The Voivodeship Administrative court in its judgment of 28 April 2010 case file VI SA/Wa 327/10 held that the Polish Patent Office should provide translation into Polish of documents that were allowed as evidence in administrative proceedings. Such conclusions stem from the Act of 7 October 1999 on the Polish language published in Journal of Laws (Dziennik Ustaw) of 1999 No 90 item 999. The authority/body provides official actions of public administration in the Polish language. The aforementioned act obliges the authority to make foreign language translation of the document. The examination of the contents of the document should be conducted in Polish, the one and only official language of the Polish administrative proceedings. Only then one can say that the procedural step, which consists of taking evidence from a document written in a foreign language, has been carried out correctly. The constitutional principle, which is reflected in rules of the Act on the Polish language, provides that the official language of the Republic of Poland is Polish and it requires that the documents being major evidence that affects the outcome of the administrative case, has been translated into Polish. Only then will it be possible to assess the accuracy of the examination of the content of such document.
Archive for: patent law
Patent law, case VI SA/Wa 327/10
May 27th, 2010, Tomasz RychlickiPatent law, case VI SA/Wa 112/10
May 22nd, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment of 19 March 2010 case file VI SA/Wa 112/10 held that adding to the patent application an idependent patent claim, that has a general feature that “electronic file is made available to anyone via the Internet”, which was made with the application for reconsideration, does not give the criteria of patentability to the “invention” that was disclosed in the application in question, according to article 28 point 6 within the meaning of article 24 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments.
Article 24
Patents shall be granted – regardless of the field of technology – for any inventions which are new, which involve an inventive step and which are susceptible of industrial application.(…)
Article 28
The following in particular shall not be regarded as inventions within the meaning of Article 24:
(i) discoveries, scientific theories and mathematical methods,
(ii) aesthetic creations,
(iii) schemes, rules and methods for performing mental acts, doing business or playing games,
(iv) creations, whose incapability of exploitation may be proved under the generally accepted and recognised principles of science,
(v) programs for computers,
(vi) presentations of information.
The VAC held that the additional claim was just presentation of information.
Patent law, case VI SA/Wa 906/09
March 18th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in a judgment of 15 November 2009, case file VI SA/Wa 906/09 ruled that the scope of the European patent is the same as in the case of a national patent granted, and the case law of individual member states presents different approaches to the examination of the patentability of inventions using computer software. Article 27 of the PCT cannot be treated as a ban on the use of individual interpretation to assess the patentability of the invention for the protection of which one is applying. Article 27(5) of the PCT provides that the contracting States have flexibility in setting the conditions for patentability.
In this case, the PPO exhaustively referred to the fact of the grant of an European patent for the questioned invention and indicated the reasons for which it did not grant patent rights in Poland. Undoubtedly for the VAC, it was hard not to notice the importance of the referral by the President of the European Patent Office (EPO), to the Enlarged Board of Appeal of the EPO on the fundamental issues relating to the interpretation of articles 52 EPC in relation to computer programs. See case G 3/08, application filed on 22 October 2008. The questions asked by Alison Brimelow reflect the concerns and divergent interpretations which source is located in the line of EPO case law aiming to over-extend the concept of “patentability of inventions”. At the date of hearing of the case the mentioned referral was not considered by the Enlarged Board of Appeal of the EPO. Therefore, the unified position on the examination of the patentability of inventions using computer programs/software, which could be addressed by Member bound by EPC, did not exist yet. Given the above, the VAC held that the complaint should be dismissed because it did not include proper basis.
This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.
See also my post entitled “Patent law, case VI SA/Wa 2566/08“.
Patent law, case VI SA/Wa 1525/09
March 15th, 2010, Tomasz RychlickiOn September 2008, the Polish Patent Office (PPO) refused to grant a patent for an invention entitled “method and device for access to the telecommunications network and for accounting telecommunications services”. The PPO held that this invention is not a technical solution. The applicant filed a complaint to the administrative court. The Voivodeship Administrative Court (VAC) in Warsaw, in a judgment of 25 February 2010, case file VI SA/Wa 1525/09 annulled the decision, however, the VAC did not agree with applicant’s arguments that the PPO had to take under the consideration earlier decision of the EPO on the grant of the patent for the questioned invention. The Court held that the Polish Patent Office is not obliged to take into account in its assessment that was made from the perspective of the f the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments, the assessment that was carried out by the European Patent Office and its interpretation of the applicable law.
Patent law, case VI SA/Wa 2566/08
October 13th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment of 10 June 2009 case file VI SA/Wa 2566/08 held that it is up to the Polish Patent Office (PPO) to reconsider the matter in its entirety and refer to the statements and allegations contained in the request for the reconsideration of the case, taking into account the above guidance and administrative procedures by which the PPO is bound.
Looks like no big deal, right? But if you could read the whole judgment, which unfortunately is not available in English, you would understand that the Polish Patent Office will have to issue an opinion, and will have to justify and explain it appropriately, on the subject what is an invention and what is a computer program and why the PPO does not grant patents to so-called “digital” solutions.
In this context, I look forward to the EPO decision in G 3/08 case and to the SCOTUS’ judgment In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 (Fed. Cir. 2008).
It is out now!
July 14th, 2009, Tomasz RychlickiMy dear readers. All P.T. readers. I would like to draw your attention to the International Free and Open Source Software Law Review. It is an absolutely free publication on legal aspects of free and open source software. The first issue is available for download (both HTML or PDF versions) directly from its website. There, you’ll find couple of interesting articles. In particular, I recommend Shane Coughlan’s and Andrew Martin Katz’s article titled “Introducing the Risk Grid“. I will also immodestly mention that from the very beginning I was involved in the creation of the IFOSS L. Rev. and I am currently a member of the editorial board. Of course, I invite everyone to write for his periodical. Please do not hesitate to submit your papers.
There is another “Polish theme” in the IFOSS L. Rev. Great logotype and covers for the journal were created pro bono by my good friend Tomasz Politański.
I browsed through specific or peculiar artworks of Rob Nance that are available at artforrobots.com website. I started to think more when I saw “Poseable Paper Pope”. Is it parody or just bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.
Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, these Internet’s contracts“.
Patent law, case VI SA/Wa 2091/07
May 12th, 2008, Tomasz RychlickiThe Voivodeship Administrative Court in its judgment of 20 March 2008 case file VI SA/Wa 2091/07 ruled that the request for restitution of a term to file a request on rehearing is subject to article 58 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.
Article 58.
§ 1. If the deadline is infringed it may be rescheduled at the request of an interested party if it appears probable that the infringement was not caused by that party.
§ 2. A request to reschedule the deadline should be made within 7 days of the reason for the deadline’s infringement coming to an end. However, the actions for which the deadline was set must be carried out simultaneously with the request being made.
§ 3. It is not possible to reschedule the deadline for making the request referred to in § 2.
However, provisions of article 243(1) deals with the time limits set by the Polish Patent Office, while the deadline for The request for restitution of a term to file a request on rehearing is a term defined in the APC.
Article 243
1. Unless otherwise stipulated in this Law, where in the course of proceedings a time limit to perform an act requisite, under this Law, for continuance of the proceeding has not been observed, the Patent Office may, at the party’s request, restore the time limit, provided that the party provides a plausible explanation that non-observance was without fault on its part.2. Subject to paragraph (4), the request referred to in paragraph (1) shall be submitted to the Patent Office within two months from the date on which the reason for non-observance has ceased to exist, however not later than within six months from the date of the expiry of that time limit. At the same time, the requesting party shall be required to perform the act in respect of which the time limit was fixed.
3. A time limit to submit the request referred to in paragraph (2) shall not be restorable.
4. Where a decision has been taken on discontinuance of the proceeding for the reason of failure to observe a time limit for performance of a specified act, that decision, at the party’s request for re-examination of the matter, may be reversed, provided that the party provides in the request a plausible explanation that the non-observance was without fault on its part, while performing, at the same time, the act in respect of which the time limit was fixed.
5. Where the time limit for filing an application for the purpose of preserving the right of earlier priority or the time limit for furnishing a document expires on a day on which the Patent Office is closed to the public, the application or the document received on the first subsequent day on which the Patent Office is open to the public shall be deemed to have been received within the time limit concerned.6. In respect of time limits, to which paragraph (1) is not applicable, and the non-observance of which has been caused by exceptional circumstances, the provisions on suspension of the course of negative prescription caused by acts of God shall apply accordingly. In such cases, the Patent Office shall give orders after having been furnished with relevant evidence by the interested party.
7. Notwithstanding the provisions of paragraphs (5) and (6), the Patent Office shall secure the reception at any time of day of letters delivered by interested persons.
The fact that this applies only to time limits set by the PPO is showed in wording of article 243(2) of the IPL. This whole provisions of article 243 of the IPL apply only to certain categories of terms. This limitation results from the wording of this provision.
US patent law reform
September 8th, 2007, Tomasz RychlickiThe US legislative proces should be a subject of a hudge scientific research. I must admit I was really happy and suprised when I read that Larry Lessig will work on it. Meanwhile, I found an insteresting movie clip at Dennis Crouch website as a comment about pending legislation, reform of the US patent law.
Couple of hours ago US Congress has voted Patent Reform Act (H.R. 1908, 110th Congress, 1st Session, (2007)). The biggest reform is the change from first to invent to first to file system. It will harmonize the US patent law with other countries’ legal regimes.
Isn’t it sick law?
July 24th, 2007, Tomasz RychlickiI know it sounds a little bit demagogic but will it be a proper statement if I write that it is a really sick patent law that allows for patenting medical methods where such patents may later be used to prohibit or prosecute those who use them to treat patients? It was the article at law.com website that induced me to issue such statement. There are two cases mentioned. Medtronic Sofamor Danek, Inc. v. Michelson, 2003 U.S. Dist. LEXIS 24236 (W. D. Tenn. 2003) and Young v. Lumenis, Inc., 2007 U.S. App. LEXIS 15236 (Fed. Cir. 2007).
However, there is also patent misues doctrine in the US law based on a judgment in the case Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488 (1942).
There is also the so-called Doha declaration in the International IP law i.e. Doha WTO Ministerial 2001, Declaration on the TRIPS agreement and public health adopted on 14 November 2001. WT/MIN(01)/DEC/2, 20 November 2001.
Drink, don’t patent
July 17th, 2007, Tomasz RychlickiThere is a review of a book at thebachelorguy.com website that corresponds with a subject of this post. Additionaly, I would like to recommend you to check patentlysilly.com website and the Gallery of Obscure Patents available at delphion.com and (Internet is form porn, what do you think the Net was born for?) the collection of sex patents presented at fleshbot.com website. Below, I also present a short list of so-called “Internet patents” granted for software inventions and business models by USPTO. I hope that potential readers who are against granting patents for such “inventions” as well, will surivive this reading without any heart problems.
- U.S. Patent No. 6,029,141 (issued Feb. 22, 2000).
- U.S. Patent No. 5,625,694 (issued Apr. 29, 1997).
- U.S. Patent No. 5,781,438 (issued July 14, 1998).
- U.S. Patent No. 5,987,441 (issued Nov. 16, 1999).
- U.S. Patent No. 5,191,573 (issued Mar. 2, 1993).
- U.S. Patent No. 5,675,734 (issued Oct. 7, 1997).
- U.S. Patent No. 5,960,411 (issued Sept. 28, 1999).
- U.S. Patent No. 5,715,314 (issued Feb. 3, 1998).
- U.S. Patent No. 5,867,799 (issued Feb. 2, 1998).
- U.S. Patent No. 5,708,780 (issued Jan. 13, 1998).
- U.S. Patent No. 5,764,906 (issued June 9, 1998).
- U.S. Patent No. 5,835,896 (issued Nov. 10, 1998).
- U.S. Patent No. 5,774,870 (issued June 30, 1998).
- U.S. Patent No. 5,724,424 (issued Mar. 3, 1998).
- U.S. Patent No. 5,838,790 (issued Nov. 17, 1998).
- U.S. Patent No. 5,809,242 (issued Sept. 15, 1998).
- U.S. Patent No. 5,794,210 (issued Aug. 11, 1998).
- U.S. Patent No. 5,948,061 (issued Sept. 7, 1999).
- U.S. Patent No. 5,794,207 (issued Aug. 11, 1998).
- U.S. Patent No. 5,838,906 (issued Nov. 17, 1998).
Original work titled “The Internet is for porn” is avaliable at avenueq.com website in RealMedia container format, but below you can watch another version done by World of Warcraft player. I can only speculate that this one was used and done without a proper permission or a license agreement from the owner of the Avenue Q show. But from the other hand, they could use fair use defence (parody) of course. Well, that’s the Internet.
I have to add that this post was inspired by the lecture of many websites that devoted its space to news about Michael Meurer’s and Jim Bessen’s book entitled “Do Patents Work?“, which will be published in 2008 and I await it much more then new Harry Potter’s book. I also recommend you to check the compillation made by Dennis Crouch on his website with regard to the mentioned book.
EPO’s case law
June 17th, 2007, Tomasz RychlickiThe fifth edition of the Case Law of the Boards of Appeal of the European Patent Office has been published. Over a period of 27 years the EPO’s Boards of Appeal have settled more than 21 000 cases, while a total of 85 decisions and opinions issued by the Enlarged Board of Appeal have helped clarify legal points of fundamental importance. This comprehensive report incorporates decisions up to the end of 2005, as well as the most important decisions issued in the first half of 2006.
The book, which is available in English, French or German, can be purchased via the EPO’s website at a price of EUR 42. It can be also downloaded in the electronic form from epo.org website, PDF file.
®, © and patents on tradition and culture
May 9th, 2007, Tomasz RychlickiYou probably know that the World Intellectual Property Organization is the place where the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) works. The Committee is devoted to establishing legal norms against misappropriation and misuse of traditional knowledge and folklore, and the intellectual property (IP) aspects of access to and benefit-sharing in genetic resources. Personally I’ve got a number of questions and reservations about this initiative. It is not the time and place to write about that in here, though. For those of you who got interested, there are some interesting articles at wipo.int website.
The whole idea of writing a post on this issue came into my mind after I’ve read the article at iht.com. Copyright protection for yoga excercises? Patents?! Well, on the other hand, in the U.S. copyright law there is the judgement in the case Open Source Yoga Unity v. Choudhury, 74 U.S.P.Q.2D (BNA) 1434. Let me quote a short excerpt.
The court readily acknowledges that this is a very unusual case. All the parties agree that yoga is an ancient physical practice, and that the individual asanas that comprise the Bikram yoga sequence have been in the public domain for centuries. On first impression, it thus seems inappropriate, and almost unbelievable, that a sequence of yoga positions could be any one person’s intellectual property.
However, what is at issue are two competing principles of copyright law. On the one hand, copyright law does not protect factual or functional information, or information that is already in the public domain. On the other hand, copyright law does extend protection to an arrangement of information in the public domain assembled in a sufficiently creative fashion. The question at hand is how to reconcile these two principles.
The judge didn’t explicitly state whether yoga excercises can be copyrighted. He didn’t rule out the possibility to give copyright protection to yoga excercises as well, though. If you would like to learn more, I invite you to read professor Pamela Samuelson’s draft article entitled “Why Copyright Law Excludes Systems and Processes From the Scope of Its Protection“, PDF file, forthcoming in 85 Texas Law Review, (2007).
The term of Intellectual property
February 15th, 2007, Tomasz RychlickiIf you were ever wondering about the origin of this a little bit misleading term of “intellectual property”, you probably did some Internet research. The most popular resource is wikipedia.org of course. It will give you some help in this matter. The term “intellectual property” was used for the first time in 1845, by Judge Charles L. Woodbury’s in Davoll v. Brown, 1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414, PDF file.
Only thus can ingenuity and perseverance be encouraged to exert themselves in this way usefully to the community; and only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.
For all of you who are interested in this subject matter I added a link to the full text of this judgment. The case discussed patent law issues. I also edited the wikipedia post. If anynone of you have a copy of A. Nion’s book entitled “Droit civils des auteurs, artistes et inventeurs” I would appreciate if you contact me.