FFII: EPO seeks to validate software patents without the European Parliament
| From: | Benjamin Henrion <bhenrion-AT-ffii.org> | |
| To: | news-AT-ffii.org | |
| Subject: | [ffii] EPO seeks to validate software patents without the European Parliament | |
| Date: | Tue, 17 Mar 2009 00:58:00 +0100 | |
| Message-ID: | <20090316235800.GA2427@ffii.org> |
PRESS RELEASE -- [ Europe / Economy / Innovation ] ======================================================================= EPO seeks to validate software patents without the European Parliament ======================================================================= Brussels, 17 March 2009 -- At the highest level of the European Patent Office (EPO), the legality of software patents in Europe is about to be tested. The FFII warns that the European Parliament is being bypassed by allowing a decision with EU-wide implications to be made without its involvement or any real debate. The President of the European Patent Office (EPO), Alison Brimelow, has asked the Enlarged Board of Appeal (EBA) to decide on the interpretation of the European Patent Convention (EPC) regarding the exclusion of software from patentability. The EBA is replacing the European Parliament in order to validate software patents EU-wide without the need of a debate. Benjamin Henrion, President of the association, says: "The current plan of the patent lobby is very clear: avoid a new software patent directive, validate the EPO practice via a central patent court, and guide the hand of the courts via a decision of the Enlarged Board of Appeal. They want to avoid the intervention of the European Parliament in substantive patent law." The European Parliament has already criticized the lack of seperation of powers within the EPO in its resolution of March 2000 on human cloning: "Considering that the EPO is an institution acting as judge and party, where the attributions and procedures have to be revised. [...] Demand the revision of rules of function of the EPO in order to guarantee that this institution can publicly justify the accountability in the exercise of its functions [...]." Influancial persons such Alfons Schäfers, german lawyer and President of GRUR, were pointing at the lack of democratic control over the EPO and was calling for a return within the EU legal framework: "The EPO should become part of the European Union, like the OHIM in Alicante. To keep the EPO outside that framework is quite ridiculous at a time when the EU is expanding to the political and historical boundaries of Europe. The EU institutions - especially the European Parliament, must be given the wherewithal to exercise firm democratic control and to frame and implement European patent legislation. That is the only way to overcome the European Parliament's growing suspicion of patent law." Henrion finishes: "What the EPO is doing is taking the place of the Parliament and skip the debate. The objective of this move is to guide the hand of the judges in order to achieve validation of software patents without a new law." Interested parties have up to the last day of April to send their comments to the Enlarged Board of Appeal. ======================================================================= Links ======================================================================= * FFII page about the referral: http://www.ffii.org/EPOReferral * EPO full text for the referral to the EBoA: http://documents.epo.org/projects/babylon/eponet.nsf/0/B8... * EPO announcement of the referral: http://www.epo.org/topics/news/2008/20081024.html * European Parliament resolution on the cloning of human beings: http://www.europarl.europa.eu/comparl/tempcom/genetics/li... * SUEPO: Interview with Alfons Schäfers: http://www.suepo.org/public/ex08004cpe.pdf * Permanent link to this press release: http://press.ffii.org/Press_releases/EPO_seeks_to_validat... ======================================================================= Contact ======================================================================= Benjamin Henrion President of the FFII +32-2-414 84 03 +32-484-566109 bhenrion@ffii.org (French/English) Ivan Villanueva Berlin office +49-160-23 160 13 ivan@ffii.org (Spanish/German/English) ======================================================================= About the FFII ======================================================================= 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 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing. _______________________________________________ FFII Press Releases. (un)subscribe via https://lists.ffii.org/mailman/listinfo/news, or contact media@ffii.org for more information.
Posted Mar 18, 2009 10:35 UTC (Wed)
by k3ninho (subscriber, #50375)
[Link] (8 responses)
In particular, this application is about legislative uniformity, particularly in the UK. Alison Brimelow is a former head of the UK Patent Office. The UK patent community sees this referral as a way to match UK legal standards with those at the EPO.
The UK law is "so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Covention[1], and the Patents Cooperation Treaty have in those territories to which those Conventions apply" (s.130(7) UK Patents Act 1977 as amended). Both UK law and the European Patent Convention state that, for the purposes of the law, the following are not inventions: "discoveries, scientific theory, mathematical methods; ... a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer". UK case law has even stopped looking the UK law when considering whether an application is in one of these excluded classes, and instead follows the European Patent Convention, in line with Section 130(7), as quoted above. Even in this situation, there remains a distance between the practice of UK examiners and EPO examiners (which shrunk after the Symbian dynamic library case last year [2]) and UK courts and EPO General or Technical Boards of Appeal.
The UK patent community hopes that the reference will provide some insight into what 'technical' is taken to mean at the EPO[3], and further insight into where the line is between an abstract algorithm and a concrete product embodying that algorithm. It can't solve the problem that computer-implemented inventions cause to free software, and it can't feasibly remove the risk you might have a software project which, in use, infringes a patent that ostenisbly should not lay claim to a software program.
[1] The Community Patent Convention was an attempt to create a European Community patent process with a unified European patent, rather than the bundle of patents in designated countries that a patent from the EPO provides.
Posted Mar 18, 2009 13:29 UTC (Wed)
by pboddie (guest, #50784)
[Link] (6 responses)
What's "extreme" about pointing out that the people who decide what can and cannot be patented are not accountable in any meaningful sense to the electorate? Consolidating even more power within an unaccountable organisation, which is what various initiatives have tried to do, isn't likely to make the situation any better, either. And it's all very well people using terms like "abstract algorithm" and "concrete product embodying that algorithm", where all but the most desperate of patent advocates claim to reject the patentability of the former, but will quite happily push for the patentability of the latter, disregarding the obvious conflict with existing and adequate protections like copyright. Since patents are all about monopolies, let's rephrase that latter term: a monopoly on the application of an algorithm. There's a huge mistrust of European bureaucracy: organisations like the EPO and the Commission, with their huge democratic deficits, pursuing their own agendas in opposition to what actual practitioners in the body of people they may claim to represent - the electorate - actually want. I don't care about the wants or needs of the "UK patent community" because as far as I am concerned, patents should have nothing to do with my profession. The fact that one might speak of a "patent community" should be worrying in itself, because it sounds like the needs of the tail are more important than the needs of the dog.
Posted Mar 20, 2009 11:21 UTC (Fri)
by k3ninho (subscriber, #50375)
[Link] (5 responses)
Wake up and live in the real business world: patents are tools to control markets and therefore are part of life. One response of patent professionals in the UK is to welcome this referral because it will help bring certainty to UK patent practice, insofar as it should help identify boundaries to patent protection that have a fair protection for the patent holder and a reasonable degree of legal certainty for third parties. Additionally, the lack of accountability of the EPO is still an issue to the point that the creation of a democratically-accountable central place for issuing EU patents, revoking EU patents and litigating infringement would be welcomed by patent attorneys across the EU.
Posted Mar 20, 2009 12:47 UTC (Fri)
by pboddie (guest, #50784)
[Link] (4 responses)
You can drop the condescension. There's no shortage of remarks that can be made about the "business world" if you think any discussion is best served by attempting to ridicule the experiences of other people. Patents are artificial tools to control markets, and although people have to deal with them as "part of life", they by no means have a guaranteed position in all markets, nor should their introduction into new markets be considered as inevitable or justifiable. Sure, I can understand that people want clarity. But where "patent professionals" can live with a decision that goes either way with regard to software patents, the majority of people who actually do the work in the software industry cannot live with the outcome where software is patentable. This surprises me somewhat, since the unaccountability of the EPO has been exploited quite effectively by advocates of extended patentability, but maybe most patent attorneys don't really care about increasing the scope of what can be patented, or maybe they care more about only settling such matters once in a single place. If so, they need to employ more credible spokespeople who actually represent the interests of the majority of their profession's members. However, for all the talk of harmonisation and bringing the EPO within the (somewhat deficient) democratic structures of the EU, the related proposals always seem to involve a bunch of amendments to (or reinterpretations of) accepted practice which would effectively extend patentability to software and other things, conveniently meeting the lobbying objectives of certain interests with large patent portfolios. Hence the reference to corruption, because even if a democratic framework could be applied to the European patent regime, it's likely (given previous experience) that the legislation written to achieve such a thing would be tainted by measures whispered into the ears of friendly figures at the Commission who believe the "patents equal innovation" nonsense. And then there would need to be an uphill struggle to amend or overturn such measures, all in order to make the "letter of the law" reflect the presumed intent. And one is left with the impression that in order to head off a bunch of opportunists, people in the software industry have to waste their own time and money campaigning against something which shouldn't even be under consideration in the first place.
Posted Mar 20, 2009 17:04 UTC (Fri)
by k3ninho (subscriber, #50375)
[Link] (3 responses)
>But where "patent professionals" can live with a decision that goes either way with regard to software patents, the majority of people who actually do the work in the software industry cannot live with the outcome where software is patentable.
Contrary to your suggestion, patent attorneys are parasites who need their supporting businesses to pay them to do the job: if it's bad for software people, then it's bad for attorneys working on software patents (and to be clear, I say that patents for computer programs are granted but I don't believe that patents should be enforceable for computer programs).
I am as skeptical as you about the emergence of a unfettered Europe-wide patent system.
Posted Mar 20, 2009 17:28 UTC (Fri)
by pboddie (guest, #50784)
[Link] (2 responses)
Can you point to any "game-changing developments" employed by start-up companies that were successfully protected by patents? Most of the time, the hard work involved with such a development is in the execution, not thinking up the idea. And ideas shouldn't be patentable, anyway. I thought I was giving quite a clear impression that I actually regard the patent business as parasitic. However, if someone told patent attorneys (and friends) that software isn't patentable, they would probably still find ways of dressing it up to look patentable, so although this might protect software developers, there might still be a threat to solution developers, and the money would presumably keep coming in from anyone willing to pay for such patents. And there are plenty of other domains besides software where the subject matter shouldn't be patentable, either. For software developers, if someone ruins the profession in order to make some money for themselves, it's quite inconvenient to find another line of work. For the patent business, one wonders how inconvenient it is to switch attention to another industry once one has stripped the carcass of the last one that needed "protection" for its innovations.
Posted Mar 21, 2009 16:19 UTC (Sat)
by k3ninho (subscriber, #50375)
[Link] (1 responses)
You've got confused. The patent allows you to stop a competitor from exploiting your development, and thus provides protection from a bigger competitor muscling you out of the market. Examples of game-changing developments whose patents helped their start-up companies become successes include Akamai's content delivery and Google's PageRank (and extensions to Google searches like the 'define:' search method). I cite these examples well aware that growing a business is far more than having a patent -- but having a patent stops the business you have worked to grow from being undercut by competitors who can afford loss-leaders.
Posted Mar 22, 2009 1:47 UTC (Sun)
by pboddie (guest, #50784)
[Link]
I'm aware of the theory, but what's to stop the bigger competitor from threatening you with their patent portfolio, anyway? And PageRank looks like a prime example of something which shouldn't be patentable, although it's interesting to note the patent's origins, suggesting some reasons as to why the subject matter isn't a trade secret, like a lot of other Google technology.
Posted Mar 25, 2009 14:22 UTC (Wed)
by pdundas (guest, #15203)
[Link]
I submit that allowing Europe-wide patentability of obvious or poorly described software (with the appropriate incantations to pretend it's "technical" enough), as is the practice in parts of the EU, would be a disaster for the EU software industry - at a time when industry can ill afford more disasters.
And if the existing mass of bogus and doubtful US troll-patents were admitted, the effects would be worse.
Uniformity is only a good thing if innovation is not uniformly extinguished by US-style patent trolls. It is only the current LACK of uniformity that prevents such trolls from blocking innovation in the EU.
This isn't validation.
[2] Spoiler warning: contains text of patent claims --
http://www.bailii.org/ew/cases/EWHC/Patents/2008/518.html and
http://www.bailii.org/ew/cases/EWCA/Civ/2008/1066.html
[3] On one hand, it seems obvious that 'technical' denotes techniques which are at the bleeding edge or boundary of the state of the art, but legal certainty trumps this and requires a clear definition.
This isn't validation - but it may be corruption.
I'm surprised that FFII responds in such an extreme way.
This isn't validation - but it may be corruption.
This isn't validation - but it may be corruption.
Wake up and live in the real business world:
patents are tools to control markets and therefore are part of life.
One response of patent professionals in the UK is to welcome this referral because it will help bring certainty to UK patent practice, insofar as it should help identify boundaries to patent protection that have a fair protection for the patent holder and a reasonable degree of legal certainty for third parties.
Additionally, the lack of accountability of the EPO is still an issue to the point that the creation of a democratically-accountable central place for issuing EU patents, revoking EU patents and litigating infringement would be welcomed by patent attorneys across the EU.
This isn't validation - but it may be corruption.
This isn't validation - but it may be corruption.
Insofar as patents offer new start-ups a way to keep innovation actually happening, they have to be accepted as a good way to artificially control markets. Imagine the situation where a new start-up had no legal recourse to stop an incumbent from stealing their idea and running them out of the game by force of pre-existing wealth? Where would potentially game-changing developments be used -- except for being hidden away while competition dies and techniological progress stagnates?
Contrary to your suggestion, patent attorneys are parasites who need their supporting businesses to pay them to do the job: if it's bad for software people, then it's bad for attorneys working on software patents (and to be clear, I say that patents for computer programs are granted but I don't believe that patents should be enforceable for computer programs).
This isn't validation - but it may be corruption.
This isn't validation - but it may be corruption.
You've got confused. The patent allows you to stop a competitor from exploiting your development, and thus provides protection from a bigger competitor muscling you out of the market.
Uniformity