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Alternative Technology an Infringement of Patented Technology

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Introduction

The rapid growth of new technologies obviates a growing need for scrutiny and precision by patent office’s internationally. Standardization of criteria is thought to benefit this process, but in turn, gives rise to the question of ease of patent ability versus the creation of insignificant or trivial patents. Despite multiple efforts at providing streamlined international solutions, alternative technologies can pose new problems regarding patent infringement –its relation to new applications of technology, as yet unaddressed or uncertain in current definitions of patent and mark law protocols. The more “tolerant” patent approach in the US defines non-obvious as sufficient to involve an inventive step. The European Patent Office has a more strict interpretation of this term. A European patent application entails an innovative step by providing a solution to a technical problem in a non-obvious way. This difference may serve to help avoid confusion and promote productivity in Europe, as well as discourage the sort of infamous patent infringement confrontations recently seen in the American software industry.

Alternative Technology an Infringement of Patented Technology

Patentability – Definitions and Differences in Europe and the US

Patentability requires an invention to be “novel” –original and new. Article 54 (1) of the European Patent Convention defines “novel” as being separate from the “state of the art” (existing and publicly available.) “Non-obvious” in US law, or “inventive Under the terms of the EPC, stage “in European law both specify the requirement that an innovation be” new, “or Genuine original enough to justify the patent. Novelty is, therefore, a prerequisite for an inventive step. A design may only be considered as having an inventive step if it is not apparent to a skilled person in the art. Consequently creativity and innovative move are separate requirements.

This definition of inventive step has been a subject recently in question by the UK patent office, as it has often been found to give rise to patents lacking insignificance. By the same count, however, greater facility in obtaining patents contributes to positive qualities of “innovation and competitiveness.Useful in US law or “Industrially applicable” in European law designates that an invention must serve a function, or fulfill an application and is equally part of this basic framework of patentability criteria. The European definition is again more exact in practical terms, referring specifically to the industry as the objective of the application.

Patent Law – Actions and Reactions

The Patents Act of 1977 was passed to implement the PTT, (Patent Co-operation Treaty), EPC and CPC (Community Patent Convention), closely following these definitions of the EPC and was the first effort at standardization in contrast to previous provisions of the Statute of Monopolies of 1623, which up until 1949, merely affirm that a patent may be granted exclusively for a new method of manufacture. A concept further examined by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 (page 34), is that the definition of an inventive step may be dependent on the nature of the invention. An original design is a result of adding a new concept to an existing reserve of knowledge. Thus, it may be possible to use established techniques in innovative ways not previously considered. It is not only the technique used but how it is used. Lord Hoffmann proposed that the claim to an invention could be acknowledged in part by how it was made and in part by what it did, case in point being the recombination DNA molecule, although applicable to many alternative technologies. The inventive step can, thereby, be the solution to a problem rather than an objective or means of attaining it. A further illustration of this could be: “Graphite, the material that gives pencils their marking ability, could be the basis for a new class of nanometre-scale electronic devices that have the attractive properties of carbon nanotubes – but could be produced using established microelectronics manufacturing techniques.

 

In contrast, if a patented technology is applied to a different application than that which that patent is originally designed to protect, or used without due recognition and payment of royalties, resulting confusion can endanger the legitimacy of that patent. An illustration of this is a case in 2004 involving a software activation patent infringement dispute: z4 Technologies of Commerce Township, Michigan claimed rights to two patents allegedly infringed on by Microsoft Corp. and Auto desk Inc. The two US patents, 6,044.471 and 6,785,825, apply to software security systems designed to control unauthorized use of software and piracy. Patent law intends to protect inventions of a technical or procedural nature. Concepts or theories belong to the realm of non-patentable matter, as these do not provide complete solutions to technical problems and therefore are not considered patentable by their merit. Patent law requires an invention to be directly useful and applicable in the sense of serving a purpose or fulfilling a function.

 

Uncertainty can equally arise from an alternative technology being used in a patented process, an example being Lexmark’s claim of terms of contract acceptance based solely on the use of a product, in this case, a printing cartridge, defined as “single use only.” The infringement referred to is the refilling of the cartridge, as well as methods and means for making it possible. The producer or supplier of this alternative technology, as well as the customer, can be held liable under both contract and patent law. This was contested by ACRA, just such a supplier (11796 ARIZONA CARTRIDGE REMANUFACTURERS v. LEXMARK), although the Court ruled in Lexmark’s favor.

Typically, rulings in such cases are contested or appealed. The Lexmark example might be seen to conflict with the definition of the non-patentability of ideas about the “single use only” ink cartridge, but was successfully debited by terms of the contract. To prevent confusion, it becomes immediately clear that patent and trademark law must adjust to the variety of new technologies being developed and the diversity of their applications. A worldwide effort is therefore underway to adapt legal parameters and procedures to these rapid changes. 

Paradox and Uncertainty in the US

A problem can, unfortunately, be seen in possible abusive exploitation of legal systems and processes themselves in the interest of promotion and gain rather than protection: Video Conferencing Company Forgent brought suit against 31 companies, for patent infringement, which, according to the company, covers the compression, manipulation and transmission of JPEG images, Apple, IBM, Adobe, Gateway, and Xerox being among those implicated. (A consolidation of two cases, No.2-05CV-318, 14 July 2005, and No.6:05-CV-00343, 19 September 2005 in the Eastern District of Texas, Marshall Division, regarding infringement of patent No. 6,285,746.)

 

JPEG, “The Joint Photographic Experts Group,” consists of specialists chosen by national standards bodies and major companies for the creation of standards of continuous tone image coding, the most common of which is IS 10918-1, the first of multiple groups of image compression standards. A basic version of this standard is the usual JPEG format in use. Forgent is claiming control of this technology. The patent is owned by Compression Labs, which applied for it in 1986 but never sought royalties. Forget later procured Compression Labs, stunning the computer industry in 2002 with the announcement that it would be seeking royalties for digital image compression, widely considered to be in the public domain. 

 

A committee of JPEG claims to have studied Forgent’s patent and concludes that prior art exists in areas in which the patent claims to apply –the technology has been in use before the existence of the patent. Inconsistency can be seen in a recent effort to predetermine the judicial process regarding the rapid growth of communications technology. Disturbing implications of prohibiting the use of technology pose a direct threat to universal doctrines of freedom of expression and the respect of judicial process:

The Electronic Frontier Foundation (EFF) has submitted a request to the United States Supreme Court for assessment of a Federal Circuit Court of Appeals’ decision that eBay infringed patents filed by Marc Exchange relating to online auction systems and that eBay could be unconditionally barred from use of the patented technology. The Court further affirmed that owners of patents with demonstrable proof of their cases might seek permanent injunctions unless presenting a threat to public health. 

A ruling of “automatic injunction” would deprive judges of their authority to evaluate a decision. The Ayahuasca patent revocation exemplifies a limitation in the US patent system, which fails to credit the established knowledge of native peoples concerning their local biological environments. Researchers can acquire patents without acknowledgment of this local knowledge. The World Trade Organization has tried to globalize Western intellectual property systems by way of international treaties –efforts which have met with significant opposition in several developing countries, having, in turn, implemented laws designed to protect their natural resources, thereby imposing significant limitations to a researcher’s access in essential regions.

A European Precedent

A similar instance of revocation by the European Patent Office (EPO) of a patent concerning the fungicidal value of the neem tree was noted as a significant advance in the control of biopiracy. The ruling has symbolic significance –the message being that companies active in biotechnical research in developing countries may not consider “traditional knowledge of indigenous communities” as being in the public domain. The decision by the EPO’s technical appeals board against the petition brought by patent holders, Certis of Columbia, Maryland, a division of Japan’s most prevalent general trading company, Tokyo based Mitsui, and the US Secretary of Agriculture thus concluded more than a decade of dispute.

New Zealand and the Case for Exclusion

Exclusion is another rationale on which a patent may be denied. Under certain conditions, an invention may be considered as inadmissible by cause of its nature or implementation:

In an appeal by the plaintiff, Pfizer Inc, to a decision of Ellis J in the High Court (Re Pfizer Inc, HC WN AP257/2000 30 August 2002), Ellis J upheld the original denial of the Assistant Commissioner of Patents to grant patents to Pfizer for methods of medical treatment. Under New Zealand law, methods of treatment of disease or illness in human beings are excluded from patentability. Pfizer held that there was no longer a valid basis for medical treatment exclusion, requesting the Court to conclude that methods of medical treatment may be patented in New Zealand. Two patent applications in 1997 and 1998, both relating to methods of medical treatment of psychotic disorders, used a new compound. The assessor reported with consideration of both applications that several claims “do not appear to relate to an invention as defined under s2, as they relate to a method of treating humans.”

 

In Schering AG’s Application [1971] RPC 337, the Patents Appeal Tribunal referred to s41 of the Patents Act 1949 (UK), comparable to s51 of the New Zealand Act. Those sections indicated the obligatory licensing of patented medicine. The Tribunal suggested that the omission of reference to methods of medical treatment in UK s41 demonstrated that the UK Parliament had acted on the assumption that a patent could not be granted for a process for medical treatment. Section 51 of the Act has been repealed, so this argument has no current significance in the New Zealand perspective, apart from the repeal advanced by Pfizer as a basis for reconsideration.

Intellectual Property

The need for international safeguards of intellectual property came to light when exhibitors at the International Exhibition of Inventions in Vienna of 1873 were unwilling to attend, fearing that their ideas were not sufficiently protected. In reaction, The Paris Convention for the Protection of Industrial Property, one of the first international accords, was signed in 1883, following a diplomatic discussion in Paris in 1880 and helped set the ground rules for what later would become WIPO. Copyright law became international with the Berne Convention for the Protection of Literary and Artistic Works in 1886, created to protect the rights of management, payment, and use of creative works. In 1970, the World Intellectual Property Organization, (BIRPI) became WIPO, which is 1974, became a specialized agency of the United Nations system of organizations, with authorization to manage intellectual property affairs of UN member states. Collaboration between WIPO and the World Trade Organization (WTO) in 1996, served to augment further the degree of protection of intellectual property –inventions, designs, trademarks, books, music, and theatrical works or films.

 

The Patent Cooperation Treaty (PCT) provides an integrated set of procedures to protect inventions by using a streamlined international filing system of patent applications. Rather than filing the same application in many countries for a search and examination, an applicant may file a single PCT international application, obtain a search report and, if required, an assessment report preceding the filing of the application in each of the countries. An available filing results in an available search, accompanied by a written opinion (and optionally a preliminary examination,) after which the relevant national or regional authorities handle the test (if provided by federal law) and grant procedures.

 

The European Patent Convention is a separate entity from the European Union with different members. Bulgaria, Iceland, Liechtenstein, Monaco, Romania, Switzerland and Turkey are members of the EPO, but not of the EU. The EPC provides a legal structure for the granting of European Patents, using a streamlined and coordinated procedure, submitted to the European Patent Office. A single patent application may be filed at the European Patent Office in Munich, at its branches at The Hague, in Berlin, or at the national patent office of a contracting state, when the federal law of that state allows. This provision is significant for some countries, such as the United Kingdom, in which residents are not permitted to file patent applications for inventions in some cases in other countries, without obtaining prior authorization through the UK Patent Office.

 

The Patent Law Treaty  (PLT) came into use on 28 April 2005 in ten states: the Republic of Moldova, the Kyrgyz Republic, the Republic of Slovenia, the Slovak Republic, Nigeria, Ukraine, Estonia, Denmark, Croatia, and Romania, in Bahrain on 15 December 2005, in Finland on 06 March 2006 and in the United Kingdom on 22 March 2006. As of May 2006, the PLT had been implemented in 13 states. Its purpose is to complement other official procedures, coordinating requirements such as the obtaining of the filing date for a patent application, the form and content of a patent application, and representation. The question arises if the many organizations and treaties can successfully coordinate an effective world system of patent protection in light of technological changes and advances, or if additional changes and improvements can further promote a more successful system.

 

The Trade Mark –Image of the Patent

The market symbol of a patent is its trademark, a unique emblem representing a trader’s goods or services and distinguishing them from those of another and comprised of a combination of words, logos, images, and even sounds. It is an essential –and the oldest form of intellectual property. Despite this fact, trademark protection in the US lagged until the Trademark Act of 1881, infringement cases being exceedingly rare until the late 1800s.  The Trademark Act of 1946, or the Lanham Act, was first to define restrictions of inequitable methods of competition and the concept of infringement. It allowed the registration of service marks, provided incontestability for marks in established use for five years, and designated that the federal registration of a trademark would include “constructive notice of the registrant ‘s claim to ownership of it.” These provisions still define the primary structures of contemporary legislation.

The set of rules created from the Madrid Agreement Concerning the International Registration of Marks, The Madrid Protocol, is a focal point in the effort to develop a viable streamlined and international system of mark processes –an attempt at global standardization, simplification, and reform. As of 02 November 2003, 61 countries, including the United States, had become active members or “contracting parties.

American trademark applicants registering their patents using the Madrid Protocol are limited to basic international application and registration, meaning that trademarks may be less protected. Madrid Protocol is, therefore, not an ideal solution in all cases. A recent trend of Supermarket retailers has been to supply products displayed next to well-known brands, but under another name –products similar in appearance, but at a lower price than the famous brand. The suggestion to the consumer is that this other product is of equal quality but at a better price. Frequently, but not as a rule, the manufacturer of the well-known brand is, in fact, the same producer who also makes the supermarket product. This strategy may not always be agreeable to a manufacturer, but as retailers are their clientele, they also may not wish to debate the practice.

An example of a manufacturer taking action against such methods was the case of United Biscuits (UK) Ltd. v ASDA Stores Ltd. (1997.) The maker of Penguin” biscuits brought suit for court orders restraining a supermarket chain from selling similar biscuits under the name “Puffin,” the plaintiff indicating not only the similarity of the name but also the colors and wrapping and the depiction of a standing sea bird displayed close to its products.

 

Findings for the plaintiff, Robert Walker J, utilized the terms indicated by the Court of Appeal in Harrods v Harrodian School [1996] RPC 697, of the three conditions: reputation, misrepresentation, and damage to goodwill –the “classic trinity” of action for passing-off. The plaintiff’s good name and the propensity for damage were evident. About misrepresentation, he indicated the significance to the Court that the products were low-priced and familiar. The packaging was judged deceptive by way of the distinctively similar representation of an upright dark-colored bird, the depiction, and the name “Puffin,” associating the producer of the defendant’s biscuit with the manufacturer of “Penguin.” Claims for trademark infringement were generally unsuccessful, the judge revoking four pictograph marks for non-use.

 

The practice of re branding, often associated with software developers, can also be found to share similar implications to the supermarket example. A product is marketed or distributed under a different name and logo than those used originally, in some cases by the same company as in a company’s restructuring or the enhancement of a product’s image, but more often by another company through acquisition or licensing. One example is Norton Clean Sweep, incorporated into the Norton System Works product, which was initially Quarterdeck Clean Sweep before Symantec’s purchase of Quarterdeck in November 1998.

 

Trademarks are categorized as industrial property, a special type of intellectual property. Infringement can arise when a third party uses an identical or similar mark to a registered trademark for the same or similar type of goods or services and can be restrained by court order. The courts can also award damages and costs to the owner of the registered trademark, which is infringed. Confusion through association can occur when one trademark or name resembles another, or the marks are sufficiently near in meaning, sound, or form. The element of confusion has been a cause of discrepancy and uncertainty in trademark law. Evaluating evidence of confusion necessitates too objective judgments and is most difficult and challenging.

 

Jacob J held in Vodafone Group Plc v Orange Personal Communications Services Ltd. [1997] FSR 34, 39, that the Trade Marks Act of 1994 allows for comparative ethical advertising by specifying that nothing may be interpreted as hindering the use of a registered trademark as a function of naming goods or services as those of the owner or licensee. Use other than that associated with truthful practices in manufacturing or business issues, may be considered as an infringement of the registered trademark if the use, without due cause, takes unmerited advantage of, or is damaging to the distinctive character or standing of the brand. The plaintiff took offense to the defendant’s publicity, inferring that a reference to its customers’ savings of £20 monthly on average was misleading and that the defendant’s description of its services infringed its mark. Jacob J agreed that if the slogan were deceptive, it would constitute an infringement. In light of the facts, the judge ruled that this statement was not misleading, as the cost of service could inevitably be lowered by preferring the defendant’s use. The plaintiff’s activity, which had been cited for malevolent pretense and trademark infringement, failed on that basis.

 

Intellectual property rights (IPRs) give the proprietor of concepts, inventions, and creative expression the right to deny access to the use of their property to third parties. US law provides extensive protection of intellectual property rights categorized as patents, trademarks, service marks, copyrights, and trade secrets. The nature of technology may necessitate changes in legal perception or interpretation of copyright as now understood –web content, for example. Guidelines for the fair expression of these rights relative to financial transactions, advertising, and other processes must be considered.

 

The TRIPS Agreement employs minimum standards, allowing Members to supply broader protection of intellectual property if they so choose. Members are allowed the freedom to establish suitable means of applying the provisions of the Agreement within their legal systems and practice. National laws could provide that public interests prevail against the private parts of an author. For this reason, international IPR conventions typically contain requirements authorizing member states, in certain instances, to limit the rights of the recipients of IPRs. This harmonizing process is clear and precise about national and international laws of copyright. Typical examples are of copyrighted material for educational and administrative purposes, for news coverage, private copy, and personal uses of copyright-protected works.  

 

The accord makes dispute settlement between WTO Members concerning the TRIP’s commitments subject to the WTO’s methods of resolution. “Members may grant limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not conflict unreasonably with the normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the proprietor of the patent, taking into account the legitimate interests of third parties.” (Article 30). Patent authorities in Europe frequently name the TRIPs treaty as a cause for making computer software and business procedures patentable and for putting such patents into effect in unacceptable ways. This logic is misleading and can be disproved. In contrast, it becomes clear that it is the European patent establishment itself acting contrarily to the TRIPs treaty.

In the Ideal Standard case, (CELEX-61993J0009, 22 June 1994, IHT Internationale Heiztechnik GmbH and Uwe Danzinger v Ideal-Standard GmbH and Wabco Standard GmbH, Oberlandesgericht Düsseldorf, Germany, case C-9/93, European Court Report 1994, page I-2789), the European Court of Justice (ECJ) in a ruling of 24 June 1994, rejected the doctrine of “common origin” that it had created in 1971. In keeping to the standards of the free flow of goods as defined by EU law, the right of a trademark owner to use its trademark to prevent the introduction of goods marketed by that owner, or with his consent, into a member state of the EU is nullified by the import of those goods by the owner, or a licensee, associated business, or distributor, into another member state.

 

In the Hag I case, the ECJ extended the exhaustion principle to apply in situations where a mark was owned by different parties in different EU countries as a result of post-war expropriations of enemy property. The Court held that the assignee of the HAG mark in Luxembourg could not prevent imports of HAG coffee from Germany, where a different party owned the HAG mark, because the assignee had ultimately acquired the trademark from the German owner. Thus, because the spots had a common origin, the use of trademark law to divide the marketplace was inconsistent with the principle of a free circulation of goods within the Common Market under the Treaty of Rome.

In the Hag II case,( Case C-10/89, Hag GF v CNL-Sucal [ 1990] ECR I-3711), the ECJ overturned its decision of Hag I, (Case 192/73, Van Zuylen Frères v Hag AG [ 1974] ECR 731), realizing that “common origin,” at least in cases of deprivation of proprietary rights, was not entirely in keeping with developments of EEC law. The Court’s opinion was that consumers must be protected from confusion caused by the use of the same or confusingly similar mark for similar products by legally and economically separate entities. The Court additionally affirmed that a trademark owner’s endorsement of the marketing of products under the trademark should be a central motive in choosing whether or not a trademark owner may inhibit parallel importation.

Trade Mark Law and the Consumer

Trademark law is concerned with the protection of consumers as well –one reason for laws to be stringent and penalties high. Trademark infringement harms the owner of the trademark, as well as consumers at large. There are two basic types of trademark infringement: passing off and reverse passing off. A software developer trying to market his product with another’s trademark is referred to as “passing off.” Equally, taking someone else’s work and repackaging and presenting it under pretenses as new and original is reverse passing off. In both instances, consumers are being deceived as to the content and nature of what they are buying.

 

Character merchandising, as defined by WIPO, is the use of a name voice and statements of an actual or fictitious character to support the sale and use of products or services.  This type of promotional marketing would seem to be similar in principle to any other trademark and subject to the same regulations. An example involves a dispute between Eddie Irvine, a Formula One racing driver, and Talksport, a radio station which, in 1999, used as promotional material a picture of Mr. Irvine holding a portable radio next to his ear bearing the words “Talk Radio” to advertise its coverage of motor racing. The falsified image was an altered photograph of Mr Irvine with a mobile phone. The Court’s decision confirmed passing off –the classic trinity having been established. Notable here is that similar evidence of misrepresentation may not always be as clearly defined. Promotional advertising and the precise manner in which it is used requires the express consent of the personality or proprietor of fictitious characters.  The use of favorite fictional or actual characters to promote sales immediately poses additional ethical questions as it often targets minors and, notably, parents of children, thus requiring most careful attention. 

 

Conclusion: Alternative Technologies and their Implications.A typical example of alternative technology’s success is transfusion-related computer science, a significant contributor to life-saving automation techniques, so significantly improving speed, accuracy, and the prevention of life-threatening errors, those previous methods are widely considered as obsolete.

 

Alternative technologies can and do describe a vast body of work in more efficient, environmentally friendly, or just more intelligent utilization of general principles or materials for beneficial purposes, which would, on that definition, not conflict with any copyright, patent, or trade principles, indicating merely a need for legal systems to adapt to changes of this type when necessary.

 

UK Patent Office policy does not consider software technology to differ from other forms of technology. It further indicates that if a patent system is managed correctly, innovation is encouraged by the granting, and resulting publication, of patent worthy software inventions. Total reliance on copyright could inhibit innovation as many original procedures that are an integral part of a computer program can be concealed by keeping the source code a trade secret. “Publishing a patented invention encourages either the licensing of that technology, or the creation of alternative technology, thus stimulating the evolution of the technology itself.

 

Based on the evidence, protocols, policies, and practice, it would be incorrect to presume that alternative technologies infringe on the patents of existing technologies.

Noteworthy is a consideration of the concept of freedom: The “freer” American patent law system may be lacking in definitions and provisions and, therefore, not as free as it would first appear. European globalization efforts and more specific intentions of policy may be ahead, promoting a more just and balanced interaction internationally.

 

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