Visae Patentes

In a new article titled "German Federal Court of Justice Confirms New German Approach To Software Patent Examination (BGH X ZR 121/09)" on the ksnh::law blog, I discuss the decission X ZR 121/09 ("Webseitenanzeige") of the German Federal Court of Justice (BGH) confirming the "new" German approach to examining patent-eligibility of software inventions as sketched by a number of earlier BGH decisions (see e.g. here, here, here, and here). As a conclusion, applicants of software-implemented methods will now be on the safe side as regards technicality issues if the invention is claimed within an embedded system framework, i.e. as a method controlling a technical apparatus or collecting, evaluating and processing (technical) data by means of a technical apparatus.

In winter 2009 I started thinking about building up the Visae Patentes blog as a privat medium for IP related issues that I found interesting or important. My idea was to blog those things that I come across my daily routine as a patent attorney of the Munich-based IP law firm KSNH.

I soon felt that I had to produce a certain constant flow of postings in order to establish the blog as a known source in the IP blogosphere. There certaily are many excellent and highly competent IP blogs out there and also some flagships that earn a great deal of well-deserved attention. I realised that being a solo blogger is nice, but it would be even nicer and also more effective to have fellow bloggers to share responsibilities and success with.

So I went into medias res with my good colleague Axel H Horns, an experienced IP blogger who also had the feeling that something had to be changed with his popular IPJur blog that he runs for many years now. We soon decided to join forces and go for something new, which finally ended up our new blogs KSNH::LAW and KSNH::JUR under the agies of our patent firm.

While the English KSNH::LAW blog will be the joint successor of IPJur and Visae Patentes, standing in continuity of its predecessors as regards content, quality and attitude, the German KSNH::JUR blog is intended to provide more practical and business-related information for inventors and entrepreneurs who wish to optimise the outcome of or maybe even start identifying and utilising their intangible assets.

Therefore, dear readers, subscribers, followers, and friends, please feel invited to join Axel and myself in our new blogging project, e.g. by checking out our initial postings and possibly become a regular reader or subscriber.

For example, the latest postings on KSNH::LAW relate to

• ACTA On The Borderline Of EU Acquis Communautaire 
• CJEU (ECJ) Today Decided In Case C‑324/09 L’Oréal SA et al. vs. eBay International AG et al.
• Organisation Of Work On EU Patent Reform Under Polish EU Presidency 
• ACTA To Be Signed And Approved On Behalf Of European Union

while on KSNH::JUR we recently discussed

• Das Gebrauchsmuster als preiswertes und effektives Schutzrecht
• Software-Patentierung in Deutschland 
• “Freedom to operate” – Patentrecherchen 
• Abmahnungen – ein umstrittenes Instrument

As regards this blog, I presently do not know exactly how to continue with it; maybe I will share more pronounced political or private views on professional issues that are not appropriate for a corporate blog.

Thanks to @ksnhlaw, we got aware of a Presidency Note issued by the incoming Polish Presidency of the EU Council and clarifying the plans of the new Presidency for the various pending patent issues of the European Union.

The note emphasises the "momentum for finalising the legislative processes" of enhanced cooperation in the area of unitary patent protection and expresses the Presidency's determination "to continue the work in parallel on both [creation of unitary patent protection and creation of a unified patent litigation system], with a view to reaching an overall political agreement within the Council at the end of this year".

The main tasks of the incoming Presidency are announced to be:

• Proposal for a Regulation of the European Parliament and the Council implementing enhanced cooperation in the area of the creation of unitary patent protection1 based on Article 118(1) TFEU;
• Proposal for a Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements  based on Article 118(2) TFEU;
• Draft agreement on a Unified Patent Court and draft Statute.

The first meetings are intended to take place on 11 (tomorrow) and 18 July.

As announced earlier, Italy and Spain now each filed an action of annulment against the EU Council Decision (cf. press release of 8 March 2011) which authorised creating the EU patent by enhanced cooperation with the Court of Justice of the European Union (see tweets on @ksnhlaw).

Thanks to tweets of @ksnhlaw, we now know that this information was made available by the EU Concil on 5 July 2011 by two separate documents with reference to the related cases C-295/11 and C-274/11

The following objections were raised by the two reluctant countries:

1. Lack of competence and violation of Article 20(1) first subparagraph TUE: the Union has no competence to establish an enhanced cooperation in the field of Article 118 TFEU for the creation of a new Union intellectual property title.
2. Misuse of powers: the envisaged enhanced cooperation does not aim to further the objectives of the Union but to circumvent the unanimity requirement in Article 118(2)
3. Non respect of essential requirements to establish an enhanced cooperation, particularly those laid down in Article 20(2) TEU (last resort condition and impossibility to attain the objectives in a reasonable period by the Union as a whole).
4. Violation of Articles 118 and 326 TFEU and 20(1) second subparagraph TUE: the enhanced cooperation does not realise a uniform protection of intellectual property rights throughout the Union and hinders the functioning of the internal market since it creates obstacles to trade between Members States and disorts competition.

It currently is unclear how the actions will influence the ambitious schedule for implementing the EU patent.



(Photo 2006 by Miki, Queen of Planet Goodaboom, via Flickr)