24 June 2011

Net Neutrality: On The Legislation Path In The Netherlands


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by Alias 0591 on Flickr

10124306246_75b9f93e2d_z

Those interested in telecommunications regulation and, particularly, in questions related to net neutrality have already heard it – the Netherlands has become the first country in Europe to introduce the concept of network neutrality into its national law.

Has it really?

Well, last week Kees Verhoeven from Democrats 66 (D66), Martijn van Dam from the Labour Party (PvdA), Sharon Gesthuizen from the Socialist party (SP) and Bruno Braakhuis from the GreenLeft (GroenLinks)

Lodged A Bill

to enshrine net neutrality with the House of Representatives of the Netherlands (the Second Chamber of the Dutch Parliament). Here is a link to the original document (in Dutch) and a fair translation of it in English.

According to Daphne van der Kroft from the Dutch civil rights platform Bits of Freedom

The Second Chamber (parliament) has accepted the bill with an impressively broad majority. Now the bill will go to the senate before entering into force. Because of the majority in parliament, we expect the Senate to pass it too. But we’ll have to wait ’till the end of the year to be sure.

That, to be precise, somehow invalidates the widely celebrated media headlines of the “Dutch enactment” of net neutrality, but – as Daphne writes – the chances, for it to happen, are good.
We are likely to have the final result in a year or so.

Now let us have a closer look at the bill!

Systematically, the applicants have chosen the section

End Users Interests

which is dealt with in Article 7 of the Telecommunications Act to introduce the net neutrality bill.

The bill basically provides that ISP may hinder or slow down end users’ traffic only in the very limited cases described in Article 7.4a (1) a. to d.

A further interesting provision is contained in Article 7.4a (2) – ISP must not shut off end users’ networks from the Internet, if such networks may be considered detrimental (e.g. botnets), unless ISP have given the operators of the affected networks the possibility to rectify the faults in those networks.

The most commented provision, however, is to be found in Article 7.4a (3) – the one that prevents ISP from charging prices that might bar end users from accessing specific services or applications on the Internet.
The applicants stress that this still allows for the charging of different prices for different types of bandwidth, but it nevertheless must not result in overpricing the use of, say, Skype so that no one would consider using it.

Article 7.4a (5) foresees the introduction of minimum requirements regarding the quality of service of public electronic communication services in order to safeguard the above provisions.

Finally and for the sake of completeness, Article 7.4a (4) reflects the recent trend in Dutch legislation to delegate the creation of detailed rules and regulations to administrative bodies.

Conclusion

In my view the beginning to a Europe wide legislation on net neutrality has been made.

Consumers from other member states will very likely create pressure upon their political leadership to follow the Dutch example.

How long could politicians refrain from adopting net neutrality legislation, if their voters start to sing

Somewhere over the rainbow

Way up high,

There’s a land that I heard of

Once in a lullaby.

What do you think?

13 June 2011

Apples Growing Clouds


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by Sean MacEntee on Flickr

5806315596_349d8ef626_z

Apple officially launched its much-hyped iCloud suite of services, applied for the registration of the trademark “iCloud” and entered the hostile territory of trade mark infringement: the Arizona based iCloud Communications LLC brought legal proceedings against Apple Inc before the Federal District Court for the District of Arizona.

Does it sound familiar? I personally felt reminded of Apple’s dispute with Fujitsu over the iPad trade mark. Indeed, the current situation is similar to the iPad case, but nevertheless distinctive in some important instances.

When I first read about the lawsuit I navigated to the US Patent and Trademark Office’ website and performed a search thereby processing the sign “iCloud”.
And you know what?
Apart from Apple’s numerous applications, there is only one US registered trade mark consisting of the iCloud sign and it is owned by the Swedish company Xcerion AB. The same is true also with respect to the Community Trade Mark  iCloud. Xcerion has registered both, the US and the Community Trade Mark for classes 9 and 42.

What follows is that iCloud Communications’ mark

Is Not A Registered One

Should they then qualify to claim infringement at all?

Yes, however not on the ground of registered trade mark infringement, but on unfair competition and false designation.
Indeed, iCloud Communications’ complaint relies on § 1125 (a) of the Lanham Act as well as on Arizona state law.
Precisely, iCloud Communications claims that Apple infringes upon the iCloud trade mark of iCloud Communications, because

By virtue of iCloud Communications’ long and extensive use of the iCloud Marks, its advertising and promotional campaigns and expenditure of substantial monies thereon, iCloud Communications had, prior to June 6, 2011, established significant goodwill and valuable rights in and ownership to the iCloud Marks in connection with computer telephony and electronic data transmission and storage services.

and

The goods and services with which Apple intends to use the “iCloud” mark are identical to or closely related to the goods and services that have been offered by iCloud Communications under the iCloud Marks since its formation in 2005.

Reads pretty logical, does it not?
Well,

Besides One Thing

Apple’s attempt to register and use the iCloud mark is not the first one: iCloud Communications themselves mention the previous trade mark registration of Xcerion

whose use of the mark post-dates that of iCloud Communications by two years.

So, is there any reason why iCloud Communications omitted to sue Xcerion?

Hmm, from what I read on the Internet, some wagging tongues allege that Xcerion’s Pockets

Were Not Deep Enough

Hence, observing the development of the iPhone and iPad disputes, this one is also likely to end up in a settlement agreement.

In that event Apple will have to pay a (negligible) amount of money to operate a nursery in the clouds.

From a legal point of view, however, the matter involves the (alleged) infringement of an unregistered trade mark by a registration application.
This is not really common place and thus of a greater interest for me.
I will therefore stay focused on it.

Did I miss something? It is now you turn to add -)!

Europe’s Annual Report On Bulgarian Telecommunications – An Example Of Finger-Wagging


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by World Economic Forum on Flickr

374711646_6f66bdc42d_zI know she is no longer the European Commission’s iron lady responsible for Information Society and I found it a pity when she took over the justice and fundamental rights resort.

Nevertheless, the Information Society‘s 2011 report on the Bulgarian telecommunications market bears her style and, when you read it, you can nearly perceive her wagging finger. So I chose to use her image as a story opener.

Going back to the report,  I could identify three important areas of Commission’s criticism.

Let me start with the

Mobile Termination Rates

While the mobile termination rate („MTR“) levels fell down to 6.65 €-cents per minute for peak traffic and 5.64 €-cents per minute for off-peak traffic in 2010, they still exceeded the EU peaktraffic average of 5.46 €-cents by 22%.

The practice of exempting calls originated outside the territory of Bulgaria from MTR regulation became a major issue of complaints to the European Commission since it led to higher termination charges for international incoming voice calls.
While the Bulgarian national regulator, the CRC, considered this market situation to be consistent with its notified market analysis, the European Commission urged the CRC to remedy the issue by uniformly enforcing regulated MTR levels to all types of calls irrespective of their origin.

Number Portability

The CRC announced the introduction of a one-stop shop procedure for all types of number portability as of 6 August 2010, which also made operational non-geographic number portability.

In effect, customers can submit a single application only to the receiving operator. According to the new procedure, the period to port a single number has been reduced to 7 days (10 days for a non-geographic number of the 700, 800 or 900 range or a group of geographic numbers), compared to the EU average of 7.7 days for fixed and 4.2 days for mobile numbers.
The wholesale charge for porting a single number amounts to € 9.2 (€ 15.9 for a non-geographic number), and a discount of 30% applies when porting a group of at least 500 numbers. A retail charge may be levied by the receiving operator, yet this has not become common practice.

In reality, however, the one-stop shop procedure shows flaws and that results in a comparably low amount of ported numbers – according to the CRC only 139 377 mobile numbers (1.38% of all mobile subscribers) and 60 337 fixed numbers (2.5% of all fixed subscribers) have been ported until the end of January 2011.

Consumer Protection

Do you remember the issue with the automatic prolongation of the individual contracts between consumers and mobile operators?
Well, that together with the number portability troubles became the major topics of the about 1 700 consumer complaints lodged at the CRC.

It is funny, but the CRC did not attempt to enforce an adequate consumer protection by undertaking legal proceedings against the mobile operators  – something to which the CRC would be empowered by law. It attempted to merely persuade the operators instead. This is very likely the reason why the European Commission has made the brief and politically correct statement that

With the endorsement of the CRC, all mobile operators have indicated their consent to remove automatic prolongation clauses from individual contracts.

A large portion (about 460) of the complaints on number portability (about 1000) referred to the new one-stop-shop procedure. Due to technical problems with M-Tel’s billing system delivered by Amdocs, many mobile customers experienced problems with incorrect invoices and inadequate service provision.

Further complaints referred to issues with the scope of universal service (in particular fax), availability of telephony services or invoicing.
The CRC has issued 340 penalties to operators, out of which 168 on number portability.

Wrap-Up

All in all, Bulgaria’s MTR remain among the highest in Europe, the number portability is making only a slow progress, if any, and the regulator is not capable to warrant an adequate consumer protection.

No wonder why the report is a finger-wagging towards Bulgaria.

10 June 2011

Where “Preponderance Of Evidence” Is Not Enough: Microsoft Defeated Before SCOTUS


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by Matt Wade on Flickr
Supreme Court

The cold war of software patents has reached the status of a nuclear winter: earlier today the Supreme Court of the United States (“SCOTUS”) delivered its ruling in the case of i4i v Microsoft.

Background

Some years ago I blogged on how Microsoft got hit by a software patent.
However, the Redmond company denied infringement and sought a declaration that i4i’s patent was invalid and unenforceable.
Specifically, Microsoft claimed that i4i marketed the software known as S4 more than one year prior to the filing for its statutory protection.

Not surprisingly,  Microsoft contended that a defendant in an infringement action need only persuade the jury of an invalidity defence by a preponderance of the evidence.
In the alternative, Microsoft insisted that a

preponderance standard must apply at least when an invalidity defense rests on evidence that was never considered by the PTO in the examination process.

Nevertheless, Microsoft lost its case before the (patent owners friendly) District Court for the Eastern District of Texas which applied the long-standing jurisprudence of the Federal Circuit according to which

a patent shall be presumed valid and the burden of establishing invalidity rests on the party asserting such invalidity.
Under the Federal Circuit’s reading of §282, a defendant seeking to overcome this presumption must persuade the factfinder of its in-validity defense by clear and convincing evidence.

The Federal Circuit affirmed the decisions of the District Court and granted a certiorari to the Supreme Court which issued the final rejection to Microsoft’s claim of invalidity.

As PatentlyO‘s Dennis Crouch writes, Microsoft will now likely be forced to pay the $250+ million judgment for infringing i4i’s patent.

What Is The Moral Of The Story?

We must not forget that Microsoft was smote and consequently struck down by a patent troll. Since patent trolls are usually interested to sue “infringers” and force them into settlement agreements, I personally wonder why the guys from Redmond did not undertake such an agreement.

I was made aware that the patent troll allegations towards I4I might be unjustifiable.
Indeed and, unlike non-practicing entities, the company appears to have developed a product and established a sizable client base, particularly among pharmaceuticals such as Bayer, Merck and Schwartz Pharma. Obviously, Microsoft had showed an initial interest on I4I’s patented technology, but finally decided not to enter into a commercial agreement. The patent infringement lawsuit was the consequence.

One question remains: why did Microsoft act that way? Did they attempt to establish a new authority with regard to bad patents, since I4I’s patent grant showed some flaws and that remained undisputed before the Supreme Court? Was Microsoft’s challenging of the governing standard of proof, which currently favours patent owners and, their attempt to replace it with a standard more favourable to defendants in patent suits, a part of a larger strategy?

Either way, the creators of Windows failed.

All in all a disappointing decision – the Supreme Court has had a good chance to lower the threshold to invalidate bad patents, but acted pretty much as Pontius Pilate instead:

Congress specified the applicable standard of proof in 1952 when it codified the common-law presumption of patent validity. Since then, it has allowed the Federal Circuit’s correct interpretation of §282 to stand. Any re-calibration of the standard of proof remains in its hands.

7 June 2011

A Single Market For Creativity And Innovation?


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by Jordanhill School D&T Dept on Flickr

DSC_0422

About two weeks ago the European Commission’s Directorate General for the Internal Market issued its wide-ranging strategy to modernise intellectual property rights.

I could hardly call it a major move, although it claims to present Commission’s

overall strategic vision for delivering the true Single Market for intellectual property that is currently lacking in Europe – a European IPR regime that is fit for tomorrow’s new economy, rewarding creative and inventive efforts, generating incentives for EU-based innovation and allowing cultural diversity to thrive by offering additional outlets for content in an open and competitive market.

Sounds pretty much like a bunch of clichés, does it not?
Indeed, while the majority of writers and commenters seem to have ignored the couple of really

Refreshing Statements

thereby choosing to stay focused on the lots of blah-blah, I decided to discuss the document from a slightly different perspective once I had given those 25 pages of text a careful read.

So what was different?

Let me start with the

Copyrights

The Commission has realised two very important things:

First,  Europe remains a patchwork of national online markets. The ongoing lack of a unified European copyright law disables millions of citizens to use and share published knowledge and entertainment easily and legally across the Union and irrespective of their Member State of residence.

Second, creators of user generated content (UGC) need a recourse to a simple and efficient permissions system to use third-party copyright protected content in their own works, provided that their UGC is created for non-commercial purposes.

This sounds promising as an attempt to foster creativity, does it not?

Unfair Competition

I was amazed to read that the Commission has finally found the guts to address the grey area of unfair competition, albeit limiting it to trade secrets and parasitic copying as examples.
Why a grey area? Simply because it is dealt with by Member States using different concepts and providing different levels of protection.
Thus, while some Member States (e.g. Austria, Germany, Czech Republic, Spain, Belgium, Denmark, Finland) have specific provisions on unfair competition, other Member States’ laws rely on their Civil Code, either in specific provisions (Italy), or by the provisions generally applicable to tort (France, The Netherlands).
Finally, in the United Kingdom there is no law on unfair competition and rather the tort of passing off must be used.

The Commission promises to deliver a comprehensive study to assess the economic benefits that would derive from an EU approach in the area of unfair competition.

Parasitic copying rides on others’ creativity and innovation and must be opposed, preferably on an EU level.
So, I am really curious as to this study’s findings.

Trade Marks

Even though national trade mark registration in the EU Member States has been harmonised for almost 20 years and the Community trade mark was established 15 years ago, the Commission is keen to revise both the Trade Mark Directive and the Community Trade Mark Regulation.

To be honest, I support this move. The Commission has figured out that traders need faster, better and tighter registration systems. Further and following the repercussions of the Court of the European Union’s decision in Louis Vuitton vs Google, the Commission has acknowledged that the marketplace needs an Internet suitable definition of a trade mark and what constitutes a use of it.

Everything Else

For the sake of completeness, I should say that the Commission has also addressed issues relating to the unitary patent, non-agricultural geographical indications and the fight against counterfeiting and piracy.

However, those turned out to be nothing else but an “old wine in a new bottle” and I consequently decided not to comment on them.

Conclusion

All in all the Commission has reviewed the current European framework on intellectual property and has come to the only permissible outcome: the European Union lacks either the necessary harmonisation (in the realm of copyright and unfair competition) or clarification (in the realm of trade marks) and is therefore far away from a single market for creativity and innovation.

The proposed actions are capable of providing some relief, provided, however, that they survive the assumed attacks of lobbyists.

How about you?

What do you think should be done to achieve a single market for creativity and innovation?

5 June 2011

Pause


Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Warning: Illegal string offset 'status_txt' in /home/reguligc/public_html/reguligence.biz/wp-content/plugins/share-and-follow/share-and-follow.php on line 1243

Image by Eran Finkle on Flickr
3059185823_ce8570bdd2_z

I had a very busy week and that is the reason why I had to pause writing in the Reguligence Weblog.

What had happened?
Well, I travelled to Sofia and had numerous meetings, for the purposes of both business and pleasure.

I also attended the Open Camp Sofia 2011, but I deliberately omit to post a link to the event (Bogo, fix the website please!)

I am currently having blog posts reviewing the recent European Commission’s communication COM(2011) 287 and a UN report on, amongst other things, the three strikes policy and in the pipeline.

See you soon!