You are welcome to read what Filemot sent to the Commission. I have faith in the patent system for real inventions as an innovation driver and that means a Community Patent too.  I also support access to information so however convenient I don't believe that doing it only in English is the answer. We just need to be a bit more innovative in getting those translations made available. 

Oh and if you would like to join me and Italy in a campaign to abolish the annuity fee industry that would be good too - but even Italy have given up on this one with the reintroduction of fees in 2007.

The Original Consultation

16 January 2006 The European Commission restarted its proposals for the Community Patent with a press release - download the questionnaire from the button on the left too.  This consultation is being run by Internal Market and Services Commissioner Charlie McCreevy

The Foundation for a Free Information Infrastructure (FFII) responsible for the highly visible No Software Patents campaign that brought down the Computer-Implemented Inventions Directive in 2005 has created a site devoted to the Consultation.  The deadline was extended to  12 April 2006 and even later replies were  taken into account by the Commission in preparing its analysis, which you can find here. Charlie McCreevy had a hard day at the office on 12 July 2006 listening to various contributions from interested parties.

The Commission want a Community Patent but they want to have influence over the patent grant process.  At present all EU member states are members of the European Patent Organisation that runs the EPO but it is not a European Union Institution. The Commission would like the European Court of Justice (ECJ) to have the ability to decide the boundaries of patentability. 

Litigation is also a major issue with the competing proposals. The European Patent Litigation Agreement (EPLA) is being talked about by a Working Party on Litigation and is designed to set up a European Patent Court. The national governments are discussing this and the European Commission wants to be involved.  The alternative is the Community Patent Court that comes with the Community Patent and most definitely is a EU institution. Patent litigation is therefore becoming rather like the € - a conflict of sovereignty.

The Gowers Review

The deadline  passed on 21 April 2006 for responding to their all encompassing call for evidence. The report was issued along with the pre-budget report in December 2006.

This review of the entirety of the UK IP framework attracted most attention from the soft side of IP.  Cliff Richard would like rights in his performances extended but campaigners for greater access to copyright material, such as the Open Rights Group seek to redress the balance.  In the spirit of their campaign they, rather than The Treasury, have provided links to responses sent to the Gowers review here. They are mainly from representative bodies and it is to be hoped that the review team did get a few responses from business to keep them awake during their Summer of study.

Grace Periods

Both CIPA and AURIL have suggested a grace period for patents in their responses on how IP is awarded. The CBI  also think it can be considered in the context of a comprehensive international reform. A grace period allows disclosures by an inventor within a short period - a year in the US - prior to the filing date or priority date to be ignored in assessing patentability of the later filed patent application.  A grace period is already available in respect of registered design applications.

Both organisations  seem to be concerned about premature publication because of ignorance or perceived academic necessity.  The benefit of a grace period, as enjoyed by US entrepreneurs, is that it provides time to find out whether the original idea is feasible in practice, without becoming paranoiac about whether your arrangements remain secret.

FICPI, the International Federation of Intellectual Property Attorneys has been publicly  in favor of  a harmonized international grace period  since at least 1981. WIPO's draft Substantive Patent Law Treaty that has been under discussion since May 2001 includes the concept of a grace period. Sadly it also includes so much more and the issues (including the grace period) favored by the trilateral group of US Japan and EPO and an alliance of developing countries led by Argentina who are not interested in grace periods has currently stalled.

Possibly Gowers may promote a European harmonisation on this point, but it has to be remembered that it was the 1973 European Patent Convention that led to the abandonment of the concept and the consultation carried out by the UK Patent Office in 2002 did not find much support. Have things changed or are we looking at the issue from a different perspective now?

Sadly, Andrew Gowers was not interested. His report merely sees it as an impediment to work sharing between Patent Offices.

The UK Patent Office Inventive Step - last updated August 2008

The deadline was 31 May 2006 and the report has now issued see below. The consultation is a single issue one but even so the questionnaire contains twelve wordy questions designed to defeat all but the most committed.

Nonetheless the Patent Office are clear they want the patent system to support innovation not mere invention.  We are looking for an element of exploitation and wish to avoid restricting legitimate business activities. Bad patents can be a barrier to innovation as they cause investors to be overly concerned that their target may not be able to implement its business plan.  The No Software Patents campaign clearly believe that most software patents lack inventive step and they may well have a point. 

Recent judgements in the Patents Court have shown the answers to this consultation.

Kitchin J filed his response on 17 February in his judgement in GE Healthcare Limited v PerkinElmer Life Sciences (UK) Limited. In finding the claims of a patent obvious over the common general knowledge and also over several items of prior art in the light of that knowledge, he tracks through the cases with great clarity but avoids any policy comments. The inventive concept in this patent was held to be the use in a scintillation proximity test (SPT) of a phosphor with an emission maximum within the claimed ranges and a CCD detector.

Pumfrey J filed his response on 24 February in the judgement in Conor Medsystems v AngioTech Pharmaceuticals Inc.  The University of British Columbia when he held that a claim for a tubular stent coated in Taxol was obvious.  From his perspective "The point of the objection of obviousness is to prevent the too-ready grant of patents from hampering [real life contemporaries of the skilled man] in the ordinary technical development that must take place in an industry."

He refers to the usual authorities in rather more depth than the Patent Office paper beginning at paragraph 31. The bad news for the Patent Office evaluation is that he requires expert evidence so how would the Patent Office examiner sharpen his or her assessment? Crucially though, he found that the specification did  not suggest that such a stent would be safe or that such a stent would work to prevent restenosis.  As such the specification made no contribution to the art and the claim was obvious. So Pumfrey J is standing firm against patent land grabs made too soon before the value is known. This judgement supports the existing Patent Office practice in requiring real evidence to support a claim that an inventive contribution lies in the use of the product. Unfortunately in July 2008 the House of Lords decided that he was wrong and that for an ordinary product claim there is no requirement in the EPC or the statute that the specification must demonstrate by experiment that the invention will work or explain why it will work.

This case is also discussed extensively on the IPKat blog here and here.

Pumfrey had earlier found the claims of the InPro patent obvious as well as being invalid on other grounds in the UK Blackberry case on 2 February 2006. This decision on  obviousness was confirmed by the Court of Appeal on 7 February 2007. Having reviewed the expert evidence, the appeal judges could find no issue with the analysis of the evidence or the application of the law by the trial judge.

The Patent Office might be forgiven for having a crisis of confidence in its examination practice when so many disputed patents fail for obviousness.  However it must ever be so. Those patents which are perceived as unjustifiably inhibiting technical development will result in the type of intractable disputes that the judges must decide. Patents for real inventions are more likely to be respected or licensed and the courts are not troubled. None of these February judgements (whether in 2006 or in 2007) seem to display any desire for further rulings in secondary legislation.

Of course I always hate it if an Examiner suggests a claim I have written is obvious but I hope the patentee gets a better claim because the doubt has been raised. Dropping the standard seems a bad idea. Examiners don't have the benefit of the evidence judges have so have to give way to reasonable argument. A corps of examiners that discusses the cases in a lively manner and challenges patentees is generally to be encouraged.  If you agree and cant face the windy questions just email them now.

The Patent Office reported the outcome of this consultation on 1 August 2006 but since then have removed the report from their website. The outcome with a post-Gower gloss was re-announced on 5 February 2007 with another press release.  There were very few (26) responses as a result of which the Patent Office does not intend to introduce any significant changes. The contributions by the software lobby appear to have been constructive as well so perhaps the awareness campaigns are working. However one unidentified respondent considered that "even weak patents cannot harm innovation as they are easily invalidated or worked around" . Perhaps an aspiring patent troll?

Patent Insurance

You had until the end of the year, 31 December 2006 to comment on a study of  patent litigation insurance.  According to MIP the matter was discussed in Amedée Turner's presentation at the EPO Academy IP Enforcement Week in November. 

The proposal on which the study is based is for mandatory insurance of all European Patents.  The patentee could choose his insurer but would need to produce his certificate of insurance or exemption on national validation and each subsequent  renewal.  In order to arrive at premium estimates for various options the insurers demanded data on the amount of litigation and the value of costs, damages and settlements.  This revealed that there is a far from common market in patent disputes. The likelihood of litigation over a patent in German was far greater than elsewhere and only 20% of disputes that were started were settled.  Although litigation costs were less than in the UK this excess of actions resulted in the insurers suggesting an annual premium of  €923 for Germany as opposed  to €462 for the UK for the same cover.  But cover for Austria would only cost a paltry  €46.  The benefit of the Community patent shines through the analysis.  A unitary community patent could be covered for €580.

The proposal presents many challenges, not least the lack of enthusiasm from the insurance sector.  It seems that only Lloyds of London had any interest after completing the exercises for the study.  There is unlikely to be much enthusiasm from SMEs for the magnificent early stage costs hike that would dwarf the present renewal fees, especially when it is likely that big patent holders and the pharmaceutical industry will get themselves exemptions.  The presence of insurance could, however, have a big impact on the value of their patent holdings.  This is a proposal worth evaluating with care.