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03.01.17

Now is the Time to Sign the Petition Against the Unitary Patent (UPC)

Posted in Europe, Patents at 9:45 am by Dr. Roy Schestowitz

It only takes one minute to sign it and anyone can sign as everyone is affected (not just Brits)

UPC Petition
Direct link to the petition

Summary: With only days left before the UPC is debated in English/British (and maybe Scottish) Parliament it’s important to make public officials aware that there is resistance among those sufficiently informed

THE process of UPC ratification is better understood by us, more so as time goes by (a lot of misinformation keeps coming from Team UPC, which habitually spreads fake news [1, 2, 3, 4, 5]). FFII spoke to political parties yesterday (over the telephone) and gathered information related to the process involved (e.g. whether or not a Parliamentarian vote is required). Not only British individuals and firms can sign; these are still kindly invited to sign this petition “against the ratification of the Unitary Software Patent treaty by the UK and Scotland,” though we mostly rely on political interventions at the moment. Having a petition with many signatures in it would help these interventions.

The petition itself already explains quite clearly what the UPC would accomplish and what it is for, e.g. expanding litigation scope and patent scope. We reproduce it below for those who may be reluctant (or too lazy) to follow the link:

We, the undersigned citizens, IT professionals, and IT companies of United Kingdom and Scotland, are strongly against the ratification of the Unitary Patent. We call on the Government and elected Members of Parliament of UK and Scotland to reject this international agreement for the following reasons:

1. We are worried about the thousands of software patents granted by the European Patent Office (EPO) against the spirit of the European Patent Convention (EPC article 52.2); The proposed Unitary Patent Court would provide a single point of failure (SPOF) to create case law in favour of patentability of software on a European scale;

2. The Unitary Patent contains paragraphs which refer to the Supremacy of the Court of Justice of the European Union (CJEU), while politicians have promised to respect the democratic Brexit vote of UK citizens to leave the European Union;

3. EPO’s software patents are the worst nightmare of software developers; software companies can be threatened and sued at any time;

4. Many experts in the field have recognized that the Unitary Patent is the perfect vehicle for validating software patents in Europe (see quotes page). A heavily debated directive was rejected by the European Parliament in 2005 at the request of large multinational corporations (MNCs) which prefered a push for central patent court instead;

5. We are afraid of the multiplication of threats and lawsuits brought by some companies, and especially the ones that don’t produce anything other than patents (so called “Non Practising Entities” or “Patent Trolls”); We are concerned that software patents shifts budgets allocated to R&D (Research & Development, run by software developers) to P&L (Patents & Litigation, run by lawyers);

6. Our companies don’t have the financial means to defend themselves in court or to pay damages, and we believe the Unitary Patent would make it worse. The Unitary Patent has not been designed for small companies in mind. The cost of litigation and the amount of damages would be on the rise, as they would be calculated for the whole EU market;

7. The Unitary Patent Court would be more attractive to patent trolls that apply and litigate patents, as EU-wide injunctions and EU-wide damages would be available to extract large sums of money. Companies that don’t have the financial means to defend themselves in court would be forced to settle;

8. We believe the UPC is an undemocratic instrument, whose 130 pages of rules of procedure have not been debated or drafted by parliaments, but by an administrative committee populated by members of the patent industry; this administrative committee would also have the power to change the treaty at will without consulting any parliament once the Unitary Patent is running; Parliaments also never had any power nor a procedure to amend those rules of procedure; citizens and companies don’t have democratic means to influence this important piece of regulation;

9. We believe the UPC is not counterbalanced by an elected parliament, not even the European Parliament, making this court a quasi-legislator when it comes to patent law;

10. The UK has a legal tradition to reject the German and EPO’s “technical effect” approach, which makes any software patentable when it runs on a computer; this restrictive approach to software patenting would be lifted by the large influence of German judges;

11. The UPC would make national clarifications to the European Patent Convention, as requested by previous petitioners, impossible;

12. The UPC would make bifurcation possible, which splits the validity and infringement cases (like in Germany), creating an imbalance where on one side, the patent owner says its patent is broad (infringement), and on the other side it is narrow (validity). Powerful injunctions to stop products on the market are granted, while the patent is later on found invalid;

13. The UPC is a power grab by the patent community, as judges are elected among this community. Patent law would be out of balance with other fields of law, and no supreme court would be able to intervene in patent law in order to correct their wayward doctrines and practices, as it happened for the last years in the United States with the Supreme Court (SCOTUS) and the Court of Appeal of the Federal Circuit (CAFC). Patent law would evolve in its own bubble;

14. We call on other EU member states to redraft the project in order to make it integrated within the structures of the European Union, and migrate the undemocratic European Patent Office (EPO) into an EU agency under the sole responsability of the European Parliament. The EPO is an international organization which abuses its diplomatic immunity, and is thus literally outside the law. We also denote the lack of separation of powers within the Council of European Ministers, which are part of the executive, and were heavily influenced by their National Patent Offices. The legislator should not be influenced by the executive, which is the currently the norm at EU level..

Benjamin Henrion (FFII) deserves most of the credit for the above text. If Europe ever falls for the UPC, it will have a knock-on effect elsewhere. Yesterday Henrion spotted Watchtroll harnessing Europe’s policy to help people bypass patent restrictions. To quote a couple of portions: “The problem-solution paradigm has become a cornerstone of patentability in Europe. Drafters interested in protection in Europe by direct filing or via PCT consequently need to cultivate a flexible attitude to problem-solution for analyzing, describing and claiming inventions, and defending patentability. [...] The EPO uses its problem-and-solution approach in a restricted way in the assessment of inventive step during examination once the claim is settled. The official approach is to take as the starting point the closest single item of prior art known at that stage, for expressing the invention in terms of the “objective problem” solved by the skilled person in going from this closest prior art to the then-claimed invention, i.e. in achieving the technical contribution of the invention.”

MIP, publishing behind a paywall as usual (so that only those who agree can read), speaks of UPC “progress” this week (looking back at the month that ended last night). The piece makes it appear as though UPC is definitely coming, but the reality is grimmer and there are still many barriers to the UPC (present and future hurdles). “EU Council ministers discuss Unitary Patent and UPC, Italy ratifies the UPC Agreement (UPCA), UK government publishes Brexit strategy document and answers questions on its UPCA ratification commitment,” MIP wrote.

“What we expect to happen is, more people will become aware of the UPC and who it is really for and debates will intensify to the point where the UPC’s untenability and incompatibilities are realised, whereupon the whole shebang is officially in a limbo again.”Also at MIP, Helga Chapman wrote about early certainty of patentability at the UK-IPO, noting that “[t]he EPO has now addressed this issue with the implementation of its Early Certainty programme,” which is actually notorious among EPO staff. You can’t rush examination like that; it’s like using two women to conceive/deliver a baby in 4.5 months.

What we expect to happen is, more people will become aware of the UPC and who it is really for and debates will intensify to the point where the UPC’s untenability and incompatibilities are realised, whereupon the whole shebang is officially in a limbo again. Battistelli’s wet and perverse dream will not have come to fruition by his term’s end.

In the mean time, please do sign the above petition and spread this link around. There is less than a week left to do so and politicians — not just British politicians — are counting on these signatures.

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