EU update

This is the latest edition of Baker & McKenzie's column on developments in EU law relating to IP, IT and telecommunications. This article summarises recent developments that are considered important for practitioners, students and academics in a wide range of information technology, e-commerce, telecommunications and intellectual property areas. It cannot be exhaustive but intends to address the important points. This is a hard copy reference guide, but links to outside websites are included where possible. No responsibility is assumed for the accuracy of information contained in these links     

The “process” of patenting: Why should we care about a potential U.S. Supreme Court decision in Bilski v. Doll?

In Bilski v. Doll, the U.S. Supreme Court is called to define one of the categories of patent-eligible subject matter, “process” patents. In 2008, the Court of Appeals for the Federal Circuit held that the category has a narrow meaning, and that to be eligible for a process patent under 35 U.S.C. § 101, the invention must involve a machine or apparatus or involve a transformation to a different state or thing, ultimately rejecting the patent application as unpatentable subject matter. The patent applicants have asked the U.S. Supreme Court to determine two issues: first, the meaning of “process” in 35 U.S.C. § 101 and whether the lower court properly relied on a “machine-or-transformation” test, and second, the test's potential conflict with 35 U.S.C. § 273, which provides protection for “method[s] of doing or conducting business.” The Court's decision could change the way that research and business are done, and patent protection for such investments. Parts 1 and 2 of this article address Bilski directly and what is and is not in dispute. Part 3 addresses the “machine-or-transformation” test, while Parts 4 and 5 address reasons not to adopt such a test.     

Automated consent through privacy agents: Legal requirements and technical architecture

The changes imposed by new information technologies, especially pervasive computing and the Internet, require a deep reflection on the fundamental values underlying privacy and the best way to achieve their protection. The explicit consent of the data subject, which is a cornerstone of most data protection regulations, is a typical example of requirement which is very difficult to put into practice in the new world of “pervasive computing” where many data communications necessarily occur without the users' notice. In this paper, we argue that an architecture based on “Privacy Agents” can make privacy rights protection more effective, provided however that this architecture meets a number of legal requirements to ensure the validity of consent delivered through such Privacy Agents. We first present a legal analysis of consent considering successively (1) its nature; (2) its essential features (qualities and defects) and (3) its formal requirements. Then we draw the lessons of this legal analysis for the design of a valid architecture based on Privacy Agents. To conclude, we suggest an implementation of this architecture proposed in a multidisciplinary project involving lawyers and computer scientists.     

It's not the time they spend, it's what they do: The interaction between delinquent friends and unstructured routine activity on delinquency : Findings from two countries

This study examines whether having delinquent friends interacts with other peer-related variables in the explanation of adolescent offending. We hypothesise that the relationship between delinquent friends and offending might be conditioned by the effect of (1) how much time they spend with their friends, (2) how much time they spend in unstructured routine activities and (3) their emotional relationship with their friends. To test these three hypotheses we use data from two independent samples of young adolescents in Halmstad, Sweden (N = 1,003) and in Cologne and Freiburg, Germany (N = 955). The results found strong support that the effect of delinquent friends on adolescent offending is conditional on the level of time they spend in unstructured routine activities. This indicates that delinquent friends have a stronger effect on offending for adolescents who often spend their free time in unstructured routine activities.     

Privacy regulations on biometrics in Australia

This paper aims to provide an analysis of the current regulatory environment, at the federal level, of privacy protection concerning biometrics in Australia. The study only focuses on the federal Privacy Act 1988 (Cth) and the Biometrics Institute Privacy Code. The discussion is based on the legal concerns of the use of biometrics, and an analysis is made concerning the implications of privacy protection sources.     

AIDS fatalities in Hamburg (status: February 1985)--legal medicine aspects

The registration of patients with acquired immune deficiency syndrome (AIDS) and AIDS deaths is centralized for medical research. A short review of the epidemiological state of AIDS in Hamburg is given (situation as of February 1985), and the autopsy results of seven postmortem examinations are referred to. Kaposi's sarcoma was seen in four patients and opportunistic infections in all cases, especially as a result of Pneumocystis carinii and cytomegalovirus. Due to the constellation of groups with an increased risk of acquiring AIDS--homosexual males, intravenous drug abusers and prostitutes--forensic implications have to be expected.     

Civil Litigation, Access to Government-Held Information, and Coordination of Public and Private Enforcement in the Czech Republic

To correct the historical suppression of environmental information under communist rule, the Czech Republic has instituted several new laws granting citizen access to government-held information. This access should facilitate civil litigation by providing evidence in court for establishing causality in a country where practically everyone feels the effects of broad and severe environmental degradation. However, poor de facto citizen access and citizens'; traditional distrust of information severely limits litigation activity. Similarly, this paper examines the joint use of a privately-initiated ex post liability policy (i.e., tort litigation) and a state-initiated ex post liability policy (i.e., penalties). In particular, it explores a potential exchange of information between a government enforcer and plaintiffs, where the government enforcer provides information on the causality of harm to plaintiffs and plaintiffs provide information on the level of harm to the government enforcer. With more accurate information on both causality and damages, the joint use of state and private enforcement should lead to more efficient outcomes. This paper finds great potential for such improvement given the limited use of privately-provided information on harm and poor de facto access to government-provided information on environmental matters.