FT on vanity patents

Patents as means in themselves rather than ends - a Nobel Prize-winning scientist puts the patent system in its place, brilliantly. Though patents can still serve a useful function ...

I hope this is accessible to all on the FT website: http://www.ft.com/cms/s/0/071a7a40-c3aa-11e1-966e-00144feabdc0.html#axzz1zUoMrW1e.

Patents or copyright?

Hat tip to Sandrine Hilaire, avocat, of Strasbourg, "capital of Europe" according to her firm's website, who shared this on Facebook: a somewhat depressing story in which the patents seem to have become the end, not the means, but also depressing for the inability of the journalist to tell his copyright from his patents - despite having both in the headline. "Un sérieux bémol" as she says, giving me my French word of the day (a couple of days ago it was "chienlit", which perfectly describes a big-city Marathon). Literally, un bémol is a flat sign in musical notation, which seems an excellent metaphor for a journalist's failure to distinguish one legal right from another.

Patent wars heating up

Nowhere is intellectual property taking on the characteristics of an end in itself rather than a means to an end than in the mobile phone world. Enforcing patents must be taking as much time and effort as making the phones in the first place. Last week The Guardian reported another development, with IPCom (frequently cast as perhaps the biggest villain of the piece) taking action against retailers selling HTC smartphones in Germany. The report is impressively coherent for a newspaper: the author (Charles Arthur, the paper's technology editor) clearly knows more than a little about patent law. Most journalists would have made this into a story about copyright and trade marks too.

HTC said it knew nothing about any complaints against retailers and that the patent it is alleged to be infringing is in fact invalid. One good reason for having infringement and validity dealt with in the same court? Not in this case, it seems (though the principal remains) because the challenge to the patent takes the form of an opposition in the EPO, the outcome of which is expected on 24 April 2012. By which time an awful lot of HTC handsets will have been sold, or not.

Register a Community design within 48 hours

You can, according to President Campinos of OHIM (reported here by MIP). You have to pay the application fee using a current account with the office because other payment methods such as credit cards and bank transfers cause delays (the banks taking the opportunity to put the money into Greek bonds or something overnight, I suppose) and submit a high-quality application, which means email not a smudged fax. Ideally you won't claim priority, but if you do you must submit all the priority documents at the outset. These details appear to have been added by MIP as they don't appear in the published version of the President's speech - he might have been ad-libbing.

Of course, the speed of processing is down to the fact that there is no substantive examination, perhaps no human intervention at all, which makes me wonder why it can't be done within 48 seconds. The Community registered design system is a deposit system in all but name, so what you get at the end of the process, however quick it might be, has to be heavily discounted because of the lack of scrutiny. Registered designs are, of course, virtually impossible to assess for novelty, because the prior art is not organised in a searchable form.

Personally, I'd rather the process took longer and resulted in the grant of a reliable registration. A quick process for obtaining a right that stands a good chance of being worthless is the ultimate triumph of form over substance, making the Community registered design an end in itself. It also makes the application fee little more than a tax on businesses to fund a pointless institution. Excellent nonsense.

Smartphone patent wars

Proving just how difficult it can be to tell a troll apart from a practising patent-holder, the FT reports today that Google has come to the aid of major Android-user HTC in its struggles with Apple. How? By transferring some patents to the handset manufacturer to bolster its position in the Apple litigation. These are not patents that it picked up from Motorola in that well-publicised deal a little while ago, but some that it had already acquired - not obtained - from elsewhere. Not a tremendously edifying spectacle, but in a fight like that you have to use what weapons you can get your hands on to try to achieve something like parity with the other side.

Another instance, perhaps, of the intellectual property tail wagging the business dog.

Trolls and tolls

Interesting piece by Tim Harford (The Undercover Economist) in the FT about patent trolls. He says:

The three pillars that enable patent trolling are: the existence of absurd patents; the forbidding cost of the legal process; and the business model of buying up patents as assets in their own right, rather than building blocks for innovation.

Concludes that more transparency in the market, better information about the prices at which deals are done, would help. It shows how tricky it can be to tell a troll from a legit toll collector - which is why that third pillar cannot simply be removed. But it does all come back to the widespread malaise of treating IP as an end not just a means to an end.

As for the first of those pillars, if only we could get away from stupid patents, how much better the world would be - but if the patent system is there, people are surely going to keep trying to get them.

Euro-Hargreaves? The Commission's IP Blueprint

There's a lot of blueprinting going on at present. I hope that the Hargreaves Review and the Commission talked to each other, because both have come up with comprehensive reviews within a few days of each other. On 24 May the Commission stuck its oar in, and several recommendations overlap or are identical with those of the Hargreaves Review - which might be an indication of the futility of trying to deal with intellectual property policy at the national level ... Commissioner Barnier said:

IP is the key to innovation – and the word property is the key for an inventor to have the incentive and get the funding for innovation.

Hmm. That could cause controversy, in itself. Property? Is there no alternative? And is there a suggestion of the "means and ends" problem here?

The Commission recommends (in the words of its press release (IP/11/630) - I am under pressure of time, but will return to this and deal with it in greater detail another time):

• Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business.
• Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era.
• Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.
• Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works.
• Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.
• IPR violations: Counterfeiting and piracy are a growing threat for the economy. Between 2005 and 2009, the number of registered cases at the EU borders of goods suspected of infringing IPR increased from 26 704 to 43 572. Meanwhile, the creative industry estimates that piracy has cost the European music, movie, TV and software industry €10 billion and more than 185 000 jobs in 2008 alone. The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.
• IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. In 2009 only, customs intercepted over 40 000 suspect shipments involving 118 million articles. Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales.

I like the parallel with the engineering process of blueprinting - though I don't think the verb meaning was intended by the Commission, or anyone else who uses the word in this context:

Dismantling engine and reassembling it to exact specifications and tolerances. This process may help to improve engine performance, smoothness, and reliability. (Dictionary of Automotive Terms.)

The intellectual property system (if I may be forgiven for using such a loose expression) would certainly benefit from this. However, Wikipedia sounds a cautionary note:

Ideally, blueprinting is performed on components removed from the production line before normal balancing and finishing. If finished components are blueprinted, there is the risk that the further removal of material will weaken the component.

Perhaps, then, we're too late. Or maybe the important point is that no-one is suggesting the removal of material from it ...

New Russian IP agency announced

President Medvedev announced the creation of a federal intellectual property service last Tuesday, according to this report from RIA Novosti, the state news agency. It seems that it will bring together Rospatent (the Russian Agency for Patents and Trade Marks) and FAPRID (the Federal Agency on Intellectual Property Protection) and the report suggests that it is intended to help Russia qualify for membership of WTO.

The trouble is, benchmarks in international intellectual property protection tend to be set by the United States, whose policy seems to be dictated more by what Hargreaves called lobbynomics than an evidence-based approach. Russian membership of WTO, a cynic might think, is dependent on it enacting legislation and establishing institutions to the satisfaction of a small number of large US corporations. It adds to the impression that intellectual property is now an end in itself, not the means to an end - an impression reinforced by some of the Hargreaves proposals and by the European Commission's latest pronouncements. Russia's creation of a new agency reminds me of the empire that the government has built around our own Patent Office, which I don't believe is the right institution to be promoting ... what? The problem is, even if it characterises its activities as promoting innovation, it looks much more like promoting intellectual property. Means and ends again.