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"European Patent Law"
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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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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Mailroom of EU Council during summer reccess
On July 10, 2010, I had reported on the planned Organisation of work on the patent reform under the Polish Presidency. Now, as we still are within the summer recess period where nothing appears to move forward there might be a little stretch of time to contemplate as to how things might move on during next fall.
There is a recent precedent of successful adoption of enhanced co-operation in the EU: As we can learn from Wikipedia, with the rise in cross border divorce in the EU, common rules were put forward to settle the issue of where trans-national couples can divorce in the EU. However Sweden was blocking the new rules, fearing the loss of its liberal divorce law (divorce law differs strongly, with Nordic liberalism being in contrast to more conservative countries such as Malta which – until recently – did not even allow it). In order to allow those willing states to proceed without Sweden, in July 2008 nine countries put forward a proposal to use enhanced co-operation. At a meeting of the justice ministers on July 25, 2008, the nine states decided to formally seek the measure of enhanced cooperation; eight states formally requested it from the European Commission on 28 July 2008.
When analysing this narrative on the EU Council document repository, we get that there was a Council Document 9898/2/10 REV 2 titled Proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation – Adoption dated June 04, 2010. The corresponding Council Document concerning the European patent with unitary effect appears to be No 5538/11 dated February 11, 2011 titled Council Decision authorising the creation of unitary patent protection.
On December 13, 2010, Document 17523/10 was published titled Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. This Implementation Regulation was again amended and finally adopted by the Council.
Obviously there seems to be a two-step approach:
- In a first step, the basic question as to whether or not utilisation of the enhanced co-operation model is politically endorsed by a sufficient EU Council majority at all must be decided (Council Decision authorising the enhanced co-operation).
- In a second step, the details of the enhanced co-operation must be decided (Regulation of the Council [and the European Parliament, if applicable] implementing the enhanced co-operation).
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As we know from Wikipedia, stress testing is a form of testing that is used to determine the stability of a given system or entity. It involves testing beyond normal operational capacity, often to a breaking point, in order to observe the results. The concept is quite fashionable nowadays; it has reached mainstream in the context of the financial sector and even when making an assessment of operational characteristics of a railway station.
Now it looks as if we shall be witnesses of something that comes near to a major stress testing exercise of the patent system.
We all are supposed to be aware that an awful lot of litigation is currently going on in the field of mobile devices like smartphones and tablet computers. Reuters have published nice infographics on patent-related suits between mobile device / component manufacturers here. Moreover, there are press reports saying that Apple, Inc., is about to launch another patent based suit against Samsung allegedly aiming at a EU wide ban on all of Samsung’s smartphones and tablet computers under its Galaxy brand. If these speculations were true and if Apple were to prevail in such battle, the suit could not only be a blow to Samsung but also to the Android ecosystem in its entirety.
Another litigation front has been opened by a company named Lodsys, a non-pracitcing entity (NPE) suing certain individual software developers who brought to market smartphone apps which allegedly are infringing Lodsys’ patent rights.
It appears to be quite clear that the motivation of Google to acquire Motorola Mobility for USD 12,5 billion is mostly fueled by their desire to overcome a perceived inferiority of their own patent portfolio.
As of 1 September 2011 the fees for international (PCT) applications will change (see EPO Notification of EPO of 3 Augst 2011) as follows:
- International filing fee: from EUR 999 to EUR 1 088
- Fee per sheet in excess of 30: EUR 11 to EUR 12
- Reductions (under the Schedule of Fees, item 4):
- Electronic filing (the request being in character coded format) from EUR 150 to EUR 164
- Electronic filing (in character coded format) from EUR 225 to EUR 245
- Handling fee: from EUR 150 to EUR 164
The fees for international applications are calculated in Swiss Francs (CHF). The fee change is due to another amendment (after that of 1 January 2011) of the equivalent amounts in EUR by the International Bureau (see Official Notice in PCT Gazette of July 2011 (p. 94).
Fernando Pessoa contemplating on patentability of software inventions.
Back in September 2010 the EPO-sponsored 15th European Patent Judge’s Symposium took place in Lisbon, where the judges discussed developments in European patent law. The symposium was attended by 120 patent judges from Europe and guests from the USA and Japan. A big issue of course was the EU patent and the related litigation system, but the related discussion is now meaningless in view of the recent developments in this regard. But there were other interesting topics discussed as well.
For instance, in a working session on “Patentability of Computer implemented inventions”, Mr. Dai Rees – Chairman of an EPO appeal board and member of the Enlarged Board of Appeals that issued the G3/08 opinion – outlined the developments of the respective EPO case law. His contribution is documented in an article in the conference proceedings: Special edition 1/2011 of EPO Office Journal (PDF, 5 MB), pp. 93 to 102. The below summary reflects my personal observations and understanding of Mr. Rees presentation and also contains some individual flavours and thoughts.
Relevant Provisions: As a reminder, the provisions of the EPC to be considered for computer programs or technicality issues not only involve Art 52 EPC (“programs for computers as such“), but also Articles 18, 19, 21, 22 and Rules 42(1)(a), (c), 43(1) and 44 EPC, which use the term “technical” in different contexts. Further, in the EPC 2000 revision, Art 52(1) EPC was clarified in that patents shall be granted for inventions “in all fields of technology”, which, however, was regarded as a clarification rather than a substantive amendment of the Convention.
Amazon’s so called “One-Click Patent” is one of the most controversially discussed software inventions ever. The term, which nowadays is used as a cipher for a prototypical business method patent, was originally coined for US 5,960,411 titled “method and system for placing a purchase order via a communications network” (filed 12 Sep 2007, granted 28 Sep 1999; pdf), which has been enforced against competitor Barnes & Noble and licensed to Apple.
The respective teaching enables easy Internet shopping in that a customer visits a website, enters address and payment information and is associated with an identifier stored in a “cookie” in his client computer. A server is then able to recognize the client by the cookie and to retrieve purchasing information related to the customer, who thus can buy an item with a “single click”.
EP Parent Application: The first “1-click” application in Europe, EP 0 909 381 A2, related to an Internet-based customer data system and claimed a “method for ordering an item using a client system“. The application has been withdrawn on 08 June 2001 in view of approaching oral proceedings that had been summoned by the Examining Division with a negative preliminary opinion saying that the claimed teaching was not inventive over prior art document D3 (Baron C: “Implementing a Web shopping cart”, Dr. Dobbs Journal, Redwood City, CA, 01.09.1997). During the proceedings, Dutch Internet bookseller BOL.COM supported the Examining Division by a number of third party observations according to Art. 115 EPC, all of which pointing the Examining Division to the relevance of D3 (see e.g. here or here).
MISCELLANEOUS
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