The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Wednesday, 31 October 2012

Wednesday whimsies

Wrong address! IPKat team member Jeremy has a little-known email address at which he never gives out to anyone, because it is fundamentally just a receptacle for the myriad automated messages and out-of-office responses which are generated and sent in his general direction whenever an item is posted on one of the blogs he looks after. To his surprise, he discovered today that people have been writing to him at that address. He has now created a message which any human correspondent should receive to the effect that the address is not used for correspondence, giving the address of his active email account ( If you are one of those poor souls who emailed the wrong the address and have been patiently awaiting a response that never came, Jeremy apologises for your disappointment.

Re:Search flourishes. The World Intellectual Property Organization (WIPO) proudly announces the fruits of the first year of Re:Search (the launch of which, almost exactly one year ago, was covered by the IPKat here). For those who may have forgotten (or who may never have known), Re:Search is a consortium where public and private sector organizations share valuable IP and expertise with the global health research community to promote development of new drugs, vaccines, and diagnostics to treat neglected tropical diseases, malaria, and tuberculosis. To make it run smoothly, it's administered by WIPO, in partnership with BIO Ventures for Global Health, a non-governmental organization based in San Francisco.  Says WIPO:
"One year after its launch, WIPO Re:Search has doubled its membership and resulted in ten research collaborations or agreements. ...

Membership in the initiative has grown significantly since its launch in October 2011 – from 31 members to 61 - from all five continents – today. In particular, membership has grown from African-based organizations, where academic and other research institutions have great capacity to undertake both laboratory and clinical research and development for improved treatments for many diseases endemic in Africa.

By October 2012, the initiative had facilitated ten research collaborations or agreements between WIPO Re:Search members. A number of additional agreements are in advanced stages of discussion between members with more collaboration ideas and agreements in early development".
The IPKat and Merpel both welcomed this initiative last year, pausing only to ask why it wasn't taken sooner. They are both glad to see that it has apparently already yielded some fruit. However, the proof of the pudding is in the eating and the time for congratulation will be when the agreements made under this initiative are themselves resulting in the discovery, manufacture and sale of new drugs and means of administering them safely and affordably to those who need them most.

Junior Ministers in the British
Government practise pass-
the-IP-portfolio ...
"I had a very pleasant surprise on Monday afternoon".  No, this time it's not the IPKat celebrating the absence of grammatical errors in a piece of IP prose. These are the very words spoken by katfriend and respected IP personality Mary-Ellen Field (Brand Finance), when she left the the meeting of the All Party IP Group (on which see the IPKat's Monday post here), actually believing that this cross-party group of Members of Parliament chaired by John Whittingdale finally understood the importance of IP, not only to the economy but for the creators of all types of intellectual property --  and that creators had the right to be paid for what they have created.  Mary-Ellen continues:
"Not only do they understand, they now realise what so many of us have been complaining about for so long and seem prepared to take on the Sir Humphreys and their fellow politicians about it. They were not at all complimentary about most of the former holders of the IP ministerial portfolio, the IPO or the various government departments who seem to play pass the parcel endlessly with the subject.
The Group said it would "seek to unpick the tangled web of cross-departmental responsibilities in this area by considering how policy has been developed, the effectiveness of the current approach, and whether the machinery of government can be improved for better policy formulation". Well they did that, helped by our submissions, and they didn't like what they saw.

When I received the notification of the All Party IP Group's new inquiry into "The Role of Government in Protecting and Promoting Intellectual Property" earlier this year, my heart sank as I'm sure did the hearts of everyone in the IP world in the UK. Not again, I thought. How many times will politicians ask us to write more submissions for free that no one with the power to do anything will pay the slightest bit of attention to.

However this inquiry seemed very different when I read what they were proposing. Just five questions -- and the MPs would deal with the responses themselves [now that is a surprise, says Merpel, who often wonders whether the only things MPs do for themselves are, well, never mind ... you can probably guess]. For a change, there was no supposedly big name involved after whom the Inquiry would be named. Five intelligent questions that to me showed that someone had indeed being paying attention and knew that something had to be done if we are to compete successfully in the global economy.

They asked the simple but obvious questions that so many others in the past have either not understood or not thought important. So for all of us who put in submissions back in March, we all deserve a round of applause, some people did read them and paid attention. I do hope I'm not being overly optimistic. Take the time to read the report".

Around the weblogs. Love may be lovelier the second time around, according to Frank Sinatra anyway, but visiting Africa's official IP websites a year after he first did so on behalf of the Afro-IP weblog, Kingsley Egbuonu has not had uniformly happy experiences.  This week's trip to Egypt however turned out to be a bright spot, with that country making progress in the spread of IP information even despite the distractions of its recent political upheavals. Elsewhere, the jiplp weblog addresses publication ethics, Art & Artifice explains that "exotic dance" is not an art form (in New York, for tax purpose anyway), the Class 99 design law weblog introduces a new Polish member to its blogging team in the form of Krystian Maciaszek and The SPC Blog reveals that the British do not have a monopoly on the reference of patent term extensions to the Court of Justice for a preliminary ruling, since the Dutch have just gone and asked five of their own.

Restless about ritonavir. This Kat has been reading with interest the request made in the United States by four non-governmental organisations -- the American Medical Students Association, Knowledge Ecology International, U.S. Public Interest Research Group and the Universities Allied for Essential Medicines --  that the National Institutes of Health (NIH) grant Bayh-Dole Act march-in rights for the patents held by Abbott Laboratories relevant to the manufacture and sale of anti-retroviral drug ritonavir, which the KEI media release describes as "a federally funded invention that is much more expensive in the United States than in Canada, Europe or other high-income countries". According to KEI:
"... in the more than 31 years of the history of the Bayh-Dole Act, the NIH has never granted a march-in request. This means either that there have been zero abuses involving NIH funded patent rights in more than three decades, or that the NIH has been unwilling to curb abuses ...".
This one will run and run, predicts the IPKat, since both money and principle are at stake.  Merpel agrees, wondering how quickly this issue will get to the US Supreme Court, and how it might rule on it.

Tuesday, 30 October 2012

Are you paying someone to do this?

The IPKat spends a good deal of time, as has been mentioned in the past, deleting spam, junk, phoney comments, irrelevant and unsolicited advertisements and feeble attempts at search engine optimisation.  He has just received yet another one, purportedly from a patent attorney who, according to his website, also practises in the fields of "personal Injury, car accident, construction, accident, drunk driving, accident, wrongful death, slip and fall, pedestrian accident, taxi accident,  premises liability".

This is what the Kat, moderating readers' comments, found among the unmoderated comments awaiting him this evening: has left a new comment on your post "AIPPI calls for CJEU status quo in unitary patent ...":  
I like your legal articles, especially ones regarding patent law, copyright etc. Patent law issues are very complicated, but you make them absolutely clear. If you are a practicing patent attorney, please submit you contacts to my attorney directory. I invite there only best lawyers and make detailed descriptions about their services and practice areas. For example, look at the category with NY patent attorneys I wish more people to be listed there to provide a good choice for people who need high quality legal services. 
This Kat has no idea whether the patent attorney in question has sought to post this comment beneath the post in question, or indeed whether he does indeed practise in all those areas.  Nor does he know whether the advertisement is intended to promote the attorney in question or Attorney Online (which, when the IPKat visited its primarily US-oriented website, was also carrying an advertisement for a substantial English law firm, Irwin Mitchell) . What he does know is that, on occasions in the past when he has contacted individual lawyers or law firms whose names have been linked to text of this nature, they invariably disclaim any knowledge of such material and insist that they certainly never authorised it. Curiously, after the Kat has expressed his indignation, the unwanted posts cease with immediate effect.

Someone must be doing this, since it these comments are unlikely to be entirely self-generating  -- and someone is presumably getting paid for doing it.  Moreover, someone expects to get the benefit from it.

This Kat has occasionally seen, and indeed received, advertisements offering excellent pay to anyone willing to do some "writing for the internet" from the comfort of their own home, with no previous experience or qualification required.  Are the people who answer those advertisements the same people who are writing and attempting to post material of this nature in an attempt to raise the web profile of an SEO client?  Or merely seeking to gain some free advertising? It would be good to know.

AIPPI calls for CJEU status quo in unitary patent matters

The ice sculpture at AIPPI's
Gala Dinner glowing in Seoul last week 
 The AmeriKat has just returned from a whirlwind trip in Asia which found her dancing Gagnam style in Seoul at this year's AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle) Congress and recovering from the post-AIPPI fun by climbing seemingly vertical hills in Hong Kong. As she landed in Hong Kong on Thursday, news came that the controversial resolution of Special Committee Q165 on the proposed unified patents court, which had been passed on Tuesday, had been published on AIPPI's website. AIPPI's resolution (found here) resolves the following:

1) AIPPI acknowledges that the process of creating a legal framework for a Unified Patent Court, and for the creation and exercise of European Patents having unitary effect, is well advanced.

2) AIPPI believes that the proposed system will not provide an improved experience for patent users. This is particularly the case if individual patent cases are subject to a third or fourth level of appellate review, with the General Court or the Court of Justice of the European Union (CJEU) being asked to consider substantive questions of patent law. AIPPI accepts that the proposed system is within the legal framework of the European Union and its existence and structure are subject to the review of the CJEU. It believes, however, that the Draft Regulation should be amended so as to make it clear that under the new system the CJEU will have no greater role concerning the grant or exercise of unitary patents than is presently the case for EP patents.

3) To that end, AIPPI reiterates its support for the deletion of Articles 6-8 from the currently proposed Draft Regulation on the Unitary Patent as agreed by the Council of the EU on June 28 / 29, 2012. It is recalled that the content of those articles already appears within the Draft Agreement on the Unified Patent Court and it is proposed that these provisions should apply to unitary patents as well.

4) AIPPI is of the opinion that it is essential for the acceptance and success of the Unified Patent Court that the original goals of the project which promised judges "with the highest standards of competence and proven experience in the field of patent litigation to ensure expeditious and high quality decisions and thus enhance legal certainty" should not be put at risk. To that end, it should be ensured that appropriate programs for the selection, training and ongoing support of such judges are put in place as soon as the Draft Agreement is approved.

5) AIPPI notes that the Committee for the Rules of Procedure of the proposed Unified Patent Court is presently working to provide a further draft set of procedural rules. AIPPI resolves that a public consultation period of at least 3 months should be allowed following the publication of this draft before any further steps are taken to adopt any text.
Having been privy to the committee's deliberations during drafting and the subsequent voting session, the AmeriKat was surprised that although strong objections were raised in relation to the proposals (complaints as to the legislative process, transparency, etc) an agreement on the resolution was formulated and passed relatively quickly ["Could it be because this is one area of patent law that most practitioners are in agreement on?", muses Merpel]. She also notes and welcomes the relatively strong position AIPPI has taken in respect of the involvement of the CJEU and the call that there be a proper consultation period on the Rules of Procedure.

Meanwhile, rumours still abound that Articles 6 to 8 will be removed from the Draft Regulation and replaced with a provision that does not subject substantive patent law to the CJEU's preliminary reference mechanism. What shape such a provision will take remains a mystery to the AmeriKat.

Courtesy of eagle-eyed IPKat friend, Chris Stothers, the AmeriKat can report that the agenda for the next JURI meeting on 6 November 2012 does not contain any mention of the unitary patent. This leaves the Amerikat surmizing whether the European Parliament will be prepared to vote on the proposals during their session at the end of November. She considers it highly unlikely that the current proposed timetable to adopt and sign off on the package by December will remain, especially with the need for some national governments, including the UK, to consult their respective governmental institutions on the package.

Indeed, the AmeriKat's favorite governmental institution, the House of Commons European Scrutiny Committee is expected to review the final regulations before the Council Meeting on 10 December 2012. The AmeriKat is doubtful whether the Scrutiny Committee will release the proposals from their scrutiny or whether they will take the opportunity to request the presence of new IP Minister Lord Marland in order to quiz him on the status of the proposals (which the AmeriKat hopes they do just so the IP community has an opportunity to observe his performance in a matter of vital importance to the future of patent law).

In the meantime, those who love reading pages and pages of procedural rules better get their red pencils sharpened, as the AmeriKat understands that the Rules of Procedure Committee will make their final (10th) draft Rules available on 20 November 2012.

Have EU orphans found a caring home?

As promptly reported yesterday by the IPKat, the Orphan Works Directive has just been published in Official Journal of the European Union, thus becoming Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. This Kat agrees with Jeremy that there’s plenty of material for preliminary references to the Court of Justice of the European Union, as the various provisions in the Directive look, to say the least, open to various interpretations.
As IPKat readers will remember, the reasons for adopting such a Directive were clarified by the Commission last year, both in its blueprint on IP rights and the Impact Assessment accompanying the proposal. In the first document, it was pointed out that:
Facilitating the preservation and dissemination of Europe’s rich cultural and intellectual heritage and encouraging the creation of European digital libraries [also through the ARROW project] is key for the development of the knowledge economy. Innovative licensing solutions [facilitating licensing across the EU seems now Commission's No 1 priority: see here] are needed to promote the seamless sharing of knowledge and culture that allow academic institution, businesses [such as Google: see further below], researchers and private individuals to lawfully use copyright-protected materials while compensating authors, publishers, and other creators for the use of their works.”
What the Commission had in mind became slightly clearer in the Impact Assessment accompanying the proposed directive. There the Commission made no mystery of the fact that, besides enhancing European Digital Library projects and the broader objectives relating to a Digital Agenda for Europe and an EU digital single market, by adopting such a Directive Europe could have avoided the situation resulting from the US Google Books Settlement [as far as this Kat knows, unlike Europe, in the US no orphan works legislation is currently being discussed], in particular the fact that in its original formulation orphan works were to be automatically included in the scope of the Google Books Settlement [cf the different features of the settlement achieved a few months ago by Google and relevant French publishers here – for the latest developments on the US side of this saga, see IPKat report here]. Furthermore, as was pointed out in the press release accompanying the informal deal concluded by MEPs and the Council at the beginning of the summer, in the US “a Google project to digitise and share all kinds of books, including orphan works, was blocked  on the grounds that the orphan works question should be settled by legislation not private agreements.”
Shaken, not stirred.
As reported by the IPKat (here, herehere ...), following the publication of the proposed directive, this has been subject to a series of amendments, in particular in relation to the following: right to compensation should the copyright owner show up; possibility to generate some revenue from the use of an orphan work; notion of diligent search; how to end the orphan work status.
Now that the final text of the Directive has been published, this Kat has read its recitals and provisions and has to confess that she has found some of these as including more intrigues and mysteries than new 007 film Skyfall. In particular:
Recital 1 (see also Recital 9 and Article 1): Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, are engaged in large-scale digitization …[are they the only ones? There is someone else that is equally engaged in large-scale digitisation of works and is missing from here. Indeed, if you look for the fairly neutral word ‘businesses’, you will find it nowhere in the text of the Directive. Does this mean that, somewhat in contrast with what was stated by the Commission to justify the adoption of the Directive, businesses like Google will not be able to benefit directly from the Directive but only through previous orphan work status determination by the organisations listed therein?]
Recital 5:Copyright is the economic foundation for the creative industry, since it stimulates innovation, creation, investment and production. Mass digitisation and dissemination of works is therefore [what is the logical link?] a means of protecting Europe's cultural heritage. Copyright is an important tool for ensuring that the creative sector is rewarded for its work.” [Merpel is slightly appalled at the way this recital is written and has no clue about its meaning]
"I tried but the line was busy":
Benedict is confident that this will suffice
as a diligent search
Recital 6: [Should you have any doubts, please be informed that]The rightholders' exclusive rights of reproduction of their works and other protected subject-matter and of making them available to the public, as harmonised under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [the InfoSoc Directive], necessitate the prior consent of rightholders to the digitisation and the making available to the public of a work or other protected subject-matter.
Recital 12:For reasons of international comity [Merpel is not sure this is the only reason], this Directive should apply only to works and phonograms that are first published in the territory of a Member State or, in the absence of publication, first broadcast in the territory of a Member State or, in the absence of publication or broadcast, made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders. In the latter case, this Directive should only apply provided that it is reasonable to assume [how can you prove this?] that the rightholders would not oppose the use allowed by this Directive.”
Recitals 17 and 18 (and Article 2):There can be several rightholders in respect of a particular work or phonogram, and works and phonograms can themselves include other works or protected subject-matter. This Directive should not affect the rights of identified and located rightholders. If at least one rightholder has been identified and located, a work or phonogram should not be considered an orphan work … Rightholders should be entitled to put an end to the orphan work status in the event that they come forward to claim their rights in the work or other protected subject-matter …[this looks sensible, says Merpel. As IPKat readers will remember, there was a time when the idea was that “A work shall cease to be an orphan work only if all the rightholders to that work are identified and located.”]
Recital 19:If a work or phonogram has been wrongly found to be an orphan work, following a search which was not diligent, the remedies for copyright infringement in Member States' legislation, provided for in accordance with the relevant national provisions and Union law, remain available.” [making insufficiently diligent search akin to copyright infringement as far as possible remedies are concerned will probably be a good reason for potential defendants to keep litigating vigorously until the CJEU thoroughly clarifies the criteria for considering a search as diligent]
Clear case of diligent search
in which the rightholder was known
but could not be located
Recital 20 and Article 6:In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC …” [but isn’t the Commission committed to review the set of exceptions and limitations envisaged in the InfoSoc Directive shortly?]
Article 2(1):A work or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified or, even if one or more of them is identified, none is located …” [is the latter a likely scenario? Merpel finds it difficult to believe that a search can be considered diligent if one knows who the copyright owner is]
Article 6(2):The organisations … shall use an orphan work … only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of [this is tricky, says Merpel. Restoration may raise moral rights issues, and in some Member States moral rights enjoy high (and somewhere perpetual) protection. So, is it advisable to proceed with restoration of orphan works, including those whose copyright owners are known but cannot be located?], and the provision of cultural and educational access to, works and phonograms contained in their collection …”
Article 6(5):Member States shall provide that a fair compensation is due to rightholders that put an end to the orphan work status of their works or other protected subject-matter for the use that has been made … Member States shall be free to determine the circumstances under which the payment of such compensation may be organised. The level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established.” [would have not been better if the Directive had set some parameters to this end? Otherwise there may be the risk of race-to-the-bottom scenarios, by making certain Member States more appealing (as well as less risky because cheaper) than others for reasons of orphan work status determination and possible litigation]

Monday, 29 October 2012

Breaking news: Orphan Work directive now online

But are they diligent searchers ...?
The most recent online issue of the Official Journal of the European Union features Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. It's not very long -- the Preamble consists of 25 recitals and, inclusive of the dull formalities, there are just 12 Articles. Even so, this Kat has not yet had time to digest it.

There's plenty of material for endless references of questions to the Court of Justice for preliminary rulings. In particular, by Article 2 a work isn't an orphan work unless the rights holder(s) can't be found even after a diligent search (on which Article 3 elaborates).  This Kat suspects that the concept of the diligent search may be difficult to standardise, especially in the non-digital world.

A further post will no doubt follow soon, probably from Eleonora ...

Thank you, Chris Torrero, for spotting it for us

Get your IP act together, British MPs tell government

With a succession of very Junior Ministers, British
IP policy-making seems to have being round in circles ...
Making every effort to generate a frisson of excitement by embargoing the release of this news till 4.15pm (that's now), the British Parliament's All-Party Intellectual Property Group has just released a ten-page report which urges the Government to get a grip on how intellectual property (IP) policy is made.  According to the accompanying media release,
The report, The Role of Government in Promoting and Protecting Intellectual Property, says that while intellectual property is vital to the foundation of economic growth, too often it is overlooked by Government departments who do not grasp its importance.

Although the Intellectual Property Office (IPO) is praised as an efficient as a registration body for rights, MPs are concerned that it does not hold sufficient influence within other government departments [well, it does seem to be a long way down in the governmental pecking order.  The choice of junior ministers has done nothing to remedy the situation, particularly since they generally seem to have little interest in and/or aptitude for IP policy (see eg here) and, perhaps more seriously, are responsible for significant areas other than IP too: take a peep at the list of responsibilities given to the current Minister, Lord Marland, on his appointment]. The Group is also worried that the IPO’s policy-making function has lost the confidence of a large number of its key stakeholders [there are many reasons for this, one of which being that some stakeholders, being businessmen and scientists, don't hold degrees in economics and struggle to engage in a dialogue with policymakers who are well-versed in that discipline and who may evince little understanding of their day-to-day business issues].

John Whittingdale MP, Chair of the All-Party IP Group, said: 
“The current system of creating intellectual property policy just isn’t working. IP needs a champion within Government, who will recognise its significance, and who will have the influence to co-ordinate policy across different departments [says the IPKat, this would really help. He wonders whether there is a list anywhere of all the different departments which have an input into IP policy or are directly responsible for it.  A couple of significant IP rights -- geographical indications and plant varieties -- aren't even administered by the IPO, and this surely can't aid the creation and coordination of policy] .

“From trade marks to patents, design rights and copyright, UK companies depend on their IP rights to succeed and thrive. In this difficult economic climate it’s especially important that Government backs British businesses on IP. We hope the Government will take note of our proposals.”
The report makes six key recommendations:

1. The IP Minister should take on the role of being a champion of IP, supported by a small team in IPO, or within the Department for Business, Innovation and Skills (BIS[if this means stripping a Minister of all other responsibilities, it would be welcome since the Minister could both develop sufficient depth of understanding to be able to appreciate and respond to the work done by his team and would spare him from important distractions];

2. The IPO should revert to seeing IP as a property right [this particular Kat thinks this is a bit of an irrelevance: IP is whatever the European Union says it is. What's important is what it does in practice, not how we categorise it];

3. The Government should be as concerned to promote the creation of new IP, as how existing IP is accessed [in fairness, this Kat thinks that both this government and its predecessor were and are concerned. The difficulty lies in transforming that concern into a tangible result. Taking the US as a paradigm, new IP requires time, money, patience and the tolerance of reasonable failure];

4. Ministers in BIS and their senior officials need to have greater oversight of the IPO [this needn't be greater in quantitative terms, if it's better in qualitative terms];

5. The IPO’s oversight of copyright policy should be moved to the Department of Culture, Media and Sport (DCMS) [this Kat is unconvinced that, at the very point that a proposed centralised and coordinated IP governance is mooted, a major chunk of IP, i.e. copyright, is to be placed within the oversight of the DCMS rather than BIS. If copyright is seen as a basis for developing businesses, channeling investment and creating employment, rather than as a restraint on consumers' enjoyment of their leisure activities, might this be worth reconsidering?];

6. Senior officials and Ministers at BIS should take a greater role in ensuring other Government departments consult them when developing policies affecting IP [the reason why this isn't happening already is that, within the IP community, the perception as to what is relevant to IP policy keeps expanding; those outside the IP circle of information, as it were, will keep being wrong-footed when some hitherto non-IP issue takes IP wings and flies away].
The IPKat is certain that readers will be full of ideas and suggestions.  Merpel is certain that some other countries have already done their version of this exercise and hopes to hear from them.  Do tell us what you think!

Defensive marks: a footnote to Rinitsch

Sometimes it seems that the German Bundesgerichtshof is carrying on a private dialogue with the Court of Justice of the European Union, such are the secret, subtle intimacies of the questions which it refers to that court for a preliminary ruling on matters of European trade mark law. It can scarcely be denied that its questions are of a quite different order of intellectual complexity to those referred by the courts of many other EU Member States. Can it be that the German courts are driving to achieve an ultimate, unchallengeable truth, while other courts are preoccupied with more mundane matters, such as trying to find the easiest and least intellectually demanding means of resolving the bone of contention between disputing parties and shoving out of the courtroom with a cheery "Next case, please!"?  This may be an overstatement, but it seems to this Kat that, at any given time, some jurisdictions are far more focused on developing the doctrines of substantive law while others fix their gaze on the procedural side of things -- and on this side of the English Channel the focus, within IP as a whole, is mainly on the latter.

This preamble leads to a note on Case C 553/11 Bernhard Rintisch v Klaus Eder, a ruling last Thursday from the Court of Justice of the European Union (Third Chamber). It's a strange case in which a set of questions of almost Arnoldine detail was dealt with by the CJEU in terms of relative simplicity.  No doubt the ruling would have been a good deal longer if the court had sought the Opinion of the Advocate General [Merpel reflects at this point that, in judicial circles, when judges are active they are said to be sitting on the bench, whereas precisely the opposite is true for footballers, for whom being on the bench means being a spectator on the sidelines, as the Advocate General was here].

Since this case has already been covered by Eleonora (here), this Kat has only one further comment: it relates to defensive trade marks.  This concept used to exist under the United Kingdom's Trade Marks Act 1938; the Mathys Report on British Trade Mark Law and Practice, Cmnd 5601, May 1974, recommended scrapping it and it was indeed erased when the United Kingdom implemented the new, exciting norms of harmonised European national trade marks in its Trade Marks Act 1994.  This Kat didn't imagine he'd ever hear that term being discussed before the CJEU, but he was wrong: first it cropped up in Case C‑234/06 P Il Ponte Finanziaria v OHIM -- and here it is again.  Ultimately, as the Court said, the subjective intention which prevails when an applicant seeks to register a trade mark is wholly irrelevant for the purpose of applying Article 10(2)(a) of Directive 89/104: there is no basis in Directive 89/104 or in any other provisions of European law for a concept of ‘defensive’ trade marks to which that provision does not apply.

Let's hope this is the end of that particular story.

A qualified Applology

Also "understated" and "an object
the informed user would want to pick
up and hold", with "a combination of
curves" too -- but much cheaper than
a tablet computer and a good deal
more cuddly ...
The IPKat's very good friend Darren Smyth provided some excellent coverage (here and here) of the Community design right spat between Apple and Samsung over the appearance of Samsung's popular but not-so-cool Galaxy Tablet 10.1 [which is coincidentally the tablet favoured by IPKat team blogger Jeremy].   This dispute was actually not so much about the Galaxy's appearance as its disappearance, which was the end which Apple sought unsuccessfully to achieve.  The action resulted in no little quantity of egg on Apple's face as the company was ordered to place a notice on its website to the effect that it was unsuccessful.  We all then became very interested in the notice's non-appearance.  But now the Kat can report that Apple has done the honourable thing, as can be seen from the notice which appears below, and which you can also read on Apple's website here Appropriately this notice came to the Kat's attention via Darren's own blog here. This is what it says:
Samsung / Apple UK judgment

On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link

In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products:
"The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design."

"The informed user's overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool."
That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on 18 October 2012. A copy of the Court of Appeal’s judgment is available on the following link There is no injunction in respect of the registered design in force anywhere in Europe.

However, in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design. A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc. So while the U.K. court did not find Samsung guilty of infringement, other courts have recognized that in the course of creating its Galaxy tablet, Samsung willfully copied Apple's far more popular iPad.
Merpel doesn't remember the court ordering Apple to publish that last paragraph, in particular, and wonders whether it might not be regarded as cool ...

Sunday, 28 October 2012

Flying Scotsman? No, it's an IP litigant ...

More puff power for pursuers ...
From the IPKat's friend Susan Sneddon (Maclay Murray & Spens) comes some significant news from Scotland -- if you are thinking of litigating an IP dispute in that jurisdiction, that is.  She writes:
"The procedural rules which govern intellectual property actions in the Scottish Court of Session are changing with effect from Monday 19 November. The grandly-titled Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012 (which you can read in full here) makes some fairly significant changes to Chapter 55 (IP Rules) of the Rules of the Court of Session 1994.  The key changes to the Chapter 55 Rules are as follows:
• There will now be a compulsory “preliminary hearing” two weeks after defences have been filed. The judge will have discretion to make a wide array of procedural orders at such hearings (new Rule 55.2E);

• Passing-off cases are now included in the list of cases defined as IP actions (Rule 55.1);

• If the defender wishes to bring a counterclaim, it will have to apply to the court by notice before a counterclaim can proceed so the court can make appropriate procedural orders in respect of it. Other changes to the format of pleadings have been made (new Rule 55.2D);

• The procedure in the case shall be such as the judge will direct, thus allowing for greater procedural flexibility (new Rule 55.2C) and

• The rules governing procedural hearings (case management hearings which take place at a later stage in the case) have been revised (Rule 55.3).
In our view, the most significant change is the introduction of the preliminary hearing. Previously in Scottish IP cases, it was possible that the first case management hearing in the action would not take place until three months or more after defences had been filed. In the intervening period, the parties would be free to revise their pleadings as they saw fit. Only after pleadings were "closed" would the case come before a judge.

The court has been trialing a system of optional preliminary hearings in IP actions for the last few months. Our firm’s experience, during this trial period, has been that having an early hearing before an IP judge really helps to bring into focus the key issues in dispute between the parties. It thus tends to result in an expedited and focused timetable being put in place, which results in cases being decided more quickly and cost-effectively. As such, we think the introduction of these new rules is good news for IP litigants in Scotland".
Flying Scotsman here
Speedy Scotsman here

The mess that is the European software patent

Whatever happened to all those unending and vitriolic arguments over patent protection for software in Europe?  The following is a special treat for those readers who yearn for those far-off days when anonymous and occasionally even named commentators could hurl abuse at one another, armed mainly with a battery of unsupported assertions, religiously-held beliefs and appeals to self-evident truth.  It is a guest post by Arnoud Engelfriet -- a man who, by qualification and technical skill -- is at least as well qualified to comment on this topic as any number of Kats.  This is what he says:

The Mess That is the European Software Patent
Apart from the question which source code editor is better, few issues get a more heated reception among software engineers than whether software should be patentable. This is particularly true in Europe, where the 1978 European Patent Convention (EPC) explicitly forbids patents on “computer programs as such”. Yet judicial decisions from the European Patent Office (EPO) and a failed attempt at European legislation have turned this seemingly clear phrase into a quagmire.
Software as such 
In the 1970s, when the EPC was being drafted, a major concern was whether to recognize patents for software. The field of computer programming was relatively new, and the debate as to whether software was an invention or an artistic work still raged fiercely in legal circles. Computer science scholars defended the position that software was essentially mathematics, while businessmen pointed out that software was being sold as a concrete product whose development required significant investment in time and creativity.

The Patent Cooperation Treaty (PCT) which was being drafted at the same time, had to face this question as well. This treaty was created to streamline and centralize the patent application process: using a single patent application, preliminary protection could be obtained in all PCT member states. Because any country in the world could join the PCT, the debate over software protection was even more fierce here. Fortunately, the drafters quickly found a pragmatic excuse: since the field of computer programming was only a few decades old, limited documentation on software techniques and innovation existed. Since PCT searchers would be unable to determine if inventions in the software field were novel and inventive, it would not be prudent to allow for the application of patents for such inventions through the PCT. Thankfully the EPC drafters quickly adopted same exclusion.
For reasons that will probably never become entirely clear, this exclusion was put in the treaties as “programs for computers as such”, and thus a phrase was born that would give patent attorneys and lawmakers headaches for decades to come. 
Examination practice 
The first group to reach for the aspirin was the examining division at the European Patent Office (EPO) which had to set guidelines for the day-to-day examination of patent applications. Their first attempt (1978) was quite straightforward:
If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims. For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.
The chosen approach put the focus on the “contribution to the known art”, basically the new part of the invention. This provided a way to draw a clear line between hardware and software. In most cases, a software-related invention would be provided as a computer program to be loaded on to an existing computer. With this approach, such an invention could be rejected regardless of the merits of the innovation: it was software and therefore unpatentable. This strict interpretation prevented patenting of most software-related inventions.

However, after 1985 the approach changed: rather than looking solely at the contribution, the EPO decided it would be more appropriate to examine the effect of the invention as a whole. If that effect represented a technological advance, the invention would be patentable in principle. In other words, it did not matter any more whether the invention was built in software or using dedicated hardware. What mattered was the result: was there a “technical effect”? Now, software innovations could be patented, as long as they were part of a concrete apparatus – say, a mobile phone – that benefited from the innovation. This helped stimulate innovation on the GSM standard for mobile telephony and MPEG standards for digital audio and video.
Still, software claims were routinely rejected as being obviously “software as such”. This in striking contrast to the US, where “anything under the sun that is made by men” was patentable as of the early 1980s, provided the patent attorney could write it down in sufficiently dense and technical-sounding language. 
Another effect of the “software as such” exclusion became increasingly important in the 1990s. Inventions could only be patented in the form of an actual device. One could patent a mobile phone but not the software that implemented the invention embodied in that phone. This was a problem for many applicants, as they could not prevent others from distributing the software by itself. Only if the software was loaded onto a phone would their patent be useful. This severely limited the value of European patents for software companies like IBM, and a significant push for patentability of “software by itself” began.
Technical software by itself 
The push for increased patentability of software culminated in two 1998 decisions of the EPO’s Board of Appeals. Reasoning that the exclusion on “software as such” was aimed at preventing patents on non-technical items (as it was listed among non-technical items in the EPC), the Boards decided that patents on software were possible, provided the software somehow realized a specific technical result. What’s more, such patents could be obtained for the software itself, since “technical software” was not “software as such” even when decoupled from actual devices such as phones or televisions. 
Just in time for the internet and e-commerce hype, the decision caused a massive boom in the number of software-related European patents – most of which turned out afterwards to be hardly novel, proving that the original intent behind the exception wasn’t a bad one after all.
With this interpretation, many argued that the EPO had slavishly adopted the “anything under the sun” US view. This wasn’t intended as a compliment: in the USA anything under the sun was being patented: the USPTO granted no less than 145,000 patents on software inventions in the late nineties and early naughties. The quality of these patents was notoriously low, thanks to nonexistent prior art databases and a self-imposed limit of about eight hours for examiners to search and judge a patent application. Still, many of these patents were upheld in courts and actively enforced, thus proving to many that software patents were a significant threat to innovation in the field of software.
Formalizing the situation 
European software engineers, who had regular laughs about the silly software patent of the week coming out of the USA, felt safe from this threat because the EPC quite clearly forbade software patents. Two events thus caused quite some consternation: first, the revision of the EPC which aimed to delete the whole exclusionary paragraph, and second a European Directive that attempted to do the same thing shortly after the revision was refused. 
In 1998, a diplomatic conference was called to revise the 1973 European Patent Convention into what would become “EPC 2000”. Among many revisions there was a proposal to delete the exclusion on software as such. The rationale: the Board’s case law on “technical software” had made it clear the exclusion was no longer relevant. If you’re reaching for the Aspirin by now, you are in good company. First, the Board argues that the EPC allows for patents on technical software despite the “software as such” article. Second, the diplomats propose to drop this very article because it is outdated now that the EPO’s Board has ruled software as such is patentable. Needless to say, the proposal met with significant resistance and was dropped after even a so-called “second basket” could not agree on how to redraft the provision. And that was the end of it.

Or so everyone thought. In 2002, shortly after the diplomats had quietly shelved the amendment to the EPC, the European Commission suddenly proposed a Directive to define when “computer-implemented inventions” ("CII") would be patentable. This was somewhat surprising, as the European Community had struggled with patent law for almost as long as it existed. The European Patent Convention is actually not an instrument of European Community law but a separate treaty between individual countries – born out of the Community’s inability to agree on a single European patent for over thirty years. For the Commission to thus come up with a Directive to regulate an obscure part of patent law where they couldn’t even agree on the most basic principles was remarkable to say the least. 
Even more remarkable was the contents of the draft Directive. It proposed to codify the EPO’s 1998 interpretation of “software as such”, thus forcing every Community member state to accept a reading of patent law that was controversial even at the EPO and the industry, and which contradicted case law in several member states.

And then, the internet got word of the proposal.
Patents versus open source 
Remember those software engineers that felt safe from silly US software patents? Well, they all read on the internet that Europe would “legalize software patents” and acted immediately: this had to be stopped immediately. The European software industry had operated successfully for decades without patent protection, they argued. Many of them were small or medium enterprises (SMEs) that lacked the funding to apply for patents or to pay the royalties that they feared patent holders would demand. Academics argued the economic effect of patents in the software field was unproven.

The subject was particularly close to home for the open source movement, which was founded on the belief that software should be freely usable for all and that intellectual property rights that limit this freedom should be outlawed. This grass-roots movement had in the past decades quickly picked up steam and produced some of the finest software in use today, all available for free with unlimited usage rights. The software that serves as the backbone of the Internet is open source software, and most consumer electronics devices these days also largely rely on open source software.

The open source model relies on copyright law to protect its beliefs. Open source software is made available under a number of licenses, most notably the GNU General Public License or GPL which requires contributors to the software to release their changes and extensions as open source as well. These licenses ensure the continued availability of the software as open source.

More importantly, copyright law only protects the actual code, not the underlying algorithms or principles. This allowed developers to legally create open source alternatives to popular software such as the Microsoft Office suite. As long as they did not copy any actual source code, they would not infringe any copyrights of Microsoft or others. But with patents, this is no longer possible. Patents do protect algorithms and principles. If a developer creates a program that contains a patented solution, he infringes the patent even if he has never seen the patent or the original invention.

Thus, patents represent a serious threat to the open source model: companies that feel threatened by open source competitors can use patents to stop these freely available alternatives, and there’s nothing an open source developer can do to prevent this. Most of these developers work as individuals, small-knit groups or SME companies and have no resources to research patents, let alone to defend themselves against allegations of infringement.
Of software and bananas 
Thus, some of the most intensive lobbying by grass-roots movements ever seen began. Most of the opposition organized itself around the so-called Foundation for a Free Information Infrastructure (FFII), a German non-profit organization that made available tons of documentation, legal arguments, talking points and promotional materials for software engineers.

The movement scored a great initial success: on 24 September 2003, they convinced the European Parliament to turn the directive on its head: any invention involving data processing would now be excluded from patentability regardless of its technological nature. Moreover, patent applications for software-related inventions would have to contain a complete implementation of the invention in source code form, which would have to be licensed freely once the patent would run out. There was also a blanket rule to prevent patents from being used to stop interoperability between computer systems. 
This caused an outcry from many European patent holders, who feared that some two-thirds of their patent portfolio would suddenly become invalid under this approach. Data processing and interoperability are extremely basic concepts, and if those cannot be covered by patents then one might as well have no patents at all. Moreover, the proposal also reversed the “technical effect” doctrine that was in place since the mid-1980s. Innovations in mobile phones or telephony – these days almost entirely relying on software for new features – would lose their patented status. 
The European lawmaking process is extremely complex. The Commission can propose Directives, which require Community member states to harmonize their national laws in a particular way. Such proposals must be approved by the Parliament and the Council of Ministers before they take effect. So now everyone turned to the Council of Ministers, and this time it was industry that scored a win: lobbyists managed to convince the Council of Ministers to draft a “compromise” version of the Directive which essentially reversed all of Parliament’s changes and again provided for patents on “technical software”.
The behind-the-screen lobbying and rumours of shady deals prompted FFII supporters to come out with “No banana Union – no software patents!” placards during a protest rally in Brussels – with free bananas of course. The debate and the lobbying now again focused on the European Parliament, which had to make the next move: accept the Council’s compromise, propose new changes or reject the Directive? Further lobbying from both sides culminated in various ineffective proposals, e-mail bombardments to Parliament members, mutual accusations of undemocratic back room deals, national parliaments publicly fighting with their ministers and over 60,000 Google hits on “software patent”, most of them quite negative.

On 6 July 2005, the European Parliament decided it had had enough and scrapped the whole thing with 648 of 729 votes in favour. Both parties regarded the decision as a win: FFII and friends had “prevented European software patents”, and pro-patent lobbyists were happy that no patent-unfriendly rules had been passed.
Where to go next? 
Meanwhile, back at the European Patent Office more and more patent examiners were unhappy with the case law its appeal boards had generated. The EPO is experiencing a severe backlog thanks to the huge number of software-related patent applications it received in the past nine years. Reversal of the ruling is unlikely to happen – especially now that the EPO’s Enlarged Board of Appeals essentially said there is no legal problem with the EPO approach on software patents, allowing the Boards to continue treating “technical software by itself” as something different from “computer programs as such”.

However, a series of cases by the Board of Appeals provided the much-desired blunt instrument to get rid of the influx of US-style software patents.  The criterion of “inventive step” was strengthened significantly, allowing for easy refusals of most software or e-commerce patent applications. While no doubt bad patents are still issued, the number is significantly lower than in the early 2000s. 
In the various European countries, the situation is rather diffuse. Courts in a few countries, most notably Germany, have recognized the EPO interpretation as legally valid. The British courts however have taken a different interpretation. Most other countries haven’t addressed the issue at all, so no one knows how European patents on software inventions will be treated there. For the European Commission, the issue turned out to be such a mess that a new directive is unlikely to be proposed any time soon. 
The US is slowly moving in a similar directions. Recent court decisions, most notably the Mayo and Bilski cases have significantly limited the “anything under the sun” criteria and raised the notoriously low standard for patentability. Official USPTO policy now is that merely saying “using a computer” does not make something patentable, in stark contrast to the late 1990s where that was always essentially the argument. How this will pan out in the US courts remains to be seen. 
In the meantime, no politician is going to touch the issue with a bargepole for the foreseeable future. If you want to find out why, just visit some software engineers and ask them, “We’re going to support software patents, what do you think?”
Photo credit: Alberto Barrionuevo (licensed Creative Commons By-ND 3.0 Spain)
In the final stages of the software patent debate, lobbyists both in favour and against the Directive took to the waters to make their point towards the European Parliament. 
Arnoud Engelfriet (1974) is an IT lawyer and European patent attorney. He works as associate at ICTRecht legal services in the Netherlands. In 2005, while working for Royal Philips, he was involved in the software patent debate surrounding the Directive and has the mental scars to prove it. He has published dozens of articles on legal protection of software, open source and patents. You can read more about what Arnoud has to say about patents in IT at his website at

US Librarian of Congress issues new rule on exemption to anti-circumvention prohibition

The Librarian of Congress has just released its fifth triennial review of the impact of existing exemptions allowed under 17 USC 1201 (a)(1)(B) and adopted a new rule of the classes of copyrighted works that shall be subject to such exemption (an overview is available here). 
While making it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material, Section 1201 provides that there can be exemptions for users of classes of works [a “class” generally constitutes some sub-set of Section 102 subject matter], if "such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses" of such works. 
Rulemaking procedure
To determine the exemptions to the anti-circumvention provision introduced into US copyright by the Digital Millennium Copyright Act [IPKat readers will remember that the DMCA was adopted to implement the WIPO internet treaties], the law directs the Register of Copyrights (this is the director of the US Copyright Office, which is part of the Library of Congress and is the official body in charge of maintaining records of copyright registration in the US), to consult with the Assistant Secretary for Communications and Information of the US Department of Commerce, to conduct a triennial review of the impact of existing exemptions allowed under Section 1201(a)(1)(B) and to recommend further exceptions, if necessary. 
As made clear by Section 1201(a)(1)(C), while focusing on whether the implementation of technological measures has an adverse impact on the ability of users to make lawful uses of protected materials, the rulemaking proceeding shall take account of the following factors: 
  1. the availability for use of copyrighted works; 
  2. the availability for use of works for nonprofit archival, preservation, and educational purposes; 
  3. the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; 
  4. the effect of circumvention of technological measures on the market for or value of copyrighted works; and 
  5. such other factors as the Librarian considers appropriate. 
According to Section 1201(a)(1)(D), the resulting regulations announce “any class of copyrighted works for which the Librarian has determined ... that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition contained in subparagraph (A), which will not apply for the ensuing 3-year period." 
As a consequence of such temporal limitation, in each rulemaking proceeding the Register and the Librarian review the proposed classes de novo, as previous designation of a class creates no presumption that this will be confirmed. Moreover, it is not sufficient that use could be non-infringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise non-infringing.
The designated classes
Upon recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures:  

A. Literary works, distributed electronically [also known as e-books, explains Merpel] that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies for blind or visually impaired persons;

Merpel spends rainy days
downloading the latest apps
B. Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset [in other words, this exception permits interoperability of so called jailbreaking applications. 
Contrary to the request of the proponents (such as the Electronic Frontier Foundation), tablets, e-readers and similar portable devices have not been included. The reason is that the Register found significant merit to the opposition's concerns that (too) many devices could have been considered tablets, notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. This said, Merpel thinks that this class will have to be expanded soon, as the so called app economy is growing at an impressive rate: just in 2011 in the US the mobile app revenue was almost $10 billion, but by 2016 it’s expected to be more than $46 billion, as is explained here]
C. Lawfully acquired computer programs that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network to connect to a different wireless telecommunications network [so called unlocking], if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the telephone owner [the exception applies only to mobile phones acquired prior to the effective date of the exemption or within 90 days thereafter].

Criticism in progress
D. Lawfully made and acquired films on DVDs that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment, in the following instances: (i) non-commercial videos; (ii) documentary films; (iii) non-fiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts.

E. Lawfully obtained protected motion pictures and other audiovisual works on DVDs when circumvention is accomplished solely to access the playhead and/or related time code information solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions for the benefit of blind and visually impaired persons.
Classes considered but not recommended
The report also includes a section dedicated to classes of works which, although considered, have been left outwith Section 1201(a)(1)(B) exemption.
Interestingly enough, one of these classes concerns literary works in the public domain. The Register concluded that an exemption to access public domain works would be beyond the scope of the rulemaking proceeding.
Other classes considered but not recommended for an exemption related to video game consoles and personal computing devices for the sake of software interoperability, and films and other works on DVDs and other media for the sake of space shifting. 

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