Illegal Downloading of Music - A Transition Year Student's Opinion

The music industry has been hit hard by the problem posed by illegal downloading. Downloading music without paying for it is so easy today, you can do it for just about any song within minutes. The number of websites you can do this on are endless. It’s so simple that it’s possible with just about every song you can think of. What this does is rob the music industry as a whole of much if its profits. This can eventually lead to artist’s not making record labels enough money, causing them to loose popularity and be out of a job. Illegal downloading is essentially killing off the music industry just for the sake of saving a miniscule, sometimes insignificant amount of money on one song.
Many people I know use a program called Limewire to download music for free, others use a website called Beemp3. With these you can simply type in the name of the song you want, and it’s right there for downloading at the click of a button. Not all people exploit this though, a lot of people do download music safely and legally. In fact, the record for the most downloaded digital single in the world is “Flavour of Life” by Japanese artist, Hikaru Utada, with 7.7 million legal downloads worldwide in just one week. Japan also has the highest count of iTunes users in the world.
Illegal downloading applies to movies as well, people would rip the movies from their DVDs and put them up on the internet, others would bring recording equipment into cinemas, both of which of course are against the copyright agreement and are therefore, illegal. These cinema recordings would most commonly be sold on the streets, making the seller liable for a court fine and/or prison sentence.
File sharing is a very commonplace entity in copyright crimes. File sharing is where people make files that they choose, available for mass download by the public. This is how most people download movies illegally. Some examples of file sharing websites are: Rapidshare, MegaUpload, Fileshunt, etc.
Recently in Ireland, a system was proposed to internet providers to do a “three strikes and you’re out” regime. If their customers are caught illegally downloading files more than three times, then their broadband provision will be terminated, Some companies didn’t sign up for this, knowing that it would more than likely decimate their customer base. They have said that they are hoping to come up with a less dramatic solution to the problem posed by file sharing and how they can help to stop it. Their excuse is that they cannot be held responsible for how their customers use their broadband.
The Irish Recorded Music Association has showed great concern over this matter and has spoken with several of Ireland’s broadband providers. Being the company to handle all of the royalties when it comes to the Irish music industry, they have been losing a lot of profits because of illegal downloading. The issue as a whole is becoming quite an embarrassment to them so they are taking swift action to prevent it from growing any further. They have taken the brunt of the blow and need to stop it from getting worse.

Conor Madden – Transition Year Student John Scottus Senior School, Dublin 4

A Ray of Hope for Software and Business Method Patenting

Ontario, CA. The Federal Court of Canada has recently issued a decision in favour of software and business method patenting. The Federal Court overruled an earlier decision by the Commissioner of the Canadian Intellectual Property Office who had rejected a patent application from Amazon.com, Inc. for their one-click purchasing method. The Federal Court stated that there is no categorical exclusion of business method inventions, and, software-implemented inventions that achieve “commercially applicable results” are patentable.

The Federal Court found that the Commissioner had erroneously applied foreign jurisprudence which had no basis under Canadian Law. The Commissioner was found to have injudiciously applied a new test for patentability which had no basis, had used an overly restrictive interpretation of the term ‘art’ (any “new and useful art” is patentable under Canadian Law), and, incorrectly stated that an invention must be scientific or technological for it to be patentable. The Court rejected the Commissioner's reasoning for rejecting the patent application and sent the patent application back to the Canadian Patent Office for re-examination. In delivering the decision, the Court indicated that the criteria for assessing patentability should be set broadly to account for inventions in today's technologically advanced era.

The decision by the Federal Court has increased the possibility for business method inventions and software-implemented inventions to be protected in Canada. In light of recent decisions in both Europe and the United States of America (G1/08 at the EPO, and, Bilski in front of the Supreme Court), this decision in Canada is most welcome and it is hoped that the decision will pave the way for a wider acceptance of business method patents and software-implemented patents in other jurisdictions.



October 19, 2010

Cruickshank & Co.

We’re too poor to be mean!

Everyone knows that times are hard right now, cash is tight and businesses are struggling to keep their doors open. So when a ‘consultant’ suggests spending money, often it is very easy to find reasons to say no. However when times are tight that’s exactly the time when we must remember to spend our money wisely, extract every cent’s value from our spend and remember that we are too poor to be mean.

Buying the cheapest often makes for false economy as cheap products will probably be unreliable or break and have to be replaced far sooner than the better product that cost a little more. Irish businesses need to be very careful that we don’t fall into this trap during recessionary times.

When it comes to intellectual property, one area that stands out is trade marks:

Brand recognition is priceless. If you are going to spend some money on brand design, you should always check to make sure you are free you use trade marks in advance of spending money on having the design work done. An availability search would normally cost in the region of €500 so it’s hardly expensive. Nevertheless I am frequently surprised when people refuse to have availability searches done, and instead rely on the hope that it is ok to use their logo. Very few people seem to realise that registering a company name at the CRO or the registering a domain name confers no rights whatsoever.

So what is the potential cost of failing to do a search and being told that you can not use a logo? We recently revamped our own image: updating our website www.cruickshank.ie, renewing and refresh our logo and the redesign of our fonts and letterheads on our correspondence. We printed fee brochures, file folders, compliments slips, and business cards. We also got new signage done internally and externally and we had a number of pop-up banners created.

As a relatively small company with approximately 25 people who do not use a lot of stationary, our orders were relatively minor. So it might come as a surprise to many that the entire work including the design and print but not including my time or the other partner’s time cost €36,000. That’s €36,000 I would have wasted if I were not free to use the trademark I had chosen. That’s forgetting about the fact that I would have to spent the guts of the €36,000 again coming up with another new logo and I don’t even want to think about cost of the damage to the firm’s reputation.
Spend wisely friends and remember we are too poor to be mean!!

Decision of the Enlarged Board of Appeal on Case G3/08

In short, the Board decided that the case was inadmissible, however they provided some general guidance on the patentability of software in their general discussion of the admissibility of the case. Essentially, the Board have indicated that the current working practice of the EPO is acceptable and nothing will change.

The case was referred to the Board by the President of the EPO under Art. 112(1)(b) EPC, as the President felt that a number of Boards of Appeals had issued diverging decisions. The Enlarged Board of Appeal found the referral to be inadmissible as they did not feel that any of the decisions issued by any Board of Appeals were divergent. A large portion of the decision is given to a discussion as to what a divergent decision might constitute, i.e. two different Boards issuing different decisions, the same Board issuing a different decision, and so on. Also, there are linguistic differences between the English, French and German texts of the EPC regarding the words for divergent. In the end, the Enlarged Board of Appeal have taken the view that case law is allowed to evolve and therefore earlier decisions can be replaced with new decisions as the general approach to the patentability in a particular area is honed over time. As a result, the Enlarged Board of Appeal decided that none of the cases regarding the patentability of software were in any way divergent, or conflicted with one another, and hence the referral was inadmissible.; and this is the actual decision has been taken in case G3/08.

However, in arriving at this decision, the Enlarged Board of Appeal discussed many of the general issues concerning the patentability of software. The Enlarged Board of Appeal have indicated that in order to obviate the exclusion from patentability, any mention of a piece of hardware, or defining the claim as a “Computer related program…” as opposed to a “Computer program…” would be sufficient. This is very much in line with the approach taken at the moment. The Enlarged Board of Appeal have also followed the seminal decision of T1173/97 (IBM) which was first to mention this concept of a “further technical effect” beyond the expected technical effects of a computer program causing electrical currents to run in a computer. Although this decision did not mention that the further technical effect should be assessed with respect to prior art (the decision stated that the further technical effect be used to assess whether the patent application be excluded from patentability), the Enlarged Board of Appeal have now indicated that the exclusion from patentability be assessed with respect to whether the claim is only related to a computer program or whether there is any mention of hardware in the claim, and, that the concept of the “further technical effect” be used in the assessment of novelty and inventiveness. Again, this is very much in line with what the Examiners in the EPO are currently doing. In many of the amicus curiae briefs, it was expressed that a programmer writing code to carry out a particular method would have to employ many technical considerations in writing the code, and thus a computer program would implicitly have further technical effects. The Enlarged Board of Appeal stated that the programmer must have had technical considerations beyond “merely” finding a computer algorithm to carry out a procedure. Therefore, the programmer must have had “further technical considerations” in order for the computer program to be considered to be patentable, and therefore has confirmed this notion of using s further technical effect to asses the novelty and inventiveness of a computer program. The Enlarged Board of Appeal did not offer any definition of “technical” nor “further technical effect”.

Rory Litton

European Decision on Software Patents

Alison Brimleow President of the European Patent Office referred the question of patentability of Computer-Implemented Inventions (often referred to as Software Patents) in 2008. Yesterday, May 12th, the Enlarged Board of Appeal handed down their decision and rejected the opportunity to change the EPO’s practice in relation to CII’s. Thus applications that are Computer-Implemented and have a technical effect will continue to be accepted. More detail on the decision can be found at http://www.epo.org/topics/news/2010/20100512.html
For further advice relating to patenting software and business methods please contact Cruickshank on 01-2992222.
Richard O’Connor – Partner

New Irish Patent Office Guidelines for dealing with “Applications For Extensions of Time “ for Trade Marks to come into effect from Tuesday 4th May.

These new guidelines are being put into place to ensure that all applications for extensions of time are not being made routinely, but are the result of, or supported by evidence or exceptional circumstances.
These can include but are not limited to:
• Awaiting the outcome of negotiations
• Court cases awaiting completion
• Awaiting decisions from WIPO, OHIM, etc.
• Other proceedings awaiting completion
• Circumstances beyond the reasonable control of the applicant
• Significant progress has been made but additional time is required
It is hoped that this guidelines will assist the IPO to become more efficient and lead it to become more effective. So going forward parties dealing with the IPO should have matters dealt with as quickly as possible provided all parties are acting in a prompt and efficient manner.
So from May 4th the First extension will be allowed up to 3 months. A second extension will only be considered in special circumstances and you have to file evidence of this and answer various questions. This will then only be granted for an appropriate period, so may be less than 3 months.
The third extension will only be granted if you can show there is still exceptional circumstances and that progress has been made, and you must have new evidence to submit, third will be final.
For more information about Trade Mark prosecution call one of Cruickshank’s team, Mary Rose O’Connor, Seamus Doherty, Maria del Carmen Cobos or Richard O’Connor.

To Search or not to Search – Patent searching a worthwhile exercise?

We do our best to answer as many patent related queries over the phone for new customers. Often they have relatively simple questions about the patentability of different technologies and assuming they are prepared to disclose the general area they are working in we can give them a rough steer. Other queries relating to Trade Marks or Designs are often usually easy enough to answer without incurring any costs.
There is however one type of query that is far trickier to deal with and that is queries relating to Patent Searching. There are far too many reasons to give here as to why a company would want to conduct patent searches early on in the development of a new product or technology, and all of them are valid, but perhaps the most frequent given reason is to determine if someone else has ‘done it/had the idea before’. It was estimated recently that in excess of €20 Billion is spent in the EU alone every year re-inventing what has already been invented. Therefore, if you are a large organisation with an R&D budget it seems sensible to allocate some of that money to conduct patent searches if only to see what activity there is in the chosen area of technology.
It is worth stressing though that the initial question of has this been done before, will not be answered by a patent search. Firstly patents are not published, in general, for up to 18 months after they are submitted. So that means that patent searches are automatically not up to date, and if someone filed a patent for the exact same idea as you yesterday, we will not find out about it until 18 months from now. Imagine how much time money and effort might have gone into developing prototypes, packaging, distribution and marketing by then only to find out that the product infringes a patent?
Secondly, who’s to say that a patent search will find all existing patents? It would be fairly obvious to search the European Patent Office website but where do you stop. There are at least 140 national patent offices in the world, and while the major ones are linked through mutual databases do you have the resources to search them all? The UKIPO charge roughly €1,000 to carry out searches and allowing attorney time of no less than 5 hours to analyse and review any patents that it finds and you are talking of a bill of at least €2,250 for a comprehensive search in the UK alone. So I would suggest that very few Irish businesses have the resources to carry out an extensive worldwide patent search given that it could cost in excess of €50k.
Finally, what if the product or idea has been thought of already but no patent application has been filed. Well in this case the good news is that you won’t be prevented in all likelihood from bringing your version onto the market (some countries like Ireland have unregistered design rights), but equally you won’t be able to protect your idea as it has been disclosed elsewhere and worse still if you have spent money on patents all your money is wasted because the applications will be potentially invalid. So patent searching alone may not be sufficient.
It seems that small Irish businesses are caught between a rock and a hard place. You want to find out if your product is novel but you can’t afford the budget to do so comprehensively. The solution is not simple or straight forward but the first step is undoubtedly to consult with a qualified Patent Attorney that understands the pitfalls of carrying out searches. I suppose thought the conclusion that must be drawn is that it all depends on how much money you stand to spend on developments or for that matter how much money you are prepared to lose.

For more information or a copy of a FREE guide to Patent Searching mail to: roconnor@cruickshank.ie