25 August 2011

ACTA About to be Signed by European Union

In a new article titled Draft Decision: Council of EU one step closer to sign ACTA on our ksnh::law blog we report on the latest developments of the ACTA negotiations in the European Union, the purpose of which is to establish international standards on intellectual property rights enforcement.

According to a draft decision of the EU Council (cf. Document 12192/11) the President of the Council, Mr Herman Van Rompuy, shall be authorised to designate the persons empowered to sign the Agreement on behalf of the Union.

Please read the details here.

24 August 2011

The Situation of the EU Patent in the present Summer Recess

In a new article titled European Patent with unitary effect: How to carry on? on our ksnh::law blog my colleague Axel Horns sketches the political and legal situation of the EU patent in the present summer break as well as how the implementation of enhanced cooperation may continue coming fall.

Within the two-step process, consisting of authorisation and implementation of enhanced cooperation, we have not yet reached the point where the second step can be finalised, while the matter is now lying on the table of the somewhat ominous Friends of the Presidency Group.

23 August 2011

The Smartphone War as a Stress Test for the Current Patent System

In a new article titled "Software Patent Litigation: Stress Testing the Patent System" on the ksnh::law blog, my colleague Axel Horns contemplates on the ongoing so called "smartphone war" and its possible impact on the patent system as a whole, exemplary considering the Apple vs. Samsung battle, the Lodsys cases and various other developments and expert opinions.

As a bottom line, possible non-availability of smartphone hardware or apps due to patent right enforcement could produce considerable consumer frustration and mainstream media coverage to evolve into sort of a litmus test for the social and political acceptance of the current system of intellectual property protection in general and patent law in particular.

09 August 2011

Case Law of the EPO Boards of Appeal on Patentability of Computer-related Inventions: An Overview

In a new article titled "EPO Case Law on Patentability of Software Inventions From the 80ies Until Now" on the ksnh::law blog, I provide a summary of a working session on “Patentability of Computer implemented inventions at the EPO” held by Mr. Dai Rees – Chairman of an EPO appeal board and member of the Enlarged Board of Appeals that issued the G3/08 opinion – on the 15th European Patent Judge’s Symposium that took place in Lisbon in September 2010 (cf.  Special edition 1/2011 of EPO Office Journal, pp. 93 to 102; pdf 5 MB).

My personal conclusion is that, after twists and turns throughout the years, related EPO case law has now reached a rather stable situation providing legal certainty for applicants of software inventions, since the G 3/08 opinion basically affirmed the status quo, i.e. the pragmatic problem-solution approach as sketched in T 641/00 (COMVIK) and T 258/03 (Hitachi).

06 August 2011

EPO Strenghens Third Party Observations in EPO Proceedings

In a new article titled "Einwendungen Dritter in Verfahren vor dem Europäischen Patentamt werden gestärkt" (in German, sorry;  automatic Englisch translation by google) on the ksnh::jur blog, I report on the recent approach of the EPO to provide a well-structured web portal for easy submission of third party observations according to Art. 115 EPC as of 1 August 2011 (see information  sheet and Decision dated 10 May 2011).

The Notice dated 15 May 2011 explains the background of the pilot project, as well as formal requirements and the treatment of submissions:

Background: Article 115 EPC enables third parties to present observations concerning the patentability of the invention to which a European patent application or patent relates. There are no fees for presenting such observations.

[...] The EPO has decided to facilitate and promote the filing of well-structured and concise third party observations in order to further improve the quality of granted European patents. Observations containing very relevant objections can also considerably reduce the length of the procedure.

The EPO has also changed its practice to ensure that examining and opposition divisions comment explicitly on the relevance of third party observations. This increases the transparency of the procedure, which was a general desire identified during the "Raising the Bar" project.

Therefore, the EPO has implemented a pilot scheme, available to third parties from 1 August 2011, by which an online form can be used to file these observations. This form will be accessible from the EPO website (tpo.epo.org). The structure of the form has been specifically designed to encourage concise and well-reasoned observations which can be quickly understood and evaluated by examiners.

Please note that as a pilot scheme the online form will be subject to review. The use of such a form to file third party observations has been made possible by the decision of the President dated 10 May 2011 (OJ EPO 2011, 418).

Formal requirements: Art. 115 EPC applies only to published European patent applications and patents, for which proceedings are pending before the EPO.

Observations should be filed in an official language of the EPO (EN, FR, DE).
Supporting documents, e.g. prior art citations, can be written in any language. However, the EPO may require the third party to file a translation into an official language. [...]

Observations may not concern formal aspects, but should be restricted to the substantive requirements of the EPC, e.g. Art. 52-57 EPC.

Treatmet of Observations: Firstly it is important to note that, subject to the formal requirements mentioned above, submissions filed as third party observations will be placed in the public part of the file of the patent application or patent. This means that they will be accessible to the public.

All observations meeting the above formal requirements will be considered by the examining or opposition division, which will then comment on the relevance of the observations in the next substantive communication to the parties of the proceedings.

The third party is not a party to the proceedings before the EPO and so will not be informed directly or be further involved in proceedings. [...]

Status of Amazon’s Controversial One-Click Patent in Europe and Elsewhere

In a new article titled "Amazon’s One-Click Patent in Europe and Elsewhere" on the ksnh::law blog, I provide a detailled update of an earlier survey on the legal status of Amazon's 1-click patens in important patent jurisdictions. The focus, however, lies on the four parallel EP applications filed, especially on  EP 0 927 945 A2 and EP 1 134 680 A1 which both went through appeal proceedings and nicely illustrate the EPO's approach towards examining software-related inventions.

As a conclusion, it again appears that the European approach towards software-inventions is quite pragmatic and appropriate as compared e.g. to the US or Australian approaches, given the common European doctrine to exclude "computer programs as such" from patentability, i.e. algorithms, computational schemes or the like having no capacity to solve a concrete technical problem, as required by Art. 52 EPC.

03 August 2011

IP-related Obstacle for EU/India Free Trade Agreement Cleared

In a new article titled "India And EU Reach Understanding On Seizure of Indian Generic Drugs in Transit" on the ksnh::law blog, my colleague Axel Horns refers to a consent between the European Union and India that clears a major IP-related obstacle for a EU/India Free Trade Agreement (FTA), which the parties negotiate since 2007.

According to that mutual undestanding, the mere fact that medicines to which a patent title is applicable are in transit through EU territory "does not in itself constitute enough grounds for customs authorities in any Member State to suspect that the medicines at stake infringe patent rights".