Bonum Certa Men Certa

The Question of Software Patents without Democracy

European Union



The question of software patents without democracy and the FFII response



IN October 2008, the President of the European Patent Office (EPO) issued a Referral to its Enlarged Board of Appeal (EBoA) concerning the questions as to the examination and granting of software patents in Europe. In the absence of European legislative initiatives, the EBoA's conclusion on this matter is likely to have the same effect as a software patent directive.



“In the absence of European legislative initiatives, the EBoA's conclusion on this matter is likely to have the same effect as a software patent directive.”However, since this decision will be based on a purely legal interpretation of the European Patent Convention (EPC) by the EBoA, it will not be accompanied by more extensive political and economic debate.

As stated by the EPO, third parties may wish to use the opportunity to file written statements before the end of April.

The FFII would like to ask you to consider writing a statement in the name of your company, organisation or as private person, and if possible also to support the action plan of the FFII (see below).

You can see statements already submitted by others.

The FFII offers a dedicated mailing list for discussions on the referral and a petition page against software patents.

With an action plan, the FFII are funding two experts to work full-time on the issue and also produce detailed documentation about software patents in Europe, to be published in the near future. They need your contribution in order to do this. Please consider making a donation, marking it as 'EBoA Referral'.

International bank data:

IBAN: DE78701500000031112097 BIC: SSKMDEMM Country: Germany Name: FFII e.V. Address: Blutenburgstr 17, DE 80636 Muenchen

Germany bank data:

Name: FFII e.V. Account: 31112097 Sort code (BLZ): 70150000

For using Paypal, see http://ffii.org/Donations

Background information



At present there is no central jurisdiction for European or community patents. National court decisions are still not fully aligned with the European Patent Office's (EPO) granting policy concerning software patents that has been developed by decisions of the EPO Boards of Appeal. The disparity between national patent enforcement courts and the EPO's granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed. This directive, as well as the 2000 attempt to change the European Patent Convention, was rejected not least because of the larger FFII network's activities.

“The disparity between national patent enforcement courts and the EPO's granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed.”Despite the fact that several attempts to formally legalise software patents in Europe proved unsuccessful, the EPO still has not adapted to the developments in the political arena. The EPO still grants software patents under the application of loopholes created by its Boards of Appeal decisions.

The EPO's granting practice gradually gains more acceptance in national courts thanks to a trickle down effect, while the legal certainty of national software patents remains to be determined. Validity rulings and opposition mostly reject questionable software patents out of novelty and inventive step considerations, but not on grounds of the substantive scope of patent law.

On October 22, 2008 the Enlarged Board of Appeal was asked by the President of the European Patent Office, Alison Brimelow (UK), for an opinion concerning the exclusion of computer programs as such according to Article 112(1)b EPC. She highlights that this matter is of fundamental importance as it defines the limits of patentability in the field of computing. The Referral is divided into four chapters. The first chapter describes the background to the Referral, the second chapter concerns definitions of auxiliary terms such as software, while part three includes four questions about substantive law interpretation. Part four describes the legal framework and options for its development. The President also added background information and an overview of BoA decisions related to this specific matter.

The FFII has a wiki page where comments on the questions can be added.

The EPO Enlarged Board of Appeal decided to allow third parties to make statements concerning the points of law (November 11, 2008). The FFII will provide legal considerations which challenge the controversial Boards of Appeal decisions and thus influence the decision-making process. In the absence of legislative clarifications, some courts in the UK recently accepted EPO 'case law'. The opinion of the Extended Boards of Appeal will create the precedent for all future legislative developments. As there is no legislative scenario in sight which might overrule the EBoA in case it permits software patents, this particular Referral needs the FFII's attention. Other parties interested in software patents are going to submit comments in favour of software patents. Philips, in fact, has already done so.

FFII's action plan



The FFII will submit entries to the Enlarged Board of Appeal in order to bring about a more balanced assessment, and to help the EBoA arrive at legal solutions that are closer to their expectations. The communication targets are patent technocrats with a different belief system to which others need to adapt. So far, FFII members have concluded that several different strategies can be applied. They have discussed these extensively with patent experts. For strategic reasons they cannot make them public, suffice it to say that they are currently in the process of finding collaborators in the FFII's attempt to stop software patents.

Challenge





Conferences



The following conferences - among others which are not public - will be or have already been attended by some FFII members.

Current Policy Issues in the Governance of the European Patent System Venue: European Parliament, Rue Wiertz 60, Room Anna Lindt, P1A002, Brussels B-1047, BELGIUM 17 March 2009 Alison Brimelow : Closing remarks http://www.europarl.europa.eu/stoa/events/workshop/20090317/programme_en.pdf

WIPO - STANDING COMMITTEE ON THE LAW OF PATENTS Geneva, March 23 to 27, 2009

The future of intellectual property Creativity and innovation in the digital era April 23rd -24th, 2009, Committee of the Regions, Brussels

Making IPR work for SMEs 27th of April 2009, Brussels http://ec.europa.eu/enterprise/enterprise_policy/industry/ipr_conference.htm

Patinnova April 28th-30th, Prague Alison Brimelow opening it. Workshop on patents and software http://www.epo.org/about-us/events/epf2009.html

Measuring the value of IPR: theory, business practice and public policy September 24-25, 2009, Bologna Sponsored by the EPO. Alison Brimelow has been invited. http://www.epip.eu/conferences/epip04/

How to support the FFII



The FFII is divided in working groups and it welcomes new active people in these working groups which are listed at https://action.ffii.org

If you consider the FFII's work important but you are not able to help actively, you can become a passive sustaining member of the FFII, starting at 15 EUR per year.

How to contact the FFII



FFII e.V. Blutenburgstr. 17 80636 Munich Germany

https://www.ffii.org

office@ffii.org

Tel. +49 30 417 22 597 Fax: +49 30 417 22 597 IRC: #ffii @ irc.freenode.net Blogs: http://planet.ffii.org/

Tax number: 143 / 843 / 17600 at the German tax office in Munich. IBAN: DE78701500000031112097, SWIFT/BIC: SSKMDEMM Registered organisation in Munich, Amtsgericht Munchen VR 16460 Board: Benjamin Henrion, Rene Mages, Ivan Villanueva, Andre Rebentisch, Alex Macfie

Comments

Recent Techrights' Posts

Google News is Rewarding Slopfarms, Not Journalism
Don't read junk from chatbots
Richard Stallman, Whose Site is Trusted by Greater Manchester, Has Come to the United Kingdom
He doesn't suck up to the Crown, so he'll never be "knighted"
On Desktops/Laptops in Singapore Does a Fifth of Users Run GNU/Linux?
Probably not, but it's growing fast there
Links 21/04/2025: Fake Ceasefire and Software Patents (Fake Patents) Thrown Out
Links for the day
4 Years Ago Freenode Crumbled From Within
there are still hundreds of thousands of users online at any given time
Microsoft Has Tainted GNOME, Which Has Key People Acting as a SLAPP Front Against Techrights (Trying to Censor the Site by Extortion and Many Threats)
One common denominator (other than Microsoft salaries) is GNOME, which was led by an actual professional crank until she quit so suddenly months ago
Homeland of Linux Kernel Turning to GNU/Linux?
Adoption of Vista 11 has been relatively low
 
Gemini Links 21/04/2025: Remembering Pope Francis, Crystal Simulation
Links for the day
Doing Microsoft's Job. On IBM's Payroll.
today's Red Hat cannot recognise threats even after a head-on collision
Teaching GAFAM in Schools is Like Teaching Children to Smoke Tobacco
So suggests an FSF presentation
Companies With Fake Values and a Fake Economic/Financial State (Phony Valuations)
It'll all go up in smoke, eventually
Links 21/04/2025: Microsoft LLM Slop (Plagiarism) Going Out of Control, CT Scans' Cancer Problems Was Underrated
Links for the day
GNOME Has a Long History (Over a Decade) Misusing the Code of Conduct (CoC) to Censor (Cull) Legitimate Technical Criticism
This has nothing to do with manners, it's about control (by cover-up)
According to StatCounter, This is What Linux Adoption Looks Like (Based on Web Requests Visible to StatCounter)
How much worse will it get for Microsoft?
Gemini Capsules Still Outsourcing to Certificate Authority Let's Encrypt Now Measured at Less Than 10 (or Less Than 0.3%)
In Geminispace, Let's Encrypt is not commonly used
Twisting Microsoft's Failure (Transmitting Malware) as "SSH Backdoors" and a Linux Problem
Somehow we almost always find that those FUD pieces about "Linux" are based on obvious falsehoods
Vista 11 Has Burned OEMs and Some Move to GNU/Linux
When people can finally avoid Windows (there's no reason to attach it to new PCs) there will be a lot more GNU/Linux users out there
Remember That Microsoft Mass Layoffs Are Imminent Because Its 'Empire' is Falling Apart
European politicians take a long, hard look a Free software
Richard Stallman in the UK This Week, Scheduled to Give Two Public Talks (London and Oxford)
Those talks do not cover the same topics
Gemini Links 21/04/2025: April, Autism, and ASN
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 20, 2025
IRC logs for Sunday, April 20, 2025
Links 20/04/2025: Partly Assorted Scientific and Political Leftovers
Links for the day
Links 20/04/2025: Many Data Breaches and Growing Censorship Wave
Links for the day
Gemini Links 20/04/2025: Canadian Elections and "Use the Best Tools You Have for the Current Environment"
Links for the day
Deja vu: Hitler's Birthday, Andreas Tille elected Debian Project Leader again
Reprinted with permission from Daniel Pocock
Links 20/04/2025: Bleeding Constitution and ChatGPT Infuriates Users Some More
Links for the day
Chinese OEMs (and World's Largest) Pave a Path Out of Microsoft Windows
So Microsoft now values (or prices) Vista 11 at just $140?
Gemini Links 20/04/2025: Contradictions of Mark Carney and Blog Questions Challenge
Links for the day
Microsoft's 'Lawsuit Diplomacy' (SLAPPs Riding UK Libel Law and Piggybacking UK GDPR, Inapplicable!) Will Only Give a Worse Image to Microsofters (and Microsoft), Give Exposure to Even More Suppressed Facts and Scandals
Microsoft came to dominate some sectors because of (or owing to) crimes; Microsoft won't just go away without some more crimes.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 19, 2025
IRC logs for Saturday, April 19, 2025
Five (or Three) Years Without Social Control Media
Glyn Moody quit X (Twitter)
Electronics in People's Bedrooms
Modern technology not only blurred the gap between "functions" of rooms
Why GNU/Linux is Growing
There's growing interest in GNU/Linux right now because people do not fancy buying a new PC just to 'upgrade' (more spying) Windows
Gemini Links 19/04/2025: Contingencies, GTD, and Old Computers
Links for the day
Links 19/04/2025: Economic Races, Charm Offensives, and USB-C Rants
Links for the day
Links 19/04/2025: "Infantilization at Big Tech" and LLM Slop Abused in Defiance of Workplace Rules/Policies
Links for the day
Gemini Links 19/04/2025: Palm Addiction and Real Experts
Links for the day
Egypt is Controlled by Google, Not Microsoft
Moving from Microsoft to Google is not the answer
Microsofters Say They Cannot Find a Job (That They Want) Because of Techrights, But Techrights Merely Reported on Their Behaviour
Quit pointing the finger at people who are recipients of abuse or merely mention the abuse
Free Software and Standards - Not Marketing Blitz - Needed Amid Growing Severity of Dependency on Hostile Suppliers (or Another Country's Sovereignty)
ZenDiS can be described as the "Center for Digital Sovereignty of Public Administration"
When It Comes to the Web, Google is Evil and It Destroys the Web's Integrity With LLM Slop
Even academia, which is meant to keep standards high, is being lured into LLM slop
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 18, 2025
IRC logs for Friday, April 18, 2025