[Patents] Selected news from IPWire

[phm@suse.de (PILCH Hartmut)]

The

        IPR Helpdesk=20
        http://www.ipr-helpdesk.org

project, financed by the European Commission's DG Enterprice and
conducted in close cooperation with the EPO, has a monthly email
newsletter.  Below are some extracts, freed from the
Microsoft-specific non-ascii characters that unfortunately abund in
there, and with some comments added.

....

  In this issue:

  --------------------------------------------------------------

    1.  From the Courts:
     1.1. ``Festo’ case to be reviewed
     1.2. Microsoft accuses small company of ``patent terrorism''
     1.3. French company faces patent infringement charge
     1.4. Californian legislation could threaten intellectual property
     1.5. Harrods cybersquatting case awarded in favour of Al Fayed
     1.6. Supreme Court rules in landmark copyright case
  --------------------------------------------------------------

    2.  Hitting the Headlines:
     2.1. European Commission rules in IMS copyright dispute
     2.2. Mining the patent mountain
     2.3. The Napster makeover '' all dressed up with nowhere to go?
     2.4. Say it with trademarks
     2.5. New hauls for BountyQuest
     2.6. Law firms not registering own names
     2.7. New TLD applicants need to be quick off the mark
     2.8. Trouble brewing at Media Lab Asia?
  --------------------------------------------------------------

    3.  Institutions - News & Events:
     3.1. TRIPs Council meeting on access to medicines
     3.2. EUR-Lex: ``One-stop shop’ for EU law
     3.3. Patinnova ’01 / EPIDOS Annual Conference: 15-17 October 2001,
  Cardiff (UK)
     3.4. Parliament endorses agreement reached on artists’ resale rights
  --------------------------------------------------------------

    4.  European Patent of the Month:
     4.1. Powder-form vaccine injection technology
  --------------------------------------------------------------

    7. esp@cenet:
     7.1. esp@cenet Quiz
  --------------------------------------------------------------

    8.  Links of the Month:
     8.1. Bioentrepreneur IV addresses intellectual property
     8.2. ``At Home with Invention’ '' WIPO’s virtual tour
  --------------------------------------------------------------

    9. Innovation:
     9.1. Inventor of the Year takes the pain out of injections
  --------------------------------------------------------------

    10. Interview:
     10.1. Paul Laurent talks to IP-Wire
  --------------------------------------------------------------

  **************************************************************

    1.  From the Courts

      1.1. ``Festo’ case to be reviewed

  A ruling made last November by a court of appeals in what is known as the
  ``Festo’ case is to be reviewed by the U.S. Supreme Court. The ruling in
  effect said that an inventor who makes even minor changes to a patent
  application will not have protection of the amended claims when the patent
  is granted. Some intellectual property experts see this ruling as
  unfavourable to patent holders, as it limits their ability to bring
  infringement cases against imitators. The Supreme Court has agreed to hear
  oral arguments in the autumn.

Having followed some discussions about the Festo case I can't help to
feel that IPR Helpdesk got it wrong here.  In this recent decision the
supreme court said that infringement lawsuits can only be based on
what is actually claimed in the patent and not what should have been
claimed if the patentee had been aware of a certain possibility of
circumvention.  While some patentee lobbyists like Mr Riley are very
upset about this ruling, other unsuspicious people such as chiefs of
patent departments of medium and large companies welcome it as an
incentive to draft claims carefully rather than rely on an extensive
court practise like that which the CAFC has been promoting for a few
years.



  Related links:
  Law.com "Patent Blockbuster Goes to High Court"
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1031
  MSNBC "High Court to hear trademark case"
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1032
  New York Times (Registration required) "Supreme Court to Review Case That
  Redefined Patent Doctrine"
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1033
  UVentures "Supreme Court Decides to Hear Copyright Fight Over Knockoff
  Products" http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1034

           ------------------------------------------------

      1.2. Microsoft accuses small company of ``patent terrorism''

  A small software development company, Intertrust Technologies Corp., is
  seeking an injunction and damages in a lawsuit against Microsoft, claiming
  that components used in Microsoft’s Windows Media Player infringe on
  digital content protection technology for which Intertrust holds a patent.
  Such digital rights management technology will be a key part of Microsoft’
  s Windows XP operating system to be released later this year.
  According to the New York Times, a Microsoft spokesman said the challenge
  ``appears to be an act of desperation from a company that’s in serious
  trouble.''

Is Intertrust really a software company?
In another version it was said that the patent was from AT&T and the
company that is using it is focussing on patents rather than on
software.  That would better match the "patent terrorism" accusation.

  Related links:
  New York Times (Registration required) ``Patent Poses Challenge to
  Microsoft=B4s New Operating Systems Plan''
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1037
  InterTrust press release ``Intertrust expands patent lawsuit against
  Microsoft'' http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1038

-----------

      2.2. Mining the patent mountain

  Many hi-tech companies these days are paying more attention to the
  stockpile of underexploited intellectual property they own.
  Some of the world’s largest technology companies, such as IBM, BT, Siemens
  and Philips, amass 2,000 or more patents each year. However, less than
  half - and in some cases only one quarter - of the innovations thus
  protected are actually being integrated into products the companies
  develop. That leaves a lot of intellectual property lying around
  stagnating.
  Considering the enormous cost involved in the research and development
  that goes into developing these technologies, it makes sense to try to
  recoup some of it by selling the patents on to third parties to whom the
  technologies may be of more use - which is exactly what tech companies,
  increasingly, are doing.
  Tapping into this realization, new intermediary companies are springing up
  to help tech firms generate additional revenues by aggressively licensing
  technology that would otherwise be left on the back burner.
  One such intermediary, British Technology Group plc (BTG), says this
  growing trend for intellectual property licensing is a phenomenon in the
  UK in particular, but is on the rise worldwide.

  Related links:
  FT.com ``When the finest minds are up for sale''
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1047
  BTG plc http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1048

The essence of this news is that "patent terrorism" in the sense of
Microsoft v. Intertrust is on the rise as more and more companies are
finding ways of aggressively asserting patents that were formerly
intended only for defensive purposes as parts of the portfolio within
some large company (such as AT&T).

      3.1. TRIPs Council meeting on access to medicines

  Representatives from the European Union and other members of the World
  Trade Organization (WTO) met on 20 June 2001 for a special discussion on
  Intellectual Property and Access to Medicines. The focus was on how to
  clarify the implementation of the TRIPs (trade-related aspects of
  intellectual property rights) Agreement in a way that provides flexibility
  for countries to operate intellectual property regimes that serve the
  objectives of public health while encouraging investment in the
  development of new medicines.
  Chairman Boniface Chidyausiku of Zimbabwe described the discussion as
  ``rich'', and expressed his conviction that all members at the meeting we=
re
  determined to ensure that the TRIPs Agreement be ``part of the solution a=
nd
  not part of the problem'' in dealing with the isssue of HIV/AIDS and other
  world health crises.

  Related links:
  World Trade Organization press release
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1069
  Speech by WTO Director-General Mike Moore
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1070
  European Commission press release
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1071

In the case of software, it is quite easy to make TRIPs "part of the
solution".  We just need to do what Art 27 TRIPs suggests: establish a
clear definition of "technical invention" and "industrial
application".  A recent article from a German institute on development
aid to poor countries also demands that this article can and must be
explained in a way that excludes software patents.

      3.3. Patinnova ’01 / EPIDOS Annual Conference: 15-17 October 2001,
  Cardiff (UK)

  The official website for this joint event -- Europe's largest conference =
on
  patents and innovation - has now been created, with complete programme and
  registration details.
  Organized under the European Commission's Innovation and SMEs programme in
  association with the European Patent Office (EPO), the main themes of the
  conference will be:
  - the retrieval of patent information; the Internet and other tools
    (EPIDOS Annual Conference)
  - patents in the digital era
  - intellectual property serving entrepreneurship.
  This joint conference is aimed at all those involved in the innovation
  process.

  Related links:
  Epidos/Patinnova ’01 (EPO)
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1072

Greg announced earlier that he will be delivering his usual sermon on
the unlimitability of patentable subject matter and its scientific
foundation in co-design cosmology to that conference.

Possibly there will also be Eurolinux speakers.

      3.4. Parliament endorses agreement reached on artists’ resale rights

  At its plenary session on 3 July in Strasbourg, the European Parliament
  voted to endorse the agreement reached in the Conciliation Committee on
  the European Commission’s proposal for a Directive on the resale right for
  the benefit of the author of an original work of art.
  The agreement, which took five long years of negotiation to reach,
  establishes the right for artists or their heirs to receive royalties for
  resale of their work after the first sale. It sets out the minimum and
  maximum resale prices for works of art at 3,000 euro and 12,500 euro
  respectively.
  In 1996, a draft Directive was presented, seeking to harmonize the legal
  regime regarding European Union resale rights.
  Member States will have four years to adopt the Directive into their
  national statutes.

  Related links:
  European Commission (44.5kb PDF file)
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1080
  Europarl ``Agreement on royalties on works of art''
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1081

This could be of potential danger when a work of digital art is
believed to be publicly available or even has been explicitely put
under an open content license but then later at some time the=20
artist claims shares from profits that some distribution company
made with CDs on which the work is found.

    4.  European Patent of the Month

      4.1. Powder-form vaccine injection technology

  PowderJect Pharmaceuticals plc based in Oxford, UK and with subsidiaries
  in the U.S. is the world’s sixth largest vaccines company and dominates
  the entire field of powder injection as a means of delivering vaccines
  into the human body without needles.
  The company’s PowderJect=AE system is a unique drug-delivery technology
  consisting of a small, handheld device that uses a cylinder of helium gas
  to accelerate particles of powdered drugs or vaccines at high velocity
  into skin tissue.
  Because the system uses no needle, patients are spared the ``needle phobi=
a’
  normally associated with injections. It also avoids the potential hazard
  of contaminated needles. Furthermore, the PowderJect system causes no
  pain, and is therefore ideal for administration to sensitive parts of the
  body, and for use on children. No special training is required to use the
  device, so it’s easy for patients to use on themselves.
  Among PowderJect’s comprehensive patent portfolio of 60 patent families
  are EP500799, covering Particle-Mediated Transformation Of Animal Tissue
  Cells, and US6194389, for Particle-mediated bombardment of DNA sequences
  into tissue to induce an immune response, issued earlier this year.

  Related links:
  PowderJect press release
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1086
  PowderJect systems
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1091
  View patent No. EP500799 with esp@cenet
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1089
  View patent No. US6194389 with esp@cenet
  http://www.ipr-helpdesk.org/t_en/n_003_f_en.asp?urlid=3D1090

This patent is interesting because it is related to a method of
treating the human body, which is excluded from patentability under
Art 53 EPC (and current art 52(4)).  In this case they were probably
careful to limit the claims to an industrial product and exclude
method claims that could limit the actions of the physician.
The EPO tends to take this exclusion much more seriously than
the exclusions in art 52(2).

      10.1. Paul Laurent talks to IP-Wire

  IP-Wire spoke this month with Paul Laurent, President of the Patent Law
  Committee at the European Patent Office. He is also the person responsible
  for discussion concerning the proposed Community Patent during the Belgian
  Presidency.

  In outlining the approach to be taken regarding the Community Patent
  during the six months that Belgium holds the EU Presidency, Mr Laurent
  explained that the achievements made during the Swedish Presidency would
  be built upon at the meetings of the Internal Market Council to be held in
  September and November of this year.

  Unresolved issues that will require attention include defining the roles
  to be played by the EU, the European Patent Office and the national patent
  offices, as well as the linguistic, financial and judicial regimes to be
  adopted for the Community Patent, he explained.

  A statement is to be drawn up, Mr Laurent said, in which all possible
  solutions to these questions are presented for examination by the EU
  Council’s Community Patent Working Group in September.

  On the subject of enlargement of the European Union '' one of the key
  priorities of the Belgian Presidency - Mr Laurent said that each
  additional member state adhering to the Community Patent would require the
  linguistic aspects to be reassessed, but stressed the added value that
  patent holders would obtain through an extended territory of protection.

  He also outlined a timetable for discussions concerning other areas of
                     ^^^^^^^^^=20=20=20=20=20
  intellectual property in Europe, notably the trademark exhaustion regime
  and the development of legal protection instruments for computer
          ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^=20=20=20=
=20=20=20=20=20=20=20=20=20=20=20=20=20=20=20
  programmes and biotechnological inventions.
  ^^^^^^^^^^

Interesting to note that Mr. Laurent does not simply talk about
patentability but about "legal protection", and also not about
"computer-implementable inventions" but about "computer programmes",
a term which the patent lawyer lobby has been going long and often
ridiculous ways to avoid.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/