La EFF pública su lista negra

Estas serán las patentes que intentarán anular:

The EFF said all 10 patents are in some way illegitimate and are being used to limit free expression.

The 10 patents, in order of importance to the EFF, are:

1. Acacia Technologies' digital media transmission patent, which the company defines as covering "the transmission and receipt of digital content via the Internet, cable, satellite and other means." The EFF is worried that Acacia, which has already sued several large communications companies, is unfairly targeting small audio- and video-streaming websites.

2. Clear Channel's Instant Live patent, which covers technology used to produce instant recordings of live concerts. The media giant recently bought the patent and is now going after artists who choose to give fans CDs of their shows.

3. Acceris Communication's voice over IP technology patent.

4. Sheldon Goldberg's patents covering online gaming and real-time ladder rankings. Goldberg's attorney has sent a series of cease-and-desist letters to small gaming websites.

5. Ideaflood's personalized subdomains patent. Ideaflood may try to go after LiveJournal members, as well as others using subdomain addresses.

6. NeoMedia Technologies' patent that claims to control methods for accessing computers based on identification codes, such as bar codes. Already, NeoMedia has sued three developing companies for infringement.

7. Test Central's Internet test-making technology patent. The EFF is afraid Test Central will use its patent to scare off distance-learning organizations. Indeed, the company has already contacted several institutions, including some universities.

8. Nintendo's video-game emulator patent. The entertainment powerhouse has patented the technology for emulating its old games


9. Firepond's patent covering automatic message-interpretation and routing systems. This patent would effectively control the technology that allows consumers to call companies and have their calls routed based on a spoken command.

10. Seer Systems' patent covering the generation, distribution, storing and performing of musical work files. The company claims control over a method of compiling music files as single files for distribution over the Internet, the EFF said, and is targeting small developers of technology for creating music and sound.

Now that the EFF has selected the patents it will challenge the organization will collect data it can use to demonstrate to the Patent Office that it should re-examine each case.

According to Phil Mann, a Seattle patent attorney with 21 years of experience, the re-examination process is designed to give the public a method to oppose patents.

"It allows members of the public to ask that the patent be examined once again in light of new information," said Mann, "in the hope that the Patent Office will say, 'Oh, we made a mistake. That patent should not have been granted in the first place.'"

ACTUALIZACIÓN: Articulo de slashdot

La EPOrg crea una academia

With a view to fostering the development and harmonisation of patent-related intellectual property law and practice within its member states, the European Patent Organisation has adopted regulations setting up a European Patent Academy. The new institution will be managed by the European Patent Office (EPO) and will have its seat in Munich. In close co-operation with national, European and international institutions and organisations its main task will be to develop a Europe-wide training and education scheme for the benefit of the European patent system. The Academy is expected to commence functioning in the course of 2005.

The creation of the European Patent Academy reflects the need to improve intellectual property-related training and education structures in Europe. In most leading industrialised and industrialising countries, the growing relevance of intellectual property (IP) for the knowledge-driven economy has prompted the development of new strategies for IP management. A core element of these strategies is the effective education and training of IP professionals and system users. Specialised IP training centres have been established in a number of regions and countries, such as ASEAN, Japan, Korea, China and the United States. “Europe is in danger of lagging behind these developments and of losing its historically strong IP culture by resting on its laurels”, says the outgoing President of the EPO, Ingo Kober.

The European Patent Academy will address training and education needs by offering its activities to specific target audiences grouped in five areas.

1) It will promote and support the preparation of candidates for the European Qualification Examination to become a European patent attorney;

2) as well as offer vocational training for professional representatives.

3) The Academy will support initiatives aimed at harmonising patent litigation and enforcement in Europe and increasing awareness by encouraging patent-related IP training at universities.

4) Education and training projects designed for industry and patent system users in the areas of IP creation and management will also offered in its programme, as well as

5) training for civil servants and representatives of national IP offices of the Organisation’s member states.

Applying the principles of complementarity and subsidiarity, the European Patent Academy will design and implement its activities in close co-operation with national, European and international institutions and organisations. Training will take place where an actual need has been identified. With a Europe-wide training and education scheme, the Academy will create synergies amongst all stakeholders of the European patent system.

ACTUALIZACION: Aparte de formar a los mayores, seria buena idea informar a los shavales.

The Patent Engineer

Una página desordenada, con un talante negativo hacia los abogados y centrada en los requisitos para representar ante la USPTO.

Sin embargo, tiene algunos contenidos interesantes como, por ejemplo, los chistes:

Hemingway
Rueda

Las patentes y la dependencia tecnológica

Se encuentra accesible en Internet un estudio de Patricio Saez sobre:

"los orígenes de los procesos de transferencia tecnológica hacia España —país en evidente posición de atraso económico y con una fuerte dependencia técnica exterior en numerosos sectores durante los siglos XIX y XX—, utilizando para ello los datos del registro español de propiedad industrial"

The Patent Lawyer

La APLF agrupa a las firmas estadounidenses especializadas en la asesoria y representación en materia de patentes.

Recientemente ha publicado el primer numero de una revista accesible a traves de Internet.

AIPPI y COAPI

La Asociación Internacional para la Protección de la Propiedad Industrial e Intelectual, conocida generalmente por el nombre abreviado A.l.P.P.I., es una Asociación internacional privada domiciliada en Suiza, políticamente neutral y sin fines lucrativos.

La Asociación tiene por objeto:

a) Propagar la idea de la necesidad de la protección internacional de la propiedad industrial y de la propiedad intelectual

b) Estudiar y comparar las legislaciones existentes y las propuestas de nuevas legislaciones

c) Trabajar por el desarrollo, expansión y mejora de los convenios internacionales.

Por otra parte, el Colegio Oficial de Agentes de la Propiedad Industrial es una corporación de derecho público amparada por la Ley y reconocida por el Estado español con personalidad jurídica propia y plena capacidad para cumplimiento de sus fines. Reúne a todos los Agentes de la Propiedad Industrial de España, que por imperativo legal deben pertenecer a este Colegio para poder ejercer profesionalmente.
Los Agentes de la Propiedad Industrial deben superar pruebas de capacitación y ser titulados superiores.

Ambas web estan cortadas por el mismo patron, siendo bastante opacas para el público en general (proliferan asteriscos * señalando que un contenido no es público), salvando las ponencias de la AIPPI.

Además, la pagina del Colegio está claramente obsoleta al indicar como noticia de última hora la Ley 20/2003.

Críticas a un examinador de patentes

Parece que en la ultima edición de Hispalinux (2003), tras una conferencia relacionada tangencialmente con los IPRs se produjo una discusión entre un ponente y un examinador de patentes presente entre el público.

IPR = Intellectual Property Rights

Versión 1
En el turno de preguntas, tomó la palabra un asistente de la primera fila que se presentó como examinador de patentes profesional, químico de formación. El caso es que llevaba unos cuantos folios escritos ---lo ví, porque estaba cerca--- y propuso un intercambio de preguntas y respuestas con D. Saravia.

La primera pregunta la formuló mal, refiriéndose al software como un bien escaso, cuando la premisa de toda la exposición de Saravia había sido la contraria. (Supongo que fue un descuido.)

D. Saravia respondió. El examinador ---si no recuerdo mal--- volvió a tomar la palabra. Sus argumentos sinceramente me parecieron bastante infundados.

El caso es que D. Saravia trató de evitar que este asistente monopolizase la conversación. Y entonces ésta derivó en una mezcla de intervenciones aisladas relacionadas en algún sentido con el contenido de la conferencia y de respuestas ---en ocasiones, airadas--- a las intervenciones del examinador, respuestas que pocas veces resultaron ser de suficientemente rigurosas.

En definitiva, se abandonó el clima de rigor argumental que hubiera sido deseable. Para empezar, ya el propio examinador utilizó argucias sofísticas como el argumento de autoridad y el argumento 'ad hominem'.

Versión 2
lo mejor de todo fue un paisano que se le ocurrio ayer en una de las
charlas que mas gente tenia y justo despues de correrse la voz del tema
de las patentes (imaginaros las reacciones...), levantar el brazo y
comentar a la sala, buenas tardes, yo soy examinador de patentes.....
je je je imaginaros las reacciones.... alguno queria lincharlo...
Creo que hay una foto muy buena del presi "presionandolo"...

Foto 1
Diego Saravia explicándoselo todo al examinador de patentes
Foto 2
El examinador de patentes...
Foto 3
Al finalizar se produjo un intenso debate con un examinador de patentes que asistió a la charla y que continuó en los pasillos.

No creo que ganen gran cosa los defensores del SW libre criticando indiscriminadamente a los examinadores de patentes cuando tienen la valentía de jugar en campo contrario. Sería más provechoso que les informaran sobre su postura, teniendo en cuenta que son los que deciden, aplicando la legislación y la jurisprudencia, sobre la concesión o denegación de las patentes.

Conferencia sobre los ADPIC

La Comisión europea organiza una Conferencia sobre los ADPIC que comenzara mañana (23.06.2004) coincidiendo con el 10º aniversario del Acuerdo.

In order to look back at these ten years and, more importantly, to examine the prospects for the future, the Commission organises a conference to be held in Brussels on 23-24 June 2004. This conference will bring together influential actors - from industrialists to government representatives, international organisations, NGOs and academics - with an interest in intellectual property world wide. The aim is to assess from the widest possible number of perspectives the implications of the TRIPs Agreement and future trends and challenges in global intellectual property protection.

The Conference is meant to offer a high profile platform to address the key issues, such as the implications of the TRIPs Agreement for developing countries, enforcement challenges, the interplay between intellectual property and human rights, the relationship between intellectual property and the public domain and the question on whether the TRIPs Agreement is adequate to the challenges of globalisation and the knowledge society.

En otro lugar de la pagina de la UE se encuentra un resumen del Acuerdo y de la posición de la UE sobre su futuro.

Other issues: shifting towards more DC-friendly positions

DC= Developing Countries

TRIPs/Health

The entry into force of TRIPs triggered public controversy concerning the impact of IP on developing countries. The main issue exemplifying this problem was the effect of IP on the price of medicines (a problem amplified by the AIDS crisis in Africa).

The EU played a key role in the negotiation of the Doha Declaration which confirmed the right of each WTO member to grant compulsory licences for reasons related to public health. However, many countries do not dispose of manufacturing capacity in the pharmaceutical sector. For these countries, the right to grant compulsory licences remained a theoretical one. Hence the need to find a solution for these countries.

Under paragraph 6 of the Doha Declaration, the members undertook to find, by the end of 2002, a solution to the problems facing members with little or no pharmaceutical production capacity in making effective use of compulsory licences. This solution was found on 30 August 2003. More recently, the EC has heavily insisted on the proper implementation of the Doha Declaration, by calling all WTO members to respect and promote the Declaration and by calling all technical assistance providers (in particular WIPO) to integrate the health dimension in their policies and practices (Communications to the TRIPs Council of June and November 2003). It has also insisted on finalising the amendment to TRIPs mandated by the 30 August Decision.

The Commission is also preparing a draft Regulation to implement the 30 August Decision into EC law.

TRIPs/biodiversity

The debate on the relationship between intellectual property and biodiversity mainly evolved around the alleged contradiction between the recognition, by the Convention on Biological Diversity (CBD), of states' sovereign rights over their generic resources (or biological material) and the possibility, under TRIPs, to provide patents on inventions incorporating genetic resources. Developing country Members have expressed the view that the TRIPs Agreement should be reconciled or brought into harmony with the CBD.

This issue is now part of the WTO negotiations under the Doha Development Agenda. The EU has taken a development-friendly approach. In a Communication to the WTO in September 2002, the EU indicated its readiness to examine limited accommodations of the TRIPs Agreement in order to ensure a more effective interplay with the Convention on Biological Diversity.

Enforcement as a new priority

By now, most of the WTO members have adopted legislation implementing the minimum standards set by the TRIPs Agreement for the protection and enforcement of IPR. However, in spite of this, the levels of piracy and counterfeiting continue to increase every year.

These activities have, in recent years, taken industrial proportions, because they offer considerable profit prospects with often a limited risk for the infringers.

It is thus clearly insufficient to limit the efforts of the EC to the mere reinforcement of legislative frameworks in WTO Members. It is now essential to increasingly shift our focus towards a vigorous and effective implementation of the enforcement legislation.

Outlook for the future : emerging issues

IP is not only an issue of debate between North and South, but also within developed countries. A number of issues are of relevance in this context:

Biotech patents: how far can we go in patenting genes or gene applications? Do too broad patents in the field of biotech stifle innovation, rather than promoting it?

Software patents and copyright: there is a raging debate on how software should appropriately be protected. There is an emerging movement in favour of ‘open-source' software, based on the premise that over-protection stifles innovation. One issue here is how to interpret the TRIPs-provision which provides that patents should be available in “all fields of technology”.

IPRs and human rights: To what extent do human rights require the protection of IP, and to what extent do they set limits? The emerging consensus seems to be that, unlike tangible goods, ideas and knowledge cannot be in the property of someone. The function of IP is to promote innovation and creativity to the benefit of all. It is subordinated to these ends. Innovation and creativity are themselves subordinated to goals such as Development, Public Health, Access to nutrition, etc.

Shrinking public domain: Private rights over knowledge have become the rule. The public domain is shrinking, and has become to a large extent meaningless, as technological evolution goes faster and faster. Some claim that this will have a counterproductive effect on research and on knowledge diffusion.

Intellectual property and competition law: While the public domain is shrinking, recent trends towards increasing industrial concentration bear the risk of seeing the global market in scientific and technological information becoming ever more concentrated in terms of ownership of that information.

Moratorium on further global IP harmonisation: Certain authors suggest that there should be a temporary moratorium on any attempt to further harmonise IP on a global level, until developing countries have digested the TRIPs agreement.

¿Se abrirán las compuertas?

A continuación se incluye un informe de la agencia británica Reddie & Grose, sobre la patentabilidad de las invenciones implementadas en ordenador en la UE.

We have been patenting computer-implemented inventions in Europe for at
least two decades even though the European Patent convention, and the
national laws of countries party to that convention, states that a
"program for a computer" is not patentable "as such".

Case law has pushed back the boundaries: a claimed invention is not a
program for a computer as such if there is a technical contribution,
technical effect or technical considerations (depending upon which
precedent you wish to argue). Consequently, patents have been granted
by the European Patent Office and National Offices for computer
implemented graphics processing systems, trading systems, financial
data processing and many other fields. These have all been deemed
sufficiently "technical" and, therefore, patentable because they are not programs "as such".

On 18 May 2004, the Competitiveness Council adopted a Common Position on the proposed EU Directive on the Patentability of Computer-implemented inventions as put forward by the EU Presidency. This brings a directive, which would harmonise the law on this issue in all EU states, a step closer. Will this open the floodgates to patenting of sorts of computer programs?

Key terms in the proposed directive include:

- A computer-implemented invention is patentable only if there is
a "technical contribution" meaning a contribution in a field
of technology that is new and not obvious.

- Computer implemented inventions shall not be regarded as making
a technical contribution merely because it involves a computer.

- Inventions involving computer programs, which implement
business, mathematical or other methods, which do not produce
any technical effect beyond normal physical interactions
between a program and a computer, are not patentable.

The language of these terms largely reflects the language of many decided cas s of the European Patent Office. Indeed, a further term "a computer program as such cannot constitute a patentable invention" is virtually taken direct from the European Patent Convention we have had since the 1970s. Taken together, these terms in the proposed directive would mean inventions whose only contribution is in a business; mathematical or other such non-technical field would remain unpatentable as they are now.

Inventions where there is some improvement in terms of processing speed, message flow or control of other technical process would continue to be patentable as they have been for many years.

The Reddie & Grose view is that the proposed directive in its current
form codifies existing European Patent Office precedents and, in that
sense, it is not all change in Europe, but is more of the same. There
is no significant shift in patentability. Of course, the phrase
"technical" remains undefined, allowing scope for arguing the boundaries patentability. However, the phrase does not have an arbitrary meaning and has been applied by the European Patent Office and national offices for a number of years in many decided cases.

To take an example from a recently decided UK patent application
(refused) a computer program, which produces a schedule for undertaking
work involving various steps of computation of data, was denied
patentability. The end result of the processing was simply "a list of
what work can be performed in what order and on which days.. The fact
that this could be done more efficiently did not provide the necessary
technical contribution."

The word "technical" has been applied in a similar way on many other
cases and can be contrasted with the test of "useful", as applied in
the United States, in relation to which many fields have been deemed
useful, which are unlikely to be deemed "technical" in Europe. Our
view, at Reddie & Grose, is that directive in this form would harmonise
the position across Europe to the position already adopted by the
European Patent Office. The floodgates, though, would remain closed.

El articulo de Nature

A question of priority

How to sustain the reliability of the patenting system?

The need for scientists to establish priority for their discoveries is fundamental, but how they do it changes with the years. In the seventeenth century, scientists encrypted their results in anagrams embedded in clearly dated letters sent to colleagues.

Science publishing and patenting nowadays provide more transparent systems for establishing priority, but both are under pressure. In particular, patent offices everywhere have been swamped with applications since the revolutions in information technology, biotechnology and materials sciences, and have struggled to clear mounting backlogs. The European Patent Office (EPO) has coped by recruiting more examiners and by the driving productivity of its staff. But have productivity demands gone too far? Are patent examiners being pushed to work so fast, as they claim , that they can't deliver quality patents that would withstand scrutiny?

EPO staff are not complainers by nature, so they should be listened to, particularly at a time when external stakeholders are also voicing concerns. Many observers say that the EPO's commercial orientation overly favours the applicants as customers to be satisfied. Others point to the registration revenues to national patent offices from EPO patents, and say that this factor discourages governments from pressing for quality over quantity.

But what exactly do we mean by patent quality? Any patent must demonstrate novelty, industrial applicability and the involvement of an inventive step. The EPO has a strong reputation in establishing novelty. But it is alleged to be granting some claims for industrial applicability that are inappropriately broad, and granting patents whose inventive step is debatable. Such concerns are themselves hard to test. It would take years to see how many patents are successfully challenged in appeal. Much more useful, and more provocative for the EPO, is the idea that it submit a selection of recently granted patents for external peer review. In the meantime, the concerns are coming from many directions, and confidence in the patenting system is, for the first time, being shaken. Furthermore, patent professionals complain that the quality of incoming applications is now also low.

The EPO's new president, Alain Pompidou, a French biologist, needs to make a clear statement about the office's commitment to quality as soon as he takes over on 1 July. And he must indicate what measures the EPO is going to take to monitor quality. To ignore so much concern would be counter-productive, and would only fuel the smouldering scepticism. Anagrams, anyone?

Pressured staff 'lose faith' in patent quality

ALISON ABBOTT

[MUNICH] Examiners at the European Patent Office (EPO) are losing confidence in its ability to ensure the quality of the patents it issues, according to two separate staff surveys.

In a survey of some 1,300 patent examiners, conducted by the staff union in April, more than three-quarters agreed with the statement that productivity demands from the EPO's managers did not allow them "to enforce the quality standards set by the European Patent Convention". And 90% said that they did not have time to keep up to date with advances in their scientific fields. In a second survey of 730 examiners, done by the EPO itself, only 9% said they believed that the management was "actively involved in improving quality".

But Ciaran McGinley, head of the EPO's controlling office, says that commitment to quality is fundamental to the organization. He adds that the office is currently preparing a thorough report on its approach to quality, which will be presented to staff in the summer.

The number of patent applications processed by the Munich-based office has more than doubled since 1995 to over 160,000 last year. The mean number of hours spent examining each patent claim dropped from 23.8 hours in 1992 to 11.8 hours in 2001, the last year for which figures are available.

But some patent examiners privately contend that the pressure to process files encourages them to approve marginal cases, instead of formulating reasons for rejection. Internal quality controls, in which two other examiners check each patent immediately before it is granted, have also been eroded, they allege. "It is difficult to ask a close colleague to start checking a patent again when you know that he or she has as many files as you have to get through, and just as little time," explains one examiner, who did not want to be identified. In the union survey, two-thirds of respondents said that they lacked the time to do back-up examinations "in a satisfactory manner".

Outsiders have questioned the quality of recently granted patents. To qualify for a patent, an invention must demonstrate novelty, industrial applicability and an inventive step — but some are worried about the last, especially in fast-growing areas such as biotechnology.

"The bar for inventive step has been kept too low in genetic patenting," says genome researcher and 2002 Nobel laureate John Sulston of the Sanger Institute in Cambridge, UK. Sulston co-authored a report from the Royal Society published in April 2003, which raised concerns about patent quality. "Officers need plenty of time to consider carefully whether something is really an invention or not," Sulston says.

McGinley says that the EPO has had no complaints. "We've had no feedback from industry about inventive-step issues," he says.

Francis Hagel, an intellectual property manager with the French geoscience-service company CGG, near Paris, argued in April's Patent World that there was a "serious quality problem". Hagel also claims that the EPO has followed the commercial orientation of the US Patent and Trademark Office, and is treating its applicants as customers. He says that the EPO should instead be putting more emphasis on determining whether patents deserve to be granted.

Critics point out that the EPO gains fee income from each patent it grants. "Any incentive system that favours patent granting adds pressure to award a patent in marginal cases," says John Pethica, a physicist at Trinity College Dublin and a co-author of the Royal Society report.

McGinley counters, however, that the EPO's approach has cleared a backlog of applications, which he says was "bringing the EPO into disrepute".