency proposed to delegations a set of Council conclusions aimed at providing the Commission with input for its ongoing reflection on the future revision of the trade mark system in the European Union. The latest version of the draft Council conclusions was broadly endorsed by the Permanent Representatives Committee (Part 1) (COREPER) on 12 May 2010. However, the United Kingdom delegation maintains a parliamentary scrutiny reservation on these conclusions.

See also my earlier postings here, there, and there.

In view of the vote of COREPER, it appears likely that the Draft conclusions will pass the EU Council at next occasion.

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Future Revision Of The EU Trade Mark System - Revised Draft Council Conclusions

nospam@example.com (Axel H Horns) — Mon, 26 Apr 2010 14:29:48 +0200

This is further to my earlier postings dated April 01, 2010, titled In the Pipeline: Future Revision of the Trade Mark System in the European Union and of April 15, 2010 titled Hungarian Way Of The Future Revision Of The Trade Mark System In The European Union, respectively. Following the Working Party meeting on 15 April 2010 and being intended for discussion at the meeting of the Working Party on 28 April 2010 (see CM 2580/10), the General Secretariat of the Council has published Document 8767/10 conveying a set of revised draft Council conclusions drawn up by the EU Presidency.

It appears as if many of the amendments as proposed by the Hungarian delegation in Document 8510/10 are now part of the Official politics of the EU Presidency.

In accordance with the Hungarian proposal, Sect 9a has been introduced stating that national trade marks continue to meet the economic needs of a large number of applicants, in particular those of SMEs, and that, therefore, national trade mark protection should be maintained as a reasonable option for these applicants has been inserted into the Official text.

However, the EU Presidency apparently was not brave enough to dare explicitly demanding a revision of the 'genuine use' provisions in the Regulation on Community Trade Marks. However, we find in the recent draft an ominous clause saying that the revision should include in particular amendments and other measures aimed at enhancing the complementary relationship between the Community and national trade mark systems. With other words, essential points are deliberately left open, and we surely might expect some [ugly?] surprises to come later on.

At Last: Secret ACTA Draft To Be Published Soon

nospam@example.com (Axel H Horns) — Fri, 16 Apr 2010 16:43:24 +0200

Today the EU Commission has published a press release concerning the 8^th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) held in Wellington, New Zealand from 12-16 April 2010. The text inter alia declares:

"[...] Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

It is intended to release this on Wednesday 21 April. [...]"

Obviously it was high time for the proponents of the ACTA treaty to go ahead and publish some Official text as leaked drafts are already circulating on the net.

Surely such kind of transparency would not have prevailed without continous protest from various quarters against the secrecy of the ACTA negotiations as hitherto practised by the parties to the talks. It appears to be overdue that this 'coalition of the willing' gathered together in 2006 on intitative of the Administration of the former U.S. President G.W. Bush in an attempt to bypass WIPO (which had been perceived as not being sufficiently tough for effectively pushing the world towards an effective IP enforcement regime in the era of digital technologies as dreamt up by some of the U.S. copyright-based industries) now ceases their futile policy to rush an Agreement through legislative processes without need to pass a broader public discussion.

Hungarian Way Of The Future Revision Of The Trade Mark System In The European Union

nospam@example.com (Axel H Horns) — Thu, 15 Apr 2010 10:29:52 +0200

On April 14, 2010, the Council of the European Union has published Document 8510/10 titled Draft Council conclusions on the future revision of the Trade Mark system in the European Union and authored by the Hungarian Delegation at the Council. Obviously the Hungarian proposal is a modification of the text presented by the Spanish EU Presidency with Document 8179/10; see my earlier posting on that matter.

As explained, the main attack vector against the overwhelming success of the centralised EU trade mark system centered around the OHIM seated in Alicante - which apparently is increasingly politically unwelcome throughout some EU Member States - is to divert 50% of the renewal fees to National Offices. Obviously this clause is devised in order to construct a formal parallel to the envisaged European Union 'Community' patent system wherein the National Patent Offices shall get some share of the renewal fees.

A brief cross-check of the Hungarian paper according to Document 8510/10 against the Presidential text according to Document 8179/10 uncovers a number of significant amendments:

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In the Pipeline: Future Revision of the Trade Mark System in the European Union

nospam@example.com (Axel H Horns) — Thu, 01 Apr 2010 10:27:07 +0200

A new Document CM 2332/10 announces that on April 15, 2010, the EU Working Party on Intellectual Property (Trade Marks) will meet in order to discuss a Presidency proposal conveyed with Document 8179/10 on a future revision of the Trade Mark system in the European Union. This paper brings a set of draft Council conclusions to be passed by the EU Council later this year.

The core points of the proposal appear in particular to call on the EU Commission to present specific proposals for the revision of Council Regulation (EC) No 207/2009 on the Community Trade Mark and Directive 2008/95/EC approximating the laws of the Member States relating to trade marks. The intended revision will include in particular:

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A Few Comments On The EU Council's Conclusions On An Enhanced Patent System in Europe

nospam@example.com (Axel H Horns) — Mon, 07 Dec 2009 22:56:14 +0100

A bird in the hand ...

Last week we saw the EU Council finalising a number of conclusions on an enhanced patent system in Europe feeding hopes that after long decades of futile endeavour there might be, on some day in future, a happy end of this story. But - after having thought of that issue over the weekend, I am not overly optimistic.

A bird in the hand is worth two in the bush.

I do not really understand why earlier this year on recommendation of the EU Commission the EU Council has switched from a solution for creating a EU Patent Court solely based on the EU treaties - a bird in the hand - to a mixed international agreement which needs ratification in each and every EU Member State plus involved non EU States which are EPC Contracting States - two birds in the bush. Perhaps the EU Governments should be warned by the woes of the ratification of the Lisbon Treaty. This Agreement is intended to operate in accordance with the procedure foreseen by Article 300 EC involving the Community, its Member States and other Contracting States of the EPC. The participation of the Community in the agreement is notably required since it would cover areas for which the Community has exclusive competence to conclude agreements with third countries, such as those covered by the Enforcement Directive and the Brussels I Regulation.

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