J.A. McStea, Teemacs GmbH

Oddfellow 15 July 2022

Here come de judges…

So, appointment of judges for the UPC has started. Apparently 90 appointments have been made. In addition, Jérôme Debrulle, Chair of the Select Committee of the Administrative Council for the Unitary Patent, has said that his committee’s work in preparation for the coming of the UPC is now complete, and the EPO has updated its Unitary Patent Guide. So, it really does look as if it’s going to happen in early 2023. There remains the possibility of a legal challenge, as I have previously mentioned, but the whole business is starting to take on the appearance of an unstoppable juggernaut, and I suspect that any action taken at this stage would only delay the thing, not derail it.

There was talk of Ireland possibly being the seat of the chemistry/pharmaceuticals court vacated by the UK’s withdrawal from the scheme. Unfortunately, this looks unlikely, as ratification of the UPC Agreement requires a change in the Irish Constitution, which in turn requires a referendum. The Irish Government has said that this will take place in 2023 at the earliest, or perhaps even in 2024, so Ireland will not be an initial participant if the UPC does indeed go ahead in early 2023.

The vexed question of grace periods has often surfaced in the context of things European. At the moment, the only possibilities for a grace period in the EPC are enshrined in the non-prejudicial disclosures Article 55, and they are evident abuse (e.g. theft and publication) and international exhibition. US applicants are keen on the implementation of a US-style grace period, and there is some support for the idea in the European university community. The EPO conducted a survey last (northern hemisphere) winter and the results are now in. The general consensus was that the strict EPO novelty requirements presented little or no difficulty to most EPO applicants. The estimate was that, if a grace period were to be introduced, it would potentially be used in about 6% of the applications. However, the EPO has not ruled out the introduction of a grace period, saying only that the introduction would depend on the design of the grace period.

Speaking of things EPO, the Legal Board of Appeal recently ruled against Dr. Thaler in his attempt to get the AI entity DABUS recognised as an inventor. The Legal Board has now issued its reasons in J08/20, which are very much in line with the decision of the UK Court of Appeal. Specifically, the Board of Appeal found that the inventor as designed for a European patent application must be a person with legal capacity. They also decided that it is not permissible to merely state that no person has been identified as inventor, but that a natural person has the right to a European patent application by virtue of owning and creating the AI system. It follows then that, as is the case in the UK, the inventor of an application involving artificial intelligence should be the natural person who originated and started up the AI entity.

The DABUS example has resulted a lot of discussion on the subject. An interesting recent article looking at the many facets of the problem is this one. To me, in my admitted chemist’s ignorance, it seems that, until a computer actually becomes self-aware, it cannot truly be anything more than an exotic calculating machine, capable of munching ones and zeroes at a prodigious rate, according to instructions with which it has been supplied. Now, if it were to write its own program and perform it, that might be something different.  As that article nicely puts it, “…it is argued that, as long as computers rely on instructions defined by a human as to how to solve a problem, the separation between human and non-human (algorithmic) ingenuity is, in itself, artificial”. However, there are other opinions, such as the author of this book, who believes that machines with human-level intelligence are on the horizon. In which case, to go back to inventorship, can a machine have legal capacity as per the EPO decision? Or are we going to have to have a two-tier system, segregating human and non-human inventors? Is Skynet coming and will Big Arnie be here to save us?

Courtesy of things European, the old (1892) arrangement that German trade mark owners could rely on use in Switzerland, and vice versa for Swiss trade mark owners, has come to an end. The CJEU has ruled that this could not apply to EU trade marks, and may even be in contravention of EU law. So it had to end.

I finally got back to Ireland for the first time since Covid tossed a major spanner in the works. Unfortunately, it was for my mother’s funeral – she passed away just 5 days short of her 98th birthday. Sad, but a blessed release from a miserable existence, which really couldn’t be described as a life. She had dementia, she was immobile after a fall broke her hip, and her hearing and eyesight were poor. Belfast turned on its very best weather for the occasion – Sue (Mrs. Oddfellow) flatly refused to believe that the photo with the brilliant blue sky that I sent was taken in Belfast – but the unmistakable shape of the Cavehill (“Napoleon’s Nose” to the locals) was a giveaway. In fact, the weather was so good that, when I headed south for the Dublin-Cherbourg ferry, a fierce gorse fire was burning on the Cavehill.

Australians have the tendency to think of Europe in general as a “little place”, and indeed, looking at this map, it is. However, they also forget that nobody (at least nobody in their right mind) tries to drive across Australia in one go. Distances in Europe can be long. On the way home from Ireland, I decided to drive home to Basel in one stint. It took 11 hours, even on France’s excellent autoroute network, on which high speeds can be maintained all day. This, admittedly, was taking the long way, going north towards Amiens (anything to avoid the bedlam around Paris, which is technically the “short” way, being, according to Michelin, one hour shorter).  I was somewhat weary at the end, and was told off by the Missus for being a silly Old Git and was told not to pull this sort of stunt again. Going to Ireland, I usually stop overnight somewhere near Amiens and then proceed the following day to Cherbourg. This allows for holdups because of punctures, accidents, roadworks, etc., not the sort of thing you want to encounter when you have a date with a ferry. In future, I shall do this when driving back.

For the first time, I encountered a Brexit phenomenon. Because I had a voucher from the ferry company, as a result of two previous Covid-frustrated attempts to drive to Ireland, I couldn’t change anything, including the fact that it had been booked using a British passport. So, when I handed the passport to the douanier prior to boarding the ferry at Cherbourg, he looked through it puzzledly and then said, “French residency permit, please.” “I live in Switzerland.” “When did you enter France?” “Yesterday.” “Where’s the entry stamp?” “Nobody ever stamps anything at the Swiss border!” He looked puzzled again, and then handed it back. In future, I’ll use the Irish passport.

Speaking of Old Gits, I have now regressed to Really Old Git, having hit three-quarters of a century (or rather, it has hit me). Still, everything still (sort of) functions, so I can’t complain – not that anyone would listen anyway. I can only hope that everything really does function, because, as a birthday present, I received a letter from the Baselland Motorfahrzeugkontrolle, telling me to go to the local doctor for a test, to ensure that I’m still fit to drive. Thankfully, our nice local doctor is used to strange Irish humour (“Read the letters on the chart.” “What chart?” “The one on the wall.” “What wall?”), so hopefully I’ll be certified fit to drive.

The local narrow-gauge railway, which has been under construction for over a year now as part of a regauging from 75 cm. to metre-gauge, has its first new train, and it is using the bit of completed track outside our office as a test track. For me, the only problem is that they keep finding new bits of road to dig up, and therefore providing me with ever more varied bicycle routes. There is still quite a bit of work being done further up the valley, to the extent that I wonder whether, when they said “December”, they really did mean this one. I await further developments.

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