21 February 2011

Karl-Theodor zu Guttenberg, Germany's Popular Minister of Defence, Accused For Copyright Infringement and Science Plagiatism

Mission accomplished? (photo via Wikimedia under a CC license)

Karl-Theodor zu Guttenberg is an exceptionally popular centre-right politician of Bavarian Christian Social Union (CSU) who - up to now - made an impressive political career and became a Federal Minister already at the age of 37. He now serves as Minister of Defence in the second Merkel cabinet (see biography of the defence ministry).

Mr Guttenberg, a member of the Franconian noble House of Guttenberg, is a political pop star ("the cool baron") who has been proclaimed as future Federal Chancellor by parts of Germany's conservative media. He studied political science and law at the University of Bayreuth and was awarded a summa cum laude doctorate in law in 2007 with a dissertation on the development of constitutional law in the US and the EU.

Only recently, allegations became public that Guttenberg systematically copied numerous unattributed passages from twenty or more different sources such as newspaper articles, speeches, scientific papers, and even the Federal Parliament's research department. The spontaneously initiated GuttenPlag wiki, searching for and documenting plagiates in Guttenberg's thesis, already found that - allegedly - 68% of the pages contain copied passages. Meanwhile, two complaints on grounds of copyright infringement have been submitted and Guttenberg's university took the accusations of science plagiatism serious enough to ask him for written clarification within 14 days (see also coverage in the Spiegel magazine, here, here, or here).

The case is somewhat "juicy" for the Federal Government under Chancellor Angela Merkel, since  the conservatives (and liberals) traditionally follow a rather strict property-oriented copyright approach, including e.g. ancillary copyright for newspaper publishers, provider liability, and intensified copyright enforcement in the internet (see e.g. Federal Minister of Justice Sabine Leutheuser-Schnarrenberger's June 2010 Berlin Address on Copyright Law).

Myself, I have to agree with the below-sketched observations on science plagiatism and copyright of IT/IP lawyer and blogger Thomas Stadler, who is asking "What does the Guttenberg case mean for studies and research at the universities and the attitude of the federal government towards copyright issues?":
According to § 8 no 6 of the dotoral regulations of the University of Bayreuth Guttenberg had to make a sworn statement that he prepared his dissertation individually and independently and that no other materials were used than those indicated in the thesis.

The fact that the minister's apparent lie is accompanied by a severe case of copyright infringement is quite spicy for the Federal Government, which does not get tired to emphasise that intellectual property enforcement, especially in the internet, has to be intensified and the position of authors and [copy]right holders needs to be strengthened. The Government will now have to face the fact that such attitudes become questionable when a member of the Federal Cabinet intentionally violates copyrights of others. Guttenberg increases the crisis of legitimacy of copyright, since he, in fact, is a copy pirate.

But that's not all, though. His pirate copying took place in an academic study, thus also violating fundamental principles of scientific working - literally copied text passages must be labeled as quotes and trains of thought utilised from others must be disclosed as such.

Leaving this violation of scientific principles unpunished would throw examination pracitce of German universities in a crisis of legitimacy. How to explain students and doctoral candidates that they cannot piece together their thesis in a copy/paste fashion from the texts of others, if a minister is well rewarded with [nothing less than] summa cum laude? [Such cheating] has to be outlawed especially on a scientific level, which in the present case should be done by depriving the [apparently undeserved] doctorate.

Should the University of Bayreuth not be prepared to draw this conclusion, they would only confirme the already-standing suspicion that dissertations are also evaluated according to political criteria. [By the way,] the fact that two renowned professors rewarded a work composed in significant parts from third party texts with the top mark is more than amazing. [...]

19 February 2011

OHIM Forces Users into e-Communication Platform to Improve Quality of Service

Within OHIM's quality plus initiative, the MyPage online service is a personalised platform providing a range of online solutions for CTM/RCD applicants, such as e-communication (mailbox for official communications), management of CTM/RCD applications, e-opposition, e-renewal, and CTM Watch, the latter being an automated e-mail alert system monitoring the status of CTM and IR applications. This platform is promoted to provide users with such great advantages like improved security and reliability, quicker communication, and central archiving.

OHIM appears to be quite enthusiastic about - and having the money for - all those great opportunities of online services and e-commerce. However, while this all sounds very modern, consequent and really pragmatic, 'electronification' of service provider services often turns out to be not a great achievement for customers (or their representatives), since the implemented solutions tend to improve internal efficiency by shifting responsibilities, infrastructural issues and work to the users.

Whitin this context, OHIM announced on 10 January 2011 that the current practice of sending a letter (L 124) to applicants or representatives to inform about the publication of a CTM application in the CTM Bulletin will be stopped as of 1 February 2011 with the effect that for all application filed as of that date, the CTM publication letters will be replaced by an MyPage e-mail alert. To set up the new alert feature within the MyPage service, the users have to implement the provided instructions for each single pending trademark case - without receiving any fee reductions. 

In my eyes, this approach is a clear example for shifting burden from the office to the users, since now the user is responsible for setting up and maintaining the required computer infrastructure in order to regularly access office-sided mailboxes and retrieve official e-mail notifications.

However, in this case, the gain of efficiency for OHIM is not so clear, since, as far as I know, official notifications have been issued by automated facsimiles by now, which is not really inefficient as compared to automatic e-mail notifications.

Considering the fact, that OHIM cannot be really satisfied with currently only about 60% of the applicants having and using a MyPage account, compulsory reception of e-mail alerts about important OHIM communications via MyPage would certainly increase that figure. However, I doubt that the remaining 40% will really appreciate to be forced into that direction by the EU Harmonisation Office. I assume they will rather find it inacceptable, especially since OHIM receives a filing fee of 900 or 1.050 EUR which should really be sufficient to properly inform applicants.

Since the benefits for users of receiving MyPage e-mail alerts about CTM publications is at least questionable, I wonder if OHIM's new energetic President António Campinos has informed or discussed this issue in advance with the members of the OAMI Users' Group (international NGO's from the IP sector, such as Marques, ECTA, or INTA).

If yes, what is their position? In fact, one can only find some thin announcements like the one on Marques' Class 45 blog or in ECTA's recent flash newsletter, but no substantive discussions or comments on this issue.

If no, how does this approach go together with President Campinos "firm belief that an open and frank cooperation between the Office and the users' associations is a prerequisite for future success", as expressed in his introductory letter dated 5 October 2010 (see earlier posting). This articulated belief of the President, by the way, wasn't really apparent already in regard to his desire that the user associations should profoundly contribute to the OHIM strategic plan within only 10 days, as reported in one of my earlier postings.

If the user associations as organised in the OAMI Users' Group accept that OHIM simply cancels services - maybe even without any discussion beforehand, since OHIM anticipated the resistance - then they will have to accept that OHIM does in fact not care so much about user interests. This, however, would be a very negative development for an EU auhtority that directly influences the internal market, given the general scepticism of many Europeans against a detached EU bureaucracy.

In fact, from a more principle point of view, all those innocent, well-meant e-communication approaches coceived by technocrats are a bit scary, since, even if they really improve (internal) efficiency by nicely streamlined workflows, they always have the potential to - of course unintentially - increase anonymity and to hide the office behind an internet portal. At least, this would be really efficient, since customers, users, and citizens do not disturb office workflows any more. But I seriously doubt whether the EU Commission would really consider that scenario appealing.

I hope OHIM's user associations will (be able to) raise this point in near future. The OAMI Users' Group Meeting on 15 April 2011 appears to be a perfect platform for doing so.

15 February 2011

EU Parliament Gives Go-Ahead for 'Unified Patent' by Enhanced Cooperation As Promised Cost Savings Appear Questionable

[The European Parliament building in Strasbourg]
Despite the - earlier reported and not totally unfounded - efforts of anti-patent groups (see here and here) to urge the European Parliament to not give its consent to a legislative proposal to implement a 'small' EU patent (now called "Unitary Patent") by enhanced cooperation until the ECJ issues its opinion on the compatibility of the EU Commission's draft agreement on the EEUPC on 8 March, the European Parliament did exactly this - it today gave its go-ahead by 471 votes to 160, with 42 abstentions (see here for further reports), as recommended by the Parliament's legal affairs committee (JURI) in January. As the next steps
The Council of Competitiveness Ministers is expected to formally adopt the decision authorising enhanced cooperation on 9 - 10 March [i.e. the day after the issuance of the ECJ's opinion!]. The Commission will then submit two legislative proposals: one establishing the single patent (under the co-decision procedure) and the other on the language regime (consultation procedure).
However, as summarised by EurActiv, there remain severe doubts over the legal compatibility of both the linguistic and jurisdictional regime (as proposed for the Unitary Patent and/or the EEUPC).
[C]oncerns have been raised regarding the status of the new court [i.e. the EEUPC as proposed by the Draft Agreement]. In an opinion issued in July, the Advocates General of the European Court of Justice stated that the new tribunal could be out of step with EU legislation and jurisprudence, declaring the proposal "incompatible with the treaties" [see earlier posting]. The opinion also condemned the draft proposal due to its [...] trilingual system [that] "may affect the rights of defence" of companies based in countries that use a different language [...].
And, if the Court replicates the Advocate General's opinion, as it does in 80% of the cases, a completely new scenario would unfold, since the EU Commission would then have to start from scratch again. Further,
  • in the European Parliament, opposition by MEPs from Spain and Italy could gather momentum and attract members from other countries;
  • the initial idea of introducing a system based on English only could resurface as concerns about jurisdiction are also based on linguistic grounds. Indeed, the English-only regime – backed by Italy and Spain – would not only be cheaper and simpler, but also fairer, as it would avoid giving French and German companies a competitive advantage.
  • a multilingual system based on all the EU's official languages may be the only option left. And after years of talks, this would essentially mean negotiations were back at square one.
It appears that the 8th of March will be a historic date for the decades-old EU patent project, either the hoped-for breakthrough or its downfall.

Besides all this, the big motivation for the EU patent, as repetively preached by the EU Commission, namely that "the current system for obtaining patents throughout the EU was too expensive, costing ten times more than in the United States", is highly questionable, as remarked by Mr Jochen Pagenberg, current President of EPLAW, in an article in the January 2011 edition of AIPPI e-news,
since the figures compared are only the bare filing fees and, therefore, do not reflect the real burden on patentees for an average case when examining the filing practice of industry with regard to EP patents. They clearly ignore the costs of further prosecution [e.g. attorneys fees], not to speak of the expense of later enforcement for which a comparison between the US and continental Europe would give a different picture. [...] [C]ombining a system having more affordable filing fees with an unaffordable enforcement system is wasted money and overlooks the real needs of users, in particular, small and medium businesses.
In fact, the frequently articulated figures, e.g. by Commissioner Barnier and others ("the cost [...] will be reduced tenfold"), appear to be somewhat "political". Considering the fact that the London Agreement has already abolished translation requirements for most of the more important EPC/EU economies like UK, FR, DE, NL, SE, DK, huge cost savings due to reduced translation expenses cannot be expected, especially since the two most important countries that have not entered the London Agreement, namely Italy and Spain, will not participate in the EU patent either.

So one has to fear that some European politicians (and SMEs) will be quite surprised if the political promises do not come true to the desired extent once the Unified Patent is implemented.

12 February 2011

OHIM President Asks Users for Contribution to Strategic Plan - within 10 Days

As reported in this earlier piece, OHIM's new President, Mr. António Campinos, has great plans for the office, as he wants to transform it into "a true 'IP agency'".

On this way, Mr Campinos announced in his introductory letter dated 5 October 2010 to members of the OAMI Users' Group (members are international NGO's from the IP sector), that it is his "firm belief that an open and frank cooperation between the Office and the users' associations is a prerequisite for future success" and that he intends to discuss with stakeholders a strategic plan for the next 5 to 10 years enabling OHIM to better cope with the challenges ahead".

Now, Mr Campinos has asked "OHIM stakeholders, national offices and user associations to get their contribution on the main challenges and objectives to be set for the Office during the next years" in another letter. The questions posed to the user associations are rather abstract and each may be subject to a dissertation to be answered in sufficient depth:
  • What are the issues/challenges facing the OHIM over the coming years? What are the threads in the Intellectual Property landscape in Europe and beyond?
  • Which should be OHIM's most important goals and what objectives need to be set in order to achieve the OHIM goals?
  • What concrete initiatives would your organisation recommend OHIM to take to meet theses goals?
While the letter is dated 7 February 2011, the President "would be very thankful if the contributions could be sent [...] no later than the 17 February 2011", i.e. within 10 days. It appears that if the cooperation between the Office and the users' associations is really considered a prerequisite for future success, the users of the Alicante system should be allowed to spend a little more time on this central issue. Otherwise, their contributions to the "OHIM strategic plan for all" cannot be overly profound, I fear.

From my point of view, it would be an important and demanding task for the European Union's IP agency to not only play an active role in IP enforcement (see this posting), e.g. by overtaking the EU Commission’s "Observatory on Counterfeiting", but to also increase the awareness and expertise for IP issues among economic leaders, e.g. in the way IAM, one of the OHIM user associations, promotes the Chief IP Officer for a couple of years.

What actually is not needed so much is an active role of OHIM in the patent field, which is occasionally demanded by (e.g. Spanish) stakeholders or anti-patent campaigners in order to weaken the influence of the EPO, being not an EU office but a (formally) independent trans-national authority, on European substantive patent law.

09 February 2011

ECJ Opinion on European Patent Court System Announced for 08 March 2011

[The Grand Chamber at the European Court of Justice in Luxembourg]
The proposal for a unified patent litigation system in Europe is based on a first preliminary Draft Agreement prepared by the Slovenian Presidency in May 2008 [Doc. 9124/08], which was further elaborated and revised to yield the latest version of the Draft Agreement as proposed by the Czech Presidency on 23 March 2009 [Doc. 7928/09]. Due to requests by various delegations, an opinion by the European Court of Justice (ECJ) was requested on the compatibility of the envisaged Agreement with the EU Treaty [Doc 9076/09].

Now, the judical calender of the European Court of Justice announces the opinion on the "Draft Agreement on the European and Community Patents Court" (case Avis 1/09) to be published on

08 March 2011.

In May 2010, an oral hearing took place (see official report) and showed that there exist doubts whether a number of essential issues of the Draft Agreement are compatible with the EU Treaty and related EU law. Mr Jochen Pagenberg, current President of EPLAW, was present at the Court hearing and concluded in privat notes
What can be expected from the Opinion of the ECJ? A clear affirmative answer in favour of compatibility of the present Agreement is highly unlikely in view of the persistent questions and serious doubts concerning the lack of judicial EU control over the EPO granting procedure. Beyond this the controversial legal basis between the Member States about the court system as a whole, and particularly with respect to the combined jurisdiction for EU and EP patents will most probably be addressed by the Court and can hardly be resolved to the satisfaction of all Members.
Later, the Advocates General's preparatory (and non-binding) Statement of Position  raised the following essential objections on the European Council’s Draft Agreement:
  1. The guarantees to ensuring full application and observance of the pre-eminence of EU law by the EEUPC are insufficient (see §§ 78 to 93 of the Statement).
  2. The remedies available in the event of the EEUPC’s infringement of EU law and in the event of non-observance of its obligation to effect a preliminary reference are insufficient (see §§ 104 to 115 of the Statement).
  3. The linguistic system faced by the central division of the EEUPC may affect the rights of defence (see §§ 121 and 122 of the Statement).
  4. The draft agreement […] does not satisfy the requirement of ensuring effective judicial control and a correct and uniform application of EU law in administrative proceedings concerning the granting of Community patents (see §§ 68 to 75 of the Statement).
Regarding the above-identified weakness of the linguistic system, which is essentially similar to that of the Commission's legislative proposal for implementing a 'small' EU patent (without at least Spain and Italy) by enhanced cooperation, the Advocate General's Statement explained under § 121, that
a company may be summoned in law in a language in whose choice neither its country of origin nor the country where it carries out its commercial activities has participated. [...] [T]his linguistic system appears to be unacceptable with regard to observance of the rights of defence.
No doubt, the ECJ's opinion will be decisive for the European Patent project as a whole, i.e. not only for the Unified Patent Court (EEUPC) but also for the EU Patent itself. A negative opinion of the ECJ on the EEUPC would also severely affect the efforts to implement the EU patent by enhanced cooperation (see earlier postings here and here) - not only because the highly controversal language regime would then be questioned again, but also because an EU-wide patent does not make much sense for applicants, if there does not exist an efficient EU-wide Patent Court to litigate or invalidate such patents.

In a related blog posting, IAM editor Joff Wild took a very similar position and commented that
the ECJ decision is crucial because without a means of deciding disputes, in practical terms there can be no single patent. So, if you think about it, the fate of this whole project now lies within a body of men and women, sitting in a court in Luxembourg, who have not been elected and who have very little patent experience or expertise. Such is the separation of powers, of course. When writing about opinions delivered by advocates-general it is usual to say that it is rare that the ECJ disagrees with them to any great extent. And this is true. It is rare; but it's not unheard of. There will be a lot of people in Europe hoping this will be one of those occasions and quite a few folk in two southern European countries who hope that it is not.

Divisional Application of Amazon's One-Click EP Patent Dismissed in Appeal (T 1244/07)

Amazon's European "one-click" (parent) patent EP 0 927 945 has been revoked in Opposition proceedings due to new matter and lack of inventive step. In the subsequent appeal before the EPO Appeal Board 3.5.01 under experienced Chairman S. Wibergh, this decision was set aside and the case was remitted back to the first instance Opposition Division for examining the third auxiliary request (T 1616/08). Further information on the status of Amazon's one-click patents and the appeal decision T 1616/08 may be obtained here and here.

But there also exists the divisional application EP 1 134 680, which has been rejected by the Examining Division and was appealed as well (T 1244/07). The oral appeal proceedings took place on 27 January 2011. According to the minutes, the same Board decided to dismiss the appeal. Apart from the extraordinary option to file a Petition for Review under Art. 112 (a) EPC, the one-click divisional application should now be dead and gone. The lenghty and quite detailled main claim discussed was that of auxiliary request 1A, filed during oral proceedings (underlining identifies features limiting auxiliary request 1), reading: 
A method for ordering an item using a clienet system, the method comprising:
  • receiving from a server system a client identifier of the client system when the client system first interacts with a server system, said client identifier being a globally unique identifier,
  • persistently storing the client identifier at the client system, when the client identifier is from then on included in messages sent from the client system to the server system and retrieved by the server system each time a message with an identifier is received from the client system by the server system;
  • storing at the server system for that client and other clients a customer table containing a mapping from each client identifier identifying a client system to a purchaser last associated to said client system;
  • storing at the server system customer information for various purchasers or potential purchasers, said customer information containing purchaser-specific order information, including sensitive information related to the purchaser, said sensitive information comprising payment information,
  • connecting at a later point in time, when a purchase is intended, the client system to the server system, comprising the steps of:
  • sending from the client system a request for information describing an item to be ordered along with the client identifier;
  • determining at the server system whether single-action ordering is enabled for that purchaser;
  • if enabled sending from the server system the requested information to the client system along with an indication to perform a single action to place the order for the item;
  • displaying at the client system information identifying the item and displaying an indication of a single action that is to be performed to order the identified item;
  • performing at the client system that single action and in response to that indicated single action being performed, sending the server a single action order to order the identified item and automatically sending the client identifier, said received client identifier together with the mapping contained in the customer table allowing the server to correctly recognize the purchaser, avoiding that said purchaser does need to input identification information or sensitive information to be transmitted via the internet during the said ordering process of the item; and
  • completing at the server system the order by adding the purchaser-specific order information including said sensitive information that is mapped to the client identifier received from the client system.
According to the summons, the Appeal Board preliminarily agreed with the Examination Division that the features of auxiliary request 1 are either not novel or not technical. For the Board's assessment of the (underlined) further limitations of auxiliary request 1A we have to wait for the publication of decision T 1244/07, which I hope to be able to report on in due course.

As compared to that claim, the main claim to be examined by the Opposition Division in the parent application EP 0 927 945 reads:
A method in a client computer system for ordering a gift for delivery from a gift giver to a recipient, the method comprising:
  • receiving from a server system a client identifier of the client system;
  • persistently storing the client identifier at the client system;
  • displaying information identifying an item and displaying an indication of a single action that is to be performed to order the identified item;
  • selecting by the gift giver the displayed item on a website during a browser session by the indicated single action and sending to a server system the single action order to order the identified item and automatically sending the client identifier whereby the gift giver does not input identification information when ordering the item; wherein said single action results in buying the item as a gift,
  • receiving (1401, 1404) from the gift giver an indication that the gift is to be delivered to the recipient and an electronic mail address of the recipient; and 
  • sending (1409) to a gift delivery computer system an indication of the gift and the received electronic mail address, wherein the gift delivery computer system coordinates delivery of the gift by:
  • sending (1501b) an electronic mail message addressed to the electronic mail address of the recipient, the electronic mail address [sic, obviously "mail message" is intended] requesting that the recipient provide delivery information including a postal address for the gift; and
  • upon receiving the delivery information, electronically initiating (1701-1708) delivery of the gift in accordance with the received delivery information, wherein when the recipient does respond to the electronic mail message, the delivery information is automatically extracted from the electronic mail message [sic, obviously "from the recipient's reply message" is intended].

05 February 2011

Recent EPO Appeal Board Decisions Relating to Computer Implemented Inventions

The EPO Boards of Appeal constantly issue decisions relating to Computer/Software-Implemented Inventions (CII), often involving communication concepts or mobile applications. I have selected four recent decisions for a brief discussion:

Formatting text on a mobile device (not inventive): In T 1110/08 of 14 September 2010 Appeal Board no. 3.5.05 under Chairman AS Clelland reviewed the rejection of EP application 05 003 578 to Japanese Sharp Corporation due to lack of inventive step. This application relates to a portable device such as a mobile telephone having facilities for entering and formatting text. The user is provided with a facility to change format options of text by means of the mobile telephone. The applicant considered the claimed invention allowable basically for two reasons:
  1. formatting options are arranged in only two hierarchical menus, whereas prior art (e.g. an MS Word 97 users guide) requires a user to traverse at least three menu layers before reaching a desired menu, and 
  2. the invention provides "a simple concept by which each of a first and second menu for decorating text can be invoked by depressing only a single button", whereas prior art requires simultaneously depressing two or more keys for opening a menu and selecting a formatting option.
The Board, however, took the position that
  1. the number of menus does not imply any distinction over "Word 97", since the claimed formatting options do not exclude that they are embedded in a menu having more than two hierarchical layers, and
  2. the number of keys necessary to select an item depends on the state of a menu when selecting an item. Specifying a single key or button for selecting a formatting option cannot distinguish the claimed apparatus from a computer running "Word 97".
The Board concluded that the apparatus according to claim 1 is distinguished from "Word 97" running on a computer in that "a button is associated with a corresponding decoration function based on a positional relation and by the numeric character of the key appearing in the image of the corresponding decoration function", which the skilled person would apply when considering WO 03/084064 A1 ("character entry in wireless device"). The claimed teaching thus was considered non inventive.  

Point of sale (inventive): In T 0346/08 of 25 October 2010 Appeal Board 3.4.03 under Chairman G Eliasson addressed the rejection of 05 075 146 of January Patents Ltd. due to lack of inventive step. Claim 1 relates to an electronic point of sale (EPOS) multi-task apparatus, linkable to a main server and comprising a CPU and memory, a user input device such as a keyboard and a bar code scanner, a printer, a till drawer, and software control modules. This apparatus is characterised and distinguished over D1 (US 5,889,676 A) in that
the EPOS apparatus has means for controlling at least one apparatus for vending packed products, the vending apparatus control means comprising a software module operable to receive commands from a user, and in response to acceptable commands, the software module is operable to activate a dispensing mechanism of the vending apparatus whereby the required packed product is dispensed.
D1 discloses a bar-code reader for optically scanning bar-codes mounted on articles being sold and a keyboard for inputting prices of articles being sold. The sold items either have to be scanned in or typed in by the cashier. The Board found that the objective technical problem is to eliminate the discrepancies between items purchased and items sold, i.e. to increase the security against theft.

D6 (DE 93 21 417 U), relating to a cigarette container with a selection keyboard, was found by the Board to prompt the skilled person to provide such a cigarette container near one of the point-of-sale terminals of D1, thus eliminating the discrepancy between items purchased and items sold by providing the items in a vending machine. The skilled person would further consider to program the control mechanism of the cigarette container with the aid of the keyboard of the POS terminal.

D6 neither discloses that the cash register comprises means for activating the dispensing mechanism of the cigarette apparatus, nor that a software module is operable to activate the mechanism. The skilled person would not be led to provide a software module in the POS terminal operable to receive commands from a user and to activate a dispensing mechanism of the cigarette container. The claimed teaching was thus considered novel and inventive over D1 and D6.

MMS forwarding (not inventive): In T 1792/06 of 03 September 2010 Appeal Board 3.5.05 under Chairman A Ritzka addressed the rejection of 03 027 818 of LG Electronics due to lack of inventive step. Method claim 1, being substantially parallel to apparatus claim 4, reads
A multimedia message forwarding method for a multimedia messaging service (MMS) server, comprising the steps of:
  • receiving a multimedia message (S11) to be transmitted to a first user agent,
  • setting an index in header information of the multimedia message to a value other than ‘0’ so as to discriminate the multimedia message from other multimedia messages,
  • storing the multimedia message in association with the set index value,
  • transmitting (S13), to the first user agent, the multimedia message including the set index value,
  • receiving (S41), from the first user agent, multimedia message header information including the index,
  • judging (S42) whether the received index has a value other than ‘0’,
  • if the value of the received index is ‘0’, forwarding a multimedia message as provided by the first user agent to a second user agent,
  • if the value of the received index is other than ‘0’, forwarding a stored multimedia message having the same index value to a second user agent.
The Board identified three differences of claim 1 over closest prior art D3, a functional description of the multimedia message system according to the ETSI standard:
  1. submission of a new message is detected by the server upon reception of an index value "0", instead of being detected, as in D3, upon reception of a predetermined message type value different from "0";
  2. the forwarding command for a stored message is detected by the server upon reception of an index value other than "0" instead of being detected, as in D3, upon reception of a predetermined message type value;
  3. a stored message to be forwarded is retrieved by the server based on the received index value instead of being retrieved, as in D3, based on a received message reference value in a different message field than the received message type value.
The Board held that feature (a) has no inventive merit and that the technical effect of features (b) and (c) is that a single message field (the index) in an MMS header is used for determining the type of operation and the address of the message to be forwarded. Since theses features do not provide any clear technical advantage over D3, the claimed invention was considered a mere alternative to prior art.

The Board held that the skilled person would know that a message field can be used for indicating both a function and data used in that function. By applying this common knowledge to the forwarding command of D3, the message reference field and the message type field would be combined in one single field defining, when not filled with "0", both the function to be performed (retrieving stored message for forwarding) and the data used for performing the function (address of stored message). The skilled person would thus arrive at claim 1 without applying an inventive step. 

Locating a site with a mobile telephone (inventive): In T 1575/06 of 26 August 2010 Appeal Board 3.5.05 under Chairman A Ritzka addressed the rejection of application 01 913 046 of ACK Ventures due to lack of inventive step. The application relates to locating a site using a mobile telephone. Indepenent claim 6 reads
A mobile telephone having a display and numbered keys in a geometric configuration, characterised in that the mobile telephone is adapted to perform a method of locating a site, comprising the steps of:
  • displaying on the display a first map of a geographic area that contains the site, wherein the map is partitioned into visually delimited regions in a geometric configuration corresponding to the geometric configuration of the keys of the keypad and wherein each region corresponds to a respective one of the numbered keys; and
  • upon a user selecting a selected one of the numbered keys, displaying on the display a second map which depicts in more detail the region of the first map that corresponds to the selected one of the numbered keys.
Claim 6 and parallel method claim 1 were found novel over closest prior art D2 (US 5,633,912 A), whose differences provide the technical effect of permitting using the mobile telephone to perform navigation operations on graphical content comprising digital maps, leading to the objective technical problem of how to extend the functionality of the mobile phone to permit navigation operations on graphical content comprising digital maps.

D2 basically discloses a mobile telephone whose functionality is essentially restricted to conventional voice-based telephony functions, but is not adapted to displaying graphical content comprising digital maps. Likewise, D4 (EP 0 883 055 A) as the only available prior art relating to presenting an navigating graphical content was found to contain no disclosure or suggestion as to performing navigation operations on such graphical content.
 
D4 was found to be primarily concerned with zooming of digital maps on notebook type computer displays by using a pointing means of the computer, e.g. a mouse. Since the Board further held that D4 does not disclose or suggest a user interface based on a mapping as specified by the characterising portion of above claim 6, it was concluded that the skilled person would not consider extending the functionality of the mobile phone of D2 by digital map zooming as disclosed in D4.

02 February 2011

Anti-Patent Campaigners of FFII Suggest that OHIM Should be in Charge of Coming EU Patent (Updated)

Former FFII President H Pilch and R Stallman
protest against software patents in Munich
After years of fruitless debates on possible language regimes of a EU patent system, a qualified majority of EU members is about to agree on enhanced cooperation to at least establish a 'small version' EU Patent (without Spain, Italy and a handful of others) based on a legislative proposal of the EU Commission.

That's the moment in history when the Foundation for a Free Information Infrastructure (FFII), which has become widely known for their emphatic resistance against the EU Software Patent Directive (COM (2002) 92) in 2002 to 2005, comes up with the idea that the EU Office for Harmonisation in the Internal Market (OHIM) should be in charge of the coming EU patent rather than the more independent European Patent Office (EPO), since the FFII deeply suspects EPO "for granting of software patents without a prior legislative authorisation".

In reply to a proposal for using enhanced cooperation of JURI committee chairman Klaus-Heiner Lehne (EPP), which has meanwhile been accepted by the committee, FFII suggested in an open letter sent to MEPs on 19 January 2011:
"Enhanced Cooperation" is the saddest road to choose from an European integration perspective. Everything should be tried to avoid an European Union with member states on different speed lanes and to get a real European solution. Europe is not only about German industry needs. [...]

 The proposal [...] leaves an elephant in the room completely untouched. Without a consideration of alternatives or an impact assessment the European Patent Organisation (EPO) [...] would be tasked with examination. A strong role for the EPO makes the EU yield any governance influence over its Unitary Patent. [...]

Pro forma the Unitary Patent should be managed by an EU institution with the actual administrative work distributed to specialists (at the EPO etc.) on EU terms. The Office for the Harmonisation of the Internal Market (OHIM) in Alicante (Spain) [...] looks ideal to govern the European or national patent offices [...]. A role for the EU institution in Spain would also unblock Spanish opposition to an actual Community Patent.
So the FFII's mistrust against their old opponents from the days of the battle over the Software Patent Directive, i.e. the EPO and the EU Commission, is still a vital driving force.

The strategy is clear: The two major weaknesses of the proposed EU patent in the eyes of FFII - namely the lack of unanimity ("saddest road") and the central legislative role of the EPO and its Boards of Appeal ("yield any governance influence") - could be overcome by one single stroke of genius: installing OHIM as a supervising EU patent authority, which, according to FFII plans, would firstly convince Spain to support the EU patent (but what will be offered to Italy?) and secondly degrade the EPO and its  'illegal' software patent legislation to an administrative role in which examiners would have to execute patent granting standards as defined by OHIM and its then required Boards of Patent Appeals, as legislatively determined by the European Parliament.

However, should the FFII really be concerned about the EU's governance influence over the EPO, the good news is that the European Union even today has full control over the EPO, since the EU member states have a clear majority of more that 70% in both the Conference of Ministers (Art. 4a EPC) and the Administrative Council (Art. 26 to 36 EPC). This influence will yet be increased when the European Union accedes the European Patent Convention (EPC).

The anti-patent campaigners further suspect that the EU Commission's approach to implementing enhanced cooperation tends to undermine parliamentary control and prevents democratic scrutiny:
[T]he extreme rushing of Commissioner Michel Barnier and the rubber-stamping attitude of rapporteur Klaus-Heiner Lehne [...] would only undermine an opportunity for the Members of Parliament to exercise democratic scrutiny. It is unwise for MEPs to restrain their powers as suggested by the European Commissioner Michel Barnier. [...]

The European Parliament needs to make better use of its prerogatives. Without its consent there can't be enhanced cooperation under Article 329 TFEU. [...] Parliament should remind the institutions to deliver on its demands from the Gierek report ('[...] to propose, in the context of the new Community patent, a procedure for eliminating trivial patents and sleeping patents').
Apparently, the FFII tries to seize the opportunity to prevent the EU patent as proposed by the Commission with the help of the Parliament, which is encouraged to follow the same agenda as in the 2005 software patents battle and to defend the 'true' European values and interests, as defined by the FFII. However, this group is probably not so much concerned about possible deficiencies of enhanced cooperation or parliamentary control over the EPO - the real focus rather is to achieve the ultimate objective of eliminating the alleged illegal practice of the EPO to grant "software patents without a prior legislative authorisation" by disempowering the European Patent Organisation.

However, it is less than unlikely that the FFII really can influence the EU Parliament to question enhanced cooperation at this stage. Since the glorious days of the 2005 software patents directive clash, the group has lost its spin, strategic efficiency and ability to formulate thrilling goals and mobilize supporters. Some old fellows even consider today's FFII "decayed" and "promoting open standards for pay".

Nevertheless, rather accidentally, the open letter also raises a reasonable issue:
The European Parliament should withhold its consent before the ECJ has delivered its opinion on the patent court.
In this respect, the FFII is in good company, since Messrs José Luis Zapatero and Silvio Berlusconi have suggested in their joint letter of 7 December 2010 to wait until the opinion of the Court of Justice of the European Union (CJEU) on the Unified Patent Litigation System is delivered. This would by rational at least due to the two following reasons:
  1. A unified patent for (parts of) the EU does not make much sense without a unified EU Patent Court enabling centralised EU-wide infringement and nullity actions. The proposed European and EU Patents Court (EEUPC) thus is absolutely required as institutional basis of the EU patent system (cf. EU doc 111744).
  2. The Advocate General's preparatory, non-binding Statement of Position raised a number of essential objections on the EU Council’s proposal for the EEUPC (see earlier posting). As to the three-language regime of the proposed EU patent, the Advocate General explained under § 121, that "this linguistic system appears to be unacceptable with regard to observance of the rights of defence". 
Consequently, a negative opinion of the CJEU on the EEUPC would severely affect the efforts to implement the EU patent by enhanced cooperation. Without the CJEU's clear signal that the EEUPC will actually come, an EU patent would be of very limited value at the time being.

UPDATE (03.02.2011): I just got aware of the following joint letter of three anti-patent activists groups (April, FSF, FFII) to members of the European Parliament, dated 31 January 2011:
Dear Member of the European Parliament,

We, as nonprofit organizations acting in the field of patent policy, are concerned about the fast-tracking of the proposal for enhanced cooperation on the unitary patent (NLE/2010/0384), which was voted in JURI Commission on January 27th. Given that the Court of Justice (CJEU) will soon publish its opinion on the legality of a proposed jurisdiction governing the settlement of litigation related to the unitary patent and given that this proposal involves transferring legislative power from the EP to the European Patent Office (EPO) [1], we believe it would be sensible to wait for the CJEU’s opinion so that there can be an informed debate before deciding this important issue.

The current proposal for a unitary patent [2] requires a unified jurisdiction with a central court. According to the Commission, the current proposal is similar to the European and EU Patent Court (EEUPC) proposal. The CJEU is reviewing the EEUPC proposal but has not yet released its opinion regarding compliance with the EU Treaties. This opinion is far from a formality: the Advocates General of the CJEU were highly critical of the project and deemed it incompatible with the EU Treaties [3], because the new patent court rulings would have a direct impact on EU law without any control from EU institutions.

Further, the current proposal involves delegating the entire pre-granting procedure for the unitary patent to the EPO, whose patent-granting excesses have been denounced repeatedly. Existing outside of the EU, the EPO already has very little oversight. The main democratic control that exists is that the EP still has the competence to legislate. The EPO’s own Enlarged Board of Appeal acknowledged the need for a real legislative body in the patent system in an opinion published in May 2010 on the topic of software patents, saying that “When judiciary-driven legal development meets its limits, it is time for the legislator to take over” [4]. When the CJEU’s opinion is published, it may contain useful suggestions for how to add the necessary oversight for such a system.

We respectfully request that the European Parliament postpone the vote regarding enhanced cooperation until publication of the CJEU’s opinion.

Tangui Morlier, April (President)
+33 1 78 76 92 82, prez@april.org
Ciaran O’Riordan, End Software Patents (Executive Director)
+32 487 64 17 54, ciaran@member.fsf.org
Benjamin Henrion, FFII (President)
+32 484 56 61 09, president@ffii.org