The excellent series of seminars organised by Professor Johanna Gibson for the Autumn Herschel-Smith season concluded this evening with a presentation from Tibor Gold and Philip Johnson on the amendment made by EPC 2000 on 13 December 2007 to the Protocol on Interpretation to Article 69. The question is whether there will now be a step change in the way patent courts across Europe interpret patent claims or whether nothing will happen. During the course of the evening the speakers guided us expertly and swiftly through the history of claim interpretation across Europe in search of harmonisation. Article 69 of the Convention simply says The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims. The amendment to that is slight. We lost "ther terms of" before the claims. The problem has been to steer a route between an exact literal reading and seeing the claim as a mere guideline as used to be the case in Germany. That meant we had a protocol on how to interpret this simple provision. That has now been amended in a more significant way and has a whole new article 2
For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is equivalent to an element specified in the claims.
Tibor told us of his personal involvement in the Improver case which highlighted how the equivalents issue made a difference to the outcome of the same case in territories with different philosophies. He told us that the slotted rubber rod was equivalent to a helical spring in terms of the pain of depilation. Between themselves and since the diplomatic conference in 2000 that made these amendments - intended at the time to be non-contentious, the judges across Europe have gradually been reaching some consensus and there is a growing international respect across the patent judiciary at the most senior levels. Today most working patent attorneys tend to the view that their claims will be interpreted as meaning what they say. We do hope that the examiner will read the description but in many cases it seems that he just reads the claims and looks at the drawings. In some cases of lengthy introductions that go nowhere towards pointing to any inventive contribution, the examiner cannot be blamed for skipping to the back.
Over the mulled wine and mince pies, there was some lively discussion as to whether equivalents were really back. Much will depend on whether the earliest cases offer a chance to do justice to a significant inventive contribution by giving a generous equivalent interpretation to a claim. On the whole the opinion was that the judges would read it apply it and effectively continue to follow the principles set out by Lord Hoffman in the Kirin Amgen case, which was after all decided when this amendment, although not in force, was known to exist.
27 November 2007 ideas 21 and the Fast TrackThe UK-IPO is currently consulting on how to implement the Gower's proposal for a fast track patent grant procedure. James Porter and Ben Micklewright from the UK-IPO came to a round table discussion of this inventor's group to get some feedback on the impact of the idea. We also had a view from David from the London Technology Fund. However I phrased the question about the influence of a granted patent on an investment decision, David evaded it. Of course he is right that the management team and the market are important but an examined patent might have some virtue? He did however tell a tale of dropping an investment proposal when told merely that the patent was "badly drafted". So if you are looking for VC funding the wise course seems to set up a pending patent portfolio but don't invest in having it examined, which seems generally the approach taken by many young businesses. They are perhaps also driven to choose this option by the lack of an adequate IP budget, but David did not criticise it. Other investors may not share this view, if they have a view at all.
There was a general consensus that a patent granted less than 2 years after an effective priority date was not that useful as there could easily be unpublished prior art that could not be taken into account in its examination. Allowing a delay of three months after a normal 18 month publication date allowed the examiner to do a top-up search and for any observations to be made.
Many of the patent system users present were surprised to learn that there were already procedures for getting applications expedited already and that at the EPO this could cost nothing and did not need a reason. They call it the programme for accelerated prosecution of European patent applications (“PACE”) and in 2006 it was used for just 5.3% of searches. The rest were presumably happy to wait years. However its not an option that's taken up - even when offered - so it seems likely that Andrew Gowers was wrong to think that this was a necessary improvement. Perhaps he was thinking of trademarks, which are also covered in the proposal, but which we did not discuss.
Another important issue that was not discussed until later was the impact that all this delay in the grant procedure has when considering the freedom to operate a new business model. At least in the UK there is a limit on how long an application can remain pending but no such thing exists at the EPO.
The Filemot response can be downloaded here.
My report of this event has kindly been published by the IPKat.
We got a new a logo and some free chocolates. The keynote speech was presented by Peter Harris of Hotel Chocolat. Now when you market a luxury brand, you create an illusion, a mystique and it doesn't include an accountant and a factory in Royston. So sad that the artisan chocolatiers whose dreams you shared in a box from the Chocolate Tasting Club, cannot survive in the realms of high growth business. But you need to be ruthless and if you want to be an entrepreneur, you have to rise to the challenge. This is not a technology company and it doesn't claim a shred of intellectual property. Indeed one of it proudest boasts was to utilise the creative suggestions of their customers to their mutual delight. This made a useful counterpoint to the natural obsession with protection and exclusion that pervades the University ecosystem.
The Biology in Business lecture in Cambridge highlighted the fascinating work of H+Energy in attempting to create a solar panel powered by algae. Dr Martin Croft set out the problems of making an idea into commercial reality. The company had won the London University business plan competition but the company's sole reason for existence seemed to be the control of a patent, while public funds are being used to fund a Cambridge research team whose work might benefit the company but whom the company can't afford to employ. There is nothing wrong with private equity funded research in a potentially lucrative field but simply creating a patent troll seems a problematic outcome of any business plan competition.
Dr Croft is off to an exciting new job with Shell and we wish him well. Hopefully the team assembling in Cambridge will be able to work out a scheme for preventing the sun killing the alae and overcoming the other problems that inhibit the efficient production of hydrogen from photosythnesis. There is clearly much intellectual property still to be acquired here.
Lord Sainsbury's review of the UK Government's Science and Innovation Policies is launched by the Treasury to resounding silence. Nevertheless it is required reading for those involved in entrepreneurship especially in the University Sector as it emphasises the importance of business models that utilise our leading edge in science rather than just racing to the bottom price. He asserts that company strategies that depend on low costs will end up in a downward spiral. In one of his case studies he commends ARM's acquisition of Belgian research company Adelante rather than developing in a lower cost area in Scotland.
Lord Sainsbury is a little concerned that the UK does not show up well when patent count is used as a measure of innovation performance lagging Germany by a significant margin. The number of patents granted to our Universities has increased markedly.
The report includes a recommendation that the Community Patent be supported.
Collyer Bristow kindly offered to host the group meeting which took place at their office in Bedford Row beginning at 5pm. There was a really great atmosphere and an animated discussion facilitated by Allan James and Mark Jefferiss from the UK-IPO who told us all about the changes in the UK Trademark examination process. After refreshments we discussed managing trademark litigation and other things across the road in the pub.
Since this all about networking a group has been set up for us in Facebook
The forum set up after last year's meeting is still live at www.indip.net.
Monday evening was the culmination of a year of entrepreneurial activity for the Cambridge student community. At another splendidly organised event in Cambridge Guildhall the winners of the year's main business creation competitions were announced. President, Rahul Vohra compeered the show with great professionalism. Chitsosci Solutions won the 3P competition and since they won the Filemot prize at the £1k competition, we were delighted with that result. Then I got the opportunity to do my own 2 minute pitch of what Filemot was really about. Preparing that was quite a challenge but I decided to focus on the need for business lawyers that were patent savy but not just specialising in getting patents as there is much more to the legal world than that. Then I handed a prize to the first of the three winners to be announced. This was the Touchsight team that won the Varisty Pitching Competition earlier in the year. The other two winners were Cambridge Temperature Concepts and Neoheal. Then life got more exciting as the panel of angels cross-examined the winners on their business plans. The audience listened in rapt attention as the young entrepreneurs fielded incisive but friendly questioning on their business models. These plans were not set in stone when the entries were submitted work was seriously ongoing to make them investable. Cambridge Temperature Concepts came out with the ultimate accolade awarded by the angel panel.
Hopefully we have some pictures soon. Filemot offers its heartiest congratulations to all who participated during the year. I think we will see many business people who can count this year as one of the building blocks of their commercial success.
An annual conference should always evolves and develop and this student run conference certainly does that - see 2006 report here. This time we were in The University Arms Hotel - a panelled ballroom with a view of Parker's Piece. The absence of the MIT contingent of winners and the usual hangovers from attending the preceding night's Gala dinner - which was cancelled - was notable. The attendance was outstanding and even in the absence of a delegate list, I encountered many and varied representatives of the investing community from around Europe.
The highlights were three - contrasting keynote presentations from Meebo founder Seth Sternberg and the serial entrepreneur Martin Varsavsky - a true global citizen hailing from Argentina and the i-Teams presentations.
OK you will have missed the i-Teams presentations. They took place during the buffet lunch and many people were still chatting because they couldn't see the presenters at the bottom of the room on a lower level than the food. Still what these projects do is worth highlighting. Each term diverse groups of graduates assemble - attend lectures on entrepreneurship - and try to apply their learning to a technology arising within the University and develop ideas for a business model that might make it become commercial. This is one of the last student activities sponsored by the Cambridge-MIT Institute. The winning team were presenting about "Flexible Rigid Structures" that can be moved between different positions rather like a hinge but all within an undisrupted surface so the functionality of a hinge without the crevices. Of course they weren't saying how it was done because they hadn't filed any patents. Inevitably in their market research this team appeared to be offering the world and naturally that sounds good. They impressed the judges by keeping the technology out and focusing on the market potential. Lets hope the technology can live up to its hype. Some hints here. One of the team members said that the patents hadn't been filed because they were expensive but I think they hadn't been filed because there was no invention yet. An invention is the application of knowledge to a commercial problem. If no-one could decide what problems Dr Matthew Santer's structural solutions could solve you don't know what to claim. The i-Teams role was to find some technical problems that they could solve in order to make some profit from this knowledge. Maybe we should salt the i-Teams with some older engineers who have been in work for a while, maybe even now retired.
Do you just want to make squillions of dollars or do you want to feel your business made a difference to society as well as your bank balance? This is an inevitable, if uncomfortable, question that comes to mind when you hear about a business model for more efficient time-wasting for teens to do their instant messaging and renewable energy projects all in the same day. I couldn't help feeling that I wanted Seth's methodology to be applied to the renewable energy businesses. His team have delivered a remarkably usable solution to a social problem of no material consequence. However his presentation was a pragmatic explanation of how they had created their business value before exposing themselves to the investment community. Key points were the value of friends and taking advantage of the pieces of wisdom they are prepared to share. He was also lucky in finding two very competent women to work with in his core team.
I found it more difficult to empathise with Martin. His success in life after a B-student life seemed more to do with drive and enthusiasm and some early success that gave him the credibility to do more things with big backers. His latest project FON is about sharing your Wi Fi at home in order to be able to cadge some abroad. How long this love of "free" and "open" will grip the consumer we have yet to see. Sharing is good but at some point scepticism sets in and you wonder how you are being manipulated. These business plans depend on trust and many years ago we trusted Google but surely nobody does any more. For the longer term it may be more prudent to use business models that offer value rather than false promises because as Marks & Spencer shows you can continue to deliver value.
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20 January 2008