[...]

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

[...]

As the EU is party to those talks, it might be relevant to compare such potential provision with the present state of the EU Acquis communautaire.

On April 26, 2009, Mr M. Schulz submitted a letter via e-mail to the EBA with various comments on the proceedings in the matter of G 0003/08 - Referral by the President of the EPO in relation to a point of law pursuant to Article 112(1)(b) EPC - patentability of computer-implemented inventions. Arguing that a particular member of the EBA, Mr Rees, had somehow - in discharging his professional duties -  been involved before the submission of the referral by Ms Brimelow in various activities related to the patenting of computer-implemented inventions, he challenged the impartiality of the entire Board, demanding dissolution thereof.

In view of the fact that Mr Schulz merely had written a letter as part of the general public invited to provide comments on the subject-matter of G 0003/08 - he clearly was not party to the proceedings - it might not have come as a surprise if the EPA had disposed Mr Schulz' challenging of impartiality directly to the waste-bin.

"The EPO would play a central role in the administration of Community patents and would alone be responsible for examination of applications and the grant of Community patents. Enhanced partnership should however pave the way for the European Patent Office to make regular use, where appropriate, of the result of any search carried out by central industrial property offices of the member states of the European Patent Organisation on a national patent application the priority of which is claimed in a subsequent filing of a European patent application."

One of the more important changes appears to be the introduction of a new Article 61 on Translation Arrangements:

"This regulation shall be completed by a separate legal instrument, adopted with unanimity, which shall govern the translation arrangements for the Community patent."

With other words, the highly crucial question of the arrangement concerning translations - which might well be decisive for the fate of the entire project - is taken out of the main body of text on the Council Regulation on the Community Patent. As far as I can learn from earlier Documents, utilisation of machine translations is considered to be the joker of the day. The newly introduced Article 61 makes clear that if this approach should later turn to be unworkable, the language arrangement can be changed without unbundling the entire package of the EU Community patent project.

Pfizer’s general counsel, Ms Amy Schulman, reviewes their move away from billable hours. See also Mr Gershon Hepner in the Huffington Post and my previous postings (here, there) concerning the Rio Tinto approach.

And now it went bust. So what? It is business as usual that businesses sometimes fail. A quite disturbing aspect of this matter is, however, that at the same time where Quelle is forced to close, Amazon.com is flourishing, and news just came in that eBay.com has increased profits, both companies founded and seated in the United States. Surely there still is a huge market for distant selling. Didn't Quelle have a website? Yes, of course, they had one. You even could order items via the Internet. But their business model was still centered around that 20^th century printed mail order catalogue. The website was merely thought of as an auxiliary distribution channel, and this doctrine was proved to be fatal.

Now switching to something different. News are emerging that the new centre-right Government in Germany might be inclined to help newspaper companies and book publishers suffering from diminishing cash flow by creating a new sort of auxiliary copyright ('Leistungsschutzrecht' in German). No details are available (see reports [in German, sorry] here and there) but the central idea might perhaps be to have a licenceable right for the owner of a website to aggregate news like Google does it. Maybe that in a few years time you will not be allowed to link to a German website without having obtained written consent by the website owner and, in some cases, also paid some licence fees.

Mr David Kappos (right), Director USPTO, sworn in on August 13, 2009

From the website of US-PTO:

"WASHINGTON — Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos has signed a new Final Rule rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property. The regulations, which addressed the number of continuation applications as well as the number of claims that could be included within each application, were published in the Federal Register in August 2007, but were enjoined and never came into effect.

The USPTO also announced that it will file a motion to dismiss and vacate the federal district-court decision in a lawsuit filed against the USPTO that sought to prevent the rules from taking effect. GlaxoSmithKline - one of two plaintiffs in the Tafas v. Kappos lawsuit - will join the USPTO’s motion for dismissal and vacatur.

“The USPTO should incentivize innovation, develop rules that are responsive to its applicants’ needs and help bring their products and services to market,” Kappos said. “These regulations have been highly unpopular from the outset and were not well received by the applicant community. In taking the actions we are announcing today, we hope to engage the applicant community more effectively on improvements that will help make the USPTO more efficient, responsive, and transparent to the public.”

“We are grateful to GlaxoSmithKline for working with us to file this joint motion to both dismiss the appeal and vacate the district court’s decision. This course of action represents the most efficient way to formally and permanently move on from these regulations and work with the IP community on new ways to take on the challenges these regulations were originally designed to address.” [...]

In August 2007, US-PTO had published new rules arguably intended to help improve examination efficiency, enhance the quality of examination, and manage the growing backlog of unexamined applications. Two regulations, commonly referred to as the 'Continuation Rule' and the 'RCE Rule,' would have restricted an applicant to file only two continuation applications and one request for continued examination ('RCE') per application family as a matter of right. For a third or subsequent continuation application or RCE, the applicant would have had to make a case to the USPTO to show why the additional filing was needed. A third regulation, referred to as the 'Claims Rule,' would have restricted an applicant to file five independent claims and twenty-five total claims per application. If an applicant desired more than five independent claims or more than twenty-five total claims, then the Claims Rule would have required the applicant to supply information to the USPTO about the claimed invention to assist the Office’s examination. The specific information that would have been required was outlined in another regulation, termed the 'ESD Rule.'

The Office is headed by a President. Currently, Mr Wubbo de Boer holds this position. The date foreseen for taking up the duties by the next successor to Mr de Boer is October 01, 2010.

In order to properly select and appoint a suitable candidate, OHIM has posted a notice advertising the position.

The deadline for filing an application will lapse on October 29, 2009.

It is interesting to see that the requirement catalogue does not comprise to deliver a statement of support issued by a EU Government as it was to be seen when the Administrative Council of the European Patent Organisation looked out for candidates for EPO Presidency. Of course, the selection of the next OHIM President will surely have some political component, too, but it appears as if it is somewhat more open than the corresponding process in the European Patent Organisation.

EPO under fire. Wrong target?

On October 01 and 02, 2009, the United Kingdom Chartered Institute of Patent Attorneys (CIPA), the professional and examining body for UK patent attorneys (CIPA), has held a Congress titled The IP System under Attack. According to the organisers, the Congress programme was based around debates on key issues, giving the protagonists in controversial issues a platform to air their views and offering delegates greater opportunity to make substantive contributions from the floor. Among the issues addressed in this way were the performance of the EPO, the concept of cheaper IP litigation, raising the bar on standards of examination, patents versus competition and patents versus open source software.

Now, media reports from the Congress are coming in. IP World reports that the head of the controlling office at the European Patent Office, Mr Ciaran McGinley, was faced with tough questions following his speech at the CIPA Congress. Some patent attorneys at the conference even accused the EPO of blaming them for its very own problems.

Well, as I did not attend to that event I can't report any details on my own witnessing; however, I feel tempted to offer one remark concerning that debate.

Of course, Mr Ciaran McGinley officially appeared there as a representative of the European Patent Office (EPO), and he rightfully received, on behalf of EPO, the remarks on rule-making and related criticism of the patent attorneys gathered at the CIPA event.

However, should those critics be addressed to the EPO at all?

EU Council - Justus Lipsius Building, Brussels

Today, Document 13706/09 dated September 29, 2009, has been published under the title Revised proposal for a Council Regulation on the Community patent. The paper has been prepared by the General Secretariat of the EU Council and is addressed to the Working Party on Intellectual Property (Patents) for the next session scheduled to be held on October 06 and 07, 2009. Obviously this amended version refers to some Revised proposal for a Council Regulation on the Community Patent - Proposals by the Hungarian delegation dated 12-08-2009 and conveyed with Document 12640/09 but never made accessible to the public. However, changes to the previous published version of the proposal - Document 11417/09 - are marked (see also my earlier posting here).

"[...] The main aim of this contract is to contribute to building up a system capable of monitoring R&D exploitation flows in Europe and between Europe and the rest of the world, within the private sector as well as between the public and private sectors. The system should be able to measure knowledge- and technology-sharing inside countries, across Europe and beyond, assessed by patent and licensing indicators. To this end, the contractor will collect and update patent and licensing data and construct a series of indicators for knowledge flows (knowledge diffusion) from research to the technology and business sectors, based on patent and licensing data and indicators, using internationally-accepted methodologies. Using the collected data, the contractor will develop analytical reports, aiming to address a series of issues related to technological specialisation of countries and regions but also to institutional performance and networking. [...]"

Does anyone know any details published elsewhere?

Mr Joff Wild recently wrote in his IAM Blog an interesting and thought-provoking article under the headline 'It is time to tackle Europe's patent attorney deficit':

"The European Union currently has a population of just about bang on 500 million. These people live in 27 member states. Within these member states, there are over 20 million businesses. Big numbers, I am sure you will agree.

Now one of the stated aims of the European Union is to be the centre of the world's knowledge economy. That means creating and nurturing the innovative skills of the 500 million so that we can grow the 20 million. This should lead to more jobs, greater prosperity and higher standards of living. Most readers of this blog will agree that in order to create and nurture innovation - and certainly in order to turn it into something practical, scalable and sellable - the patent system has a crucial role to play.

We all know about the on-going efforts to introduce a Community patent and a single patent court for the EU. But I wonder whether these are really the pressing issues everyone thinks they are. I say this having just found out how many patent attorneys there are currently authorised to prosecute applications at the EPO: 9,250. That's right - nine thousand two hundred and fifty. Out of a total population of 500 million. When you bear in mind that over half of all European patent attorneys, 4,956 to be precise, are based in either the UK or Germany (there are, for example, more EPAs in Munich than there are in the whole of France; and more in London than there are in all of Italy and Spain combined), then that number becomes even more frightening.

If Europe really is going to be at the heart of the 21st century's innovation economy, can we really do it on the back of the efforts of under 10,000 patent attorneys? I just can't see how. Not because there will be a shortfall in the number of people able to prosecute patents at the EPO, but because it is not possible to rely on just 10,000 people to give the accurate, patent-related business advice innovative European companies are going to need if they are to manage and exploit their IP rights to maximum effect. Remember, too, that at any one time a good number of that 10,000 is not going to be practising or will be working inside corporations and so not in a position to represent anyone but their employees. [...]"

Well, such language is music in the ears of European patent attorneys ... But let's get serious: Are those statistical considerations of Mr Wild really valid?

Well, on a macroscopic scale there will be a Government again chaired by Angela Merkel of CDU/CSU and supported in a coalition with Liberal Democrats (FDP, Freie Demokratische Partei) under Mr Westerwelle. CDU/CSU suffered slight losses, ending up at 34% or so, but FDP have gained approximately 5% and will end up at about 15% or so.

Due to certain particularities of the German election law, CDU/CSU will gain significantly more seats in the Parliament than according to their share in votes ('Überhangmandate'). Hence, it is expected that the new Government will be supported by a strong majority of seats in the Bundestag.

The Social Democrats (SPD) have slumped by more than 11% and are now expecting to see a disastrous share of about 23%. The Leftists (Die Linke) can expect to gain about 12%, whereas the Greens (Bündnis 90/Die Grünen) will get approximately 10%.

After the most meaningless and boring election campaign ever the Germans are now heading towards the national general election to be held on next Sunday: Three days to go.