EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.06.09

The Question of Software Patents without Democracy

Posted in Europe, Patents at 5:06 am by Dr. Roy Schestowitz

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

  • Recent EPO legal patent literature has done little to challenge or even criticise the teachings of the EPO. Patent scholars from other professions such as political science, economics, etc. are hardly discussed in the legal literature. Patent professionals’ task is not normative legislature, but winning cases and applications. While there has been sustained disagreement with software patents in the field of business, legal literature still hardly reflects this shift.
  • Inside the EPO there is no open debate and employees are bound by strict staff obligations (cmp. Communique 22). The EPO aggressively intervenes in political and scientific debates, while the patent community’s belief system is still largely determined by an unchallenged endorsement of software patents.
  • The EBoA’s members are not necessarily eligible for judicial office, and some of them are merely technically qualified. The EBoA’s lack of independence is a known issue and an EPO reform is underway to make these bodies more independent. Some patent scholars altogether question the legal quality of EBoA reasoning.
  • The political debate over patent law is largely blocked. The fact that no corresponding parliament report was issued in response to an official communication from the Commission about the future of Industrial Property policy testifies to this.
  • Members of the EBoA will probably only accept legal considerations and solutions.
  • The EPO’s dogmatic language is shielded against public criticism and, even for legally trained people, like a net in which one easily gets caught. Its reasoning is often based on logical fallacies and hidden value judgments.
  • Patent law interpretation practice is expansive. In an allegedly unclear situation, the patent community will always argue against exclusion from patentability. It lacks a negative definition of “invention” and a sound basis in legal teaching which could be used to explain why a field is not to be covered by patent law. Patent professionals generally do not understand the economic rationale behind incentive system application, while economists often assume for their model that the patent system has the claimed effects.
  • The EPO and its staff have a strong commercial bias in favour of granting patents and are hardly ever subjected to public scrutiny and control. Patent opposition is less than ideal due to free riding effects and associated risks and transparency gaps (cmp. Guellec07)
  • Complicated institutional conflicts between German and UK patent traditions loom in the background of the Referral. De facto European patent policy and litigation is strongly dominated by UK and Germany stakeholders and traditions.

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

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. Fred Smith said,

    May 6, 2009 at 1:33 am

    Gravatar

    Well the impact of that remains to be seen. For now an informative article on whether software is patentable in US can be found here http://www.patentexpress.com/patent-process-video/can-you-patent-software_71_7.html

What Else is New


  1. Microsoft is Not an Open Source Company But Microsoft Bribed and Took Over Many Open Source Authorities (Rivals' Voice Hijacked)

    Free/Open Source software (FOSS) and GNU/Linux are being taken over by Microsoft moles, bought by Microsoft Corporation, and the collective voice of the alternative to Microsoft and Windows is being muzzled (they tell us they "love" us while they're attacking us and sometimes suing us)



  2. Techrights' Interpretation of Koch v EPO: The EPO's Management Still Attacks Staff Representatives

    The EPO hopes to get its victims (of EPO abuse) to not only foot their own bills but also the EPO's



  3. Understanding Thierry Breton: “Mister Cash” Arrives at France Télécom

    The psychological harassment of the France Télécom workforce led the "suicide wave" after Breton had left France Télécom



  4. The Breton-Battistelli Relationship and Breton Hiding His Employment Record at Rothschild & Cie Banque

    EPO scoundrels such as Battistelli are closer to Breton than most people care to realise; Breton is hiding part of his career ahead of today's grilling



  5. A Lot of EPO Staff on Dutch Land Protested (Despite Abusive Threats From Management) and a Strike is Reportedly Next

    EPO management in Rijswijk tried hard to prevent workers from protesting on their free time (lunch break), reaffirming that same old belief that nothing is changing at the EPO and nothing will change without truly disruptive action



  6. IRC Proceedings: Wednesday, November 13, 2019

    IRC logs for Wednesday, November 13, 2019



  7. Links 13/11/2019: Docker Enterprise Bought, WordPress 5.3, Qt 5.12.6 Released

    Links for the day



  8. Rebranding Malware and Spyware as 'Linux' to Dilute the Brand (and the News)

    Signal-to-noise ratio continues to be reduced, as a lot of "Linux" news has nothing to do with GNU/Linux or even with Free software



  9. Understanding Thierry Breton: In the Beginning...

    Career roundup of Thierry Breton, possibly the next EU Commissioner



  10. Startpage Has Been Delisted, But it Ought to be Blacklisted

    Startpage has just warned its fans (I am a former fan) of what Startpage itself covertly became months back



  11. IRC Proceedings: Tuesday, November 12, 2019

    IRC logs for Tuesday, November 12, 2019



  12. Links 12/11/2019: Plasma 5.17.3, More Intel Defects, Bytecode Alliance

    Links for the day



  13. You've Gotta Go When You've Gotta Go

    How most staff of the European Patent Office (EPO) feels these days



  14. Teaser: Thierry Breton and His Disquieting Past

    "The company attracted notoriety and loathing in the UK for its role in assessing disability benefit eligibility."



  15. EPO and EU: People Behind the Faces

    It’s no secret that the EPO breaks the law and European officials have taken no concrete steps to intervene; to make matters worse, potentially new EPO allies may soon be put in charge of the EU Commission



  16. Maintaining the 'Delete Github' page

    "This list really is a starting point, which can hopefully increase awareness about the issue of concern."



  17. Linux Foundation Picking Money

    The dating standards of the Linux Foundation



  18. Microsoft 'Borrows' the Linux Brand

    With help from the likes of the Linux Foundation Microsoft continues to misuse and ‘dilute’ the Linux brand (and registered trademark)



  19. EPO Corruption Compared to Cocaine Scandals in Antwerp

    Days after the Dutch protest discussion is sort of 'uncorked' regarding EPO corruption (published, as usual, in the form of anonymous comments)



  20. SUEPO Showed That the Media Won't Cover EPO Corruption Until Half the Workers March in the Streets

    What ought to have been a central (if not 'the' central) issue of debate in Europe is still being treated as borderline irrelevant or marginal



  21. Meanwhile in California

    News from California is being spun by Microsoft this week, owing to weak journalism that's more like PR than journalism



  22. Privacy-Centric Services and Even Drupal/Acquia Defect to the Camp of Mass Surveillance

    In search of money [pun intended] companies and services that are supposed to respect their customers and users turn out to be doing the opposite; this merits research and public discussions



  23. IRC Proceedings: Monday, November 11, 2019

    IRC logs for Monday, November 11, 2019



  24. Links 12/11/2019: Sparky 2019.11 Special Editions and Twisted 19.10.0 Released

    Links for the day



  25. Microsoft's Abduction of the Voice of Its Opposition Highlights the Urgency of the Movement/Campaign to Delete GitHub

    Microsoft understands that by entrapping FOSS and GNU/Linux inside proprietary software platforms like GitHub and Azure it can utilise the false perception that it somehow speaks on behalf of both (whilst attacking both)



  26. IRC Proceedings: Sunday, November 10, 2019

    IRC logs for Sunday, November 10, 2019



  27. SUEPO Protests Against Management of the European Patent Office Brought Back Discussions About Corruption

    The atmosphere at the second-largest institution in Europe has long been toxic; now it is becoming a lot more visible again and comments highlight the reasons for the cover-up (gross misuse of billions of euros)



  28. Links 11/11/2019: Linux 5.4 RC7, HandBrake 1.3.0 and Analysis of XFCE

    Links for the day



  29. Links 10/11/2019: digiKam 6.4.0, OpenMandriva Lx 4.1 Alpha and OpenZFS Plans

    Links for the day



  30. Video: Dutch Media on EPO Protest

    The new video added by SUEPO on Saturday in order to show Dutch media coverage of last week's protest in The Hague


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts