Oddfellow June 2017

Tony McStea

Bubendorf 30 June 2017

Further indications of antiquity…

As a 70th birthday present, I got a letter from the Motorfahrzeugkontrolle (the car and driver licensing authority) informing me that I had to have a medical examination to ensure that I was still fit to drive. A helpful stamp on the letter informed me that the new law, changing the age for the first test to 75, wouldn’t come into force until next year. It was opportune for a doctor’s visit, because I also had a sore back. Sore backs are one thing from which I rarely suffer – I am forever grateful for the annual compulsory lifting course in Dulux, which everyone had to attend, for teaching me to lift properly – so this one is a bit of a mystery. Perhaps it was merely age. Sue (Mrs. Oddfellow) was at the doctor for a periodic check-up (she lost one-third of her large intestine a couple of years ago), and she showed him a particularly severe rash on her arms, courtesy of gardening. She told him that she’d been gardening since childhood and she’d never had a rash before. “Age..,” he said. So, every time I make a back-related comment, she says “Age…” Anyway, I passed, so I’m still fit to drive.

I’m going to Belfast in July to keep an eye on my mother (93) while my brother is on holiday. If my back pains persist, Sue suggested that we could go out shopping for walking frames together… I’ll be there for The Twelfth, the annual Loyalist arrogant struttfest, displaying to That Other Lot that We Won and We’re The Boss. I never liked it. Alas, my father played in a flute band and I got dragged along regularly until I was old enough to opt out. I like it even less, now that I know that the Protestant myths on which the whole thing is based are just that. It’s just part of the bizarre tribalism that is sadly still a part of Northern Ireland. It has again been dragged into the light with Mrs. May’s desperate tie-up with the Paisleyite Democratic Unionist Party to form a Government in the UK.

Given the UK’s mess, how does this affect the UP/UPC? My favourite bit of PNG pidgin, “buggerup”, would seem to apply anew. The UK election, far from producing the enhanced majority that Mrs. May desired, produced precisely the reverse. The final piece of necessary legislation, the Order on Privileges and Immunities, was laid before Parliament on 26 June, but given the current state of the UK Government, I wonder when it will get around to debating it. (Story is that one of the big London banks is predicting that Mrs. May is living on borrowed time). Meanwhile, the UP/UPC law has passed both houses of the German Parliament and all that was needed was the President’s signature. This was to be timed to bring the whole shebang into operation on 1 December. Suddenly there has come a challenge to the law from the German Constitutional Court. It is from a hitherto-unnamed individual and the grounds are as yet undisclosed, but the Court regards the objection to be non-trivial, and it will hear the case. How long this will delay proceedings (and I suspect that this is all that it’ll do) is anyone’s guess, but it is now certain that the UPC won’t start until 2018 at the earliest.

I think it’s just starting to dawn on many Brits what a horrendous mistake they’ve just made with regard to the Brexit referendum. However, there are many little Englanders, still living off the glories of 1940 and happy to see the back of funny foreign ways. The fact that Britannia no longer rules very much hasn’t quite dawned on them and politicians are happy to pander to their new Elizabethan Age fantasies. I thought it was rather good that, for the Queen’s Speech, setting forth the new goals of Government, the Queen came, not in the usual royal regalia, but in a blue coat and hat, with the hat bearing something looking vaguely like the stars of the EU flag. We are not amused? That the EU is far from perfect is clear; however, to leave the world’s major trading bloc with the idea that you’re going swashbuckling and capturing the world anew seems slightly ridiculous. Elizabethan fantasies are fine for the first Queen Elizabeth, but arguably not for this one.

The possibility of the UP/UPC on the horizon has led us at Givaudan to look at how we handle joint inventions with collaborators, some of which are German, and this brings up the vexed subject of the Arbeitnehmererfindunggesetz (ArbNErfG), the German inventorship law. This stems from the “Goering-Speer Verordnung” of 1942 (yes, THOSE Goering and Speer), which sought to enhance the performance of the economy by providing specific rules for the compensation of inventors, and not only the “particularly valuable” inventions of, most famously, Prof. Shuji Nakamura for the blue LED. My first encounter with this law was back at MBT, which had just passed from the hands of Sandoz to those of what was then called SKW Trostberg AG. A German inventor was involved in one of our applications, and the second thing with which he provided me after his name was his bank account number. “Why,” I asked, “do I need this?” “To pay me for my invention.” “Forget it, fella, this is Switzerland, where it doesn’t apply.”

I now know more about it and realise that it can apply beyond the obvious case of a German domicile working in Germany. The subject is highly complex and very case-dependent. I know Bruno Schmidt, my SKW counterpart, passionately hated it, because he had to spend an entire day twice a year calculating it for the inventors. However, he had to take it seriously, because the ArbNErfG supersedes anything in an employment contract. With regard to the contract, the place of signing of the contract is the critical factor. In other words, a German employee sent on secondment to a foreign country and who invents something there is covered by the ArbNErfG.

The law merely says that compensation should be “adequate”. Which means what, exactly? Unspecified, but there are “Richtlinien” (guidelines) published by the German Government, which, if followed, will probably be deemed “adequate”. The formula is V=E x A, where V is compensation (Vergütung), E is value of the invention (Erfindungswert) and A the share factor (Anteilswert). As you can imagine, both E and A involve several canneries of worms.

The moral of the story is, if there is German involvement in a corporate invention, look at the ArbNErfG very carefully – it might well apply.

The US patent profession (or at least some of its more vocal members) regard the US patent system as the absolute foundation of America’s success. That the patent system plays its part in encouraging innovation is undoubtedly true, but to see it as THE factor, as opposed to one of many, seems to be going a bit too far.  Many of these enthusiasts regard the America Invents Act, particularly its post-grant review proceedings, as the devil incarnate and a move away from the previous idyllic state of US patenting pre-AIA.

The PGR regime is now under review from the Supreme Court as possibly being unconstitutional (by overriding the right to a jury trial). There have been a number of other initiatives. There is an attempt to restore the grace period to its former glory, as opposed to the shrunken thing it is under the AIA. Then we had a STRONG (Support Technology and Research for Our Nation’s Growth) Patents Act. This has now been replaced by (believe it or not) a STRONGER (“and Economic Resilience” is added on) Patents Act. Views are varied; some think it’s just the shot, others think it’s the perfect way to encourage US companies to innovate overseas. To paraphrase Douglas Adams, some people believe that, if anyone understands the US system and the politics behind it, it will promptly disappear and be replaced by something even stranger. Some believe that this has already happened. Well, it happened in their last election, didn’t it?

P.S. Have I completed that giant Australian pension form yet? Er, no. I thought I’d start with the easy bits, one of which was “Are you claiming for yourself only?” No, I wasn’t, I was claiming for Sue too – and I got all the way through the form to find, at the very end, that she had to be 65 before I could claim for her. I’ve bought the Tipp-ex®, but so far I couldn’t be bothered using it.

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