IP - What's the game ?

All quiet on the Western Front - New Rules for Employee Inventions in France

2011-01-05T10:57:00.000+01:00

Many of you may already know that in France, we take things seriously when it comes to paying employee inventors for their contributions to increasing the wealth of their employers intangible assets. Yes, we have laws, decrees, ordinances, and case law to weed out those bad employers who, dare I mention it, still consider that an employee gets all the just rewards they deserve from the salary that their employers so generously (or not so generously) pay them for inventing. Yet somehow, nobody really seemed to be satisfied with the current trend of having to pay an employee inventor an extra sum corresponding to the case law derived percentage of the profits that the (direct or indirect) exploitation of an invention might procure. As mentioned in a previous post, the current state of affairs in France was / is, to put it simply, a bit of a mess. Thus it came to pass that discussions ensued as to how to best evolve current legislation into something seen to be more in line with today's expectations of a modern employee / employer relationship in matters patent related.

The usual suspects were involved :
- the unions, and left-wing political parties, disgruntled as ever at anything that might be considered loss of privileges for the working masses, battled for more recognition from within the law itself;
- the employers confederations, MEDEF and CGPME to name but two, as usual, spouting over-zealous government intervention at any hint of new legislation that would force companies into a legislative prison from which there would be no escape;
- the government, under pressure to be seen to foster innovation and provide a suitable environment for industry to prosper, and for France to be said to be leading the way once again at the top of the R&D league table, in which it has slipped to somewhere between 10th and 15th place worldwide (depending on the source, one of which is given here).

Out of this thorny battle of ideologies, political bravado, wit and ideas has come the following text, which has just been passed by the French Senate, and is now awaiting a second reading by the French Assembly :

Article L.611-7 : If the inventor is an employee, the right to the industrial property title, unless otherwise specified more favorably towards the employee through contractual obligations, is defined hereafter :

1) Employee inventions shall be classed as "work" ("service") inventions or "non-work" ("non-service") inventions.

2) Work inventions shall be those inventions made by the employee :
- either during execution of the employee's work contract which contains a mission to invent corresponding to the employee's effective functions ;
- or during execution of the employee's functions ;
- or falling within the activities of the business of the employer ;
- or through knowledge or use of techniques or means specific to the business of the employer, or data obtained by the latter.

Work inventions shall belong to the employer.

3) All other inventions shall be deemed "non-work" inventions and belong to the employee.

4) Work inventions, as defined in paragraph 2, will give rise, if patentable, to the payment of supplementary remuneration to the benefit of the employee, author of the invention.

Collective bargaining agreements, company agreements and individual work contracts will determine the conditions under which the payment of such supplementary remuneration will occur.

(In the elaboration, construction, drafting, negotiation, interpretation of these agreements or contracts) - unfortunately this first bit is missing from the current proposal, hence the author's brackets - Due consideration will be made with regard to :

- the initial input of the employer and employee ;

- the industrial and commercial utility of the invention.

5) When an invention is made through the input of several employees, the supplementary remuneration is determined as a function of the respective contribution of each one to the invention. Unless otherwise stipulated, the share of supplementary remuneration shall be equally distributed among the employees. The employer shall inform the inventors of the share that each of them will receive.

6) An employee who is the author of an invention will inform his/her employer thereof, who will recognise such through the means and deadlines determined by the regulations.

The employee and employer will communicate to each other all useful information necessary to the invention in question. They will refrain from divulging anything likely to compromise all or part of the exercise of the rights conferred by the present Book (Editor's comment - Livre VI, or Book 6 of the French Intellectual Property Code dealing with inventions).

Any agreement between the employee and its employer relating to an employee invention must be made in writing, failing which it will be null and void.

7) The modalities of application of the present article are laid down in a Decree of the State Council.

8) The stipulations of the present article are also applicable to agents of the State, public bodies, and any other moral persons falling under public law, according to the modalities laid down n a Decree of the State Council.

Comment
So where is the revolution / evolution in all of the above ? Well, there isn't a lot, funnily enough. With a conservative government having a fairly substantial majority in parliament, one can notice the deft hand of the business sector lobby groups in the way the law has been reformulated in rather wishy-washy terms. The biggest noticeable difference is the reduction in the number of groups of employee inventions from 3 down to 2, a simplification which I personally feel is more the result of having to address the underlying fiscal and national insurance contribution system problems that were proeminent in the current regime of inventions that could be "acquired by" or "attributed to" the employer. This truly was a nightmare for everyone, both employee and employer alike, not to mention HR, accounts and auditors, and only added confusion to an area of employee / employer relations that are at the best permanently strained in France. The one fell swoop definition of a "service invention" or "work invention" now allows everyone to avoid the issue completely, much to the chagrin, no doubt, of the collecting agencies who were starting to rub their hands in glee at all the prospective ways of grabbing yet more money from companies and/or employees who happened to have the misfortune to invent something of use to their employer without being asked to do so.

Something this proposal has not done is to avoid the confusion that springs to mind when one reads the words "author of an invention". The French IP Code, being a bundle of disparate of existing laws when it was codified in 1990, really could do with a clean up here to avoid the mixing of genres and maintaining a harmonised approach to IP across the board. However, as usual, it appears that no one has seen fit to do so, most probably because terms like "author" in relation to an invention are potentially too hot a potato for any government to touch given that it probably goes back to the first Napoleonic codes from 1844 or thereabouts.

Ultimately, the proposed text is still wishy-washy : it carefully avoids making things more difficult for businesses by imposing set conditions for remuneration of employee inventions, and I would even say is positively pro-business in the amalgamation of the current "invention de mission" and "invention hors mission attribuable" categories of inventions. At least with the current system, employees had some kind of bargaining chip, but the practical realities of these latter situations were not easy to handle for anyone, and in a lot of cases could lead to a state of stalemate between the employer and the employee where the invention could not be used by the employer without paying the "fair price" to the employee, and where the employee could not, or only with great difficulty, conceive of exploiting an invention for which the employer was not prepared to pay, through other channels which were likely to put him / her at risk of breach of employment contract with the employer. To this extent then, the simplification into just 2 categories is to be praised.

Another pointer to business lobbying can be seen in the criteria to be taken into account for evaluating the supplementary remuneration - the majority of these criteria seem to lie squarely within the sphere of the how the employer will see and appreciate the invention, the only place where the employee gets a say is with respect to his / her own contribution, and even that will be biased by the employer. Based on personal experience within an industrial corporation, I know that pressure, arguments, etc, will be brought to bear on the employee to accept something less than what he / she feels is the true worth or contribution of their invention to the company.

All in all, I get an overall feeling of dissatisfaction with the proposed text, like a fizzled out firework that has failed to go off, or rather shoot spectacularly into the sky and then just sputter, but that wouldn't be the first time with regard to the French legislation making process - having been here for 18 years now, I'm rather getting used to it..."same old, same old..."

As for the rest, well I guess we'll just have to wait and see how things evolve on the ground, assuming of course, the proposal is voted at second reading in its current state, but for me, this text does not attain the objective of legal security for the stakeholders, nor does it reach for the stars as it was originally billed to do. So when is the attack coming ? Not yet - all quiet on the western front, I'm afraid.

R&D Tax Credits - Time for a Rethink?

2010-07-07T12:27:00.000+02:00

One of the roles of the French Senate is to work behind the scenes of government to check whether spending is all as it should be. To this end, numerous committees are created with the aim of investigating whether government led and implemented incentives are of benefit to the country as a whole, and in particular, whether they are costing the state too much - this is particularly so in these times of self-proclaimed austerity.

To whit, the finance committee of the French Senate released a report last month about the impact of incentives introduced in France's 2008 finance bill to stimulate innovation in the French economy by granting massive tax credits to companies that invested in innovation. A summary of the report in French can be found here, with a link on that page to the actual presentation made to the Senate by the committee's rapporteur, and the report itself.

The tax credits allowed by the finance bill of 2008 were pretty substantial, 30% on up to 100 million Euros expenditure per entity could be offset in tax credits for costs in associated R&D, including costs related to IP. Naturally, this has proven to be a fairly important incentive, not only for SMEs, but also for those larger corporations who just couldn't wait to claim credits left, right and center, including a tendency for holding groups to exploit a loophole that allowed its subsidiaries to claim up to the limit, allowing them a comfortable little tax nest-egg. Whilst the report acknowledges the positive effect that these measures have had on the economy as a whole, with an alleged reduction in job losses, improved competitiveness, and stimulation of research and development, it does also underline that the cost to the state has increased fairly significantly, escalating from an approximate 1.7 million Euros to 4.1 million Euros in the space of a year !

As the report outlines, despite the success, there has been a (quite logical) tendency for large corporate groups to optimise their taxation via the innovation tax credits system. The current system provides for a cap of 5% of all R&D costs on declared spending over 100 million Euros, and large corporations naturally often exceed the 100 million mark. The upshot of this is that large corporations have created subsidiaries in order to split out amongst their respective subsidiaries the R&D expenditure burden, and thus stay under the 100 million limit per entity, thereby enabling the more interesting 30% rate of tax credit to apply. The report sees this as a way for large corporations to escape from paying their dues to the state, thereby adding to the state's massive budgetary deficit.

In order to counteract this undesired effect on the general health of the state's finances, the report has suggested that the government, in its next finance legislation, restrict the expenditure claimable to 100 million Euros per holding group. The system as a whole, would however be maintained, the objective of the government being to bring the country up to a level of investment in R&D of 3% of GNP within the space of 3 years. At present, that rate has only evolved slowly, from 2.06% in 2007 to 2.07% in 2008, so it looks like the government still has its work cut out if it hopes to attain the 3% mark.

On the upside, the current measures have been seen to be sufficiently interesting to attract foreign investment and the creation of 41 new R&D facilities on French soil in 2009, a leap of 64% compared to the figures of 2008.

The unfortunate position for the present government and its president is one of having made revitalising the economy via investment in R&D a political warhorse, yet finding itself in a tight spot financially, with the need to fill the state's depleted (and increasingly blackhole-like) coffers. It will be interesting to see how the government's future finance legislation will deal with this topic, which will have direct repercussions on jobs and viability of the R&D sector of the French economy.

French Trademark OLF - under the covers

2010-05-21T12:36:00.000+02:00

This is a follow-on from my previous posting about trying to file a French trademark online via the INPI web site.

When you have a problem with the site, you can contact the INPI, via e-mail (free), or phone (pay per minute, but judging by the number it only works if you are ringing from France). Anyway, as I had complained via e-mail as to why the INPI's system seemed incapable of leading me to the promised land of electronic filing nirvana, despite my having all the required software installed, I was contacted by the INPI "helpdesk" (and I use that term very lightly), who were of absolutely no use whatsoever...below is a transcript of an excerpt of my conversation with them:

Helpdesk : you don't have the correct version of Java installed, and you don't have Adobe Acrobat Reader.

Me : errm, yes actually, I do have them because I listed them in my e-mail to you that provoked this phone call, I might add that Adobe Reader opens automatically from the browser to display the filled-out form.

Helpdesk : you need the latest version of those software products.

Me : OK, please tell me which versions then ? It says nothing on your help page that any particular version of this or that software is required.

Helpdesk : you don't have the right version of Java, you need the latest versions of all of the required software

Me : Please tell me precisely which versions then.

Helpdesk : Sir, you are being difficult, why don't you just file your application from another machine that does have the correct versions, or file by post.

What this conversation tells me is that (1) the INPI has a log of each connection you make to their system because they knew exactly at what time I had connected, (2) the helpdesk don't read the detail of what you send them, and (3) the person you get at the end of the line hasn't got a clue what the requirements of the system really are. When I asked to talk to someone responsible for IT matters, I was told I was already speaking to such a person !!! Oh dear :-/

Not content to let matters remain in that situation, I wrote back to the INPI, via e-mail with the following information, taken from the INPI web page :

4.2 Required configuration for signing. How to check ?
Click on the icon to the right of the title bar. A window opens and will check, in the following order :
* the presence of Acrobat Reader
* the presence of a Sun JVM
* the type and version number of your browser
* the version of your operating system (windows, mac, …)
If your computer does not support the use of the signing tool, (generation and installation of the certificate, signing the form), a message will invite your to download and install the required updates (See point §4.3).

This is what I have on my computer :

1) Acrobat Reader : version 9.3.2 dated 04/01/2010

2) a JVM : version 1.6.0_20, supplied by Sun

3) a browser : Firefox 3.5.9

4) operating system : Linux Ubuntu 9.10, generic kernel 2.6

For the sake of completeness, I thought I'd run some tests to see whether any of the other browsers currently available on Linux would fare any better. The results are posted below :

Each browser was tested, prior to accessing the INPI web site, for its capacity to load a functional JVM via the official Sun test page, all of them passed, including Google Chrome :

http://java.com/fr/download/help/testvm.xml

1) Firefox 3.5

Acrobat	NaN
Java	Sun Microsystems Inc. Version : 1.6.0_20
Système d'exploitation	Linux
Navigateur	Accepté

2) Opera 10.10

Acrobat NaN
Java Sun Microsystems Inc. Version : 1.6.0_20
Système d'exploitation Linux
Navigateur Accepté

3) Google Chrome 5.0.375

Acrobat	N/A
Java	NoJVM Version : NoJVM
Système d'exploitation	NoJVM
Navigateur	Accepté

4) Seamonkey (Mozilla) 2.0.4

Acrobat	NaN
Java	Sun Microsystems Inc. Version : 1.6.0_20
Système d'exploitation	Linux
Navigateur	Accepté

From memory (and I stand prepared to be corrected), the 2.x versions of Seamonkey correspond to the 2.x branch of Firefox.

From the testing, it is apparent that the problem does not appear to be with browser compatibility, since in all cases the INPI's detection script considered that the browser version being used was acceptable.

Apart from Google Chrome, all of the browsers tested using the INPI script returned an acceptable version of the Java VM.

This led me to believe that the problem lies in the Javascript used to test the user configuration, and that this script trips up on the detection of Adobe Acrobat on Unix-like platforms. The irony of the situation is that the form which has already been filled out by the server opens automatically in Adobe Acrobat Reader when the user is invited to check its application documents for correctness. What happens here is that the link provides a data stream bearing the PDF mime type, and thus is recognised by the plugin mechanism that is prevalent on Unix/Linux systems.

As an aside, it appears that the INPI has used the content creation and secure signing platform known as Dictao, details of which can be found here

In order to resolve the script issue, I needed to find out which script ran when I clicked the "check configuration" icon. The good (or bad depending on your point of view) thing about having web pages with scripts in them is that at some stage, they have to be loaded into the memory of the machine they are running on via the application (in this case via the browser). This leaves them open to analysis, which is exactly what I did by installing an extension module for Firefox known as a script de-obfuscator. What this does is trace the script calls loaded into the memory of the browser and make them available in human readable form - and very handy it was too !!

The result displayed is a long line of codes, routines, subroutines, etc, most of which wasn't particularly relevant to my quest, but in the end, I found a section of code which looked promising :

function eh(g, f) {
        $doc.dwe.detect = Object();
        $doc.dwe.detect.acrobatObj = new Object;
        $doc.dwe.detect.acrobatObj.installed = false;
        $doc.dwe.detect.acrobatObj.version = "0.0";
        if (navigator.plugins && navigator.plugins.length) {
            for (var h = 0, d = navigator.plugins.length; h < d; ++h) {
                if (navigator.plugins[h].description.indexOf("Adobe Acrobat") != -1 ||
                    navigator.plugins[h].description.indexOf("Adobe PDF") != -1 ||
                    navigator.plugins[h].description.indexOf("Adobe Reader") != -1) {
                    $doc.dwe.detect.acrobatObj.version = parseFloat(navigator.plugins[h].description.split("Version ")[1]);
                    if (isNaN($doc.dwe.detect.acrobatObj.version) &&
                        navigator.plugins[h].description == "Adobe PDF Plug-In For Firefox and Netscape") {
                        $doc.dwe.detect.acrobatObj.version = "8.0";
                    }
                    if ($doc.dwe.detect.acrobatObj.version.toString().length == 1) {
                        $doc.dwe.detect.acrobatObj.version += ".0";
                    }
                    $doc.dwe.detect.acrobatObj.installed = true;
                    break;

Oddly enough, this code is very similar to that released by Ryan Parmann under a version of the GPL2, an example of which can be found here - I don't recall seeing on the INPI web site anywhere that they used GPL2 code in their services, tsk, tsk, tsk. The date on the code states 1997-2003, here's hoping that Dictao did their homework beforehand...

Now I'm not an expert at scripts, but the code above looks like it is designed to search only for version 8 of Adobe Acrobat, and then only if the description found in the plugins index is identical to "Adobe PDF Plug-in for Firefox and Netscape". If not, the test fails and returns NaN. Below is some extra code, again found here which allegedly can calculate the various versions of Acrobat Reader currently in circulation (until Adobe releases version 10), but I think that it gives the gist of what should work :

acrobat.ver4=(acrobat.installed && parseInt(acrobat.version) >= 4) ? true:false;
acrobat.ver5=(acrobat.installed && parseInt(acrobat.version) >= 5) ? true:false;
acrobat.ver6=(acrobat.installed && parseInt(acrobat.version) >= 6) ? true:false;
acrobat.ver7=(acrobat.installed && parseInt(acrobat.version) >= 7) ? true:false;
acrobat.ver8=(acrobat.installed && parseInt(acrobat.version) >= 8) ? true:false;
acrobat.ver9=(acrobat.installed && parseInt(acrobat.version) >= 9) ? true:false;

This is all well and good, but until the INPI decide to correct the problem (or can get Dictao to do so, if it is their responsibility), then for the moment, it looks like online filing of trademark applications in France is going to be out of the question for many of us who prefer to use alternative operating systems.

It is noteworthy that since I first reported the incident and followed up with e-mails containing the results of my testing, I've heard nary a peep from the INPI IT helpdesk. Embarassment, confusion or just plain ignorance (close our eyes and the problem will go away) ?

Online Filing Woes - get thee away Satan

2010-05-05T18:49:00.000+02:00

It seems that life is full of little setbacks at the moment, what with my previous rant on French PTO fax machines and now my latest encounter with the French trademark filing authorities. Being of moderately good cheer despite the wintry weather, I thought I'd cock a snoop at the snow falling outstide my office today and attempt to file a trademark online via the INPI's spankingly refurbished website (which is an ultimately very frustrating experience, but more of that later).

Aside from the fact that you have to trawl through several pages of information which are more or less useful depending on the extent of your trademark knowledge, I can safely say that online trademark filing via the INPI is not at all obviously pointed out on its web site, and the overall impression that this gives is that the INPI is only really looking to attract the absolutely motivated individual who has time to spare, or the professional who has finally exclaimed "at last" when the link to the online filing section of the site is found. Just to make it easier for anyone reading this blog, the current address is :

http://depot-marque.inpi.fr/

For the non-French speakers there are several alternative languages for the interface available, one of which being English, but it has to be said that some of the translations of the fields into which data is to be entered appear somewhat... unusual, to the native English speaker. In any event, the non-French user is forewarned in advance that the application will have to be filed in French come what may, or else it will be rejected. This doesn't appear obvious to the English speaking user until you have filled in the applicant and contact details and actually get around to typing in the definition of classes and goods and services for which protection is sought. The page where you fill in these details is entirely in French, which I suppose stands to reason seeing as the aim is to file a French trademark application after all. However, considering that the trademark classification system also exists in English, it would have been a nice touch to provide that translation as a guide to the would-be non-francophonic applicant.

After having selected your classes and associated products from the list, or having typed in your own definitions, one can then proceed to the "Special Cases" page, where it is possible to choose whether the application is linked to a renewal of an existing French trademark, to a divisional filing, to a collective certification mark, or to a claim to Paris Union priority.

Once sorted, you can proceed to the signatory page, where the name and contact details of the person signing the application (aka the representative) are given. This then takes you to the form validation page, and from there onto the payment page (because online payment by credit/debit card, is also possible). However, this is where I came unstuck, and was doled out a rather terse error message :

Votre configuration actuelle ne vous permet pas de certifier le formulaire

Acrobat	NaN
Java	Sun Microsystems Inc. Version : 1.6.0_20
Système d'exploitation	Linux
Navigateur	Accepté

Which basically means that my computer setup did not allow for certification of the form. Hmm, I don't recall seeing any certification requests or the like indicating that a secure certificate was to be installed on my computer.

Whilst the INPI has helpfully indicated what the minimum computer software requirements are (via an icon click in a little corner of the screen), it still left me dumbfounded because my system actually meets all of those requirements, including the allegedly "absent from my system" Adobe Acrobat Reader. Thus stymied, I am given the option of saving all I have done so far, in which case you receive an access code in order to try again with the application data being stored temporarily (2 weeks) on the INPI's server - this function does actually work - or else saving the generated form to disk via the, wait for it, "unfindable" Adobe Acrobat Reader which opens up on clicking on the link to display the form and its relevant data...

So that basically was it. Stuck for now, other than filing 5 paper copies of the application via post and paying an extra 25€ filing fee, until someone, somewhere within the arcanes of INPI IT support can actually help me out (or not, as the case may be).

Deflated, but not defeated, I shall wait to hear from them to get to the bottom of the problem and report back. Sometimes you just can't beat those good old fax machines...(don't get me started on them again...)

Anyone for CML ?

2010-05-02T14:14:00.000+02:00

Today's post is not about medical nasties such as chronic myelogenous leukemia, but rather Chemical Markup Language (here), or even more generally, the representation of chemical structures and other chemical data such as spectra in patent applications.

Way back in 2006, I raised this issue in the online filing forum of the EPO (here). As I later discovered, CML was in fact already being considered by the EPO, as evidenced by a report published by Dr. Wendy Warr in 2004 (here, p.49-50). Since then, unless I'm very much mistaken, no progress seems to have been made whatsoever. Am I to understand that the filing powers that be and industry still have come to no agreement, or is it that, as I was led to believe, the USPTO is so entrenched in its use of TIFF that it can not adapt to a recognised standard for the representation of chemical formulae ? If so, then it really is a pretty poor show all round. After all, it is not as if there is no software around capable of converting a graphically driven interface rendering of a structure into compliant CML - there are now several, both proprietary and open source, and additionally capable of running on multiple operating systems (see here, here, and here).

So what is holding back the adoption of CML directly in patent applications, instead of the current practice of having to draw the structures and save them as bitmap images, which are then copied into the word processing document, saved, recompressed and rendered un-reusable thereafter ? How significant is the reticence or lack of knowledge on the part of patent attorneys or the subcontractors who prepare chemical drawings ?

If anyone has any gems of information on the subject, I would be interested to know.

Employee Inventions - Private Sector Makeover

2010-04-13T16:35:00.012+02:00

A proposed piece of legislation was recently filed with the French parliament relating to revamping the current wishy-washy legislation about employee inventor remunerations into something half-decent (in theory at least), hopefully with some teeth, and with the purported aim of stimulating the French economy and turning the nation's patent applicants into a "file first, file fast, ask questions later" IP cowboy. The proposed text can be found here:

http://www.assemblee-nationale.fr/13/propositions/pion2288.asp

The aim of this long sought after legislation (at least from the various inventors' lobbies) is to bring the private sector into line with handling of public sector employee inventions, which have been codified (and operational) for some time now.

After having read the proposal, I find it unlikely that it will sail through parliament unchecked - the employers' (Medef, CGPME, etc) lobbies will no doubt bring their weight to bear on MPs and Senators alike to remove the proposed possibility for employees to come back to their employers at some undefined date in the future and ask in true Oliver Twist style "for more" if they sense that the employer is making too great a profit from the invention to which they contributed. I'm also pretty certain that if, as is proposed, new taxes are set up to deal with these perceived windfalls that are escaping the clutches of the "good ol' French IRS", then the government will cook up something that nobody will be happy with - after all, the French state is up to its eyeballs in debt, and what better way to earn more money for itself than to tax those both giving and receiving, I can see the state treasury laughing all the way to the national bank!!

One thing is certain : the current situation is a complete mess, with the legislation so full of holes you could strain your spaghetti in it and case law apt to swings of mood. It is at least praiseworthy that someone has stood up to the mark to attempt to do something about it, but ultimately the law may have no real teeth as such and it will be a case of yet another piece of rushed positive lawmaking gone horribly wrong.

As examples of a few potholes in the current legislation that IMHO need filling:

- applicability (or as the case law now says, "inapplicability") of collective bargaining agreements;
- absence of explicit sanctions for not respecting the invention declaration and categorisation procedures; at the moment, the employer can get away with virtual murder of the invention by not sticking to the procedure laid out under law, leaving the inventor to either go to court to obtain a decision, or to file a patent application surreptitiously and then tell his/her employer afterwards - in any event, it generally leads to an uncertain legal position and a fair amount of strife between employer and employee;
- HMA (hors mission attribuable) inventors being considered by the Social Security and IRS administrations as having independent inventor status even though they are fully employed with the company that awards itself and files their inventions;
- absence of binding (appealable) decisions issued by the National Employee-Inventors Commission;
- supplementary remuneration being considered as salary : aside from the taxation issues, French employment regulations currently make it impossible for an employer to pay an inventor "supplementary remuneration" using the only means available to it, i.e. a wage slip, once that person has left the company. An attempt has been made to address this issue in the proposed legislative changes by considering the sums paid as outside the normal scheme of salary payments.

More updates on this topic as things evolve (no doubt slowly given the current political climate).

Living Dangerously aka French Fax Machine Woes

2010-04-12T21:50:00.006+02:00

Experience has proven that when you attempt to file by fax at the French PTO (INPI), after 5pm, with an application of more than 15 pages, then you really are loading a revolver with more than one bullet before pointing it at your head. Russian roulette, ha !! childsplay. Want a real adrenaline rush ? Try and file a 50+ page PCT application in English after 6pm, now there's playing hide n seek in a minefield, while under the influence, and base jumping without a parachute all at the same time !!!

In the world of modern communications, and despite a wealth of e-mail communications abounding, the fax machine still appears to have many a long day ahead of it, and to be fair, it is on the whole a fairly reliable and secure way of transmitting data (absent wire taps and capturing electromagnetic waves from phone lines via sophisticated interception techniques). One would think that most European nations' IP offices would have reliable fax machines. Oh ye of utmost naievety, for ye have not encountered the INPI's ultimate fax reception service solution hell.

Indeed, in stark contrast to the EPO, WIPO and even most other IP offices I've had to deal with in the past, the French PTO continues to have, in my humble and completely unbiased opinion, one of the most woeful fax reception systems in the world. Last I knew, they only have one full time fax machine dedicated to receiving faxes from the public. There is a back-up, in case the first one breaks down, but apparently it is not set up to take over any excess demand for communication that the first can not handle. The fax machine is only cared for by a member of staff until 4:30pm (OK being generous, I actually heard it is 4:45pm), after which, in true French civil servant "jobsworth" style, that person bunks off for the night and leaves the machine to a lonely evening alone at home (can't you see those teardrops running down my face ? No ? not surprising coz I'm sharpening my knives !!).

So, the fax machine sits alone in Paris, at the INPI's St Petersbourg street HQ in the hope of one or more external communicants dialing its number. But lo and behold, what happens when those outsiders use up all the paper, or it jams ??? Errrmmm, well, the fax goes offline - I hear gasps of horror from the audience - yes, it does just that. Aha, but those who have been following chirp in, "Wait a minute, you said there was a second fax machine waiting in the wings". So I did. But here's the catch. The second doesn't know the first isn't working because they are not synchronised, i.e. it is not a true failsafe, fallover, backup, whatever. Truly astounding, implementation of modern technology at its best. And of course, yes you've guessed it - the person who looks after the fax machines having gone home, no one else is there to care a hoot, or even less, do anything about it.

Of course, now that the INPI has finally entered the age of electronic filing, it probably doesn't care very much whether its fax machines are left to break down on their own well before most of us have even thought about going home. Yet consider this, if you will : the stats tell us that approximately 16,000 French filings are carried out each year (with a slight variation, give or take a couple of thousand). Of those, I would guess that approximately 10%, maybe 15% are filed using the online filing system - the rest, well, snail mail and fax of course, and usually both since fax filings have to be confirmed via normal mail. OK, where does that leave us, hmm, at an optimistic 13,500 filings over the year, a daily average (including bank holidays and weekends) of 37 patent application filings a day. Obviously, this figure does not consider any of the other filings that take place using the same fax number, filing responses to office actions, various other requests, other rights filings, etc, so the number of communications going through that fax number must be much higher than first thought.

One would have thought that even the INPI would have sussed that so many faxed communications would warrant a more reliable system, capable of running 24/7, but the powers that be at the INPI have obviously decided that this is not the case. It may be, once again, that budget constraints mean that it can't actually afford to invest in a battery of failsafe fax machines, in which case there is no hope. Of course, some smart people in procurement could just suggest that the faxes be handled by a PC (or two or three) running fax reception software, but apparently even this appears beyond grasp of comprehension.

If you've managed to bear with me to the end of this rant, then you'll have done well. "What did I do then ?", you might ask. Answer : WIPO - response time of 15 minutes max - now there's service !!

P.S : The above is entirely based on my own personal perception. If anyone out there really does know what the actual set up is at the INPI, then I'm all ears, I was just letting my paranoiac psychotic brain get the better of me ;-) toodlepip !!

Cloak and Dagger Filing - just leave your smartcard at home

2010-01-05T19:12:00.005+01:00

My contribution, call it that if you will, of today, relates to a recent friendly, but nonetheless firmly worded, circular sent by the French Ministry of Defense to all French IP attorney firms at the end of November (plus I assume, also to counsel working in industry). In it, the DGA (Direction Générale de l'Armement), responsible for checking the content of all French, European and PCT patent applications filed through the French patent office (INPI), has reminded all practitioners of the need to think carefully before unholstering their Smartcard and filing their patent applications using the EASY/PCT SAFE software that so many national offices now attempt to ram down our throats, despite it being platform and operating system dependent on one very large operating system supplier.

To be brief, the instructions handed down in the circular state that electronic filing software as provided by the INPI / EPO / OMPI is not certified as "defense security compliant", and thus advises as follows:

(a) if the subject matter of the patent application relates to contract research or development financed by the MoD, inter alia, those containing a required security notice ;

(b) or if the subject matter of the patent application can be of military usefulness which confers operational superiority (to France of course)

then the electronic filing software should not be used, and the usual channels of paper filing are mandatory.

It transpires that the reason for this circular is apparently linked to one or more "near misses" with regard to potential breaches of national security, although for obvious reasons no further details of the "near miss" are given. The fact that the DGA has taken the trouble to write such a circular is significant in itself, as usually this is a very discrete department not prone to such displays.

Now I can see people at the back raising an eyebrow or two about how vague the expressions "of military usefulness" and "operational superiority" are, and how extensive, nay expansive, they may seem. Indeed, and to this end, the DGA has kindly provided a short guide of two A4 pages styled as a FAQ as to how to go about determining whether the applicant is likely or not to fall foul of the military secrecy statutes as they affect patent applications. I might even get around to translating it from French into English if I get the time, but one thing of noticeable importance is the bit on inventors. There is, so states the circular, "no obligation to first file the patent application via France just because one of the inventors is French, or has his place of residence in France" (this was indeed the interpretation of the law given by many a practitioner until now). However, before you all go off telling yourselves that there is no longer any need to worry, one should read on : "the fact that an inventor carries out research or studies on behalf of a foreign entity, where those activities may conflict with the fundamental interests of the nation, may expose the inventor to the sanctions foreseen by the New Penal Code". Additionally, and as mentioned elsewhere in the circular, all of those involved in the transmission of information deemed to affect the fundamental interests of the nation, and particularly those of the MoD, are tarred with the same brush as the initial divulger.

Well, now that's much clearer for everyone isn't it ? So get your cloak on, mate, fasten your dagger, we've got dirty work to do...but pssst, leave that chip at home.

When the lion roars : hiding under the covers

2009-11-27T22:31:00.001+01:00

I have often been struck by the bullishness of some companies touting their IP to all and sundry, as if it were some divinity's gift to the world, and with the sole intention of creating a kneejerk reaction in a subset of the population, be it CEOs, VCs, or even just the generally uninformed and irrational public. Of course, it is easy for the lawyers to look down from their lofty perch and tell everyone not to worry (or precisely the opposite, depending on the circumstances), but somehow this doesn't always have the desired effect.

My thoughts on the matter are twofold : (1) that we, as a whole, are considered as untrustworthy as a politician and thus our opinion on the matter is to be taken with a very large pinch of salt, and (2) that we are not very good at showing our true convictions with regard to the situation in hand, and thus fail to convince our clients that they are really getting counselled. The latter is of course akin to us hiding under the covers when the lion roars, so to speak, yet we do so constantly, keeping our fallout umbrella handily up our pleading gown sleeves in case the euphemistically termed dung is spread all about and we get, dare I say it, splattered.

Of course, we all like to be right, but inevitably in an IP dispute, someone will be wrong to a certain extent, either implicitly or directly, and ultimately, in a sane world, we would have the courage of our convictions, and roar back, or at least miaow convincingly.

Now, where did I put my disclaimers ? :-p

Blogalicious

2009-11-25T21:21:00.001+01:00

"Long time, no write", sayeth he who has had plenty to think about in recent months, but rarely allowed himself the time to write about it. Needless to say, this blog, like many others for whom the net is not one's sole source of solace (ooh, nice alliteration), has fallen by the wayside.

I shall be attempting in the near future to proliferate my pontifications, in my own inimitable fashion (such a bighead, I know), now that I have a suitably "mobile-aware" piece of apparatus.

So stick around, if you care, for the next instalment.

Stairway to Heaven aka "VAP"

2008-06-06T15:57:00.005+02:00

Today's title isn't some form of subtle advertisement for a 70's rockband song or some hallucinogenic reverie (although...), but a reference to the recently released communiqué by the French PTO (http://www.cncpi.fr/act1--examen-EQF-PI-invention-depot-brevet.htm), about the organisation of the upcoming session for "validation des acquis professionnels" and consequent registration as a person qualified to practice IP.

Nothing to do with vapour or ephemerism whatsoever, except that it remains to be seen whether the legislative text behind this organisation will still be applicable once we have all become Avocats (that word just seems to creep in everywhere, doesn't it ?).

Just a quick recap : the French IP profession consists of about 800 registered specialists in private practice. This number is considered by the government authorities to be largely insufficient (and I tend to agree). In an attempt to overcome the stagnation that has beset our profession over the past 25 years, the government has thus decided to organise, in line with national policies in other sectors in France on training and recognition of professional experience, a means of becoming a registered IP practitioner without having to sit those awful and extremely arbitrary qualifying examinations that all of us middle-agies had to go through. With the merger with the Bar looming, and the consequence of increasingly difficult and lengthy examination spans to be introduced, there has been pressure put on the PTO to organise a professional experience recognition or VAP-session to swell the ranks of current practising membership as much as possible. On a side note, the PTO has also just announced the organisation of the qualifying examinations sessions as well, for those who are of a masochistic inclination.

I'm not going to translate the communiqué for would-be readers, because if you want to have any hope of being accepted, you need to have at least some inkling of French, so it'll be a good test for you. Suffice it to say that this session is open to all and sundry having worked in IP for at least 8 years, and meeting the other formal requirements (higher education degree in law or a science based subject), plus an equivalent diploma or education to that dispensed by the CEIPI in Strasbourg for IP studies.

The deadline for applying is September 8th, 2008 (midnight at the latest), as witnessed by the date postmark on your registered letter of application (with acknowledgement of receipt).

The oral interviews are to be held on October 20th, 2008. These interviews serve to ascertain the truth of the declarations relating to the acquired professional experience, and the depth of knowledge of the candidate with regard to our code of professional ethics. The jury will also have the possibility to question the candidates on their professional experience. Hmm, I wonder who's going to be chosen to do jury service, will it be a voluntary thing, or will we all have to take it in turns to do our bit for the promotion of our dying breed ? Lie back and think of France I can imagine the scene now : me thinking, mmm, yes, that gorgeous deep ruby red Cahors would go down really well just now - "I'm sorry, Mademoiselle, what was that you were saying about your patent drafting experience..." as my numbed brain is brought back to reality - now what was I saying about Stairways to Heaven and hallucinogenic experiences...

Too many cooks...

2008-06-05T12:00:00.003+02:00

In the continuing saga of "Who wants to be an Avocat ?" (shouldn't that be a "millionaire" ? - I'll take both, thanks), a flurry of activity has recently occurred, none of which I've found particularly surprising, but hey, that's the cynic in me once again.

I was informed yesterday, by the Anti-Merger brigade, followed closely but belatedly (1-0 to the antis, sorry chaps) by the CNCPI bureau, that someone, somewhere, in government circles attempted to hang an amendment relating to the merger, to the end of a completely unrelated piece of legislative text relating to community harmonisation of French company law going through the Senate - these kind of tactics are fairly representative of the legislative process in France - in which, "the Government would have been authorised to issue, by means of ordinance, the necessary arrangements for the merger of the professions of Avocat and CPI..."

Shock horror !!! Errmm, no, not really, just the usual parliamentary jostling, abuse of influence, and other rather shady and undemocratic tactics that we see every day. Hmm, and the French poke fun at Italy and its successive governments - people in glass houses once again...

Needless to say, had this amendment been voted, then the government's plan was to have everything settled within 9 months or so, with or without the cooperation of the interested parties. These underhand tactics however, were apparently not to the liking of the French Economics Minister, Mme Lagarde, and a few other senators, who managed to have the amendment withdrawn before debate on the legislation commenced.

It remains to be seen who or what was responsible for proposing this amendment (if we ever find out at all, transparency of the workings of parliament not being particularly well defined).

The CNCPI Bureau offered a rather dull, and watered down "letter of information", including the text of the proposed amendment, if only to serve as counter propaganda against the Antis, in an attempt (rather feeble, IMHO) to show that it was mindful of our (the CPIs) desiderata whilst at the same time congratulating the government on having taken such an initiative.

Politics, politics. Who'd have thought that a simple thing like dealing with 790 professionals would cause so much political intrigue...

All of this does go to show that, ultimately, the fate of our profession is in the hands of those who have sufficient influence in higher political circles to add such amendments, or have them added to pending legislation by person's sympathetic to the requestee's cause. However, now that there are clearly other cooks involved in making the broth than just the two main chefs, the soup might just get burnt.

Speaking of which, time for lunch...

The Aftermath

2008-05-16T18:09:00.004+02:00

Bar Association Merger (aka Takeover, Take-away, Take me to the Cleaners - and other silly innuendos and puns)

Round 1, May 13th 2008

In favour : 260
Against : 236
Abstentions : 4

A rather hollow victory for the Bureau of the CNCPI then, it seems. Amid clamours of voting irregularities - why did the voting start although the presentations and discussions hadn't yet finished ? - and people being refused the right to vote despite having registered on time (an appeal anyone ?), it doesn't look like the Bureau can strut victoriously around the battlefield, as it has had a tendency to do so previously, making unsupported statements (hmm, they must have been reading my blog :-p ). Indeed, the battle has only just begun, and the crowd aren't really behind them.

The results of the vote clearly show however that there is now a nearly 50/50 split in our profession, and whatever happens next, that split will not easily be mended. For the comments, I direct you once again to the "sort of official but not really" CNCPI blog at http://www.cncpi.fr/blog, and of course to Mr. Breesé's own appraisal of the situation (http://www.breese.blogs.com)

So, now that the hurly burly is done, and we've met on the heath to pick through the dead and wounded, what next ?

The Bureau will now have to go before the French Bar Association, brandishing an AK47 full of blanks knowing full well that the welcoming committee on the other end is a squadron full of ninjas armed with the ultimate weapon - legislative lobbying power. Oh yes, the Avocats have that alright, just look at the French President, he's an avocat (hmm, best not move onto sticky political wickets), and there are many more in the realms of power. The simple truth of it is that us poor CNCPIs don't have that kind of firepower, and it doesn't really look like our Minister of Commerce is ready to get involved in the fray in our favour. One might even say that the silence of the INPI and its corresponding ministry is noticeably deafening, and certainly does not bode well for the future.

I have gleaned a little enlightenment from the bloodbath however (it must have been the Celtic berserker frenzy that led me to a higher astral plane). It is now seems clear that whatever the solution adopted, once the transitional period for getting as many people in as possible is over (this looks to be like anything between 5 and 8 years after entry into force for those not already qualified, and 10 years for the IP boutiques and IP Counsel already in business), there will be no possibility for anyone else not registered as a Avocat or "Avocat Conseil en Propriété Intellectuelle" to practise IP law in France. European Patent and Trademark Attorneys, ie. the rest of the European patent and trademark attorney community, will remain simple filing and prosecution agents, but will not be authorised to practise law on French soil. Well, if such a situation is ever enacted into law, we shall have to see what short shrift (if any) the ECJ will make of it, because someone is bound to appeal against such a flagrant restraint on the right to practise in the EU. It should be an interesting challenge, in light of the fact that there is to my knowledge as yet no European-wide harmonisation on who is entitled to practise law, or to which degree a given category of professionals might be entitled to do so.

Well, I suppose all that remains to be said is "Good luck" to the Bureau, rather them than me, I'm much happier waiting my turn to be thrown to the lions, but like any good sacrifice, I'll go down fighting for the benefit of the crowd !!! (prod me once more with that trident and I'll kill you with my bare hands, oh sorry, its a taser, bzzzzrrttt)

Sincerest salutations (you gotta love French letter writing formalisms), and see you all soon.

The Red Button and CPI Meltdown

2008-05-09T08:20:00.006+02:00

NOT THE RED BUTTON !!!

Yes, indeed. Houston, we have a problem. We have gone nuclear. When I talked about "things hotting up" in my last post on the topic of the merger of IP attorneys and the French Bar, I was expressing what I suppose one would in hindsight call "typical British understatement". The proposal to vote on a merger in somewhat "fuzzy" conditions was the metaphorical Red Button that the Bureau of the CNCPI pressed, and in true Gallic style aimed at its own foot, a hotbed of bubbling, unstable, fissile mass.

In the space of 2 weeks, the exchanges on the CNCPI blog (http://www.cncpi.fr/blog), and those of Mr. Pierre Breesé (http://www.breese.blogs.com) have attained more than a critical mass, and what appears to be irreparable meltdown is now in progress. People have been stabbing each other anonymously, and rather cowardly in my own humble opinion, in the back, with some unpleasant personal attacks, and most of all, there has been a huge cloud of FUD (fear, uncertainty and doubt) that has been disseminated amongst the ranks. We are now all suffering from a form of poisoning by all accounts similar to a tab of LSD, where those of the Bureau see Diamonds in the Sky, and the opponents the grimmest spectres of a Hollywood horror film.

There are those, however, who have managed to float above carnage and have taken a loftier, more critical view (they must have a good supplier, a jet pack or a NBC suit). I cite Mr. Breesé, as one, who like myself, was initially in favour of the merger, but upon having seen what the French Bar wanted to impose on us "engineers" (how common we must seem) and future generations, and in light of the vague assertions of our beloved bureau and CNCPI President, has reappraised his position for one of : "Now just wait a minute, just who is driving this train, and why are we headed for that rickety old bridge ?"

Who indeed ? A group of people committed to the merger, of that there is no doubt. A merger at all costs, despite reassurances to the contrary. A merger from which there will be no going back, no sirree. One in which our European counterparts are smugly laughing behind our backs as they watch us tear ourselves apart, driven to madness. As in all wars, the crows will inevitably have carrion to feed on.

One thing is certain, and that is that nothing is at all certain, at least in terms of how the divergent positions between the French Bar and the resolutory conditions laid down by the CNCPI Bureau are to be reconciled. In the end, 790 CPIs against nearly 50,000 barristers is but a drop in the ocean, not even a worm to a hungry thrush. Either the barristers will get their own way, or the government will weigh in. Unfortunately, the government is not in the Bar Association's good books at the moment, having done the dirty on them with the recent reform of the court system and closure of many provincial courts, so the Bar Association has a couple of Aces up its sleeve which it is sure to lay down before the day is done, and the government, in a soothing gesture, will no doubt bend like a willow in the wind, rather than face the ire once again.

Where will this leave us, ex-CPIs and soon-to-be Avocats ? If one is to believe the arguments put forward by the CNCPI Bureau, we will be more visible and more competitive in Europe. Hmmm. I have still yet to see how that will be so, nor even any evidence in the form of a published economic study.

Will our prices go up ? Probably. Go Europe. French industry, renowned for its unwillingness to invest in the "immaterial", will be sorely inclined to leave us for cheaper pastures outside of France, or boost or create their own internal IP departments where they will be able to manage costs.

How will we become all of a sudden more competitive in the European market ? Certainly not with the trickle of scientists gullible or suicidal enough to want to spend at least 8 to 10 years further study attempting to qualify.

Oh yes, how stupid of me, OUR NEW TITLE "Avocat specialisé en Propriété Intellectuelle". Must be worth a couple of bob, at least.

How about the increased litigation I will be able to conduct and plead in court ? As one member of the profession has pointed out, there is a fundamental ethical and professional liability problem in procuring patent rights and then having to defend them yourself in an invalidity suit.

Of the same ilk, the question pertaining to saisie-contrefaçon : are barristers representing the client's interest entitled to carry out the seizure knowing what it is they are looking for because they drafted the patent, without infringing the fundamental rights to fair process of the alleged infringer ? Under existing French case law, a CPI does not infringe the Human Rights of the alleged infringer, even if he is the usual representative for the plaintiff because he is considered an "independent expert". However, if he is the usual barrister, that situation may well change.

Perhaps we will end up with a situation similar to the US where a law firm will have litigation counsel and prosecution counsel, but we've got that in the current system with IP attorney and barrister, so why merge ?

The much awaited vote on the resolutions put to us takes place on May 13th. Will the result be a black hole or the birth of a new star ?

Oh no !! I can feel my skin is starting to peel and my hair fall out in tufts, must be the effect of the fallout, or the gravitational pull !! Or, perhaps, just perhaps, I'm getting old ;-)

Blog posting test from phone

2008-05-05T14:36:00.001+02:00

This a quick phone post, will do something more consequential later. More juicy gossip from "the Aliens are coming" aka "Who wants to be an avocat ?"

Posted from moBlog – mobile blogging tool for Windows Mobile

The Labours of Herakles

2008-04-22T16:45:00.002+02:00

Once more into the breech...since my last rant, I've now ascertained a slightly clearer picture of what is likely to be required of future engineering candidates looking to qualify as Avocat Conseil en Propriété Intellectuelle, assuming that the merger goes ahead that is, which, in view of recent diatribes on the CNCPI blog, no longer appears to be a foregone conclusion.

Here's the list as I now understand it, bearing in mind that the waters are still distinctly muddy:

1) Graduate with an engineering, science or equivalent technical, higher education degree
2) Go to Strasbourg and do the CEIPI 1 course (IP law) and pass the exam
3) Go to Strasbourg and do the CEIPI 2 course (general law, obligations, tort, community law, family law, constitutional law, etc) and pass the exam
4) Sit and pass the pre-CAPA (bar school entrance exam) - only 2 attempts allowed, period - current success rate 1 in 5
5) Sit and pass the EQE
6) Sit and pass the CAPA (bar accreditation exam) - pass rate, 1 in 20 ??

All in all, for a scientist who is working in an attorney firm, at least 6 years before even hoping to qualify, more likely 8 to 10 years if the candidate has any form of life outside studying, all of this on top of his/her initial scientific training. Well, hello, I'm the superman(woman) patent attorney you've all been dying to meet :-)

But let those who sit smug in their already qualified armchairs wipe the grin off their faces. The French Bar Association even wants those IP attorneys who are already patent attorneys without Master's Degrees in Law to do an obligatory training course in professional ethics and some form of basic general law just for them to be allowed admittance under the proposed new framework. Now that is something that the CNCPI negotiating committee certainly didn't bargain for, I'll wager.

Why do I get that awkward stomach churning feeling that we have all suddenly been sucked into a parallel world and spat out in Sodom & Gomorrah ?

Communication or Foreplay ?

2008-04-16T13:33:00.002+02:00

The saga of our future digestion by the French bar association continues in a war of words, nay, blogs. Assiduous readers might remember that I recently attended an information meeting to try and find out more from my representative body, the CNCPI, or National Guild of French Patent Attorneys, of what form of seppuku our profession was on the verge of committing. Since then, things have moved on : the CNB have voted in favor of the merger, at an AGM, but as expected will require all future candidates, who are engineers or scientists to have accomplished the following :

1) Passed the CEIPI I examination (this is equivalent to the current CEIPI examination, minus a few hours training related to the EQE and the current French Patent Attorney qualifying examination)

2) Passed the CEIPI II examination : I'm still not quite sure what this involves in detail, other than learning about the law of obligations, liability and the barrister professional code of ethics.

3) Passed the EQE (European Patent Office Qualifying Examination) : quite why this has been included for scientists when normal barristers without any scientific knowledge can already represent clients at the EPO is beyond me.

4) Passed the CRFPA : this is basically the entrance exam to bar association recognition. The candidate can and will be questioned on any theme that may come up, IP being simply optional subjects in addition to the more classical ones like the theory of law, law of contracts, law of tort, etc, etc. It should be borne in mind that the scientist or engineer who sits this exam is basically supposed to have the knowledge in law of someone having studied that subject up to Master's level.

If this goes ahead, then it will probably sign the death of French technically qualified patent attorneys as we currently know them, since I doubt that many recently graduated scientists would want to embark on such an endeavour. This is already borne out by the incredibly low number of practising barristers in France who have scientific degrees.

Hello !!! Calling all non-French future patent attorneys !! As an employer, I would have to seriously consider whether it was economically viable to recruit a French scientist and train him up for at least 6 years in the hope that one day he might qualify. I would almost certainly be more likely to look for European counterparts that will still be patent attorneys in their native countries, and get them to learn French, which would in my opinion, be of far greater benefit (what could be more satisfying than learning to say "mine's another 'arf" to the barman in the native lingo of your customary bar of your French village ? Learning to say "no" to snails and frogs legs, and other such sundry French delicacies perhaps ?).

Anyway, as one might imagine, the propaganda machine of the CNCPI has had to step up its efforts a gear or two, because sharp criticism has been forthcoming in the face of blog contributions in French that appear to be springing up left, right and centre, and representing the views of the disgruntled masses, one of which, Pierre Breesé's blog (http://www.breese.blogs.com/), is simply delightful. I recommend reading of this blog to those of you out there who read French and have an eye and taste for a bit of irony, parody and self-derision. Not to be outdone, however, the CNCPI has itself now set up a blog here (http://www.cncpi.fr/blog). Unfortunately, the blog is by all accounts moderated by an unknown Doctor at Law, who is neither a registered member of the CNCPI, nor a member of the corresponding industry-representation organisation ASPI. Whilst the comments appear to be freely submissible (at least so far), no mechanism has been put in place allowing contributors to define topics of their own for discussion. This gives the rather unfortunate impression that the debate is rather one-sided, at least in terms of the CNCPI official party line, so to speak. One wonders what, if anything, the CNCPI are actually going to do with the flow of comments that are building up under the first blog entry - give them a cursory smile ? track down the would-be renegades and burn them at the stake ? Bring out more massage oil in the shape of insidious e-mails depicting the world as a lovely place to be in, and oh, wouldn't you just so love to become an "Avocat" ?

Like I said in a previous entry, "bend over, this might hurt a little". Well at least this time around, they're giving us the massage and lubricant first.

In my own totally cynical way, I could say I don' t give a hoot what happens to those French youngsters who want to tread in my footsteps, after all, it'll make no difference to me. In the end, though, it will matter. We, are a dying breed (well aging anyway), and we don't have enough scientists to fill our shoes as it is. If none will wish to tread down the future path to "Avocat spécialisé en Propriété Intellectuelle" and instead seek more attainable objectives, then our profession is quite simply ready to become extinct.

So yes, CNCPI, please do touch me here, caress me there, I can't wait :-) Art thou the proverbial snake, leading me into temptation ?

Famous Last Words

2008-02-20T22:07:00.002+01:00

"Captain, I cannae hold her" - sound familiar ? For all those Trekkie fans out there, I have some news : we, the French patent attorneys of this world, are going "where no man has gone before" (I'm not going to be politically correct for the sake of a quotation).

Yes, indeed. Such could be the conclusion one could have drawn from the meeting I attended on Tuesday afternoon organised by the National Guild of (French) Patent Attorneys. The trouble is, I don't really know where to start. I suppose it didn't help my understanding of the situation by my turning up late, but when one lives and works in the back of beyond like I do, getting to the meeting place on time was not necessarily an easy thing to organise. Unfortunately, and this is one of my pet gripes, the CNCPI is resolutely a centralised organisation with 99.9999% of its meetings taking place in central Paris and not necessarily near to an airport or a main railway station.

OK, so I turned up 10 minutes late. The meeting had already started, but fortunately not yet question time. Lucky me. I took a pew, strategically placed near to an exit, since I knew I would have to leave for a conference I was giving the other side of Paris later on the afternoon. And the floor was opened up to questions - I'll spare my non existent readership the pain of having to trawl through these questions and get to the point. What was all this about ?

Basically, the meeting was supposed to be informative. Unfortunately, I learned very little that I did not already know, surmise or suspect. Perhaps, had I stayed longer, I would indeed have learned something useful. The information was supposed to be about virtually anything related to the ongoing "negotiations" between the Guild and the Bar Association of France, by whom we are about to be devoured. During my time of attendance, the questions focused on the training requirements that would be necessary for any youngster or neophyte wishing to enter the profession and become a Avocat "spécialisé en propriété intellectuelle" (what is it with the French and pompous names, eh ?)

The upshot of most of what was said is that our Guild is basically in a "bend over, this might hurt a little" situation. In other words, there is no room for negotiation with the French Bar Association. This was more or less confirmed by the President of the Guild.

The French also seem to have got it into their heads that there is no European mutual recognition for IP Attorneys - while this may be true on paper, there is no European Union universal IP Attorney title, yet mutual recognition of titles exists, whether one likes it or not. Of course, one can not yet simply set up business as a barrister or other legal service representative in the EU if one doesn't have at least some form of recognition in one's own country, but recognition can and does happen on a EU level. Just because France has been fined on several occasions for its own protectionism in this regard, is by the by, but deliberately creating an internal system of training and qualification, as it looks like we are going to have, and which will make things significantly harder for new young entrants to the profession is not IMHO going to help our ailing and aging professional population.

OK, I hear you say, "what reasons are given for this elevation of professional status ?" Well, the ones I heard were a little hard to understand, and I'm in favour of the whole thing. I hate to think what the opponents of the movement must think - as the French say, "we're walking on our heads !!!"

- we're a test case for certain factions of the Bar Association that wish to see things change and introduce a specialisation for all barristers ; these factions are naturally interested in being able to manipulate the discussions the Guild is having to push the Bar Association towards "modernisation";

- everyone will look up to us as and recognise us as superior beings because we have such a long list of professional qualifications - errrmm, beg your pardon ??? I'm sorry, but my cynical side takes over here, and I have to admit having guffawed at the pomposity of replies such as these; the Guild continues in its longstanding tradition of inflating the image of our profession to over and beyond what it really is, but hey, I can puff up my chest too :-)

- the scaremongering approach : the spectre of deregulation looms and therefore we must run and shelter under the wings of Mother Hen aka the French Bar Association, but we can only do that if we give in to everything they ask of us. Hmmm, well, by the sounds of it, deregulation is coming, whether we like or not, and the barrister profession won't be spared - perhaps, with a bit of luck, we'll gain a few years more out of it before it finally hits us all - we'll just have to see at that time whether there is indeed "safety in numbers", but I doubt it.

So that's it. Not particularly brilliant. Then again, I'm probably far too cynical, too pessimistic, to be able to fully appreciate the context and developments that are overtaking the profession. Yet despite all of this, I remain in favour of the merger, mainly for purely personal reasons, but I don't think that the current developments will favour entry into the French profession of engineers or scientists with the current or even projected scheme of training available in France.

As an employer, I might be inclined to look into having my juniors train and qualify outside of France, and then take the European Union recognition or French 8 year experience route, or even just take on qualified non-French staff if they speak French. It doesn't necessarily mean that they'll be any worse or better than their "newly qualified" French counterparts.

Stay tuned for another nail-biting episode : "Beam me up, Scottie"

Grandfather Patent Attorneys Revisited

2008-02-06T14:33:00.000+01:00

The French government has just published a decree indicatining how people with a minimum of 8 years experience in Intellectual Property can apply to become registered industrial property attorneys with the French Patent and Trademark Office. The full text can be found here

The aim of the decree is twofold :

- satisfy the present government's requirement to open up the profession and do away with a rather antiquated examination board, discretionary examination papers and marking system ;

- satisfy the National Guild of Industrial Patent Attorneys, who are currently in the throes of a race to try and get as many candidates qualified as possible before we all become Avocats (see my earlier post on that hot topic), and the conditions for entry become noticeably harder, at least for engineers or candidates with a scientific background who would normally have become patent attorneys.

I have summarised the main points of the decree below :

1) The jury referred to in Article R. 421-6 of the Intellectual Property Code (CPI) will meet at least twice a year (Ed - this is a vast improvement on the current examination scheme of 2 yearly examination sessions, alternating between trademarks and patents)

2) The request for entry on the list of qualified persons must be sent to the Director of the Institut National de la Propriété Industrielle (INPI aka French PTO) by registered letter with acknowledgement of receipt.

The request must include :

1° A signed and dated request by the candidate indicating the speciality(ies) for which the candidate requires registration, i.e "brevets d'invention" (patents) and/or "marques ou dessins et modèles" (trademarks or industrial designs).

2° A photocopy of some form of formal personal identification (note that in France, driver's licences do not generally constitute valid personal ID, so you have to show a valid resident's card or a passport).

3° A photocopy of one of the diplomas mentioned at 1° or 2° of Article R. 421-1 CPI. These include the following : a higher education degree or diploma from a University or equivalent institution in law, science or technology, optionally obtained through a recognised further professional training program.

4° A diploma from the Centre d'études internationales de la propriété industrielle (CEIPI) at the University of Strasbourg, or an equivalent title obtained through a recognised further professional training program. (Ed - the conditions of recognition by the French state of such training programs are laid down elsewhere by law).

5° A signed declaration of professional experience attesting to the exactitude of qualifying professional activity (i.e. work in Intellectual Property), issued by the employer or tutor under whose responsability the candidate has acquired the experience. The declaration must include a list of responsabilities and activities engaged in by the candidate during his/her professional experience and their duration ; the declaration can include details relating to the prosecution and filing of industrial property titles, or their defense and litigation.
The candidate is allowed to include any other form of evidence that it considers relevant to its request in relation to justifying its professional experience in IP. If the 8 year period of experience has been acquired under the responsability of several different persons, each such person must provide a corresponding declaration.

6° The request must be accompanied by evidence of payment of the required fee which will be decided by the French PTO's administrative council.
The jury will examine all requests that reach the Director of the French PTO at the latest one month before the date at which a meeting of the jury is planned.
The jury will check the candidate's understanding, at an oral interview, of the ethical rules of conduct of the profession, and can, if it deems necessary, hear the candidate on the nature and reality of its professional experience (Ed - just in case you manage to falsify all of the other papers required !!!! - doh !!!!).

Well, I still don't know who is going to sit on the jury, my most recent understanding was that there might at least be one or two registered IP attorneys, the rest being members of the judiciary, the French PTO, and the Bar Association.

One would assume that the French PTO is still going to run a check for "morality", as they called it, i.e. check to see whether the candidate had a past criminal record or not, and yes that check extends to asking the police force in foreign countries about the shady (or not-so shady) past of non-French candidates.

Of course, if you are a foreigner, have all the required experience and documentation, then it should be relatively easy to get on the list. From there, its only a small step to becoming an "Avocat", just wait for us to merge with them early next year, whey hey !!!!!!

The Scores on the Doors

2008-01-30T15:59:00.000+01:00

Yes, the "Ayes" have it, or had it, yesterday, at the AGM of the National Guild of Industrial Property Counsel in France. A massive 66% voted in favour of the resolution for the Guild to continue talks with the French Bar Association with an aim to proposing a text to the Ministry of Justice that would allow for merger of the two professions.

Despite the attempted disruption by the old guard, the motion went through, although by all accounts it was somewhat "mouvementé" as we say over here. However, all is not packaged and parcelled as neatly as one might assume from the results above. Oh no, democracy (or should I say, bureaucracy ?) above all else has to be seen to be respected - this is France, after all, the birthplace of the people's revolution (hmmm, better not wander off down that track). Forget the babbling, what I mean is that we will have to have another vote once the agreement has been hammered out with the Bar Association, and there are plenty of opportunities for the "Nays" to scupper the project and send us all back into oblivion or early retirement. Indeed, in the true "democratic" fashion, the Nays are requiring a qualified majority for that vote, scheduled on February 19th, 2008, for the vote to even be considered valid. I must admit to not being aware of the various quorum requirements for subjects like this within our representative body, so am unable to comment. I will undoubtedly just vote with my feet, as they say, and make sure that my vote goes to the "Ayes".

Told you it was going to be gripping stuff, its about the most exciting thing that's happened to us since the Guild was created (which isn't in fact all that long ago, but hey, who's counting ?)

Anway, time to calm down now and gloat over our recent victory against the Forces of Oblivion...more in Episode IX...where's that good looking princess gone ?

London Protocol - at last !!!

2008-01-30T15:36:00.000+01:00

Just a very quick note to say that I have just been informed by my national representative body of the entry into force of the London Protocol for May 1st, 2008. Three cheers, and drinks all round !!!

On the down side, it is interesting to note that our national body, the CNCPI, were informed of France's deposition of its instruments of ratification by the German Ministry of Justice. One would have thought that the INPI/French government would have been kind enough to inform us before everyone else (some British and German colleagues knew before we did, take a look at, e.g. the IPKat blog). Obviously, we are in the dog's house with the French Ministry of Industry and Commerce now that we are going to defect to the Ministry of Justice, or maybe we are just being snubbed in general by the government. I wouldn't be totally surprised considering how we've behaved over the past year or so, humming and hahing, blowing hot and cold, and generally kicking up a stink when it came to the question of translations (among other things).

Well, at last, the wood is starting to be seen through the trees. I can see much belt tightening and gnashing of teeth in store for those French firms who haven't planned financially for the drop off in easy money that the coming into force of the protocol will cause. At least I can now tell my clients that they will be able to make some savings when it comes to validating their European patents. Better than a knock in the teeth with a spiked cricket bat (not that I've ever seen one, mind you, or isn't that what they used to call a cudgel ? - we English are so civilized)

Come on, all we need now is the EPLA and we'll have some semblance of a unitary system of law throughout the EU. Astute readers will note that in my Euroland gung-ho approach I haven't said anything about the Community patent. IMHO, this will remain an economically unviable pipe dream until the various nations can pull their fingers out and do away with the requirement of having everything translated into whatever minority language we can think of adding at ever decreasing intervals as the Union expands. But I shall leave my criticism of that for another day, time to crack open that bottle of champagne that I paid with all those fees gained from translation last year :-)) after all, next year I might be sipping water and riding a bicycle !!!

Toodlepip !!!

The Name Game

2008-01-29T11:56:00.000+01:00

A rather obscure title for a rather obscure blog entry on something that is going to have a huge impact on our daily working lives as IP professionals in France. Today, is the day, when the members of the CNCPI, or National Guild of Industrial Property Counsel, meet at their AGM and decide on whether we should all just stay as we are, i.e. insignificant, unheard of and drowning in our own narcism, or instead throw ourselves into the gaping mouth (Ed : shouldn't that be "welcoming arms" ?) of the tentacular bar association mothersquid (Ed : all similarities to any existing ET films starring Sigourney Weaver are purely coincidental).

Yes, if the vote goes in favour of the resolution, we shall all become "Avocats - Conseils en Propriété Intellectuelle" - oooooh, I hear the crowd cry in wonderment. "Errrr, I'm sorry, what' s one of them ?", says someone at the back, like a comment out of another animated movie starring a plasticine dog and his dolt master. So, come on smartass, what is it ?

"Well", I say, my pointy fangs glinting in the dark (Ed - you're frightening the kids, you know that?), "its a lawyer, specialising in intellectual property". Shock horror, faints, swoons, cries from the children, and consternation. But don't worry, we're still going to carry on what we were doing before, we're just getting a new name because we think that it'll make us more familiar to the public (a child gawps at me in fear), (Ed - no, its coz you're 6'4" and you look mean and ugly). No seriously, we are going to be harmoniously integrated into the great bosom of the French legal system, and all will be well (Ed - you're fired, too sarcastic by half).

"I'll be back, vengeance will be mine, ah, ah, ah, ah, ah", I say, grinning menacingly and cackling like all madmen in B-rate movies tend to do.

So there it is. Will I become a Avocat or not ? Whilst those of you with limited knowledge of French might be inclined to chide "he's obviously nuts if he thinks he's going to become a green fleshy fruit that you turn in guacamole", then let me put you straight about what this means for us as a profession :

- we cease to exist in an independent form (much like green fleshy fruit turned into guacomole); no great loss as far as I'm concerned, nobody in the general public knew what we did anyway, other than having a ludicrously pompous title. My son's school administration changed my professional title to "Estate Agent" in their database, which just goes to show how insignificant we are (sob, sob, nobody loves me);

- we get to be called Avocat - isn't that great, sounds so cool, yeah, "Avocat, Avocat, Avocat" (perhaps I really do need a holiday);

- we get to plead in French and European courts (if we ever get a European IP tribunal that is, rage, rage), instead of being relegated to haggling like fishmongers with the INPI, EPO or the OHMI - yay, go Avocat, go !!

- we get to snub our noses back at our European and US counterparts in true French arrogant fashion (Ed - oooh, that was low);

- errrm, did I mention that we get to be called Avocat (Ed - that'll do, lad) ?

Believe it or not, I'm actually in favour of the change. It won't stop me from doing what I do at the moment. It might even open up opportunities elsewhere. For once, our profession is actually doing something about its future, instead of looking over its shoulder to its past. Good luck to the committee, I've already given it a big thumbs up !!

However, all is not rosy and plain sailing in the Guild. There are opponents, who have themselves sharpened their knives and ground their axes. The Dark Side is moving to counter the Light, and the light sabres are drawn. If the resolution fails to get the majority vote, then the central committee will undoubtedly be thrown into disarray, and their may be calls for the current president to resign. It might end in an almost civil war-like stance within the profession, and perhaps we'll get a Chancellor Palpatine instead. Oh, the grippiness of it all, I'm on the edge of my seat in anticipation (Ed - no you're not, you're eating your lunch).

Stay tuned for another thrilling episode in "IP - what's the game ?", coming to your screens soon (Ed - you're still fired, and don't come back).

Give me an E, a P, a L and an A, and I'll give you the London Protocol

2008-01-17T12:33:00.000+01:00

Such might be the title of the current ongoing political debate between France, and Germany, at least if the rumours in the European IP grapevine are true.

Indeed, in the very true spirit of intergovernmental political negotiation, it appears that the French government is holding back on filing its instrument of ratification with the European Patent Office (EPO) on the London Protocol, at least until the German government agrees to abandon the dual court system for trying invalidity and infringement and wholeheartedly and unreservedly adopts the EPLA.

As one might guess, the German government doesn't appear to be particularly keen on being held hostage in this way.

When I submitted the question of this rumour to our representative professional body, all I got in return was a rather laconic, "the French government will soon be filing its instrument of ratification with the EPO". Well, that was in early December 2007, and still nothing appears to have happened, so maybe there is some truth to the rumour after all. Sigh.

Of course, political bickering and blackmail between states is nothing new, often it is simply called "diplomacy" failing a more honest appraisal of the situation. Like most things here in Euroland, however, this form of diplomacy wreaks havoc with legal certainty, and evidently stands in the way of getting anything done, not to mention the strategy that we, as counsel, might have with regard to our clients in attempting to offer them the best protection for the least amount of financial outlay. Of course, the French government believes it has the upper hand, but in the end, I personally feel they've chosen the wrong hostage to hang up and threaten with a knife to the jugular. If I were paranoid, I'd probably say that it was thanks to the own workings of our internal representative body which was strongly against ratification of the London Protocol, and that they have now found a way of leveraging pressure just to put the axe in one more time. Of course, I have absolutely no proof of my paranoid theories, and maybe I should just sit down with a cup of tea and take my tablets like a nice boy ;-) - there, there, that's better, now, where was I ?

Back some time soon no doubt for further mind numbing, I mean, thought provoking :-) adventures.

Adoption of London Protocol in France or, How Many French IP Firms will go bust in 2008 ?

2007-10-10T15:18:00.000+02:00

At last !! The French government has finally managed to get its act together and vote for ratification of the London Protocol - Welcome to the 21st century! With a whopping 280 votes in favour, and only 33 votes against, the French Senate has confirmed the trend set by the parliament a few weeks ago, and finally practiced what the government has been preaching about stimulating economic growth in France.

As a French patent attorney, I personally welcome this decision, which has been all too slow in the coming. Many of my French colleagues, including the professional body that represents us, the CNCPI, do not, and have always opposed moves to reduce costs for the hands that feed us, i.e. our clients, instead of focussing on what we are supposed to be doing, i.e. counselling. Those very same clients are the ones that would file European patent applications, and then could not afford to validate the granted European patent in the various designated states because of the cost of translations. What would be the advice that we gave them ? Well, limit your choices to those countries where you either have an actual business activity (commercial or production), or to those where infringement might be a possibility. This often meant a drastic reduction in the playing field, and many a client quite reasonably questioned me on the rationale of having filed an European application in the first place.

Aside from the immediate consequences of this vote, there will be a significant impact on the revenue streams of many French IP outfits that basically depended on translation activity for survival, and that either refused to look ahead and leave some eggs out of the basket, or just simply buried their heads in the sand (ostrich for dinner, any one ?). That behaviour in itself now turns out to have been a major strategic business error, which additionally was, in my opinion, totally foreseeable.

The fallout of this decision, however, does not stop at the IP boutiques : patent translation firms have flourished over the past 20 years in France, and these firms are all going to be hit by the ratification. Rather unsurprisingly, the representative bodies of these firms also attempted to put pressure on the government not to ratify the London Protocol.

So what is the likely outcome of the present decision, once it comes into effect ? As I see it, and I may be wrong (nobody is perfect, after all), a fairly sizable number of small IP firms in France will simply go bust, because they didn't have the foresight to address this issue before it became a reality. Others will undoubtedly be so weakened that they will be forced into buyouts or mergers with larger firms, probably on not so friendly terms, since the global value of the boutique will be diminished (and this, irrespective of the size of the firm). Even the mammoths of the French IP world will be hit, although they will probably have the resources and variety of work that will enable them to weather the storm and come out battered, but essentially unbroken. Nonetheless, layoffs are in all likelihood to be expected and we may see a good deal more job postings for administrative staff seeking work.

Another thing that will have to change will be the daily life of the junior or trainee attorneys, who used to spend a lot of their early days in law firms proofreading the translations before they were filed with the French PTO (INPI). My own personal recollection is that it was an extremely unrewarding and entirely unprofitable experience period in my life, especially once I learned the statistics relating to who actually read the damn things in the first place, i.e. virtually nobody. Some of my fellows might say, and even did, "All character building stuff", to which I would reply : "Characters could be better built by teaching trainees to "counsel" clients, rather than force feeding them with sales pitch." Unfortunately, our profession in particular, seems to feel that it has had for the past 20 years an unwritten duty to "sell" rather than "advise".

Of course, even the most basic of IP entrepreneurs understands that we are in it to make money (and I am no exception), otherwise we would all be working for the Citizen's Advice Bureau or some other such freebie quango (which we already do, by the way, to the extent provided by the law), but there is a distinct difference between making a client pay for a service to which real value, of use to the client, has been added, e.g. counselling with all of the experience and business acumen that goes with it, and the opposite end of the spectrum where one simply takes the client's money because it is easy to do so and facilitated or obligatory from the legislative perspective. Perhaps it has also got something to do with the fact that many French IP professionals have either very little or no strategic industrial experience, and so feel ill at ease offering advice that truly corresponds to a client's business strategy. I'm being naturally provocative here, but I do suspect that there is some degree of truth in what I write, and this is certainly true from my own personal experience of many of those whom I have had cause to meet along the way.

In response to the impending crisis, I sometimes hear IP firms saying : "We'll develop new "products" to sell to our clients and generate new income". My own response to that kind of thinking is that (a) it would appear to be rather late in the day to begin thinking about new products, (b) how precisely does one propose to sell these products to these clients, I mean, why buy this new "product", when the client was (dis)satisfied with what we were already doing, (c) other than counselling, exactly which new products can one come up with - it's not as if we are selling vacuum cleaners or bathroom detergents - and (d) even if all of the above were possible, the number of "products" created would have no market penetration in the timeframe required to offset the drop in income due to the London protocol.

So, how many French IP firms will go bust or be acquired during 2008 ? Well I really don't know, but would hazard a guess at say 25-30% of all French firms. A quarter to a third of the profession, now that's something to think about. As it stands, we currently do not even have enough young professionals working in French IP to cover the projected retirement of a third of the profession over the next 10 years, a situation which is yet again of our own making (and on which I shall no doubt rant in a separate entry). Whatever happens, there will necessarily be a radical change in the IP landscape in France in the coming year. We had it coming guys (and girls), and as usual, we've only got ourselves to blame.

Inciting French SME's to Use Patents

2006-12-15T15:21:00.000+01:00

Sub us for a patent, anyone ? - In a bid to improve France's position in the patent filings number race, the French government has recently announced a measure intended to promote use of the French patent system, by allowing certain small business enterprises meeting defined criteria (I don't have all of the info yet as to what these criteria might be) to file their first patent application for free. Quite how this is going to work in the long term is beyond me. The government has already attempted to make patenting more attractive to individuals, SMEs and research groups by enacting official fee reductions with the French PTO (patent and trademark office), but even this kind of "nearly free" as in "beer" attitude hasn't taken with the general public or businesses in general.

As it stands, the first patent application filed by a French registered eligible enterprise will be subsidised by Oseo, a regional development agency quango, which now brings together the BDPME, ANVAR and various sundry other organisations into an umbrella group. Oseo is set to foot 75% of the bill for the first patent filing, with the remaining 25% being paid for by the Ministry for SMEs.

How this is actually going to work in practice is beyond me. I have not yet been informed by my representative professional body, the CNCPI (similar to the Patent Attorney Bar in the US, or the Chartered Institute of Patent Agents in th UK), save to say that the CNCPI will form part of the commission to examine the candidates for subsidy. Ho hum...I wonder if the Minister has given due thought to whether or not actions of this ilk are not anti-competitive in light of the European Commission's stance on subsidising, directly or indirectly, national industry. Well, it wouldn't be the first time the French government has been fined for doing that, so I suppose it is really par for the course.

So here we are then - yet another subsidy for small and medium sized French businesses. I'm all for making businesses more aware of the value they can create for themselves, but I can't see how subsidising is really going to change mentalities, if anything, it will make them even more dependent on subsidies to actually even think about protection. This is the case already to a certain extent, having personally had clients who only filed patent applications because they would be receiving a subsidy from the state, the regional council, or some other national or local aid agency. Talk about entrepreneurial spirit !!!!

IMHO, innovative small French businesses need to be made responsible for their decisions, not mollycoddled. What they do need, however, is to be able to keep most of what they earn in order to be able to plough it back into research and development. This, unfortunately, is still not the case. I often drop hints to would-be French entrepreneurs that their fiscal interests might be better served by setting themselves up in another country and operating from there. Indeed, some of them do choose that route after consultation with their financial advisers. Most however, have recognised that short term gain is better than any form of "learning it the hard way" experience and gladly take any grants that are going, simply because they exist.

I can hear some of my fellows chanting already, "you must be off your rocker, you're shooting yourself in the foot"", but I can't help thinking that our clients interests would be better served if we listened more closely to their needs and proposed a protection strategy adapted thereto and their actual means instead of just organising another way of drumming up more business for our profession as a whole, and receiving government backing to boot.

Only time will tell in the end, but honestly folks, don't hold your breath !!! Toodlepip until next time.

Making French Industry a Frontrunner in Innovation

2005-09-21T09:53:00.000+02:00

Well, it looks like I failed miserably on the blog up-to-date act ;-) Never mind, at least I can still carry on putting odd articles in from time to time, that's the really cool thing about blogs, and it doesn't matter if nobody reads them.

Since my last post, we have seen the rise and fall of the CII Directive : in the end parliament finally got its way, and the Commission got one big smack in the chops. Personally, I think this is a good thing - better not to have poor law, than a fundamentally flawed one. So that chapter is closed for the time being, until the pro-patent protection lobby come back in about 5 to 10 years time...

What else is new on this front that warrants a rant from yours truly ? Oh yes, the French government has introduced a new set of fees for IP filings in France, which of course have been increased, fairly significantly in some cases. I'm just waiting to hear how much of the INPI's increased intake will be siphoned off by the government to finance other projects totally unrelated to innovation, like the huge whole in the social security system, or meeting the budget deficit ;-)

To be fair, the government have also introduced a new fee schedule for SMEs, but it is unclear at the moment whether they will apply to foreign entities, since the decree that lays out the application of the new law hasn't been passed yet and won't be until January 2006 - typical. The new fee regime allows a 25% reduction in official fees for the major fees, i.e. the filing fee, search fee, and extra claims fee. Renewal fees will also be covered by the reduction.

The reduction is available to individual inventors, public research institutes, and small business that have fewer than 500 employees, generate less than 50 Million Euros annual turnover, and are not held at more than 25% share by a company not eligible for the reduction. The reduction is available simply by filing a declaration. Financial sanctions will be imposed for those applicants who misrepresent the truth, but there appears to be no counterpart to the unenforcibility rule that exists, say in Canada or the US. Similarly, and in true French legislative fashion, it is uncertain whether an applicant must keep the French Patent Office (INPI) informed of any changes in its status. In theory for French applicants at least, the French PTO (INPI) is the guardian of the nationwide commercial register, so it should be relatively easy for them to check up on potential fraudsters that are French domiciled, but I see no way of the INPI being able to keep tabs on foreign companies not registered in France. Should be fun to watch, in any case.

How do I feel about this new incentive to get French businesses to file for IP rights ? Personally, too little, too late, and especially, completely out of touch with market reality in the world today. The reductions won't be available for French companies wanting to file European applications, even if they designate France, nor PCT applications, by the looks of it, and I really must ask myself what the point of the whole maneuver was in the first place : promotion of French SME competitivity in the French market place ? Hardly, considering that these home markets are essentially dwindling in the face of foreign imports and globalisation. What else then ? The cynic in me says political rhetoric, vote counting, and looming presidential elections in 2007. To be frank, I'm really not convinced that these measures will do anything to promote and strengthen French SMEs in the world market as it is developing today.

Well, all for now, toodle pip !!!

Computer Implemented Inventions get the Green Light in Europe

2005-03-08T14:18:00.000+01:00

The EC Commission finally managed to drive its CII Directive through via the European Council of Minister's debate, approved as a Point A item on the agenda yesterday, and after a somewhat late protest made by the Danes to have the item changed to a point B item. The difference between point A and point B as I understand it is that point B items require discussion, whereas point A. Unfortunately for the Danes, who appear to have been left standing in the lurch by the other countries who had initially stated they were going to have second thoughts about the implications of the Directive, they didn't request withdrawal of the CII from the agenda as a point A item, rather requested that it simply be considered as a point B item. It appears then, that the Luxemburg presidency of the Council basically told them to go and learn their EC internal rules guidelines and upheld the item as a point A item. End of discussion. Or is it ?

Although once an item like this has been approved by the Council of Ministers, it still has to go back to Parliament for formal ratification. If the same MEPs that fought to get the Directive changed are still so inclined, it could in theory be possible to get the whole thing thrown out. After all, the European parliament did request that the draft negotation process be started all over again, a request that was refused by the Commission. So will there be a face down between Parliament and the Commission ? - should be interesting to watch ;-)

In the end, it all boils down to who is running the show. Is the EU run democratically ? It doesn't look like it when one sees how legislation like this gets pushed through despite the duly elected MEPs best efforts to accommodate the wishes of their electorate. On the one hand we have MEPs, who, like most politicians are interested in satisfying the largest number of potential voters, and who are elected on that basis, and on the other hand, a Commission, whose members are not publicly elected by the European Union populations, and whose responsibilities are often mingled with their own personal or professional interests despite all attempts to claim impartiality. Yet, it is these very people, and not the MEPs, that devise and create the European legislation we are seeing passed today.

The end result remains to be seen. Will small enterprises be run out of business by large marauding IPR holders ? No doubt this will occur to a certain extent when one sees how such rights are used to levvy pressure and commercial advantage. Will it stimulate patent filings on computer implemented inventions ? Undoubtedly, yes, because there will be the inevitable "me too" syndrome, much like the nuclear warhead proliferation during the 50s and 60s. Does any of this make the situation legally clearer now than it was before ? After all, this was the Commission's stated goal. In my opinion, probably not. The Directive still needs to be implemented in national legislation. This provides opportunities for national governments to bend the Directive in the direction they feel most acceptable to them, and even though they may incur the wrath of the Commission and be subject to fines, many countries take an excruciatingly long time to comply with findings of breach of the Directives they are supposed to implement.

One only has to look at another recent example, the Biotech Directive, where several countries, even though they virtually all voted for it, have refused to implement it, and are now being fined by the EU instances of authority. The French government even went so far as to modify one of the fundamental articles of the Biotech Directive, Article 5, essentially disembowelling it, because the official text didn't fit with its own vision on the subject.

The same will probably happen to the CII directive to a certain extent. What that means is yet more fear, uncertainty and doubt for everyone involved, for a good time to come. In other words, much like the present state of affairs. Swings and roundabouts, as they say...

So basically, when someone asks me now whether a computer implemented invention is patentable, what will I say ? Name me your country and we'll toss a coin ;-)

P2P Downloads of Music and Films in France - "are you feeling lucky" ?

2005-02-21T09:44:00.000+01:00

The famous quote from one of the Dirty Harry films "Are you feeling lucky ?", might well apply to all of those French residents that are into P2P file sharing and downloading of music and films, if a recent decision by a court in France is anything to go by.

The accused infringer was a primary school teacher, sued by the European equivalent of the MPIAA, for having used P2P networks to download and distribute copyrighted material without the authorization of the rights holders.

The defendant pleaded exception to the law under the right to the "copie privée", claiming that he had downloaded material for his own personal use and for that of his close family and friends, and that no exchange of funds had ever intervened in any of his actions.

Although the court didn't follow the arguments brought forward by the defendant, it did come out with a particularly remarkable sentence, in which the Court stated that the accused had been "unlucky", considering the ever increasing amount of participants active in P2P file sharing in France. Other courts have been less inclined to proffer such clement remarks, limiting themselves to the strict requirements of the law, more or less equivalent to "Thou shalt not steal".

The defendant was sentenced to a very heavy fine, in fact, the largest fine ever pronounced thus far in a P2P file sharing case. It is understood that the defendant will file an appeal, but it remains to be seen whether his defense lawyers will be following the line opened up by the Court as to the "lucklessness" of his acts. Such lines of argument are often used in criminal cases for first offenders, as a justification for someone who has erred and then seen the light and repents. If so, then the Appeal Court won't have to deal with the prickly issue of whether French citizens really do have a right to the "copie privée", something which the majors of the film and music industry are increasingly eager to stamp out.

In the meantime, if you live in France, and are like many thousands of others involved in dowloading music and films from P2P networks, then maybe you should ask youself the question :

"Are you feeling lucky, punk ?"

Introductory Blog Contribution

2005-02-18T19:02:00.000+01:00

Well, this is it then. I've finally followed the "me-too" road to blogdom. This is a trial, I'll see if I can hack it over time. If I feel it gets too much, I'll throw in the towel, I know how to accept defeat gracefully ;-)

The point of my blog is to discuss anything that springs to me my mind about IP. For those not in the know, IP means intellectual property. Let us start with the way I express myself on this blog, that could give rise to copyright, if I could prove that it is an original form of expression. Indeed, did I not choose my vocabulary in a way that reflects my current creativeness ?

OK, cut the crap. I'm not going to philosophize about whether there is anything worthy of protection in what I write here, so :

Rule Number 1 : all matter published on this blog is made under the Creative Commons Licence. Look it up in a search engine, if you don't know what that means. Any comments you might wish to post will also fall under that licence, else you can forego commenting.

Rule Number 2 : it is my blog, and in typical dictatorial manner, I shall decide whether to publish comments or suggestions made. Besides, I don't want to be held responsible for some idiot ranting on about how to kill so and so, how to make various dangerous devices without being rustled, etc, etc. I'm the king, you can like it or lump it.

Rule Number 3 : I haven't thought of this one yet ;-)

I shall try and make my contributions as informative as possible, but I'm not averse to the occasional rant ;-)) Trolls, please stay away, and go and feed yourselves somewhere else.

Oh, yes, and I shall from time to time write in French and possibly German, so I shall also accept comments in those languages too.

Ho, hum, next topic, methinks ?