Bonum Certa Men Certa

The Question of Software Patents without Democracy

European Union



The question of software patents without democracy and the FFII response



IN October 2008, the President of the European Patent Office (EPO) issued a Referral to its Enlarged Board of Appeal (EBoA) concerning the questions as to the examination and granting of software patents in Europe. In the absence of European legislative initiatives, the EBoA's conclusion on this matter is likely to have the same effect as a software patent directive.



“In the absence of European legislative initiatives, the EBoA's conclusion on this matter is likely to have the same effect as a software patent directive.”However, since this decision will be based on a purely legal interpretation of the European Patent Convention (EPC) by the EBoA, it will not be accompanied by more extensive political and economic debate.

As stated by the EPO, third parties may wish to use the opportunity to file written statements before the end of April.

The FFII would like to ask you to consider writing a statement in the name of your company, organisation or as private person, and if possible also to support the action plan of the FFII (see below).

You can see statements already submitted by others.

The FFII offers a dedicated mailing list for discussions on the referral and a petition page against software patents.

With an action plan, the FFII are funding two experts to work full-time on the issue and also produce detailed documentation about software patents in Europe, to be published in the near future. They need your contribution in order to do this. Please consider making a donation, marking it as 'EBoA Referral'.

International bank data:

IBAN: DE78701500000031112097 BIC: SSKMDEMM Country: Germany Name: FFII e.V. Address: Blutenburgstr 17, DE 80636 Muenchen

Germany bank data:

Name: FFII e.V. Account: 31112097 Sort code (BLZ): 70150000

For using Paypal, see http://ffii.org/Donations

Background information



At present there is no central jurisdiction for European or community patents. National court decisions are still not fully aligned with the European Patent Office's (EPO) granting policy concerning software patents that has been developed by decisions of the EPO Boards of Appeal. The disparity between national patent enforcement courts and the EPO's granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed. This directive, as well as the 2000 attempt to change the European Patent Convention, was rejected not least because of the larger FFII network's activities.

“The disparity between national patent enforcement courts and the EPO's granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed.”Despite the fact that several attempts to formally legalise software patents in Europe proved unsuccessful, the EPO still has not adapted to the developments in the political arena. The EPO still grants software patents under the application of loopholes created by its Boards of Appeal decisions.

The EPO's granting practice gradually gains more acceptance in national courts thanks to a trickle down effect, while the legal certainty of national software patents remains to be determined. Validity rulings and opposition mostly reject questionable software patents out of novelty and inventive step considerations, but not on grounds of the substantive scope of patent law.

On October 22, 2008 the Enlarged Board of Appeal was asked by the President of the European Patent Office, Alison Brimelow (UK), for an opinion concerning the exclusion of computer programs as such according to Article 112(1)b EPC. She highlights that this matter is of fundamental importance as it defines the limits of patentability in the field of computing. The Referral is divided into four chapters. The first chapter describes the background to the Referral, the second chapter concerns definitions of auxiliary terms such as software, while part three includes four questions about substantive law interpretation. Part four describes the legal framework and options for its development. The President also added background information and an overview of BoA decisions related to this specific matter.

The FFII has a wiki page where comments on the questions can be added.

The EPO Enlarged Board of Appeal decided to allow third parties to make statements concerning the points of law (November 11, 2008). The FFII will provide legal considerations which challenge the controversial Boards of Appeal decisions and thus influence the decision-making process. In the absence of legislative clarifications, some courts in the UK recently accepted EPO 'case law'. The opinion of the Extended Boards of Appeal will create the precedent for all future legislative developments. As there is no legislative scenario in sight which might overrule the EBoA in case it permits software patents, this particular Referral needs the FFII's attention. Other parties interested in software patents are going to submit comments in favour of software patents. Philips, in fact, has already done so.

FFII's action plan



The FFII will submit entries to the Enlarged Board of Appeal in order to bring about a more balanced assessment, and to help the EBoA arrive at legal solutions that are closer to their expectations. The communication targets are patent technocrats with a different belief system to which others need to adapt. So far, FFII members have concluded that several different strategies can be applied. They have discussed these extensively with patent experts. For strategic reasons they cannot make them public, suffice it to say that they are currently in the process of finding collaborators in the FFII's attempt to stop software patents.

Challenge





Conferences



The following conferences - among others which are not public - will be or have already been attended by some FFII members.

Current Policy Issues in the Governance of the European Patent System Venue: European Parliament, Rue Wiertz 60, Room Anna Lindt, P1A002, Brussels B-1047, BELGIUM 17 March 2009 Alison Brimelow : Closing remarks http://www.europarl.europa.eu/stoa/events/workshop/20090317/programme_en.pdf

WIPO - STANDING COMMITTEE ON THE LAW OF PATENTS Geneva, March 23 to 27, 2009

The future of intellectual property Creativity and innovation in the digital era April 23rd -24th, 2009, Committee of the Regions, Brussels

Making IPR work for SMEs 27th of April 2009, Brussels http://ec.europa.eu/enterprise/enterprise_policy/industry/ipr_conference.htm

Patinnova April 28th-30th, Prague Alison Brimelow opening it. Workshop on patents and software http://www.epo.org/about-us/events/epf2009.html

Measuring the value of IPR: theory, business practice and public policy September 24-25, 2009, Bologna Sponsored by the EPO. Alison Brimelow has been invited. http://www.epip.eu/conferences/epip04/

How to support the FFII



The FFII is divided in working groups and it welcomes new active people in these working groups which are listed at https://action.ffii.org

If you consider the FFII's work important but you are not able to help actively, you can become a passive sustaining member of the FFII, starting at 15 EUR per year.

How to contact the FFII



FFII e.V. Blutenburgstr. 17 80636 Munich Germany

https://www.ffii.org

office@ffii.org

Tel. +49 30 417 22 597 Fax: +49 30 417 22 597 IRC: #ffii @ irc.freenode.net Blogs: http://planet.ffii.org/

Tax number: 143 / 843 / 17600 at the German tax office in Munich. IBAN: DE78701500000031112097, SWIFT/BIC: SSKMDEMM Registered organisation in Munich, Amtsgericht Munchen VR 16460 Board: Benjamin Henrion, Rene Mages, Ivan Villanueva, Andre Rebentisch, Alex Macfie

Comments

Recent Techrights' Posts

Links 06/07/2025: Climate Change and "The Right to Criticise"
Links for the day
The Mainstream Media Took 4 Days to Realise Microsoft Shut Down Its Operations in Pakistan and Fired Everybody
We estimate that Microsoft has had about 29,000 layoffs since January
“Twibel” Actions Against Comedians (and Why It's a Truly Low Blow)
they try to make up in quantities for a lack of merit or quality
 
For the Second Time, Bryan Lunduke From Microsoft is Siccing Racist Trolls and Vandals at Me
You're only reinforcing the point we made yesterday
Links 06/07/2025: End to End Encryption at Risk, Reuters Twitter ("X") Account Withheld in India
Links for the day
Gemini Links 06/07/2025: Tinylog and Certification Rotation
Links for the day
PCLinuxOS Sites Coming Back, Gradually
let's just be patient
Social Control Media, Even If Based on Free Software, Still Has Many Problems
a distraction from what actually mattered and still matters
IBM is Not Your Master
IBM makes friends with people who exclude the majority of the population: women
Help Fund the Free Software Foundation (FSF)
If you have some dollars to spare, go support the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 05, 2025
IRC logs for Saturday, July 05, 2025
A Short History of Attacks on Techrights (and Boycott Novell Before That)
good opportunity to tell again the story of several (not all) attempts to silence us
Leadership in Free Software
Don't let IBM lead. It's a terrible flag bearer.
Linux Foundation Apparently Flirting With Slop (Marketing by LLM-Generated SPAM)
The Web is in a really bad state!
COVID-19 Sped Up Site Improvements in Techrights
A few months later we created our very own IRC network
Gemini Links 05/07/2025: Negative Questions and 'Touching Grass' (Going Outside)
Links for the day
Links 05/07/2025: Dalai Lama Succession as 90th Birthday Approaches, 40 deg C in China
Links for the day
Links 05/07/2025: Hungary and US Defecting to Russia, "Google's Hotseat Hypocrisy"
Links for the day
Gemini Links 05/07/2025: 4th of July 2025 and "Zig Roadmap 2026"
Links for the day
How to Combat the Exploitation and Abuse by Microsoft GitHub
Not to mention corruption and crimes against women
Bryan Lunduke is Actually Sending His Audience to Attack People
"[Lunduke] is actually sending his audience to attack people."
Even The Right Wing is Rejecting Bryan Lunduke
no wonder he became so irrelevant and marginal
Microsoft's MSN Helps Microsoft Spread Lies About the Layoffs' Scale (Well Over 25,000 People Laid Off This Year)
There seem to be monopolies on lies and on truth
The Death of X Has Been Greatly Exaggerated (by Compromised Media)
X.Org Server is alive and well
Rewriting Things in Rust
How far would you go?
In 2025 Everything is "AI". Remember Blockchains?
Talk about what companies and things (services, products, software) actually do, not the labels they use
Julian Assange Has Been Free for a Year
Julian Assange and I disagreed on some things
Monopolies and Scalping
Monopolies gravitate towards price hikes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 04, 2025
IRC logs for Friday, July 04, 2025
Microsoft's August Layoffs Wave: "August is Confirmed for Additional Performance Based Cuts"
"August is confirmed for additional performance based cuts from the recent connects along with additional organizational cuts."
What Microsoft Reputation Laundering (With a Weaponised Law Degree) Looks Like in a Foreign Continent
You would expect this in uncivilised and primitive countries
Slopwatch: LLMs 'Write' Fake or Distorted 'News' About "Linux"
LLM slop disguised as news
Links 04/07/2025: Google Replaces the Web With Slop, "AI Might Kill Us All"
Links for the day
Gemini Links 04/07/2025: Mindfulness and F1
Links for the day
Weeks After Microsoft Bankruptcy in Russia the Company Shuts Down in Pakistan, Too
Last month Windows' share in Pakistan fell to an all-time low
Rob Musial's June 2025 Additions of Malware in Proprietary Software
Via the GNU Web site this week
Links 04/07/2025: Microsoft's H-1B Visa Applications Show Another Crisis Unfolding, Many More Deep Cuts and Shutdowns Revealed, Complete Microsoft Exits
Links for the day
Gemini Links 04/07/2025: A Day To Remember and "Stop Killing Games"
Links for the day
Crime and Corruption at Microsoft GitHub Cannot be Covered Up by SLAPPs in Another Continent
We'll write about this for a long time to come
Slop Videos Are Disappointing Garbage, Nothing New, Just Brute Force up on Display or a Pedestal of Slop
Slop videos aren't a new thing
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 03, 2025
IRC logs for Thursday, July 03, 2025
The War on Local Storage (People Hosting Their Files Locally and Privately)
There's nothing wrong with controlling one's computing
What Digital Independence Means
Independence in the digital realms means abandoning platforms like GitHub, not just rejecting proprietary software
NVidia is a Bubble
they temporarily see fortunes and wrongly assume perpetuity thereof
Fedora Does Not Care About Diversity and Inclusion, It's About Optics (Corporate Image)
any notion of inclusion is superficial and misleading
Don't Buy the Excuses for Microsoft's Mass Layoffs
Back in the 90s, Microsoft bought a lot of companies to get and stay ahead