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Analysis of the IP Enforcement Directive Report

My intent initially was to publish this in January, but as the preceding posts make clear, there was considerable digging to be done to get a better picture of the context. In what follows, I begin with some comments with regard to shaky basis for the enforcement project, and then move on to a more detailed review of the Commission’s report.

1. The most noteworthy element of the Commission’s Report on the IP Enforcement Directive is what is absent. The Directive itself mandated the review, under Article 18, titled ‘Assessment’:

Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the
implementation of this Directive.

On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society (my emphasis).

Those interested in reading about ‘impact on innovation and the development of the information society’ will be disappointed, as such a section does not exist. Late transposition by several member states is offered as explanation for its absence. Yet this tardiness was no obstacle to a commentary on the efficacy of the Directive’s enforcement measures. A strange anomaly, but easily explained:

“… in the context of the European Observatory on Counterfeiting and Piracy, DG Internal Market and Services works with experts from the private sector to assess the application of the Directive and to complete the information received from the Member States.”
Commission Staff Working Document, p.5 (hereinafter CSWD)

So we’re in good hands. Elsewhere the Report relies on work commissioned by copyright industry players in support of its assertions, such as that produced by Tera consultants, whose methodology was questioned by the Social Sciences Research Network (SSRN).
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March 28, 2011 Posted by | /, copyright, enforcement, european directives, european union, intellectual property, ipred, patent | 1 Comment

Il Badalone; Brunnelleschi and an Early Patent

Normal service on boring enforcement related matters will resume later today, in the meantilme a little history. The initial draft stated the Badalone patent was the world’s first, this turns out to be incorrect, in a variety of ways! On a purely formal level, the first patent was granted to Francisco Petri in 1416 for the fulling of wool and was awarded in Venice.
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Having been in Florence for the last months, I discovered that it was the site of what was apparently the world’s first patents: a boat design created in 1421 by the builder of the Duomo’s famous cuploa, Filippo Brunelleschi, and christened “Il Badalone”. We don’t have the detail of the design, but thee is an image by Taccola in his book De Ingenis.

Il Badalone from Taccola's De ingenis

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March 9, 2011 Posted by | /, history, italy, patent | 3 Comments

Windsurfing – the Sport of Grassroots Innovation?

At the moment I’m reading Eric Von Hippel’s “Democratizing Innovation” and was delighted to discover that his opening example of user-driven innovation relates to windsurfing, because I’m rather partial to a blast on the water myself. He describes how in 1978 an informal user group in Hawai reduced the otherwise painful process of jumping on boards by attaching footstraps so that (i) you could control the board better and attain more speed (ii) reduce injuries by staying with your board rather than wiping out.

The funny thing is that there had previously been a patent infringement case fought around windsurfing in Britain, as someone tried to claim the board plus rig as their own invention. During the court case, someone was able to dig up a photo of a DIY windsurfing board sailed somewhere in Wales, where enough of the basic idea claimed had already been experimented As the photo had been published it was prior art which made the resto of the invention obvious, defeating the patent claim. So there it is, windsurfing, not only cool but also the sport of innovation from below!

For the curious the windsurfing case forms the basis for the test of non-obviousness and can be found:

Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd [1985] R.P.C. 59

March 16, 2007 Posted by | /, patent, social cooperation | Leave a comment

Forum Shifting and the Research & Development Question

Back in June 2004 Jamie Love (Consumer Project on technology) and Tim Hubbard drafted a proposal for alternative framework for the financing of research and development. They suggested that it could lead to a treaty which would offer an alternative to the expansionist intellectual property policies advanced in documents like TRIPS.

Ultimately the purpose of the R&D treaty is to redefine the question which IP law pretends to answer: how do you guarantee a level of innovation whilst being able to grant access to its benefits. The neo-classical IP argument is of course: create a monopoly and the rational profit-seeking. The R&D treaty’s answer is: make everyone pay something (but relate that sum to the ability to pay), give those who pay control over the allocation of the financing (so sub-saharan countries finance the development of cures to sub-saharan diseases), take away the monopoly and maximize access – whilst maintaining quality – by creating a market in production techniques.

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December 18, 2006 Posted by | patent, social cooperation, trade | 1 Comment

The Public is the Problem!

Given that I’ve never been shy about voicing criticisms of intellectual property, is it not paradoxical that my favourite legal event of the year is the Fordham International IP Conference? Organized as it is by self-declared ‘high-protectionist’ Hugh Hansen, an iconoclastic and entertaining fellow notwithstanding his copyright convictions, it provides an annual snapshot of the state of the IP world as seen mostly by those who make money out of it. Today, whilst looking over some documents related to the European Patent Litigation Agreement (EPLA) I was reminded of some vintage remarks proclaimed there this year.

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November 29, 2006 Posted by | european union, law, patent | Leave a comment