Wednesday whimsies

The Jewish New Year begins tonight and the IPKat team wishes every reader, regardless of their religious persuasion (or lack of it), political preferences, brand allegiances and domestic copying habits, a happy and prosperous year -- a year of peace, of enhanced understanding and appreciation of the tangled ecosystem in which we are all somehow connected. On a related topic, the Jewish members of the IPKat's blogging team will be on-blog less frequently over the next three weeks or so, which coincide with the autumn cycle of fasts and feasts -- so if they're not there tto comment on one or more of their favourite topics, don't be surprised!

Around the blogs.  The IPKat's recent call for good blogs on film and media copyright has trawled in another potential useful source: IP Media Law which, as Hans Brems tells the Kat, "seems to write about IP and media, and films sometimes".  Congratulations are due to MARQUES's Class 46 weblog, which has just topped the 1,500 mark for its email subscribers.  The jiplp weblog has just commenced a series of short biographical posts on regular contributors to the Journal of Intellectual Property Law & Practice (JIPLP), in an attempt to 'humanise' them for the benefit of readers.  First up is Charley Macedo, who carries a big stick if the accompanying illustration is anything to go by ...

Paul Frater has been telling the IPKat excitedly about a new website for inventors, www.inpama.com, where inventors can promote their invention without fear of either visible cost or no hidden commissions and fees. He says, "In just two minutes, a webpage with photos, videos, and related documents for each invention can be easily created. Inventors can find investors, manufacturers, and distributors on inpama.com". The site sets out to prospective licence-ready technologies which can be quickly implemented into a finished product. If (i) it works and (ii) it doesn't cost inventors anything more than the price they so often do have to pay-- raised expectations followed by dashed hopes -- it can't be bad.

The IPKat's friend, IP Dragonista and China analyst Danny Friedmann tells him that, while lots has been written about social media and copyright, not so much has been penned on the relation between social media and trade marks. Fortunately Danny gave a presentation at the Asia Pacific IP Forum in Hong Kong on social media and the challenges trade mark holders are facing in which proposed a solution: he then answered some questions, having uploaded the presention on to Slideshare.  What he'd like is some feedback: do his proposals have any value? Are they feasible? You can email Danny here and tell him what you think.

Jody Giesser has just given the IPKat a new source of fun (thanks Jody!): the United States Patent and Trademark Office's Data Visualization Center (here).  Whoever had this idea deserves some sort of IP medal for services to information display.  Merpel adds, will the USPTO be so kind as to license the software to the European Patent Office, so we Europeans can at least get a buzz from seeing the size of the backlog and the speed at which it's being processed ...

Less than a day after the end of his "How to Write an Effective IP Press Release" seminar, the IPKat is harvesting and excitedly reading the email responses from some of those who participated in it.  It seems the event was appreciated -- some good folk even found it useful -- and some special praise went to the ongoing contributions made by Adam Smith, reporter for World Trademark Review (WTR), who reminded those present that press releases were only one of a variety of means by which law firms, IP owners and others can impart information, and by which the media pick up the data and the comments they find most useful (if you want to contact Adam regarding press releases and other content for the WTR, you can email him here).  This seminar will be repeated on 5 October (details here) at the London office of Olswang LLP and the Kat, following one suggestion, is contemplating putting on a special version of the seminar for small IP practices and entities, which have different needs and fewer resources but still strive to make their press communications as effective as possible.

Innovation and Trolling

This particular Kat is strongly of the opinion (although it has to be said with little in the way of solid empirical evidence with which to backup this assertion) that innovation is a good thing. Products evolve, technology pushes ever onwards, and things generally get better. It is therefore with some interest that he stumbled across an interview in Research Magazine with Andy Budd, managing director of a ‘user experience design agency’, in which Budd warns of a “cult of innovation” and the perils that the “innovation delusion” can bring to a company. He explains:

“In large organisations I see the term innovation being bandied around very loosely. When companies are planning their next year’s business plan they’ll say, ‘We’ve got a strategy for innovation,’ but I think often they don’t quite appreciate what innovation is. If you want to be a truly innovative company, first off you have to realise that a lot of the money and time you’re spending might never result in a new product or service, which is often really hard for companies to bear, because they hope that by spending a lot of money in R&D within two or three years they’ll get this massive rich vein of content or products. Innovation doesn’t really work like that. It happens through people spending time looking at markets, looking at how people are using services, and there is a chance that from that something innovative might pop up – but also there is a very real chance that nothing will happen.”

[says the IPKat: there seems to be an assumption here that innovation and invention are the same thing, when it has long been understood that there is a significant distinction between the two...]

Budd continues: "If someone on the board says, ‘This year we’re going to have a strategy of innovation,’ no one’s going to disagree with that. You can’t say, ‘No, innovation’s bad.’ But people don’t understand what it really means, and innovation is not always a key to business success. It’s often a key to spending an awful lot of money and preparing the market for other more successful products. I think this race to be first to market is often a bad move, and a lot of products I’ve seen that are second or third or fourth to market are the ones that understand the market, that see where people have gone wrong and make those improvements."

Says the IPKat: Given that everything concerning the patent system in most states (although a slightly different argument may currently be advanced in respect of the U.S.) is predicated upon the notion that sooner is better (first to file, 20 year term from filing, anchoring of the state of the art, etc.,). Are we mewling ('barking' didn't seem appropriate) up the wrong tree?

Link to the full article here

Whilst on the topic of innovations, the IPKat has also stumbled across another story that has been slowly doing the rounds and which perhaps highlights that, contrary to his initial opinion, not all innovation is necessarily good.

The tale involves a small company from Las Vegas, Nevada, called Righthaven LLC that is being widely proclaimed as the first of a new species: the Copyright Troll. Adopting a similar modus operandi to its patent cousin, this particular species does not itself exercise any creativity (aside from that expended in penning its claim), but rather seeks to enforce the copyright of others: rummaging through the cluttered contents of the web in search of potential infringers to bring to justice. Needless to say, the At present the majority of claims brought by the company relate to the copyrights of the Las Vegas Review-Journal (Nevada’s largest newspaper and no doubt a veritable fountain of new works), but Wired reports that a second newspaper group has also signed up to the service.

So, "Copyright Troll", or legitimate business activity? Is this the way of the future, with publishing groups appointing enforcers to orchestrate the policing of their online works - and does it matter that (as Wired Reports) "Righthaven usually demands $75,000, but will settle for a few thousand dollars"?

Link to original story on OSnews.com: here.

And to Wired's coverage of Righthaven LLC: here

Troll: here

Trolling: here

BGH on enablement: disclosure may be enabling without being novelty destroying

The American Ethicon, Inc. (part of the Johnson & Johnson group of companies) sued an unnamed defendant based on the German part of EP 337 612 before the Landgericht Düsseldorf. The patent in suit claims an improved stapler for internal organs, or rather an "improved pocket configuration for internal organ staplers" (this sounds very painful, somehow).

The alleged infringer counter-sued before the Bundespatentgericht (Federal Patent Court) for nullity of the patent based on lack of enablement and lack of inventiveness. The Federal Patent Court, in a decision of 2007, declared the patent (which has in the meantime expired) void for lack of enablement without addressing the inventive step issues.

In a decision of 13 July 2010 (just published) the Bundesgerichthof (Federal Supreme Court) reversed. It notes that the term "disclosure" has to be understood in context and based on its function. A disclosure is novelty destroying only if it clearly and unambiguously discloses the claimed invention. However, the specifications of a patent sufficiently enable the invention if the person skilled in the art is, based on his general knowledge and the disclosure of the patent, able to carry out the invention without inventive activity. This does not require that at least one embodiment of the invention is disclosed such that it would be novelty destroying for the invention (para. 17 of the decision). In other words: a disclosure may be sufficiently enabling for an invention without being novelty destroying for the same invention.

In the case at hand, the Bundesgerichtshof held that the patent was enabling and reversed the Federal Patent Court's decision. The case was (unusually) sent back to the lower court because it had not made any findings on inventive step, which was the second claimed ground for nullity.

Monday miscellany

If you are sending the IPKat any documents that you are hoping he will use, can you please help him by making them as easily accessible as possible by not including them in copy-protected files from which it takes time and effort to re-type.  Also, can you please check whether any links work before you send them in?  Each time a link doesn't work, the Kat finds himself receiving all sorts of emails from readers who are either helpful or disgruntled and who, in each case, are entitled to receive an appropriate reply.  Many thanks!

Looking for training points? Practitioners from England and Wales who need CPD can satisfy these needs in Oxford, where barrister Jane Lambert (NIPC) and solicitor Peter Groves (CJ Jones Solicitors LLP and IPso Jure) are presenting a series of four half-day seminars on the Wednesday afternoons in October designed particularly for non-specialist litigators and commercial lawyers but with enough detail to be useful to the IP fraternity, especially those looking for an introduction to a new field of IP law. The sessions, predictably, cover patents, copyright, trade marks and designs respectively, and cost £400 for the series or £120 individually (plus VAT in each case). They are accredited by the SRA for 3 hours CPD each, and IPReg rules provide that SRA accreditation is good enough for them, too. The seminars will take place at the Oxford office of Morgan Cole, avoiding the need to find your way into the city centre. Further details here.

Aroumd the blogs.  The IPKat's recent plea for recommendations concerning good blogs covering film and media copyright has not turned up many suggestions -- but there have been a couple of good words put in for Entertainment Law Brazil, which is masterminded by Attilio Gorini and Rodrigo Borges Carneiro (Dannemann Siemsen). You can view it here.  Another blog with which this Kat has recently become acquainted is Copyhype, by US blogger Terry Hunt.  This blog caters for rather longer, more analytical posts. Meanwhile, congratulations are due to the IP Finance weblog, which has now notched up its 800th email subscriber. Well done!  Contributors to the IP Finance weblog include two members of the IPKat team: Jeremy in quite a minor way and, more significantly, Neil.

One of the more unusual IP press releases of this year must surely be "PING Golf Announces Trademark Agreement With Apple" (here), describing how Ping and its parent company Karsten Manufacturing Corporation have struck a deal to let Apple use its PING trade mark in connection with the latter's iTunes Ping social music discovery feature.  It sounded to the Kat as though there's not a vast degree of synergy between the two companies but that Apple was happy to pay to use a coveted name -- but then recalled that the Ping name was not unknown within the recorded music industry.  Thanks, Nick Fenner (Shoosmiths), for the newsy link.

Peer-reviewed R&D document portal and meeting-point Boliven plans to launch a commercial subscription service from the middle of this month. Registration however remains free for now -- and free registered users will have around two weeks to try the service and opt in to an earlybird discount against their eventual subscription. So there is a window of a week or two now to try Boliven.com out for free and save cash off any eventual subscription..

More on plagiarism

Further to IPKat team member Neil's post earlier today (here), and seeing as the weekend is almost upon us, here are some enjoyable themes for readers to contemplate.

1. Tom Lehrer's classic song 'Plagiarize' (you can listen here or read the lyrics here), summoned up from the depths of Tony McStea's memory, which contains the obviously relevant verse

Plagiarize
Let no one else's work evade your eyes
Remember why the good Lord made your eyes
So don't shade your eyes
But plagiarize, plagiarize, plagiarize
Only be sure always to call it please "research".

2. UniBergen's 5 minute masterpiece Et Plagieringseventyr (which you can watch here), drawn to the Kats' attention by University of Plymouth librarian and copyright guru Graham Titley.

3 In Praise of Plagiarism. Team member Jeremy has additionally unearthed In Praise of Plagiarism by Russell A. Hunt (St. Thomas University), which bears a notice that reads, "in-process draft, based on oral presentation. Please cite or quote from one of the published versions". Hmm.

Plagiarism: do we know what it means, do we know why we need it?

There are certain terms, frequently used in connection with IP matters, the meaning of which is utimately unclear. In my mind, no term better meets this description than "plagiarism" or "plagiarist". Try as I have, this Kat has never found the term defined in any statute -- nor I am familiar with any case law that has sought to explain it (I do recall that the Israeli Supreme Court used it, in a decision given many years ago, without however shedding any further light on its meaning). Nevertheless, the term has found its way into common and widespread parlance. Wikipedia offers the following observation:

"Plagiarism is not the same as copyright infringement. While both terms may apply to a particular act, they are different concepts. Copyright infringement is a violation of the rights of a copyright holder, when material protected by copyright is used without consent. On the other hand, the moral concept of plagiarism is concerned with the unearned increment to the plagiarizing author's reputation that is achieved through false claims of authorship."

Then there are the following guidelines taken from plagiarism.org here, a site dedicated to preventing "plagiarism."

"What is Plagiarism?

Many people think of plagiarism as copying another's work, or borrowing someone else's original ideas. But terms like "copying" and "borrowing" can disguise the seriousness of the offense:

According to the Merriam-Webster Online Dictionary, to "plagiarize" means

• to steal and pass off (the ideas or words of another) as one's own;

• to use (another's production) without crediting the source;

• to commit literary theft;

• to present as new and original an idea or product derived from an existing source.

In other words, plagiarism is an act of fraud. It involves both stealing someone else's work and lying about it afterward.

But can words and ideas really be stolen? According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property, and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).

All of the following are considered plagiarism:

• turning in someone else's work as your own;

• copying words or ideas from someone else without giving credit;

• failing to put a quotation in quotation marks;

• giving incorrect information about the source of a quotation;

• changing words but copying the sentence structure of a source without giving credit;

• copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (see our section on "fair use" rules).

Most cases of plagiarism can be avoided, however, by citing sources. Simply acknowledging that certain material has been borrowed, and providing your audience with the information necessary to find that source, is usually enough to prevent plagiarism. "

I thought about the uncertainty surrounding the meaning of the term in reading an article that appeared on 1 August in the New York Times. Entitled "Plagiarism Lines Blur for Students in Digital Age" and under the byline of Trip Gabriel here, the article described the purported challenges facing those who combat plagiarism, particularly in the university setting. The following sections of the article are noteworthy.

1. "... [M]any students simply do not grasp that using words they did not write is a serious misdeed. It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism."

2. "Perhaps more significant, the number who believed that copying from the Web constitutes “serious cheating” is declining — to 29 percent on average in recent surveys from 34 percent earlier in the decade."

3."In an interview, [Susan D. Blum, an anthropologist at the University of Notre Dame] said the idea of an author whose singular effort creates an original work is rooted in Enlightenment ideas of the individual. It is buttressed by the Western concept of intellectual property rights as secured by copyright law. But both traditions are being challenged. “Our notion of authorship and originality was born, it flourished, and it may be waning,” Ms. Blum said. She contends that undergraduates are less interested in cultivating a unique and authentic identity — as their 1960s counterparts were — than in trying on many different personas, which the Web enables with social networking."

Are you confused about the difference between copyright infringement, violation of moral rights, and plagiarism? If so, not to worry--so am I.

1. To the extent that plagiarism is about unauthorized copying of a protected text, then copyright law protects the rightsholder and any reference to plagiarism seems redundent and unnecessary.

2. Ditto for a violation of the right of attribution under moral rights. The fact that a country, such as the U.S., does not provide for a general right of attribution to authors of copyrighted works is a matter of legislative amendment or creative use of various common law rights regarding the relationship between a work and the identity of its creators.

3. Grounding plagiarism within the sphere of ethics and morality limits the potential force of its authority. Appeals to ethical justification to shape collective conduct is difficult at best, problematic at worst. Indeed, when data shows only minority support for condemning plagiarism, at least in some on-line settings, raises the question of the source and legitimacy of the ethical position itself.

4. Intertwining plagiarism within the canon of conduct of defined communities (such as academia) provides a limited solution for the legitimacy problem, but it is not a justification for positing a general prohibition against plagiaristic conduct, even assuming that a consensus could be found for the the meaning of the term.

When all is said and done, however, I suspect that two things will remain to be true with respect to plagiarism. First, there will not be any agreement on the meaning of the term; and second, the term will nevertheless continue to be be used in various settings to achieve a variety of results.

Friday fantasies

"This little piggy went to market;
This little piggy stayed at home.
This little piggy ate roast beef;
This little piggy had none.
But this little piggy ... went off to check the IPKat's Forthcoming Events sidebar and now he has registered for all sorts of exciting conferences and seminars and is really excited to be going to them ..."

Be sure to check what's coming up! The autumn conference and seminar season is about to start, and there's bound to be plenty to entertain, educate and inform you! And, talking of forthcoming events, here are three conferences which are supported by the IPKat. In return for his support, the organisers have kindly agreed to offer a 10% discount on the registration fee to any reader of this weblog who quotes the special booking number which you can find in the side bar on the IPKat's front page, next to the conference to which it applies. The three events are

* IPR in China (22 and 23 November 2010)
* International Patent Litigation (6 and 7 December 2010)
* International Copyright Law (7 and 8 December 2010)

The UK's Intellectual Property Office is trawling for your views on another reference that has been made to the Court of Justice for a preliminary ruling: Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v N.V. NETLOG.  This is the question which the Court has been asked to consider: 

"Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: "They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right", to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?"

If you want to give the Office the benefit of your advice, you can email it here.  You'll have to be quick, though. The closing date for the receipt of comments is Tuesday 7 September.




Around the blogs. 

• The IPKat's friend Peter Bolam has asked him if he can recommend any blogs that are dedicated to film and media law. No such dedicated weblog springs into the Kat's mind, so he thought he'd ask his readers if they have any recommendations. If you can point to any, please let us all know by emailing the Kat here with the subject line "Filmmedia blog".
  
• "The shoes are original -- it's just the brands that are fake" is the title of a thoughtful and well-written IP Finance post by Miri Frankel that deserves a wider airing.  You can read it here.
• The thoroughly and unashamedly esoteric SPC Blog, which remarkably now has a cult following of over 860 email subscribers, was first off the blocks with this report on a little-known and probably destined to be little-read European Court of Justice decision concerning the extent to which accession states can tweak the single market concept for transitional purposes when deciding how to handle applications for supplementary protection certificates for pharma patents.
• The jiplp weblog's current list of articles in search of an author still has a few topics which have not so far been claimed.  If you're looking for a topic to write on, check it out.

Last-minute registrants for next Tuesday's "How to Write an Effective IP Press Release" IPKat seminar (details here) should email IPKat team member Jeremy directly here.

Time for that IP Tsar?

The IPKat made his feelings known on the subject of an IP Tsar last month here and here.  Since raising the subject he has received many interesting comments, both for and against, and he has been favourably impressed by the manner in which his readers have made a variety of constructive points.

The thing which most persuades him to support a call for an IP Tsar is the continuing stream of correspondence he has received from representatives of small and medium-sized businesses who feel that they are doubly at a loss.  First, they are often unable to finance the litigation, whether as claimants or defendants, which either seeks to preserve their IP protection or to preserve their freedom to trade without threat of encroaching on the IP of others.  Readers of this weblog will already be familiar, in this context, with the battles of the small entity Golden Balls Ltd against businesses many times its own size and with ample litigation resources (see eg earlier IPKat posts here and here).  Secondly, they feel that their complaints to government ministers, officials, Members of Parliament and others are futile since they receive little in response other than a sympathetic echo of their own plight.

Here's another story well worth a read.  The protagonist this time is Christine Watson, proprietor of the JOLLY HOLLY trade mark -- duly registered but somehow overlooked by Disney Inc and its licensee, character confectionery company Kinnerton.  Christine has fought valiantly and imaginatively to preserve her pitch, and her struggle once again demonstrates the existence of a gap between the laudable government aspirations and the reality on the ground.

An IP Tsar who champions IP rights, who integrates and coordinates criminal and civil law enforcement, who provides guidance and support to those who legislate, administer and quantify the results of IP, to hit heads together and encourage a little common sense, and who can help think up effective ways of enabling SMEs to finance the justifiable protection of their IP investments -- this is what we need.

Catbert and Wally: an IP analysis

It's a long time since a Dilbert cartoon featured on this weblog -- a year ago, in fact ("Not enough to make a Kat laugh", here), when this member of the team needed some explanation regarding the humour of a triptych based on an intellectual property theme.  Well, the Kat has just encountered another IP-rich triptych.  This time he thinks he understands it.

Catbert (the evil director of human resources) starts off as the apparent villain of the piece. The key word here, missed by speed-readers and people whose eye is drawn to the final, punch-line box before they have finished digesting the contents of the preceding boxes, is "anonymous". How, but through the manifestation of evil, can Catbert have known that Wally was the author of the anonymous comments?

The second box reveals the subtlety of Wally, who as it appears is playing the system.  From his endorsement of the literary oeuvre of the Unabomber (Ted Kaczynski) he makes it plain to Catbert that he is familiar with, and approves of, the writings of the author of the "Unabomber Manifesto" (Industrial Society and its Future, here), a very different society from that in which Catbert wields his power.  Wally, knowing Catbert, must have calculated that the employee survey was not therefore anonymous.

The dénouement reveals both Catbert's concern that "we" (meaning "I") have a problem and that Wally, while endorsing the fact that a problem exists, winds Catbert up by nominating an intellectual property issue (which, within the context of the workplace is small, trivial and of no consequence) rather than admitting to the sort of problem which an employee with Unabomber tendencies might pose to an employer in general, and to human resources in particular.

Those pesky patent proposals: now it's CIPA's turn

The Chartered Institute of Patent Attorneys (CIPA) has just issued a press release concerning the thumbs-down which the Advocate Generals of the Court of Justice have given to the (questionable) legality of the proposed European patent and patent courts. Says the press release:

"‘The European Court of Justice will have to take a pragmatic interpretation of the Advocate General’s Opinion if we are to see any possibility of a single European patent and a common European patents court system emerging from this process”, says Vicki Salmon, speaking for ... CIPA. The Opinion’s headline finding appears to come down against the legality of the proposed arrangement for a single European patent and new European Patent Courts, concluding that: “As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties”. However, CIPA believes that the European Court of Justice (ECJ) can - and should – put the undoubted benefits of the proposals ahead of issues of legal policy, if long-awaited changes to the patent system in Europe are to have any chance of being realised [Assessing the benefits of proposals is not exactly what the Court's judges are paid -- or indeed trained -- to do, and since they're even less answerable to the EU electorate than its elected representatives and appointed office holders, that's probably just as well].

“The Advocate General’s Opinion does allow that there is nothing in the European Union Treaties that should specifically prevent a single European patent or a common European Patents Court system from being set up,” says Vicki Salmon. “We welcome this [This is small comfort: the reason why there's nothing in the Treaties to prohibit it is probably because the subject never occurred to those who negotiated and signed them]. There are enormous commercial benefits to be gained – in the UK and across Europe – for companies who would have only a single European patent and a common patents court system to deal with. This has been the vision since the European Patent Office was set up in the early 1970s by a group of nations who were determined to make it happen. The EPO has remained separate to the EU justice system and, for all its faults, is widely considered to have been a great success [Much of the EPO's work has indeed been acclaimed, though not everyone is enamoured of its dispute resolution mechanism in opposition proceedings -- and it's dispute resolution that we're worried about here]. If governments and businesses across Europe want it – and most of them do seem to - there is no fundamental reason why the countries involved should not now take the next big step and put in place a single European Patent and common patents court system [though the next big step may be a rewriting of the EU's fundamental laws before the smaller step of emplacing patent courts can be taken].

“The proposed treaty needs proper discussion and debate and the views of users – those companies, groups and individuals who have the most to gain from the proposed new system – need to be taken into account.” [Agreed -- and this discussion has been woefully deficient. One suspects that some good folk in high places have been impressed by ACTA-style secrecy -- which the European Parliament itself decries -- and thought it might come in handy here]

Industry and the legal profession are surprised at the unusual way Advocate General Juliane Kokott's Opinion [the Opinion is said to be that of all the AGs, not just Juliane's] has been allowed to seep into the public domain, rather than being formerly announced. “Patent attorneys are not the only group to be taken aback at the way this long-awaited legal opinion mysteriously appeared last week on a patent lawyer’s blog [naughty!] – and only in French [even naughtier, especially during a month in which les Français are traditionally on les vacances] - over six weeks after the date of 2 July given on the document. There still appears to be no sign of it in any of the places where you would normally expect something of this importance to published, such as the websites of the European Court of Justice, the European Patent Office or the European Commission [well, some people actually expect it to be seen by readers of this weblog.  This item, posted on 23 August, reached over 9,000 readers in 24 hours; another 1,050 readers received or accessed this item during the same period]”.

The IPKat thinks CIPA is expecting too much from the Court of Justice, but strongly agrees with the Institute's call for a fuller debate.  He still thinks that we've heard a lot from those with official institutional briefs and idealists, but rather too little from patent litigators and from small and medium-sized businesses -- both as potential plaintiffs and as likely defendants.  Also, in his view, there's no point in setting arbitrary deadlines and rushing it: it's better to take a few years longer if need be, attending to the detail as well as the principle and making sure that everyone knows what the new system is and how it will work before activating it.  The patent system is a vastly complex, highly subtle and tremendously flexible institution which has evolved over many centuries: this evolution has been mainly in response to users' needs.  It is now less clear than it ever has been as to what users' needs are, since we are well past the days when one-product-one-patent was the norm.  And if constitutional or other reform is required before the desired steps can be taken, so be it.

Merpel says most Kats only have nine lives.  My colleague is obviously expecting rather more, if he expects to be around when the results of his preferred approach might be expected to come to fruition.