It's my pleasure to introduce Natalia Lukasiewicz who is talking about the maker movement and I think this is a pretty Interesting topic because when you're a maker you start to experience problems that are usually not really yours to think about for example, you usually don't really think about marketing your stuff or whatever and You might think about copyrights and This is something where we will hear many details about from Natalia who has done her PhD thesis on this So a great applause for Natalia Good evening everyone. It's a great honor for me to be here. I'm a PhD student and I will present you My my PhD research I conducted on pattern flexibilities in my research I did comparative analysis and I tried to analyze Analyze the pattern flexibilities from the point of view of freedom to operate they provide and I transferred my results on the maker movement and today I would like to Give you some guidelines on the allowed use on patterns so that you can be free in your making activities And my talk will consist of two parts first I would like to give you an overview of patterns what patterns are How patterns are built? I would like to also Explain you the rights conferred with patents and I couldn't resist and decided also to highlight questions That are currently Debated on the part on the pattern system then the second the biggest part of my talk is on pattern flexibilities I will explain what pattern flexibilities are I will present you catalog and then I will focus on chosen of flexibilities that Can help you in in making and will support your activities So first patterns A patent a patent right is an exclusive right upon the use on of a technical solution granted to inventor Patents must meet three requirements. Well, these requirements differs depends on your addiction here the main one So patents are must be novel non-obvious and industrially applicable There are disclosed the solutions are disclosed in the patent application that it's published after 18 months from the date of filing patent and Granted by a patent office and that's the main difference between the copyright because copyright is granted Automatically, whereas here you have to apply and you have to pay for patent just to give you an example here in Germany The first minimum cost of a patent is around 5,000 euro this including patent attorney and of course if you apply in more countries the cost Gets higher because you have to hire more patent attorneys. You have more administrative fees to pay etc Patents are granted for 20 years 20 years calculated from the date of patent application This how a patent looks like patent claims are the core part of the patent where you determine the features of the protected of the protected technical solution Patent claims are supported by description and drawings in description. You present the problem the solution the prior art and the examples Patent applications must comply with the requirement of sufficient disclosure as said patent claims are supported by description and drawings. They cannot be broader because then they are not supported Sufficient disclosure is called also enablement and with this disclosure a person skilled in the art should understand the technical teaching and should carry out the solution that that is protected a modern patent system are around 200 years old the first US Patent Act was enacted in 1790 then was followed by France of course the first patent acts what were the afterwards modified and adjusts to To to the conditions and the needs technological needs Patents have various justifications and various theories Here I presented only three. I found the most important first Rewards theory patents are reward for undertaken efforts and investment this rewards theory underlines other Theories and I find it the most important the reward is the market monopoly for 20 years and Then the exclusivity on the market to use to license and to enforce the right then Another theory incentive to disclose as mentioned already The sufficient disclosure. It's the important requirement for every patent Application then the underlying concept for this theory is the belief that trade secrecy impoverishes the the society and the public and the inventor And So so to say sign a contract the inventor reveals disclose the technical teaching and is granted the patent protection And this disclosure helps the society to grow to progress and to develop The third one I would like to highlight here is incentive to invest very often patents attract the investment the Perspective of patent protection is interesting for investor to simply pump into in money in a given project What gives you a patent? Well, it said it's an exclusive right and it gives you the right to prohibit others from using making selling offering to sell or Importing the technical teaching that is protected Legally, it's called Exclusive right, but this exclusivity is translated as market monopoly Because it gives you this monopoly on the market that you are as an inventor as the patent holder you have the full exclusivity to monetize the patent and here We call copyright copyright law patent law intellectual property and this intellectual property has strong Economic implications. That's why I opt for slight modification of this terminology Maybe it sounds somehow irrelevant, but when we hear property, we know that we should protect the property It's like holy cow. We cannot touch it. And that's why I think we should call patent patent law copyright trademark law as intellectual assets because this term actually clearly Pronounced the purpose of the system now patents are tradable goods as I will show you in next slides Yeah questions So there are various questions about the current state of the patent system first patentable subject matters The scope of patentable subject matter is growing Initially patents were granted for tangible goods. So devices elements some components But nowadays more patents are granted on the intangible the there is great issue with software patents That quality is often challenge There are also biotechnological patents and still controversial whether we can You know whether we can protect something that exists in the nature Currently only in vitro processes Are protected so nothing that is done on human body in vivo can be protected then patent quality and Here a small picture So when you attend lectures on patent law you learn that there is a state of the art. So everything that is known Above them above this level. There is a field of obvious solution based on the state of the art and Above this obvious level. There is non obvious Level of technical solutions because patents are granted for should be granted for Outstanding solutions. That's the theory in my view and I'm not alone The practice shows something different and this is pretty scary Because the level of the patent threshold is currently pretty low Maybe some of you follow the the website of the electronic frontier foundation they have very funny stuff and namely they post every month a stupid patent of the month and I Think it was November October. It was a patent on filming yoga class and When I talk with practitioners they find Such examples as anecdotes and I don't think this is the case because as mentioned there are software patents and The level of invalidity in this group is extremely high So we have a system with poor quality patents It's estimated that around 50% of patents can be invalidated and it's pretty scary because I Cannot think of any other industry sector with this level of failure in production of efficiency But the patent system is doing very well And I said 50% in general and around 70% if not more of software patents bad patents Land by patent trolls Currently we don't talk about patent trolls and there is a nice term for this and namely troll-like behavior So these are companies that aggregates Patents for the sole purpose of their enforcement via demand letters Mmm, of course companies sell bad patents to patent trolls simply to monetize them If they cannot license on normal basis another plug in The field of patent litigation because of course there are certain patent Litigation with patent trolls that are patent worse the most famous Apple versus Samsung and others Google versus yahoo As said patents became tradable assets And that's why I would like to repeat it. I propose the term of intellectual assets That's to just to give you an example Google bought an IP portfolio from Motorola around 70,000 patents for 12.5 billion US dollars and Somehow like surprising that Google buys Motorola patents Why because Google won't want it simply to increase its IP portfolio to be stronger And like harder to to be attacked by competitors So this is the background and against this background I analyze patent flexibilities What are patent flexibilities? Patent flexibilities are tools Legal tools that limits the scope of patent exclusivity The main purpose well that couple to safeguard the balance of interest the interest of the patent holder and the interest of The society of other of third parties of users then they facilitate workings on patented solutions I will name a couple of examples and they are all they are can be used as a defense in patent infringement cases Patent flexibilities are known rather as patent exceptions the term exceptions Is associated with something rare and So it means that they limit the scope, but the very narrow and rare extent The underlying provision for all patent exceptions is the article 30 of the trips agreement Agreement on trade related aspect of intellectual property rights from 94 that sets the minimum standard protection standards Globally and it says that an exception must be limited Cannot unreasonably Conflict with the normal Exploitation of patent and cannot reason and reasonably prejudice the interest of the patent holder Taking into account the interest of the third parties. It's pretty complicated and this article was formulated in abstract way and It sets But it stipulates so-called three-step tests So every patent exceptions every legal tool must comply with all three requirements and If it fails if a certain legal Solution fails to comply with the first already the first step, which is limited exception So it's something even narrower than an exception It's out of the game. The exception cannot be introduced into the legal system in my research. I focused on on Flexibilities exceptions that either allows you to freely work on patented solution Or can be used as a defense in case of patent infringement the main problem with making is it's It is its public character because as long as you make in garage or in a basement everything is okay because nobody knows about your solution about your ideas, but with the moment when you start to share and you post your ideas in the internet or share with friends and At some point some of you might be might become very successful in your making then you might get into troubles with patent law There are various types of patent exceptions patent flexibilities But the abundance of tools is rather misleading Because the scope of application is very narrow in my research I focused on for the more in my opinion the most important patent system Which is Germany the United Kingdom the United United States of America and Japan Here in my talk, I decided to extract as far as possible Communalities between those system and there were necessary. I will give you I will get more into details into differences So that you can understand and be more aware of the slight nuances between the systems So the catalogue I said it looks pretty fine because there are various tools but my analysis led to the conclusion that there are only a few that would apply into making scenario and Here I would like to also underline that none of these tools will support making 100% it's rather that you have to just making to these exceptions To to feel safe and free in your making activities So the first one private and non-commercial use This is a statutory limitations in the United Kingdom and Germany. I Haven't found much about private and non-commercial use in the United States Only in terms of repair and I will talk about repaired a doctrine in a couple of minutes And what with regard to Japan? I also found only a short comment that the system accepts although there is no statutory limitation with that With regard to this type of flexibility So what is about what is about private non-commercial use these two features cannot be separated So we cannot work privately and earn money and then work publicly and do not earn money and invoke on this flexibility Private use is understand as use at home within individual sport activities or for personal use But as I found it applies to the to this US system Personal use can be also challenged and found as an infringement of patent law and then non-commercial use It's pretty clear. You cannot earn money. You cannot conduct any business activities If you want to apply invoke on this flexibility So here I decided to focus to tell you what it's not allowed. So of course you cannot produce and you cannot sell I found an example The use of patented lamp in a waiting room in a doctor office You if you use a patented device At work even if you for instance if you are a freelancer and you have in your office some certain devices You cannot invoke on private and non-commercial use because you apply this device for commercial proposals Of course resell of purchase device Then if you make an item here give an example of a software for private proposals and then you use This software for public programs Private and non-commercial use does not apply and the last example this was Yeah, pretty tricky because this is case from 1887 where Defendant built a well on the farm and use it personally for personal proposals and this use was found as an infringement of Patent rights in the United States The experimental use I think this might be the most useful type of pattern flexibility flexibilities you can find it in all systems and I said is the most important pattern of flexibilities because it serves the Technical progress the further development the further improvement of technicals patented solutions But the most important part in this pattern flexibility it applies only to experiment you conduct on The patented subject matter. So if you use a given patented device to test something else The this use will be not regarded as experimental use There are Certain differences between jurisdiction So the main prerequisite for this pattern of flexibilities is adding new knowledge So this pre-requisite must be met then commercial use You know certain experiments may lead to commercial product For instance, you improve some chemical substance German system is pretty generous and in accept this This further applications of results, but not other system and so in the United Kingdom the The experimental use must dominate over the commercial proposals You might monetize the results But still you have to prove that the main focus was on experimental proposals both German and UK system may do not provide any quantitative Limitations in the provisions. However, the scope matters So you cannot claim that it was experimental use if you tested Great amount of patented solution in various in various places It all has to be in experimental amount To be considered as experimental use The United States have very very narrow application scope for this flexibility It applies only when conducts are for amusement, idle curiosity or strict philosophical inquiry additionally The doctrine the courts introduce the term of legal interests Legitimate pardon legitimate interest that pertains to business objectives In your experimental Research and to give you an example Very controversial case. Dr. John Mayday versus Duke University Dr. Mayday He left the university and he left his laser devices patented laser devices that the Duke University used further with with students to conduct experiments and He accused the the university of the infringement of his patents that were embedded in this particular laser device and the court found Well base its argumentation of the legitimate interest here legitimate interest of the of the university was the education and Yes, pretty well contraversion is shocking for for many because it's obvious that the university Educate people but to educate people university gets money from the students so that they can use Labs and devices and that was found as a business objective of Duke University in terms of the use of this particular device With regard to Japan based on resources I had Of course adding new new knowledge. It's the main requirement The the system the Legislator allows of experiments to obtain regulatory approval. This applies mainly for pharmaceutical companies that start testing Certain drugs before the expiration of patent terms for primary Drugs to to introduce generics on the market. So this is covered by experimental use in Japan Summing it up you can invoke on Experimental use if you're making Serves the following proposes you find new applications You try to understand the technical teaching you assert sufficiency Applicability discover something unknown you test hypotheses you test you want to determine the working of certain patented solution in various conditions and last but not least remember about the scopes of the samples you cannot be oversized and What is not allowed? You cannot conduct experimental experiments to for to find Market information to measure whether certain solution fits with your business profile Or to assert a third party that the product works There are also situations where you may Work on a certain solution and later you will find that the solution was patented and you were the first So then we talk about the prior use So it's about using a certain patented solution before its priority before the patent application was filed prior use does not Constitutes the prior art so you cannot claim prior use to invalidate a patent And of course you start thinking about prior use when you when you have the situation of patent infringement Mmm Okay, so what do you need to apply to invoke on prior use first of all? you have to use the patented solution and you it cannot be stolen patented idea and The prior use served the protection of business activities So if you claim the prior use you must show that there was certain commercial activities undertaken or serious preparations for further commercial applications and there is no remuneration at least This is general rule. There's no remuneration for the patent holder and Prior use that the right you get is not a license But to prove the prior use you must have flawless evidence It's very it's very hard otherwise if you if the court see that there is something lacking Then you you are on the border of patent infringement and if it's the other side one may think that the other party simply stole the the idea and risk the patent in validity and The prior use continues after the grant of a patent so you can freely and safely develop Your business model with regard to the certain patented solution Then repair doctrine this is very tricky stuff because It's very simple and I think everyone understand intuitively what it's about that you replace a broken part To to work to to make a certain device usable again I said tricky because it's simple when it comes to definition. It's very complicated when it comes to the application The repair doctrine Bases on the notion depending on the jurisdiction of the on the of on the exhaustion principle or implied license of first to sale doctrine All of them concern Unconditional sales so there are no contractual limitations upon the use of a patented device Think about simply buying some electrical device you take it and you are allowed as a user to repair it The underlying concept for this is the compensation you pay once to the patentee and the patentee cannot demand double payment after He got already he was paid for this device The repair doctrine Is Often confused with reconstruction the Concept there are very blurred and clear borders between what's repair and what is reconstruction So you can prolong the life of patented device by replacing the broken element, but you cannot make device and you the question is what is when and The case law in all Study jurisdiction is very rich and abundant But it's really difficult to to extract a clear guidelines upon what is exactly allowed and when After all you have to get into the patent claims Analyze understand the technical teaching what was changed and whether this this change replacement is repair or reconstruction a reference points This is the identity and Essentiality of the element so how essential how the element contributes to the technical teaching very often inventors Explain or intend even for certain pun certain parts to be replaced then then it's okay Yeah, so I tried to To present you certain rules that might be useful for you when you make on things So if the replacement was intended by the patentee You can feel safe and you can replace an element If an element is of a short lifespan for instance a syringe in a syringe system Obviously, you cannot buy a new a new device if just you need to replace a syringe Then if you're working making that does not change the identity of device then it the you're making may be considered as a repair in the United States there is an idea of Solution this idea of akin to repair so replacement akin to repair where you can really Change something in the device, but this applies only to Unpatented elements so again you have to read the claims patent claims and understand whether this certain element is outside or within the scope of patent claims and if patented solution is Combination you may replace an Individual elements because they are not covered by the patent, but the the combination What is not allowed So if you're working your changes go beyond the necessary scope to restore normal utility of device If you replace an essential part of an essential part in terms of in the light of patent claims and technical teaching and If you remake or make new a patented device, then you cannot invoke on the repair doctrine and Challenges I said very it's very hard to Extract guidelines to say okay in this situation The this is allowed or not There are various approaches legal approaches Sometimes court one court applies one legal doctrine and reaches certain solution then The court of appeal applies different doctrine and then you have completed different solution That's really tricky Then you have to always identify patterns in a given Patented device and nowadays is pretty complicated because I cannot think of any device that would consist of a single patent there are at least ten and you have to get into Patent claims understand who's patented what you want to change There is a lot of responsibility on your side after all functionately then There are also situations when your solution might be of might be claimed as equivalent to the patented one and What is an equivalent an equivalent is? an element that solves the patented probe well the problem in the patent in an equal but not Identical way and then we have the situation of equivalent of non-literal infringement Every every patent has a certain protection scope So the core is the patent claim are patent claims as I told you where you determine really the features of patented solution Then you can expand it a bit by reading Descriptions and drawings to understand whether there are other solutions that fit into this patented solution And all of this is estimated at the time of patent applications but technology Progress is going forward and there are some solutions that was cannot be anticipated by the pattern by the pattern holder and Equivalence are determined at the time of infringement To give you an example. There was a case in the United Kingdom called Aghman Amgen sorry where patented solution Concert Retro-poietine the isolation of this gene and the the patented Well the patent concert isolating the gene and activating it Externally and then introducing into the host cell then the defendant Found a new way of gene activating and was it did it internally so in in the in the cell and Well, I'm not a technical expert, but I found these two methods somehow completely different and It was so that at the time of patent application this internal Gene activation Activation method was not known but the time of patent infringement the court actually started considering whether these two methods can be found as equivalents and If patent claims were not really focused only on this external gene activation Formula and if patent claims were formulated more up in more abstract way then most probably this the second the second way of gene activation could fall into the scope of patent patent claims and patent protection and I would like to present you Way you can defend yourself that your solution is not equivalent and in Germany and In Germany and there is a form Stein doctrine This based on the case from 80s and The patented solution Concerned carp stone built on the side of the road and the technical solution referred to the watering lines in the stones built on the on the on the road and In the infringing solution Concerned also Stones built on the the side of the road, but with the gaps between those stones and The court found That the element was equivalent because actually it had the same function, but it was not identical Moreover This is very important if you apply if you want to invoke on this Protection of form Stein doctrine the court found that this solution was not patented in the light of the prior art and So when I go back to To this slide so this solution was outside the protection scope of The patent the infringe patent on curb stone all All defenses in equivalent all defenses That concern equivalency are very challenging Because you have to determine the scope of equivalence and then find whether your your solution your mate solution falls within the scope of protection In the United States, there is reverse doctrine of equivalence But first I would start from the doctrine of equivalence it says that an equivalent must have the same function must have must carry out the patented Technical teaching in the same way and must obtain the same results and When it comes to doctrine of equivalence equivalence Well, the prior pioneer inventions have much greater equivalence equivalency scope than improvements and Reverse doctrine of equivalence says that There is a literal infringement because the equivalent has the same function and in the case where this doctrine was Formulated for the first time the patented solution concerned airbrakes Airbrake system and the infringing one fluid pressure system So of course all both system had the same function and the same effect, but the second one the infringing one Conducted it carried out in substantially different way. It's very challenging to prove and I cannot recall any case where Reverse doctrine of equivalence was successful But if you try then you have to Determine it's much easier to determine first the scope of equivalence to to see what is non-equivalent and You must read the patent claims outside their literal meaning in Japan, I call it Japanese mix because It's a mixture of the US doctrine of equivalence plus the Formstein doctrine from Germany and in case there is an infringement concerning Japanese patents you must you may seek the protection Which is in the fourth Requirement of the doctrine of equivalence and you may try to prove that your solution Is not a patented one is in the light of the prior art You have to in other ways prove the obviousness of this of this element In the United Kingdom, there is the fence or called the Gillette It's from 1913 that was time of The patent infringement and the litigation and this concerned safety razor system improved safety razor system of Gillette and Then the defendant proved that this improvement was obvious and Anticipated in the light of the prior art so if you will try to Protect yourself based on this defense You have to prove that the solution was obvious from the prior art. It has very high standard of proof As said, I have to repeat again the scope of protection and equivalency must be first that a mind and It serves patent invalidation because when we are when well this doctrine of Gillette doctrine might have two-fold outcomes if Patent claims include the infringing element then and if you are successful in Claiming this defense then first of all, there is no infringement state and the patent is invalid and Then if patent claims are do not include the infringing element first of all, this is kind of happy and Because there is no infringement and the patent remains valid Summing it up I reached the conclusion that patent flexibilities have extremely narrow scope and They do not address making needs needs of makers in one hundred percent as Mention ready in my talk. It's the other round if you want to seek the Protection in the partner protection in a way that you want to to make freely then you have to adjust your making to patent law not the other way around and As long as you're making is low profile And the best scenario you stay in garage and basement and nobody knows about your ideas then you're absolutely safe, but with the moment when you Go go publicly and then become successful then you have to consider Yeah, the problems of patent infringements just to name a few recent examples from you know kickstart kickstarter This form lab that was That was sued by 3d systems and Then with regard to the patent system On the whole I see very strong closing Tendencies there's the mind the nominating mindset is that we want to have strong patent system a strong patent system Means more protection for patentees And there is ongoing Discussion debates on improving patent quality in my opinion higher patent quality would solve a lot of problems That we have currently because we had we would have simply more free space between the state of the art and the patent threshold but Currently I haven't seen any virtual step undertaken to solve the problem Only a lot of discussions, but hopefully and I hope I can participate in this reform It will take place. Thank you very much Thank you all for that round of applause And thank you for the whole speech So are there any questions? Then please line up at the microphones Mm-hmm Where's my audio angel, okay, let's start with a microphone one My question is regarding to international patterns, so who has the power of changing the process of developing law for these pattern a pattern making processes and The second part is How come it's still possible to patent ideas that you don't have any intent of realizing so Technological development is being locked in a way Well answering your first question who influence well big companies and powerful stakeholders You know that influence the the lawmaking on the international level and countries Is it is to which level our states being involved and and the national well for instance the trips agreement This is international agreement signed by countries So these are states and in case of the trips agreement the United States played the The most important role in shaping and setting the protection standards Mm-hmm, and yeah, could you repeat your second question as I had the intention that it's possible that corporations buy patents of ideas or Yeah, projects that they haven't really any intent of realizing for instance Hydro cars So development is being blocked in a way because oil companies buy those patents for instance. Yeah Well, why is that? Why is that legal? Well, why is that legal because the system gives them if you apply for a patent you have this pattern exclusivity and it's on your discretion what you do with patents and You kind of use patents to eliminate competitors and to block others and to Demand license if you want to you know develop certain patented solution But do they have to show that they really have an applicable solution that will work or are they just randomly? Patenting ideas that would Oh, I understand actually your your question pertains to patent quality because Well, the requirement for patents is industrial application But there are certain solution when you simply ask yourself how it's possible that there are patents granted, but did the patents are and it's about All patent prosecution examination processes. I haven't mentioned it here because it's pretty complicated and I would like to work in my further research on this issue because I think it's not it must be reformed Okay, thank you Okay For fairness we go around the microphones. So next microphone three Hi, if I invent something really awesome posters on my blog and if then a company tries to patent afterwards Is there's not possible anymore to do prior art then and if they try to pen it if I'm Save then because to prior use Well, if you post it then you of course, this is prior art The question is whether patent examiner examiners will find this prior art because there are cases where patents are Granted after a couple of years there is found prior art for instance in Norway at the university But of course then you have also Prior use prior is right Okay microphone for please now, okay, I've two questions Yeah, the well one question is if I if I Invent something or if I make something that the product of which would Inflate on a patent and I post this on the site like say thingy worse Could I be sued because I don't actually sell the product? Yes, it could be because it's public use Okay, even if you Well as I said that as long as you're low-profile you don't earn money You're safe, but patent holders can enforce They write simply to show that we are patent holders and if you public you some certain improvement of patented solution In the internet you have to consider this option. So I don't need to make the product You don't need to make Just publishing the planets enough to get me sued. Yeah, if if you base on patented solution Okay, yes, and the other question is how likely is it to get sued? Did you look for example at? Software open-source software No, I cannot answer the night. I didn't look at the probability There are certain studies Concerning patent rolls and their activities how many lawsuits? But these studies are questionable and I don't rely on them because they measure normally how many lawsuits are in courts By you know by patent rolls you can Well, I read the press and there are just articles on Startups being sued by patent rolls, but I cannot estimate the probability No, I think it would be interesting to look at the number of open-source projects that Yeah, I understand, but I cannot I don't have the data, but I know that there are a defensive Organization even Linux has some that they collect patents in case of patents you'd simply to defend Defend the self of against patent attacks Okay, thank you Now the signal angel has a question one, please and then I make the next round Okay. Hey, thank you very much for the talk. There was quite an attention also in the IRC everybody Listen quietly But they have a lot of questions too and also similar to the ones already posed But one is and maybe we also and didn't understand it correctly But you mentioned that one can only claim Experimental use if you have a business interest that right No, no, okay, then maybe somebody understood it. Oh, yeah, yeah Okay, because then it all wouldn't make sense anymore Yeah, well, yeah, you Of course you might have some certain commercial intention in of involved in Experimental use but always in case of troubles in this without regard you have to prove You have to stress the experimental character of your undertakings that you want to wanted to expound to add to a new knowledge Find new applications, etc So as a private person like a maker I don't need business objectives to have a legitimate interest in experimental use No, no, no great It's referred only to the United to the doctrine in the United States because they introduced this legitimate interest To narrow down even the scope of experimental use but as long as it's for strict Philosophical inquiry, then it's fine. Okay, thanks Okay, we got eight minutes left of Q&A So please keep it first now as I see that there are already Four plus three questions Okay, I have a question regarding European patent and the quality of translations So I had a look at some of the translations into my language and the quality was horrible I think that it was very difficult to understand what was that patent about Yeah And do you think that the bad quality might be a way of defending yourself against patent claims What do you mean that I I mean that European patent office publishes European patents in I think four languages, which are translated by Person machines. Yes into other languages. It's a machine translation and the quality of it. It's very bad Yeah, so if I'm a private person and I don't I don't have to know for example English German French I don't know Spanish. I think so I might misunderstood the Claims of the patent and I might not find the patent and my Broke and so I might Infringed it. Yeah, so do you think that it would be possible to fight against the patent? With with the quality of the translation argument. Yeah, I think it's I haven't I have never thought about this But I think it would be a good option to say simply that It was not possible to understand the technical teaching due to poor quality. Yeah, absolutely certainly. Okay. Thank you Thank you. Thank you very much Okay microphone one, please Could you elaborate a bit more on the distinction between prior use and prior arts the same example as the first question if I build Something documented publicly put it on github. Whatever has a timestamp on it And it will not be found while some company applies for a patent But I it's still there. It's in existence. It's documented publicly. Yes, what happens at that point if the company Has the patent granted in the first place. What happens afterwards with it with the prior use you mean or Yeah, because the prior art is everything that was published before the patent application Just to to make clear for everyone. So everything published patents articles leaflets posts etc and The legal doctrine says that the prior use does not build does not equal the prior art So you cannot invalidate a patent based on the prior you're saying that I I did it I invented because the idea is that prior use Protects trade secrecy. That's different thing. So I said to Before that if it's posted then you have the priors because you invented first And if you post it, of course, this creates already prior art But when you protect when you keep your business model Secret and there is patent application later than this the secrecy does not Work against the novelty of the later patent So the best way to defend our freedom to make things is to make them and document them publicly. Yes I think creating prior prior art. Yes. Thank you Okay Microphone 3 please I I think you've almost just answered my question but I'll I wanted to make a parallel between the issue of bioparacy and The maker scene because I feel it's very close in terms of how it functions that once once a company has Patented a traditional use of the of the knowledge of plants. It becomes very difficult even with the proof of prior use to invalidate the pattern the patent and a lot of people recommend that to disclose the The information as much as possible so that the the patenting office employee could Find that content. Yes, is that so? Yeah, I feel like it's the same thing that should happen with the maker scene And then I would like to also ask maybe in complement How much do you feel the creative commons license can can help in that process? And I've been asked about Creative commons license open source license many times I don't think it works for patents because of the mechanism behind patents I would like to elaborate it also in my further research Well my research in my research. I propose a solution that would work for makers It's not as the tutorial limitation because I would fail the first step of Article 30 of the troops agreement, but this is a different solution There are certain open patents Licenses, but what I I've seen and analyze after all these open licenses Are created around patent pools? So you enter a patent pool with your patents and you give You you agree to Others to use your patents that's the idea and that's why I don't think that creative commons is can be Applied in patent law one hundred percent simply by copy paste All right, and I was just wondering also because the obviously the maker scene is very proactive in inventing Things and a lot of so they are actually creating a lot of prior art which is then just Been looked at by big companies that actually have the money to invest in a patent and Well, the person who was here before me was mentioning publishing on the web log, which I don't think it's Nestle works because it's extremely easy to predate a post on on the blog I was always taught that the best way to to date something is basically to just like Put a description of the project in an envelope and to post it to oneself and not open the envelope But do you think do you feel this is a good option? well, I Haven't thought about it actually when you were asking a question I thought about applying for patents simply to create prior art and To stop, you know the patent prosecution after a certain time. It's also a common Strategy, yeah, but of course you need money to do so. Yes. Yeah, that's that's the point Yeah, whereas for the solution which I was always incentivized to do you only need to pay for a stamp basically and the The stamp of the post shows when this thing was made if you haven't as long as you haven't opened the envelope It is a proof of date. Yes. Mm-hmm. Yeah, I think it should work. Thank you. Thank you Okay Sorry it for the signal Angel is next and please keep it short Sure So also going to this do you have other recommendations how to best publish something besides publishing a patent Well as here said blocks or Scientific article, you know, they are also websites when you not blocks when you publish articles on certain technical technical solution I think this this could be this should be really good option Okay, patent applications are set too expensive, of course if you can invest you can do it But I think creating prior art by publishing Information in the internet that should work and articles. I think scientific articles should be should be Okay Yeah we Concerning the patent documents themselves As far as I know, they are a public domain basically so I can copy them and I can process them in some ways so I could for example do text recognition on them and Vectorize images, but then it gets very blurry how I what is usage of the patent in the sense of using it and what is simply transforming the document and building upon the document without Using the pop the patent in the way of an invention or something Could you elaborate in that? I mean like understanding technical teaching based on the patent That's that's the that's your question. I'm sorry just using it for For example to Make it easier to Like make new prior art or something just out of the patents How what can I do with the patent document without getting problems for a patent infringement? what you can do well You but you are a patent holder or you you you know, I'm you you read Well, you I said you can try You can work at home. You can try to to to work the patented solution I mean in the public. I mean in public when I scan I could Republish a copy of yeah, but there's not it's not a pattern infringement if you simply republish public document but How far can I go when I like? Yeah, for example character recognition should work that I Put this into text or when I scan it and I vectorize it But then when I make a 3d model, it's probably not That easy anymore for example Based on the patent. Yeah. Yeah, well, I think with 3d models if you rebuild patented solution Then you might have troubles, but simply posting and you know the patented all the patent you don't infringe I'm sorry, but I don't think I understand. I don't understand just a bit of a blurry line where the Implementation of the patent starts and then just processing on the patent document well I think then you have to get to understand the scope of protection because I think this that's the that's the question You want to know how much you can work around the patent? Yes, this is this your question if you want to begin talk about I'm sorry, okay Sorry, can you Continue that conservation conversation afterwards. We're already over time I allow for two more minutes that would mean sorry microphone to won't be Getting any speech time Microphone one was waiting too long. I can't give Kick him and one question afterwards from the signal angel you all Both got one minute go Okay, hello There is a very common question these days Is there any real positive value from the overall patent system to Individuals and let's say small companies besides the huge corporations For small companies and I would say that if you have a patent you can attract the investment If you have a startup and you have some patented solutions You may simply get new investments into it That's What about individuals with individuals but like with no commercial Well, you can read you can understand what's what's going on was protected You can see the borders what what what is actually still free not patented That's I'm I'm I'm very critical currently to the patent system and I don't see so much positives from this system Thank you. Thank you so much What's the difference between non-commercial use from experimental use? Well non-commercial use means that you don't gain any profits from the activities and Well, the experimental use if you have private and non-commercial use the experimental use goes a step further because it allows you public use you can post information and As presented on slides, there are jurisdiction where you can have commercial implications from the experimental use Well commercial implications into the United States are completely out of question Yeah, but well, there's There is no I would I wouldn't differentiate is a known experiment on commercial use and experimental use This is different scope. I would say that I said a private use and experimental use gets publicly It's public. Mm-hmm. Okay. Thank you. I have to conclude to this Q&A session right now if anybody's got any questions we have a pause after that talk so Meet our speaker down there


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