Cloak and Dagger Filing - just leave your smartcard at home

My contribution, call it that if you will, of today, relates to a recent friendly, but nonetheless firmly worded, circular sent by the French Ministry of Defense to all French IP attorney firms at the end of November (plus I assume, also to counsel working in industry). In it, the DGA (Direction Générale de l'Armement), responsible for checking the content of all French, European and PCT patent applications filed through the French patent office (INPI), has reminded all practitioners of the need to think carefully before unholstering their Smartcard and filing their patent applications using the EASY/PCT SAFE software that so many national offices now attempt to ram down our throats, despite it being platform and operating system dependent on one very large operating system supplier.

To be brief, the instructions handed down in the circular state that electronic filing software as provided by the INPI / EPO / OMPI is not certified as "defense security compliant", and thus advises as follows:

(a) if the subject matter of the patent application relates to contract research or development financed by the MoD, inter alia, those containing a required security notice ;

(b) or if the subject matter of the patent application can be of military usefulness which confers operational superiority (to France of course)

then the electronic filing software should not be used, and the usual channels of paper filing are mandatory.

It transpires that the reason for this circular is apparently linked to one or more "near misses" with regard to potential breaches of national security, although for obvious reasons no further details of the "near miss" are given. The fact that the DGA has taken the trouble to write such a circular is significant in itself, as usually this is a very discrete department not prone to such displays.

Now I can see people at the back raising an eyebrow or two about how vague the expressions "of military usefulness" and "operational superiority" are, and how extensive, nay expansive, they may seem. Indeed, and to this end, the DGA has kindly provided a short guide of two A4 pages styled as a FAQ as to how to go about determining whether the applicant is likely or not to fall foul of the military secrecy statutes as they affect patent applications. I might even get around to translating it from French into English if I get the time, but one thing of noticeable importance is the bit on inventors. There is, so states the circular, "no obligation to first file the patent application via France just because one of the inventors is French, or has his place of residence in France" (this was indeed the interpretation of the law given by many a practitioner until now). However, before you all go off telling yourselves that there is no longer any need to worry, one should read on : "the fact that an inventor carries out research or studies on behalf of a foreign entity, where those activities may conflict with the fundamental interests of the nation, may expose the inventor to the sanctions foreseen by the New Penal Code". Additionally, and as mentioned elsewhere in the circular, all of those involved in the transmission of information deemed to affect the fundamental interests of the nation, and particularly those of the MoD, are tarred with the same brush as the initial divulger.

Well, now that's much clearer for everyone isn't it ? So get your cloak on, mate, fasten your dagger, we've got dirty work to do...but pssst, leave that chip at home.

When the lion roars : hiding under the covers

I have often been struck by the bullishness of some companies touting their IP to all and sundry, as if it were some divinity's gift to the world, and with the sole intention of creating a kneejerk reaction in a subset of the population, be it CEOs, VCs, or even just the generally uninformed and irrational public. Of course, it is easy for the lawyers to look down from their lofty perch and tell everyone not to worry (or precisely the opposite, depending on the circumstances), but somehow this doesn't always have the desired effect.

My thoughts on the matter are twofold : (1) that we, as a whole, are considered as untrustworthy as a politician and thus our opinion on the matter is to be taken with a very large pinch of salt, and (2) that we are not very good at showing our true convictions with regard to the situation in hand, and thus fail to convince our clients that they are really getting counselled. The latter is of course akin to us hiding under the covers when the lion roars, so to speak, yet we do so constantly, keeping our fallout umbrella handily up our pleading gown sleeves in case the euphemistically termed dung is spread all about and we get, dare I say it, splattered.

Of course, we all like to be right, but inevitably in an IP dispute, someone will be wrong to a certain extent, either implicitly or directly, and ultimately, in a sane world, we would have the courage of our convictions, and roar back, or at least miaow convincingly.

Now, where did I put my disclaimers ? :-p

Blogalicious

"Long time, no write", sayeth he who has had plenty to think about in recent months, but rarely allowed himself the time to write about it. Needless to say, this blog, like many others for whom the net is not one's sole source of solace (ooh, nice alliteration), has fallen by the wayside.

I shall be attempting in the near future to proliferate my pontifications, in my own inimitable fashion (such a bighead, I know), now that I have a suitably "mobile-aware" piece of apparatus.

So stick around, if you care, for the next instalment.

Stairway to Heaven aka "VAP"

Today's title isn't some form of subtle advertisement for a 70's rockband song or some hallucinogenic reverie (although...), but a reference to the recently released communiqué by the French PTO (http://www.cncpi.fr/act1--examen-EQF-PI-invention-depot-brevet.htm), about the organisation of the upcoming session for "validation des acquis professionnels" and consequent registration as a person qualified to practice IP.

Nothing to do with vapour or ephemerism whatsoever, except that it remains to be seen whether the legislative text behind this organisation will still be applicable once we have all become Avocats (that word just seems to creep in everywhere, doesn't it ?).

Just a quick recap : the French IP profession consists of about 800 registered specialists in private practice. This number is considered by the government authorities to be largely insufficient (and I tend to agree). In an attempt to overcome the stagnation that has beset our profession over the past 25 years, the government has thus decided to organise, in line with national policies in other sectors in France on training and recognition of professional experience, a means of becoming a registered IP practitioner without having to sit those awful and extremely arbitrary qualifying examinations that all of us middle-agies had to go through. With the merger with the Bar looming, and the consequence of increasingly difficult and lengthy examination spans to be introduced, there has been pressure put on the PTO to organise a professional experience recognition or VAP-session to swell the ranks of current practising membership as much as possible. On a side note, the PTO has also just announced the organisation of the qualifying examinations sessions as well, for those who are of a masochistic inclination.

I'm not going to translate the communiqué for would-be readers, because if you want to have any hope of being accepted, you need to have at least some inkling of French, so it'll be a good test for you. Suffice it to say that this session is open to all and sundry having worked in IP for at least 8 years, and meeting the other formal requirements (higher education degree in law or a science based subject), plus an equivalent diploma or education to that dispensed by the CEIPI in Strasbourg for IP studies.


The deadline for applying is September 8th, 2008 (midnight at the latest), as witnessed by the date postmark on your registered letter of application (with acknowledgement of receipt).

The oral interviews are to be held on October 20th, 2008. These interviews serve to ascertain the truth of the declarations relating to the acquired professional experience, and the depth of knowledge of the candidate with regard to our code of professional ethics. The jury will also have the possibility to question the candidates on their professional experience. Hmm, I wonder who's going to be chosen to do jury service, will it be a voluntary thing, or will we all have to take it in turns to do our bit for the promotion of our dying breed ? Lie back and think of France I can imagine the scene now : me thinking, mmm, yes, that gorgeous deep ruby red Cahors would go down really well just now - "I'm sorry, Mademoiselle, what was that you were saying about your patent drafting experience..." as my numbed brain is brought back to reality - now what was I saying about Stairways to Heaven and hallucinogenic experiences...

Too many cooks...

In the continuing saga of "Who wants to be an Avocat ?" (shouldn't that be a "millionaire" ? - I'll take both, thanks), a flurry of activity has recently occurred, none of which I've found particularly surprising, but hey, that's the cynic in me once again.

I was informed yesterday, by the Anti-Merger brigade, followed closely but belatedly (1-0 to the antis, sorry chaps) by the CNCPI bureau, that someone, somewhere, in government circles attempted to hang an amendment relating to the merger, to the end of a completely unrelated piece of legislative text relating to community harmonisation of French company law going through the Senate - these kind of tactics are fairly representative of the legislative process in France - in which, "the Government would have been authorised to issue, by means of ordinance, the necessary arrangements for the merger of the professions of Avocat and CPI..."

Shock horror !!! Errmm, no, not really, just the usual parliamentary jostling, abuse of influence, and other rather shady and undemocratic tactics that we see every day. Hmm, and the French poke fun at Italy and its successive governments - people in glass houses once again...

Needless to say, had this amendment been voted, then the government's plan was to have everything settled within 9 months or so, with or without the cooperation of the interested parties. These underhand tactics however, were apparently not to the liking of the French Economics Minister, Mme Lagarde, and a few other senators, who managed to have the amendment withdrawn before debate on the legislation commenced.

It remains to be seen who or what was responsible for proposing this amendment (if we ever find out at all, transparency of the workings of parliament not being particularly well defined).

The CNCPI Bureau offered a rather dull, and watered down "letter of information", including the text of the proposed amendment, if only to serve as counter propaganda against the Antis, in an attempt (rather feeble, IMHO) to show that it was mindful of our (the CPIs) desiderata whilst at the same time congratulating the government on having taken such an initiative.

Politics, politics. Who'd have thought that a simple thing like dealing with 790 professionals would cause so much political intrigue...

All of this does go to show that, ultimately, the fate of our profession is in the hands of those who have sufficient influence in higher political circles to add such amendments, or have them added to pending legislation by person's sympathetic to the requestee's cause. However, now that there are clearly other cooks involved in making the broth than just the two main chefs, the soup might just get burnt.

Speaking of which, time for lunch...

The Aftermath

Bar Association Merger (aka Takeover, Take-away, Take me to the Cleaners - and other silly innuendos and puns)

Round 1, May 13th 2008

In favour : 260
Against : 236
Abstentions : 4


A rather hollow victory for the Bureau of the CNCPI then, it seems. Amid clamours of voting irregularities - why did the voting start although the presentations and discussions hadn't yet finished ? - and people being refused the right to vote despite having registered on time (an appeal anyone ?), it doesn't look like the Bureau can strut victoriously around the battlefield, as it has had a tendency to do so previously, making unsupported statements (hmm, they must have been reading my blog :-p ). Indeed, the battle has only just begun, and the crowd aren't really behind them.

The results of the vote clearly show however that there is now a nearly 50/50 split in our profession, and whatever happens next, that split will not easily be mended. For the comments, I direct you once again to the "sort of official but not really" CNCPI blog at http://www.cncpi.fr/blog, and of course to Mr. Breesé's own appraisal of the situation (http://www.breese.blogs.com)



So, now that the hurly burly is done, and we've met on the heath to pick through the dead and wounded, what next ?

The Bureau will now have to go before the French Bar Association, brandishing an AK47 full of blanks knowing full well that the welcoming committee on the other end is a squadron full of ninjas armed with the ultimate weapon - legislative lobbying power. Oh yes, the Avocats have that alright, just look at the French President, he's an avocat (hmm, best not move onto sticky political wickets), and there are many more in the realms of power. The simple truth of it is that us poor CNCPIs don't have that kind of firepower, and it doesn't really look like our Minister of Commerce is ready to get involved in the fray in our favour. One might even say that the silence of the INPI and its corresponding ministry is noticeably deafening, and certainly does not bode well for the future.

I have gleaned a little enlightenment from the bloodbath however (it must have been the Celtic berserker frenzy that led me to a higher astral plane). It is now seems clear that whatever the solution adopted, once the transitional period for getting as many people in as possible is over (this looks to be like anything between 5 and 8 years after entry into force for those not already qualified, and 10 years for the IP boutiques and IP Counsel already in business), there will be no possibility for anyone else not registered as a Avocat or "Avocat Conseil en Propriété Intellectuelle" to practise IP law in France. European Patent and Trademark Attorneys, ie. the rest of the European patent and trademark attorney community, will remain simple filing and prosecution agents, but will not be authorised to practise law on French soil. Well, if such a situation is ever enacted into law, we shall have to see what short shrift (if any) the ECJ will make of it, because someone is bound to appeal against such a flagrant restraint on the right to practise in the EU. It should be an interesting challenge, in light of the fact that there is to my knowledge as yet no European-wide harmonisation on who is entitled to practise law, or to which degree a given category of professionals might be entitled to do so.

Well, I suppose all that remains to be said is "Good luck" to the Bureau, rather them than me, I'm much happier waiting my turn to be thrown to the lions, but like any good sacrifice, I'll go down fighting for the benefit of the crowd !!! (prod me once more with that trident and I'll kill you with my bare hands, oh sorry, its a taser, bzzzzrrttt)

Sincerest salutations (you gotta love French letter writing formalisms), and see you all soon.

The Red Button and CPI Meltdown

NOT THE RED BUTTON !!!

Yes, indeed. Houston, we have a problem. We have gone nuclear. When I talked about "things hotting up" in my last post on the topic of the merger of IP attorneys and the French Bar, I was expressing what I suppose one would in hindsight call "typical British understatement". The proposal to vote on a merger in somewhat "fuzzy" conditions was the metaphorical Red Button that the Bureau of the CNCPI pressed, and in true Gallic style aimed at its own foot, a hotbed of bubbling, unstable, fissile mass.

In the space of 2 weeks, the exchanges on the CNCPI blog (http://www.cncpi.fr/blog), and those of Mr. Pierre Breesé (http://www.breese.blogs.com) have attained more than a critical mass, and what appears to be irreparable meltdown is now in progress. People have been stabbing each other anonymously, and rather cowardly in my own humble opinion, in the back, with some unpleasant personal attacks, and most of all, there has been a huge cloud of FUD (fear, uncertainty and doubt) that has been disseminated amongst the ranks. We are now all suffering from a form of poisoning by all accounts similar to a tab of LSD, where those of the Bureau see Diamonds in the Sky, and the opponents the grimmest spectres of a Hollywood horror film.

There are those, however, who have managed to float above carnage and have taken a loftier, more critical view (they must have a good supplier, a jet pack or a NBC suit). I cite Mr. Breesé, as one, who like myself, was initially in favour of the merger, but upon having seen what the French Bar wanted to impose on us "engineers" (how common we must seem) and future generations, and in light of the vague assertions of our beloved bureau and CNCPI President, has reappraised his position for one of : "Now just wait a minute, just who is driving this train, and why are we headed for that rickety old bridge ?"

Who indeed ? A group of people committed to the merger, of that there is no doubt. A merger at all costs, despite reassurances to the contrary. A merger from which there will be no going back, no sirree. One in which our European counterparts are smugly laughing behind our backs as they watch us tear ourselves apart, driven to madness. As in all wars, the crows will inevitably have carrion to feed on.

One thing is certain, and that is that nothing is at all certain, at least in terms of how the divergent positions between the French Bar and the resolutory conditions laid down by the CNCPI Bureau are to be reconciled. In the end, 790 CPIs against nearly 50,000 barristers is but a drop in the ocean, not even a worm to a hungry thrush. Either the barristers will get their own way, or the government will weigh in. Unfortunately, the government is not in the Bar Association's good books at the moment, having done the dirty on them with the recent reform of the court system and closure of many provincial courts, so the Bar Association has a couple of Aces up its sleeve which it is sure to lay down before the day is done, and the government, in a soothing gesture, will no doubt bend like a willow in the wind, rather than face the ire once again.

Where will this leave us, ex-CPIs and soon-to-be Avocats ? If one is to believe the arguments put forward by the CNCPI Bureau, we will be more visible and more competitive in Europe. Hmmm. I have still yet to see how that will be so, nor even any evidence in the form of a published economic study.

Will our prices go up ? Probably. Go Europe. French industry, renowned for its unwillingness to invest in the "immaterial", will be sorely inclined to leave us for cheaper pastures outside of France, or boost or create their own internal IP departments where they will be able to manage costs.

How will we become all of a sudden more competitive in the European market ? Certainly not with the trickle of scientists gullible or suicidal enough to want to spend at least 8 to 10 years further study attempting to qualify.

Oh yes, how stupid of me, OUR NEW TITLE "Avocat specialisé en Propriété Intellectuelle". Must be worth a couple of bob, at least.

How about the increased litigation I will be able to conduct and plead in court ? As one member of the profession has pointed out, there is a fundamental ethical and professional liability problem in procuring patent rights and then having to defend them yourself in an invalidity suit.

Of the same ilk, the question pertaining to saisie-contrefaçon : are barristers representing the client's interest entitled to carry out the seizure knowing what it is they are looking for because they drafted the patent, without infringing the fundamental rights to fair process of the alleged infringer ? Under existing French case law, a CPI does not infringe the Human Rights of the alleged infringer, even if he is the usual representative for the plaintiff because he is considered an "independent expert". However, if he is the usual barrister, that situation may well change.

Perhaps we will end up with a situation similar to the US where a law firm will have litigation counsel and prosecution counsel, but we've got that in the current system with IP attorney and barrister, so why merge ?

The much awaited vote on the resolutions put to us takes place on May 13th. Will the result be a black hole or the birth of a new star ?

Oh no !! I can feel my skin is starting to peel and my hair fall out in tufts, must be the effect of the fallout, or the gravitational pull !! Or, perhaps, just perhaps, I'm getting old ;-)