Visae Patentes

Comparison of AIA and EPC as well as ante-AIA, post AIA and 'real' first-to-file prior art

2013-03-09T22:33:00.002+01:00

In a new posting on the ksnh::law blog titled "10 aspects of the AIA that are (somehow) comparable to European provisions" we discuss the following new provisions of the America Invents Act and their link to European patent law:

grace period
prior public use
intervening rights
usurpation and derivation
post grant review
covered business method review
third-party submissions
supplemental examination
prior use rights
patent marking

Further to that, one of the most interesting aspects of the AIA is the way the conversion from first-to-invent to first-to-file is implemented and the impact on the definition of relevant prior art.

The two main changes to prior art can be found in 35 USC § 102 (a) and (b). While the former relates prior public use and intervening rights to the new notion of "effective filing date" (cf. 35 U.S.C. § 100(i)(1)), by that ending the Himer doctrine of 1966, the latter introduces an individual type of grace period combining elements of the ante-AIA first-to-invent and a classical first-to-file grace period. These issues have been discussed to some extent in sections 1 to 3 of this ksnh::law posting (English) and in this ksnh::jur posting (German).

Before this background it is worthwhile to not ony compare ante-AIA with post-AIA prior art, but also post-AIA prior art with the prior art in a classical first-to-file regime with grace period:

Post-AIA prior art versus classical first-to-file with grace period:

The post-AIA grace period excludes third-party disclosure of an invention published between an own disclosure of the inventor within the grace period and the actual filing date. In contrast thereto, the classical first-to-file grace period excluded only own disclosure of the inventor within the grace period while all third-party disclosure before the filing date is considered regular prior art.
In the post-AIA era, intervening rights - i.e. patent applications filed before but published after the effective filing date of an invention under examination - are relevent for both novelty and obviousness, while, in a pure first-to-file scheme, such rights usually are only relevant for novelty but not for inventive step.

Ante-AIA versus post-AIA prior art:

prior public and commercial use are now relevant anywhere in the world (post-AIA) and not any more upon occurrance in the United States only (post-AIA).
the relevant date for determining as to whether or not a reference is regular prior art is the "effective filing date" of an application, i.e. either its filing date or its priority date independent on where the priority application has actually been filed.
This new notion ends the Hilmer doctrine of 1966 and has the effect that in the post-AIA era intervening rights are independent on whether or not the priority application has been filed in the US, while in the ante-AIA era only US applications could qualify for an intervening right status.

Intellectual Property Aspects of 3D Printing (German)

2013-02-26T23:34:00.001+01:00

On the ksnh::jur blog, we recently posted the first two articles of a series on the IP aspects of the fascinating new technology of 3D printing which, according to our perception, has the potential to raise totally new questions and pose new challenges to the IP system. I will continue in German, the language of the two articles:

Das 3D-Printing hat das Potential einer Disruptive Technology, die bestehende Technologien, Produkt oder Dienstleistungen möglicherweise vollständig verdrängt - ähnlich wie die Transistortechnologie einstmals die Röhrens- und Relaisindustrie untergehen ließ. Es könnte nämlich sein, dass das 3D-Printing einen Übergang von teuren, zentralisierten Fertigungsstätten hin zu einer Vielzahl dezentraler Einrichtungen ermöglicht, analog der PC-Revolution, bei der die zuvor zentralisierte EDV ab den 1970er Jahren durch eine unüberschaubaren Landschaft von billigen, dezentral betriebenden Personal-Computern faktisch abgelöst wurde.

Ähnlich wie bei der Software für solche Computer wird es sich auch mit den beim 3D-Printing benötigten Datenmodellen verhalten, die über das Internet genau so ausgetauscht werden, wie heutzutage Software und audiovisuelle Digtalwerke - teilweise entgeltlich über reguläre Märkte und teilweise unentgeltlich über Tauschbörsen.

Daneben wird der Preisverfall bei 3D-Meßvorrichtungen fortschreiten, mit denen aus einem körperlichen Werkstück ein räumliches 3D-Datenmodell abgeleitet werden kann, so dass beispielsweise Kunststoff-Ersatzteile privat oder in einem 3D-Copyshop in ein Datenmodell umgesetzt und dann einfach nachzuproduziert werden können.

Dieses Szenario bringt eine Vielzahl rechtlicher Fragen mit sind, ähnlich dem Filesharing bei urheberrechtlich geschützen Software-, Audio- oder Videodateien heute. Neben dem Urheberrecht kommt aber auch das Patent- und Geschmacksmusterrecht ins Spiel. Hierbei sind Fragestellungen zu erwarten, die über das hinausgehen, was seit vielen Jahren im Bereich des Filesharing diskutiert wird.

So stellt sich beispielsweise die Frage, ob es Hersteller von Erstatzteilen hinnehmen müssen, wenn z.B. Brillengestelle, Smartphone-Gehäuseteile oder Rasenmähermotor-Abdeckungen privat in 3D-Datenmodelle umgesetzt und Dritten über das Internet frei zur Verfügung gestellt werden, z.B. im Rahmen einer öffetlichen Geometriedatenbank. Können solche Datenbanken frei verkäuflicher Artikel rechtlich unterbunden werden?

Die sich aus solchen Fragestellung im Zusammenhang mit dem Austausch von digitalen, technische und/oder ästhetische Produkte betreffenden Daten ergebenden patent- und geschmacksmusterrechtlichen Überlegungen machen deutlich, wie sehr die derzeitige begriffliche Ausgestaltung des Patent- und Geschmacksmusterrechtes noch in den Vorstellungen körperlicher industrieller Produktion des 20. Jahrhunderts verhaftet ist.

(Photo 2010 von Creative Tools via Flickr unter einer CC Lizenz)

Representation before the Unified Patent Court from the point of view of the Rules of Procedure

2013-02-21T10:20:00.000+01:00

In this earlier posting I sketched the contradictory positions of general lawyer associations (e.g. CCBE) and more patent-related organisations (e.g. epi and CEIPI) as to the authorisation rights before the Unified Patent Court (UPC), back then called European and EU Patents Court (EEPC).

As analysed on the ksnh::law blog in an article titled Representation before the UPC: Are some Patent Attorneys authorised without Patent Litigation Certificate?, there are four groups of legal professionals defined in Article 48 UPCA and Rule 286 RoP that will be entitled to autonomously represent cases before the new court:

lawyers authorised to practise before a court of a Contracting Member State,
jurists authorised to practice in patent related matters before a court in a Contracting Member State,
European Patent Attorney having obtained the European Patent Litigation Certificate, and
European Patent Attorney having an appropriate qualification.

While no 1 relates to attorneys-at-law, there are some good reasons that no 2 may cover legally trained patent professionals who are authorised to only practice in patent related matters before a court of a Contracting Member State, such as e.g. German or British patent attorneys.

Further, no 3 relates to European Patent Attorneys according to Art 134 EPC having obtained the European Patent Litigation Certificate which may be obtained by attending a course similar to the Patent Litigation in Europe program of CEIPI in Strassbourg, while no 4 might relate to European Patent Attorneys having alternative qualifications such as an LL.M.degree in IP law or practical litigation expertise proved by a case book.

Unitary Patent Court agreement signed today by 24 of 27 EU member states

2013-02-19T16:50:00.000+01:00

As announced in this press release, 24 EU member states have signed the Unified Patent Court agreement today in Brussels in an official signing ceremony.

The UPC signatories are in alphabetical order:

Austria
Belgium
Czech Republic
Cyprus
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Portugal
Romania
Slovakia
Slovenia
Sweden
United Kingdom

Bulgaria is expected to sign in the coming days once internal procedures have been completed. Poland and Spain did not sign the agreement.

While Poland has become increasingly critical about signing the agreement (see here and here) and Italy still opposes the Unitary Patent due to language issues, Spain still rejects the whole package.

To enter into force, the Unified Patent Court Agreement needs to be ratified by at least 13 of the 24 signing states, including Germany, the United Kingdom, and France as mandatory parties of the agreement.

As reported on ksnh.::law earlier this afterneen, the so called Friends of the Presidency Group will meet in Brussels on 27 February 2013 (see agenda) to exchange information on national ratification processes and the setting up of the Preparatory Committee.

(Photo: Council of the European Union)

UPC News: Signing Ceremony Today and Rules of Procedure

2013-02-19T10:21:00.000+01:00

Today the Signing ceremony of the International Agreement on the establishment of the Unified Patent Court will be held at the Justus Lipsius building in Brussels.

Apparently, only 21 of the originally 25 EU member states that supported the establishment of a Unitary Patent by enhanced cooperation are prepared to sign, including the thee "mandatory" signers France, the United Kingdom and Germany.

Bulgaria, the Czech Republic, Poland, and Slovenia are reported to have technical problems, whatever that might mean. But at least in the case of Poland, there appear to be also political problems that will likely prevent the country from signing the UPC agreement for many years.

The 22nd signer will be Italy, which nevertheless is still opposing the Unitary Patent together with Spain for language issues. The effect for Italy will be that a European Patent granted by the EPO will still have to be separately validated in Italy (and translated into Italian) to take effect in this country, but can be centrally enforced and attacked before the Unified Patent Court together with a possibly existing parallel Unitary Patent.

Further issues recently reported on ksnh::law include the issuance of a nearly-final version of the Rules of Procedure for the Unified Patent Court, including some interesting observations as to the representation rights of patent attorneys before and the fully electronic procedure at the new court:

With the publication of the draft Rules of procedure, the main legal texts of the Unitary Patent and Unified Patent Court system are now available in a (pre-)final form:

REGULATION (EU) No 1257/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection,
COUNCIL REGULATION (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements,
Agreement on a Unified Patent Court of 11 January 2013 (Council Doc 16351/12), and
Rules of procedure of the Unified Patent Court, 14th draft of 31 January 2013.

(Photo: The Council of the European Union)

The Provisions of the 'America Invents Act' that will enter into force on March 16, 2013 (German)

2013-02-07T23:13:00.002+01:00

Further to this recent posting on the Amendments in US patent law caused by the America Invents Act, by which I pointed to part 1 and part 2 of a series of three German postings on this subject on the ksnh::jur blog, I now can announce part 3 of the series, which relates to those important provisions that enter into force as early as March 16, 2013. For a short summary of this new posting, I again continue in German:

Nachdem die ersten beiden Beiträge unter der Überschrift "Änderungen im US Patentrecht duch den 'America Invents Act'" diejenigen neuen Regelungen betrafen, die am 16. September 2011 (Teil 1) und am 16 September 2012 (Teil 2) in Kraft traten, beleuchtet der dritte Beitrag die am 16. März 2013 anstehenden grundlegenden Änderungen:

Umstellung von 'first-to-invent' auf auf 'first-to-file'
Wirkungen der neuen US-Neuheitsschonfrist

die bisherige US-Neuheitsschonfrist (first-to-invent)
die Neuheitsschonfrist im Gebrauchsmusterrechtgemäß (first-to-file)
die neue US-Neuheitsschonfrist (fisrt-to-file)

Taktische Überlegungen zur Neuheitsschonfrist

Umfang des relevanten Standes der Technik

Abschaffung der Hilmer Doktrin
weltweite Vorbenutzung und anderweitig zugänglicher Stand der Technik gemäß §102 (a) (1)
nachveröffentlichte US-Anmeldungen/Patente gemäß §102 (a) (2)

Vergleich Stand-der-Technik Vorher/Nachher und USA/Europa

Derivation-Verfahren und widerrechtliche Entnahme

Amendments in US patent law by the 'America Invents Act' (German)

2013-01-30T22:37:00.001+01:00

- 'Innovative Grounds' im US Patentamt -

On the ksnh::jur blog we began a series of three postings dircted to the amendments in US patent law by the 'Amenrica Invents Act'. Already issued part 1 and part 2 relate to the changes that entered into force on September 16, 2011 and 2012, respectively.

As there are already so many excellent explanations and synopses on this complex topic out there on the internet, it was our aim to present the US patent reform in German this time. For a short summary of the postings, I thus continue in German:

Die Artikelserie unter dem Titel Änderungen im US Patentrecht duch den 'America Invents Act' wird drei Beiträge umfassen. Die ersten beiden Beiträge beschäftigen sich mit den bereits am 16. September 2011 (Teil 1) und 16 September 2012 (Teil 2) in Kraft getretenen Änderungen, während der dritte Beitrag noch folgt und sich mit denjenigen Änderungen beschäftigen wird, die erst am 16. März 2013 in Kraft treten werden.

Die am 16.09.2011 in Kraft getretenden Änderungen betreffen:

Beschleunigte Prüfung (‘prioritized examination‘),
Patentierungsausschluss von Strategien zur Steuervermeidung (‘tax strategies‘),
Ausschluss von Patenten auf menschliche Organismen (‘human organisms‘),
Patentberühmung (‘false marking’, ’virtual marking‘),
Vorbenutzungsrechte als Verteidigung gegen Verletzungsklagen (‘prior user rights‘),
Abschaffung der Best-Mode-Verteidigung gegen Verletzungsklagen,
Abschaffung der ‘Inter-Partes-Reexamination’,
Gebührenänderungen (15% surcharge) und ‘micro entities’, und
Einschränkung von Mehrfach-Klagen.

Die am 16.09.2012 in Kraft getretenden Änderungen betreffen:

Neuordnung der USPTO Amtsverfahren nach Erteilung:

Post-Grant-Review (PGR),
Inter-Partes-Review (IPR),
Zulässigkeitsregeln des PGR und IPR,
Verlauf des Review-Verfahrens,
Rechtshemmende Wirkung,
Review versus Nichtigkeits(wider)klage,

Neue verfahrensrechtliche Möglichkeiten:

Post-Grant-Review gegen Geschäftsverfahrenspatente (transitional program for covered business method patents),
Einwendungen Dritter (pre-issuance submissions),
Ergänzende Prüfung (supplemental examination)

Formale Änderungen

Arbeitgeber als Anmelder.

(Photo 2010 von cytech via Flickr unter einer CC Lizenz)

Legal Texts Implementing the Unitary Patent Infrastructure Consolidated and Officially Available

2013-01-14T21:44:00.000+01:00

As noted on the ksnh::law blog tonight, the final text of the Unitary Patent Court Agreement has been published on the server of the European Council today. This completes the troika of consolidated texts implementing the new European patent infrastructure:

REGULATION (EU) No 1257/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection,

COUNCIL REGULATION (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, and

Agreement on a Unified Patent Court of 11 January 2013 (Council Doc 16351/12).

The role of the EU Court of Justice in the future European post-grant patent infrastructure

2013-01-14T08:29:00.001+01:00

In our yesterday's posting on the ksnh::law blog titled "Does Art 5 UPP Regulation enable CJEU Jurisdiction over Substantive Patent Law?", we attend to the role the Court of Justice of the European Union (CJEU) will play in the new European patent post-grant infrastructure.

This role is basically determined by Article 5.3 of the Unitary Patent Protection Regulation (UPPR), which provides a link to substantive patent law as codified by Articles 14f to 14i of the Unified Patent Court Agreement (UPCA) via referring to the "national law [of that participating Member State being] applicable to the European patent with unitary effect as an object of property" according to Art 7 UPPR.

Whether or not this link is strong enough to authorise the CJEU to hand down preliminary rulings according to Art 267 TFEU in the area of substantive patent law will be subject to interpretation by ... the CJEU itself. And there are some indications that the CJEU might not let such an opportunity slip through its fingers, such as espressed in opinion 1/09 on the compatibility of a predecessor of the UPCA - the EEUPC agreement - with EU law.

Before this background, it might be interesting to consider this tweet on @ksnhlaw in view of the observations of A Dimopoulos and P Vantsiouri as presented in their paper "Of Trips and Traps: The Interpretative Jurisdiction of the Court of Justice of the EU Over Patent" in June 2012.

According to their study, the CJEU can, regardless of the concrete wording of the UPPR and UPCA, anyway acquire a stronger role in the application of patent law by using its jurisdiction over the patent provisions of the TRIPS Agreement, such as the substantive provisions of Art 28, since Art 208 TFEU provides the EU and its highest court with exclusive competence over "commercial aspects of intellectual property", which would incorporate the TRIPS agreement into the body of EU law (see also here).

The Unitary Patent - After the Game is before the Game (updated)

2013-01-02T11:09:00.000+01:00

Sepp Herberger was the manager of the German nation soccer team that won the 1954 World Cup by a miraculous 3-2 final win over Hungay, the undisputed favourite and unbeaten for nearly 5 years. This match, in Germany renowned as the "miracle of Bern", not only has a solid position among national myths and legends but has also been considered the birth of the Federal Republic of Germany and an ignition spark of the West German "Wirtschaftswunder", e.g. by historian Joachim Fest.

Herberger became a national hero and famous for his down-to-earth but cunning quotes like "the next opponent is the toughest" and "after the game is before the game". The latter quote - maybe in the form of "after the endorsement is before the ratification" - seems to perfectly characterise the somewhat ambivalent situation the Unitary Patent is in at the beginning of the year: Important steps have been achieved in December (especially the approval by the EU Parliament and Council), but the rest will not be an easy challenge either.

On the ksnh::law blog we have followed the advances in recent weeks, as well as some side aspects:

The texts approved are the following:

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL implementing enhanced cooperation in the area of the creation o f unitary patent protection (PR-CONS 72/1/11 of 17 Dec 2012)

COUNCIL REGULATION implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (st18855/2/11 of 12 Dec 2012)

Draft agreement on a Unified Patent Court and draft Statute (st16222/12 of 14 Nov 2012)

The UPC Agreement will have to be signed by the 25 contracting states at the Competitiveness Council Meeting on 18 February 2013 and then be ratified by at least 13 contracting states states, including mandatory ratifications by France, Germany, and the United Kingdom. The EU Council expects this process to be finished already until November 2013 so that the first Unitary Patents can be issued by the EPO and the first cases can be accepted by the Unified Patent Court as of April 2014.

As sketched in our yesterday's posting "The Prospect of the Unitary Patent in 2013 – Some Thoughts on Ratification" on ksnh::law, for a number of reasons the ratification process may not run through as smoothly as expected, as the requirement of national ratification, either pariamentary or by poular vote, opens the doos for all kinds of national intests again.

The biggest element of uncertainty, however, may be the United Kingdom and the anti-EU movement in the ruling Conservative Party [1]. But also the general eurosceptic atmoshere on the British isles where the public already began to discuss an exit from the European Union at all [1, 2, 3, 4, 5, 6] may endanger the project, as the so called referendum lock may require a totally unpredictable popular vote in the UK on this question.

Update (04.01.13): I just recognised that the two above Regulations have already been properly published in the Official Journal of the European Union, L 361, Vol. 55, 31 Dec 2012:

REGULATION (EU) No 1257/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection.

COUNCIL REGULATION (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.

Note that Article 5 of Reg. No. 1257/2012 represents the controversial Article 5a that was introduced by COREPER on 19 Nov 2012 (see here) in order to replace former Articles 6 to 9 that have been deleted on the European Council summit of 28/29 June 2012 (see here).

By the way, do we have to call this legislation (together with the UPC Agreement) now the Nicosia Convention in tribute of the Cyprus Presidency, according to a premature idea of the Polish Presidency in late 2011?

(Photo 1956 by Beyer via Bundesarchiv under a CC license)

Miraculous Sausages: The Unitary Patent on the Finishing Straight

2012-11-30T23:43:00.001+01:00

[The making of EU legislation according to Otto von Bismarck]

A miracle is an event attributed to divine intervention. As this may or may not be true in the real world, on 'Spaceship Brussels' an unexpected progress usually is not the result of God's own hand but, rather profanely, of tactical skills to recognise and political assertiveness to utilise a favourable strategical situation for finding allies, offering horse trades and, finally, achieving a political benefit.

But given the latest front lines in the negotiations for the Unitary Patent and Unified Patent Court, we must confess that finding a compromise between the diametrically opposed positions of the EU Council and the JURI committee with respect to the legal supervision of the CJEU over substantive EU patent law (see earlier posting) would be a miracle indeed.

The dilemma started on the European Council summit on 28/29 June 2012, as UK Prime Minister David Cameron could push through that Articles 6 to 8 of the UPP Regulation be deleted to the effect that substantive patent law would not anymore be subject to CJEU supersision. The European Parliament and its legal committee (JURI) were strongly irritated and willing to refuse any text in which the CJEU has not the final say about the EU patent system (see e.g. here or there).

But nevertheless, such a divine compromise may have been found in COREPER on 19 November 2012 under the Cyprus Council Presidency in the form of a new Article 5a UPP, replacing former Articles 6 to 8 (see press release). The most recent drafts thus are:

UPC Agreement, draft dated 14 November 2012 (Document 16222/12),
UPP Regulation, undated draft of 19 November 2012 (leaked Document sent from COREPER to JURI).

On the ksnh::law blog, the miraculous development has been covered by the following postings:

Summer Break is Over (Nov 19)
EU: Unitary Patent: State Of Play, What Next? (Nov 20)
New Council Documents (Nov 20)
More Secrets Unveiled (Nov 21)
Some Thoughts on Territorial Aspects (Nov 25)

But why is that a compromise? Why is JURI prepared to accept the amended UPP Regulation without Articles 6 to 8?

The reason appears to lie in new Art. 5a (3) UPP, reading

The acts against which the patent provides protection referred to in paragraph 1 [i.e. the substantive effects of a Unitary Patent] and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the participating Member State whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 10 [treating a Unitary Patent as a national patent]

which is outlined in the explanation on page 2 of this leaked document:

Pursuant to new Article 5a(3) UPP Regulation, uniformity of protection will be achieved by the reference to the law of the participating Member State whose law is applicable to the European patent with unitary effect as an object of property pursuant to Article 10 UPP Regulation. Implicitly this refers to Articles 14f to 14i of the UPC Agreement, which correspond to the former Articles 6 to 8 of the UPP Regulation and which define the scope of the right of the proprietor, its limitations and prior user rights. Articles 14f to 14i of the UPC Agreement which previously applied only to ”classical” European bundle patents have now been amended so that they now apply also to European patents with unitary effect. These Articles defining the scope of the right, its limitations and prior use rights will form an integral part of the national law of each participating Member State in which the UPC Agreement will come into force and for which the European patent with unitary effect will become operational.

That is, in short, by a legislative trick the new Unified Patent Court is defined to be a "court of a European Union member state" (just like e.g. the Benelux Court of Justice) and thus is, as a "court or tribunal of a Member State" within the meaning of Article 267 TFEU, entitled to refer questions to the CJEU and ask for a preliminary ruling.

As some may feel reminded of the finding of Otto von Bismarck, who compared laws to sausages, since it is better not to be there when they are made, British Tory eurosceptics might feel severely outsmarted by the EU legislation as the trophies their brave knight David Cameron heroically won on the European Council summit in June 2012 suddenly turn to a Pyrrhic victory.

But the tide may turn again, because for entering into force the UPC Agreement has to be ratified or acceded by thirteen member states including the three (mandatory) Member States in which the highest number of European patents had effect in 2012 (cf. Art. 59 UPC Agreement), which will be Germany, France, and ... the United Kingdom, thus providing UK eurosceptics with a long lever to infuriate the rest of the Union - maybe except Italy and Spain.

(Photo 2010 by timo_w2s via Flickr under a CC license)

JURI Committee Insitst on CJEU Control after Council's political Move (to be cont'd in Sept)

2012-07-11T17:18:00.001+02:00

Despite what initially sounded like good news from the European Council summit on 28/29 June 2012, the epic EU unitary patent saga will probably continue for many more months, as reported lately on the ksnh::law blog:

At the European Council meeting, a truly European agreement on the seat of the Unified Patent Court could be reached, namely a split of responsibility between the three candidate cities of Paris, London, and Munich, so that the whole EU Patent Package (unitary patent, translation arrangement, unified patent court) was initially expected to quickly proceed to full adoption by the EU Parliament and the EU Commission.

The problem was, however, that UK Prime Minister David Cameron could, under the strong influence of his eurosceptics allies at home, push through the 'suggestion'

that Articles 6 to 8 of the [Unitary Patent] Regulation [...] to be adopted by the Council and the European Parliament be deleted

meaning that substantive EU patent law will not any more be subject to legal supervision by the European Court of Justice (CJEU), understood by some observers as nothing less than an open declaration of deep mistrust against the Union's highest court, if not political warfare.

Meanwhile, however, we saw that the allegedly clever move of UK Prime Minister David Cameron to force Mr Hollande and Ms Merkel to accept the removal of the CJEU from substantive EU patent jurisdiction in fact blocks progress rather than promotes it, as the EU Parliament and its Legal Committee (JURI) are far from accepting such a severe amendment to the draft text of Unitary Patent Regulation agreed upon with the EU Council in December 2011 (see here).

Since then two press releases have been issued by the Parliament that show both the Parliament's level of irritation and JURI's willingness to refuse any text in which the CJEU has not the final say about the EU patent system:

Council move would infringe EU law, says EP rapporteur (July 10)
Parliament postpones vote due to Council's last-minute change (July 3)

The press release of 3 July 2012 informed that the EU Parliament, which originally wanted to nod through this matter on 4 July 2012, removed this item from the agenda under the harsh critics of the Rapporteurs in charge of the negotiations ("scandalous", "breach of procedure", "oriental bazaar").

The press release of 10 July 2012 clarified the view of rapporteur Rapkay, expectedly the opinion of the JURI committee as a whole:

The European Council's move to delete three key articles from the long-awaited EU patent regulation, and thus greatly reduce the European Court of Justice's power to enforce it, "infringes EU law" [...]. "If you take that content out, there is nothing left to regulate" [...]. What remains "would not be effective at all" in ensuring EU-wide protection of patent rights.

and further

[...] "Today is not a starting point for new negotiations.We shall stick to the agreement" reached in December 2011. "If there is no EU patent, it's the Council's fault"

That latter statement expresses a decent level of determination and aggressiveness against the EU Council in general and the UK prime minister in particular. There is a legitimate fear that the Unitary Patent will sooner or later be drawn into the shallows of British domestic politics, as Mr Cameron might already fight for his position as Great Britain's head of government.

We might witness an interesting political summer on the British isles while waiting on JURI to continue discussing this issue with the Parliament's legal service after the summer recess, possibly in September.

Today, History is Written in Brussels: European Patent System agreed on after 40 years of Discussion

2012-06-29T15:59:00.000+02:00

Today (29 June 2012) is a truly historic day for the European Union and the European patent community!

After some 40 years of discussion (the Community Patent Convention was signed on 15 December 1975) the EU Summit (European Council) finally aggreed on a EU Patent System involving a Unitary Patent valid in 25 out ot 27 EU member states (Italy and Spain still refuse to accede) and a Unified Patent Court for handling centralised EU-wide litigation and revocation actions.

Document EUCO 76/12 of the European Council, 28/29 June 2012, concludes:

Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.

Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).

Concerning actions to be brought to the central division, it was agreed that parties will have the choice to bring an infringement action before the central division if the defendant is domiciled outside the European Union. Furthermore if a revocation action is already pending before the central division the patent holder should have the possibility to bring an infringement action to the central division. There will be no possibility for the defendant to request a transfer of an infringement case from a local division to the central division if the defendant is domiciled within the European Union.

We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.

For further information, please refer to our today's article titled "BREAKING: Agreement On EU Unitary Patent Reached" on the ksnh::law blog.

Unified Patent Court: Rumours running wild before tomorrow's start of EU Summit

2012-06-27T10:49:00.000+02:00

As recently reported on ksnh::law under the headline "Munich Dropped Out?", a press report of French journalist Sophie Mosca on Europolitics.info assumes that Munich has lost the race for the seat of the Central Division of the Unified Patent Court, as the EU Committee of Permanent Representatives (COREPER), which is responsible to prepare the decisive EU Summit (European Council) beginning tomorrow in Brussels, may suggest to award Paris with the seat of the Central Division and give some supportive functions such as the court registry to London:

[...] Munich seems to be out of the running, Paris appears to be the favourite and London could win a few laurels.

As reasons for this ranking the article refers to the fear that a Munich-based court could prefer bification over invalidity counter claims and the fact that Munich already hosts the European Patent Office as the future examination authority of the Unitary Patent. Paris was first suggested by the Polish EU Presidency in December 2011 as a middle road between the liberal German and the strict English approach towards patent infringement and injuctions. Also, two main players in this game, EPO president Benoît Battistelli and EU Competitiveness Commissioner Michel Barnier are French. As Paris appears to be supported by the President of the EU Council Herman Van Romuy, the FT.com assumes that "the smart money appears to be on Paris at the moment".

In our today's posting "On the Eve of the EU Summit" we report on a compromise plan of Herman Van Rompuy - allegedly in agreement with the 'most concerend' EU member states (i.e. the UK, France, Germany) -, as provided via EuropeanVoice:

Earlier this month, Denmark, which holds the rotating presidency of the Council of Ministers, asked Herman Van Rompuy, the president of the European Council, to broker a compromise.

Van Rompuy and Helle Thorning-Schmidt, the prime minister of Denmark, have now written to EU leaders proposing a solution.

They wrote: “After consultation with the most concerned member states, we have prepared an outline for an agreement on the outstanding issues – the location of the seat of the unitary patent court (UPC).”

They propose locating the seat of the court's central division, along with its president's office and registry, in Paris, with other departments based in London and in Munich.

“Given the highly specialised nature and quality standards, we also propose to create specialised clusters in two sections of the UPC, one in London, the other in Munich, which will continue to deal with administrative matters.”

However, it appears to be safe to assume that it will neither be "smart money" nor Van Rompuy's plan that will really decide on the seat issue, but rather the individual agendas of the EU Heads of Government regarding the EU depth crisis, when they will gather tomorrow in Brussels for holding the EU Summit.

It appears more likely that the seat will be awarded to exacly that EU member state that is prepared to compromise to enable an EU-wide agreement on appropriate (financial) measures for tackeling the EU crises. In this respect, Munich may still have chances as Angela Merkel is reported to be prepared to rule out eurobonds "as long as I live" since even the Federal States of Germany do not have a communitarization of depts. Exactly this, however, is one cornerstone of the new Grand Plan drawn up by a European presidential Quadrumvirate consisting of EU Council President Herman Van Rompuy, EU Commission President Jose Manuel Barroso, Eurogroup President Jean-Claude Juncker and European Central Bank President Mario Draghi.

In any case, things remain exciting and EU Summits always are big bazaars where you never know what you will come out with.

(Photo 2010 by Kamshots via Flickr under a CC license)

Class Headings Decision C 307/10 Issued by CJEU (UPDATE: Interpretations of OHIM and MARQUES)

2012-06-26T11:41:00.001+02:00

On our coporate ksnh::law blog, we recently reported on the much anticipated 'IP TRANSLATOR' decision (C 107/10) of the Court of Justice of the European Community as released on 19 June 2012.

As I give a brief summary on the base below, please refer to the posting titled "CJEU ‘Class Headings’ Case C-307/10 ‘IP TRANSLATOR’ – Final Judgement Is Out" for a more complete coverage of the decision.

The trademark application was launched as a test case by the Institute of British Patent Attorneys (CIPA) to have OHIM's practise as to the meaning of class headings reviewed by the CJEU. The national UK trademark 'IP TRANSLATOR' was claimed for ‘Education; providing of training; entertainment; sporting and cultural activities’, i.e. the class heading of Class 41 of the Nice Classification. The UK IPO refused the application on the basis of Article 3(1)(b) and (c) of Directive 2008/95 and OHIM Communication No 4/03, according to which the trademark covers all services falling within Class 41, so that the trademark was considered lacking distinctive character and being descriptive in nature for "translation services", which also undefalls Class 41. The susequent appeal to the referring court raised that the application did not specify, and therefore did not cover, translation services.

The issued decision is quite clear on this problem. Therein, it has been clarified

that the goods and services must be identified with sufficient clarity and precision to enable third parties, on that basis alone, to determine the extent of protection;
that the genereal indications of the class headings may be used provided they are sufficiently clear and precise; and
that, if (all general indications of) a class heading is used, this will not be considered to cover the entire class if this is not considered sufficiently clear (no. 62). In this case, the applicant would have to specifiy the goods and services further.

Thus, the court clearly voted for the means-what-it says approach.

From this decision the following three issues arise:

Pending applications reciting class headings which are not clear and precise. Here the court stated that the applicant must be given the chance to specify the goods and services further, which means to extend the scope beyond the plain meaning of the general indications of the class heading.
Registrations reciting class headings which are not clear and precise. Here the court did not give any indication how this problem can be resolved. Personally, I would assume that means-what-it-says would prevail in the case of a conflict or cancellation actions. But this remains the most relevant issue. How to deal with the past. This is a point currently dealt with in the Class Headings Project of the Convergence Programme.
General indications which are not clear and precise. This refers to what the Advocate General raised in his Opinion of 29 November 2011. Some of the general indications (e.g in classes 37 and 45) would be much too general and cover goods and services which are much too varied to be compatible with the function of a trade mark, which is to serve as an indication of origin (see no. 84 of the Opinion). Thus, in the Taxonomy currently being set up in the Convergence Programme, it must be taken care that all groups of terms defining a class scope are sufficiently clear and precise to fullfill this function. Note, however, that all these terms currently proposed have been confiremd to be accepted by all national offices as well as OHIM and WIPO for classification pruposes.

UPDATE (05.07.2012): Today we report on OHIM's conclusions drawn from that decision (see this announcement and the new Communication Nº 2/12) according to which a trademark applicant using the general indications of a particular class heading of the Nice Classification in order to obtain protection for all goods/services covered by that class only needs to make an appropriate statement like this:

I hereby confirm that I am applying for all of the goods or services included in the alphabetical list of each class field.

This practice, however, is critisised by the brand user's association MARQUES in an open letter sent to all IP offices in the European Union, including OHIM, as it would require the applicant to additionally study the Nice classification's alphabetical list (pdf) of goods/services of that particular class before he is able to exactly determine the goods and services covered by the trademark, whereas the CJEU clearly demanded the opposite:

Directive 2008/95 [...] requires [that] the goods and services for which the protection of the trade mark is sought to be identified by the applicant with sufficient clarity and precision to enable the competent authorities and economic operators, on that basis alone, to determine the extent of the protection conferred by the trade mark.

London bid to host Unified Patent Court trimmed down as D-Day (or rather "Jour J") is Approaching

2012-06-18T19:18:00.001+02:00

British IP lawyers lobbying to bring the Japanese IP High Court home to London.

Joff Wild, chief editor of renowned London-based IP strategist's periodical IAM magazine considering himself a prod Brit has already previously expressed that, when it comes to the UPC seat, his "sympathies are with the Germans". Now he again explains why London should not be the home of an EU patent court and clearly pleaded for Munich ("makes the most sense") and for Paris and even The Hague, the latter having entered only recently the race for the seat of the Central Division - the first instance of the future Unified EU Patent Court. Mr Wild basically concluded that

London offers nothing that the other candidate cities do not offer, while its drawbacks are far greater than those presented by Munich, Paris or the Hague. The UK government should not have entered the race in the first place; it should withdraw now. But if it does not, other member states should not consider the UK capital. There are far better alternatives elsewhere.

Besides a number of rather structural factors (comparably few potential UK court users, too expensive, peripheral location, etc.), the probably most persuasive argument is that

UK government and representative IP organisations have shown little inclination to do any of the heavy lifting. [...]. The British government and representative organisations only seem to have got involved now that money is at stake.

This is exactly the feeling that at least German IP professional have about the London bit, as the British capital became a candidate city rather late and only after UK legal professionals explained the economical implications involved to their Prime Minister. It did not come as a surprise that the British law gazette reminded David Cameron that "the UK legal sector could lose almost £3bn a year if the proposed new European central patents court is not based in London" only shortly before the Competitiveness Council meeting on 30/31 May 2012 (see here)

Anyway, such remarks will not anymore be heard by the European Council (EU Heads of Government) who will attend to this matter on 28/29 June 2012 (see here) - provided the Greek elections, the Spanish banking crisis and the concerns about Italy leave some room for discussing other matters - as diplomats expect that "[a] decision on the location of the court will be part of a high-level political deal that will have little to do with patents" (see here).

In this connection we pointed on our ksnh::law blog ("Final Showdown Is Nigh") to Document 10059/12 dated May 24, 2012, addressing COREPER 1 and suggesting a way forward for a political agreement of the creation of a Unified Patent Court, as well as to an AFP is report indicating that at tomorrow's COREPER meeting (19 June 2012), EU president Herman Van Rompuy might table a final proposal in preparation for the European Summit to be held at the end of this month. This proposal might indicate the President's favourite UPC seat and the political and/or financial compensations he expects of the respective member state in return.

Attached to Document 10059/12 is a Joint Statement from the Danish Presidency and the (incoming) Cypriot Presidency, sketching the political process up to the 1st of April 2014, when the system should be ready for the first registration of a European patent with unitary effect.

It is so impressive that the EU administration did not yet loose its idealism and fine sense of humour despite of all those disasters that recently broke in over Europe. This attitude will surely help to restart Unified Europe just like the mythological greek bird of Phoenix (not to be confused with Ikarus).

(Photo 2011 by Richard of England via Flickr under a CC license)

Controvercy on Unified Patent Court is developing into a Beacon for Europe's policy-making capability

2012-06-08T12:13:00.001+02:00

In a series of four postings on our ksnh::law blog we comment on both the latest developments of the negotiations for a Unified Patent Court Agreement at the recent Competitiveness Council Meeting and its future perspective before the background of Europe's looming financial crisis:

Below please find a short overview of the main facts and observations raised therein:

Document 10362/12 summarises the poor result that once more no political solution was reached. Its crucial passage reads

The Council held a preparatory debate in order to gather consensus on the location of the seat for establishing a unified patent court, with a view to a successful decision on the seat by the European Council at its meeting on 28-29 June 2012.

It is apparent that the political actors in the EU Council and the Polish and Danish Council Presidencies have meanwhile completely stopped to listen to expert advice and now try force a breakthrough by some purely political decision on the seat of the central division of the Unified Patent Court, as for a couple of months now the official line of argumentation is that all problems but the seat of the central division are solved (see e.g. Commission President José Manuel Barroso's press release).

Now, as the matter has finally reached the top flight of EU decision-making (see here), Angela Merkel and all of her colleagues on EU level are now poised to undertake a final approach to find a political solution at the the European Council on June 28 and 29, 2012, where, however, the Patent issue will only be a side aspect as fire-fighting the financial crisis will bind most resources.

Up to now, the political game of power went so that Paris, presented as a compromise candidate for the opposing London and Munich bits, was initially rejected but recently declared favorite, while the Italian change of attitude to support the Unified Patent Court (but not the Unitary Patent!) if the Central Division is awarded to Milan will not make things easier (see here). It now is a mere fight for prestige and money (“Billions at stake”) but not so much on European interests and perspectives (see here and here).

Of course, national interest always played a prominent role in the turbulent history of the European Union (official version here) and the present issue is another striking proof for the deficiencies of the EU policy-making process, since complicated substantive arguments as to the merits have been dismissed at a certain point and a purely political question became decisive for the whole project.

There is no doubt that winning the seat would be a tremendous victory for the respective government and an enormous economical boost for the respective country (see estimate as to the financial benefits for the hosting city/country) so that the seat issue is a perfect pledge and leverage for even more important negotiations such as the measures to take for stemming the European sovereign-dept crisis. It can easily be imagined that Paris or Berlin is awarded with the seat in order to soothe François Hollande's left-winged post-election reform impetus or Angela Merkel’s strict saving agenda, respectively.

The epic and painful process of drafting and implementing a unified European patent infrastructure discloses frightening mechanisms and structural deficiencies of the European policy-making process that may endanger stability and acceptance of and confidence in the European Union as a whole, particularly before the background of the severe financial and depths crisis that shakes the Union like nothing else before.

According to my understanding, four major problems can be identified (see details here) that prevent EU politicians from finding a reasonable solution satisfying the needs of the European innovative economy:

Ignorance as to users and experts and their mostly well-founded observations;
A striking lack of transparency preventing public involvement;
An information policy that disguises more than it discloses; and
National egoisms, inappropriate horse-trading and power games.

These disturbing shortcomings of the EU legislative process were also summarized in a somewhat desperate e-mail that prominent IP litigator and former legal expert consultant to the EU Commission Jochen Pagenberg sent to EU Council President Herman Van Rompuy (see also this article). In the e-mail, the following issues were addressed:

Abandonment of the original goals (patent litigation system working in practice and attractive to its users) occurred behind closed doors in an unprecedented process of legislation, as the papers of the “patent package” had never seen the light of a public discussion;
Matter has been handled by the instances in Brussels over the last six months in such an undemocratic behavior that few people in Europe would have imagined;
Council hides legislative texts from public discussion because they fear that otherwise users and members of national parliaments would learn about negative impacts of the project and therefore would oppose and refuse ratification;
Many additional flaws have found their way into the texts as a result of political compromises which again have never been discussed with users.

Perhaps the most striking issue is the EU’s tendency to lock away documents offering substantial content that may, however, provoke discussions and objections among stakeholders (see e.g. intransparent wheeling and dealing, EU locks away documents, something to hide), which is not what one may expect of democratic institutions like the EU Council and its Presidency.

But there is still hope as driven by the financial crisis, some politicians in charge realize that the solution might be to dare more European integration, not less, as German Chancellor Angela Merkel sketched at this year’s World Economic Forum 2012 in Davos:

Europe must be a political union, where the European Commission looks more like a government, the European Parliament is stronger and the Council is a kind of its second chamber, and the EU Court of Justice is the supreme court with powers to supervise the implementation of public budgets in individual countries.

Singing the same tune, the President of the European Economic Social Committee (EESC), Mr. Staffan Nilson, added that

we need deeper European integration, in which responsibilities are shared, risks mutualised and resources jointly leveraged to create debt instruments and a growth model which is credible, coherent and sustainable.
we need a Europe of true solidarity and respect for all citizens.
we need a Europe of democracy, both representative and participatory.

No doubt, this would surely be the right approach to both rescue the European project and establish an efficient and accepted unified patent infrastructure. The question only is whether such insight does not come far too late to save anything, as the confidence of markets in the European currency and of potential uses in a European unified patent infrastructure will not be endless.

(Photo 2010 by Katuslampan via Flickr under a CC license)

Anti-Software-Patent Campaigners count on François Hollande

2012-05-25T08:57:00.003+02:00

In our today's article "Anti-Patent Campaigners put their trust in François Hollande as EU Council attends to Unitary Patent Court again" on the ksnh::law blog we attend to the reopening of negotiations on the Unitary Patent Court at next week's Competitiveness Council meeting on May 31/June 1 (see draft agenda, item 19) and the influence anti-software-patent campaigners such as the French April group may have on the process now as socialist François Hollande took office as the new President of France.

In fact, Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team and now Deputy Minister responsible for SMEs, gave some disturbing answers (pdf, french) in a tendentious pre-election questionnaire regarding issues like computer-implemented inventions, the EPO, or the planned EU Unified Patent Court:

The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
It is essential that the patent office’s practice is consistent with what tax payers and the public expect of the patent system.
A reform of the control structures of the EPO appears to be required. The European Union as the major legislator of innovation policy in Europe should have more control.
“I am unhappy with creating specialized courts entrusted to ”expert judges” from the group of patent attorneys.
It has already been found in the US that the patent chambers of the CAFC unwarrantedly extended the scope of patentability to sectors which the patent system was not made for.
It is unjust that patent offices and firms who should execute the industry policy as set by the legislator can exercise legislative power by defining this policy themselves.

Those pre-election opinions of Ms Pellerin and Mr Hollande pretty much sound like what Lionel Allorge, President of the April group, expects of Mr Hollande at the coming Competitive Council:

“With this first Competitiveness EU Council, the French president and the government have a unique opportunity to act against software patents and on the legal uncertainties that threaten Free Software as well as many companies, especially SMEs and SMIs, by preventing them from innovating. [...] An overhaul of the entire European patent system is essential to avoid getting into a situation similar to that of the United States, in which millions of dollars are wasted because of an out of control patent system, and to ensure a democratic control over the patent system.”

Amendments to the German Patent Act (PatG)

2012-05-20T22:46:00.003+02:00

Should you be interested in the latest amendments to the German Patent Act (Patentgesetz, PatG), you may have a look at our ksnh::law blog, where we provide an introduction in both English and German:

The respective proposal of Federal Minister of Justice Sabine Leutheuser-Schnarrenb erger (Liberal Democrats/FDP, @sls_bmj) was approved this week by the Federal Cabinet and will enter into force as soon as the Federal Parliament ("Bundestag") approved is as well. The purpose is to reduce bureaucracy and providing for more flexible and cost-efficient proceedings before the GPTO.

For applicants, basically three amendments are good news:

After the introduction of the electronic case file system ElSA at the GPTO the Amendment clears the path for public access to the electronic ElSA files, not less than 9 years after the EPO introduced online file inspection.
In future, the search report will provide a full opinion on patentability (novelty, inventiveness, etc.).
The term for filing a translation of application documents filed in a foreign language is prolonged from 3 to 12 months, in case the application is filed in English or French.

As the GPTO will nevertheless draw up a search report even if the translation of an English or French application has not yet been submitted, English and French filers may want to request a prior art early enough e.g. upon filing) and obtain a comparably cheap (300 EUR) opinion on patentability from the GPTO without the need of translating their application

The Copyright Controversy in Germany: 'We are the Autors' versus 'We are the Citizens'

2012-05-18T00:07:00.000+02:00

On May 10, 2012, renowned German weekly quality newspaper 'Die Zeit' published an appeal against theft of intellectual property with the flashy title "Wir sind die Urheber!" (we are the authors), a clear - and surely wanted - allusion to the famous battle cry "Wir sind das Volk!" (we are the poeple) of East Germans during the uprise against the former GDR regime in 1989/90 which soon lead to the collapse of the East German state and later to the German reunification.

The Appeal, coordinated by 32 years old German author and producer Matthias Landwehr and meanwhile undersigned by more than 4.000 German authors, screenplay writers and other creative artists, is - legitimately - inteded to emphasise author's rights and to defend their copyright-based commercial interests in the ongoing copyright debate driven by the internet-affine Pirate Party (Piratenpartei) and its anti-copyright attitude aiming at weakening copyright law and legalization free copying. The translated author's appeal reads as follows:

We are the authors!
Against intellectual property theft

As writers and artists, we follow the attacks against copyrights with concern and incomprehension. Copyright is a historic achievement of civil liberty against feudal dependence and it guarantees the material basis for individual creation.

The conflict of interest between authors and exploiters, as alleged in this context, draws an absurd picture of our working conditions. In a society characterised by the division of labour artists and give the marketing of their works into the hands of publishers, galleries, producers and collecting societies, if they represent and defend their interests in the best possible way. The new realities of digitization and the internet do not justify profane intellectual property theft, or even to call for its legalization. On the contrary, it is necessary to strengthen copyright protection and adapt it to today's conditions of rapid and massive access to the products of intellectual labour.

Copyrigt law provides that we the artists and authors can live by our work and protects us all even against global internet corporations, whose business model accepts the disenfranchising of artists and writers . The everyday presence and the benefits of the internet in our lives cannot justify theft and is not an excuse for greed or stinginess.

The association of the autor's slogan to the politically and historically loaded parole "Wir sind das Volk!" is no coincidence and intends to emphasis the aspect of freedom of their matter by creating a - rather exaggerated one may say - link to political freedom movements like the French Revolution (cf. German dramtist Georg Büchner's 1835 novel "Dantons Tod" [Danton's death]) or the German Civil Revolution of 1884, the so called 'Märzrevolution' (cf. German poet Ferdinand Freiligrath's 1849 poem "Trotz Alledem"). In this regard, German readers may find the article "Geschichte eines deutschen Rufes" interesting.

But this sort of construed historical legitimation of a modern concern is not reserved to authors and artists defending their personal rights by reminding us to the origins of (German) copyright law in the European freedom movements of the 18th and 19th century ("historic achievement of civil liberty against feudal dependence") resulting in the Berne Convention of 1886 as the first international agreement governing copyrights, but may also be utilised by modern "digital freedem fighters", as they may see themselves, and their political arm of the European Pirate Parties.

Consequently, within a few hours after publishing of the author's appeal an opposing initiative satirising the first appeal in not less plain words has been initiated under the name "Wir sind die Bürger!" (we are the citizens). The translation of this pirate's appeal, as initiated by media educator and member of the Green Party Thomas Pfeiffer (@codeispoetry) who as a social media consultant is not that neutral but has to defend his business model as well, reads as follows:

With great concern we, the citizens follow the discussion about copyright and its enforcement on the internet. We do not want to abolish copyright. To the contrary, we want copyright to become fit for the future but that means that it has to converge towards social realities.

We support that people who want to make a living from their art and their creative work are provided with the conditions required to do so. These include

collecting societies,

terms of protection and

payment models on the internet.

Each author should be able to decide for himself what should happen to their works - an what should not.

The internet dramatically changes the framework for cultural creativity. Suddenly copyright issues are relevant for all of us - even for lay people. [...] We, the citizens are exaggerated with the rules, if we get creative on the internet. At the same time, professional creatives are rightly outraged that their works are used without payment.

We must design the legal framework so that the interests of artists are respected - and that, at the same time, as many people as possible consider these rules fair and respect them. This is the only way to increase the acceptance of the value of copyrighted content!

We do not want that copyrights are enforced by unreasonable means. [...] We want a copyright an therefore hold out our hands to all creative people and their business partners. Let us join forces to look out for a solutions which equally respects the author's and artist's right of freely disposing of their works as well as the right of all people to live without repression and surveillance.

Moderate voices from politics. Since the two appeals articulate legitimate interests in a more or less reasonable way, most responses from either side were controverse but reasonable. For examample, an MP of the Green Party feared that the author's initiative would only increase the divide as in times of intenet-driven social upheaval intelligent copyright regimes are required insted, while representatives of the Pirate Party occasionally recommended to take the author's criticism seriously. The chairman of the conservative group (CDU/CSU) in the German Bundestag, Volker Kauder expressed his understanding that author's and musician's demand to protect their intellectual property also on the internet but also warned that the internet should not be regarded as an opponent of but as a chance for culture and creatives.

Radical positions. Some hardliners on the anti-copyright side, however, exceeded the framework of democratic discourse and only tried to destroy any discussion, such as those hackers of the Anonymous movement who perfidiously tried to compromise artists supporting the author's appeal by disclosing personal data on an internet pillory. Clearly, such practice demonstrates a totalitarian attitude aiming at muzzling and outlawing ideological opponents, this time authors and creative artists next time maybe ethical or religious minorities. A destructive attitude demonstarted also a campaign called "Wir sind Filesharer" (we are file sharer) that openly manifests "we ... on your copyright, we ... on your law, we ... on your intellectual property", a slogan that appears to be the result of a consequent further development of the statements of Julia Schramm, an 28-years-old wanna-be leader of the German Pirate Party and egocentric writer of an "ego-novel" for which she collected a record breaking advance payment, who innocently confesses that she considers intellectual property "disgusting".

The role of the collecting societies. Based on the author's argument that copyright protects against global internet companies whose business models are based on disenfranchisement of artists and writers, the relationship between author's and collecting societies was addressed by assuming that the success of those copyright-ignorant business models may be a consequence of the collecting societies' inability to adapt to the internet age to the benefit of authors and artists.

In a position paper (in German) of the collecting society VG Wort, the current copyright regime is strongly defended:

"The author is the creator of the work. He is entitled to moral and exploitation rights. Use of works without permission of the copyright holder is illegal if not expressly permitted by law. Amendments and changes in work generally require permission from the copyright holder. What is allowed, however, is free usage of a work for creating a new independent work. In the digital world, we should stick to theses principles."

Questionable positions. In a much discussed blog post titled "You are not relevant to the system", prominent lawyer-blogger Udo Vetter, being well-respected among German pirates and their sympathisers, considered it wise to accuse the authors of taking themselves too seriously and to play off their concerns against the freedom of speech as he considers a free internet more important than the cultural contribution of authors and creatives:

"It is better if everybody can freely express his/her opinion online as compared to everything going down the drain just because a few writers think they have the unconditional claim on a solid livelihood against society."

Together with Thomas Stadler, another prominent IP-critical lawyer-blogger (internet law), Vetter took the somewhat creative position that social obligations of properly rights (in rem), as codified under Art. 14 (2) GG of the Germany Constitution ("Property entails obligations. Its use shall also serve the public good") would also apply to intellectual property (which might be true) even though it is the basic argument of anti-copyright campaigners that legal concepts from the material world like "ownership" or "theft" cannot be transferred to the digital world as something like "intellectual" property simply does not exist.

Vetter: "The controversial concept of intellectual property is so naturally taken for granted as the assertion that making a digital copy is "profane theft". Those who take maximum positions very self-evidently should not be surprised if the fragility of such positions may be demonstrated by a few words only. Thomas Stadler has already done so on his blog with some relevant arguments regarding the social obligations of property.

Stadler: "Those who rely on property rights must also recognize that the property is subject to the social obligations. Since the creation of a mental work also is a social process - another fundamentally difference over tangible property - the social obligation of "intellectual property" is even more pronounced, not least because of its enormous importance for education and culture."

What does Stadler mean by "creating a mental work is a social process"? Is that meant to be an ideological basis for expropriating creative artists since, in reality, their works are only results of social processes visualised by the artist who only acts as a medium? Julia Schramm would readily support such approaches as for her artists only are "filters" for what is in the world and belongs to all. That in fact immediately results in the concept of "publicly owned art" (volkseigene Kunst) which was a general doctrine in the communist German Democratic Republic (GDR) and leads us back to the historic slogan "Wir sind das Volk".

All this was commented by Christoph Nebgen, a third lawyer-blogger, in a posting titled "with all due respect, dear colleagues" who feels reminded by Stadler's social-process-argumentation of the terminology of totalitarian bureaucratic states:

An artist reflects the social reality as much or as little as everyone else. He creates a piece of art, just like an engineer creates a technical device, a chef cooks a soup or a hairdresser cut the hair. [...] The quoted argument, however, would also justify stealing a flat screen in a shop, since its design only represents a reflection of social reality. Whether this reflection is manifested in glass and plastic, or the sound of a melody or a clear soup, a qualitative difference does not exist.

[...] Vetter [and Stadler] - you may not believe it - even refer to the social obligation of property in order to negate the author's rights to their works. This is like I would be allowed to live in my neighbor's house, just because Art. 14 GG requires a social obligation of property. In fact it does so, but not to give it away.

Instead, the allegedly free internet shall now represent a contribution to culture. However, the internet is about as free as the GDR was democratic. Or does the term freedom lately refer to the internet monopolies of Facebook or Google?

But what does the German Piraty Party actually say to all this? Their latest manifesto demands in the section "copyright and non-commercial reproduction" the following:

[...] The present legal framework for copyrights limits the potential of the current development, since it is based on an outdated concept of so-called “intellectual property” which opposes the goal of a knowledge and information society.

Technical systems which obstruct or prevent the reproduction of creative products ("copy protection, DRM, etc.) create artificial scarcity in order to turn a public good into a private one for economic purposes. The creation of artificial scarcity purely for economic purposes seems immoral to us, therefore we reject these technologies. [...]

[...] the reproduction of digital products cannot be restricted in a technically sensible manner and the widespread enforcement of prohibitions in the private sphere has obviously failed [...]. We are convinced that non-commercial reproduction and use of creative products should be seen as a natural process, which does not affect the interests of most originators in a negative manner. [...]. We therefore demand that copying, providing access to, storing and using creative products for non-commercial purposes must not just be legalized, but actively promoted to improve the public availability of information, knowledge and culture, because this is a prerequisite for the social, technological and economic development of our society.

Please judge for yourself, but according to my understanding, this means that once an author publishes his work on the internet, everyone should have the right to copy, use, and redistribute it for non-commercial use. This is exactly the "for free culture" the author's appeal criticises.

It is a fact that something that costs nothing is not worth anything. In this sense, the pirate movement, their anti-copyright apologists, and their voters and supporters in fact demand to fight intellectual property by intellectual dispossession of authors and artists (and later maybe also of patent owners).

Maybe it is true what some political observers notice: There has never been such a high level of public contempt of artists in (West-) Germany after the war.

A Matter of Confidence: The Right of Access to Documents of EU Institutions

2012-05-10T19:48:00.003+02:00

In the latest ksnh::law blog posting titled "EU About To Lock Away Their Documents More Easily Than Ever?" my colleague Axel Horns discusses the poor level of information transparency within the EU legislative process, starting from Article 2 (1) of the Regulation No 1049/2001 of the European Parliament and of the Council of May 30, 2001 reading

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

Clearly, important EU political actors try to create as little publicity as possible by amending current transparency rules.

Prominent examples of the EU's closed-door approach towards legislative and administrative decision-making from the IP field include

The latter aspect was illustrated by Antonio Pizzoli in a comment referring to the following EU documents classified LIMITE, all of which being crucial to the future EU Unified Patent Court:

Draft agreement on the European Union Patent Jurisdiction - compatibility of the draft agreement with the Opinion 1/09 (21.10.2011, pdf)
Draft Agreement on the creation of a Unified Patent Court - Preparation of the Competitiveness Council on 5 December 2011 (01.12.2011, pdf)
Draft Agreement on the creation of a Unified Patent Court - Presidency compromise text (06.12.2011, pdf)

Before this background, it will be very interesting to see what the soon to be expected decision on new EU freedom of information rules will look like.

From a more global standpoint, one thing is crystal clear: The ongoing deep crises of the European Union is not only a monetary and financial crisis but also a crisis of confidence, which is enhanced by the EU's ongoing attempts to as muchg as possible exclude its citizens and the informed public from the decision-making process.

While many European citizens might not be overly interested in EU legislation and thus just don't care about the above-sketched problem, especially those benevolent, multi-lingual, politically and culturally skilled and high-qualified people are discouraged by the above practise that are urgently needed by the EU as multipliers to increase the acceptance, respect, and confidence among its citizens.

(Photo: (C) 2009 by glsims99 via Flickr and licensed under the terms of a CC license)

Triple 'P' this Month on the ksnh::law IP blog: EU Patent, Pirates, Paperless Office

2012-04-30T22:12:00.002+02:00

This month (April 2012) our ksnh::law blog has reported on basically three very different topics that, at the first glance, do not appear to have much in common:

while upon a closer look some links become evident between the Unitary Patent and the IP sceptical and computer affine Piratenpartei that fears so called 'software patents' like the devil avoids holy water.

As to the EU Patent, The German industry association Bundesverband der Deutschen Industrie e.V. (BDI) has held a conference titled Tag des geistigen Eigentums – Geistiges Eigentum verpflichtet (Intellectual Property Day - Property entails obligations) on which executive and professional representatives expressed their expectations that a conciliation on this matter can and will be reached until next meeting of the EU Competitiveness Council, while the FFII and representatives of the German Piratenpartei expressed their concerns that the Unitary Patent might turn out to facilitate legal acceptance of so called 'software patents'.

Meanwhile, Baroness Wilcox stressed the UK Government's opposition against bifurcation and its strong demand to see the central division of the Unified Patent Court be seated in London.

Clearly, no significant moves will be made prior the second round of the French presidential elections on May 06, 2012. Angela Merkel still supports Mr Sarkozy, while the relationship between Ms Merkel and Mr Hollande is continuing to deteriorate rapidly in particular as Mr Hollande appears to insist on re-negotiating the EU fiscal treaty. Should Mr Sarkozy get re-elected, he might see himself being politically deeply in Ms Merkel’s debt, a situation which might enhance Germany’s chances to get the seat of the Central Division provided that all other issues can be sorted out.

But what happens if Mr Hollande turns out to become the next President of France? It is known that in general Mr Hollande is more open to positions of critics of the current system of Intellectual Property than Sarkozy ever was. But clearly, arguing in an election campaign is one thing, and ruling a State under the limitations imposed by reason of state is quite another.

(Photo 2011 by KitAy via Flickr under a CC license)

IP Sceptical Pirate Party on the Rise in Germany

2012-04-30T08:40:00.000+02:00

The German Pirate Party (“Piratenpartei”) is well known amongst IP professionals for their sceptic stance on the current state of copyright and patent law. On the ksnh::law blog we recently issued two postings titled "Pirate Party Winning Seats In Parliament Of Saarland, Germany" and "Political Turmoil in Germany: Piratenpartei" sketching the recent political developments of the political arm of the pirate movement in Germany, including two electoral victories in the German states of Berlin and Saarland:

On September 18, 2011, the Piratenpartei won 9% of the votes in the Berlin state elections and got their first parliamentary group in a local state Parliament in Germany; (see here);
On March 25, 2012, the Piraten partei won 7.4% of the votes in the Saarland state elections, well above the 5% quorum, giving them seats in the new legislative period (see press coverage), way ahead of the Liberal Democrats that reached only 1.25% of the votes.

But there may be more victories to come:

In the German State of Schleswig-Holstein, state electtions are due to be held on May 06, 2012. Recent polls show up to 9% and even 11% to be expected for the Piratenpartei (date 30 April 2012). The quorum for gaining seats will be 5%.
In the German State of North-Rhine-Westphalia, having the largest population among Germany states and being an important industrialc center of the country, state elections are to be held on May 13, 2012. Recent polls also show results around 8% to be expected for the Piratenpartei (adate 30 April 2012). The quorum for gaining seats will be 5%.
In September 2013, General Elections for the lower chamber of German Parliament (Bundestag) fall due. Recent polls show results between 9% and 11% to be expected for the Piratenpartei (date 30 April 2012). The quorum for gaining seats will be 5%.

Before this background the nervousness amongst other political parties, economists and the legal professions is rising: "Political Turmoil in Germany: Piratenpartei".

Will Unified Patent Court be Trifucated?

2012-03-26T10:46:00.000+02:00

In this article of 22 March 2012 Partners of London based law firm Bristows report on a new compromise approach by the Danish EU Presidency to resolve the current deadlock in the question as to where the important Central Division of the future EU Unified Patent Court should be located (see earlier postings here, here, or here). Currently, the most promising candidates to host the Central Division are Paris, London and Munich:

Intriguingly, the Danes have floated a possible sharing compromise, that is to say that there could be three Central Divisions, or perhaps more accurately, a co-located Central Division.

Unfortunately, the article does not cite any source for this interesting information. So if anybody happens to know more about it, please let me know.

The article goes on the speculate on possible case allocation schemes of such a trifucated Central Division:

For example, would each branch of the Central Division be able to hear all revocation cases, and hence operate in all three languages? Or would the London branch deal with revocation cases for English language cases, Paris with French ones, and Munich with German ones? And if not, how would the Registry, where all cases must be begun (apparently promised to Luxembourg), distribute business? Would the parties have a say? Would it be done by chance with cases going to each branch of the Central Division on a Buggins' turn basis? Would we see a German language patent being litigated between two German companies in German, in Paris or London because the German division hearing infringement had decided to bifurcate its case and it was not Munich's turn to be allocated a validity case?

What appears clear is that even if due to the French Presidential Elections official steps are highly unlikely until the 30 May Competitiveness Council meeting , back-room negotionations and lobbying of stakeholders will continue unabated.

The new 'Handbook of Quality Procedures' explains the Complaints System at the EPO (Update)

2012-03-22T22:40:00.040+01:00

The new "Handbook of quality procedures before the EPO" (pdf, 780 KB) adresses

the practice of applicants and representatives
the practice of examiners, in particular how the examiner should best carry out examination so as to reach a decision in a reasonable time while dealing openly with parties to the proceedings;
the practice of formalities officers, particularly focusing on interaction between formalities officers and applicants; and
how complaints are dealt with at the EPO.

Even though it is not binding either on the EPO or on users and their representatives, it gives some interesting insight into the workflow the EPO wished applicants and representatives to follow (cf. also here).

One of the more interesting issues for practitioners can be found in Chapter 8, "Complaints", pages 49 and 50, sketching the following:

The importance of making a complaint. Anyone dissatisfied with the services of the EPO, whether or not he is a party to the proceedings in question, is encouraged to make his dissatisfaction known to the Office. The EPO takes feedback seriously and strives to use it as a basis for continuous improvement. There will be no negative consequences for the complainant merely because he files a complaint.

The EPO will investigate all complaints. [...] Once a final decision has been taken or an application is withdrawn, it is too late: complaints are best made as early as possible.

Procedure for making a complaint. Complaints can be submitted to the EPO by any convenient means. Written complaints are easiest to deal with, especially if sent by e-mail direct to Directorate Quality Management Support [..] at dqms@epo.org. If a complaint is contained in a response filed in connection with a particular application, the response must be filed by the official means, preferably online. In this case, the complaint will be investigated more quickly if a copy of the response is sent by e-mail to DQMS.

[...]

How the EPO handles complaints. All complaints are investigated and followed up internally within the EPO.

Directorate Quality Management Support (DQMS) is responsible for dealing with complaints. DQMS is a department outside the operational line. It looks into the case, together with the head of the department responsible for the case in question, to establish what has happened, whether the complaint is justified, and whether followup action such as a change in procedure is needed. It reports annually to the President of the EPO on complaints received.

Response time. DQMS aims to reply to complaints within 30 days. In the rare cases where it cannot manage this (e.g. because of extensive consultations), the complainant will be kept informed.

Limitations. The treatment of complaints takes place outside the scope of the normal patent procedure. Although DQMS investigates all complaints, it has no authority to influence or review the legal decisions taken by other EPO departments.

DQMS normally provides complainants with feedback on the results of its internal investigation. In a few situations, this may not be possible, for example if a binding decision has already been taken, or if other parties are involved.

In the interests of legal certainty, DQMS can advise other departments to issue corrections or refund fees only if there is a legal basis for them to do so. In particular, the valid payment of a fee has a legal effect, so a refund is usually not possible unless a mistake has been made.

Making a complaint is not a substitute for available legal remedies. if the procedure provides for means of legal redress in a given situation, the complainant may consider following these in parallel with complaining to DQMS. A complaint related to a specific application will be added to the electronic file. If it contains material which needs to be taken into account in the procedure, it will be placed in the public part of the file.

Update (23.03.2012): Even though the new Handbook has been officially published just now (1st edition, March 2012), it has been published on the EPO website for only one or two days already in February 2012 and then withdrawn.

Apparently, the EPO wasn't convinced of the February version of the Handbook. The only differences between the two versions though lie in the Foreword/Introduction part of the book. While passages of the February version relating to the aim of the book and the duties of the EPO and representatives

[...] The aim of this document is to provide further non-prescriptive guidance and information on how proceedings between the EPO and its users can be conducted in ways conducive to a high-quality process. [...]

[...]

The EPO has a duty to process and examine European patent applications. It is to its own benefit and to that of users and third parties that it conducts the granting procedure as efficiently as possible, while maintaining its long-standing commitment to quality.

Representatives have a duty to serve the interests of their clients or principals as best they can while complying with the European Patent Convention (EPC) and professional standards. Users involved in the patenting process at the EPO vary from individual users through small and medium-sized enterprises to multinational companies, all of them subject to different financial constraints and IP policies. They also operate in a variety of technological areas which have different time frames and exploitation potential. In proceedings before the EPO, both users and the EPO can adopt many different procedures while complying with the EPC. This document provides indications of quality-building practices which reflect those already applied in the majority of cases by EPO staff and representatives alike. EPO. This document indicates some of the procedural consequences of taking such different courses.

do not anymore show up in the March version, the cooperation of EPO, epi, and BusinessEurope is now addressed more euphorically ("hallmark") and the aim/intention of the Handbook is expressed differently and slightly broadened:

Its intention is to help to increase the quality of incoming applications, communications from examiners and submissions from parties, as well as to provide for an efficient prosecution. It may also serve as an orientation for attorneys who have less experience with the procedures at the European Patent Office and for candidates preparing for the European Qualifying Examination.

Theses amendments do not appear to be the result of highly political back room issues and surely do not qualify conspiracy theories at all. For emphasising the cooperative approach of the project it certainly was a good idea to cancel the two paragraphs on the duties, especially since the duties of the representatives were four times longer that those of the EPO.

(photo 2009 by Life As Art via Flickr under a CC license)