01.13.16

Germany Needs to Respect the European Patent Convention and Stop Issuing Software Patents, Also Reject UPC

Posted in Europe, Patents at 6:10 am by Dr. Roy Schestowitz

Germany USPTO EPO

Summary: Germany emulates USPTO/EPO trends by allowing, in spite of the EPC, patents on vague ideas pertaining to software

THE EPO, which seemingly represents (or at least prioritises) multinationals from outside Europe these days, has become an enemy of Europe right at the very heart of Europe (Munich, Germany). The EPO is also an enemy of its own highly-qualfied staff, but this isn’t the subject of today’s article.

“For the time being, in spite of pressure from patent lawyers and the EPO, Germany remains a barrier to the UPC, and that’s a good thing.”The President of the FFII says he “[w]ill speak at FOSDEM on Unitary Software Patents and how to stop it, Sunday 10am” (end of this month). Contrary to the myths still perpetuated because this debate got hijacked (primarily by multinationals and their lobbyists), not only patent trolls are the problem. Patent scope is the problem. Later on Tuesday (yesterday) the EPO released quite a ‘masterpiece’ which is in fact non-factual nonsense (we rebutted some of these claims before). It had been put together and eventually unleashed by the team of Benoît Battistelli, collating and condensing PR talking points, disregarding everything else (again, things which we covered here before). There is one part there which alludes to UPC, one of the mechanisms for expanding patent scope and bringing software patents to Europe. It says: “But while the EPO has successfully worked with our international partners, a number of our own member states have worked in cooperation with the EPO to finalise preparations for the next significant development in patents in the European Union itself. With the support of the EPO, the Select Committee last December agreed a complete secondary legal framework comprising the implementing rules, and budgetary and financial rules for the unitary patent. It was a hugely significant occasion for the European patent system which means that we are now legally, technically and operationally ready to deliver the unitary patent. With the successful ratification of the UPC Agreement by the remaining member states, 2016 really could be the year in which innovators the world over start to benefit from the distinct advantages the unitary patent is set to deliver.”

“We still remember Germany’s support of patents used by Microsoft against a Dutch company, TomTom, whose Linux use came under attack with notorious F.A.T. (FAT not being an offensive term) patents.”For the time being, in spite of pressure from patent lawyers and the EPO, Germany remains a barrier to the UPC, and that’s a good thing. But in the mean time Germany resurrects and reminds everyone of an old tradition. It’s a big problem right now. We still remember Germany's support of patents used by Microsoft against a Dutch company, TomTom, whose use of Linux came under attack with notorious F.A.T. (FAT not being an offensive term) patents.

A new article just published by Dr. Glyn Moody talks about this patent, perhaps in response to some German patent lawyers who celebrated the grant. To quote Moody:

What exactly those two words “as such” mean in this context has been argued over for years. In practical terms, it has led to thousands of software patents being issued thanks to clever framing by lawyers that takes advantage of the “as such” loophole. According to this post on a blog that is called unashamedly “European Software Patents,” it seems that German judges have now gone even further, and granted a patent for a graphical user interface. That’s surprising, because the same EPC Article 52 explicitly excludes “presentations of information” from patentability.

[...]

Just in case that legalese isn’t crystal-clear, here are details of the case considered by the German court. The patent dealt with the display of visual information captured by a swallowable capsule equipped with a camera. Apparently, these cameras produce information too rapidly to be useful for ready examination by the human eye. That problem was solved by showing only a subset of transmitted frames in one window, and different subsets in other windows. The idea is that an expert can scan several of these windows at once, since the images in each are changing relatively slowly.

In the Unites States, in the mean time, some USPTO-granted patents are being used against European companies. Docket Report comments on the case against Metaswitch (British), which we wrote about very recently. It says that ‘The court granted defendants’ motion to strike the report of plaintiff’s validity expert regarding patentable subject matter because the testimony was unhelpful. “[T]he issue of subject matter eligibility under § 101 will not be tried to the jury in this case. No expert will be permitted to testify to the jury about whether the asserted patents claim eligible subject matter under § 101. The Court is responsible for deciding disputed questions of law, and the Federal Circuit has consistently disfavored reliance on expert testimony as the basis for legal conclusions. [The expert's] analysis of the law and his ultimate legal conclusions are not helpful expert testimony and are therefore inadmissible.”

“Remember that Texas is where almost every troll can be assumed to be going into.”The litigant is a company from Texas whose software is not so well known (unlike Metaswitch) and its patents are basically software patents. Remember that Texas is where almost every troll can be assumed to be going into. The courts in Texas are biased in favour of aggressive, trigger-happy firms, including — if not notably — trolls.

Mr. Maycotte, a Texan writing for the plutocrats’ media (Forbes), says that Alice does not change much (he just says that an existing issue/riddle now has a name/reference) and that poor startups — yes, software startups of all entities! — should still waste their limited resources and pursue patents. The highest court, SCOTUS, opened the door to invalidation of software patents (there is no sign of that changing as SCOTUS has just declined to hear three patent cases, including, based on this detailed listing, Allvoice Developments US, LLC v. Microsoft Corp. which we covered here before).

“If you are not a troll but a producing company, then all those whom you sue can and will sue you back harder, especially if those whom you sue belong to a large company with a massive trove of software patents.”“Regardless of the outcome of Alice,” he wrote, “there are still plenty of reasons for startups to seek patents. Getting a patent can cost you (I’ll talk more about specific costs in the last section of this blog), but not getting a patent could potentially cost you even more — in lost venture capital, market share and other areas, as patent advisory experts David Pridham and Brad Sheafe suggested in an article in these pages last summer.”

If you are not a troll but a producing company, then all those whom you sue can and will sue you back harder, especially if those whom you sue belong to a large company with a massive trove of software patents. The writer, who looks like the world’s biggest patent troll (Nathan Myhrvold), works in the mass surveillance industry (for corporate gain). Forbes too, with its notorious malware in all Web page (a subject of ongoing scrutiny), is a perfect fit for this kind of view. Why doesn’t Forbes air the views of many startups which demand patent reform?

“The ultimate goal appears to be injunctions with global scope — the kind which best suits multinationals with global presence.”Incidentally, last night the EFF complained about CAFC, a booster of software patents and also their originator. The EFF wrote: “When courts fail to quickly address serious defects in a patent litigation complaint, it can harm not only the parties to the case, but also the public at large. Yesterday, EFF and Public Knowledge filed a friend-of-the-court brief with the Court of Appeals for the Federal Circuit in a case where the Eastern District of Texas is allowing expensive litigation to drag on even though the defendant has already fully briefed validity issues that almost surely will dispose of the case, and stop the patent owner from suing on them in the future.

“Eclipse IP, the patent owner in this case, is a repeat patent assertor. It’s brought over 160 cases in recent years. (Eclipse IP recently changed its name to Electronic Communication Technologies, LLC, but the named party in this case is still Eclipse IP.) The defendant in this case, Marten Transport, is a trucking company based in Wisconsin.”

Imagine what would happen if the UPC became a reality and the same thing became routine in Europe. Imagine Texas courts (ruling on companies in Wisconsin in this case) being the equivalent of some court in Germany ruling against a British company or vice versa, with an effect in the entire continent and beyond. It shouldn’t be hard to see who benefits from such a system. The ultimate goal appears to be injunctions with global scope — the kind which best suits multinationals with global presence.

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