09.06.10

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European Court of Justice Advocates General Says Pan-EU Patent Court Would Violate the Principles of EU Founding Treaties

Posted in Europe, Law, Microsoft, Patents at 7:15 pm by Dr. Roy Schestowitz

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Summary: An expansion on the words of those who deny access of software patents into Europe; an update on barriers to Microsoft’s RAND pushers (also software patents in the EU)

The subject of software patents in Europe is still a hot one because a centralised patent court may in fact enable significant changes to existing laws. Last month we wrote about the Advocates General rejecting an infamous patent court and this fine British site which offers legal analyses has more to say about that:

The European Court of Justice should reject the opinion of its advisors and put pragmatic economics ahead of legal technicalities and approve a pan-EU patent court, the UK patent attorneys’ trade body has said.

Advocates General of the European Court of Justice (ECJ) said in an opinion that the current proposal for a pan-European patent court violate the principles of some of the EU’s founding treaties.

But the Chartered Institute for Patent Attorneys (CIPA) has said that when making its final ruling the ECJ should make its decision in the light of the benefits such a court would bring to business.

This helps ensure that under the current scheme there will be too many barriers and laws may remain unchanged, at least for now. In particular, note-worthy is the interpretation that the current proposal would “violate the principles of some of the EU’s founding treaties.”

“Using lobbyists like Mr. Zuck, Microsoft has been pushing for the central court for several years.”That is exactly what some people/groups have been saying, at times also the FFII. For the Advocates General to suggest this is considerably important as it can be used as ammunition to shoot down future attempts of this kind.

Using lobbyists like Mr. Zuck, Microsoft has been pushing for the central court for several years. So far it has not been successful. Microsoft’s Zuck is also one of the RAND proponents which we mentioned last week (these include Microsoft Florian). Glyn Moody, a Brit, helps explain why RAND is both unreasonable and discriminatory. It works against software freedom.

There are two main options: Royalty Free (RF) and Fair, Reasonable and Non-Discriminatory (FRAND). The former does what it says on the tin: it means that there is nothing to pay, and people are granted a licence so that they can simply use the technology that somebody claims they patented without further ado. FRAND is more subtle.

At first blush, Fair, Reasonable and Non-Discriminatory sounds great. After all, how could anyone argue with something that promises to be fair and reasonable? The trouble with a FRAND licence is that it can indeed by eminently reasonable and eminently non-discriminatory, but if it is non-zero – even if it is extremely small – it is useless for free software licences.

The problem is that even a tiny licence fee, if levied on a per-copy basis, is impossible for free software because of the way it is distributed. There is simply no way to know how many copies may be shared, and hence no way to collect all those eminently reasonable and non-discriminatory licence fees.

This means that any standard that adopts FRAND licensing automatically excludes free software; the corollary is that for a standard to be truly open – that is, open for all to use, not just those able to count and pay for copies – it must adopt royalty-free licensing (as the World Wide Web Consortium does).

There is nothing too new in the analysis above, but it’s an up-to-date overview for those who are not familiar with RAND and do not understand that the acronym is deceiving (like PATRIOT) in the sense that it means the very opposite of what it stands for.

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