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Archive for the ‘patents’ Category

Here just the link to the SCOTUS ruling.

“The Court has recognized, however, that too broad an interpretation of this exclusionary principle could eviscerate patent law. For all inventions at some level embody,use, reflect, rest upon, or apply laws of nature, naturalphenomena, or abstract ideas.”

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Francois Gurry made headlines with his suggestions the world would be a better place if the web had been patented. Gurry chairs the World Intellectual Property Organisation (WIPO) in Geneva, a UN body which administers international IPR agreements and is responsible for relaying international patent applications. I am unsure the member states of WIPO would like to endorse his suggestion.

But let’s be fair to the UN diplomat. Boing-Boing links the video stream of the session. Gurry had been challenged by the panel views from Lynn St Amour (Internet Society) and Rolf Heuer (CERN). They claimed the web as an example of disruptive innovation, innovation from basic research that was not patented and not expected. Heuer added a provocative notion it was developed around the corner of Gurry’s Geneva UN institution WIPO. Boing Boing:

After the head of CERN and the CEO of the Internet Society spoke about how important it was that the Web’s underlying technology hadn’t been patented, Francis Gurry, the Director General of the UN’s World Intellectual Property Organization (WIPO), took the mic to object.

What panelist Gurry said may be a result of frustration and perception it was necessary to add more “balance”. The report presented, Globalinnovationindex is freely downloadable. The first foreword is by COE of Alcatel-Lucent. Title: The World Needs Open Innovation.

These days smart phone markets and html5 deliberations at W3C illustrate how difficult it gets in a patent carpet to innovate. Under the looming financial and debt crisis commercial risk reduction is gaining more and more attention.

Disclaimer: The author observed WIPO negotiations for a German NGO.

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A document kept secret so far by the Council, a legal analysis on the unitary patent enhanced cooperation, was made available to me today in response to my document access secondary application (cmp. EC/1049/2001). My arguments for the secondary apllication were the ECJ turco judgement and the general character of the legal matter.

While the original document request relates to the German version of the legal analysis the Council secretariat kindly also made available the English version to me. In the Council register you still find a redacted version, but the document below would be made available through the register in other languages; ~ early next week they told.

Compatibility of possible enhanced cooperation in the field of patents with the internal market and the other provisions of the Treaties

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A press release by my colleagues from the French group APRIL comments on the ECJ patent court judgement.

Paris, March 11st, 2011. Press release.

On March 8th 2011, the Court of Justice of European Union (CJEU) has published an opinion [1] emphasizing the illegality of the proposal for a unified jurisdiction on patents which is currently discussed by the European Union. April welcomes this clear, concise and accurate decision, which strongly reasserts basic principles of law. The French association also points out [2] that the European Court of Justice uses many points raised by April during the debates on the unitary patent [3], casting doubt on the enhanced cooperation on the unitary patent. The European Parliament’s vote in February [4] and the Commission’s assertion [5] of a successful unity on this matter appear to be only a giant with feet of clay.

The CJEU itself asserts that the current proposal “would alter the essential character of the powers conferred on the institutions of the European Union and on the Member States which are indispensable to the preservation of the very nature of European Union law.” [6]. It moreover finds that the current proposal questions both the judicial system of the EU and the primacy of EU law.

“These issues have already been raised by the Advocates General’s opinion [7]”, explains Jeanne Tadeusz, public affairs officer at April. “Consequently, this decision is not surprising. Nevertheless, it is
comforting that the CJEU emphasizes so clearly the threats in this project and that the Court reaffirms the basic democratic requirements applicable to everyone including patent organizations in Europe [8].”

Indeed, this decision puts on ice all the proposals for a unified jurisdiction which had been considered so far. “The Court goes beyond the Advocates General’s opinion, by making it impossible to simply fix the project with minor amendments to its architecture. Following the CJEU’s opinion, both EPLA and the unified jurisdiction have gotten the door slammed into their face”, emphasizes Gérald Sédrati-Dinet, voluntary counsel at April on patents. “The enhanced cooperation is left high and dry, since a unitary patent would not work without a unified jurisdiction to enforce it”.

April calls for the European institutions promoting the unitary patent to respect the law enacted by the CJUE, and to bring back the issue of patent law within the scope of the European Union and its institutions, in order to ensure the full application of basic rights and of the acquis communautaire.

See also the full analysis by April of the opinion published by the Court: http://www.april.org/en/analysis-opinion-european-court-justice-unified-patent-court

[1] http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=Avis%201/09
[2] A more detailed analysis is also available on April’s website:
http://www.april.org/node/14866
[3] http://www.april.org/en/rationale-postpone-enhanced-cooperation-unitary-patent-after-ecj-opinion
[4] http://www.april.org/en/european-parliament-stubbornly-pushes-forward-enhanced-cooperation-unitary-patent
[5]http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/269&format=HTML&aged=0&language=EN&guiLanguage=en
[6] See the European Court of Justice’s press release: http://curia.europa.eu/jcms/jcms/P_73113/
[7] The role of the General Advocates is to assist the Court by proposing their independent opinion about legal issues brought to the Court.
[8] April has been denouncing for a long time illegal practices of the
European Patent Office: http://www.april.org/articles/communiques/pr-20050707.html [fr] and has
already called for the legislative power to take over:
http://petition.stopsoftwarepatents.eu/.

What I find amazing: how they at APRIL spin the judgement of the ECJ on the proposed patent court. What APRIL writes makes far more sense than the swift official responses. Commissioner Barnier’s Internal Market communications appear to confirm it was a blow and they attempt to overshadow the situation by celebrating the unitary patent “enhanced cooperation” adoption. Enhanced Cooperation on a patent without common patent jurisdiction!

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