Case Law: Infringement of German Patents by Sup­plying Goods outside of Germany

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With its judgement “Abdichtsystem”, the German Federal Court of Justice has recently specified its previous case-law concerning the infringement of German (national or EP) patents by the supply of goods outside of Germany, if these goods later on reach the German market. It also provides some practical guidance on how foreign suppliers are supposed to behave towards their foreign customers, if they want to limit their risk of being held responsible for patent infringement in Germany.

In its decision “Funkuhr I” (decision of February 26, 2002, ref. X ZR 36/01) the Federal Court of Justice had decided that, notwithstanding the general principle of territoriality, the supply of goods from a foreign supplier (i.e. a supplier located outside of Germany) to a foreign customer (i.e. a customer also located outside of Germany) may in fact constitute patent infringement in Germany, in case the customer later on supplies these goods to the German market. However, at that time, it remained rather unclear which exact legal preconditions need to be met for the foreign supplier’s liability, especially with regard to his awareness of and / or participation in selecting the final destination of the patent infringing goods.

The decision “Audiosignalcodierung” (Federal Court of Justice, Decision of February 3, 2015, ref. X ZR 69/13) confirmed and expanded on this case law, but again provided only little guidance going beyond the specifics of the case. Still, it was made clear that a foreign supplier’s existing knowledge of his customer’s intent to bring the supplied goods onto the German market would constitute a sufficient degree of wrongdoing, and would thereby make him liable. In this case, the supplier’s knowledge was determined because his foreign customer had expressly named an enterprise in Germany as its distributor for the relevant products on its website.

Content of the Decision “Abdichtsystem”

The recent decision “Abdichtsystem” (“sealing system”) contains, for the first time, comprehensive and much more general guidance on when a foreign supplier’s liability is to be assumed, and which criteria are to be observed in practice. Furthermore, the decision determines the scope of claims to be asserted in case of the foreign supplier’s liability.
According to the Federal Court of Justice, a foreign supplier’s liability is not to be assumed by and in itself (i.e. unless there are other relevant circumstances), if he rightfully considers his foreign customer’s supply to Germany as a possibility only, which would be the case in the following examples

  • (A) the foreign customer maintains general business relations to Germany only,
  • (B) the foreign customer has supplied only similar, but not the same (i.e. patent infringing) goods to Germany before,
  • (C) the foreign customer has attached to the goods an instruction manual that contains, among others, some instructions in German, if the foreign customer always uses multi-lingual manuals for its products.

According to the Federal Supreme Court, a foreign supplier’s liability is generally (i.e. unless there are other relevant circumstances) to be assumed if

  • (A) the foreign supplier is aware of a previous or planned delivery of identical goods by the foreign customer to Germany,
  • (B) the quantity of the supplied goods is of a volume that, based on experience, one would need to expect its geographically unlimited distribution, including Germany,
  • (C) the mode of procurement by the foreign customer conspicuously correlates with its known patent infringing activities in Germany.

While being quite specific on these examples, the Federal Court of Justice has nevertheless stressed that the circumstances of the individual case are of importance and require individual assessment. Similarly, the aforesaid examples are mentioned not to be exhaustive.

In these named (or any other) circumstances where a foreign supplier has reason to be suspicious, however, the foreign supplier is then required to apply special diligence, in order not to be held liable for patent infringement:

  • Any foreign supplier having reason to be suspicious has to expressly inquire with the customer, whether he intends to supply the products concerned to the German market.
  • The supplier needs to advise his customers that, if they do so, this constitutes a possible patent infringement.
  • If thereupon the customer fails to warrant that he does not intend to supply to the German market, the supplier has to immediately discontinue supplying.

If he fails to do so, the foreign supplier may find himself being held liable for patent infringement in Germany, even if not being active on the German market.

Consequences of the Decision

For the first time, the Federal Court of Justice provides also some reasoning regarding the application and consequences of its decision. It holds that the above-mentioned examples are already to be examined within the framework of the injunctive relief, as they decide on the effective participation, i. e. the involvement in patent infringement as an independent perpetrator. Also, while in its decision “MP3-Player-Import” (Judgement of September 17, 2009, Xa ZR 2/08), the Federal Court of Justice had left open the question if further preconditions would need to apply for a claim for damages, it now affirms an unrestricted liability for damages in case of any such patent infringement. Finally, the Federal Court Of Justice clarifies that also the right of recall from the distribution channel and the right to destruction can be asserted in these cases.

Conclusion

In view of the judgement “Abdichtsystem”, the risk for foreign suppliers delivering to their foreign customers of being successfully sued for patent infringement in Germany has increased. At the same time, the Federal Court of Justice has established some reliable criteria which can reduce the above-mentioned risks by means of early consultation and precautionary measures.

Countdown to GDPR – Beware of the new Data Protection Rules

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In about four months, on 25 May 2018, the European General Data Protection Regulation (GDPR) will enter into force. The new law will not only apply to European companies but also to Non-European companies acting on the EU market. Besides a number of new obligations and adapted requirements, the GDPR comes with a considerably strengthened system of sanctions. With our series “Countdown to GDPR” published in our upcoming B&B Bulletin issues, we want to provide an overview on the most relevant changes in the new law as a basis for a timely review of data protection compliance.

25 May 2018 is a date that should be marked in the calendar of all companies collecting and using personal data within the European Union. On this date the existing data protection rules in all EU Member States will be replaced by the new General Data Protection Regulation (Regulation (EU) 2016/679 – GDPR). The GDPR will apply to practically all acts of data processing taking place within the EU or aiming at EU subjects and therefore is of relevance for European Union as well as Non-European Union companies.
Companies are faced with a considerable need for adaption, and anyone who has not previously had data protection compliance on the agenda should do so by now at the latest. As the GDPR does not provide for a transitional period, all data processing operations must comply with the new law as of 25 May 2018.
In this article we will outline some important aspects and new provisions. In the next newsletter issues, under the heading “Countdown to GDPR”, we will focus on specific topics that should be considered and addressed by all companies before 25 May 2018.

New data protection law

lawThe new data protection law is based on Regulation (EU) 2016/679 (General Data Protection Regulation, GDPR), which will be applied uniformly in all EU Member States from 25 May 2018.

What will remain? What will change?

Many of the data protection mechanisms and principles that are known from the existing data protection law will also apply under the GDPR. In particular, the basic principle that all use of personal data is prohibited unless covered either by the consent of the person concerned or by a specific statutory permission was adopted in the GDPR.
However, the new data protection law also entails a whole series of changes:

Territorial applicability

The GDPR is not only binding to entities based in the EU, but is also applicable to any non-European data processors where data of EU citizens is concerned and where data processing is related to the provision of goods or services or to the observation of the behavior of EU citizens. For example, a US-based company that collects and processes data of EU citizens (e.g. running an online-shop) will in future be subject to EU data protection legislation

Accountability

As of the end of May 2018, companies will have an increased degree of accountability when handling personal data. Companies have a non-delegable liability for compliance with the GDPR. Their accountability, however, does not only include legal compliance but also obligatory documentation of compliance measures within the framework of a real accountability towards authorities. In the future, companies will have to keep directories of all data processing operations with legally prescribed information and, under certain conditions, carry out so-called data protection impact assessments (DPIA).

Processing on behalf of a Controller

A common constellation, especially in the digital environment, is that one company (controller) commissions another company (contractor) to process personal data in accordance with its instructions. The applications are diverse and include, for example, hosting contracts, IT maintenance contracts, HR services and payment services. Practically every company that works with external service providers faces the constellation of commissioned data processing.

Commissioned data processing will also be available under the GDPR and will even be available to contractors outside the EU. Although the principal of responsibility for compliance with data protection regulations will continue to lie primarily with the controller, the GDPR imposes an increased liability on the contractor, and also introduces the new concept of a joint liability which does not exist under the current law.

These changes thus affect the contractual relationship and therefore require reviewing and adjusting the existing contracts with external service providers such as hosting providers, payment providers etc.

Sanctions

The GDPR comes with a considerable strengthening of potential sanctions. Violations of the GDPR can result in fines of up to EUR 20 million or, in the case of companies, up to 4 % of the global annual turnover of the previous financial year. This is intended to encourage also large corporations to comply with data protection regulations and it is expected that data protection authorities will use their new instruments to make sure that industries comply with the regulations.

The time remaining

remainingThere are still about four months to go before the GDPR will take effect. This time should be used to review, adjust and document the internal data protection concepts and processes for compliance with the GDPR. Furthermore, existing contracts with external service providers and / or customers should be reviewed and adjusted if needed.

In view of the considerable increase in the risk of sanctions and / or warning notices from competitors, we strongly recommend commencing this review process immediately and to provide your company‘s data protection officers with the required resources for timely compliance measures.

If you have any legal questions on the subject of data protection, please contact our data protection team.

G 1/16 – To disclaim or not to disclaim

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With the referral G1/16 to the Enlarged Board of Appeal of the EPO, legal guidance is expected as to whether a person skilled in the art, taking into account the gold standard for amendments developed in G 2/10, would also consider the subject-matter remaining after the introduction of a non-disclosed disclaimer in a claim as explicitly or implicitly, but directly and unambiguously disclosed in the application as filed.

In drafting patent applications, a challenge faced by applicants and their representatives is to define the specific invention and yet to achieve as broad a generalization as possible so as to (i) cover future modifications of the invention and (ii) prevent competitors from easily circumventing the patented teaching.
After expiry of the priority year, amendments to the disclosure extending beyond the application as filed are not permitted as ruled by Article 123 (2) EPC in proceedings before the European Patent Office (EPO). Since the EPO was in existence, many decisions have been taken by the Technical Board of Appeals (TBoA) and the EPO’s Enlarged Board of Appeal (EBoA) dealing with various types of changes.

A special type of amendment is the “non-disclosed disclaimer” that is used to exclude certain embodiments from a generically formulated claim by incorporation of a wording that is not originally disclosed in the application. Embodiments to be excluded may be derived, e.g., from European patent applications filed before the priority or filing dates of an application, but which were published after these dates (“Art. 54 (3) EPC” documents). Embodiments found in documents deemed “accidental” can also be excluded. Prior art is considered to be accidental, if it is so far removed from the technical field of the invention that a person skilled in the art would not have considered them when attempting to solve the technical problem underlying the invention. Non-disclosed disclaimers differ from “disclosed disclaimers” that are explicitly excluded by appropriate formulations present in the original application.
The EBoA, particularly in decisions G 1/03 and G 2/03 (hereinafter “G 1/03”), has dealt with the admissibility of non-disclosed disclaimers. General standards for the admissibility of amendments were last set out in decision G 2/10.

G 1/03

According to G 1/03, amendments may be made by means of non-disclosed disclaimers, e.g., to exclude embodiments found in Art. 54(3) EPC documents or in accidental disclosures. The validity of G 1/03 was often questioned after their publication, as discussed in the interlocutory decision underlying G 1/16.

G 2/10

The decision G 2/10 of the EBoA is generally recognized as a “gold standard” for the admissibility of amendments, even if the underlying case explicitly relates to the assessment of disclosed disclaimers. According to G 2/10, amendments may be permissible if the person skilled in the art had recognized the subject-matter of the amended claim as being explicit or implicit but directly and unambiguously in the application as filed, taking into account the general technical knowledge.

Compatibility of G 2/10 and G 1/03

In the interlocutory decision (T 437/14) of TBoA 3.3.09, the EBoA was presented with legal questions aimed at reviewing the compatibility of decisions G 2/10 and G 1/03. This interlocutory decision forms the basis of the referral G 1/16. The TBoA seeks guidance as to whether a person skilled in the art, taking into account the gold standard developed in G 2/10, also considered the subject-matter which remained after the introduction of a non-disclosed disclaimer in a claim as explicitly or implicitly, but directly and unambiguously disclosed in the application as filed.

T 437/14

The case on which T 437/14 is based can be summarized as follows:

  • In the disputed patent, two non-disclosed disclaimers were inserted in claim 1 due to disclosures in two prior art documents. With regard to admissibility, the patent proprietor referred to G 1/03. If the rulings adopted therein were to be applied on the admissibility of the disclaimers, this would be in the affirmative from the point of view of the referring Board.
  • According to the Board, the admissibility would, however, be negative if the standards developed in G 2/10 were used. In T 437/14, the Board argues that the application of the gold standard developed in G2/10 results in the fact that a skilled person would never, as a matter of principle, neither explicitly nor implicitly, directly and unambiguously, find the subject-matter remaining after introduction of the non-disclosed disclaimer in the application as originally filed. This interpretation of Decision G 2/10 was even confirmed by the patentee in the proceedings (reason 8.1.2).

According to reason 7.5.2 of T 437/14, the EBoA noted in G 2/10 that the exemptions under G 1/03 do not alter the general definition of the requirements of Art. 123 (2) EPC.

In reason 7.5.3, it is also noted that the EBoA in G 2/10 had responded to a proposal of the President of the EPO in the examination of the then-decided legal questions. The latter suggested that, in cases where the subject-matter of the claim cannot be directly and unambiguously deduced from the application as filed, the admissibility of the disclaimers should nevertheless be made subject to the criteria laid down in G 1/03.

However, as stated in T 437/14, the EBoA in G 2/10 did not see any justification for this approach. According to reason 7.6 of T 437/14, these observations of the EBoA in G 2/10 ultimately signify that there is only one test for the assessment of whether an amendment, including a non-disclosed disclaimer, is in accordance with Art. 123 (2) EPC, i.e. the gold standard. The decisive criterion for the admissibility of non-disclosed disclaimers is therefore as to whether the person skilled in the art, by taking into account the general technical knowledge, would consider the subject-matter remaining after introduction of the disclaimer as being explicitly or implicitly but directly and unambiguously disclosed in the application as originally filed (reason 7.7). The Board goes on to say that the standards developed by G 2/10 leave no room for the exceptions defined in G 1/03 (reason 7.8).

Finally, as the Board notes, the decision G 2/10 itself did not lead to the abolition of the exemptions made by G 1/03 after a comprehensive discussion of the latter decision and the applicability of the gold standard also to non-disclosed disclaimers.

In reason 9 of T 437/14, the case-law after the adoption of the G 2/10 is discussed. In this respect, it appeared that the Technical Boards of Appeal, in particular in the decisions T 2018/08 and T 1870/08, had developed modified interpretations of the gold standard, which require a legal review by the EBoA. In the light of this case-law, the referring Board submitted legal questions, which are likely to have fundamental significance for the future of non-disclosed disclaimers:

  • (1) Is the standard referred to in G 2/10 for the allowability of disclosed disclaimers under Art. 123 (2) EPC, i.e. whether the skilled person would, using common general knowledge, regard the subject-matter remaining in the claim after the introduction of the disclaimer as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed, also to be applied to claims containing undisclosed disclaimers?
  • (2) If the answer to the first question is yes, is G 1/03 set aside as regards the exceptions to undisclosed disclaimers defined in its answer 2.1?
  • (3) If the answer to the second question is no, i.e. if the exceptions relating to undisclosed disclaimers defined in answer 2.1 of G 1/03 apply in addition to the gold standard, may this standard be modified in view of these exceptions?

Practical significance of G 1/16

  • Applicants or proprietors who intend to include a non-disclosed disclaimer in the claims are well advised to have the procedure for the application or the patent concerned suspended until legal certainty is achieved by the rulings in G1/16.
  • Applicants should pay more attention to the fact that patent applications are designed in such a way that generic claims are described by stepwise definitions of preferred individual features resulting in additional fallback possibilities, to have a basis for amendments excluding Art. 54 (3) EPC documents or “accidental disclosures” without having to resort to non-disclosed disclaimers.
  • In cases where the exceptions listed in G 1/03 are relevant, divisional applications could be submitted, as it is not clear when and how the EBoA will decide in G 1/16.

Conclusion

The admissibility of amendments to patent documents remains a hot topic before the EPO. In view of the extremely strict interpretation regarding the admissibility of amendments, the importance of a well thought-out elaboration of patent documents cannot be empasized highly enough.
In this respect, it is interesting that a number of Amicus Curiae letters were submitted in the meantime, pursuant to Art. 10 of the Rules of Procedure of the EBoA. These include the epi, FICPI and the AIPPI, all of whom are in favor of maintaining the rulings in G 1/03.
Therefore, there is still the hope that respective options remain after the issuance of G 1/16.

New EPO Guidelines for Examination on the Pa­tenting of Graphical User Interfaces

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The European Patent Office (EPO) has completely revised its Guidelines for Examination regarding “presentations of information” and “user interfaces” (EPO GL 2017, G – II, Sections 3.7 and 3.7.1). In large part, these substantial revisions are based on recent decisions by the EPO Boards of Appeal, in particular decision T 336/14, which we already analysed in detail in our B&B Bulletin of December 2016. Based on these recent decisions, the EPO has now more narrowly defined the circumstances in which features of a GUI are considered “technical features” and are, therefore, relevant for the assessment of the inventive step. Even though this topic is not completely settled in the case law of the Boards of Appeal, a general trend appears to emerge at the EPO.

Graphical User Interfaces (GUIs) have become our constant companions in many different areas: mobile telephones, distributed network communications, medical equipment and machines in industrial processes are only some of the many areas of use. Naturally, this has stimulated an increasing interest in patent protection for GUIs, which apparently urged the EPO to revise its Guidelines for Examination on this topic.

The long-established standard practice of the EPO requires that in order to be patented a claimed subject-matter must solve a technical problem with technical means in a way which is not obvious. According to Art. 52 (2) EPC and the established practice of the EPO, the presentation of information, aesthetic creations, programs for computers and business methods are, as such, not considered to be technical.

With regard to the patentability of GUIs, this meant and still means that features of a patent claim which relate to information which is displayed to a user via a GUI are analysed to determine if, in the context of the claimed subject-matter, they contribute to providing a technical effect. If they do not make such a technical contribution, they are not taken into account during the assessment of the inventive step, in accordance with the examination approach of the widely known COMVIK decision T 641/00 of the EPO, and hence cannot support the presence of an inventive step. In the revised Guidelines for Examination, the EPO emphasizes that, during the assessment of the inventive step, the examiner is supposed to assess the context of the claimed subject-matter, the task the user carries out and the actual purpose which is served by the particular presented information.

When looking at GUIs, a particularly relevant question is which are the criteria a GUI-related feature has to fulfil in order to be recognized as a “technical feature” that contributes to the technical effect of the claimed subject matter, so that it is to be taken into account when assessing the inventive step.

“Functional data” vs. “Cognitive data”

First of all, the EPO emphasizes again in the revised Guidelines for Examination that presentation of information in the sense of Article 52 (2) d) EPC is to be understood as the conveying of information to a user, i.e. cognitive data, and is to be distinguished from the technical representations of information directed to a technical system to process, store or transmit that information. Features of data encoding schemes, data structures and electronic communication represent “functional data” and are not regarded presentation of information as such.

Functional data is data which shows the inherent technical features of the underlying system in question, such as information for the synchronisation of coded picture lines (line numbers and addresses) for a corresponding reading apparatus (T 1194/97) or a television signal which reproduces information which shows the technical features of the television system (T 163/85).

Taking the Human by the Hand via the GUI

In the case of cognitive data, the revised Guidelines for Examination now clearly distinguish two sub-categories of presentation of information, namely (i) whether the relevant features concern “what” (which information) is presented, in other words the content of the information presented, and (ii) “how” (in which manner) the information is presented. However, the revised Guidelines for Examination emphasize also that a presentation of information does not extend to the technical means used for generating such presentation of information.

The decision T 336/14 (Gambro Lundia AB vs. Fresenius Medical Care Deutschland) addressed the question which role the nature or the content of the displayed information plays in the assessment of inventive step of the information presented using a GUI. As already analysed in detail in our B&B Bulletin of December 2016, in decision T 336/14, the Board of Appeal 3.5.05 applied a special examination procedure or testing scheme, whose essence was now incorporated in the revised Guidelines for Examination and should therefore be taken into account when prosecuting corresponding patent applications at the EPO.

The patent in question of T 336/14 concerned cognitive data and its content (i.e. the question of “what” is presented) and not “how” (i.e. in which manner) the information is being presented.

In the headnote of decision T 336/14, the Board of Appeal emphasised that when assessing inventive step of a claim which comprises a mix of technical and non-technical features, in which the cognitive information displayed on the GUI relate to “what” is presented rather than “how” the information is presented, it has to be analysed whether the GUI, together with the content presented, credibly assists the user in performing a technical task (related to “why” that content is presented) by means of a continued and / or guided human-machine interaction process.

In other words and as outlined in our B&B Bulletin of December 2016, according to the Board of Appeal 3.5.05, to answer the question of whether the displayed cognitive content is to be considered a technical feature, it must be assessed whether the information displayed to a user is “technical information” which credibly enables the user to properly operate the underlying technical system and thus has a technical effect. It is particularly relevant to assess whether the displayed cognitive information contains an internal machine condition and prompts the user to interact with the machine in a continued or guided way to enable the proper functioning of the machine (T 336/14, reasons 1.2.4). The same Board of Appeal 3.5.05 made similar statement in the earlier decision T 407/11.

Following their decision T 336/14, the same Board of Appeal 3.5.05 took a similar position in decision T 1802/13 for an application related to “how”, i.e. in which manner, the information is being presented and not “what”, i.e. which information, is presented. In particular, the Board of Appeal decided in reasons 2.1.5 that, similar to the issue of “what” is presented as decided in T 336/14, regarding the technicality of the manner in which information is presented, the main issue to be established is whether the underlying GUI, together the manner in which cognitive content is presented, credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process (basically being related to the question “for what purpose” the information is presented).

In the recent past, both decisions have been referred to and confirmed by a few other Boards of Appeal and only in a limited number of decisions.

For example, the Board of Appeal 3.2.02 decided in T 690/11 that the criteria of T 336/14 would follow the established line of case law of the Boards of Appeal.
In that particular case, the Board of Appeal 3.2.02 found that features of a GUI,
the aim of which is that a user makes an entry and triggers an internal process of the system in question, and the GUI graphically displays the course of this process, has a technical character (T 690/11, No. 3).

In its decision T 2461/11 the Board of Appeal 3.4.03 referred to T 1802/11 and considered features relating to enlarging an image of a data setting on a display, maintaining the enlarged image and reducing the enlarged image in dependence of a sensed manipulation of the control by the user as credibly assisting the pilot in performing entry of manually-adjustable data settings in an aircraft cockpit and hence as technical features (T 2461/11, reasons 2.3.4).

The EPO completely revised the above-noted sections on the presentation of information and user interfaces in the Guidelines for Examination based on the two decisions T 336/14 and T 1802/13 only. The revised Guidelines for Examination now state that features defining a presentation of information (i.e. features related to “what” information or “how” information is presented) produces a technical effect if it credibly assists the user in performing a technical task by means of a continued and/or guided human-machine interaction process.

The revised Guidelines for Examination even go slightly beyond the literal statements made in these two decisions by stating that such a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature. This would not be the case if the alleged effect depended on subjective interests or preferences of the user, wherein this latter statement has indeed been stated in several decisions by the Board of Appeal (e.g., T 336/14, T 1802/13, T 1143/06, T 1741/08, T 1670/07).

Fortunately, the EPO seems to agree in the revised Guidelines for Examination that the determination of the extent to which a particular presentation of information may be considered to credibly support the user in performing a technical task is difficult.

In view of this observation, the EPO provides an “advice” to the examiners according to which this determination may be simplified for the examiner during an assessment of inventive step by comparing the claimed subject-matter with the prior art first, thus allowing the determination to be limited to the distinguishing feature. Unfortunately, the EPO included a statement into this “advice” to the examiners according to which this comparison may reveal that the potential support for the performance of the technical task is already achieved in the prior art, with the alleged consequence that the distinguishing features would make no technical contribution.

This “advice” to the examiners in the revised Guidelines for Examination is at least vague and could be interpreted by the examiners as meaning that a distinguishing feature would “become” non-technical, if the technical effect provided by the distinguishing feature (considered in isolation) is already known from the prior art.

Such an interpretation would, however, violate general principles for the assessment of inventive step: Firstly, whether a claimed (distinguishing) feature is technical or not has to be assessed in context of the claimed subject-matter and without considering the prior art. Secondly, the objective technical problem does not have to be a new problem and can even be a mere alternative. That is, if the closest prior art already achieves the technical effect associated with the distinguishing feature, then the objective technical problem may have to be reformulated such that it is less ambitious, but this does not make the distinguishing feature less technical.

Consequently, this “advice” to the examiners in the revised Guidelines for Examination should be taken with care and should be clarified: To be clearly in line with the general principles for the assessment of inventive step, the Guidelines for Examination should be revised to state that the examiner may compare the claimed subject-matter with the prior art first, so as to limit the number of features the technical contribution of which must be analysed. However, once the distinguishing features are identified, the examiner needs to check for each distinguishing feature in consideration of its function in the context of the claimed subject-matter, and without considering the prior art, whether the distinguishing feature makes a technical contribution to solving a technical problem.

Representatives should closely monitor how the examiners use this “advice” in daily practice.

Following the above mentioned general criteria for the assessment whether a feature relating to presentation of information is technical or not and the above “advice” for the examiners, the revised Guidelines for Examination list several examples, largely based on decisions by the EPO Boards of Appeal, where a technical effect for such features was confirmed or denied.

Examples: “What should be presented?”

The revised Guidelines for Examination state that an internal state prevailing in a technical system is an operating mode, a condition or an event which is related to the internal functioning of the system, may dynamically change and is automatically detected. Its presentation typically prompts a user to interact with the system, for example to avoid the technical malfunctions. If the cognitive content of the information presented to the user relates to an internal state prevailing in a system and enables the user in properly operating this technical system, it has a technical effect according to the revised Guidelines for Examination.

It is not explicitly stated in the revised Guidelines for Examination, whether the mere presentation of such an internal state prevailing in a technical system is a technical feature. In this context, it is useful for the applicants and patent proprietors to know that a series of partly older but hitherto accepted decisions view a technical effect in the mere display of internal statuses of apparatuses (T 115/85, T 362/90, T 599/93 reasons 4, T 1073/06 reasons 5.4, T 756/06 reasons 13,
T 1670/07 reasons 12, 13; T 528/07, reasons 5.2). However, the revised Guidelines for Examination now state that features defining user input are more likely to have a technical character than those solely concerning data output and display, because input requires compatibility with the predetermined protocol of the machine, whereas output may be largely dictated by the subjective preference of the user. This seems to imply that, in line with these partly older decisions, the mere presentation of such an internal status prevailing in a technical system could in principle still be considered technical, but with a lower probability. It is therefore advisable to not only include features in an application related to the mere presentation of an internal state prevailing in a technical system, but to also include features related to an interaction between a user and a GUI (e.g. initiating or responding to the presentation of the internal state), such that the combination of the presented information and the interaction with the user credibly assists the user in properly operating the underlying technical system.

The revised Guidelines for Examination further explicitly state that features which specify a mechanism enabling user input, such as entering text, making a selection or submitting a command, is normally considered to make a technical contribution. For example, providing in a GUI an alternative graphical shortcut allowing the user to directly set different processing conditions makes a technical contribution, which the revised Guidelines for Examination seem to have taken from the slightly older but hitherto accepted decision T 1188/04 by the Board of Appeal 3.5.01.

In a further example not discussed in the revised Guidelines for Examination, the Board of Appeal 3.5.05 found in T 407/11, related to a user calling a function in a data-processing electronic system and providing an error message to the user in response, that a technical effect can be seen if it is prevented in the data-processing electronic system that the function called up by the user is, due to his error, either not carried out at all by the system or in a way which is not wanted (T 407/11, reasons 2.1.4, 2.1.5).

The revised Guidelines for Examination also state that performance-oriented improvements to the detection of user input, such as allowing faster or more accurate gesture recognition or reducing the processing load of the device when performing the recognition, do make a technical contribution. However, where the actual achievement of effects (e.g. simplifying the user’s actions or providing more user–convenient input functions) depends exclusively on subjective user abilities, such effects may not form the basis of an objective technical problem to be solved.

However, the revised Guidelines for Examination also state that static or predetermined information about technical properties or potential states of the machine, or specifications of the device operating instructions do not qualify as an internal state prevailing in the device. If the presentation of static or predetermined information merely has the effect of helping the user with the non-technical task preceding the technical task, it does not make a technical contribution. For example, the effect that the user is not required to know or memorize a sequence of buttons to be operated prior to configuring a device is not a technical effect, which is also taken from T 336/14.

The revised Guidelines for Examination also mention that information representing a state of a non-technical application run on a computer system, such as a casino game, a business process or an abstract simulation model, would constitute non-technical information exclusively aimed at the user for his subjective evaluation or non-technical decision–making and would not be directly linked to a technical task, even if ultimately states of processors or memories are modified, which seems to be taken from T 336/14, T 1073/06, T 1704/06 and T 528/07.

Examples: “How should it be presented?”

A feature in this sub–category of presentation of information specifies a form or arrangement in which, or a timing at which, information is conveyed to the user. The revised Guidelines for Examination state that features defining a visualization of information in a particular diagram or layout would normally not be considered to make a technical contribution, even if the diagram or layout arguably conveys information in a way which a viewer may intuitively regard as particular appealing, lucid or logical.

Dealing with limited available screen space would be a part of designing presentations of information for human viewing and would therefore not be an indication of a technical effect per se, according to the revised Guidelines for Examination. For example, the general idea of giving an overview of the plurality of images and the limited display area or eliminating whitespace between the windowpanes would only be a matter of layout design and would not involve technical considerations. The EPO seems to base such statements on decisions like T 1562/11.

However, the revised Guidelines for Examination continue stating that features allowing the user to search and retrieve images stored in a image processing apparatus in a more efficient manner may involve technical considerations, which is taken from the slightly older but hitherto accepted decision T 643/00. Furthermore, features related to resolving conflicting technical requirements in a video game may be technical, which is based on T 928/03. Also, the visual aid for the surgeon allowing the surgeon to position an implant more precisely is considered to provide a technical effect, according to the revised Guidelines for Examination.

The revised Guidelines for Examination also now address effects relying on human physiology. When the manner of presenting information produces in the mind of the user an effect which does not depend on psychological or other subjective factors but on biophysical parameters, which are based on human physiology and can be precisely defined, that effect would qualify as a technical effect. How close the confirmation and the denial of a technical effect is in this area, is shown by the following examples given in the revised Guidelines for Examination. Displaying a notification on one of a plurality of computer screens near the user’s current visual focus of attention would have an effect that it is more or less guaranteed to be seen immediately compared to an arbitrary placement on one of the screens. In contrast, showing only urgent notifications compared to all notifications would, however, only be based on psychological factors and would therefore not make a technical contribution. Minimizing information overload and distraction would not be considered to qualify as a technical effect, which is taken from T 862/10. However, displaying a stream of images in which the parameters for delay and change in the content between successive images are computed on the basis of physical properties of human visual perception in order to achieve a smooth transition would be considered to make a technical contribution, which is based on T 509/07.

The revised Guidelines for Examination continue stating that, irrespective of whether the feature related to the presenting of information falls within the “what” or “how” sub-categories, the mere fact that mental activities are involved would not necessarily qualify the subject-matter non-technical, which is based on T 643/00. For example, the user may evaluate the present information in order to locate and objectively recognize a desired information. This mental evaluation may be considered an intermediate step steering a subsequent process and may therefore form an integral part of the solution to a technical problem. In particular, if the GUI provides a mechanism for inputting a selection which would not be possible if the information was not presented in the claimed particular manner, then a technical effect would be present. On the other hand, if the choice or layout of information presented is exclusively aimed at the human mind, in particular to help the user to take a non-technical decision, such as which product to buy based on a diagram showing properties of products, then no technical contribution would be made.

Conclusions

The EPO takes a revised view on “presentation of information” and “user interfaces” in the current version of the Guidelines for Examination. When assessing inventive step of a claim which comprises a feature in which cognitive information is conveyed to a user via a GUI, in the EPO’s view it has to be analysed whether the GUI, together with the content presented or the manner of presentation, credibly assists the user in performing a technical task by means of a continued and / or guided human-machine interaction process, which is related to “why” or “for what purpose” that information is presented. The revised Guidelines for Examination state that such a technical effect would be considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature.

If the cognitive content of the information presented to the user relates to an internal state prevailing in a system and enables the user to properly operate this technical system, it has a technical effect. It appears that, in line with partly older but hitherto accepted decisions, the mere presentation of such an internal status prevailing in a technical system may in principle still be considered technical, but with a lower probability of success. It is therefore advisable to not only include features in an application related to the mere presentation of an internal state prevailing in a technical system, but to also include features related to an interaction between a user and a GUI, such that the combination of the presented information and the interaction with the user credibly assists the user in properly operating the underlying technical system.

As suspected in our earlier analysis in the December 2016 Bulletin, the more recent decisions of the Boards of Appeal 3.5.05 indicate a further tightening of the criteria applied by the EPO that cognitive information conveyed to a user must fulfil in order to be treated as a technical feature and relevant for the assessment of the inventive step.

Overview: The German case law on standard-essential patents after Huawei ./. ZTE

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Standard-essential patents controlling the access to key technologies have been the subject of debate for several years. In the landmark decision Huawei vs. ZTE, the European Court of Justice (ECJ) established criteria regarding the enforcement of such standard-essential patents. In the case law of the lower German courts, it now becomes apparent how these criteria will be applied in practice.

Standards play a key role in modern technologies such as telecommunication, as they enable the widespread use of such technologies. Patents on mandatory parts of a standard, so-called standard-essential patents, are a double-edged issue. On the one hand, most key technologies are not possible without innovation and investment in research and development and thus inconceivable without patent protection. On the other hand, such patents can prevent the desired and intended widespread use of the technology and especially block the creation of new and innovative products using this technology.

It has not only been the German courts, but also courts worldwide which have been concerned with this conflict, in particular in the field of telecommunication. In terms of economy, users of the technology, being dependent on licences on standard-essential patents, have a weak bargaining position in licence negotiations, particularly if large portfolios are involved. If an agreement cannot be reached, they run the risk of patent enforcement and, consequently, of being excluded from the market before long. On the other hand, certain players in the market have developed a behaviour pattern of consistently ignoring patents, expecting that the patent proprietor cannot or will not enforce his rights, at least not in the short term. Legally speaking, this leads to the question as to when a patent proprietor abuses his market-dominant position by enforcing a standard-essential patent and when he is merely pursuing his legitimate interests.

Considering this situation, the European Court of Justice (ECJ) decided in its decision C-170 / 13 (European Court of Justice C-170 / 13 – Huawei Technologies Co. Ltd ./. ZTE Corp. et al., decision of July 16, 2015, OJ C. 302, 2, German version corrected with decision of December 15, 2015) that the proprietor of a patent essential to a standard established by a standardisation body, which has given an irrevocable undertaking to that body to grant a licence to third parties on fair, reasonable and non-discriminatory (‘FRAND’) terms, does not abuse its dominant position by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products,

  • if, prior to bringing that action,
    • it has, first, notified the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been allegedly infringed,
    • and, second, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and
  • where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics

Following the decision by the ECJ, the German lower courts have dealt several times with the question of how these criteria are to be applied, in particular in cases where a lawsuit was already pending before the decision by the ECJ was handed down. There appears to be widespread agreement that the ECJ decision is effective ex tunc and that the criteria of the ECJ are to be retroactively applied to those cases which were already pending at the time of the decision (Court of Appeal Karlsruhe 6 U 55 / 16, decision of May 31, 2016, No. 25, Court of Appeal Düsseldorf 15 U 66 / 15, decision of November 17, 2016, No. 4). This immediately raises the question of whether the notice of infringement, which was required by the ECJ, but not required under German case law so far can be considered to have already taken place by virtue of the complaint or whether this notice can still be made in a pending lawsuit. The 15th Civil Division of the Court of Appeal Düsseldorf and the 6th Civil Division of the Court of Appeal Karlsruhe are – with different reasons – of the preliminary opinion, that this should be possible. The Court of Appeal Düsseldorf holds that an omission of the obligations of the plaintiff cannot lead to a final loss of rights, and the words “prior to bringing the action” in the ECJ decision are not necessarily to be taken literally (Court of Appeal Düsseldorf 15 U 36 / 16, decision of May 9, 2016, No. 36 und 37, more decidedly in 15 U 66 / 15, decision of November 17, 2016, No. 9), whereas the Court of Appeal Karlsruhe distinguished between the questions of an abuse by bringing a lawsuit and of an abuse by continuing the lawsuit (Court of Appeal Karlsruhe 6 U 55 / 16, decision of May 31, 2016, No. 27). In contrast, the 7th Civil Division of the District Court Mannheim is of the opinion that the intention and the purpose of the ECJ decision is to make sure that the negotiations with a party willing to take a licence take place without the pressure of a pending lawsuit and, accordingly, the licence offer has to happen prior to taking the matter to court (Court of Appeal Mannheim 7 O 209 / 15, decision of July 1, 2016, No. 119, 7 O 19 / 16, decision of November 17, 2016, No. 86). In this context it should be noted that in the corrected German version of its decision the ECJ made it clear that both the notice of infringement and the licence offer by the plaintiff are to take place prior to bringing the action.

The question when an offer meets to the FRAND criteria and how this can be evaluated in civil proceedings has gained particular relevance. The Court of Appeal Düsseldorf already decided at the beginning of last year (Court of Appeal Düsseldorf 15 U 65 / 15, decision of January 13, 2016) that the obligations of the defendant set out in the ECJ decision only apply if the patent proprietor has previously fulfilled his obligations. Accordingly, it is irrelevant whether the offer of a defendant willing to take a licence meets the FRAND criteria, if it cannot be found that a licence at FRAND terms was offered by the patent proprietor. The Court of Appeal Karlsruhe essentially agreed (Court of Appeal Karlsruhe 6 U 55 / 16, decision of May 31, 2016) and in particular emphasised that the finding is not sufficient that the offer of the patent proprietor was not evidently contrary to FRAND (as was held in the first instance, see District Court Mannheim 7 O 96 / 14, decision of March 4, 2016). Accordingly, one may ask what the patent proprietor must submit in order to be on the safe side with regard to a possible allegation of abuse.

In a recent guidance order to the parties (Court of Appeal Düsseldorf 15 U 66 / 15 Sisvel vs. Haier, Guidance Order of November 17, 2016), the 15th Civil Division of the Court of Appeal Düsseldorf has put forward its preliminary viewpoint on this issue in detail.

It emphasises once more that the principles of the Huawei ./. ZTE decision only apply if the patent proprietor has a market-dominant position. This has to be proven by the defendant. The court also assumes that a FRAND declaration submitted to the standardization body will only be submitted in case of a market-dominant position and only applies in this case.

The court did not make high demands on the notice of infringement. It is sufficient if the patent number and the specific act the defendant is accused of are specified.

Similarly, in order to establish the willingness of the defendant to take a licence, it is sufficient if he declares that he wishes to take a licence at FRAND conditions. Much stricter requirements apply for a finding that the defendant in reality does not intend to take a license and only pro forma professes the contrary. The non-willingness to take a license can only be assumed, if one can conclude from the behaviour of the defendant to a serious and final refusal to take a licence.

In contrast, the court placed high demands on the offer to licence by the plaintiff and on the information he has to provide. In this regard, the court is of the opinion that it should not only be assessed whether the offer contains all the terms normally included in a licence in the sector in question and that the offer is evidently not contrary to FRAND. Rather, it has to be established to the satisfaction of the court that the licence offer indeed meets the FRAND criteria and, in particular, that the patent proprietor has offered the potential licensee a licence at conditions comparable to other licensees, or, in case of unequal treatment, that there are good reasons for such unequal treatment. The patent proprietor has to make concrete submissions on all factors which have an impact on the offered licence fee and based on which it can be assessed that the offer in question is neither discriminating nor exploitive.

To this end, according to the preliminary viewpoint of the court, details on the nature and scope of previous licensing activities must be submitted, if the defendant disputes in a substantiated manner that the conditions offered to him meet the FRAND criteria. Especially, in this case at least the significant existing licensees are to be named as well as the conditions which were agreed with them, possibly under an order of confidentiality of the court. If the offer is compared to other licence programmes, it must be explained that – and why – the portfolio of the patent proprietor / plaintiff is comparable to the portfolios of said other licence programmes both in terms of quality and scope.

When offering a portfolio licence, it has to be set out in detail that the patents of the portfolio are actually used by the defendant, e.g. by means of claim charts. If a list of representative patents (so-called proud list) is presented, it has to be clearly explained why these patents were selected. In case the IP portfolio in certain countries is different from that in others and a uniform licence fee is proposed for all countries, it must be submitted in a substantiated matter that such a provision is common in freely negotiated licencing agreements or is in line with the FRAND criteria for other reasons. A revision clause (which is open for both parties) needs to be included in the offered licensing agreement in order to account for any changes in the IP portfolio. Likewise, the court requires a revision clause preventing that the user of the patent(s) will be excessively burdened in case of further legitimate licence demands.

Conclusion

Generally, one has to bear in mind that the case law and the legal discussions on the implications of the Huawei ./. ZTE decision are still developing and no final conclusions have been reached. The aforementioned decisions of the Courts of Appeal Düsseldorf and Karlsruhe were made during the course of execution proceedings or by way of a guidance order and do not prejudice the respective final decisions. Subsequently to the above-mentioned guidance order the Court of Appeal Düsseldorf has meanwhile rendered a final decision denying an injunction to the plaintiff (Court of Appeal Düsseldorf 15 U 66 / 15 Sisvel vs. Haier, decision of March 30, 2017), the reasons of which are not yet public, but otherwise no final decisions by an appeal court have been reported. A decision of the German Federal Court of Justice (Bundesgerichtshof) is not to be expected for some years.

Nevertheless and with all due reservations, it would seem that a paradigm change is emerging. There seems to be widespread agreement that the ECJ decision has not only established a catalogue of formalities which, if applicable, have to be worked off in the infringement proceedings, but that the criteria established by the ECJ imply requirements as to the content both of the plaintiff’s licence offer and of the submissions in the infringement proceedings, which makes higher demands on the plaintiff and ultimately shifts the burden of proof compared to the status quo ante. Whereas it was previously up to the defendant to prove that the offer of the patent proprietor evidently does not meet the FRAND criteria, it is now, as a rule, up to the plaintiff to prove that his offer is neither exploitative nor discriminatory. In this regard the issue is not whether the licence fee which was requested by the patent proprietor is adequate from an economic point of view (The resolution of this issue by a court is regularly considered as problematic, see District Court Mannheim 7 O 66 / 15, decision of January 29, 2016, No. 55). Rather, the court will make a legal assessment of the offer by the plaintiff, especially under aspects of antitrust law, whether it can be considered fair and in particular non-discriminatory in view of the usual licencing practice within the field of business and the specific licencing practice of the patent proprietor.

If independent information on the usual conditions and conventions in the respective field is not available, the patentee / plaintiff has to make comprehensive submissions on existing licensing agreements and, in consequence, disclose his licencing policy. This is not necessarily in his interest and may also contravene contractual agreements. Thus, some patent proprietors may resort to other jurisdictions or to alternative dispute resolution. The order of confidentiality considered by the Court of Appeal Düsseldorf, in principle offers a framework, still to be worked out in detail by the courts (A concrete order was issued recently by the 2nd Civil Division of the Court of Appeal Düsseldorf, see Court of Appeal Düsseldorf 2 U 31 / 16, decision of January 17, 2017), for discussing confidential issues. It will, however, not be possible to keep information secret from the defendant which is relevant for the decision by the court. This is not only a direct consequence of the constitutional right to be heard. For reasons of fairness one has to grant the defendant the right to information which is not available to him and which allow him, independently of the assertions of the patent proprietor, to make his own assessment whether the offer of the plaintiff meets the FRAND criteria.

If it gets generally accepted that the court has to find that the plaintiff’s offer conforms with FRAND in order to grant an injunction or to order a recall of goods, which appears to be the current view of the Court of Appeal Düsseldorf, a further difficulty will arise for the plaintiff. Namely, he needs to explain to the court in a comprehensible way why his offer is fair and non-discriminatory. If he does not succeed in doing so, his claim to an injunction will be rejected. The fact that licensing agreements are frequently difficult to compare and such comparison may sometimes be impossible without involving an expert, works to his disadvantage. This can make the enforcement of the claim to an injunction more difficult and sometimes even impossible.

The trend of the German courts is currently going towards a more generous handling of the formal requirements, but also towards a thorough review of the substance of the case. This is to be welcomed in the interests of both sides. It, however, remains to be seen whether the far-reaching requirements which the Court of Appeal Düsseldorf has now established will be maintained in future decisions. In any case, however, patent proprietors pursuing a transparent licencing policy will be at an advantage, especially if their licensing policy can be explained in a consistent and coherent manner.

 

Go German Patents! – Special rules allowing double patenting and parallel enforcement for the Unitary Patent System and national patents in Germany

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With the rise of the Unitary Patent Court (UPC) and the Unitary Patent – a single European Patent for the European Union – the German implementing regulations of international patent law were recently amended. If the UPC system will come into force at the end of 2017 or at the beginning of 2018, the new German patent system will offer new strategic options for patent proprietors to protect and enforce their patent rights in Europe and Germany in parallel.

In Germany, the relationship between the German Patent Act (Patentgesetz, PatG) and the European Patent Convention (EPC), the Patent Cooperation Treaty (PCT), and (then) also the Unitary Patent System (UP) is controlled by the „Gesetz über internationale Patentübereinkommen vom 21. Juni 1976 (BGBl. 1976 II S. 649), das zuletzt durch Artikel 19 der Verordnung vom 31. August 2015 (BGBl. I S. 1474) geändert worden ist“ (IntPatÜG).

In preparation of the German ratification of the Unitary Patent Court Agreement (UPCA) – a system for EU wide patent litigation – the UP is implemented into German law by two new bills (see Drucksache 18/11137  and Drucksache 18/8827 ) which recently passed the German Federal Counsel after previously being approved by the parliament. One of the bills will substantially amend the IntPatÜG.

Currently, the IntPatÜG explicitly excludes double protection of the same invention by a German and European Patent of the same priority (Art. II, § 8 IntPatÜG). The German part of the European patent upon expiry of the opposition period or opposition proceedings dominates the granted German national patent, and renders the latter permanently lapsed in scope of the granted European patent.

Regarding enforcement of European patents, the EPC refers to national law (Art. 64(3) EPC). Of note, the German Patent Act further requires to combine infringement proceedings based on the same infringing action(s), if different patents are infringed (§ 145 PatG).

With the Unitary Patent System on the rise, the amendments to the IntPatÜG and the German Patent Act seem to create new and quite interesting strategic options for patentees in Europe and Germany.

According to the new rule double protection of a European patent and a German national patent will be possible if the UPC system comes into force, unless the applicant or proprietor of the European patent has opted out from UPC jurisdiction (Article 83(3) UPCA). If opted-out, the previous rules prohibiting double protection continue to apply. If the German patent application is not yet granted, the exclusion of double protection can be avoided by withdrawal of the opt-out, thus entry into the UPC system with the European patent (“opt-in” – Article 83(4) UPCA).

Thus, if the patentee does not opt out, he has the choice to either enforce his German national patent or his European patent or both (although not against the same defendant). It will therefore become attractive to file both a European patent application and a national German patent application in parallel, for example by entering in parallel the European and national German phase from an international application under the PCT.

Even if patentees intend to initially opt-out their European patents in the first years of the UPC, for example to first observe the operation of the new court system, it may be advantageous to have a parallel German patent application pending. The grant of a German patent application can be efficiently delayed because examination of German patent applications must not be requested up to 7 years after filing. If at a later time the European patentee then decides to opt-in the UPC system with the European patent, a subsequently granted German patent will not fall under the exclusion of double patenting. Having a parallel German patent application pending therefore maintains at least the option for the patentee to have later parallel European and German patents.

Furthermore, new §18 IntPatÜG installs a double litigation estoppel. The defendant of an infringement action based on a German patent granted for an invention, for which the same inventor has already been granted a European or Unitary patent can object to the filing of the infringement action based on the German patent if he has already been sued based on the parallel European / Unitary patent. Just like with the “old” double-protection rules of the German and “classical” European patent, a broader German scope would still be enforceable. According to new §18(2) IntPatÜG the German court may then decide to reject the German lawsuit as inadmissible or to stay the proceedings until conclusion of the UPC proceedings.

A significant change is that a true parallel enforcement is possible in Germany, even if the European or Unitary patent has been lost (and this actually relates to one of the main threats of the Unitary System for a patentee), the proprietor of the German patent will still be able to enforce the patent in Germany. Moreover, the estoppel objection only applies in regard to the same parties, i.e. not for proprietor and licensee. A strawman could be contrary to good faith.

Importantly, the above rules do not apply to preliminary injunction proceedings. If the Unitary System would be slow or not patentee friendly, the parallel German patent could be used in Germany as a quick relieve of infringement situations, e.g. against generic competitors. Therefore, parallel German and UPC enforcement is possible for interim proceedings.

Interestingly, §16 IntPatÜG regulates that Unitary patents are like national patents when it comes to compulsory licenses, which in turn will only be effective in Germany.

In summary, if the Unitary Patent System will come into force, it seems strongly advisable to consider filing both European and parallel German national patents, in particular since the costs for a national German patent – when compared with the size and importance of the German market in the EU – are comparatively low.

Recall obligation always part of injunctive relief?

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In a recent unfair competition case, the Federal Supreme Court (BGH) ruled that injunctive relief prohibiting product distribution and / or advertisement may also implicate an obligation to actively recall these products from customers or other third parties.

On 29 September 2016, in a case where off-the-shelf products created a continued disturbance, the BGH ruled that the obligation to cease and desist includes the obligation a recall obligation, to the extent possible and reasonable, when necessary to eliminate the continued disturbance.

Plaintiff had obtained an injunction based on unfair competition law (UWG, German Act against unfair competition) against the marketing and distribution of alcoholic beverages using the signs “RESCUE DROPS” and / or “RESCUE NIGHT SPRAY”. The Appeal Court and the BGH, however, found that the Defendant failed to comply with the injunction by not recalling products that had been sold to retailers – primarily pharmacies.

Literally, a cease and desist order does not include a recall obligation. In view of the BGH it is however irrelevant for the interpretation of the cease and desist order whether the Plaintiff is entitled to a respective recall claim or not. With reference to and in continuation of inter alia the Hot Sox decision (court reference I ZR 109 / 14), the BGH held that a cease and desist order usually includes a recall obligation concerning the products already delivered to eliminate the continued disturbance. As a result, any future cease and desist order in Germany includes a recall obligation to the extent reasonable and necessary.

By that decision, the BGH actually abolishes the difference between the right to claim for disposal and the right to claim for cease and desist which is intended by the provision of Section 8(1) UWG. To resolve this inconsistency, the BGH consequently transferred the principle of proportionality which is essentially only applicable to the disposal claim and the cease and desist claim.

Previously, when there was a continued disturbance, German courts were split on whether injunctive relief was terminated when an infringement action had been terminated. Thus, the recent clarification of the BGH is very welcome. The decision follows the trend in recent case law to impose additional obligations on infringers. For example, in 2015, the Appeal Court of Dusseldorf ruled that a defendant who had made infringing acts on the internet (advertising), was not only required to delete the content and make sure it could not be found on popular search engines, but also required to ensure that the disputable advertising was deleted from the cache of popular search engines, (cf. Appeal Court of Dusseldorf, judgment of 3 September 2015, ref. I-15 U 119 / 14)

Practical Note

Going forward, the following rule will apply: If the unfair distribution and / or the unfair advertising of a product has been prohibited, the infringer must, to a reasonable extent, recall products that have been distributed to customers to ensure those products are not further distributed.

Now, the infringer not only has to take affirmative actions to cease and desist, including but not limited to recalling products while bearing its cost, but also has to disclose its respective injunction to customers and third parties involved in the distribution chain, which can damage the infringer’s image on the relevant market. We recommend a thorough documentation of everything that has been done to fulfill the recall obligation, such as deleting the cache on popular search engines, in order to have presentable evidence in case the plaintiff files an application for an administrative fine or an enforcement action of a contractual penalty.

Additionally, the extent to which the above-mentioned recall obligation applies to the corresponding claims for injunctive relief in German trade mark and copyright law is unclear. The respective recall provisions and their specific requirements risk circumvention as they are based on the implementation of the Enforcement Directive into German law.

The German Federal Supreme Court rules on World of Warcraft

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Computer games are becoming more and more important, not only in everyday life but also in legal theory. The German Federal Supreme Court (BGH) has now issued a decision on the online game World of Warcraft (I ZR 25 / 15 – World of Warcraft I). In this decision, the Court addressed questions regarding the interaction between software copyright, copyright contract law and general contract law.

The decision is to be interpreted against the background of the SAS decision of the Court of Justice of the European Union (C-406 / 10 – SAS Institute Inc./ World Programming Ltd), as well as the Half Life decision of the Federal Supreme Court (BGH, MMR 2010, 771 – Half Life 2) and the series of decisions regarding so-called used software (the UsedSoft cases) (C-128 / 11 – UsedSoft / Oracle; BGH, GRUR 2011, 418 – Used Soft; BGH, GRUR 2014, 264 – Used Soft II; BGH, GRUR 2015, 772 – Used Soft III). Finally, Germany has a robust law with regard to general terms and conditions which has to be interwoven into this set of legal questions and which has a significant impact on the dogmas of copyright contract law.

The issue in dispute addressed in this decision relates to typical online games, in addition to the game Diablo (one of the most well-known) and the computer game World of Warcraft. Such games sometimes achieve more revenue than a Hollywood film. As with all computer games, they comprise – in addition to the software controlling the game – what the Federal Supreme Court has termed game data, i.e. graphics, music and text, but also – as expressed by the Federal Supreme Court – “film sequences” and “models”. These types of games are always operated with so-called EULAs (end user licence agreements). In the case in question, the EULA for the computer game World of Warcraft contains the phrases that rights of use granted would be “revocable” and “not transferable” and also an express ban on pursuing a commercial purpose with the game. The EULA for the computer game Diablo also contained an express ban on the use of so-called bots. Bots are themselves computer programs; their purpose is to enable automation with which the player can further develop his game character simply and without time-consuming and – as the Federal Supreme Court puts it – “playfully charming” actions. They are widely distributed in online games. In the case at issue, the defendant operated bots of this kind.

The only issue in dispute was the unauthorised duplication of the computer games. The claims before the Federal Supreme Court only concerned copyright law. Claims of a contractual nature had in the meantime been referred to another court.

In accordance with the implementation of representative action and with regard to issues of the abuse of legal rights due to various other pending proceedings, which are not of interest here, the Federal Supreme Court first addressed an important topic in practice, the definition of the writ of summons in disputes regarding computer programs and other technical subjects. The Federal Supreme Court emphasised that a writ of summons is only adequately defined within the meaning of § 253 of the German Code of Civil Procedure if it uses general terms to describe the action to be prohibited. Nevertheless, it is a prerequisite that the meaning of the terms used not be in doubt, with the result that the scope of the claim and decision is certain (I ZR 25 / 15, marginal number 29 – World of Warcraft I). This aspect of jurisprudence, which up to now has fundamentally applied to questions of competition law, can now also be used in copyright law, as designations such as the name of the software and (also in detail) a restriction “for commercial purposes” are adequately defined within the meaning of the case law of the Federal Supreme Court (I ZR 25 / 15, marginal number 30ff. – World of Warcraft I).

After this procedural recital, the Federal Supreme Court next addressed the object of protection in the dispute, namely the computer game. It is at this point that we already start to see the unanswered questions that the decision generates. The Federal Supreme Court started its discussion regarding the object of protection by saying that it is talking about the “client software” for the online games “World of Warcraft” and “Diablo 3”. It then goes on to state that this software consists of not only a computer program, but also of audiovisual game data. Even this formulation is imprecise as it is not the client software that consists of a computer program and game data, rather the computer game itself consists of the computer program controlling it and the game data that enables the game result. It is true that the Federal Supreme Court differentiates between the components of a computer game, i.e. the text and the music among other things, and argues that these components can be protected by copyright “or participate in the originality of the overall work and enjoy copyright protection together with the latter” (I ZR 25 / 15, marginal number 34 – World of Warcraft I with reference to CJEU, C-355 / 12, marginal note 23 – Nintendo / PC-Box and 9net and BGH, GRUR 2013, 1035, marginal note 20 – Videogame / Consoles I amongst others). Unfortunately, however, the Federal Supreme Court does not continue with this statement. Although it recognises that a computer game represents an overall whole unit consisting of several components relevant under copyright law, it does not address the question as to whether separate complete work protection applies to this overall whole unit or whether each of the parts enjoys individual protection. This would have been important to clarify the question as to whether the separate respective copyright standards apply for each of these components of the overall whole or whether – as supported by Bullinger and the authors – one must decide on certain issues under copyright law and one cannot cumulatively use all the feasible applicable copyright law standards (Bullinger /Czychowski, GRUR 2011, 19, 22–24). It is too simplistic for the Federal Supreme Court to refer in this respect to the CJEU’s Nintendo decision; this had not recognised the importance of the question and is not immediately relevant in this case (I ZR 25 / 15, marginal number 34 – World of Warcraft I with reference to CJEU, C-355 / 12, marginal note 23 – Nintendo / PC-Box and 9net).

The fact that the Federal Supreme Court is not consistent in this respect is also evident from its arguments with respect to the intrusions into the rights of the computer game manufacturer. It identifies the latter as duplication rights and does not quote either § 16 or § 69c (1) of the UrhG (German Copyright Act), but instead talks about a “duplication of the client software” in accordance with §§ 69c (1), 15 (1), of the UrhG (I ZR 25 / 15, marginal number 36 – World of Warcraft I). It therefore cumulatively uses general rights of use under copyright law with the special duplication right for computer programs, without differentiating which right is to be applied to which component of the computer game.

The Federal Supreme Court quite rightly makes clear in this context that the mere display on the screen of works contained in the client software does not represent independent duplication, which is completely in line with existing case law up to this point and with overwhelming opinion in the literature (I ZR 25 / 15, marginal number 38 – World of Warcraft I).

A dogmatic but fully correct position is then taken by the Federal Supreme Court as to whether there is a justification for the manufacture of automation software and the use thereof, if not in the licence agreement (cf. under Clause 3 in this respect), then from § 69d (3) of the UrhG. It outlines the scope of § 69d (3) of the UrhG, which has only been the subject of a few decisions, and states that § 69d (3) of the UrhG only covers forms of program analysis that are not connected with an intrusion on the program code (I ZR 25 / 15, marginal number 57 – World of Warcraft I). This can be readily agreed with – in particular the Federal Supreme Court makes clear that invoking § 69d (3) of the UrhG does not require access to the source code and certainly does not grant this (I ZR 25 / 15, marginal number 61 – World of Warcraft I).

The Federal Supreme Court thus goes so far as permitting duplications via § 69d (3) of the UrhG that go far beyond the actual objective of § 69d (3) of the UrhG, namely to enable interoperability. The Federal Supreme Court compares the current case with the CJEU case SAS Institute (I ZR 25 / 15, marginal number 61 – World of Warcraft I). In this case, the CJEU determined that functionalities of computer programs cannot be part of protection under copyright law. The Federal Supreme Court applies this idea: not only is the development of alternative software permitted, but also the development of additional software. This goes a long way, but appears to be correct according to the provisions of the Software Directive. These can be clearly recognised in recitals 10 and 15, to the effect that it wants to promote the interoperability and interaction between independently created computer programs. Even though the Federal Supreme Court does not mention this, the argument must be accepted.

The Federal Supreme Court also takes from this decision that, in the current case, the manufacture of automation bots in accordance with § 69d (3) of the UrhG would actually be permissible even though commercial use had been banned under the licence agreement (as general terms and conditions, although not included) (I ZR 25 / 15, marginal number 63 – World of Warcraft I). It is clear at this point that the plaintiff has achieved a pyrrhic victory, as the Federal Supreme Court is basically of the opinion that the development of bots in accordance with § 69d (3) of the UrhG is permissible – a very broad view.

This article was first published on the Kluwer Copyright Blog.

CJEU Filmspeler: Landmark ruling on streaming and preparatory acts to copyright infringements

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CJEU Filmspeler is a ground-breaking copyright decision in many ways. By qualifying the distribution of technical devices (intended to make streaming of copyright infringing content possible) as a making available of works to the public, the CJEU has once again shown that it interprets exploitation rights broadly and from an economical point of view. Furthermore, the CJEU has clarified that streaming on structurally copyright infringing websites is a copyright infringement itself. CJEU Filmspeler is a good decision for rights holders and could even become a game-changer with respect to enforcement of copyrights.

CJEU Filmspeler (ECLI:EU:C:2017:300, judgment dated 26 April 2017, Case C-527 / 15 – Stichting Brein [Filmspeler]) is a groundbreaking decision in many ways. It concerned the distribution of a multimedia player (sold as “Filmspeler”, Dutch for “film player”) in the Netherlands enabling its users to stream copyright infringing content on their TVs and the question of whether individuals streaming clearly copyright infringing content violates copyright by doing so.

Preparatory acts to copyright infringements can be copyright infringements themselves

First, the CJEU has ruled that the mere distribution of technical devices enabling the user of the technical device to stream copyright infringing content itself violates of the right of making works available to the public. This means that preparatory acts alone can constitute copyright infringement, if they are aimed at enabling copyright infringement. Also, the CJEU has confirmed earlier decisions according to which statutory copyright provisions have to be interpreted broadly and rather from an economic than from a technical or formal point of view to ensure a high level of copyright protection.

Streaming is illegal reproduction and therefore a copyright infringement

Second, the CJEU ruled that streaming of clearly copyright infringing content violates the author’s right of reproduction in his or her respective work. No legal exception for reproduction through streaming applies. By this, the priorly prevailing opinion in Germany considering mere streaming of illegal content to be legal is clearly overruled.

CJEU Filmspeler could have wide-reaching consequences on liability for copyright infringements in general

Furthermore, CJEU Filmspeler could have great influence on the general classification of acts contributing to copyright infringements. The German Federal Supreme Court (BGH) differentiates between perpetrators, (persons who directly perform the infringing act), aiders (persons willfully contributing to the infringing act) and abettors (persons abetting others to commit infringing acts) and “Stoerer” (persons causally contributing to the infringing act without doing this (necessarily) willfully), who unlike perpetrators, aiders and abettors are not liable for damages. This differentiation may be inconsistent with CJEU Filmspeler. It appears that the CJEU considers every person who is willfully (and substantially) contributing to copyright infringing acts to be a perpetrator. It remains to be seen if the German Federal Supreme Court will react to CJEU Filmspeler. Until now, the BGH has been of the opinion that the classification of persons contributing to copyright infringements as perpetrators, aiders, abettors or “Stoerer” is not regulated by EU law and can therefore freely be determined by German courts. However, this opinion seems difficult to reconcile with CJEU Filmspeler.

CJEU Filmspeler could favour website blocking through access providers

Lastly, CJEU Filmspeler may substantially affect future website blocking cases against access providers. So far, the BGH opines that it is unreasonable to require access providers to take any blocking measures if the rights holder cannot prove that he has taken sufficient actions against the operators of the structurally copyright infringing website to be blocked and the hosting provider of that website (BGH, GRUR 2016, 268 n. 82 et seq., – Stoerer-Liability of the Access Provider). This factual subsidiarity requirement of the BGH can (partly) be justified on the grounds that access providers have no contractual relationship to the perpetrators and are therefore “far away” from the infringement. The BGH did not consider copyright infringements by users through streaming in its decision.

Since streaming is a copyright violation (by reproduction) under CJEU Filmspeler, the BGH will now have to consider copyright infringement by users through streaming. This will put access providers much “closer” to infringing copyrights. Furthermore, since access providers are contractual partners of the individuals streaming, they may be infringing copyrights by simply providing internet access. Consequently, the factual subsidiarity requirement of the BGH could fall in cases against access providers or at least be limited to requiring them to prove that sufficient action has been taken to hold the operators of the structurally copyright infringing website liable.

Conclusion

By qualifying the distribution of technical devices (intended to make streaming of copyright infringing content possible) as a making available to the public, the CJEU has again shown that it interprets the making available right broadly from an economical point of view, as opposed to a less technical or formal one. Furthermore, the CJEU has clarified that streaming on structurally copyright infringing websites itself constitutes copyright infringement. Even though the decision gives answers to important questions, it also raises a number of new legal questions. In sum, however, CJEU Filmspeler can be regarded a good decision for rights holders and may even become a game-changer with respect to copyright enforcement.

Reform of copyright contract law enters into force

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On 1 March 2017, the reform of German copyright contract law took effect. The reform brings along new challenges, in particular, new claims to information and accountability as well as new provisions regarding the granting of exclusive rights. Specific changes regarding the remake right are of particular interest for the film industry.<

Why another reform?

The (previous) reform of copyright contract law in 2002 fundamentally revised German copyright law in the interests of strengthening the rights of authors. It introduced the claim for “reasonable remuneration” (§ 32 German Copyright Act, “GCA”) of authors and performing artists. In addition, the instrument of “common remuneration rules” (§ 36 GCA) was created. This has made it possible for associations representing authors and performing artists to establish agreements on appropriate branch specific adequate fees with user-associations.

From the legislature’s viewpoint, the 2002 reform failed to strengthen authors’ rights. In particular, the legislature identified a “disrupted contractual parity” as problematic. As a result, creatives were still required to partly enter into contract terms, wherein they transferred the exclusive rights to a work for an unreasonable one-time payment (“total buy-outs”). In particular, self-employed authors and performing artists lacked the necessary market and negotiating power to actually enforce their right to reasonable remuneration. Consequently, authors and performing artists were receiving unreasonably low remuneration. Against this background, the legislature sought to strengthen the protection of authors and performing artists with the current reform.

It goes without saying that the above mentioned assumptions were highly controversial during the legislative process. Publishers, producers, etc. have repeatedly pointed out that the principle of participation does not necessarily work in the creative’s favor. Authors and performing artists often prefer a (final) one-off payment immediately after they deliver their contribution rather than a participation solution in which they depend on the success or failure of production. It should, however, be noted that the copyright industries were not able to assert their objections in the legislative process.

An overview of the most important changes

The legislative reform entails an increase of legal provisions at the expense of copyright industries. To the extent that the amendments to the law were designed by the legislature as mandatory rules, they can only be waived or attenuated in favor of collective agreements within the meaning of Art. 36 GCA. This entails joint remuneration provisions between associations of creatives and users. Some industries do not have representative associations. The German Federal Court (BGH) recently decided that collective agreements with non-representative associations only have a limited scope (BGH GRUR 2016, 1296 – GVR Tageszeitung III). Thereby the tightened legal rules are not yet alterable by mutual consent in these industries. On the contrary, they are unremittingly obligatory.

New claims to information and accountability – Articles 32d, 32e of the new German Copyright Act (GCA new)

One of the main changes is the introduction of two new claims to information.

The new § 32d GCA new implements an author’s claim to information and accountability against his contractual partner. This extends to the scope of the use of the work and the income derived from it. Accordingly, an author who has licensed or assigned his right to another against payment of a fee can annually request information and accountability on the extent of the use of the work and the income and benefits derived from it.

This request for information applies to all cases of transfers and assignments of rights of use, even in the case of fixed fees. Previously, contractual partners were not required to provide information in case of a fixed remuneration, according to rulings of the German Federal Court.

Corresponding to the wording of the introduced claim, the duty to provide information and accountability refers to such information that is normally already available to the contractual partner “within the scope of the proper course of business”.

The statute provides some exceptions from the duty to provide information. For instance, authors or performing artists will not benefit from the new claim when their contribution to the respective work, production or service was minor (i.e. of “subordinate importance”). According to the statute, a contribution is “subordinate” especially “if it has little influence on the overall impression of a work”. For instance, it is not part of the representative content of a work. According to the grounds of the draft bill (decision of the 6th Committee on Legal Affairs and Consumer Protection), the concept of “subordinated contribution” does not entail a qualitative evaluation. As examples of “subordinate contributions”, the draft mentions a minor text contribution by a journalist or the appearance of extras in a film. The exact criteria of a “subordinate contribution” and when this is exceeded will have to be defined by case law. Another exemption to these claims is established for authors of computer programs (§ 69a (5) GCA new). Referring to the industry’s high demand for employees, the legislature is less worried about the contractual parity between creators and their contractual partners in the software industry than in other creative industries. Finally, the claim to information is precluded if its disclosure would be disproportionate for the contractual partner. This may be the case if the provision of the information appears unacceptable to the contracting party, if there is an opposing legal obligation, if the assertion of the claim is a misuse of rights, or if justified interests in the confidentiality are impaired.

The new claim to information in § 32d GCA new is compulsory in that deviating agreements detrimental to the interests of the author (or performing artist) can only be made within the framework of joint remuneration rules or collective agreements.

According to § 32e GCA new, third parties that substantially determine the exploitation in the licensing chain are also obliged to provide the respective information. An example of this would be broadcasting companies in the case of commissioned productions. The same applies to third parties who enter into the licensing chain in the “bestseller case” of § 32a GCA. Thus, § 32e GCA new widens the scope of those subject to these obligations to include businesses in the licensing chain that have no direct contractual relationship with the author.

Practical Note
Companies must be in a position to annually provide authors and performing artists with the relevant information and account for the extent of their use and their income. It is therefore advisable to review the internal processes for the provision of information (accounting, software, etc.) and, if necessary, to adjust these respectively.

Infringements of joint remuneration rules (§§ 36b, 36c GCA new)

Further amendments concern the instrument of common remuneration rules between associations of authors and associations of users.

Particular mention should be made of § 36b GCA new, which provides injunctive relief for violations of common remuneration rules. Accordingly, associations of authors or users can demand default against companies which do not comply with the applicable common remuneration rules. They start by filing a representative action. This action is not only open to authors’ associations which are parties to corresponding remuneration rules, but also to associations of users and individual users.

The newly created § 36c GCA new regulates the individual contractual penalties in case of an infringement of the common remuneration rules. Under this provision, the author may require his contractual partner to agree to an amendment of the contract by which the user deviates from a common remuneration rule to the detriment of the author. Thus, § 36c GCA new provides for a new claim to adjust a contract when companies deviate from the joint remuneration rules which apply to them.

The right to further exploitation after ten years (§ 40a GCA new)

The newly implemented § 40a GCA new provides the author with the possibility to exploit his work in further ways after the expiration of ten years. This rule applies to authors who have granted an exclusive right of use for a period of more than ten years against a lump sum payment. The right of the first entitled user continues for the remaining duration of use as a non-exclusive license. Therefore, he can continue with the current use but cannot continue such use on an exclusive basis. The original contractual partner must therefore accept and expect that the author can grant a third party a corresponding non-exclusive exploitation right. Thus, as of the 11th year, the exploitation of the work is no longer exclusive.

The new provision also allows contracting parties to agree to extend the exclusive rights to the entire duration of the contract at the earliest after five years. § 40a GCA new is also a compulsory provision. Differing agreements to the detriment of the copyright holder are only permissible in the form of collective remuneration rules or collective agreements.

Nevertheless, § 40a GCA new also contains some exceptions. The right to further use after ten years is not valid if the work in question is “only a subordinate contribution”, a computer program or a work of architecture. § 40a GCA new is also inapplicable to movie rights. Additionally, § 40a GCA new is also inapplicable when an artist gives consent granting rights concerning a work intended as a trademark (or other mark) or design.

Practical Note
A clause stipulating that the work created by the artist is intended to be a trademark (or other mark) or as a design must now be expressly included in contracts with brand designers, logo designers and product designers etc. Otherwise, the exclusivity ends after ten years and the author can otherwise exploit the work in question.

Changes to the remake right (§ 88 GCA new)

The reform also strengthens the position of authors in the area of film remakes. It grants the author the right to have his work re-filmed after ten years. This is a compulsory rule. Deviation is only possible in the form of an agreement based on a common remuneration rule. The new provision makes it impossible to grant unlimited rights to producers. However, it should be pointed out that the provision only refers to “real re-filming”, not to prequels or sequels. Producers can continue to enjoy exclusive rights of use for such subsequent films if the agreement is properly designed.

Remuneration of the performing artist for later known types of use (§ 79b GCA new)

§ 79b GCA new regulates the remuneration of (granted) rights of use for unknown ways of use. It complies with § 32c GCA, so that the performer is entitled to a separate reasonable remuneration if the contractual partner, who acquired the rights to unknown uses, takes up a new kind of use, if such use was unknown at the
time the contract was concluded. If the right of use is transferred to a third party,
the claim of the performing artist shall be subject to a separate reasonable remuneration against the third party as soon as the latter takes up the new type of use.

Entry into force on 1 March 2017

The new copyright contract law in principle only applies to contracts concluded after it went into force, (i.e. after 1 March 2017). Exceptions to this rule apply only for the right of recall due to non-exercise. In that case the new legal situation is applied to the old contracts, but only when circumstances arose one year after the entry into force.

Conclusion

Companies should examine their internal processes, and whether they are able to fulfill the annual claim to information now available to authors and performing artists. In addition, the new right to other exploitation after ten years (§ 40a GCA new) must be taken into account when drafting copyright licensing agreements. Where proper contractual arrangements have been reached, rights of use can be granted exclusively for more than ten years. In particular, an unlimited license, (i.e. unlimited in time), is still possible for works which are to be used as trademarks or for design when such purpose of the license is stated in the license agreement. In sum, the new copyright law brings along a number of challenges for companies using and exploiting copyrights and related rights. These challenges should be manageable by re-evaluating internal processes regarding information and accounting duties and diligently drafting new agreements.

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