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It's my pleasure to introduce Natalia
Lukashevich, who is talking about
the maker movement, and I think this is a
pretty interesting topic because when
you're a maker, you start
to experience problems that are usually
not really yours to think about.
For example, you usually don't
really think about marketing your stuff
or whatever, and
you might think about copyrights
and.
This is something where we will hear
many details about from Natalia,
who has done her PhD thesis on this,
so a great applause for Natalia.
OK, and good evening, everyone.
It's a great honor for me to be here.
I'm a student and I will present
you my my
PhD research I conducted on pardon
flexibilities.
In my research, I did a comparative
analysis and I tried
to analyze and analyze
the pattern flexibilities from the point
of view of freedom to operate the
provide.
And I transferred my results
on the maker movement.
And today I would like to
give you some guidelines on
the allowed use on patterns
so that you can be free
in your making activities.
My talk will consist of two parts.
First, I would like to give you an
overview of patterns to what patterns
are, how patterns
are built. I would like to also
expand you the rights conferred with
patterns and I couldn't resist
and decided also to highlight
questions that are currently
debated on the on the patent system.
Then the second the biggest part of my
talk is on patent flexibilities.
I will explain what patent flexibilities
are. I would present your catalog
and then I will focus on chosen
flexibilities that
can help you in making
and will support your activities.
So first patterns.
A patent, a patent right is
an exclusive right upon the use
of a technical solution granted
to an inventor and
patent must meet three
requirements.
Well, these requirements differs
depending on your addiction here, the
main one. So patents are must
be novel and obvious and industrially
applicable.
They are disclosed.
The solutions are disclosed in
the patent application that it's
published after 18 months from the
date of filing patents
and granted by a patent
office. And that's the main
difference between the copyright because
copyright is granted automatically,
whereas here you have to apply and you
have to pay for patent.
Just to give you an example.
In Germany, the first
minimum cost of a patents around 5000
euro, this including patent attorney.
And of course, if you apply in more
countries, the cost
gets higher because you have to hire more
patent attorneys, you have more of
administrative fees to pay, etc.
And patents are granted
for 20 years, 20 years, calculated
from the date of patent application.
This how a pattern looks like pattern
claims are the core part
of the patterns where you determine
the features of the protector of
the protective technical solution,
patent claims are supported by
description and drawings in description.
You present the problem, the solution,
the prior art and the examples.
Patent applications must comply
with the requirement of sufficient
disclosure.
I said patent claims are supported by
description and drawings.
They cannot be broader because
then they are not supported
and sufficient disclosure is called also
enablement.
And with this disclosure, a person
is killed in the yard should understand
the technical teaching and should carry
out the solution
that that is protected.
A modern patent system are
around 200 years old, the first
US Patent Act was
enacted in 1790, then
was followed by France, of
course, the first patent Oxford word
afterwards modified and
adjust to to
to the conditions and the needs,
technological needs.
Patents have various justifications
and various theories.
Here I presented
only three.
I found the most important first
rewards theory.
Patents are rewards
for undertaking efforts and
investment.
This rewards theory underlines
other theories, and
I find it the most important.
The reward is the market monopoly
for 20 years and
the exclusivity on the market to use
to license and to
enforce the right.
Then another theory
incentive to disclose, as
mentioned already,
sufficient disclosure.
It's the important requirement
for every patent application.
Then the underlying concept for this
theory is the belief that trade secrecy
impoverishes the the
society and the public and
the inventor.
So to say sign and contract,
the inventor reveals, disclose
the technical teaching and is granted
the patent protection.
And this disclosure helps the society
to grow, to progress
and to develop.
The third one I would like to highlight
here is incentive to invest.
Very often patents attract
the investment.
The perspective of patent
protection is interesting for
investors to simply pump into
money in a given project.
What gives you patent?
Well, I said it's an exclusive, right,
and it gives you the right to prohibit
others from using,
making, selling, offering
to sell or importing
the technical teaching that is protected
legally. It's called
exclusive rights.
But this exclusivity is
translated as market monopoly
because it gives you this monopoly on the
market that you are as inventor, as
the patent holder.
You have the full exclusivity
to monetize
the patent.
And here.
We call copyright copyright
law, patent law, intellectual property,
and this intellectual property has
strong economic implications.
That's why I opt for a slight
modification of this terminology.
Maybe it sounds somehow irrelevant,
but when we hear property,
we know that we should protect the
property. It's like, holy cow, we cannot
touch it. And that's why I think we
should call patent patent law
copyright trademark law
as intellectual assets, because
this term actually clearly
pronounced the purpose of the system.
Now, patents are tradable goods,
as I will show you.
And next, slides.
Yes, questions.
So there are various questions about the
current state of the patent system,
first, patentable subject matters.
The scope of patentable subject matter is
growing.
Initially, patents were granted
for tangible goods, so devices,
elliman, some components.
But nowadays more patents
are granted on the intangible
that there is great issue with
software patents,
that quality is often
a challenge.
There are also biotechnological patents
and still controversial.
Whether we can, you know, whether
we can protect something that exists in
the nature currently on the in vitro
processes are protected.
So nothing that is done on human body,
InVivo can be protected.
Then patent quality
and hear small picture.
So when you attend lectures and patent
law, you learn that there is a state
of the art.
So everything that is known
above them, above this
level, there's a field
of obvious solution based on
the state of the art.
And above this obvious level,
there is no one obvious
level of technical solutions
because patents are granted
for should be granted for outstanding
solutions.
That's the theory, in my view,
and I'm not alone.
The practice shows something different
and this is pretty scary
because the level of the patent
threshold is currently pretty
low.
Maybe some of you follow the websites
of the Electronic Frontier Foundation.
They have very funny stuff.
Namely, they post every a stupid
patent of the month.
And I
think it was November, October.
It was a patent on filming yoga
class.
And when I talk with practitioners,
they find such examples
as anecdotes.
And I don't think this is the case
because, as mentioned, there are software
patents and the
level of invalidity in this
group is extremely high.
So we have a system with poor quality
patents.
It's estimated that around 50 percent
of patents can be invalidated.
And it's pretty scary because
I cannot think of any other industry
sector with this level of failure
in production of efficiency.
But the patent system is doing very
well and as I said, 50
percent in general and to some 70
percent, if not more, of software
patents, bad patents.
Land by patent trolls,
currently, we don't talk about patent
trolls. There is a nice term for
this, namely troll like behavior.
So these are companies that
aggregates patents for
the sole purpose of the enforcement
via demand letters.
Of course, companies sell bad
patents to patent trolls simply to
monetize them if
they can not license on a normal
basis.
Another plaque
in the field of patent litigation,
because, of course, there are certain
patent litigation with patent
trolls that are patent was the most
famous Apple versus
Samsung and others, Google
versus Yahoo!
As said, patents became
tradable assets.
And that's why I would like to repeat it.
I propose the term of intellectual
assets. Just to just give you an example,
Google bought an IP
portfolio from Motorola around
70000 patents for
twelve point five billion US dollars
and somehow like
surprising that Google buys Motorola
patents.
Why? Because Google wanted
simply to increase its IP portfolio
to be stronger and
like harder to to be attacked
by competitors.
So this is the background.
And against this background, I analyzed
patent flexibilities.
What are patent flexibilities?
Patent flexibilities are tools,
legal tools that limits the scope
of patent exclusivity.
The main purpose of the couple,
to safeguard the balance of interests,
the interests of the patent holder and
the interests of the society
of other of third parties of users,
then they facilitate working
on patented solutions.
I will name a couple of examples
and there they are.
Can be used as a defense.
In patent infringement cases,
patent flexibilities are known
rather as patent exceptions.
The term exceptions
is associated with something rare,
and so it means
that they limit the scope but the very
narrow and rather extend
the underlying provision for
old patent exceptions is the Article
30 of the TRIPS Agreement Trade
Agreement on trade related aspects
of intellectual property rights
from 94.
That sets the minimum standard protection
standards globally.
And it says that an exception
must be limited,
can not unreasonably
conflict with the normal exploitation
of the patent, and cannot
reason unreasonably prejudice the
interests of the patent holder,
taking into account the interests
of the third parties.
It's pretty complicated and
this article was formulated
in abstract way and
it said what it stipulates
so-called three step tests.
So every patent exceptions, every
legal tool must comply with
all three requirements.
And if it fails, if
a certain legal solution fails
to comply with the first the first
step, which is limited exceptions.
So it's something even
narrower than an exception.
It's out of the game.
The exception cannot be introduced into
the legal system.
In my research, I focused on
on flexibilities, exceptions
that either allows you to freely
work on patented solution
or can be used as a defense
in case of patent infringement.
The main problem with making is it's
it's it's public
character, because as long as you
make in a garage or in the basement,
everything is okay because nobody knows
about your solution, about your
ideas. But with
the moment when you start to share
and you post your ideas in
the Internet or share with friends,
and at some point some
of you might might become very successful
in your making, then you might get into
trouble with patent law.
There are various types of patent
exceptions, patent flexibilities,
but the abundance of tools
is rather misleading because
the scope of application is very
narrow. In my research, I
focused on, for the my
opinion, the most important
patent system, which is Germany,
the United Kingdom, the United States
of America and Japan.
Here in my talk, I decided
to extract as far as possible
commonalities between those systems
and there were necessary.
I will give you I will get more
into details, into differences so that
you can understand and be
more aware of the slight
nuances between the
systems.
So the cat look, I said it looks
pretty fine because the various
tools, but
my analysis led
to the conclusion that there are only a
few that would apply into
making scenario.
And here I would like to also underline
that none of these tools will
support making 100
percent. It's rather that you have to
adjust making to these
exceptions to
to feel safe and free in your making
activities.
So the first one, private and
noncommercial use.
This is a statutory limitations
in the United Kingdom and Germany.
I haven't found much about
private and noncommercial use in the
United States only
in terms of repair.
And I will talk about reproduction
in a couple of minutes.
But with regard to Japan,
I also found only a short
comment that the system accepts,
although there is no statutory limitation
with that with regard
to this type of flexibility.
So what is what is it about private,
noncommercial use?
These two features cannot be separated,
so you cannot work privately and
earn money and then work publicly
and not earn money and invoke on
this flexibility.
Private use is understand as use
at home within individual
sport activities or for personal
use. But as I found it
applies today to this US
system. Personal use can
be also challenged and found as an
infringement of patent law,
and the noncommercial use is pretty
clear. You cannot earn money.
You cannot conduct any business
activities if you
want to apply invoke on this
flexibility.
So here I decided to focus to tell
you what is not allowed.
So of course, you cannot produce and you
cannot sell.
I found an example,
the use of patented lamp in a waiting
room in a doctor's office.
If you use a patented device
at work, even if you for instance,
if you are a freelancer and you have in
your office some certain devices, you
cannot invoke on private noncommercial
use because you apply this
device for commercial purposes,
of course, the resale of purchase device,
then if you make an
item here, I give an example of a
software for private proposes
and then you use this software
for public programs.
But private and noncommercial use does
not apply.
And the last example,
this was pretty tricky
because this is case from 1887
where the defendant built
a well on the farm and used
it personally for personal proposes.
And this use was found as an infringement
of patent rights in
the United States.
The experimental use, I think this
might be the most useful type of
patent flexibility flexibilities,
you can find it in all
systems and
I said is the most important patent
flexibilities because it says
the technical progress,
the further development, the further
improvement of technical patented
solutions.
But the most important part
in this patent flexibility, it applies
only to experiment you conduct
on the patent the subject matter.
So if you use a given patented
device to test something else,
this use will be not regarded as
experimental use.
There are certain differences
between jurisdiction,
so the main prerequisite for this pattern
of flexibilities is adding new knowledge.
So this prerequisite must be
met then commercial use.
You know, certain experiments may
lead to commercial product,
for instance, if you improve some
chemical substance.
German system is pretty generous and it
accepts further
applications of results,
but not other system.
And so in the United Kingdom,
then the
experimental use must dominate
over the commercial proposals.
You might monetize the
results, but still you
have to prove that the main focus
was on experimental
proposes,
both German and UK
system.
They do not provide any quantitative
limitations in the provisions.
However, the scope matters, so
you cannot claim that it was
experimental use if you tested
a great amount of
patented solution in various
in various places.
It all has to be in experimental
amount to be considered
as experimental use.
The United States have very, very
narrow application scope for this
flexibility.
It applies only when contracts
are for amusement,
idle curiosity or strict philosophical
inquiry.
Additionally, the doctrine
the courts introduced the term of legal
interests and a legitimate,
legitimate interest that pertains
to business objectives
in your experimental
research.
And to give you an example, a
very controversial case, Dr.
Jong May Day versus Duke University.
Dr. Medy, he
left the university and he left
his laser devices,
patented laser devices that the
Duke University used
further with students to conduct
experiments.
And he accused the university
of of the infringement of his patents
that were embedded in this particular
laser device.
And the court found,
well, base its argumentation of the
legitimate interest here, legitimate
interest of the of the university.
Was that education?
And, yes, pretty
well, controversial and shocking for many
because it's obvious that university
educated people.
But to educate people, university gets
money from the students so that
they can use laptops
and devices.
And that was found as a business
objective of Duke University
in terms of the use of
this particular device
with regard to Japan,
based on the resources I had,
of course, adding new knowledge,
it's the main requirement
in the
system.
The legislator allows
those experiments to obtain
regulatory approval.
This applies mainly for pharmaceutical
companies that start testing
certain drugs before the expiration
of patent terms for
primary drugs to
introduce generics on the market.
So this is covered by experimental
use in Japan.
Summing up, you can
invoke an experimental
use if you're making
serves the following proposals.
You find new applications.
You try to understand the technical
teaching. You assert sufficiency,
applicability, discover something
unknown. You test hypotheses, you test.
You want to determine the working of
certain patented solution in various
conditions.
And last but not least, remember about
the scopes of the samples.
It cannot be oversize
and what is not allowed.
You cannot conduct experimental
experiments to four
to find market information
to measure whether certain solution
fits with your business profile
or to assert a third party that the
product works.
There are also situations
where you may
work on a certain solution
and later you will find that this
solution was patented and you are the
first.
So then we talk about the prior
year. So it's about
using certain patented solution
before it's priority, before
the patent application was filed.
Prior use does not
constitute the prior art,
so you cannot claim prior use
to invalidate the patent.
And of course, you start thinking
about prior years when you when you have
the situation of patent infringement.
OK, so what do you need
to apply to invoke on
prior year?
First of all, you have to use
the patented solution and
it cannot be stolen patented
idea,
the prior use of the protection of
business activities.
So if you claim the prior
use, you must show that there were
certain commercial
activities undertaken or serious
preparations for further commercial
applications.
And there is no remuneration.
It is a general rule.
There is no remuneration for the patent
holder and prior use.
The rights you get is not a license,
but to prove the prior year,
you must have flawless evidence.
It's very, very hard.
Otherwise, if you if the court see
that there is something lacking, then
you you are on the border of patent
infringement. And if it is the other
side, one may think that
the other party simply stole the
idea
and risk the patent invalidity
and the prior use continues after
the grant of patent so you can freely
and safely develop
your business model with regard
to the certain patented
solution.
Then repair doctrine,
this is very tricky stuff
because it's very
simple, and I think everyone understand
intuitively what it's about, that you
replace a broken part
to to work to to make a certain
device usable.
Again, a set
tricky because it's simple when it
comes to definition.
It's very complicated when it comes to
the application,
the repair doctrine, a basis
on the notion, depending
on the jurisdiction of the X, on
the X of on the exhaustion principle
or implied license of first
sale doctrine, all of
them concern unconditional
sales. So there are no contractual
limitations upon the use of
patented device.
Think about simply buying some electrical
device.
You take it and you are allowed as
a user to repair it.
The underlying concept for this
is the compensation you pay
once to the patent and
the patent cannot demand
double payment.
After he got already,
he was paid for this device.
The repair doctrine
is often confused
with reconstruction.
The concept
there are very blurred and clear
borders between what repair
and what is reconstruction.
So you can prolong the life
of patented device by replacing the
broken element.
But you can not make
a device.
And you the question
is what is when?
And the case law in all
states jurisdiction is very rich and
abundant, but it's very difficult
to to extract a
clear guidelines upon what is exactly
allowed and when.
After all, you have to get into
the patent claims, analyze,
understand the technical teaching, what
was change and whether this
this change replacement is
repair or reconstruction.
A reference points.
This is the identity and sensuality
of the element.
So how essential how the element
contributes to the technical teaching.
Very often inventors
explain or intend, even
for certain certain parts to be
replaced.
Then then it's OK.
Hmm, yeah, so I tried
to to present
you certain rules that might
be useful for you when
you make on things,
so if the replacement was invented by
the patentee, you
can feel safe and you can replace an
element.
If an element is of short
life span, for instance, a syringe
in a syringe system, obviously
you cannot buy a new a
new device if you need to replace
a syringe.
And then if you're working, making
that does not change the identity
of the device, then the
you're making might be considered as a
repair in the United
States. There is the
idea of a solution.
This idea of akin to repair.
So the replacement akin to repair
where you can really change something
in the device.
But this applies only to
unpartnered elements.
So again, you have to read the claims,
patent claims and understand whether this
certain element is outside
or within the scope of patent claims.
And if patented solution
is a combination, you
may replace an
individual elements because they are not
covered by the patent, but
the combination.
What is not allowed?
So if you're working, your changes
go beyond the necessary scope
to restore normal utility of device,
if you replace an essential part
of an essential part in terms of
in the light of patent claims and
technical teaching, and if
you remake or make new a
patented device, then you cannot
invoke on the repair doctrine
and challenges.
As I said, very it's very
hard to
extract guidelines to say, OK,
in this situation, the
this is allowed or not.
There are various approaches, legal
approaches.
Sometimes court one court applies
one legal doctrine and reaches
a certain solution.
Then the court of appeal applies
different doctrine and then you have a
completely different solution.
That's pretty tricky.
And then you have to always identify
patterns in a given patent
device.
And nowadays it's pretty complicated
because I cannot think of any
device that would consist of a single
patent.
There are at least 10 and you have to get
into patent claims to understand
who's patented what you want to change.
There is a lot of responsibility
on your side after all, unfortunately.
Then there are
also situations when your
solution might be
a might be claimed as equivalent
to the patented one.
And what is an equivalent?
An equivalent is as
an element that solves the patented
problem. Well, the problem in the patent
in an equal but not identical
way.
And then we have the situation of
equivalent of non literal infringement.
Every every patent
has a certain protection scope.
So the core is the patent claim,
our patent claims.
As I told you, where you determine really
the features of patented solution,
then you can expand it a bit
by reading descriptions and
drawings to understand
whether there are other solutions that
fit into this patented solution.
And all of this is estimated
at the time of patent applications.
But technology
progress is going forward
and there are some solutions
that was cannot be anticipated
by the patent filed by the patent holder
and equivalents are determined
at the time of infringement.
To give you an example, there
was a case in
the United Kingdom called AGYEMAN,
I'm sorry, where
a patented solution, a concert,
every trial Poatina,
the installation of this gene
and the patent it.
Well, the patent concert, isolating
the gene and activating it
externally and then introducing into
the host cell.
The defendant found a new
way of gene activating.
And was it did it internally.
So in in the in the cell
and. Well, I'm not a technical
expert, but I found these two methods
somehow completely different.
And it was so that
at the time of patent application, this
internal gene
activation activation method
was not known by the time of
patent infringement.
The court actually started considering
whether these two methods can be found
as equivalents and if
patent claims were not really
focused on the on this external gene
activation formula,
and if patent claims were formulated
more up in more abstract way,
then most probably this the second
the second way of
gene activation could fall into
the scope of patent patent
claims and patent protection.
And I would like to
present you a
way you can defend yourself,
that your solution
is not an equivalent
and in Germany.
And in Germany, there
is a fun time doctrine.
This is based on the case from
the 80s and the patented
solution Concerned Curbstone
built on the side of the road.
And the technical solution
referred to the watering lines
in the stones built on the on the on
the roads and in
the infringing solution
concerned. Also, stones
build on the side of
the road, but with the gaps
between those stones.
And the court found
that the element was equivalent because
actually it had the same function,
but it was not identical.
Moreover,
this is very important.
If you apply if you want to invoke
on this protection
of Fontayne Doctrine, the court
found that this solution was not patented
in the light of the prior art.
So when I go back
to to this
slide, so this solution was
outside the protection scope
of the patent,
the infringed patent on curbstone.
All all defenses in
equivalent, all defenses,
that concern equivalency are
very challenging because
you have to determine the scope of
equivalence and then
find whether your your solution,
your mate solution
falls within the scope of part of
protection.
In the United States, there
is reverse doctrine of equivalence.
But first, I would start from the
doctrine of equivalence.
It says that
an equivalent must
have the same function, must
have must
carry out the patented
technical teaching in the same way, and
must obtain the same results.
And when it comes to doctrine of
equivalence equivalence.
Well, the pioneer inventions
have much greater equivalence
equivalency scope than improvements.
And reverse doctrine of equivalence
says that there is
a literal infringement because the
equivalent has the same function.
And in the case where this
doctrine was formulated for the first
time, the patented solution
concerned air brakes,
a brake system and the infringing
one fluid pressure system.
So, of course, all bolt
system had the same function and the
same effect, but the
second one, the infringing one,
conducted it carried out in
substantially different way.
It's very challenging to prove,
and I cannot recall any case
where reverse doctrine
of equivalence was successful.
But if you try, then you have
to determine it's much easier
to determine, first, the scope of
equivalence to to
see what is not equivalent.
And you must read the
patent claims outside
the literal meaning.
In Japan, I call the Japanese mix
because it's a mixture
of the US doctrine of equivalence,
plus the Fontayne Doctrine from
Germany, and in
case there is an infringement
concerning Japanese patterns,
Uma's, you may seek the protection,
which is in the fourth
requirement of the doctrine of
equivalence.
And you may try to prove
that your solution
is not patented.
One is in the light of
the prior art.
You have to in other ways prove the
obviousness of this
of this element.
In the United Kingdom, there
is a defense called Gillette.
It's from 1913.
That was the time of of
the patent infringement and the
litigation and this concerned
safety razors system,
improved safety razor system
of Gillette.
And then the defendant proved
that this improvement was
obvious and anticipated
in the light of the prior art.
So if you try to
to protect yourself based
on this defense, you have
to prove that the solution was
obvious from the prior art.
It has very high standard of proof.
I said I have to repeat again, the
scope of protection and equivalency
must be first to mind.
And it serves patent
invalidation because when we
went well, this doctrine of a
doctrine might have twofold
outcomes.
If patent claims
include the infringing
element, then and if
you are successful in
in claiming the defense,
then first of all,
there is no infringement
state and the patent
is invalid.
And then if patent claims
are do not include the infringing
element.
First of all, this is kind of happy
and because there is no infringement
and the patent remains valid.
Summing up,
I reached the conclusion that
patent flexibilities have
extremely narrow scope and
they do not address making
needs needs of makers in
100 percent, as mentioned
in my talk.
It's the other way round.
If you want to seek the
protection in the patent protection in
a way that you want to make freely,
then you have to adjust your making to
patent law, not the other way around.
And as long as you're making
is low profile
and the best scenario, you stay in garage
and basement and nobody knows about your
ideas, then you're absolutely safe.
But the moment when
you go go
publicly and then become successful,
then you have to consider
the problems of patent infringements.
Just to name a few recent
examples from, you know, kick start
Kickstarter, this
form lab that was
that was sued by 3D
systems.
And then with regards to the patent
system,
on the whole, I see very strong
closing tendencies.
There is the mind denominating mindset
is that we want to have strong patent
system. A strong patent system
means more protection for patents
and there is ongoing
discussion debates on improving
patent quality.
In my opinion, higher patent quality
would solve a lot of problems
that we have currently because we had we
would have simply more free
space between the state of the art and
the patent threshold.
But currently, I
haven't seen any virtual step undertaken
to to solve the problem on the
a lot of discussions.
But hopefully and
I hope I can participate in this reform,
it will take place.
Thank you very much.
Thank you all for that round of applause
and thank you for the whole speech.
So are there any questions
then please line up at the microphones
here, also in the Internet.
Where's my audio?
OK, let's start with the microphone
one.
My question is regarding two
international patterns,
so who has the power of changing
the process of
developing law for these
patterns? A pattern making process.
And the second part is
how come it's still possible
to patent ideas that you
don't have any intent of realizing?
So technological
development is being
locked in a way.
Well, answering your first question,
influence. Well, big companies and
powerful stakeholders,
you know, that influenced the law making
on the international level and countries
to which level are states being involved
and the national well, for instance,
the TRIPS agreement,
this is international agreement signed by
countries.
So these are states.
And in case of the TRIPS agreement,
the United States played the
the the most important role in shaping
and setting the protection
standards.
And could you repeat your second question
as well?
I had the intention that it's possible
that corporations buy
patterns of ideas
or,
yeah, projects that they haven't
really any intent of realizing,
for instance,
hydro cars.
Development is being blocked in a way,
because oil companies
buy those patterns, for instance.
Yeah.
Well, why is that?
Why is that legal?
Well, is it legal because the system
gives them if you apply
for a patent, you have this
pattern exclusivity and it's
on your discretion what you do with
patents.
And you can use patterns
to eliminate competitors and to block
others and to
demand a license if you want to,
you know, develop certain patented
solution.
But do they have to show that they really
have an applicable solution that work,
or are they just randomly
patenting ideas that would
then profit?
Actually, your question pertains
to patent quality because,
well, the requirement for patents is
industrial application.
But there are certain solution when you
simply ask yourself how is it possible
that there are patents granted?
But did the patents
are and it's about
all patent prosecution examination
processes. I haven't mentioned it here
because it's pretty complicated.
And so I would like to work in my further
research on this issue because I think
this must be reformed.
OK, thank you.
OK.
For fairness, we go
round the microphones, so next
microphone three,
I if I invent something
really awesome posters
on my block and if
then a company tries to patent
afterwards, it's does not possible
anymore due to prior art.
And if they try to penitente
if I am saved then because
to produce a
well if you posted then
of course this is prior art.
The question is whether patent examiners
examiners will find this prior art
because there are cases where patents are
granted after a couple of years.
There is found prior art, for instance,
in Norway at the university.
But of course, then you have also prior
use process, right?
Mm hmm.
OK, microphone for
please now.
OK, I have two questions.
Yeah, the one
question is, if
I if I
invent something or if I make something
that the product of which
would infringe on a patent
and oppose this on a site like, say,
Thingiverse, could I be sued because
I don't actually sell the product?
Yes, it could be because it's public
use, OK.
Even if you well,
as I said that, as
long as your low profile, you don't earn
money, you're safe.
But patent holders can enforce
their rights simply to show that we are
patent holders.
And if you public in some certain
improvement of patented solution
in the Internet, you have
to consider this option.
So I don't need to make the product.
You don't need to make
what just publishing the plan is enough
to get me sued.
Yeah, if if you based on patented
solution.
OK, yes.
And the other question is, how likely is
it to get sued?
Did you look, for example, at a
software open source
software?
No, I cannot answer that.
I didn't look at the probability.
There are certain studies
concerning patent trolls and their
activities, how many lawsuits?
But these studies are questionable
and I don't rely
on them because they measure normally
how many lawsuits are in courts
by, you know, by patent trolls.
You can well, I read
the press and the articles
on, uh, on startups
being sued by patent trolls, but
I cannot estimate the probability.
Well, I think it would be interesting to
look at the number of open source
projects that get sued.
Yeah, I understand. But I cannot I don't
have the data, but I know that there are
a defensive organization.
Even Linux has some that they collect
patents in case of patents
simply to defend, defend self
of against patent attacks.
OK, thank you.
Now the signal angel
has a question, one, please, and
then I make the next round.
Hey, hey, thank you very much for
the talk. That was quite an
attention also in the IOC.
Everybody listen
quietly, but they have
a lot of questions, too, and also similar
to the ones already posed.
But one is and maybe we
also didn't understand it correctly,
but you mentioned that one can
only claim experimental
use if you have a business interest
that right?
No, no.
OK, then maybe somebody understood
falsely.
OK, because then it
wouldn't make sense anymore.
Yeah, well, you
of course, you may have some
certain commercial intention
in of involved
in an experimental use,
but always in case of
troubles in this that regard you
have to prove, you have to stress
the experimental character of your
undertakings, that you want to want
to expand to add new knowledge,
find new applications, etc..
So as a private person, like a
maker, I don't need a
business objectives to have a legitimate
interest in experimental use.
No, no, no.
It's referred only to the United to the
doctrine in the United States because
they introduce this legitimate interest
to narrow down even the scope of
experimental use.
But as long as it's for strict
philosophical inquiry,
then it's fine.
OK, thanks.
OK, we've got eight minutes left of Q&A,
so please keep it terse
now, as I see that there are
already four plus
three questions.
OK, I have a question regarding
European patent and the quality
of translation, so I had a look
at some of the translations
into my language and the
quality was horrible.
I think that it was
very difficult to understand.
What was that patent about?
Yeah. And do you think that the bad
quality might be a way
of defending yourself against
patent claims?
What do you mean that I
mean that European Patent Office
publishes European patents
in, I think, four languages
which are translated by machines
into other languages, submission,
translation. And the quality of it is
very bad. Yes.
So if I am a private person
and I don't I don't
have to know, for example, English,
German, French, I don't know Spanish,
I think.
So I might misunderstood the
claims of the patent and
I might not find
the patent and my
blog and so I might infringe
on it. Yeah. So do you think that it
would be possible to fight
against the patent
with with the quality of the
translation argument?
Yeah, I think it's I haven't I have
never thought about this, but I think it
would be a good option to
say simply that it was not
possible to understand the technique of
teaching due to poor quality.
Yeah, absolutely.
Certainly. OK, thank you.
Thank you. Thank you very much.
OK, microphone one, please.
Could you elaborate a bit more on the
distinction between prior use
and prior art, the same example
as the first question.
If I build something documented
publicly, put it on GitHub or whatever,
has a time stamp on it?
Mm hmm. And it will not be
found while some company
applies for a patent.
Mm hmm. But it's still there.
It's in existence.
It's documented publicly.
Yes. What happens at that point
if the company
has the patent granted in the
first place?
What happens afterwards with it,
with the prior year?
I mean.
Ah, yeah, because just
because the prior art is everything that
was published before the patent
application just to make clear for
everyone. So everything published
patents, articles, leaflets,
posts, etc.
and the legal doctrine says
that the prior year does not
bill does not equal the prior art.
So you cannot invalidate
a patent based on the prior
year saying that I did it, I invented
because the idea is that prior use
protects trade secrecy.
That's different thing. So I
said to them
before that if it's posted,
then you have the priors because you
invent it first.
And if you post it, of course this
creates already prior art.
But when you protect when you keep
your business model
secret and there is a patent
application later than this, the secrecy
does not work against the
novelty of the later patent.
So the best way to defend our freedom
to make sense is to make them and
document them publicly.
Yes, I think creating prior prior art.
Yes. Thank you.
Mm hmm.
OK, microphone three,
please.
I think you've almost just answered
my question, but I wanted
to make a parallel between the issue
of bio piracy and
the scene because I
feel it's very close in terms of
how it functions.
Once, once a company has
patented a traditional use of the,
uh, of the knowledge of plants, it
becomes very difficult, even with
the proof of prior use to invalidate the
patent and the patent.
And a lot of people recommend
that to disclose the
information as much as possible so that
the patenting of
an employee could find
that content.
Is that so?
Yeah, I feel like it's the same thing
that should happen with the magazine.
And then I would like to also ask maybe
in compliment, how much do you feel
the Creative Commons license can
can help in that process?
And I've been asked about
a Creative Commons license open source.
I said many times I don't think
it works for patents because
of the mechanism behind patents.
I would like to elaborate it
also in my further research.
Well, my research in my research,
I proposed a solution that would work
for makers.
It's not a statutory limitation because
I would fail the first step of
Article 30 of the TRIPS agreement.
But this is a different solution.
There are also certain open
patents and
licenses.
But what I've seen and analyze
after all these open licenses
are I created around patent
pools. So you enter patent
with your patents and you give
them you agree
to others to
use your patents.
That idea, and that's why I don't
think the Creative Commons is can be
applied in patent law 100
percent simply by copy paste.
Right. Um, I was just wondering
also because obviously the magazine is
very proactive in inventing
things and a lot of so they
are actually creating a lot of prior art,
which is then, um,
uh, just being looked at
by big companies that actually have
the money to invest in a patent.
And well, the person who was here
before me was mentioning publishing on
the weblog, which I don't think
it's necessarily works because it's
extremely easy to predate
on on a blog.
Um, I was always taught that the best
way to, uh, to date something
is basically to just like, um,
put a description of
the project in an envelope and to post
it to oneself and not open the envelope
that you think you feel this is a good
option.
Well, I haven't thought about
it, actually. When you were asking a
question, I thought about applying for a
patent simply to create prior
art and to stop, you know,
the patent prosecution after a certain
time. It's also a common strategy.
Yeah, but of course, you need money to do
so. Yes, yeah, that's that's the point
here.
As for the solution, which I was
always incentivized to do, you only need
to to pay for astatine basically.
And the stamp of the post
shows when this thing
was made. If you have as long as you have
an open the envelope, it is a proof
of date.
Yes. Mm hmm.
Yeah. I think it should work.
Thank you. Thank you.
OK.
Sorry for the signal.
Angel is next and please keep it
short.
Sure. Um, so also
going to this, do you have other
recommendations how to best publish
something besides
publishing a patent.
Um,
well, here said blogs
or scientific article.
You know, there are also websites when
you're not blogs, when you publish
articles on certain technical, uh,
technical solution.
I think this could be this should be
really good, uh, option.
OK, patent applications are too
expensive, of course, if you can invest.
You can do it.
But I think creating problems by
publishing information
in the Internet that should work and
articles I think scientific articles
should be should be relevant.
Mm hmm.
OK.
Yeah, we are
concerning the
patent documents themselves,
um.
As far as I know, they are public
domain basically, so I
can copy them and
I can process them in some
ways so I could, for example, do
text recognition on them and
vectorized images.
But then it gets very blurry how
I watch this usage
of the patent in the sense of
using it and what is simply Trents
forming the document and building upon
the document without
using the public the patent
in the way of an invention or
something.
Um, could you elaborate on that?
I mean, like understanding technical
teaching based on the patent.
That's that's the that's your question.
I'm sorry. I'm just using
it for, uh,
for example, to,
um, make it easier
to, uh,
like make new prior
to something just out of the patents.
What can I do with the patent documents
without getting problems for
putting infringement?
What you can do
while you but you are a patent
holder, are you you know,
you read.
Uh huh, well, you I said
you can try you
can work at home.
You can try to to to work
the patented solution.
Oh, I mean, in the public.
I mean in public.
I can I could
republish a copy of.
Yeah. But there's not it's not a patent
infringement if you simply publish public
document.
But uh how far can
that go then.
I like yeah.
For example character recognition should
work that I put this
into text or when I
scan it and I vectorized it, but
then when I make a 3D model,
it's probably not that
easy anymore. For example, uh,
based on the patent.
Yeah. Yeah. Well I think the 3D
models, if you rebuild patented solution
then you might have troubles, but simply
posting, you know, the patent and
all the patent you don't infringe.
I'm sorry, but I don't think I understand
just a bit of blurry line where the
implementation of the patent starts and
then just processing on
the patent document.
Um, well, I think then
you have to get to
understand the scope of protection,
because I think there's just that's the
question. You want to know how much
you can work around the patent.
Yes, this is the same question
if you want to, we can talk about I'm
sorry. OK.
I'm sorry, can you
continue that conservation conversation
afterwards?
We're already over time, I allow
for two more minutes.
That would mean sorry, microphone
two won't be getting any
speech time.
Uh, microphone one was waiting
too long.
I can't
kick him.
And one question afterwards
from the signal end, you all
both got one minute to go.
Okay. Hello.
There is a very common question these
days. Are, is there any real
positive value from the overall
patent system to individuals
and let's say small companies besides
the huge corporations
for small companies?
I would say that if you have a patent,
you can attract the investment.
If you have a startup and you have some
patented solutions, you may simply
get new investments into it.
That's designed individuals.
What about individuals
with individuals, but like
with no commercial?
Well, you can read you can understand
what what's going on was protected.
You can see the borders, what
what is actually still free, not
patented.
That's a very critical
apparently to the patent system.
And I don't see so much positives
from the system.
Thank you, think.
Thank you so much.
What's the difference between
noncommercial use from experimental
use?
Well, noncommercial use means
that you don't gain any profits from
the activities and,
well, the experimental use.
If you have private and noncommercial
use, the experimental use goes a step
further because it allows you public
use.
You can post information and
as presented one slides, there are
jurisdiction where you can have
commercial implications from the
experimental use,
while commercial implications in the
United States are completely out of
question.
Yeah, but well, there is
there is no I would I wouldn't
differentiators no experiment on
commercial and experimental use.
This is different scope.
I would say that a set of private use and
experimental use gets publicly.
It's public.
OK, thank you.
I have to conclude this Q&A
session right now if anybody's
got any questions.
We have a pause after that talk.
So, uh,
meet our speaker
down there.