On September 2, 2011, the Polish EU Presidency submitted Document 13751/11 to the Friends of the Presidency Group titled Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text and originally marked as “LIMITE”, i.e. confidential. On September 23, 2011, another related Document 13751/11 COR 2 removed the “LIMITE” restriction from its parent document. However, Document 13751/11 COR 1 still appears not to be accessible at the time of writing this blog posting.
The history of the proceedings according to the narrative of the above-identified Document is that, following the discussions with Member States, the Polish Presidency has prepared a first set of amendments to the Draft Agreement on a Unified Patent Court and draft Statute covering up to Article 14d. The aim of this note is to explain the suggested changes and the envisaged way ahead. On June 14, 2011, the Hungarian Presidency had presented to the Mertens Group a modified Draft Agreement which confers exclusive jurisdiction upon a court common to the Member States in the field of European Patent and European Patent with unitary effect. This modified Draft Agreement was based on the previous draft agreement on the European and Community Patent Court and necessary amendments have been made to ensure compliance with the EU Treaties in response to the opinion 1/09 of the Court of Justice of the European Union (CJEU). It also included adaptations to the text in light of the December 2009 Council conclusions.
The introductory passage of the recently released Document explains the amendments done with regard to earlier versions as follows:
The main changes, which were proposed to ensure compliance with the EU Treaties as set out in the opinion of the CJEU were the limitation of participation in the draft agreement to EU Member States (thus excluding the participation of third states as well as the EU) and the strengthening of the obligation of the Unified Patent Court to comply with EU law and request preliminary rulings, if necessary, including through the introduction of sanctions. The removal from the draft of the EU and non-EU states as possible contracting parties fundamentally changed the nature of the Draft Agreement, the aim of which is to establish not just an international court, but a court common to the Member States. This will represent a new patent jurisdiction which will be an inherent part of the judicial systems of those Member States which are party to the agreement.
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3D printing is a form of additive manufacturing technology where a three-dimensional object is created by laying down successive layers of material. Since 2003 there has been large growth in the sale of 3D printers. Additionally, the cost of 3D printers has declined.
Just in these days and within the framework of the London Design Festival, the London Albert & Victoria Museum is staging an exhibition ‘Industrial Revolution 2.0: How the Material World will Newly Materialise’ . The exhibition is a showcase displaying works made by 3D printing by Stephen Jones, Patrick Jouin, Iris van Herpen, and many others. Renowned New York-based design gallerist and curator Murray Moss has collaborated with industry provider Materialise, Belgium to create a special exhibition which pushes the parameters of 21st century 3D printing. A series of unique ‘printed’ works, using cutting edge laser and digital technologies to build three-dimensional objects, are placed throughout the Museum’s most important galleries, wittily referencing eight of the Museum’s key pieces and spaces; see also this report on i.materialise.
With regard to patent law, 3D printing taken as such appears to bear no particular implications out of the normal routine: We may assume that professional providers like Materialise NV and others know what they are doing and have some legal or patent department giving suitable advice.
However, as 3D printing technologie gets mature, two developments are foreseeable:
- In a first stage, perhaps to be experienced in a few years of time, heavy-duty 3D printing equipment might be generally available but too expensive to be bought by broader consumer circles. Maybe that costs for such devices will be comparable to large professional photocopying machines. If such assumption should become reality, there might be room for new business models of 3D copy shops: Small businesses loacted in your town around next corner where you can show up with a memory stick or something like that storing a 3D model of some object you would like to have produced. Perhaps such shop even might provide 3D scanning services as well; in such case the customer simply shows up with some 3D object in his pocket and goes away with one or more exact replicas thereof.
- In a second stage, costs of 3D printing equipment might drop to levels comparable to today’s laser printer devices. Maybe that 3D printers will be heavily cross-subsidised by surcharges on printing raw materials in the same manner as 2D printers today are subsidised by expensive ink or toner cartridges. This would mean that consumers can produce a broad range of 3D objects at home without need to contract any external service provider.
Of course, there is some hype in the current reporting on 3D printing: For many practical applications, not only the 3D shape is of relevance but also more elaborate characteristics, e.g. in view of a specific electrical conductivity, hardness, heat-resistance and/or elasticity. Those who fear that in the age of 3D printing everyone might be able to produce firearms at home might be reminded that the functionality of a gun is not determined by its 3D shape alone; it must also bear the heat and the enormous forces of the explosion of the propellant.
But nevertheless surely there will be many useful real world applications of 3D printing, most of them perfectly legal, some, of course, blatantly illegal or serving illegal ends. There are, for example, reports saying criminals stole more than $400,000 using ATM skimming devices made from high-tech 3D printers.
But what we might see, if the above-noted assumptions are true, is that another front of legal battles will be opened where John Doe and Max Mustermann risk entanglement with Intellectual Property laws.
In the first half of the 20th century, virtually no private individual living a mainstream-style life ever was in risk of infringing copyright laws: Printing presses were as expensive as, later in the century, radio and TV broadcasting equipment and out of reach for private consumers. Mass media were, due to economic necessity, owned by larger corporations which could afford to take legal advice and which could held liable easily in case of wrongdoing.
But in the age of PCs connected to the Internet we today see an epic battle of rights holders attempting to defend and to enforce their exclusion rights in the field of Copyright in the courts against countless private individuals engaging e.g. in file-sharing activities at home on the basis of their own PC and Internet infrastructure.
The PC and the Internet are also the tools which even today might bring individuals in conflict with patents on computer-implemented inventions or software patents. However, contrary to many fears of open source advocates, up to now the mainstream of litigation e.g. in the smartphone patent litigation business is directed against major players in that market, not against more or less private individuals. Exceptions are a few commercial developers creating smartphone apps sued by Lodsys; however, the particulars of such cases appear to hint that the main direction of attack was meant to be platform providers like Apple or Google.
Things might again change in an age where 3D printing techniques have matured and are cheaply in everybody’s reach. 3D copy shops will probably not benefit from any exemptions in patent law privileging private and non-commercial use of patented technologies as they are present e.g. in national German patent law. I don’t talk here on patents covering the 3D scanning / printing processes and devices (these problems should be dealt with by the manufacturers of such equipment) but on patents (and, by the way, also registered designs) infringed not by the technology provided in the 3D printing shop but by the specific 3D objects or object models brought in by the non-commercial customers. Will rights holders attempt to shut down such small 3D copy shop businesses by filing lawsuits on the basis of secondary patent infringement? Anyway, consumer-oriented 3D copy shops would face utter difficulties in assessing if replicating some object brought in by a customer infringes third party’s IP rights if they were legally required to do so.
Even if the 3D technology gets operated at home by the consumer, problems remain. For example, the German patent exemption covers only acts that are cumulatively of private nature as well as non-commercial. Excange of money is not a necessary precondition to get out of the scope of this exemption. For example, producing a small lot of object for free distribution amongst friends might, under some circumstances, be considered lying outside the scope of the German private-use patent infringement exemption.
Will we see in, say 10 years from now, a discussion on liability of ISPs for not filtering out 3D model data utilisable for 3D printing if they are suspected of infringing patent / design rights?
Today we have seen general elections to the Berlin City Parliament. Perhaps you may know that Berlin is not only a big city with some 3.5 Million inhabitants which also is the capital of Germany. In addition, Berlin constitutes one of the 16 states of Germany. Hence, Berlin City Parliament plays its role not only in the context of the City but also with regard to the federal structure of Germany.
At the time of writing of this posting, exit polls show that the Berlin chapter of the German Pirate Party will surpass the 5% quorum by a quite sensational 8-9% share on votes. This result shows that the mood especially of younger voters and first time voters is changing, moving away from all of the established parties including the Greens and the Left (Die Linke). At the occasion of the last Germany-wide general elections to the federal parliament in September 2009, the Pirate Party had got less than 2% of the votes. Many voters are reluctant to cast their vote for any party that is well below the 5% hurdle because of the high probability that voting for such party has no power to change anything. However, now, after the Berlin chapter of the German Pirate Party not only got over the 5% quorum by some narrow margin but obtained a sensational surplus of up to 4 percent points over the 5% hurdle, such reservations dwindle and, hence, I expect to see them in more State Parliaments of other Bundesländer in the coming years. And, like it or not, taking the history of the other German grassroots party, the Greens, as a precedent, the Pirates might well sit in the lower chamber Bundestag of the German Parliament in 2017 if they miss the 5% hurdle in the next general elections scheduled for fall 2013.
What does this mean with regard to Intellectual Property politics and business?
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On May 24, 2011, the EU Commission published Document COM(2011) 288 final (Available via EU Council under Document 10668/11) titled Proposal for a Regulation of the European Parliament and the Council on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy. In the Commission Document, the background is described as follows:
One of the main initiatives to address this threat launched by the Council and the Commission in 2009 was to set up a European Observatory on Counterfeiting and Piracy to improve understanding on intellectual property rights (IPR) infringements (‘the Observatory’). In line with the Council’s request of 2008, the Observatory in its current form is a centre of expertise with no legal personality managed by the Commission services. Its role is twofold:
(i) becoming the central resource for gathering, monitoring and reporting information and data related to all IPR infringements and
(ii) be used as a platform for cooperation between representatives from national authorities and stakeholders to exchange ideas and expertise on best practices, to develop joint enforcement strategies and to make recommendations to policy-makers. The management of the Observatory encompasses a series of tasks and activities under the responsibility of Commission services.
The Observatory is currently run by three Commission civil servants (two administrators and one assistant) who, in addition also carry out all policy work related to the Observatory.
The latest Council Resolution relating to the Observatory added further responsibilities, by inviting it to assess the needs for implementation of EU-level training programmes for those involved in combating counterfeiting and piracy. A September 2010 European Parliament Resolution additionally called for the Observatory to compile scientific research data on counterfeiting and IPR regulation. Finally, a recently published study commissioned by the Commission’s Directorate General for Trade recommends that the Observatory should become a single point of contact within the Commission, for external parties, and an international point for the creation and dissemination of best practice.
Whereas the current circumstances of the Observatory were appropriate for the launch phase of the project, with its institutional framework being established through consultations and meetings, there is no scope for expanding the Observatory’s remit and developing its operational activities, both of which require a sustainable infrastructure in terms of human resources, financing and IT equipment as well as access to the necessary expertise.
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The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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- kelle on Germany: Copyright Protection More Easily Available For Works Of “Applied Arts”
- Time Limits & Deadlines in Draft UPCA RoP: Counting The Days - KSNH Law - Intangible.Me on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- Time Limits & Deadlines in Draft UPCA RoP: Counting The Days | ksnh::law on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- Wiki Edition of Agreement on Unified Patent Cou... on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- European Commission Takes Next Step Towards Legalising Software Patents in Europe | Techrights on EU Commission publishes Proposal of amendend Brussels I Regulation for ensuring Enforcement of UPC Judgements
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