Electronic filing standards

Mon Jun 11 17:10:45 EDT 2001

Within the context of the desired reform of the PCT, standardisation
of electronic filing procedures seems to be a critical issue.
Relevant NGOs like the American Intellectual Property Law Association
(AIPLA), the International Association for the Protection of
Intellectual Property (AIPPI), the International Federation of
Industrial Property Attorneys (FICPI) as well as the Intellectual
Property Owners Association (IPO) are demanding a global
harmonisation of appropriate technical standards.   

But they are somewhat silent on the question of which technical
particulars of such standard would be considered acceptable.  

What might be a suitable framework in this regard? From the
perspective of a patent professional and based entirely on my
personal opinion I would like to propose some points as listed below:

1. The technical standards for electronic filing must be be published
in their entirety and in full detail. No NDA should be required
before accessing the specification.

Comment: There should be an open market for vendors of hardware and
software for electronic filing. No barriers should prevent anyone who
wants to enter that market to do so provided he has ability to ensure
conformity with the standard. Publishing of all details on the web
seems to be adequate.

2. The technical standards for electronic filing must be platform
independent, i.e. no standards are deemed to be acceptable which
require a certain computer platform, e.g. a particular hardware or
operating system.

Comment: Although Microsoft operating systems are widespread on IT
systems of potential users of electronic filing systems, many of
these users have a different IT infrastructure including Apple's
MacOS, LINUX, HP-UX, and others. They all should have a fair chance
to paticipate by means of a solution available on an open market
without need to change the platform.

3. The technical standards for electronic filing must not make use of
proprietary technology which is property of a single supplier or of a
closed group of suppliers. In particular, no proprietary document
data formats should be required by the standard.

Comment: No fair and open market can grow if an essential technology
of the electronic filing standard would be proprietary, e.g. patented
or otherwise owned by a particular vendor. Hence, even if the
proprietor of the technology would give a free license e.g. to a
particular Patent Office, the problem would persist. 

With regard to document data formats, MS-WORD .doc format as well as
ADOBE .pdf format are examples of proprietary formats which are not
publicly disclosed in full detail. They can be altered by their
proprietors deliberately and at will without notice. The relationship
between the meaning of a text and the internal coding thereof is
opaque. Contrasting and in terms of current technology, XML seems to
be an appropriate tool for establishing open document data formats.  

4. The technical standards for electronic filing should make use of a
Public Key Infrastructure (PKI) for authentication purposes.

Comment: There seems to be no real technological alternative to the
utilization of asymmetric cryptography in conjunction with a PKI for
authentication purposes.

5. The technical standards for electronic filing must not rely on a
particular PKI offered only by a particular provider or by a closed
group of providers.

Comment: A PKI monopoly might well harm the existence of a market for
electronic filing solutions.

6. The technical standards for electronic filing must not assign PKI
functions to Patent Offices including the WIPO.

Comment: A conflict of interest is inevitable if a dispute arises on
the validity of a digital signature which has been created on the
basis of a key pair created and certified by a Patent Office. The
President of the Patent Office would be responsible for errors and
misconduct in the context of the PKI system. Hence, the Office cannot
be a 'neutral' entity in the course of a dispute in the context of
proceedings based on electronic documents having a digital signature
the validity thereof being disputed.

7. The technical standards for electronic filing should clearly
separate the use of cryptography for authentication purposes on one
hand and the use of cryptography for concealment purposes on the
other hand.

Comment: The objects to be solved are different and, hence, the
technical means should also be allowed to be different. A chip card
solution might be considered useful with regard to digital signatures
but concealment might be done using OpenPGP or SSL.

8. The technical standards for electronic filing should have scalable
interface specifications.

Comments: Doing electronic filing should be possible e.g. by using a
simple browser software (if only a single application or a few of
them is to be filed) or by using an elaborate electronic filing
server system on the user's side (if a lot of things are to be filed
electronically).

These 8 points clearly are not completely met by the current version
of the EASY/EPOLINE software used or to be used by EPO, WIPO, and
others. For example, at the time being epoline is effectively based
on the .pdf document format. The role of the EPO in the context of
the EPOLINE PKI is currently somewhat opaque. Mr. Bambridge has
promised to introduce XML data formats and open PKI providers. We
shall wait and see.

The MIPEX project seems to be much more committed to open standards.
However, the question is which influence MIPEX can have on the stage
of a theatre where the 'big three' Patent Offices (US-PTO, EPO,
JP-PTO) have already made their own decisions.  

I wonder whether it is useful at all - at least on the long run -
that Patent Offices act as software suppliers. At the time being they
give away their software for free, and most of the addressed
professionals will accept these gifts most gratefully. And, for
boosting developments in an initial pilot phase, creation and
distribution of electronic filing software seem to be acceptable.
However, in a long term perspective and under the current policy the
control over the development of the electronic filing software
remains solely with the Patent Offices.  

I beg for pardon but I think that a little doubt should be allowed on
the long term fairness of a system of roles where the Patent Offices
(or the WIPO on behalf of them) have complete control over a certain
software architecture whereas their "customers" have none. I do not
like the term "customers" in this context: The Patent Offices are
Authorities privileged by Public Law, not service providers on a
certain market. The "customers" of a Patent Office desiring a patent
valid on a particular territory have in fact no choice to select
concurring service providers on a "market": A Patent Office
constitutea a monopoly by law (i.e., a European Patent can be
obtained solely from the EPO; various national patents are aliuds not
identical with the said European Patent). Therefore I think that, on
the long run, Patent Offices should refrain from playing a role as
software vendors, thereby respecting the monopoly role assigned to
them by law with regard to their core functions. Or, otherwise,
perhaps it might be an interesting idea to encourage the Patent
Offices not only to give away their compiled binaries for free but to
put the corresponding sources under the GPL. This would truly open
the electronic filing business for other parties interested in that
matter.         

But, anyway, the demand for a unified set of technical standards for
electronic filing seems to be entirely justified. More awareness
amongst the patent professionals should be created. Otherwise, in a
few years they might realise that there is a rigid set of technical
standards excellently mapping the requirements of the Patent Offices
but not being adaptable to the various needs of a broad scale of
users.  

Axel H Horns
Patentanwalt
European Patent Attorney
European Trade Mark Attorney
- - --
Patentanwalt Axel H Horns    horns at ipjur.com
Voice ++49.89.30630112  Fax ++49.89.30630113
My PGP RSA Key is available, ID = 0xD8433289
PGP C5D2 5E53 D241 4988  17E4 904D 9467 31BC

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