Intellectual Property and Sustainable Development
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1 Intellectual Property and Sustainable Development Dr Peter Meier-Beck Presiding Judge, Bundesgerichtshof (Federal Court of Justice) Honorary Professor, Heinrich-Heine-Universität Düsseldorf SHANGHAI IP FORUM Shanghai 4 December 2013
2 Topics New Patent Law for New Technologies? The Concept of Technical Invention The Concept of Disclosure Scope of Patent Protection Conclusions Intellectual Property and Sustainable Development 2
3 Intellectual Property and Sustainable Development 3 I. New Patent Law for New Technologies?
4 New Concept of Patent Law? According to European and German patent law, there are only two criteria which an invention has to meet for patent protection: patentability of its subject-matter sufficient disclosure. Patentable is an invention (i.e. a technical teaching) which is new, involves an inventive step, and is susceptible of industrial application. Intellectual Property and Sustainable Development 4
5 New Concept of Patent Law? To promote sustainable development facilitating access to patent protection or impeding patent protection? The purpose of patent protection promoting technical innovation and progress by awarding the innovator in a way that does not harm competition and provides further incentives for further innovations. Intellectual Property and Sustainable Development 5
6 New Concept of Patent Law? Does the old concept fit? More patents versus more free competition? Patent Law versus Competition Law? Patent Law as a means of controlling competition Intellectual Property and Sustainable Development 6
7 New Concept of Patent Law? What competition controlling function of patent law does mean: Defining the legal instruments in accordance with that function What competition controlling function of patent law does not mean: Applying the legal instruments in accordance with that function Granting a patent if the invention represents a valuable contribution to technical, economic, and social advance. Intellectual Property and Sustainable Development 7
8 Intellectual Property and Sustainable Development 8 II. The Concept of Technical Invention
9 Invention According to Art. 52(2) EPC the following in particular shall not be regarded as inventions within the meaning of Art. 52(1) EPC: discoveries, scientific theories and mathematical methods; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; presentations of information. Intellectual Property and Sustainable Development 9
10 Invention Art. 52(2) EPC shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application relates to such subjectmatter or activities as such. The provision does not define which subjectmatters are not "patent eligible". Intellectual Property and Sustainable Development 10
11 Invention A computer implemented invention relates to a technical teaching if the invention is embedded in a technical device or process. Although relating to a technical teaching, a computer programme shall not be regarded as an invention if no specific technical problem is solved by technical means (Art. 52(2c) EPC). Intellectual Property and Sustainable Development 11 11
12 Novelty Novelty requires a new technical teaching. A discovery as such does not establish a new technical teaching. But an invention may be based on the discovery of a natural (biological or physical) mechanism. The discovery must not be disregarded because it is not "patent eligible". The application of the discovery as such may be obvious or a state of the art method. Intellectual Property and Sustainable Development 12 12
13 Novelty An invention shall be considered to be new if it does not form part of the state of the art (Art. 54(1) EPC). The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application (Art. 54(2) EPC). Intellectual Property and Sustainable Development 13 13
14 Novelty Paragraphs 2 and 3 shall not exclude the patentability of any substance or composition, comprised in the state of the art, for use in a method referred to in Article 53(c), provided that its use for any such method is not comprised in the state of the art (Art. 54(4) EPC). Intellectual Property and Sustainable Development 14 14
15 Novelty Paragraphs 2 and 3 shall also not exclude the patentability of any substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article 53(c), provided that such use is not comprised in the state of the art (Art. 54(5) EPC). Intellectual Property and Sustainable Development 15 15
16 Novelty Caveat ever-greening patents. But no specific provisions necessary or even useful to avoid ever-greening. Intellectual Property and Sustainable Development 16 16
17 Inventive Step Patentability also requires an inventive step. But: What must be examined is not the inventive step but obviousness. If there is no evidence for obviousness an invention shall be considered as involving an inventive step. Intellectual Property and Sustainable Development 17 17
18 Inventive Step The ability of a skilled person to find the solution to the problem underlying the invention is a necessary but not sufficient condition of obviousness. What is decisive is whether the inventor's considerations were suggested or motivated by prior art and his or her general knowledge (cf. US TSM test). Intellectual Property and Sustainable Development 18 18
19 Inventive Step Suggestion cannot be substituted by the mere absence of obstacles. But: An explicit pointer to the solution in a piece of prior art is not necessary. Implicit hints may be sufficient. Non-technical pre-setting may influence the technical problem. This is of special importance when inventiveness of computer implemented inventions is to be considered. Intellectual Property and Sustainable Development 19 19
20 III. The Concept of Disclosure Intellectual Property and Sustainable Development 20
21 Disclosure The European patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 European Patent Convention). Intellectual Property and Sustainable Development 21
22 Disclosure The disclosure of a document is its overall content, as read and understood by a person skilled in the art. What is disclosed by a document must always be determined in the same way, irrespective of the legal context (i.e. examination of novelty, priority right, enablement etc.). Intellectual Property and Sustainable Development 22 22
23 Disclosure The disclosure has to be direct and unambiguous. Subject-matter which a skilled person is enabled to deduce from the application by his or her general knowledge is not directly and unambiguously disclosed. Intellectual Property and Sustainable Development 23 23
24 Extent of disclosure Reach of disclosure and extent of patent claims need not be identical. But there must be a fair balance between the disclosure and the breadth of the claims. The claims may go beyond the disclosed embodiments of the invention but must not go beyond the disclosed invention. Intellectual Property and Sustainable Development 24
25 IV. Scope of Protection Intellectual Property and Sustainable Development 25
26 Scope of Protection The extent of the protection conferred by a European patent shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims (Art. 69 EPC). Intellectual Property and Sustainable Development 26 26
27 Scope of Protection (Article 69) is to be interpreted as defining a position which combines a fair protection for the patent proprietor with a reasonable degree of legal certainty for third parties (Art. 1 3rd sentence of the Protocol on the interpretation of Art. 69 EPC). For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is equivalent to an element specified in the claims (Art. 2 of the Protocol). Intellectual Property and Sustainable Development 27 27
28 Scope of Protection Determining the scope of patent protection involves striking the balance between the conflicting interests mentioned by the Protocol. It is the task of the courts to find criteria for a determination of the scope of protection which reconcile both demands. A suitable doctrine of equivalence cannot be restricted to the meaning of the claim (read in context) but is has to be based on and orientated toward this meaning. Intellectual Property and Sustainable Development 28 28
29 Scope of Protection Therefore, the conditions of equivalent means are as follows: Same technical effect Obviousness to a skilled person Claim-based considerations. These conditions are defined in more detail in the three Schneidmesser questions (BGH, 12 March 2002, 150 BGHZ 149 = ENPR 2003, 309 = 33 IIC 873 Schneidmesser I (Cutting Blade I). Intellectual Property and Sustainable Development 29 29
30 V. Conclusions Intellectual Property and Sustainable Development 30
31 Conclusions Competition can be controlled by several means Technology-specific legislation Subsidies and Taxes Patent Law Different competition controlling instruments use different means of controlling Legislative, political and financial incentives may be technology-specific means Patent law means should be universal Intellectual Property and Sustainable Development 31 31
32 Conclusions Exclusivity and freedom of competition are well balanced if technical solutions of technical problems are "patent eligible", protected technical solution (= invention = technical teaching) is new and not obvious to a skilled person, protected technical solution is sufficiently disclosed to be carried out by a skilled person, extent of patent protection is assessed in accordance with the invention as claimed. Intellectual Property and Sustainable Development 32 32
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