Based on the definition of electronic money under Article 1(3)(a) the EMI Directive, PayPal is not an electronic money institution (EMI) and neither does its account-based system amount to electronic money. It must be remembered that PayPal does not actually issue money (aka values) upon receipt of funds. It simply acts as an intermediary between the seller and the buyer whereby through its account-based service/system the buyer is able to make payment while the seller receives payment. If PayPal service were done off-line, the service will be closer to the money remittance service provided by Western Union rather than those provided by e-cash product of Mondex. What PayPal does is, once it receives an instruction from the buyer to credit the amount of ₤100 to the account of the seller, PayPal takes the value of ₤100 from the bank or credit card account of the buyer and places it in the PayPal account of the seller (which the seller can then move to his or her real world bank or credit card account). Clearly, PayPal does not issue electronic values as a replacement of or in exchange for money (aka values) contained in the buyer’s bank or credit card account. What it does is simply take a value from the buyer’s bank account and place an equal value into the seller’s bank account. There is no electronic money to speak of since PayPal services merely permits the transfer of value/money from one bank account to another. In a sense, the PayPal service is a payment service or a souped up wire transfer or money remittance service – it merely facilitates the transfer of money from one person to another. Absolutely no electronic money was issued by PayPal to facilitate this transfer of funds – just a clever online account-based system.
The author is a postgraduate law student at the University of Edinburgh. This article was originally written for a class in Information Technology Law.
Is there an international patent system?
November 4, 2009 in Commentaries, Intellectual property law | Leave a comment
There is an international patent system only to the extent that certain minimum substantive patent standards are found in international conventions like the TRIPS Agreement and the Paris Convention that are required to be contained in the respective national laws of signatory or member states, and there are international conventions (e.g., PCT, EPC and OAPI) that establish procedures permitting a patent applicant to seek patent protection in more than one state through more or less a single application. The national treatment principle of the Paris Convention and the TRIPS Agreement, the single international application of the PCT, the EPC’s pan-European bundle of national patents, the coordinated efforts of the JPO, USPTO and EPO are some factors that contributed to the existence of an international patent regime where a patent holders rights may be protected in more than one country. However, while there is a semblance of an international patent system, this system cannot produce a truly unitary, international patent that is valid and enforceable throughout the world. Like trademarks, patents are in general territorial in nature, and a work will only be protected if a patent over the work is applied for and granted in a state. Even the patent rights issued by the EPO is not a single pan-European patent right but a mere bundle of national rights that ultimately springs from the relevant national laws of the member states. In addition to being territorial in nature, the international patent system is similar to the international trademark system in that there exists for both systems a simplified procedural for applying for a grant of rights – the PCT for patents and the Madrid Protocol for trademarks. On the whole, the PCT works like the Madrid Protocol: there is a single international application; the focus is on adopting procedures rather than substantive IP rules; rights of an application can be effective in more than one state; there are language requirements; and, it is a national entity or court in each jurisdiction that ultimately determines or decides whether the patent/trademark is protected under the respective national law. One difference between the international patent and trademark system is that morality is a primary consideration for patent protection – this is generally not so for trademark.
The author was a postgraduate law student at the University of Edinburgh. This post was originally written for a class in International Intellectual Property Law.