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09.01.11

FFII Approached for Opinion on Ill Approach Towards Patents in Europe

Posted in Europe, Patents at 8:04 am by Dr. Roy Schestowitz

Summary: While the patent wars in the United States go out of control, the Swedish Justice Department asks patenting sceptics for some input

THE PATENT bubble is building up in China and in the States. It’s an endless race to amass patents, no matter their quality and thus their validity. Once those patents are brought into the courtroom they receive a pricey reexamination, but only if the defendant can afford it (see the reexamination of Oracle’s patents and the patents of the patent troll who co-founded Microsoft). It is a very silly system where prior art can help invalidate patents that should never have existed in the first place; failing that, triviality tests have proven to be effective at eliminating a lot of patents, including software patents. Why are rubbish patents allowed in the first place? Because the USPTO profits from that. It’s a vanity thing, too.

While all sorts of ‘meta-firms’ (not producers) try to establish a business around the laughing stock called the USPTO, others go further and turn into patent trolls, looking to mooch those who have more money.

Bosson from the FFIIThere is no denying that the US patent system is broken and every day last month we saw at least a couple of articles on the subject. The status quo cannot stand. Nobody supports this system except the monopolists (a tiny minority) and the patent lawyers whom they use like mercenaries.

The founder of the FSF recently warned about a similarly broken system trying to find its way into Europe. Well, the Swedish Justice Department (where the presidency has been instrumental in pushing for the “unitary patent” for years, also based on leaked diplomatic cables) contacted the FFII, which is a good sign. Their consultation with software patents opponents resulted in the public communication shared this morning by Bosson. To quote:

The Swedish Association for a Free Information Infrastructure, FFII, has interest in innovation and growth in software. We are therefore pleased to be consulted on a new patent court.

We are enthusiastic that the European patent system gets more efficient and integrated, but critical to the possibility of the patent court as final instance. For software, it is about the right balance between patent, copyright, access to and ability to manage information. The U.S. Supreme Court has repeatedly held back the U.S. Federal Patent Court in matters of what may be patented. We believe that a general appeals instance would make a more balanced assessment. Today, there are great risks for developers as abstract and theoretical methods are patented despite the boundaries of the European Patent Convention.

Economic research shows that many patents, especially in software, stifle innovation and
growth (1). A more balanced and independent assessment than the union’s own patents are needed to clarify limits (2), reduce costs and provide the individual patents more value.

1 A Generation of Software Patents, Bessen, Boston University

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868979

2. Yttrande i betänkandet ”Patent och innovationer för tillväxt och välfärd” SOU 2006:80

http://www.ffii.se/jonas/sou2006-80/FFII-yttrande.html

We wrote about the Bessen study right after it had been published. Bosson chose Bessen as a primary reference.

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A Single Comment

  1. Michael said,

    September 1, 2011 at 9:22 am

    Gravatar

    First: as someone who is clearly critical of much of your writing, I largely agree with what you say above. The patent system is heavily broken… right now the only way to “win” the game is to play – and playing costs companies a lot of money, in many cases millions of dollars and in some cases billions of dollars. It is simply outrageous.

    You do say:

         Nobody supports this system except the monopolists …

    Presumably you include Microsoft in this. And yet, today, you have another article where you talk about how what you call pro-Microsoft sources are *also* speaking out against the patent system.

    What evidence do you have that any of the companies who are stuck playing these games really like them? Any? Seems it is hurting everyone.

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