EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.21.17

UPC Threatens to Weaponise Software Patents in Countries That Forbade These

Posted in Europe, Patents at 1:38 am by Dr. Roy Schestowitz

Cannon

Summary: The reality of software patents in Europe and what a Unified Patent Court (UPC) would mean for these if it ever became a reality

“Having to inspect the patent database before writing a single line of code, that’s not what I call Happy Programmer’s Day,” Benjamin Henrion wrote the other day, adding that “it does not change much to the fact that the EPO and al [sic] still forces you to read their invention garbage.”

The EU rejects software patents, but the EPO flagrantly disobeys the rules, instructions, common sense etc.

Henrion took note of this new article from an EPO-friendly site, relaying the words of “Francisco Mingorance [who is] executive secretary of IP Europe, a lobby group representing European technology companies and research institutes.”

“Open standards and Francisco Mingorance do not go well in the same sentence,” Henrion wrote. “We now await a communication from the European Commission on FRAND licensing this autumn,” he added. FRAND is a euphemism for patent traps inside standards.

To say the least, Mingorance is an enemy of programming. He used to work for the Business Software Alliance (BSA), a pro-FRAND, anti-FOSS, pro-software patents lobby (and the whole bundle of Microsoft lobbying).

At the moment, the main concern we have is that Unitary Patent lobbying threatens to bring software patents to more countries, even countries which explicitly disallow software patents. We wrote many articles about that before.

There’s one particular comment in IP Kat which reinforces our views about the UPC. The comment is very long so its author was prevented from posting it (or rather having it published) — to the point of stating: “It would be nice to see comments appearing a little sooner on this thread. There is still a lot to discuss (including the points made in comments that I posted over 9 hours ago!).”

Here is the comment in full, posted in fragments as follows (with emphasis added):

OK, so my later comment from yesterday eventually appears, but not the earlier, more substantive one. I shall try again (in two parts).

Part 1:
Wow, not even a deliberate, glaring error in my first comment from yesterday can provoke a response! Either no one cares or no one is watching who has a thorough understanding of EU law.

As decided by the CJEU in C-274/11, “it must be concluded that the competences conferred by Article 118 TFEU fall within an area of shared competences for the purpose of Article 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Article 20(1) TEU”.

Thus, the hypothetical arguments based upon Article 118 TFEU and “traditional” EPs don’t work… meaning that more subtle arguments need to be deployed if incompatibilities between the UPCA and EU law are going to stand up.

OK, so my shorter comment makes it through quickly but my longer, more substantive comment still does not appear. I shall assume that the problem is length and not content and will therefore have another go, breaking down my comments even further.

[...]

For me, the major issue with the Unitary Patent Package has still got to be the (impermissible) retroactive application of new / different law to pre-existing cases. The fact that the UPC would (in theory) be free to apply the infringement law of the UPCA to “traditional” EPs in fact makes the effects of retroactivity a lot worse.

To illustrate, consider a pending EP that has the same claims for enough EU Member States to qualify (in theory) for unitary effect. Which law of infringement would you say will be applied (e.g. in the UK) to the claims of that EP, once granted? To me, it seems that there are, in fact, multiple choices.

(1) In this scenario, a request for unitary effect is filed after the patent is granted.

The law of infringement applied by the UPC (the only litigation forum for the “unitary” patent) will then be dictated by Articles 5 and 7 of the UP Regulation. For the sake of simplicity, we shall assume that the patent proprietor has no residence or place of business in the Participating Member States, meaning that the UPC will apply German national law for the purposes of determining infringement.

(2) In this scenario: unitary effect is not requested; no opt-out is filed; and the “traditional” EP patent (the UK validation, plus a handful of other validations) is litigated at the UPC.

Which law of infringement will the UPC apply to the “traditional” EP? Whilst this is a tricky question to answer, we can apply some common sense to work out the most likely result.

Firstly, the UPC will not be bound to apply the same national law as under scenario 1. This is because the UP regulation does not apply to “traditional” EPs.

Secondly, in all likelihood, the UPC will apply a single law… as otherwise there would be no benefit to using a supposedly “unified” court!

Thirdly, Article 24 UPCA provides a hierarchy of laws. With no overarching EU law to consider (as the UP Regulation is irrelevant to “traditional” EPs), the next stop for the UPC will be the UPCA itself (Article 24(1)(b) UPCA).

Thus, in all likelihood, the UPC will apply the infringement law of the UPCA (Articles 24 to 30 UPCA) to all validations of “traditional” EPs that are litigated in that forum.

(3) In this scenario: unitary effect is not requested; no opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.

Here the answer is simple. The UK High Court will apply UK national law for the purposes of determining infringement. There is simply no basis under UK law for the court to do anything else… not least because the provisions of the UPCA have not been incorporated into UK law (instead, a few “tweaks” have been made that only partially align UK law with the UPCA provisions on infringement).

(4) In this scenario: unitary effect is not requested; an opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.

Here, the same answer applies as under option 3, namely UK national law will be applied for the purposes of determining infringement.

So, for a single, pending EP, there are actually three possible choices of law of infringement (namely German national law, UPCA law or UK national law) that will be applied in respect of a single territory (the UK). More worryingly, the choice of law will be dictated by post-filing actions of the proprietor, ie whether or not unitary effect is requested, whether or not an opt-out is filed (and, if so, whether or not it is later withdrawn) and/or which litigation venue is selected (from the UPC or national courts).

Remember, national laws of infringement have not been fully harmonised with one another across the Participating Member States, nor have they been fully harmonised with the infringement provisions of the UPCA. Thus, it will make a difference to the outcome which law of infringement is selected.

So, the UPCA coming into force will bring the advent of what I like to call “Schrödinger’s patents”, which are pending EPs whose precise effect upon third parties cannot be fully pinned down until they are actually granted and litigated (at a specific forum). As will be evident from the above, until the proprietor has made final, irreversible choices with regard to all three of unitary effect, opt-out and litigation forum, uncertainties will remain as to the law of infringement that will be applied.

Bringing such “Schrödinger’s patents” to life seems to me to be irreconcilable with the principle of legal certainty, and no doubt countless other provisions and principles of EU law (especially fundamental principles relating to the rule of law). But why has this issue attracted so little attention?

It is about time that this changed, I would say. It would be horrible to “sleepwalk” into a nightmare scenario that might become impossible to wake up from.

We certainly hope that patent examiners understand why British software companies, for instance, dread the UPC and oppose it.

Some more EPO articles are on the way. The big series about Battistelli will start quite soon, culminating some time ahead of the quarterly meeting of the Administrative Council.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. The EPO No Longer Measures Quality of Patents; Instead It Publishes Fake Statistics

    The decline in patent quality at the EPO is a long-known issue and suppression of information about it merely enabled several more years of questionable patent grants, thereby putting at risk the perceived value of EPO services



  2. Speaking of “Social Democracy” While Suffering Extreme Democratic Deficiency

    The EPO represents an even broader assault on democracy in Europe (implicating ILO, Team UPC, national delegates, and national governments), but Benoît Battistelli is unique in the sense that he's disguising it or lying to himself about it



  3. Management by Intimidation Has Caused Deaths at the European Patent Office (EPO)

    An accurate diagnosis of the conditions created at the European Patent Office (EPO) by Benoît Battistelli and his cronies, who have essentially hijacked the Organisation -- not just the Office -- then attacked every 'enemy', either real or perceived



  4. The Difference Between Alain Pompidou and Benoît Battistelli as EPO President

    The different approaches adopted by Pompidou and Battistelli; one pursued amicable mediation and training, whereas the other resorted to vindicative witch-hunts, kangaroo courts, and a culture of terror which resulted in many suicides



  5. The Darker Past of the Next President of the EPO - Part IV: Links Between CGD (Former Employer of António Campinos) and the INPI

    More information about connections between CGD and the Portuguese Intellectual Property Office (INPI)



  6. Links 21/10/2017: Purism Against ME, Pop!_OS Ready

    Links for the day



  7. US Patents Appeal Board Attacked by the Patent 'Industry', Defended by Federal Courts, and Dodged by Patent Trolls

    PTAB, the branch or the 'court' responsible for eliminating bad patents, is coming under attacks from those who rely on poor patent quality and receives praises from everyone else, as usual



  8. In the United States, the Patent 'Industry' is a Dying Breed and China Adopts This Destructive Force

    The decaying patent microcosm, or the pipeline of low-quality patents and frivolous lawsuits these entail, loses its grip on the US; China, much to the astonishment of people who actually create things, is attempting to attract that ruinous microcosm (which preys on real, producing companies)



  9. Microsoft and Nokia's Patent Trolls by Proxy: First Conversant, Now Provenance Asset Group Holdings LLC

    Microsoft's shell game with patents (passing Android-hostile patents to trolls) carries on and publishers funded by these trolls offer the details, albeit vaguely and with obvious spin



  10. Anonymous Professionals Speak of Benoît Battistelli's Destruction of the EPO, But Why Does the Media Turn a Blind Eye?

    Everyone in the circles of EPO staff and EPO stakeholders knows that dysfunction has become the norm; European media, however, remains suspiciously silent about what otherwise would be a major European scandal (bigger than FIFA or Dieselgate)



  11. The Darker Past of the Next President of the EPO - Part III: More Details About Caixa Geral de Depósitos, Former Employer of Campinos

    The side of Campinos which he prefers to conceal, or rather his association with a rather notorious Portuguese bank



  12. UPC Looks Like More of a Distant Dream (or Nightmare) as Germany Adds Another Two Months' Delay

    The likelihood that the UPC will be altogether scuttled is growing as delays keep piling up and more complaints are being filed by public interest groups (as opposed to Team UPC, which hoped to shove the UPCA down everyone's throats behind closed doors)



  13. Patent Trolls Roundup: BlackBerry, Dominion Harbor, IPNav, IP Bridge

    A quick review of recent news regarding patent trolls or entities which resemble (and sometimes feed) these



  14. Battistelli's Destruction of the EPO is Bad for Everyone, Even Patent Attorneys

    The collapse of the European patent system, owing primarily to Battistelli's totalitarian style and deemphasis on patent quality, means that "the war is lost," as one professional puts it



  15. Links 19/10/2017: Mesa 17.2.3, New Ubuntu Release, Samsung Flirts With GNU/Linux Desktops

    Links for the day



  16. Some of the USPTO's Most Ridiculous Patents Are Scrutinised by “Above the Law” While Dennis Crouch Attempts to Tarnish Alice

    Controversies over patent scope and level of novelty required for a patent; as usual, public interest groups try to restrict patent scope, whereas those who make money out of abundance of patents attempt to remove every barrier



  17. Microsoft's Software Patents Aggression in Court (Corel Again)

    Microsoft's tendency to not only abuse the competition but also to destroy it with patent lawsuits as seen in Corel's case



  18. The Spanish Supreme Court Rejects the EPO's “Problem and Solution Approach” While Quality of European Patents Nosedives

    European Patents (EPs) aren't what they used to be and their credibility is being further eroded and even detected as such



  19. Europe is Being Robbed by Team Battistelli and the UPC/PPH Would Make Things Worse

    The European Patent Office (EPO) has put litigation at the forefront, having implicitly decided to no longer bother with proper patent examination and instead issue lots of patents for judges and lawyers to argue about (at great expense to the public)



  20. Team UPC Continues to Promote Illusion of UPC Progress Where There's None

    The core members of Team UPC in the UK spread obvious falsehoods in the media, probably in an effort to attract 'business' (consultation regarding something that does not exist)



  21. António Campinos: A True EPO Reformer or More of the Same?

    More unfortunate reminders that Campinos and Battistelli don't quite diverge on the big issues, they're just more than two decades apart in age (but the same nationality)



  22. Juve Has Confirmed That António Campinos is French

    The relationship between Campinos and Battistelli has a nationality aspect to it, not even taking into account the interpersonal connection which goes a long way back



  23. The Darker Past of the Next President of the EPO - Part II: António Campinos at Banco Caixa Geral de Depósitos

    A look at the largely-hidden banking career of the next President of the EPO and the career of the person who competed with him for this position



  24. SUEPO to the Media, Regarding Campinos: “No Comment, It’s Too Dangerous”

    António Campinos, who is Benoît Battistelli's chosen successor at the EPO, as covered by German media earlier this month



  25. Staff Union of the EPO (SUEPO) Willing to Work With Campinos But Foresees Difficulties

    New message from SUEPO regarding Battistelli's successor of choice (Campinos)



  26. Links 18/10/2017: GTK+ 3.92, Microsoft Bug Doors Leaked

    Links for the day



  27. The Darker Past of the Next President of the EPO - Part I: Introduction

    Some new details about Mr. Campinos, who is Battistelli’s successor at the EPO



  28. Confessions of EPO Insiders Reveal That European Patents (EPs) Have Lost Their Legitimacy/Value Due to Battistelli's Policies

    A much-discussed topic at the EPO is now the ever-declining quality of granted patents, which make or break patent offices because quality justifies high costs (searches, applications, renewals and so on)



  29. Patent Firms From the United States Try Hard to Push the Unitary Patent (UPC), Which Would Foment Litigation Wars in Europe

    The UPC push seems to be coming from firms which not only fail to represent public interests but are not even European



  30. In the Age of Alice and PTAB There is No Reason to Pursue Software Patents in the United States (Not Anymore)

    The appeal board in the US (PTAB) combined with a key decision of the Supreme Court may mean that even at a very low cost software patents can be invalidated upon demand (petition) and, failing that, the courts will invalidate these


CoPilotCo

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

CoPilotCo

Recent Posts