[Discussioni] [bh a udev.org: European Commission pushes for software patents via a trusted court]

Mar 12 Maggio 2009 13:07:49 CEST

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Date: Tue, 12 May 2009 11:32:04 +0200
From: Benjamin Henrion <bh a udev.org>
Subject: European Commission pushes for software patents via a trusted court
To: it-parl a ffii.org

PRESS RELEASE -- [ Europe / Economy / Innovation ]

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  European Commission pushes for software patents via a trusted court
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Brussels, 12 May 2009 -- The European Commission is pushing for software
patents via a centralised trusted patent court that would be created
with the United Patent Litigation System (UPLS), an international treaty
that would remove national courts. This court system would be shielded
against any review by the European Court of Justice (ECJ). Thus patent
judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of
Ministers will request a legal opinion to the ECJ about potential
conflicts of the UPLS with the EU treaties. The current draft mentions
that the ultimate power to interpret patent law will rest with
hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information
Infrastructure (FFII) predicted this already in 2007: "I don't think EU
joining European Patent Convention (EPC) would automatically mean that
ECJ can intervene on substantive patent law questions. If there is a ECJ
above the European Patent Judiciary (EPJ), then probably only for very
special questions relating to areas outside patent law, such as EU
treaties, and it would not be accessible to the litigating parties but
only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation
working group, says: "A central patent court forbidding any petition
right for review to the ECJ means the patent court has the last word
over software patents. The Agreement is drafted in a way to avoid the
ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry
Association, says: "Given the U.S. experience with the Court of Appeals
for the Federal Circuit and the many areas where the Supreme Court has
recently stepped in to provide balance, it is clear that the European
Court of Justice needs to be able to oversee the evolution of patent
law. Otherwise, there is constant danger that a self-interested patent
community will successfully press to expand the scope, volume, and power
of the patent system."

The UPLS carries the risk that specialized patent courts will have the
last word for important questions such as limits of patentability. This
is typically what happens in Germany where the Senates of the Federal
Patent Court should refer basic questions to the Supreme Court but do
not do this.

Benjamin Henrion concludes: "This specialized patent court will be
shielded against external intervention and won't be an EU institution.
Those patent judges want to have the last word over European patent
law."

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Background
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The proposed United Patent Litigation System (UPLS) is an international
treaty which is heavily inspired by the now defunct European Patent
Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the
software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that
the validation of software patents goes via central caselaw: "We must
moreover continue to attempt to harmonise the practise of granting
patents for computer-implemented inventions at the European level. This
is to be attempted by a common European patent court system (EPLA) in
which the member states can voluntarily participate. Thereby a unified
procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software
patents and substantive patent law. The centralised patent court won't
be an EU institution.

On the other side of the Atlantic, specialized patent courts in the
United States (CAFC) have watered down the patentability requirements,
allowing software patents, business method patents and lowered the
threshold for patent quality. The poster child of the lowering quality
is the Dembiczak case, where the specialized patent court allowed a
patent over a plastic bag with a pumpkin drawing. The Supreme Court
judges overturned the patent, heavily criticising the obviousness
threshold of the specialized patent court: "This is gobbledygook. It
really is, it's irrational. It's worse than meaningless."

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Links
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* Council: European And Community Patents Court Draft Agreement
  http://register.consilium.europa.eu/pdf/en/09/st07/st07928.en09.pdf
* European Commission: Recommendation to the Council to authorise the
  Commission to open negotiations on a Unified Patent Litigation System
  http://ec.europa.eu/internal_market/indprop/docs/patent/recommendation_sec09-330_en.pdf
* European Commission: Next steps for creation of unified patent litigation
  system
  http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/460&format=HTML&aged=0&language=EN&guiLanguage=en
* FFII EPLA WG: Hartmut Pilch's 2007 vision on EU-EPLA and software patents
  http://epla.ffii.org/forum/t-154963/hartmut-pilch-s-2007-vision-on-eu-epla-and-software-patents
* SSLUG: TBA -> EBA EPC 112!
  http://www.sslug.dk/emailarkiv/patentdirektiv/2002_05/msg00038.html
* Forexpros: EU takes key step towards bloc-wide patent system
  http://www.forexpros.com/news/financial-news/eu-takes-key-step-towards-bloc-wide-patent-system-38827
* FFII: Single EU patent law good for US giants, bad for small EU firms
  http://press.ffii.org/Press_releases/Single_EU_patent_law_good_for_US_giants,_bad_for_small_EU_firms
* NoSoftwarePatents.com: Round 3
  http://www.nosoftwarepatents.com/en/m/round3/index.html
* Eupaco2: John Duffy: Optimal Centralization in Patent Institutions
  http://eupaco.wdfiles.com/local--files/eupaco2/John%20Duffy.pdf
* StopSoftwarePatents: "Council seeks to legalise software patents with the
  Community Patent" says French expert
  http://stopsoftwarepatents.org/forum/t-129596/council-seeks-to-legalise-software-patents-with-the-community-patent-says-french-expert
* BMWI: Patente auf computerimplementierte Erfindungen
  http://www.bmwi.de/Dateien/Patentserver/PDF/patente-auf-computerimplementierte-erfindungen,property=pdf,bereich=bmwi,sprache=de,rwb=true.pdf
* FFII EPLA WG: The EPLA plan for software patents
  http://epla.ffii.org/
* EuropeanVoice: Czechs call for unity on patent legislation
  http://www.europeanvoice.com/article/imported/czechs-call-for-unity-on-patent-legislation/64820.aspx
* Permanent link to this press release:
  http://press.ffii.org/Press_releases/European_Commission_pushes_for_software_patents_via_a_trusted_court

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Contact
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Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
bhenrion a ffii.org
(French/English)

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About the FFII
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The FFII is a not-for-profit association active in over fifty countries,
dedicated to the development of information goods for the public benefit,
based on copyright, free competition, and open standards. More than 1000
members, 3,500 companies and 100,000 supporters have entrusted the FFII to act
as their voice in public policy questions concerning exclusion rights in data
processing.

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