05.12.09

Gemini version available ♊︎

Software Patents Want to Enter Europe from the Back Door

Posted in Europe, Microsoft, Patents, Ubuntu at 5:41 am by Dr. Roy Schestowitz

Back door

Summary: New signs that attempts are being made to legalise software patent without ever debating the subject

WHEN it comes to software patents, the EPO appears to have already lost its way. There is obviously some friction within, too. Over in the UK we find that Nokia, a true fiend when it comes to software patents in Europe [1, 2], is only making things worse [PDF]. Despite some of the good work it did in the Linux ecosystem, it keeps injecting patentability of software via the United Kingdom, where Canonical is — to its credit — fighting against software patents. Glyn Moody has this new report about Canonical’s amicus curiae brief:

Patent Differences: Canonical vs. Microsoft

I make no apologies for returning to the subject of the European Patent Office’s referral of a “point of law” concerning software patents.

Dull as many might find the intricate theoretical arguments, the outcome will have very real consequences. If software patents become easier to obtain, it will have a hugely negative effect on free software, which will find itself subject to more attacks on the legal front.

Recently I commented on the submissions of Red Hat and the FSFE. The full list of “amicus curiae briefs” can be found here; I’d like to pick out those from two high-profile names for their contrasting positions: Canonical (the company behind Ubuntu) and Microsoft.

Canonical’s offering is very similar in tone to that of Red Hat: it’s very matter of fact, written in a highly-accessible language that makes its points simply but effectively.

The Microsoft-sponsored Czech presidency carries on pushing for a sort of “globalisation” of patents (at a limited scale), which would probably legalise software patents. Digital Majority has just found this report.

Czechs call for unity on patent legislation

[..]

Diplomats say that, because of its potential to turn into an international agreement, the draft litigation system needs to be checked by the ECJ to determine whether it is in line with the EU’s treaties. National experts will meet tomorrow (8 May) to discuss the exact questions to be put to the ECJ. Supporters of the system hope that sending the draft to the ECJ will spur talks on finalising the text. Unresolved issues in the Council of Ministers include French concerns that the system would not use the ECJ as its court of final instance, German concerns that it will work less effectively than its own national patent litigation system and Spanish worries over the proposed language regime.

There is more. Here is a new cross-border intervention of patents.

By limiting copyright restoration, the ruling might prevent the US from fulfilling its obligations under the Berne Convention and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Trade-Related Aspects of Intellectual Property Rights were also specified in the draft of ACTA [1, 2]. With all this unification (or “harmonisation” as Charles McCreevy attempted to call it), it’s clear that there is considerable risk of software patents entering Europe without any proper, explicit debate on the matter. The following alarming press release from FFII says a lot more.


European Commission pushes for software patents via a trusted court

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.”

Background

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.

The Court of Justice of the European Communities would only “rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, [...] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community.” The UPLS itself would not be a “institution of the Community” (the EPO is not either) and thus not fall under ECJ jurisdiction.

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.”

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. IRC Proceedings: Saturday, November 27, 2021

    IRC logs for Saturday, November 27, 2021



  2. Links 27/11/2021: Nvidia’s DLSS Hype and Why GNU/Linux Matters

    Links for the day



  3. [Meme] Linus Gabriel Sebastian Takes GNU/Linux for a (Tail)'Spin'

    If you’re trying to prove that GNU/Linux is NOT Windows, then “haha! Well done…”



  4. GNU/Linux is for Freedom and It'll Gain Many Users When (or Where) People Understand What Software (or Computing) Freedom Means

    Software that respects people's freedom (and by extension privacy as well) is an alluring proposition; those who choose to try GNU/Linux for the wrong reasons are likely the wrong target audience for advocates



  5. Amid Reports of Microsoft's Competition Crimes in Europe...

    European companies are complaining, but they seem to overlook the principal aspect of an imperialistic system with bottomless pockets (almost 30 trillion dollars in debt already; US national debt soared again last month); Microsoft is shielded by a political system with military (“defence”) as bailout budget to help cushion international expansion for data grab and technical leverage, as we've seen in the case of EPO (this is all political, not technical, and should thus be treated as a political/corruption issue)



  6. Is Linus Trolling the GNU/Linux Community?

    This new video responds to what many sites have been provoked into amplifying



  7. Links 27/11/2021: Tux Paint 0.9.27 and SeaMonkey 1.1.19 in EasyOS

    Links for the day



  8. [Meme] Keeping Our Distance From Microsoft

    The OSI is the dagger, the Linux Foundation is the knife, and many others are the sword by which Microsoft tries to get into the very heart of GNU/Linux and extinguish the Free software movement



  9. Microsoft Edge Encourages Indebted Americans to Guilt-spend Just in Time for Christmas

    Guest post by Ryan, reprinted with permission



  10. IRC Proceedings: Friday, November 26, 2021

    IRC logs for Friday, November 26, 2021



  11. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  12. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  13. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  14. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  15. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  16. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  17. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021



  18. Links 25/11/2021: PHP 8.1.0 Released and Linux 5.15.5

    Links for the day



  19. IBM as Master of Hypocrisy

    Free software projects and Free software developers have long been humiliated by corporations of Western misogynists, falsely claiming that the Free software community isn’t inclusive enough (these are shameless projection tactics; as a matter of public record, the exact opposite is true) and even the eradication of supposedly offensive language isn’t something IBM takes seriously



  20. Links 25/11/2021: LibreOffice 7.2.3 and Mesa 21.2.6 Released

    Links for the day



  21. [Meme] So Desperate That Edge Cannot Even Exceed 4% That They Block Rival Web Browsers

    Linux/Android/Free Software/GNU (they go by very many names/brands) may continue to grow to the point where Windows is as irrelevant as Blackberry; this means that Microsoft’s grip on the Web too has slipped — to the point where Microsoft frantically uses 'bailout' money to hijack LinkedIn, GitHub, etc. (it also rebrands almost everything as "Azure" or clown to fake a perception of growth)



  22. Windows Vista Service Pack 11 (Vista 11) Has Failed to Curb the Growth of GNU/Linux

    Windows market share continues to decrease in spite of billions of dollars spent bribing the media for fake hype, especially in light of a new Windows Service Pack (SP), Vista SP 11



  23. Links 25/11/2021: Proton 6.3-8 and Linux Mint Compared to Ubuntu

    Links for the day



  24. 3.5 Years Later the 'Master' of Fedora is Still Microsoft and IBM Cannot Be Bothered to Alter Git Branch Names (Refuting or Ignoring Its Very Own Directive About Supposedly Racially-Insensitive Terms)

    Today we demonstrate the hypocrisy of IBM; years after telling us that we should shun the term "master" and repeatedly insisting it had a racist connotation at least 65 Fedora repositories, still controlled by Microsoft, still use "master"



  25. Changing the Arrangement While News is a Bit Slow(er)

    I've made it easier for myself to keep abreast of things like IRC channels and networks (incidentally, a day ago Freenode reopened to anonymous logins) and I've improved monitoring of the Web sites, Gemini capsule etc. (this video is unplanned and improvised)



  26. Links 24/11/2021: Alpine Linux 3.15 and Endless OS 4.0 Released

    Links for the day



  27. [Meme] Jimmy Zemlin Loves Microsoft

    It’s funny, isn’t it? Lying for a living and sucking up to the liars pays off; you get to plunder actual Linux users while leaving Linux morally and financially bankrupt



  28. Links 24/11/2021: PHP Foundation and Flatpak Criticisms

    Links for the day



  29. IRC Proceedings: Tuesday, November 23, 2021

    IRC logs for Tuesday, November 23, 2021



  30. Links 24/11/2021: Rust Crisis and Team UPC Still Faking 'Progress'

    Links for the day


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