Summary: New signs that attempts are being made to legalise software patent without ever debating the subject

WHEN it comes to software patents, the EPO appears to have already lost its way. There is obviously some friction within, too. Over in the UK we find that Nokia, a true fiend when it comes to software patents in Europe [1, 2], is only making things worse [PDF]. Despite some of the good work it did in the Linux ecosystem, it keeps injecting patentability of software via the United Kingdom, where Canonical is -- to its credit -- fighting against software patents. Glyn Moody has this new report about Canonical's amicus curiae brief:

Patent Differences: Canonical vs. Microsoft

I make no apologies for returning to the subject of the European Patent Office's referral of a “point of law” concerning software patents.

Dull as many might find the intricate theoretical arguments, the outcome will have very real consequences. If software patents become easier to obtain, it will have a hugely negative effect on free software, which will find itself subject to more attacks on the legal front.

Recently I commented on the submissions of Red Hat and the FSFE. The full list of “amicus curiae briefs” can be found here; I'd like to pick out those from two high-profile names for their contrasting positions: Canonical (the company behind Ubuntu) and Microsoft.

Canonical's offering is very similar in tone to that of Red Hat: it's very matter of fact, written in a highly-accessible language that makes its points simply but effectively.

The Microsoft-sponsored Czech presidency carries on pushing for a sort of "globalisation" of patents (at a limited scale), which would probably legalise software patents. Digital Majority has just found this report.

Czechs call for unity on patent legislation

[..]

Diplomats say that, because of its potential to turn into an international agreement, the draft litigation system needs to be checked by the ECJ to determine whether it is in line with the EU's treaties. National experts will meet tomorrow (8 May) to discuss the exact questions to be put to the ECJ. Supporters of the system hope that sending the draft to the ECJ will spur talks on finalising the text. Unresolved issues in the Council of Ministers include French concerns that the system would not use the ECJ as its court of final instance, German concerns that it will work less effectively than its own national patent litigation system and Spanish worries over the proposed language regime.

There is more. Here is a new cross-border intervention of patents.

By limiting copyright restoration, the ruling might prevent the US from fulfilling its obligations under the Berne Convention and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Trade-Related Aspects of Intellectual Property Rights were also specified in the draft of ACTA [1, 2]. With all this unification (or "harmonisation" as Charles McCreevy attempted to call it), it's clear that there is considerable risk of software patents entering Europe without any proper, explicit debate on the matter. The following alarming press release from FFII says a lot more. ⬆

---

European Commission pushes for software patents via a trusted court

Brussels, 12 May 2009 -- The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention and won't be an EU institution. Those patent judges want to have the last word over European patent law."

Background

The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired by the now defunct European Patent Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software patents and substantive patent law. The centralised patent court won't be an EU institution.

The Court of Justice of the European Communities would only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, [...] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community." The UPLS itself would not be a "institution of the Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.

On the other side of the Atlantic, specialized patent courts in the United States (CAFC) have watered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. The poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin drawing. The Supreme Court judges overturned the patent, heavily criticising the obviousness threshold of the specialized patent court: "This is gobbledygook. It really is, it's irrational. It's worse than meaningless."