Tuesday, April 13, 2010

Employee Inventions - Private Sector Makeover

A proposed piece of legislation was recently filed with the French parliament relating to revamping the current wishy-washy legislation about employee inventor remunerations into something half-decent (in theory at least), hopefully with some teeth, and with the purported aim of stimulating the French economy and turning the nation's patent applicants into a "file first, file fast, ask questions later" IP cowboy. The proposed text can be found here:


The aim of this long sought after legislation (at least from the various inventors' lobbies) is to bring the private sector into line with handling of public sector employee inventions, which have been codified (and operational) for some time now.

After having read the proposal, I find it unlikely that it will sail through parliament unchecked - the employers' (Medef, CGPME, etc) lobbies will no doubt bring their weight to bear on MPs and Senators alike to remove the proposed possibility for employees to come back to their employers at some undefined date in the future and ask in true Oliver Twist style "for more" if they sense that the employer is making too great a profit from the invention to which they contributed. I'm also pretty certain that if, as is proposed, new taxes are set up to deal with these perceived windfalls that are escaping the clutches of the "good ol' French IRS", then the government will cook up something that nobody will be happy with - after all, the French state is up to its eyeballs in debt, and what better way to earn more money for itself than to tax those both giving and receiving, I can see the state treasury laughing all the way to the national bank!!

One thing is certain : the current situation is a complete mess, with the legislation so full of holes you could strain your spaghetti in it and case law apt to swings of mood. It is at least praiseworthy that someone has stood up to the mark to attempt to do something about it, but ultimately the law may have no real teeth as such and it will be a case of yet another piece of rushed positive lawmaking gone horribly wrong.

As examples of a few potholes in the current legislation that IMHO need filling:
  • - applicability (or as the case law now says, "inapplicability") of collective bargaining agreements;
  • - absence of explicit sanctions for not respecting the invention declaration and categorisation procedures; at the moment, the employer can get away with virtual murder of the invention by not sticking to the procedure laid out under law, leaving the inventor to either go to court to obtain a decision, or to file a patent application surreptitiously and then tell his/her employer afterwards - in any event, it generally leads to an uncertain legal position and a fair amount of strife between employer and employee;
  • - HMA (hors mission attribuable) inventors being considered by the Social Security and IRS administrations as having independent inventor status even though they are fully employed with the company that awards itself and files their inventions;
  • - absence of binding (appealable) decisions issued by the National Employee-Inventors Commission;
  • - supplementary remuneration being considered as salary : aside from the taxation issues, French employment regulations currently make it impossible for an employer to pay an inventor "supplementary remuneration" using the only means available to it, i.e. a wage slip, once that person has left the company. An attempt has been made to address this issue in the proposed legislative changes by considering the sums paid as outside the normal scheme of salary payments.

More updates on this topic as things evolve (no doubt slowly given the current political climate).

Monday, April 12, 2010

Living Dangerously aka French Fax Machine Woes

Experience has proven that when you attempt to file by fax at the French PTO (INPI), after 5pm, with an application of more than 15 pages, then you really are loading a revolver with more than one bullet before pointing it at your head. Russian roulette, ha !! childsplay. Want a real adrenaline rush ? Try and file a 50+ page PCT application in English after 6pm, now there's playing hide n seek in a minefield, while under the influence, and base jumping without a parachute all at the same time !!!

In the world of modern communications, and despite a wealth of e-mail communications abounding, the fax machine still appears to have many a long day ahead of it, and to be fair, it is on the whole a fairly reliable and secure way of transmitting data (absent wire taps and capturing electromagnetic waves from phone lines via sophisticated interception techniques). One would think that most European nations' IP offices would have reliable fax machines. Oh ye of utmost naievety, for ye have not encountered the INPI's ultimate fax reception service solution hell.

Indeed, in stark contrast to the EPO, WIPO and even most other IP offices I've had to deal with in the past, the French PTO continues to have, in my humble and completely unbiased opinion, one of the most woeful fax reception systems in the world. Last I knew, they only have one full time fax machine dedicated to receiving faxes from the public. There is a back-up, in case the first one breaks down, but apparently it is not set up to take over any excess demand for communication that the first can not handle. The fax machine is only cared for by a member of staff until 4:30pm (OK being generous, I actually heard it is 4:45pm), after which, in true French civil servant "jobsworth" style, that person bunks off for the night and leaves the machine to a lonely evening alone at home (can't you see those teardrops running down my face ? No ? not surprising coz I'm sharpening my knives !!).

So, the fax machine sits alone in Paris, at the INPI's St Petersbourg street HQ in the hope of one or more external communicants dialing its number. But lo and behold, what happens when those outsiders use up all the paper, or it jams ??? Errrmmm, well, the fax goes offline - I hear gasps of horror from the audience - yes, it does just that. Aha, but those who have been following chirp in, "Wait a minute, you said there was a second fax machine waiting in the wings". So I did. But here's the catch. The second doesn't know the first isn't working because they are not synchronised, i.e. it is not a true failsafe, fallover, backup, whatever. Truly astounding, implementation of modern technology at its best. And of course, yes you've guessed it - the person who looks after the fax machines having gone home, no one else is there to care a hoot, or even less, do anything about it.

Of course, now that the INPI has finally entered the age of electronic filing, it probably doesn't care very much whether its fax machines are left to break down on their own well before most of us have even thought about going home. Yet consider this, if you will : the stats tell us that approximately 16,000 French filings are carried out each year (with a slight variation, give or take a couple of thousand). Of those, I would guess that approximately 10%, maybe 15% are filed using the online filing system - the rest, well, snail mail and fax of course, and usually both since fax filings have to be confirmed via normal mail. OK, where does that leave us, hmm, at an optimistic 13,500 filings over the year, a daily average (including bank holidays and weekends) of 37 patent application filings a day. Obviously, this figure does not consider any of the other filings that take place using the same fax number, filing responses to office actions, various other requests, other rights filings, etc, so the number of communications going through that fax number must be much higher than first thought.

One would have thought that even the INPI would have sussed that so many faxed communications would warrant a more reliable system, capable of running 24/7, but the powers that be at the INPI have obviously decided that this is not the case. It may be, once again, that budget constraints mean that it can't actually afford to invest in a battery of failsafe fax machines, in which case there is no hope. Of course, some smart people in procurement could just suggest that the faxes be handled by a PC (or two or three) running fax reception software, but apparently even this appears beyond grasp of comprehension.

If you've managed to bear with me to the end of this rant, then you'll have done well. "What did I do then ?", you might ask. Answer : WIPO - response time of 15 minutes max - now there's service !!

P.S : The above is entirely based on my own personal perception. If anyone out there really does know what the actual set up is at the INPI, then I'm all ears, I was just letting my paranoiac psychotic brain get the better of me ;-) toodlepip !!