Tonnerre Lombard
FFII’s coordinator for Switzerland
Amazon One-Click Patent invalidated
December 11th, 2007
After a long work in that area, the Foundation for a Free Information Infrastructure (FFII) has finally succeeded to get a court to invalidate Amazon’s One-Click Patent.
In the press release, the FFII representatives explain how the patent has been invalidated in two steps: first, the current claims were invalidated on the basis of lack of an inventive step, thus allowing Amazon to postulate new claims. However, these claims were dismissed as an infringement of Art. 123 EPC, revoking the patent in its entirety.
The entire debate is a clear sign that clarification of the EPC provisions would improve the situation of legal uncertainty which we’re currently suffering.
Germany wants stronger age verifications and bans on foreign providers
December 9th, 2007
The German Federal Court of Justice has decided in case Az. I ZR 102/05 that even stronger age verification mechanisms are required for providing access to adult content on the Internet. According to the Federal Court, the current practice of verification of ID card numbers and bank accounts are not sufficient, because any minor could gain access to this information easily.
The court proposes a verification process which involves the local postal delivery services. The deliverer is supposed to verify the age of the future web site user in an eye-to-eye process.
For the various providers of adult content which are not subject to German law, the Federal Court sees the Internet Service Providers in the responsibility to block the web sites in question.
Germany: Data Retention only until the end of the contract
December 9th, 2007
In case Az. 5 C314/06 against the Federal Ministry of Justice, the District Court of Berlin Central has decided that all retained data must be deleted by the end of the contract with the customer. According to the judges, retention of data even beyond the contract period is a violation of the right to informational self-determination.
OpenISO website launched
December 6th, 2007
Starting from today, there is a new standardization organization doing its work in this world. It is known under the name OpenISO, and is an organization created by Norbert Bollow (who some of us might remember from thankpoland.info).
OpenISO is an organization which set out to create truly open standards, not based on a reasonable and not discriminatory (RAND) basis. OpenISO wants all information required to implement its standards to be free, so everyone can freely develop competing poducts that implement its standards.
So far, OpenISO has released a number of standards in the network area (such as the telnet protocol), and is now aiming at ECMA 376 in a Call for Participation.
EU-EPLA: Zypries and her Technical Judges against the principles of Democracy
December 3rd, 2007
After the death of the European Patent Litigation Agreement (EPLA) as an international treaty, EU-EPLA has been introduced, promising the same undesirable litigation to only the European Union. The core of the proposal is the creation of an European Judge Academy and a specialized Patent Court under the pillar of the European Court of Justice (ECJ).
Brigitte Zypries, the German minister of Justice, wants this court not to be lead by regularly appointed judges, but by so-called technical experts. She promises better examination of the technical substance of the patents in corresponding processes. These technical experts are basically just another name for Patent Agents who have passed the Judge Academy. But what are those Patent Agents anyway?
The Patent Agents
A while ago, the European Patent Office (EPO) created a new class of working men called patent agents. These patent agents act as “technical experts” (Zypries definition) in lawsuits where a patent is challenged, and provide their expertise to the judge in trying to assess the validity of a given patent.
So what does it take to become a Patent Agent? The straightest way to find out is to apply as a Patent Agent to the European Patent Office. The response from the EPO is short and clear: all that is required is a degree in a field of Engineering. Law degrees are not required, since Patent Agents are currently only functioning as experts in court cases, and thus competence in legal questions is not a criterion.
This renders the whole idea quite absurd to send these patent professionals to a Judge Academy for some short period of time and to appoint them as judges who have to make legally valid decisions. A large number of legislations even require judges to have a law degree. A patent professional cannot be expected to make legally intelligent decisions.
Still no Division of Powers at EPO
But the problem in terms of legal issues goes even further. Currently, the EPO is one of the few international agencies which does not adhere at all to the principles of Division of Powers. Patents are granted by the EPO, which constitutes the legislative branch, and part of the enforcement process is also going through the EPO, which is the executive branch.
If EPO-educated Patent Agents are now entering the judicative branch, this means that this branch is also going to be under control of the European Patent Office. This means that the third pilar of a democratic society, the judicative branch, is going to be held by the same organization which holds the legislative and executive branch. This constitution of powers should be considered highly undemocratic, as the Division of Powers is one of the main principles of a democratic society.
There is no problem with Patent Agents as experts to judges which provide them with facts about the assessed validity of the patent in question (Well, it is still a bit problematic since these experts are coming from the same entity which originally granted the patent), but there is a serious problem if one organization gains total power over their entire legislative process.
What must also be considered is that the European Patent Office is not an EU institution, and as such not under democratic control by the European Parliament. This makes the entire constellation even more problematic, since there is basically no democratic body controlling the EPO.
Pseudo Decentralization
Another issue with the proposal is that it introduces some artificial decentralization by establishing local patent courts. The idea is that a number of countries share one patent court, which might give a decentralized impression at first glance but is not decentralized at all on the second. A real decentralized patent court would mean that every country has its own patent court which elects its own set of judges.
In the case of EU-EPLA however, the European Union provides the regional courts with the technical judges, whose identity and meaning has been outlined some paragraphs above. This means that the individual member countries have no control over their local courts.
Dividing and Conquering
The last problem is more on the economic side as well as a problem with harmonization. Currently, there is no clear regulation in the European Union on how to deal with processes where patents are challenged. Thus, there are two different ways to deal with such challenges.
The first way is rather straightforward and is deployed in countries like Sweden. The procedure is rather easy: if the validity of the patent is challenged, then it will have to be decided on during the same process, along with the applicability of the same patent. This means that the plaintiff has to balance the scope of his patent very well because if his claims are too broad, the patent will be invalidated, and if they are too narrow, the patent will simply not be applicable in the proceedings because it will not cover the committed infringement.
However, in Germany and some other countries, a different procedure is in place. This procedure defines that a second process is created, potentially even at a different court. This means that potentially a different judge will be handling the patent validity case. This again means that the plaintiff could assume a very narrow set of claims for the patent validity case, while a very broad set of claims can be used in the applicability question in order to have a very broad infringement of the patent. This is only possible because the two cases are disjunctive.
This is just one more case of harmonization with the hammer. There are clear economic advantages of the first procedure, but nevertheless the second procedure is supposed to be harmonization but without any proper discussion of the issues. With all these problems, it is clear that this proposal is not in the best interest of the member states to accept this proposal. It is desirable that these issues are cleared up before the proposal can be accepted or rejected. Once there is a proposal which adheres to the democratic principles, a pan-european patent agreement is certainly warmly welcome.
IPRED2: A sign of lack of harmonization inside the EU?
December 3rd, 2007
History of IPRED2
Back in 2004, the European Commission announced that, following the Intellectual Property Rights Enforcement Directive part 1 (IPRED1), a second part would be released to refine the measures as appropriate. This second part, IPRED2, would be released once IPRED1 would be implemented in the entirety of Europe, and once the experiences of the impact of IPRED1 would have been gathered.
But it appears that the Commission got impatient after this, and IPRED2 was already drafted early in 2005. However, objections had been raised in front of the European Court of Justice (ECJ) as to whether the European Commission had the competence at all to create criminal legislation for the entirety of the European Union. The ECJ decided that the Commission did not have this competence, and sent several legal documents back to the drafting table, including the IPRED2 directive proposal.
Despite the fact that IPRED1 still was not implemented in all member states and no experience had been gathered, the Commission started anew in 2006 with a new IPRED2 draft. This draft is presented to the European Parliament by Rapporteur Nicola Zingaretti, and has passed the European Council as well as the parliamentary expert gremia JURI, ITRE and LIBE and the plenary vote.
However, the law is not final yet. Due to express requests from parliamentarians, the release of the law in the official journal of the European Union, which would make it legally binding, has been postponed, in order to allow the issues which have been raised to be discussed.
Issues with IPRED2
The main problem with IPRED2 is that it is formulated in a way too broad fashion. During the conciliation phase, the legal proposal has already been improved in some way, but the problems remain: IPRED2 imposes criminal sanctions on undisclosed infringements on intellectual property rights. The problems with this have been outlined in a FFII paper called “To Lisbon or to Prison” by the FFII.
There is also a detailed analysis of IPRED2 from Vrijschrift.
A sign of lack of harmonization?
IPRED2 is also often referred to as a piece of “Italo-legislation”. This is of course not meant as an insult, but it is a consequence from the fact that the Italian legal system works differently from, for example, the German legal system.
In Italy, legislation is always formulated in a very excessive way and then the jurisdiction sorts out the problems with their judgment on the applicability of the legislation. However, in Germany, what is written in law is always applicable and will be applied, so the impact of such broad formulations will be a lot higher in some European countries than in others.
The only possible interpretation for this problem is that the European Union is not ready yet for legislation of such immense importance. Before criminal sanctions can be harmonized, there must be a common basis for interpretation of the legislation.
OOXML: an obstacle to accessibility?
November 30th, 2007
The Adaptive Technology Resource Center (ATRS) released a list of issues which have been raised in their analysis of the OOXML specification with regard to accessibility.
According to the paper, the standard itself contains a number of questionable regulations which might pose a threat to the ability of the programmer to make the implementing software accessible to disabled people. The main point of criticism is that some proprietary formats have been used in areas where free W3C standards are already in existence and covering the same functionality. However, while the W3C standards have been developed with accessibility in mind, the notion of accessibility is apparently missing entirely from the OOXML standard.
As an example, some of the specifications for insertion of images do not allow for image formats which permit access to disabled users. The ATRS then goes on to demand the revision of these issues. A long list of references to objections regarding accessibility and related issues is referenced at the end of the paper.
Bale (Canton) switches to Linux, PostgreSQL
November 30th, 2007
The department of Military, Police and Justice (JPMD) of Bale (Canton, BL) in Switzerland is after the canton Turgovie (TG) the second cantonal administration to switch to Free Software solutions.
The Central Service for Informatics (ZID) of Bale (Canton), which is responsible for the migration, wants to switch to SuSE Linux Enterprise Server version 10 and PostgreSQL version 8.2. The JPMD is thereby considered as a test platform for the rest of the cantonal administration, which is going to follow the example if considered appropriate.
Both cantons are using the software Fabasoft eGov Suite 7.0, a public services request tracking system not heavily unlike RT but including contact data and document management, which is usable for both Windows and Linux. The software also offers a standardized interface for exchange of data with other public service providers.
For more detailed information, please read the Linuxkommunale article on how Bale (Canton) switches to Free Software.
Gnome goes Mono and jumps into the Patent Trap
November 23rd, 2007
A couple of years back, the Gnome desktop environment developers have taken the decision to reengineer the Gnome desktop around the Mono framework. This decision has mainly been influenced by the main Mono developer Miguel de Icaza, who is a very vocal employee of Novell. Recent developments thus request us to recall the pieces of the puzzle in order to understand what might really be going on.
Reasonable doubt has been rased to whether or not Mono can actually be deployed freely. Mono itself is basically a free and halfway portable implementation of the .NET framework developed by Microsoft. However, the .NET framework itself is subject to a large amount of software patents, which cover the concepts used within the .NET framework. Since these are concepts and not individual implementations (which are covered by Copyright, which is certainly untouched by a reimplementation), they most likely also apply to the Mono framework.
To Novell itself, Icazas employer, this is not a significant problem, since Novell has closed a patent deal with Microsoft not so long ago which undoubtedly also covers the .NET patents. However, all conventional Linux and Open Source vendors would not be able to distribute Gnome as it would be covered by the .NET patents Microsoft owns.
This amounts to an easy way for Novell to effectively lock in Gnome users to their own products. Gnome would no longer be a real Free Software project, even though the code remains freely available. It is expected that this type of patent issues will be raised many times, causing severe damage to the economy with the time. The only way of mitigation will be a transatlantic patent agreement which clarifies Art. 52 EPC: Software is not patentable.
US Aid offering cheap monopolist products to the third world
November 22nd, 2007
The U.S. Agency for International Development (US Aid) is offering cheap access to hardware and training curriculae for Microsoft operating systems.
The project in question is a US$236’000.- project to unbind the «Unlimited Potential» of the industries of Sri Lanka which could be enhanced with information technology. It will be executed by Info Share, an NGO which develops IT solutions for NGOs, and Unlimited Potential, a Microsoft welfare organization, whose main purpose is to spread Microsoft in the developing world.