11.29.11

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‘Pulling an ACTA’ to Legalise Software Patents in Europe

Posted in Europe, Patents at 3:29 pm by Dr. Roy Schestowitz

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Summary: Secretly and without honour for the rule of law, politicians and lawyers (sometimes the same thing) are bringing software patents into Europe, via the back door

NOW that Linux/Android devices come under embargo attacks by the ‘patents army’ in Germany, we must take the patent question very seriously. In Germany we are told that the Green Party (not the Pirate Party which takes funds from software patents supporters) is taking action against software patents.

Germany has a lot of impact over the EPO and via Glyn Moody we discover that “Coming To Plates In Europe [are] Patented Vegetables, Produced By Conventional Breeding” — the same thing that Germans protested against in the streets some years ago. “The European Patent Organization (EPO) is a strange entity. Despite its name,” explains Masnick, “it has nothing to do with the European Union. Instead, it was set up on the basis of the 1973 European Patent Convention to grant patents under that Convention.

“But things are getting worse as British patent lawyers quietly try to overhaul the patent the system in Europe, tilting it further in their advantage.”“As an independent body whose only reason for existing is to oversee the issue of patents, it has a natural tendency to widen their reach. One of the most hotly-contested areas where that is happening is software patents, which are not granted in Europe “as such” (you can imagine what fun the lawyers have with those two words).”

But things are getting worse as British patent lawyers quietly try to overhaul the patent the system in Europe, tilting it further in their advantage. The only article we have found about it says:

An Anglo-German tug of war is developing over the site of a new European patents court that could generate hundreds of millions of pounds of business for UK lawyers and scientists.

The Chartered Institute of Patent Attorneys (Cipa) has written to the prime minister and will on Tuesday lobby the government’s intellectual property office for the European patents court to be established in London.

Germany has proposed that Munich, where the EU’s patent office is already located, should become home to the court that will adjudicate in disputes over ownership of industrial designs and inventions.

Glyn Moody, who recently mentioned Lehne (politicians who at the same time serves a lawyers’ firm, mushrooming a conflict of interest), also wrote about the latest patent scandal:

It’s those last points that are particularly worrying. The European Patent Office has nothing to do with the European Union, and is essentially a completely independent body. Worse, it’s entire raison d’être is to issue patents, and so it is only natural that it will want to issue more of them, and in more fields. Its rulings have already pushed software patents closer to acceptance, and there can be little doubt that the unitary patent will make software patents the norm throughout Europe.

This is a disaster waiting to happen, and already we are seeing the political machine swing into action to make sure that it does happen. That such an important change in the European patent system should be decided by a few people behind closed doors is an utter outrage, and symptomatic of the deeply dysfunctional approach that is routinely adopted.

The only way we can hope to change this culture is by protesting about it whenever we encounter it until the politicians realise that even if we can’t see what they are doing in secret, we do at least know they have something to hide.

This oughn’t escape the attention of the European Commission as not only does the above illustrate democracy fracturing (a form of corruption) but it is also the invitation of more patent wars of greater magnitude. Given that the EU can see the negative effects of patent wars, it musn’t stay idle. To quote: “A funny thing has happened to patent law in the 21st century. Instead of protecting intellectual property rights, patents have been hijacked by rich companies to take control of a market — and the problem is particularly acute in the mobile space.
“Reuters reported last week that the EU is beginning to think companies are using patents unfairly to harass market rivals.”

There is more on that in a new article which says:

In recent times, an increasingly competitive and litigious smartphone industry has spawned a patent arms race, and the need for participants to bulk up their proprietary patent portfolios.

Specifically, an eruption of patent lawsuits has occurred between almost every major developer of smartphone hardware and software in the industry. In many respects, companies are buying insurance against future legal action, injunctions, etc.

Early in 2011, a consortium led by Apple and Microsoft paid an astounding $4.5 billion for more than 6,000 patents owned by the now defunct Nortel Networks.

For anyone without a calculator handy, that equates to roughly $750,000 per Nortel patent. To put the intensity of competition for Nortel’s patents into context, Google opened the bidding at just $900 million (Nortel’s creditors will be happy), and was ultimately shut out completely.

Not to be without a dance partner, Google recently purchased Motorola and its 17,000 patents for $12.5 billion in cash, as well as a thousand or so patents from IBM for an undisclosed sum. This may work to put a lid on the patent race/bidding frenzy in the near term, because Google was really the one driving it.

Mark Shuttleworth said that “The Whole Patent System Is A Sham” (going by the headline from Muktware). To quote: “Mark Shuttleworth, the charismatic founder of Ubuntu, slammed the patent system as broken. He also said that Microsoft’s biggest mistake was to think that they could use patents against competition and wasted most of a decade.”

Ubuntu is based in the UK, so the patent question matters a lot and the EU needs to turn away software patents. Over in the US, we still see new examples of patents on compression, games, and just about everything someone can explain in words. Regarding compression, Canonical already pays a patent tax on it. To quote that latter example: “Full Tilt Poker’s unique “Rush Poker” innovation, which allows a pool of players to play quickly and to continuously be rushed to a new table upon folding their cards at their previous table, is a concept that is neither exclusive nor patentable, according to Per Hildebrand, chairman and vice president of sales at InstaDeal Poker Network.”

Of course this is not novel, but when systems permit any digitised equivalent of real-life processes to become a patent, there’s chaos. This chaos is profitable for lawyers and it hurts small companies the most.

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A Single Comment

  1. Michael said,

    November 29, 2011 at 10:36 pm

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    It would be great if the US and the EU got together and overhauled their patent systems to roughly match. They would not, of course, be exactly the same but if they were similar then companies that sell to both markets would have consistent rules to follow.

    And where the US takes things too far, the EU can balance that and help make things more sane for everyone. I do not pretend to think it would come to an idea solution but it almost surely would be better than what we have now.

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