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EU Patent - Background Note On Machine Translations

nospam@example.com (Axel H Horns) — 2010-09-06T15:42:26Z

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) — 2010-08-23T14:13:37Z

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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News From ACTA Negotiations

nospam@example.com (Axel H Horns) — 2010-07-15T21:48:00Z

The ninth round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) was held in Lucerne, Switzerland, from June 28 to July 01, 2010. After the eighth round of negotiations on ACTA held in Wellington, New Zealand, from April 12 to April 16, 2010, a redacted version of the draft version had been published but obviously there was no intention to keep the negotiation process transparent in general. Secrecy prevailed as usual. It needed another leak in order to keep the general public informed.

As it was to be expected, this much anticipated breach of confidentiality has happened; a copy of the consolidated text dated July 01, 2010, appeared on the Internet. A transcribed text version can be found here. The document apparently comes from the Civil Liberties Committee (LIBE) of the European Parliament.

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The Patent System And Its Problem Of Scaling

nospam@example.com (Axel H Horns) — 2010-07-14T21:49:00Z

There are myths about patents on computer-implemented inventions a.k.a. software patents which won't ever die.

One of them is the allegation that patents are a tool to steal a software developer / programmer the hard-earned fruits of labor. The software is the developer's / programmer's own work and he or she should be entitled to some sort of ownership.

But there are those evil and pesky patent owners, all of a sudden jumping out of the bushes, armed with a patent certificate comprising a long list of patent claims, demanding to cease and desist commercially using the poor developer's / programmer's software on the grounds of patent infringement. Despite the fact that the software developer / programmer has not only conceived the algorithm for the software by himself or herself but also written every line of code without cheating or copying, the patent owner threatens to prevent him or her enjoying the fruit of this ownership. Patent critics like to construe this scenario as some sort of forced dispossession.

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On How To Make Use Of A Mobile eBook Reader

nospam@example.com (Axel H Horns) — 2010-07-12T21:49:00Z

Some months ago I had contemplated going deeper into technologies and issues of e-books and mobile e-book readers. Starting point was some kind of discontent with the format of a blog for articles that exceed some threshold of length comfortable to be consumed on a normal desktop or notebook screen. Would it make sense to create from time to time an article with more length than appropriate for a blog and then disseminating it on-line as an e-book?

An on-line search session aiming at free authoring tools for use under Linux lead me to two software packages:

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

nospam@example.com (Axel H Horns) — 2010-07-07T16:51:00Z

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) — 2010-07-06T12:29:00Z

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) — 2010-07-05T20:42:00Z

(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) — 2010-07-01T12:17:05Z

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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EPO / EU: Important Changes Ahead

nospam@example.com (Axel H Horns) — 2010-06-29T16:56:00Z

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.

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BREAKING NEWS: SCOTUS Opinion in re Bilsiki is out!

nospam@example.com (Axel H Horns) — 2010-06-28T15:00:00Z

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) — 2010-06-24T21:25:00Z

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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German Bundestag Meets Innovation

nospam@example.com (Axel H Horns) — 2010-06-24T12:16:19Z

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.

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IP And The Fight On Business Models

nospam@example.com (Axel H Horns) — 2010-06-23T20:13:00Z

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.

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Intellectual Property: Political Excesses - Or: Let Schumpeter's Creative Destruction Do Its Work

nospam@example.com (Axel H Horns) — 2010-06-18T19:19:00Z

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?

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