28 November 2010

Blog Posting No. 100: What Happened So Far On the Visae Patentes IP Blog

The occurrence of this blog in the IP blogoshere wasn't quite as dramatic as the eruption of Iceland's Eyjafjallajökull in spring this year.
However, for me personally it was a rather big step to integrate more or less regular blogging into my daily rountine, so that I hope that some readers could/can gain some value from my posts.

If I can trust my statistics tools, I have had about 9.500 visitors so far, mainly form the United States (20,9%), Germany (19,0%), United Kingdom (7,6%) Japan (7,3%) and Holland (6,4%).  

In my 100th posting it is certainly high time to send my Big Thanks to all of you for following my postings in the past eleven months!

My very first blog posting was launched on 18 January 2010 more as a preliminary test than as a start of a regular blogging carrier. Since then I - surprisingly - managed to post 8 to 10 pieces per month, which I consider the absolute maximum imaginable posting rate besides my main "jobs" as patent attorney in my Munich based patent law firm k/s/n/h and as a husband and father of two.

As it is explained on the blog's main page, the name "Visae Patentes" is derived from a medieval Latin root whose meaning slowly transformed from an official term for a "privilege issued in writing" (e.g. a patent) to a rather colloquial expression of getting up to nonsense, doing silly things, or messing about something. Of course, I am not saying that patents are nonsense - the name is rather meant to provoke some cognition to achieve "distinctiveness" -, but there certainly exists a fine line between useful patent regimes that really foster technical progress and other regimes that are less useful in this regard.

Many smart people (and also some less smart but more dogmatic fellows) assume that this fine line is constantly crossed by so called "software patents", since, so they say, software almost always relates to conceptual and mathematical issues (i.e. "abstract ideas" in the Bilski sense) and programming is not about inventions anyway, which is why software-implemented inventions should not be patentable at all. While I agree that pure conceptual or mathematical teachings may lie beyond that fine line, it is also clear that there exist software-implemented inventions that apparently must lie at the patentable side of that line since they represent technical improvement in the very sense of that word, e.g. a software-controlled washing machine, car brake system or the like. 

For many years now, jurisdiction around the world have tried to find appropriate legal definitions and models for that fine line, so called patent-eligibility requirements. While the EPO and Germany follow a "technicalilty" approach, the US has its machine-or-transformation test and no-abstract-idea/Bilski approach, Great Britain follows its Aerotel/Macrossan test, Canada requires a "practical embodiment", Australia a "physical effect" and Japan has a laws-of-nature requirement. In the end, all of theses approaches apper to relate to the same core issue of patent eligible subject-matter, namely to its tangible technical implementation.

As a patent attorney and computer scientist it was quite natural that in the beginning I planned to mainly report on IP software protection, but over the months I found many more interesting IP related topics that I considered worth mentioning, e.g. the exciting and important political debate on the so called EU and European Patent Court (EEUPC, EPLA) and the EU patent. Now, at the end of an eventful year, the EU patent failed (again) due to language issues and a so called enhanced co-operation of some willing EU member states appears to be the last resort. Or, rather, the latest approach of Germany and some others to quickly initiate an enhanced co-operation may also be a red herring to force stroppy Italians and/or Spaniards into the EU patent, whereas such "cooperation" may then be compensated for in some horse trading - during these days of southern European debt crisis. For now, we learned from @EUCouncilPress that the enhanced co-operation has made its way on the agenda of the EU Competitiveness Council on 10 December 2010 (cf. ). We thus will receive some more hot news on this issue until the end of the year.

Besides such political issues, the two opinions G 3/08 (12 May 2010) of the Enlarged Board of Appeal of the EPO and Bilski v. Kappos (28 June 2010) of the US Supreme Court were most relevant for many of us. While the Bilski opinion did answer some questions but posed even more new ones, the G 3/08 opinion marked somewhat of an end point in the debate on the EPO's practice on CII. In fact, the "adapted problem/solution approach" as developed in  T 208/84 (Vicom) and T 641/00 (Comvik), a variant of the regular problem/solution approach that additionally assesses a claim's technical character and its inventiveness based on technical features, has been confirmed as established examination scheme for CIIs and there is not the slightest sign that the legislator (i.e. the European Commission) will put that question back on the agenda after the epic failure of the proposal for an EU Directive on the patentability of computer-implemented invention in July 2005. So, according to my understanding, at least before the EPO we have gained some consistency and legal certainty as to what computer-related inventions may be patentable in Europe.

To conclude my little "jubilee" post, please find below an overview on my first 99 postings as grouped in some general subjects addressed: 

EU Patent Court and EP Patent 
The EPO's Approach to CII (especially G 3/08)
The US Approach to CII (especially "Bilski")
The German Approach to CII (Federal Court of Justice, BGH)
Protection of CII around the World
European Patent Convention
Case Law of EPO (Enlarged) Boards of Appeal
Further European/EPO IP Issues
Further US (PTO) Patent Issues
Further German Issues
Further International IP Issues
Open Source and Patent Critics
Election of new EPO President
Trade Marks and Copyright
INTA Annual Meeting 2010 in Boston
The German Pirate Party