その物議自体は置いといて、その記事に対する欧州の知財関係者らしいMaxDrei氏のコメントが面白いです。米国のシステムは複雑で無駄な部分が多いように思えます。米国の知財関係者は細部に議論を絞ってああでもこうでもないと言っていますがシステム自体を大幅に見直さないと効率化はありえないでしょう。
MaxDrei氏のコメントに対し米国知財関係者が反論していますが視点の立ち位置が違います。位置の違いは重々理解しながら自分の土俵で議論しようとしているのでしょう。（欧州は関係ねぇ、ここは米国だ！という意見もあります。）
Posted by: MaxDrei | May 22, 2009 at 02:49 AM
I venture to suggest that this management move is yet another that is inspired by observation of case management at the EPO, where dissent judgements are unknown.
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投稿
As you all know, EVERY EPO Decision, positive to Applicant, or negative, carries three signatures, whether it be 3 Examiners or 3 Appeal Board Judges. Yet, only one of the panel of three knows the file in full detail. The system breeds collegiality and an esprit de corps at first instance. The totally independent second instance has no hesitation to disagree with the Examiners, and does so, fairly often.
The system is inherently expensive, but necessary for consistency, when the panel members are from any one of 35 Member States. It is neither the English system, where a single judge decides patent validity at the High Court in London, nor the German system where patent validity at first instance is decided by a 5 judge panel at the Federal Patents Court in Munich. All 5 judges read the case. Now that's what I call expensive.
The EPO system nourishes consistency. The caselaw of the EPO is constantly evolving but without any swing of a pendulum. Practitioners can tell you, with a high level of confidence, what will work and what won't.
The more complicated you make the practiuce of law, the more complexity you breed. Why allow dissent judgements below Supreme Court level, except to pander to the vanity of judges? Why have a Doctrine of Equivalents, except to give judges more freedom to waffle? The beauty of the European Patent Convention is that it contains the irreducible minimum of provisions needed in a patent statute. It emerged in 1973 on a plain white sheet of paper carrying no baggage of previous Statutes. You should stay with your present FtI Statute in all its magnificent obfuscation, or do what Europe did, that is, clear away the accumulated legal rubbish, and start afresh.
To my mind, the new Rules for the BPAI are a step in the right direction, but a step that will bring (assuming nothing else changes) only more wailing, gnashing of teeth and tearing of shirts.
おまけ
Posted by: American Cowboy | May 22, 2009 at 09:55 AM
MaxDrei does it again: holds up the EPC and EPO as the highest and best evolution of patents in the history of the world. While I am open minded and like to hear of other approached to solving problems, his constant insistence on the perfection of the European model is really irritating.
Posted by: MaxDrei | May 22, 2009 at 10:05 AM
You know what, Cowboy, there are two particular reasons why I do it:
1. I'm proud of EPC/EPO, a little bit of European co-operation and shared culture (even if I'm not very proud of a lot of other stuff in Europe) and
2. It "really" irritates my socks off, when Americans keep going on about how America is so superior (in every way) to everybody else on this planet.
You can realate to both of those, eh Cowboy?
And, thanks, Smash, for the reason you give. Actually, I had thought another was more important. In common law Binding Precedent, the identity of each individual judge is a key brick in the legal edifice. Not so in (more socialist??) civil law jurisdictions where consensus is more important.