Friday fantasies

Poor Alice thought that patent
protection was on the cards ...

Hard times for software patents? Yesterday the US Supreme Court handed down its keenly-awaited judgment in Alice Corp. v CLS Bank International (Ruling 13-298). This Kat hasn't yet had time to digest his lunch the reasoning, but he has just received this hot-off-the-press note on the ruling, "Alice v CLS Bank: Are Business Methods Mere Abstract Ideas in U.S. Patent Law?", by Katfriend Susan Keston (HGF). As Susan explains, the Alice patents, directed to a computer-implemented financial settlement system, were held to be excluded from patentability on the basis that their subject matter was no more than an abstract idea: this exclusion can't be avoided by implementing the business method on computer hardware. While the scope of the decision is sufficiently narrow to have little impact on software patent-eligibility where there is a genuine underlying technical innovation, patents for business methods in the US are likely to be more difficult to obtain and enforce following this decision, bringing the US into closer alignment with European patent law. Susan concludes:

"... Alice v CLS Bank ... could give rise to a restriction on grant and enforcement of business method patents. This would be good news to those calling for a drive to improve patent quality to reduce the likelihood of unduly broad patents threatening innovation. The fact that the decision does not preclude software patents in general, but is narrowly focused on business methods leaves room for truly technologically innovative software to remain patent-eligible. Thus new and non-obvious high level functionality implemented in software products can continue to be safeguarded by the patent system against unwanted copying by competitors. This should encourage continuing corporate investment in software innovation".

This blog may well carry a further piece or two on this case, which looks likely to generate a considerable volume of interest.

These balloons are powered only by the hot air
generated by EU politicians debating the unitary
patent -- but how long will they stay up ...?

Like most all of us, Katfriend Ingve Stjerna has always found it quite burdensome to follow the Parliamentary discussions on Europe's forthcoming unitary patent and to get an idea about what was discussed in its various meetings, since there are no publicly accessible transcripts of them.  If you want to know what was said, you're forced to rely on the Parliament TV broadcasts and recordings in the Parliament’s media archive (if and when they are available). Ingve has therefore done a wonderful thing: he has translated into both German and English all the speeches and statements from the TV recordings of the JURI Committee and the Plenary meetings, compiling monolingual verbatim transcripts from them (this is what he calls the “unitary verbatim protocol”). Here (to read online or download) is a file containing the English version of all the public discussions that were held by the European Parliament and its Legal Affairs Committee on the unitary patent between December 2010 and the conclusion of the legislative process in December 2012.  The German version, as well as a file containing transcripts of the statements in their original languages, can be found on Ingve's website here.


Young, enthusiastic IP lawyer in need of a good home.  This Kat has recently received an email from a young friend of his, a fellow blogger to boot, who writes:

Every firm should have one

"I am an LLB (Hons) and a LLM graduate. Having moved back to the United Kingdom, I'd like to start my career and gain experience within the field prior to starting the LPC, either through a training contract or independently. I have been engaged with IP law for several years and would like to practise in the area if possible; however I am very interested in commercial law as well and would welcome the possibility of working for a firm or even in-house to advance myself and my career. I would be more than delighted to gain that experience either in London or Southern England preferably but, should the right opportunity arise, I would gladly work anywhere in the UK. I am hard-working, intelligent and love the legal field, and would give anyone the perfect person to add to their legal team. I am interested in any positions, even entry-level, which would allow me to utilize my wide array of skills and knowledge." 

If you think that you have a space for this engaging youngster, please email the IPKat at theipkat@gmail.com and he will put you in touch.

Around the weblogs.  The IP Finance weblog carries another cracking post from fellow Kat Neil, this time on how far we can realistically rely on forward patent citations, as well as a perspective offered by Mike Mireles on what was once the Washington Redskins but which he discreetly refers to as the Washington R_____s.   The jiplp weblog carries a forthcoming Current Intelligence note by David Stone and William Corbett (Simmons & Simmons) on the Trunki design case, and Class 46 features a salutary warning from former guest Kat Laetitia Lagarde on why, when it comes to protected denominations of origin and geographical indicators in Europe, it's best not to tangle with Gorgonzola -- even if your name is Gorgo Capra. Finally, there's a lengthy analysis by David Musker of Kohler Mira v Bristan, a rare case on pecuniary and non-pecuniary relief for design infringement, on Class 99.


Lex specialis.  "Lex Specialis(sima): Videogames and Technological Protection Measures in EU Copyright Law" is the title of an article by Tito Rendas (Católica Global School of Law, Catholic University of Portugal) which is shortly to be published in the European Intellectual Property Review. Tito was very excited to share the news with readers of this weblog, who are perhaps more comfortable with Latin words like specialis than they are with English words like autopoietic. Anyway, since abstracts are quite the vogue this week, here's Tito's:

Another special Lex

Article 1(2)(a) of the InfoSoc Directive and the CJEU’s decision in UsedSoft (C-128/11) make clear that the Software Directive is a lex specialis in relation to the former. In Grund (C-458/13), the question arose as to which of the two directives governs the circumvention and distribution of devices to circumvent technological protection measures used in “hybrid products” – works containing computer programs as well as multiple copyrighted audiovisual elements – such as videogames. In its judgment in Nintendo v PC Box (C-355/12), the CJEU, despite the referral made by the Bundesgerichtshof in Grund, briefly addressed this question. Following Advocate General Sharpston’s opinion, the Court stated that the InfoSoc Directive, which confers a more generous protection to TPMs than the Software Directive, should govern TPMs used in videogames. The article critically examines Advocate General Sharpston’s and the CJEU’s (implicit) understanding of the lex specialis doctrine. It argues that a more nuanced understanding of the doctrine is needed in order to aptly answer the question referred in Grund. 

You can read this article without having to find an EIPR since it has been uploaded on to SSRN, here.