30 May 2010

The Pirate Party's Dubious Understanding of the Sentence Against Former MP Tauss for Child Pornography

As reported e.g. on "The Local" and "Die Zeit", a Karlsruhe district court (Landgericht Karlsruhe) handed former Social Democratic parliamentarian Jörg Tauss a 15-month suspended sentence on Friday, 28 May 2010, for the possession of child pornography, which Tauss said he would appeal and raged about a "crazed prosecutor" and a "political and medial prosecution".

While the defence did not deny that Tauss possessed the illegal material and instead alleged he’d had it for work-related purposes for research about the scene only, the judges were convinced that the 56-year-old had illegally possessed some 260 photos and 40 video clips containing child pornography between May 2007 and January 2009, since “the overview shows that Tauss was not travelling through the virtual child pornography scene in fulfilment of his political duties, but out of private reasons” as Chief Judge Udo Scholl explained.

As to Tauss’ claims of special parliamentary exemption from the law, the Judge said that such claims were invalid even if Tauss was an expert in online criminality, since "the same powers are valid for all parliamentarians" and the "status equality forbids special rights for certain parliamentarians".

In September 2009 the German Bundestag annulled Tauss’ parliamentary immunity, clearing the way for prosecutors to press charges and Tauss left the centre-left Social Democratic Party, for which he has been an MP since 1994, after the investigation against him began. He then became the first and only member of the Pirate Party (Piratenpartei) in the Bundestag until the general election in September 2009.

The German Pirate Party, who sees itself as representing those in the information technology community, campaigning for privacy protection as well as the loosening of intellectual property rights, such as copyright and patent protection, declared on Friday that the party would make no decisions about Tauss’ membership until they reviewed the court’s verdict. In an official statement following the verdict the Pirate Party did not find it adequate to comment on the evidence against its "honorary member" or the harm such practise brings about, but instead called the trial a “bad sign of public prejudgement” and said that “questionable press work” by public prosecutors had severely hindered the rule of law and forced the Pireate Party to defend themselve against "nasty accusations" of being a "paedophile party".

In fact, many self-declared campaigners of internet freedom consider the (suspended) verdict against Jörg Tauss too harsh, showing a dubious legal understanding of parts of the free internet community.

Whereas Pirate Party spokesman Simon Lange said that "we trust that he will make the right decision for himself and the party” and that "it is up to him if he wants to leave the party", Tauss meanwhile voluntarily left the Pirate Party in ordert to, as he said, avert any damage to the party. This step, however, could in fact damage the party even more, since now there are no more options left to articulately distance from Jörg Tauss and his legal understanding, e.g. by excuding him from the party.

However, as assumed in this article of German nationwide weekly quality newspaper "Die Zeit", it would not have been certain anyway that a majority among the "pirates" would have supported Tauss' exclusion, such as pirate blogger "Flecky" who feels that "an exclude of Tauss would show a tremendous weakness of character". Many "pirates" and other self-reported campaigners of a free internet regard Tauss more as a victim than as an offender.

In advance of the proceedings Tauss tried to explain on his blog why he had to perform independend research in his role as an MP. For this reason he posted all sorts of questions to the Federal Government (Bundesregierung), to show how ignorant and inactive the authorities are regarding this issue. Many comments on his blog postings show that the majority of readers shares Tauss' view that the legal action hit the wrong people and that this, as some sort of conspirancy theory, may be the case even on purpose, since Tauss had turned prominently against the proposed internet access barriers, such that is is no wonder that certain players want hin to get out of the way!
 

Event the Pirate Party itself hinted in an official press statement at some conspiracy in relation to the internet "censorship" plans of the Federal Government, since "in the course of the investigation one could get the impression that the procedure was not so much about criminal invenstigations of an accusation but rather about the judical background music for a political project for implementing an instrument of censorship and restricting the freedom of all citizens".
 
The manner in which the "pirates" now complain about the procedure and the perceived harshness of the verdict rather reveals a dangerous legal understanding, which can be viewed entirely as symptomatic of this party and its supporters. In fact, in connection to the recent debate on blocking child pornographic websites, the anti-censorship activists of the German Pirate Party tended to almost exclusively argue technically and to virtually avoid any moral or legal issues, showing a lack of interest in a workable solution for a social problem but rather discloses a self-centered interest in an internet without moral or legal limits (see earlier posting). 

Many who are familiar with software and computers extremely well certainly regard the gaps in knowledge of ordinary citizens and politicians hair-raising. And as it is nearly always the case for technical experts becoming political, this technical predominance may well lead to a situation in which existing laws are not anymore regarded as universally valid. But only because Jörg Tauss better finds his way in the internet than e.g. officials or not so computer-affine MPs, it does not relieve him of the duty to observe the same law that apply to all other citizens. If one wants more expertise and better laws, the only option is to work towards this by regular democratic measures and not by autocratically undermining existing law.

Decision Xa ZB 20/08 of Federal Court of Justice (BGH) on Software-Implemented Invention Controversially Discussed

In the decision X ZB 22/07 ("Steuerung von Untersuchungsmodalitäten") of January 20, 2009, the X. (10th) Civil Panel of the Federal Court of Justice (Bundesgerichtshof, BGH) under Chief Judge Uwe Scharen analysed the circumstances under which an "embedded" software may represent statutory subject-matter (see earlier post). This decision has been understood by many experts as a turnaround of the BGH’s approach to assess technical character of an invention towards that of the Boards of Appeal of the European Patent Office, which has been generally confimed by the EPO's Enlarged Board of Appeal on May 12, 2010 in the opinion on referral G 3/08 (see earlier post).

Now the Xa. (10th auxiliary) Civil Panel under Chief Judge Peter Maier-Beck has issued the remarkable reasons of the decision Xa ZB 20/08 ("Dynamische Dokumentengenerierung") of April 22, 2010, again in favour of patentability of a software-related invention, this time a client-server system, configured to dynamically generate structured documents, particularly XML or HTML documents, based on German patent application DE 102 32 674 filed by Siemens AG on July 18, 2002.

As summarised on IPJur, it is the context of that patent application that structured documents are dynamically generated on a host computer which communicates with a client and is preferably configured in an "embedded system" architecture. Requirement data from the client is received at the host computer and request parameters are extracted therefrom. The request parameters are mapped by a control module onto a command set of an architecture-specific interface module of the host computer. The structured document is then generated dynamically, using at least one template document which contains service takers. The service takers are executed in a runtime environment of the interface module, with reference to the mapped request parameters, and define contents or structure of the structured document after they have been executed. The dynamically generated structured document is then transferred to the client.

Accordingly, claim 1 relates to
A method for dynamically generating structured documents on at least one microcontroller-based host computer with limited resources which communicates with a client, comprising:
  • receiving requirement data from the client at the host computer;
  • extracting request parameters from the requirement data,
  • mapping the request parameters, by a control module, to an instruction set of a software-architecture-specific interface module of the host computer;
  • dynamically generating the structured document using at least one template document which contains calls of service takers, instructions of the service takers being extracted by the interface module and mapped to a corresponding instruction set of the interface module limited to a subsection of the service takers, where instructions of the service takers are executed with reference to the mapped request parameters in a runtime environment of the control module and, after being executed, define at least one of contents and structure of the structured document after completion of execution, and
  • transferring the dynamically generated structured document to the client.
The patent application was rejected by the German Pantent Office (DPMA) on June 01, 2004. In the appeal stage, the 17th Panel of the Federal Patent Court (Bundespatentgericht, BPatG) upheld the rejection on January 17, 2008 (17 W (pat) 71/04) by arguing that the claimed subject-matter does not address a technical problem solved by technical means. However, like in several cases before, such as in above-referenced “Steuerungseinrichtung für Untersuchungsmodalitäten” (X ZB 22/07), the Federal Patent Court has given applicants leave to appeal according to § 100 (3) PatG in order to better understand the boundaries of the exclusion of patents for computer programs of  § 1 (3) PatG, according to which "programs for computers" shall be excluded from patentability "only to the extent to which protection is sought for the above-mentioned subject matter or activities as such".

Siemens AG then filed an appeal to the Federal Court of Justice (Bundesgerichtshof, BGH), which decided on April 22, 2010 that the second-instance decision was legally wrong with respect to the alleged absence of any technical character, since, according to the Federal Court of Justice, the claimed teaching relates to the direct interaction of multiple elements of a computer system, whereas the significantly limited resources of this computer system lead to the object of the invention, namely to generate structured documents on host computers with limited resources. Accordingly the headnote of that decison reads:  
(a) A method that involves the direct interaction of the elements of a data processing system (here: a server with a client for dynamically generate structured documents) is always of technical nature, independent on whether the form in which the method has veen filed originally, is characterized by technical instructions.

(b) Such a method is not excluded from patent protection as a computer program [as such] if it solves a concrete technical problem by technical means. A solution by technical means is not given only if system components are modified or addressed in an unprecedented way. It rather is sufficient when the run of a data processing program being used for solving the problem is determined by technical factors outside the data processing system, or when the solution lies precisely in the fact that a data processing program is implemented to take the technical circumstances of the data processing system into consideration.
The case was referred back to the Federal Patent Court to only decide novelty and inventive step. That is, the claimed subject-matter has been finally decided to represent statutory subject-matter according to § 1 PatG.

It comes as no surprise that this decision is controversially discussed by interested parties and also much critisised. This criticisim however, is not so much about the legal argumentation as such but more about its de facto outcome, while the contributions of well-known anti-patent campaigners are as fundamental as always: "[...] this is as if cars are patentable only because they have wheels" (Benjamin Stöcker of the Piratenpartei), "Where law turns to unjustice, the legislative bodies are in demand" (Hartmut Pilch of "FFII").

Legally, the Xa. Civil Panel of the Federal Court of Justice relied on its 1991 decision "Seitenpuffer" (X ZB 13/88), where it was argued that a software-implemented invention is technical if it relates to the functioning (i.e. operational capability) of a computer system and enables the direct interworking of its elements. By applying this case law to the present case and under consideration that the present invention's object is to solve the problem of dynamically generating structured documents on a host computer (server) having limited ressources, the Xa. Civil Panel recognised that the claimed solution clearly was of technical nature. By this argumentation, however, the Federal Court of Justice also emphasised that merely using a computer program does not confer patentability, but that a computer program solving a technical problem is required to not fall under the exclusion of § 1 (2) PatG.

Given this result, Mr Axel Horns of IPJur noted that "it might look somewhat surprising in view of the German practice [...] to see claims being granted dealing purely with networked computer systems processing HTML and/or XML documents" and explained that "riding on the solving-a-problem-with-low-resources line of arguing did the trick, apparenty". Much in line with the above-referenced earlier BGH decision „Steuerung für Untersuchungsmodalitäten“ (X ZB 22/07), which clarified that already an embedded computer program involving steps of processing, storing and transmitting data by a technical apparatus represents patentable subject-matter, the present decision emphasises that a computer program involving steps of direct interaction of components of a data processing system always represents patentable subject-matter. This is why the two decisions may be recognised as a turnaround of the BGH’s approach to assess technical character of an invention towards the more liberal appoach of the EPO's Boards of Appeal as recently confimed by the Enlarged Board of Appeal's opinion on referral G 3/08 (see earlier post).

As explained by Mr Stephan Dorn on the ipeg blog, up to now, Germany has been very cautious allowing patent protection for software patents, since computer programs were only patentable, if they had a technical function that induced a technical effect outside the computer on which they are executed, while for the EPO it is sufficient if technical considerations lead to the particular implementation of the invention in a software-hardware system, and that the BGH now tries to overcome this undesireble divegence by its recent decision, in which it is considered sufficient that the solution provided by a computer program "lies precisely in the fact that a data processing program is implemented to take the technical circumstances of the data processing system into consideration" (cf. headnote, item (b), 2nd alternative). Given this situation, Mr Dorn concluded that "the presupposition of technical nature of the computer-implemented invention is actually put away" and that "the decision is really groundbreaking".

Prominent anti-patent campaigner Florian Müller sees things similar on his FOSS blog. He compares the present decision with pending US Supreme Court case In re Bilski (like Peter Zura on his 271 patent blog), both of which he consideres landmark decisions. Even though the latter relates to a pure business method and is not expected to be overly relevant for software-implemented inventions in general, the main difference is that Bilski's claims relate to a method for hedging risks in commodities trading implemented by totally known technologies, while the present decision renders a technical process (i.e. the generation of structured documents) more efficient or even applicable on a resource limited computer system.

Anyway, Mr Müller recognised that the present decision represents a reversal of the traditional German patentability appoach according to which "software patents were previously only considered valid under relatively strict criteria" and comments that it means "all software ideas are now potentially patentable as long as they are innovative from a purely formal point of view". Similar dismissive but far more apoplectic about this decision is Roy Schestowitz of Techrights, who considers the applicant Siemens a "scadalous company [that] decides not only to support Microsoft's 'Linux tax' but also help[s] legalise software patents in Germany".

However, in agreement with Robert Harrison's analysis on his tangible IP blog, I personally think that this decision is legally in line with the BGH's old "Seitenpuffer" doctrine (X ZB 13/88) and is at least de facto in line with the outcome of "Steuerung für Untersuchungsmodalitäten“ (X ZB 22/07), which is why "Dynamische Dokumentengenerierung" (Xa ZB 20/08) is certainly not a "landmark" or "groundbraking" decision. It rather represents a continuance of a much required convergence process in German case law on patentability of computer-implemented inventions, given its confusing twists and turns in recent years.

In fact, the present decison does not necessarily imply that in future we will see far more software patents granted in Germany, but merely that such applications will now be rejected not so much due to lack of technical character but mainly due to lack of inventive step, which is far easier to examine since established and formally intelligent examination schemes exist (e.g. the problem-solution-approach), such that the future German approach more or less represents the established examination scheme of the EPO with a very basic test of technical character and an elaborate examination of novelty and inventive step. This is the reason why I cannot share Thomas Hoeren's concerns about doors now being wide open for software patents, as expressed on the Beck-blog.

Other than assumed by Florian Müller, who tries to make believe that the main obstacle for granting trivial software patents was the technical character requirement and that now software patents will literally flood Germany since they "are innovative from a purely formal point of view", determining whether a technical solution is novel and involves an inventive step requires substantive analysis of the technical elements of the claimed teaching and of the relevant prior art and not only a rather formal application of given rules.

As a bottom line, I don't think that the decision "Steuerung für Untersuchungsmodalitäten“ (X ZB 22/07) will now render it easier to obtain a software patent in Germany, but I do expect that in future it will be much easier to understand why a software-related patent application has been rejected.

26 May 2010

USPTO Announced Program Changes for More Streamlined and Focussed Examination

The USPTO has announced a number of program changes in order to further streamline its processes, reduce the backlog and focus on important technologies:
  • The "Project Exchange" is expanded from small entities to all applicants (press release). That is, any applicant with multiple pending applications filed prior to October 1, 2009 may receive expedited review of one application in exchange for withdrawing an unexamined application. By this the USPTO wants to provide applicants with greater control over the order in which their applications are examined and, probably even more important, reduce its backlog. The program will be limited to 15 applications per entity. The change will take effect in the next weks with publication of Federal Register notice and applicants must submit the required materials prior to December 31, 2010 to participate (see this link).
  • The 130$ petition fee for participation in the Patent Prosecution Highway (PPH) program are eliminated in order to encourage greater PPH participation by patent applicants (see this link).
  • The Green Tech Acceleration program, which was designed to promote development of green technologies, is expanded to allow more categories of technology to be elligible for expedited examination. Under the Green Tech program applicants may file a petition to receive special status for pending patent application in green technologies. The classification requirement, according to which the program was limited to certain classifications only, has now been removed. However, this program is limited to the first 3000 granted petitions (see this link).

25 May 2010

Website Operators Liable for Integrated Feeds in Germany

By order of April 27, 2010 the Berlin District Court decided under Az. 7 O 190/10 that a website operator who provides third-party content on his website via an integrated feed is fully liable for the content provided via that feed (see here, in German only).

In the underlying case, a website operator was sued for publishing a post via a third-party content (rss or atom) feed that violated personal rights of the plaintiff. Even though the website operator was not directly responsible for or in control of the feed's content the Court held that he voluntarily utilised third-party content and thus is liable for any infringements in connection therewith. It thus is always risky to automatically integreate third-party content which was not individually checked before.

The Court's decision may be perceived as unjust since it is not possible to exclude individual items form an integrated feed. However, the website operator is the sole "master of the offer" (as expressed by the Court) so that he nevertheless is in total control of the content he provides on his website by deciding to integrate certain feeds, which is different from the situation of discussion fora in the internet or the like.

23 May 2010

Further Bilski Rumors

I am currently in Boston for the INTA Annual Meeting, and there are increasing rumors about the reasons for the extraordinarily long lag between the oral arguments in the Bilski vs. Kappos case held by the Supreme Court on November 9, 2009 and the issuance of the decision and, of course, about whether this decsision will be pro or contra Bilski's business method claims.

What I heard from some people having sources within or rather close the Supreme Court is that there are (or have been until recently) two dissents that consider Bilski's claims patentable, while the Supreme Court aims at an affimative decision with one dissent only, and that the decision is expected to be issued before the end of the month.

That is, the decision will most probably uphold the claims as unpatentable as decided by the Federal Circuit, whereas, since these claims relate to a pure business method rather than a software-implemented invention, the current practise of the USPTO regarding patentability of software-driven inventions will be confirmed (either implicitly or even explicitly).
 
It thus appears that Supreme Courts's Bilski decision may represent an important contribution to harmonisation of international (non-) patentability practise regarding business methods, while software remains patentable under well-defined circumstances, which both would be much appreciated by European patent practicioners.

Champion League Final at INTA Annual Meeting

Today it was not only the first day of the INTA Annual Meeting in Boston but also the day of the UEFA Champions League Final Bayern München vs. Internazionale Milano in Madrid. And so it was quite natural that a group of 50 to 60 trademark and IP professionals from all places in the world took a break from trademark issues and business talks this afternoon and met at the Boston Lansdowne Pub, which usually is dedicated to the baseball matches of the Boston Red Sox, to watch a fantastic soccer game which was won by Internazionale 2 goals by 0. As far as I'm concerned, it was a well-earned win for Inter, since they had a rock solid defense and an "Italian Torpedo" up front which made the difference today. Congratulations to Inter and "Cheer up!" Bayern.
 

17 May 2010

EPO Enlarged Board of Appeal found Referral on Computer-Implemented Inventions inadmissible (G 3/08)

As reported earlier, in case G3/08, being a referral of former EPO President Alison Brimelow to the Enlarged Board of Appeal (see full text of referral here), the Board had to decide on the following questions:
  1. Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?
  2. Can the exclusion be bypassed by tying the claimed invention to a piece of hardware?
  3. Must a claimed feature cause a technical effect in the real world in order to contribute to the technical character of the claim?
  4. Does the programming of a computer necessarily involve technical considerations?
On May 12, 2010, the Enlarged Board of Appeal issued its opinion on referral G 3/08, in which the approach of the EPO regarding the patentability of computer programs has been generally confirmed (complete file here).

The EBoA's long awaited opinion on this controversally discussed case (see e.g. the more than 100 related Amicus Curiae Briefs) has, as expected, evoked a strong response in the blogoshere, where it has already been commented by leading IP blogs, such as K's Law, the IPKat, IP Jur, Patently O, the EPLaw blog, and also by some more idiosyncratic voices, such as the End Software Patents campainers. I am not overconfident enough to think that I can add some essential thoughts to the observations to those grandmasters of IP blogging, but still, I would like to offer also some interpretation and summary, just for the sake of completeness of this blog. 

As expected by many experts, e.g. by Emeritus Professor Straus of MIPLC (cf. here) and the German Patent Bar Association (cf. here), the referral has been found inadmissible since the point of law refered to the Enlarged Board of Appeal by Ms Brimelow has not been decided by two Boards of Appeal in different ways, as would have been required by Article 112(1)(b) EPC. This view of the Enlarged Board is expressed in the official headnotes, whereas the legal essence of the Enlarged Board's ruling is given under notes 4, 6 and 7:
  1. In exercising his or her right of referral a President of the EPO is entitled to make full use of the discretion granted by Article 112 (1) (b) EPC, even if his or her appreciation of the need for a referral has changed after a relatively short time.
  2. Different decisions by a single Technical Board of Appeal in differing compositions may be the basis of an admissible referral by the President of the EPO of a point of law to the Enlarged Board of Appeal pursuant to Article 112 (1) (b) EPC.
  3. As the wording of Article 112 (1) (b) EPC is not clear with respect to the meaning of “different/abweichende/divergent” decisions the provision has to be interpreted in the light of its object and purpose according to Article 31 of the Vienna Convention on the Law of Treaties (VCLT). The purpose of the referral right under Article 112 (1) (b) EPC is to establish uniformity of law within the European patent system. Having regard to this purpose of the presidential right to refer legal questions to the Enlarged Board of Appeal the notion “different decisions” has to be understood restrictively in the sense of “conflicting decisions”.
  4. The notion of legal development is an additional factor which must be carefully considered when interpreting the notion of “different decision” in Article 112 (1) (b) EPC. Development of the law is an essential aspect of its application, whatever method of interpretation is applied, and is therefore inherent in all judicial activity. Consequently, legal development as such cannot on its own form the basis for a referral, only because case law in new legal and/or technical fields does not always develop in linear fashion, and earlier approaches may be  abandoned or modified.
  5. Legal rulings are characterised not by their verdicts, but by their grounds. The Enlarged Board of Appeal may thus into account in examining whether two decisions satisfy the requirements of Article 112 (1) (b) EPC.
  6. T 424/03 does deviate from a view expressed in T 1173/97, concerning whether a claim to a program on a computer-readable medium necessarily avoids exclusion from patentability under Article 52(2) EPC. However this is a legitimate development of the case law and there is no divergence which would make the referral of this point to the Enlarged Board of Appeal by the President admissible.
  7. The Enlarged Board of Appeal cannot identify any other inconsistencies between the grounds of the decisions which the referral by the President alleges are divergent. The referral is therefore inadmissible under Article 112(1)(b) EPC.
This ruling has been considered a "farewell gift you'd rather not receive" by Oliver G. Randl of K's Law, since it has been speculated that Ms Brimelow wished to "dump the unresolved problem of the limitations of patentability in the field of computer-implemented inventions to the Enlarged Board of Appeal as a political body after the truly political bodies competent to resolve that matter, the EPC Diplomatic Conference as well as the law-making bodies of the EU, have failed so far to find a reasonable interpretation of the concept of technicality that has potential to last for many decades".

Instead, the comparably clear language under § 7.2.7 of the Enlarged Board's opinion may be interpreted in a way that the Board "felt a bit abused by the President's attempt to use it as an instrument to clarify a political issue which had already caused the legislator to fail", cumulating in the articulated demand that "it's time for the legislator to take over":
[7.2.7] Given its object and purpose, the right of referral does not extend to allowing the President, for whatever reason, to use an Enlarged Board referral as a means of replacing Board of Appeal rulings on CII patentability with the decision of a putatively higher instance. For example, a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting or because consistent Board rulings are called into question by a vocal lobby. [...] When judiciary-driven legal development meets its limits, it is time for the legislator to take over.
Even if it really would be time for the legislator to take over, which is in fact frequently demanded by the open source/anti-patent community, there remain serious doubts among patent professionals and legal experts about whether at all some sort of agreement among the member states of either the EU or the EPC would be possible on this issue - not to mention the even more serious doubts about whether such an agreement could possibly solve this issue in a practically feasable while legally correct way, or rather represent some sort of rotten compromise found after heavy political horse trading. Besides that, the European Union might have some even more serious problems for the next couple of years than patentability of software-implemented inventions.

Considering the Enlarged Board's attitude as expressed in § 2.7.2 of its opinion, it is more than  comprehensible that not only the current EPO practise with regard to patentability of computer-implemented inventions has been confirmed but also some help is offered for correctly interpreting established case law and understanding the consistency of the EPO's approach (cf. sections 8 to 13, under "The questions of the referreal", p. 22 ff.). In the following please find some passages that I personnally found relevant for the EPO's approach to computer-implemented inventions with respect to both patentability and inventive step.

With respect to question 1 of the referral:
[10.2] It is argued in the referral that according to T 424/03 only a claim of the form "computer program for method x" could possibly be excluded from patentability as a computer program as such, whereas claims of the form "computer implemented method x" or "computer program product storing executable code for method x" would not be excluded (irrespective of the nature of the method x). T 1173/97 is said however to place the emphasis on the function of the computer program rather than on the manner in which it is claimed, for example as a computer program product or a computer-implemented method.

[10.3] T 1173/97 also referred to the "technical effect which goes beyond the 'normal' physical interactions between the program (software) and the computer (hardware) on which it is run" as a "further technical effect", and this is the expression which is generally used. As may be seen from the quotations above, the general condition for a claimed invention not to be excluded from patentability by Articles 52(2) and (3) EPC was considered to be that the claimed subject-matter has a "technical character". Thus in the particular case of a claim to a computer program it has a "technical character" if and only if the program causes a "further technical effect" when run.

[10.4] It is notable that the definition of further technical effect in T 1173/97 makes no reference to the state of the art. Thus according to this decision it may be determined whether a claim to a computer program is excluded from patentability by Articles 52(2) and (3) EPC independent of the prior art. That is, the identified further technical effect need not be new. By taking this position the Board consciously abandoned the so-called "contribution approach" which had been applied, somewhat inconsistently, in the earlier case law. [...] To our knowledge no decision of the Boards of Appeal has since challenged this choice by the Board in T 1173/97. It therefore stands as the established case law [...].

[10.5] T 1173/97 also drew the consequence from its abandonment of the "contribution approach" that, "Determining the technical contribution an invention achieves with respect to the prior art is therefore more appropriate for the purpose of examining novelty and inventive step than for deciding on possible exclusion under Article 52(2) and (3)".

[10.7] [...] T 258/03 came to the conclusion that any claim involving technical means was not excluded from patentability by Article 52(2) EPC, and since a claim directed to a method of operating a computer involved a computer it could not be excluded from patentability by Article 52(2) EPC. [...] T 424/03, Microsoft, finally extended the reasoning applied in T 258/03 to come to the conclusion that a claim to a program ("computer executable instructions" in the claim in question) on a computer-readable medium also necessarily avoids exclusion from patentability under Article 52(2) EPC: "The subjectmatter of claim 5 has technical character since it relates to a computer-readable medium, i.e. a technical product involving a carrier.This statement is quite unequivocal and stands alone as a reason for the claim not to be excluded under Article 52(2) EPC.

[10.7.1] The decision in T 424/03 did go on to note that the particular program involved had the potential of achieving a further technical effect when run and thus also contributed to the technical character of the claimed subject-matter. This fact however was not necessary to the conclusion that the claimed subject-matter avoided exclusion, since according to the reasoning of T 258/03 any technical means claimed was sufficient to overcome the exclusion of Article 52(2) EPC. The question whether the program itself caused a "further technical effect" when run, and would therefore also qualify as technical means, only assumed importance for the question of inventive step - in parallel to these decisions the Board had been developing an approach to the appraisal of inventive step taking into account the fact that some of the features of a claim might, considered alone, fall under the exclusions of Article 52(2) EPC (see T 154/04, Duns). For this approach it is important which features contribute to the technical character of the claimed subject-matter, since only such features are taken into account for the assessment of inventive step. In the particular case of T 424/03, both the computer-readable medium and the program itself were features which gave the subject-matter of the particular claim as a whole a technical character, and were both therefore to be taken into account for the assessment of its inventive step.

[10.13] The present position of the case law is thus that a claim in the area of computer programs can avoid exclusion under Articles 52(2)(c) and (3) EPC merely by explicitly mentioning the use of a computer or a computer-readable storage medium. But no exposition of this position would be complete without the remark that it is also quite clear from the case law of the Boards of Appeal since T 1173/97 that if a claim to program X falls under the exclusion of Articles 52(2) and (3) EPC, a claim which specifies no more than "Program X on a computer-readable storage medium," or "A method of operating a computer according to program X," will always still fail to be patentable for lack of an inventive step under Articles 52(1) and 56 EPC. Merely the EPC article applied is different. [...]

[13.1] [...] Indeed if the Boards continue to follow the precepts of T 1173/97 it follows that a claim to a computer implemented method or a computer program on a computer-readable storage medium will never fallwithin the exclusion of claimed subject-matter under Articles 52(2) and (3) EPC. [...]

[13.2] [...] It would appear that the case law, as summarised in T 154/04, has created a practicable system for delimiting the innovations for which a patent may be granted.
With respect to question 2 of the referral:
[11.2] The referral argues that "claims for a computer program and a computer implemented method can be seen as having an identical scope," and also that "the scope of a method claim would encompass a computer program for carrying out that method,", which would not appear to be quite the same thing, since the latter suggests that the scope of the method claim could be greater than that of a claim to a computer program. [...]

[11.2.2] There seem to be two logical weaknesses in the argumentation. The first is the assertion that a method can be divorced from the device that it is (to be) carried out on, which is made as a general statement, not limited to computer implemented methods. [...]

[11.2.3] The second logical weakness seems to be a confusion between a set of instructions for carrying out steps and the steps themselves. [...] There is a general distinction in logic to be made between an object and a name or description of the object. [...] For a famous [...] example of this kind of wordplay see Lewis Carroll's "Through the Looking Glass (and What Alice Found There)", search expression, "The name of the song is called". In such a complicated situation it is easy to confuse names or descriptions and the things they refer to.

[11.2.5] [...] the Enlarged Board considers that the skilled person understands the word "program" to refer to the sequence of instructions specifying a method rather than the method itself.

[11.2.7] While on a correct interpretation there is a distinction between a computer program and the corresponding computer-implemented method, it is conceivable that there is nonetheless a divergence in the case law of the Boards of Appeal, resulting from a false usage by Boards of the word "program". [...] It is nonetheless necessary to consider whether Boards have in fact used the expression "computer program" to mean a method in the cases where such use is asserted in the referral.

[11.2.8] [T 1173/97 said], "It is self-evident that a claim to such a computer program product must comprise all the features which assure the patentability of the method it is intended to carry out when being run on a computer." [and] "When this computer program product is loaded into a computer, the programmed computer constitutes an apparatus which in turn is able to carry out the said method." This would appear to indicate that the Board in that case saw computer programs in the same way as the Enlarged Board does.

[11.2.9] [T 38/86 said] "Although a computer program is not expressly recited in Claim 1, it is clear to a reader skilled in the art that the claim covers the case in which a computer program is used and, indeed, in the only embodiment disclosed in the application the text processing system is controlled by a set of programs and data stored in memory." Claim 1 was a method claim. However this does not mean that a computer program is a method, merely that, as it says, the claim could be satisfied by the use of a computer program. [...]
With respect to question 3 of the referral:
[12.2.1] [...] The case law of the Boards of Appeal as a whole is consistent in considering all the features that are claimed. As mentioned above the Boards have always avoided approaches which involve weighting of features or a decision which features define the "essence" of the invention. It is true that the COMVIK/Hitachi approach to deciding whether there is an inventive step may involve ignoring some features, but the method starts with a consideration of all the features together to determine whether the claimed subject-matter has a technical character. Only once this determination has been made can the Board turn to the question of which claimed features contribute to that technical character and therefore should be taken into account for the assessment of whether there is an inventive step.

[12.2.2] It is in fact a well-established principle that features which would, taken in isolation, belong to the matters excluded from patentability by Article 52(2) EPC may nonetheless contribute to the technical character of a claimed invention, and therefore cannot be discarded in the consideration of the inventive step. This principle was already laid down, albeit in the context of the so-called "contribution approach", in one of the earliest decisions of the Boards of Appeal to deal with Article 52(2) EPC, namely T 208/84, VICOM.
With respect to question 4 of the referral:
[13.2] The referral asserts, correctly in our view, that T 1177/97, SYSTRAN, considers that programming always involves technical considerations, at least implicitly, and that T 172/03, Ricoh, assumes the same in that it considers the skilled person, who, it is emphasised, is a technical expert, to be a software project team, consisting of programmers. On the other hand, T 833/91, IBM, T 204/93, AT&T, and T 769/92, Sohei, are said to consider the programmer's activity, programming, to be a mental act, falling within the exclusions of Article 52(2) EPC.

[13.5] While the referral has not actually identified a divergence in the case law, there is at least the potential for confusion, arising from the assumption that any technical considerations are sufficient to confer technical character on claimed subject-matter, a position which was apparently adopted in some cases (e.g. T 769/92, Sohei, Headnote 1). However T 1173/97, IBM sets the barrier higher in the case of computer programs. It argues that all computer programs have technical effects, since for example when different programs are executed they cause different electrical currents to circulate in the computer they run on. However such technical effects are not sufficient to confer "technical character" on the programs; they must cause further technical effects. In the same way, it seems to this Board, although it may be said that all computer programming involves technical considerations since it is concerned with defining a method which can be carried out by a machine, that in itself is not enough to demonstrate that the program which results from the programming has technical character; the programmer must have had technical considerations beyond "merely" finding a computer algorithm to carry out some procedure.

[13.5.1] Defining a computer algorithm can be seen in two different lights. On the one hand it may be seen as a pure mathematical-logical exercise; on the other it may be seen as defining a procedure to make a machine carry out a certain task. [...] Depending on which of these views is favoured the question whether computer programming always involves "technical considerations" may be answered negatively or positively. Either view may apparently be genuinely held, as may be seen from the lack of consensus in the amicus curiae submissions; which one is held depends on one's intuitive notion of the term "technical". It was apparently the intention of the writers of the EPC to take the negative view, i.e. to consider the abstract formulation of algorithms as not belonging to a technical field [...] In T 1173/97 the Board concentrated on the effect of carrying out an algorithm on a computer, noting that there were always technical effects, which led the Board, since it recognised the position held by the framers of the Convention, to formulate its requirement for a "further" technical effect. Only if a computer program, when run, produced further technical effects, was the program to be considered to have a technical character. In the same way, it would appear that the fact that fundamentally the formulation of every computer program requires technical considerations in the sense that the programmer has to construct a procedure that a machine can carry out, is not enough to guarantee that the program has a technical character [...] By analogy one would say that this is only guaranteed if writing the program requires "further technical considerations".

15 May 2010

Meet the Bloggers in Boston for INTA

This years INTA annual meeting will be held in Boston, May 22 to 26, 2010. It is the largest and considered to be the most prestigious meeting of the international trademark community, with more than 7000 participants from more than 130 countries taking advantage of five days of educational programs, exhibits, social events and networking opportunities.

On that occasion, a group of IP bloggers will meet at Lucky's Lounge, 355 Congress Street, Boston on Monday, May 24th, from 8pm til late. Lucky's is just a few blocks from the convention center. John L Welch of the TTABlog explains that
Lucky's is a little difficult to find, since it does not have outdoor signage. It's right smack at the corner of Congress Street and A Street. Go down a few steps to the entrance doorway. [See this photo]. The convention center is a few blocks leftward.
This Meet the Bloggers VI gathering is considered to be the "best non-INTA event during INTA" on TTABlog and the Blawg Review announces that "everyone's welcome, so even if you can't make INTA but are in Beantown, please join us". Meet the Bloggers VI is hosted by Marty Schwimmer of the Trademark Blog, Ron Coleman of Likelihood of Confusion, and Pamela Chestek of Property, intangible.

Apparently, the term MEET THE BLOGGERS was coined in 2005, when John L Welch and Marty Schwimmer hosted the first two events in San Diego and Toronto under that title. Ron Coleman joined them for the third, in Chicago, while Jeremy Phillips of IPKat was responsible for the Berlin meeting. Needless to say that last year's INTA in Seattle saw the Meet the Bloggers V event, hosted by Mike Atkins of the Seattle Trademar Lawyer blog, where another great group of bloggers met and "fun was had by all".

13 May 2010

Munich hosts two major IP Conventions in 2010

As the place of location of the European Patent Office, the Federal Patent Court (BPatG), the widely known Max Planck Institute for Intellectual Property and its Munich Intellectual Property Law Center, a number of professional associations as well as the highest density of national and international IP law firms and IP professionals throughout Europe making up a rather vivid IP community, Munich is supposed to be Europe's IP capital.

Besides this, Munich, the capital city of Bavaria, and surrounded by the magnificent upper Bavarian region, combines the splendour of an old royal city with the vitality of a modern high-tech location, combining various epochs of style into a stunning mix of historical and visionary architecture. The city owes its structure to the reign of King Ludwig I.

Attractions range from the distinctive twin towers of the Frauenkirche church to Munich's spectacular museums among which are Munich's world famous art galleries, the Three Pinakotheken, to modern features like the world-renowned tentroof of the Olympic Park, and the Allianz Arena, Germany's most beautiful and thrilling soccer stadium. Munich's legendary quality of life attracts people from around the world.

This year, Munich will host two major IP related conventions, namely the 3rd IP Business Congress (IPBC), 20 to 22 June 2010, and the 12th FICPI Open Forum, 8 to 11 September 2010, both taking place at the Bayerischer Hof Hotel in the city center.
Our Munich-based IP law firm k/s/n/h will of course be present at both meetings. While personally I am not yet sure which one to attend, my partners Jochen Höhfeld and Achim Vierheilig have already registered for IPBC and FICPI, respectively. So if there is something you would like to discuss with me/us on this occasion, please do not hesitate to contact me anytime. Needless to say, we would be more than pleased to welcome you to our top floor office above the roofs of Munich to enjoy the view over the city up to the alps and discuss IP or business related topics while enjoying hot latte macchiato.
The IP Business Congress, presented by IAM magazine, has meanwhile established itself as one of the world's leading business-related IP conferences while being dedicated to bringing together leaders from the worlds of IP business and finance to discuss issues that centre on the creation and management of IP value. It offers this year  
  • a plenary session specifically to the IP needs of small and medium-sized enterprises, so crucial to the global economy and to the future of innovation;
  • the "Meet the decision makers" plenary – a chance to hear what elected politicians from a variety of parties and countries have to say about IP policy, as well as to question them about their priorities; and
  • the CIPO clinic will give delegates a unique opportunity to get advice from some of the world's leading chief intellectual property officers on how they deal with the challenge of making IP a corporate profit centre.
FICPI is the only association whose membership consists solely of IP professionals in private practice. With members in 86 countries/regions FICPI can rightly claim to be a truly international  organisation, broadly representative of the free profession and maintaining the standards of the profession world-wide, e.g. by its yearly Open Fora as ideal opportunities to keep abreast of new developments, to stay informed, and to make an impact on future legislation. This year's Open Forum will especially offer the following highlights: 
  • three distinguished judges, Judge Prof. Meier-Beck (DE), Judge Paul Michel (US), and Chief Judge Tsukuhara (JP) discuss the infringement questions raised by differences in the doctrine of equivalents;
  • arbitration and mediation as alternatives to litigation;
  • the "same invention" and how that concept applies to almost all aspects of patent drafting and prosecution;
  • the do's and don'ts of expert witnesses and their increasing importance in IP litigation;
  • gathering evidence for use in infringement proceedings;
  • using IP laws to protect unique designs against theft through unauthorized CAD models;
  • the secrets of obtaining favourable claim interpretations;
  • latest developments in the EU trade mark system, 3D marks, and enforcement of rights in domain names;
  • the latest developments in questions of patentability

      11 May 2010

      Importance of Intellectual Property for Innovation and Technology Transfer

      The World Intellectual Property Organisation (WIPO) and the UN Industrial Development Organisation (UNIDO) are currently exploring opportunities to formalize and further strengthen their cooperation to leverage their respective expertise in support of sustainable development.

      UNIDO thinks that while stronger IPR protection can ultimately reap rewards in terms of greater domestic innovation and increased technology diffusion in developing countries with sufficient capacity to innovate, it has little impact on innovation and diffusion in those developing countries without such capacity and may impose additional costs.

      In this context, Mr Francis Gurry, WIPO Director General, spoke to UNIDO member states on May 10, 2010 in Vienna about the critical role of IP as a tool for enabling innovation, the practical transfer of technology and industrial competitiveness, addressing the following key issues:
      • The IP system played a key role in facilitating technology transfer by incentivizing investment in innovation, providing a framework for trading intellectual assets, and by establishing market order through marks and brands. The innovation landscape was the subject of rapid and radical change pointing to the intensification of investment in knowledge creation which had more than doubled in the past 15 years rising to some 1.1. trillion US dollars in 2009.

      • The geography of technology production is rapidly changing as China had become the third largest investor in research and development. Japan, the Republic of Korea and China have particularly experienced sustained growth in international patent applications. In 1994, these countries together accounted for 7.6% of PCT applications rising, fifteen years later, in 2009 to 29.2%.

      • A dramatic shift in models of innovation has occured and specifically, the arrival of open and networked innovation offers great opportunities for developing countries to share in innovation. IP in its broadest sense is a mechanism for translating knowledge into commercial assets noting that the means of production of knowledge was moving from the individual to the collective and from national to international.

      • The IP system offers an essential framework for defining the rights and obligations of multiple participants in collective knowledge-generation and knowledge-sharing projects. It is important to develop the infrastructure of the international IP system as a means of increasing participation in the knowledge economy and reducing the knowledge gap.
      Having such targets in mind, one may ask how this may economically help those developing countries without sufficient capacity to innovate.

      10 May 2010

      T 1423/07 - Double Patenting is Possible According to the EPC

      The recent decision T 1423/07 of the EPO Board of Appeal disagreed with the opinion of the Examining Division, according to which a second application cannot be granted on the grounds that the claims on file were identical to the claims granted in the first application from which priority was claimed (see also here and here).

      For example, German patent law already prevents double patenting by an earlier application and an application claiming its priority at an early stage of the proceedings, since according to § 40 (5) PatG the earlier application from which priority is claimed is deemed withdrawn already with the declaration of priority.

      On the other hand, US Patent Law knows two types of double patenting objections to be risen during the proceedings up to grant. One is the non-statutory (case law) "obviousness type double patenting objection", which is based on the judicial doctrine according to which a prolongation of the patent term has to be prevented by prohibiting claims in another patent that are obvious variations on claims of the granted patent. The other is the "same invention type double patenting objection" based on 35 U.S.C. Sec. 101, which states that an inventor "may obtain a [i.e. one] patent" only. While the former can be overcome by a terminal disclaimer declaration which disclaims the term of the later-issuing patent that extends beyond the term of the earlier patent, the latter objection may be tackled by joining all claims that relate to the same invention in one single application.

      In Europe, the EPO Board of Appeal held in May 2000 in case T 587/98 that
      there is no provision in the EPC (not even implicitly) which prohibits in a divisional application an independent claim which is related to an independent claim in the parent application in such a way that the parent claim includes all the features of the divisional claim combined with an additional feature.
      In June 2007, the Enlarged Board of Appeal accepted in cases G 1/05 and G 1/06 that
      the principle of prohibition of double patenting exists on the basis that an applicant has no legitimate interest in proceedings leading to the grant of a second patent for the same subject-matter if he already possesses one granted patent therefor.
      The Enlarged Board therefore accepted the practice of the EPO "that amendments to a divisional application are objected to and refused when the amended divisional application claims the same subject-matter as a pending parent application or a granted parent patent."

      In July 2007, case T 307/03 explicitly disagreed with the apparent conclusion of earlier T 587/98 that there would be no basis in the EPC for prohibiting conflicting claims and thus followed the Enlarged Board of Appeal. It was concluded in T 307/03 that a patent cannot be granted on a divisional application claiming the same subject-matter as the parent application, even not if the claims of the divisional application are broader. The prohibition of double patenting was notably derived from Article 60 EPC, according to which the "right to a European patent shall belong to the inventor or his successor in title":
      [once] a patent has been granted to the inventor (or his successor in title) this right to a patent has been exhausted, and the European Patent Office is entitled to refuse to grant a further patent to the inventor (or his successor in title) for the subject-matter for which he has already been granted a patent.
      In November 2008, the Board of Appeal held in T 1391/07 that a double patenting objection did not arise when the claims of two applications only overlap. In other words, when there is a partial overlap in the respective scopes of protection,
      there is at least one technical feature in each of divisional claim 1 and parent claim 1 clearly distinguishing the subject-matter of the respective claim from that of the other one of the claims, and that these distinguishing features are such that the scope of protection sought by the invention claimed in the divisional application is notionally different from the scope of protection conferred by claim 1 of the granted parent patent.
      In the present case T 1423/07 the Examining Divison referred to the Guidelines for Examination according to which patents in the name of the same applicant must not contain claims of substantially identical scope. In fact, under section C-IV, 7.4 it reads that the EPC does not deal explicitly with the case of co-pending European applications of the same effective date but, however,
       it is an accepted principle in most patent systems that two patents cannot be granted to the same applicant for one invention. It is permissible to allow an applicant to proceed with two applications having the same description where the claims are quite distinct in scope and directed to different inventions. However, in the rare case in which there are two or more European applications from the same applicant definitively designating the same State or States (by confirming the designation through payment of the relevant designation fees) and the claims of those applications have the same filing or priority date and relate to the same invention (the claims conflicting in the manner explained in VI, 9.1.6), the applicant should be told that he must either amend one or more of the applications in such a manner that they no longer claim the same invention, or choose which one of those applications he wishes to proceed to grant.
      The Board of Appeal denied existence of "accepted principle in most patent systems" and disagreed the above-sketched Board of Appeal case law, since, firstly, the EPC does not contain an explicit provision prohibiting double patenting and, secondly, since most Contracting States have provisions prescribing that a national patent ceases to have effect in case of double patenting with a European patent, which are, however, not related to double patenting in the pre-grant stage. In fact, the Board did not find a principle of procedural law generally accepted in the Contracting States that the refusal of an application for double patenting is provided for.

      In T 307/03 the ruling that a patent cannot be granted on a divisional application claiming the same subject-matter as the parent application was derived from Article 60 EPC, whereas the Board this time concluded that there is no way that Article 60 EPC could provide basis for refusing a European application under Article 97(2) EPC for double patenting. Contrary to T 307/03, the board in this case found that
      the fact that the EPC does not contain any specific provisions relating to double patenting is decisive: in the absence of such provisions, a refusal of a European patent application for double patenting is not possible irrespective of whether or not double patenting is a rare occurrence.
      Also the situation in G 1/05 was considered different to that of the unterlying appeal, since in G 1/05 the parent and its divisional application had the same filing date, while in T 1423/07 the term of the patent to be granted on the second application is to be calculated from its own filing date and not from the filing date of the priority application. Thus, the applicant has a legitimate interest in obtaining longer protection based on his second application.

      08 May 2010

      Will USPTO use Section 112 more often in rejections of software patents claims?

      USPTO Director David Kappos recently commented on the March 22, 2010 Federal Circuit en banc decision Ariad Pharmaceuticals v. Eli Lilly and concluded that the written description requirement remains alive and well and is an essential “backstop” against overclaiming. In the case, the Federal Circuit held that Section 112 of the Patent Act has a written description requirement that is separate and apart from the enablement requirement. 

      The Ariad decision is considered important for the USPTO because written description is a critical tool for ensuring that an applicant does not claim more than he is entitled to claim. The Office recently conducted a survey of 6,865 final rejections issued over a 4.5 year period between 2005 and 2010.  A written description rejection was made in about 9.7 percent of all applications during this time period.  This data shows that the written description doctrine is essential to the Office’s ability to perform its basic examination function. 

      Now, Jim Singer concludes in his recent IP Spotlight post that this may be a signal that the USPTO intends to apply Section 112 more aggressively to software claims, since Mr Kappos explains:
      [T]he written description doctrine is particularly useful in examining claims that employ functional language, or that merely set forth a desired result without any indication of what achieves that result. . . .  Thus, when confronted with functional claims, as with results obtained claims, I encourage examiners to carefully consider whether such claims — amended or original — are adequately supported by the specification.
      And, since it's not a secret that patent claims relating to software often use functional language, as the function of the software is typically what separates it from the prior art, Mr Kappos strongly supports the USPTO examiners using the written description requirement to prevent issuance of such vastly overbroad recitations. Unless an applicant has devised every solution to a problem, the applicant is not entitled to patent every solution.

      05 May 2010

      Increased Allowance Rate at the USPTO

      As reported here, the USPTO issued 167,349 utility patents at an average rate of 3,218 per week in 2009, which increased in April 2010 to an average of 4,385 patents per week. That is, the weekly average has been increased more than 35% from the 2009 weekly average, whereas patents issued from January to April 2010 were probably allowed during the second half of 2009. An estimate for the whole year based on the April figures would result in an estimation of about 220,000 allowances in 2010, which would represent the largest single-year jump in history.

      Now Mr Matt Osenga speculates in his blog, that the USPTO might has changed its policy and will now allow patents at a higher rate than in recent years, which would be a good sign for future applicants and innovators and also significantly reduce the backlog of over 700,000 unexamined applications.

      On the other hand, one may also draw the conclusion that a significant increase of issued patents would apparently not go together with an increase in quality, which we recently learned from the EPO following the so called "raising the bar" agenda of former president Alison Brimelow, who appers to identify patent quality increase with a decrease of the allowance rate.

      On the other hand, the USPTO has some internal quality statistical measures to at least identify poorly examinated patents, according to which multiple non-final actions, late restrictions, reopened prosecution after an appeal brief or after a final rejection, multiple RCEs, first action allowances or allowances after an RCE with substantially maintained claims are considered as indicators for lack of patent quality.

      04 May 2010

      The Privacy Policy of Facebook

      The Electronic Frontier Foundation (EFF) is an international non-profit digital rights advocacy and legal organization based in San Francisco, USA. It was founded in July 1990 by poet, essayist, cattle rancher and political activist John Perry Barlow and software developer, IT entrepreneur (Lotus, Second Life), investor and philantropst Mitchell Kapor. EFF is dedicated to civil rights in cyberspace and the medial self determination of its citizens. Even though the EFF mostly focusses on North America, a bureau has been opened in Brussels in Ferurary 2007 to better address European issues.

      Now EFF has documented the evolution of Facebook's privacy regulations during the previous five years (cf. Facebook's Eroding Privacy Policy: A Timeline):
      Since its incorporation just over five years ago, Facebook has undergone a remarkable transformation. When it started, it was a private space for communication with a group of your choice. Soon, it transformed into a platform where much of your information is public by default. Today, it has become a platform where you have no choice but to make certain information public, and this public information may be shared by Facebook with its partner websites and used to target ads.
      Since 2005 there has been a significant shift away from privacy, as becomes clear when comparing Facebook's 2005 Privacy Policy (FPP) with the most recent one:
      June 2005: No personal information that you submit to Thefacebook will be available to any user of the Web Site who does not belong to at least one of the groups specified by you in your privacy settings.

      April 2010: When you connect with an application or website it will have access to General Information about you. The term General Information includes your and your friends’ names, profile pictures, gender, user IDs, connections, and any content shared using the Everyone privacy setting. ... The default privacy setting for certain types of information you post on Facebook is set to “everyone.” ... Because it takes two to connect, your privacy settings only control who can see the connection on your profile page. If you are uncomfortable with the connection being publicly available, you should consider removing (or not making) the connection.
      Consequently, Facebook originally earned its core base of users by offering them simple and powerful controls over their personal information. As Facebook grew larger and became more important, it could have chosen to maintain or improve those controls. Instead, it's slowly but surely helped itself — and its advertising and business partners — to more and more of its users' information, while limiting the users' options to control their own information.

      This shift in privacy policy almost perfectly corresponds to Facebook founder and CEO Mark Zuckerberg's attitude towards this issue. Although Zuckerberg told users back in 2007 that privacy controls are "the vector around which Facebook operates", by January 2010 he had changed his tune, saying that he wouldn't include privacy controls if he were to restart Facebook from scratch. And just a few days ago, a New York Times reporter quoted a Facebook employee as saying Zuckerberg "doesn't believe in privacy".

      This parctise has been much criticised, e.g. by German Federal Minister of Consumer Protection Ilse Aigner who, in April 2010, demanded improved respect of user-data policy and user right and threatened in a letter to Mr Zuckerberg that she will "feel obliged to terminate my membership, should Facebook not be willing to alter its business policy and eliminate the glaring shortcomings". Her step has been widely criticised as an (probably not so clever) PR coup of a conservative politician (christian democrats, CSU) wanting to address a young clientel and thus her (German language) Facebook initiative only earned about 8.000 (mostly German) fans.

      Facebook’s Public Policy Communications Manager Andrew Noyes answered on Ms Aigners open letter in a rather concilliatory but non-obligatory way, leaving us behind with the question whether or nor Ms Aigner has to cancel her account now (which is answered here):
      “We’d like to thank all of the users, advocates and experts, including Minister Aigner, who participated in our fifth comment period last week, which resulted in thousands of responses. We’ll carefully review the feedback we received and keep users fully informed about next steps. We hope that Minister Aigner and all of our users in Germany and around the world are encouraged by the openness and transparency we have and will continue to provide into Facebook’s governance. We also commit to continuing to offer easily accessible tools so people can control how they share their information and with whom.”
      As Ms Aigner probably is not the social media addict she pretends to be in her open letter, there is also much criticism among real social media enthusiasts, as can be concluded from the Twitter discussion under #facebook. As far as my own facebook account is concerned, I try to limit the posted information to my professional interests mostly avoiding privat entries, which is not too odd nowadays, since Facebook became a valuable marketing tool especially for lawyers and legal service providers.