As reported here and elsewhere [1, 2, 3], the European Council agreed on the EU Unitary Patent and a EU Unified Patent Court at last week’s Brussels EU summit after volatile negotiations – by ‘suggesting’ two significant amendments (see summit conclusion, page 2, item 3) as compared to what was know from the latest available draft text of the Unitary Patent Regulation dated 23 June 2011 (see here and here).
EU Court of Justice: The more severe one of those amendments that apparently was pushed through by UK Prime Minister David Cameron to please his eurosceptics allies at home, demands
that Articles 6 to 8 of the [Unitary Patent] Regulation [...] to be adopted by the Council and the European Parliament be deleted
essentially meaning that substantive EU patent law will not any more be subject to legal order of the Union highest court, the European Court of Justice (CJEU). I share my colleague’s view that this is nothing less than “an open declaration of deep mistrust, if not political warfare of significant parts of the UK conservatives against the CJEU and thus the European Union as a whole.
This move, however, could not escape the eyes of the European Parliament, which originally wanted to nod through this matter tomorrow (4 July 2012) whereas meanwhile the item was removed from the agenda under the harsh critics of rapporteurs Bernard Rapkay (S&D, DE) and Klaus-Heiner Lehne (EPP, DE): “scandalous breach of procedure“, “oriental bazaar” (did they read this item?), ”case would go straight to the European Court of Justice“. Due to the Council’s amendments, the first reading is thus rendered null and void.
It appears that the proudness of the Danish Presidency as well as the official cries of joy of e.g. EPO President Benoît Battistelli (“historic breakthrough“) and EU Commissioner Michel Barnier (“decisive step“) came far too early while stakeholders ask themselves if this mess could not have been prevented by a more transparent process, more cooperation with the potential system users, less political tactics, and less national egoisms and horse trading. It is depressive to say, but if the implementation of a reasonable EU patent system was the litmus test for Europe’s capacity for efficient policy-making, the conclusion can only be that the striking deficiencies of the EU’s political management appear to be insurmountable.
In a reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) to the Court of Justice of the European Union lodged on July 19, 2010 (Belgische Vereniging van Auteurs, Componisten en Uitgevers (Sabam) v Netlog NV, Case C-360/10), a legal question was posed as follows:
Do Directives 2001/29 ( 1 ) and 2004/48, ( 2 ) in conjunction with Directives 95/46, ( 3 ) 2000/31 ( 4 ) and 2002/58, ( 5 ) construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: ‘They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?
This case throws a spotlight on a phenomenon which has become ubiquitous in the age of the Internet: When there is a case of wrongdoing related to the digital domain, stakeholders find that often it is inconvenient, sometimes even practically impossible to go for the primary wrongdoer because of difficulties to identify him or her or because of the wrongdoer is seated in a foreign jurisdiction which might be less than co-operative due to a variety of reasons. Cases based on some sort of infringement of IP rights and related to the digital domain are notorious for this kind of scenario.
So why not going for the intermediaries, which are plenty and inevitable necessary for running the Internet, some of them surely located in your own jurisdiction or at least in a foreign jurisdiction which shows a co-operative habit, many rights holders may ask themselves.
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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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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.
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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- Moderne Zeiten oder: DPMA und Patentgericht streiten über die elektronische Akte April 25, 2013