05.09.16

European Digital SME Alliance: Unified Patent Court (UPC) “Unconstitutional”, Harms SMEs, Brings Software Patents to Europe, “Should be Based on EU Law and Not on an International Agreement.”

Posted in Europe, Patents at 5:24 am by Dr. Roy Schestowitz

Another TTIP- or TTP-style behind-closed-doors agreement which infuriates those potentially affected (once they actually find out about it)

European Digital SME AllianceSummary: Position paper from a legitimate (not fake) group of SMEs blasts the Unified Patent Court (UPC) for being little more than a conspiracy of powerful businesses and other opportunists to work around the law, misrepresent SMEs, and undermine Directive 2009/24/EC (effectively a ban on software patents)

EARLIER this morning we wrote about the UPC in relation to misleading new propaganda from patent lawyers. The EPO has been lying to everyone, insisting that the UPC is legitimate and that it’s somehow “for SMEs” when the reality is exactly the opposite, as a recent scholarly paper about SMEs served to show. Patent lawyers who play along with the EPO’s propaganda are doing a lot of damage, but then again, remember that it’s “damages” from which they profit. They want patent war. The more, the merrier. As for the EPO, it now pays obscene amounts of money to a PR firm from the US, which in turn pays to organise UPC propaganda events in the US (definitely not for European SMEs). It takes extreme gullibility/ignorance to fail to see what’s happening here.

“It takes extreme gullibility/ignorance to fail to see what’s happening here.”When talking about SMEs we must remember that there are fake (AstroTurfing) lobbying groups of Microsoft, pretending to be fronts of SMEs (e.g. Association for Competitive Technology), but European Digital SME Alliance is not a fake one (members listed at the bottom of the statement below). As the statement states clearly: “The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about.”

The latter is what has been happening for quite some time. We mentioned this. The European Digital SME Alliance is based in Brussels and Benjamin Henrion, who is also based in Brussels (the EPO increases/maintains lobbying presence there), paraphrased [1, 2] the European Digital SME Alliance as saying “An EU wide patent system should be based on EU law and not on an international agreement [...] UPC rules of procedure are illegal, undemocratic, no parliaments, even unconstitutional in DE” (not exact words).

Here is the statement in full, extracted and edited based on the original PDF:

European Digital SME Alliance

4 April 2016

Position Paper on Agreement on a Unified Patent Court

Insufficient legal protection for digital SMEs

The European DIGITAL SME Alliance is concerned that the Agreement on a Unified Patent Court (UPC) will undermine the legal protection of software developers against lawsuits based on possibly invalid software patents.
Under this agreement, companies may be convicted for an alleged patent infringement without first proving whether the patent in question is valid or not.

Threats to digital SMEs

The European software market is loaded with tens of thousands of software-­related patents1. Patents can cover several features in a computer program. For small and medium sized software developers it becomes increasingly difficult to avoid those patents by using alternative means. The existence of software-­‐related patents is per se questionable: software is sufficiently protected directly or indirectly by the copyright law for computer programs under Directive 2009/24/EC.

More in general, the validity of software patents is quite uncertain when looking at the overall patent collection. More than 50 % of all oppositions or nullity procedures against software patents lead to a partial or total revocation of patents2. Thus, there is no basis for trust on the reliability and completeness of the patent granting procedure.

All SMEs in the software sector can be accused of patent infringement and receive an injunction by a court. This poses a constant threat to the companies. The defence against a patent infringement lawsuit is costly and can take years. This situation is worse in countries like Germany, where the proceedings for patent infringement can lead to an injunction even though the lawfulness of the patent in question has not yet been determined. Injunctions
_______________
1 The search for patents in the German Patent and Trademark Office containing the phrase „computer program“ in the patent claims led to 20.278 Hits on 10.11.2015.

2 http://www.epo.org/about-­‐us/annual-­‐reports-­‐statistics/annual-­‐report/2014/statistics/searches.html: In 2014, in opposition procedures at the European Patent Office in 31% of the cases, patents were totally removed and in 38% of the cases at least partially removed


force companies to withdraw their product from the market. Years after such injunction, when the SME has accumulated huge losses, a court may judge invalid the patent in question. Hence, companies that own large patent portfolios can use the threat of patent infringement lawsuit to undermine the competition of SME software developers in the market.

Creating a long-­‐lasting legal uncertainty

According to the Agreement on a Unified Patent Court, when ruling on an alleged patent infringement, the local and regional chambers of the Unified Patent Court will be empowered to decide in their own discretion, whether an objection for nullity of the patent shall be taken into account. The chambers will have different options:

(a) They can decide about a counterclaim for revocation together with the question of patent infringement;
(b) they can suspend the patent infringement process until the nullity proceeding is ruled or
(c) they can decide about a patent infringement without considering the question of nullity.

Thus, the agreement fails to establish a legal precedence for the clarification of the validity of patents. Should the agreement come into force, it would extend the German approach of a conviction without prior clarification of the legal situation to all participating countries. Worryingly, the choice of an international agreement as operational tool will make it very difficult to review the content of the agreement over the next decades, thus worsening the consequences and perpetuating the damage to SMEs in the digital sector.

Unconstitutional rules of procedure

According to the agreement, an administrative committee composed by representatives of the signatory countries will be alone responsible for setting up the rules of procedure of the new Unified Patent Court. The rules of procedure deal with numerous matters of the procedure that concern the procedural rights of the parties.
The definition of this set of rules that regard the basic rights of the parties without democratic legitimation by the parliaments is, for countries like Germany, even unconstitutional.

Fragmentation of legal positions

Croatia, Poland and Spain are not signatories of this agreement.

The requests of the European DIGITAL SME Alliance

Digital SMEs need a European patent system that protects them from the attacks of owners of extensive portfolios often based on unlawful software patents. For small and medium sized software companies it is essential that the patent system prevent the implementation of questionable patents. Thus, the procedural law should ensure a complete examination of the patent, prior to the decision on conviction for an alleged patent infringement. An EU wide patent system should be based on EU law and not on an international agreement.


About the European DIGITAL SME Alliance

The European Digital SME Alliance (former PIN SME) is an association formed in 2007 to represent the interests of Europe’s ICT SME sector. Currently ten national and regional associations are members, representing tens of thousands ICT SME companies in Europe. The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about. It provides a voice for ICT SMEs in the policy and business arenas and is already represented in several EU expert groups and taskforces.

Membership

BASSCOM – Bulgarian Association of Software Companies (BULGARIA), CNA -­‐Comunicazione e Terziario Avanzato, Confederazione Nazionale dell’Artigianato e della Piccola e Media impresa (ITALY), UKITA, United Kingdom IT Association (GREAT BRITAIN), CONETIC – Confederación Española de Empresas de Tecnologias de la Información, Communicaciones y Electrónica (SPAIN), BITMi – Bundesverband IT-­‐Mittelstand (GERMANY), GPNI – Groupement Professionnel National de l’Informatique (FRANCE), it-­‐forum midtjylland (DENMARK), SwissMedia – Swiss IT & Multimedia Association (SWITZERLAND), Belgrade Chamber of Commerce, IT Association (SERBIA), Vojvodina ICT Cluster (SERBIA), STIKK – Kosovo Association of Information and Communication Technology (KOSOVO), Balkan and Black Sea ICT Clusters Network (ALBANIA, BOSNIA AND HERZEGOVINA, BULGARIA, GREECE, MONTENEGRO, ROMANIA, SERBIA, KOSOVO, TURKEY, REPUBLIC OF MACEDONIA, UKRAINE)

The UPC basically mirrors what we find in TPP and TTIP. It’s a corporate attack on democracy itself and it is falsely advertised to the public (if it’s advertised at all). Protests may be needed and more antagonism from those affected is now imperative.

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

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

What Else is New


  1. Techrights Gemini Capsule, Now With Over 35,000 Pages and Files

    Blog posts combined with static (plain text) files are now 36,000+ in number, just for Gemini protocol alone; that number keeps growing as our conversion proceeds and evolves (our software will be released under terms of the AGPLv3)



  2. Eventually, or Hopefully, Many People Will Come Back to What the Web Used to Be (Or Web Alternatives More Like the 'Old' Web)

    With RSS feeds making a comeback and a resurgence of personal blogs we can take back the Web from a cabal of tech/Internet giants and social control media, censored, curated and spied on by oligarchy



  3. If Wikipedia is Controlled by Corporations and Mobs, It Needs to Be 'Cancelled'

    Facts have never truly mattered in social control media sites; it certainly seems as though Wikipedia now suffers the very same issue/deficit, allowing oligarchs and their companies to define what goes on in the world and which people Wikipedia should regard as persona non grata



  4. GNU/Linux Reaffirms Its Status as the Universal and Inter-planetary Operating System

    The operating system made for and by scientists (not business sharks and marketing cults) is winning the battle, and not only in this planet



  5. IRC Proceedings: Wednesday, February 24, 2021

    IRC logs for Wednesday, February 24, 2021



  6. Links 25/2/2021: Kali Linux 2021.1, Wine Launcher 1.4.46, and Google's Security Posing

    Links for the day



  7. Links 24/2/2021: MariaDB 10.5.9, Krita 4.4.3 Beta, and Debuginfod Server for Debian

    Links for the day



  8. Self-Host Your Videos, Take Full Advantage of HTML5 and Video Attributes

    For self-hosting of videos over the World Wide Web (Gemini too can handle videos; its clients/browsers can, for example, link video files/URLs to external media players) it's worth reviewing the full set of features made available by the standards because a lot can be accomplished without JavaScript and without unnecessary bloat/complexity



  9. Trying Out NoiseTorch to Reduce Background Sound/Noise in GNU/Linux

    An introduction to noisetorch (or NoiseTorch), an application that helps create virtual microphones/devices with reduced background noise



  10. How the Big Banks and OIN Can Whitewash Software Patents and Do Nothing Concrete About Patent Trolls

    Response to the puff piece entitled "How the Big Banks and OIN Can Lock Out Patent Trolls with Enabled Publications"



  11. IRC Proceedings: Tuesday, February 23, 2021

    IRC logs for Tuesday, February 23, 2021



  12. How to Set Up a Gemini Server of Your Own, Even on a Simple Single-Board Computer

    Using Agate to start one's own Gemini capsule (self-hosted) is a lot simpler than one might be inclined to believe; this is a detailed HOWTO, hoping to encourage more people to join Gemini space, which is fast-growing and free of garbage



  13. Links 23/2/2021: Tails 4.16, Libinput 1.17, Fwupd 1.5.7, Firefox 86, NeoChat 1.1

    Links for the day



  14. The Word Master is Not Problematic in Most Contexts and Its Origin Hasn't a Connection to Slavery

    Slavery is to the word "master" mostly disconnected; it might, however, be closely connected in the minds of racists or the agenda of highly racist corporations (profiting from racism) that look for ways to distract from their racism



  15. On Misapplication, Misuse, Overuse and Abuse of Words (to Suit False Narratives)

    It is looking like the word "abuse" has been extended to basically mean all sorts of things including the act of actually exposing real abuse



  16. The Administrative Council Needs to Fix the EPO While It's Still Possible

    EPO staff and former staff (pensioners) aren't happy and the it's the responsibility of the Administrative Council to do something before it's too late (the reputation of the Office is already severely harmed and it's unable/unwilling to recruit suitable and qualified people, both as examiners and managers, respectively)



  17. 'These Questions Remain Unanswered': Campinos Became Battistelli Just Halfway Through His Term

    The Central Staff Committee of the EPO highlights the grim situation or the deadlock reached after totally dysfunctional Office management somehow managed to kill off channels of communication, in effect going back to where things were back in 2018 under Battistelli



  18. 'The One Percent': Salary Adjustment Procedure (SAP) Supported Only by 1% of EPO Staff

    Out of 2,237 EPO workers who expressed their position on the SAP, which in essence lowers their salary, only 31 expressed support for it (that's 1.385%)



  19. IRC Proceedings: Monday, February 22, 2021

    IRC logs for Monday, February 22, 2021



  20. DDOS Attacks and Decentralisation

    Our server, which is shared among sites, has been under persistent distributed denial of service (DDOS) attacks almost every day in recent weeks, culminating in much worse attacks last night, but we're not too worried anymore



  21. Links 23/2/2021: Gemini (and Gopher) on the Rise Again, Systemd 248 Reaches RC1

    Links for the day



  22. On the Terms Master, Main and Abuse

    Reprinted with permission from Daniel Pocock



  23. Microsoft Inside — Part IV: Microsoft Everywhere, Looking to Poach Developers, Not Disclosing What It Really Wants

    As it turns out, just about everyone looking to recruit for a Microsoft-connected project/company (working on Raspberry Pi, Ubuntu etc.) near Microsoft is 'former' Microsoft, but people who are being approached aren't being told so, at least not upfront; those are very familiar and old tactics, which merit a word of caution to all



  24. Microsoft: We Ain't Done Until Raspberry Pi Won't Run (Anything But Our Proprietary Software With 'Telemetry' Surveillance)

    The ongoing series which we started yesterday and still publish today (about Microsoft recruiters) shows that Microsoft has rather toxic ambitions and the general idea is to infect everything with Microsoft, even the things that compete against Microsoft



  25. Controlling the Conduct of Large Corporations (and Monopolies) Would Help Tackle Disproportionate and Asymmetric Power Structures

    A "CoC" (Code of Conduct) is often crafted or drafted with good intentions; but with enforcement put in the wrong hands it is a tool of corporate oppression instead of protection of people's dignity



  26. Another Reason to Boycott Microsoft/GitHub: The War on Reverse-Engineering

    The high-profile fan-made reverse-engineering efforts are being proactively censored by Microsoft on behalf of another company (without as much as due process), reaffirming the problematic nature of GitHub, a monopoly that represses Free software developers



  27. Links 22/2/2021: Lots More About Linux on Mars, Release of 4MLinux 35.2

    Links for the day



  28. Microsoft Inside — Part III: Microsoft Finds Out That Free Software Developers Don't Want to Work for Microsoft on Microsoft Platforms

    The attempts to poach high-profile Free software and GNU/Linux developers aren't succeeding, especially once it turns out who's really behind those attempts (they don't give it away upfront)



  29. Techrights is Now in Gemini (Having Completed a Two Week-Long Migration) With Over 32,000 Pages in Total

    The site is now mirrored across an alternative to the World Wide Web



  30. Links 22/2/2021: Cherry Pi PC and Release of Xfce Panel Profiles 1.0.13

    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