05.09.16
Posted in Europe, Patents at 5:24 am by Dr. Roy Schestowitz
Another TTIP- or TTP-style behind-closed-doors agreement which infuriates those potentially affected (once they actually find out about it)
Summary: Position paper from a legitimate (not fake) group of SMEs blasts the Unified Patent Court (UPC) for being little more than a conspiracy of powerful businesses and other opportunists to work around the law, misrepresent SMEs, and undermine Directive 2009/24/EC (effectively a ban on software patents)
EARLIER this morning we wrote about the UPC in relation to misleading new propaganda from patent lawyers. The EPO has been lying to everyone, insisting that the UPC is legitimate and that it’s somehow “for SMEs” when the reality is exactly the opposite, as a recent scholarly paper about SMEs served to show. Patent lawyers who play along with the EPO’s propaganda are doing a lot of damage, but then again, remember that it’s “damages” from which they profit. They want patent war. The more, the merrier. As for the EPO, it now pays obscene amounts of money to a PR firm from the US, which in turn pays to organise UPC propaganda events in the US (definitely not for European SMEs). It takes extreme gullibility/ignorance to fail to see what’s happening here.
“It takes extreme gullibility/ignorance to fail to see what’s happening here.”When talking about SMEs we must remember that there are fake (AstroTurfing) lobbying groups of Microsoft, pretending to be fronts of SMEs (e.g. Association for Competitive Technology), but European Digital SME Alliance is not a fake one (members listed at the bottom of the statement below). As the statement states clearly: “The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about.”
The latter is what has been happening for quite some time. We mentioned this. The European Digital SME Alliance is based in Brussels and Benjamin Henrion, who is also based in Brussels (the EPO increases/maintains lobbying presence there), paraphrased [1, 2] the European Digital SME Alliance as saying “An EU wide patent system should be based on EU law and not on an international agreement [...] UPC rules of procedure are illegal, undemocratic, no parliaments, even unconstitutional in DE” (not exact words).
Here is the statement in full, extracted and edited based on the original PDF:
European Digital SME Alliance
4 April 2016
Position Paper on Agreement on a Unified Patent Court
Insufficient legal protection for digital SMEs
The European DIGITAL SME Alliance is concerned that the Agreement on a Unified Patent Court (UPC) will undermine the legal protection of software developers against lawsuits based on possibly invalid software patents.
Under this agreement, companies may be convicted for an alleged patent infringement without first proving whether the patent in question is valid or not.
Threats to digital SMEs
The European software market is loaded with tens of thousands of software-related patents1. Patents can cover several features in a computer program. For small and medium sized software developers it becomes increasingly difficult to avoid those patents by using alternative means. The existence of software-‐related patents is per se questionable: software is sufficiently protected directly or indirectly by the copyright law for computer programs under Directive 2009/24/EC.
More in general, the validity of software patents is quite uncertain when looking at the overall patent collection. More than 50 % of all oppositions or nullity procedures against software patents lead to a partial or total revocation of patents2. Thus, there is no basis for trust on the reliability and completeness of the patent granting procedure.
All SMEs in the software sector can be accused of patent infringement and receive an injunction by a court. This poses a constant threat to the companies. The defence against a patent infringement lawsuit is costly and can take years. This situation is worse in countries like Germany, where the proceedings for patent infringement can lead to an injunction even though the lawfulness of the patent in question has not yet been determined. Injunctions
_______________
1 The search for patents in the German Patent and Trademark Office containing the phrase „computer program“ in the patent claims led to 20.278 Hits on 10.11.2015.
2 http://www.epo.org/about-‐us/annual-‐reports-‐statistics/annual-‐report/2014/statistics/searches.html: In 2014, in opposition procedures at the European Patent Office in 31% of the cases, patents were totally removed and in 38% of the cases at least partially removed
force companies to withdraw their product from the market. Years after such injunction, when the SME has accumulated huge losses, a court may judge invalid the patent in question. Hence, companies that own large patent portfolios can use the threat of patent infringement lawsuit to undermine the competition of SME software developers in the market.
Creating a long-‐lasting legal uncertainty
According to the Agreement on a Unified Patent Court, when ruling on an alleged patent infringement, the local and regional chambers of the Unified Patent Court will be empowered to decide in their own discretion, whether an objection for nullity of the patent shall be taken into account. The chambers will have different options:
(a) They can decide about a counterclaim for revocation together with the question of patent infringement;
(b) they can suspend the patent infringement process until the nullity proceeding is ruled or
(c) they can decide about a patent infringement without considering the question of nullity.
Thus, the agreement fails to establish a legal precedence for the clarification of the validity of patents. Should the agreement come into force, it would extend the German approach of a conviction without prior clarification of the legal situation to all participating countries. Worryingly, the choice of an international agreement as operational tool will make it very difficult to review the content of the agreement over the next decades, thus worsening the consequences and perpetuating the damage to SMEs in the digital sector.
Unconstitutional rules of procedure
According to the agreement, an administrative committee composed by representatives of the signatory countries will be alone responsible for setting up the rules of procedure of the new Unified Patent Court. The rules of procedure deal with numerous matters of the procedure that concern the procedural rights of the parties.
The definition of this set of rules that regard the basic rights of the parties without democratic legitimation by the parliaments is, for countries like Germany, even unconstitutional.
Fragmentation of legal positions
Croatia, Poland and Spain are not signatories of this agreement.
The requests of the European DIGITAL SME Alliance
Digital SMEs need a European patent system that protects them from the attacks of owners of extensive portfolios often based on unlawful software patents. For small and medium sized software companies it is essential that the patent system prevent the implementation of questionable patents. Thus, the procedural law should ensure a complete examination of the patent, prior to the decision on conviction for an alleged patent infringement. An EU wide patent system should be based on EU law and not on an international agreement.
About the European DIGITAL SME Alliance
The European Digital SME Alliance (former PIN SME) is an association formed in 2007 to represent the interests of Europe’s ICT SME sector. Currently ten national and regional associations are members, representing tens of thousands ICT SME companies in Europe. The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about. It provides a voice for ICT SMEs in the policy and business arenas and is already represented in several EU expert groups and taskforces.
Membership
BASSCOM – Bulgarian Association of Software Companies (BULGARIA), CNA -‐Comunicazione e Terziario Avanzato, Confederazione Nazionale dell’Artigianato e della Piccola e Media impresa (ITALY), UKITA, United Kingdom IT Association (GREAT BRITAIN), CONETIC – Confederación Española de Empresas de Tecnologias de la Información, Communicaciones y Electrónica (SPAIN), BITMi – Bundesverband IT-‐Mittelstand (GERMANY), GPNI – Groupement Professionnel National de l’Informatique (FRANCE), it-‐forum midtjylland (DENMARK), SwissMedia – Swiss IT & Multimedia Association (SWITZERLAND), Belgrade Chamber of Commerce, IT Association (SERBIA), Vojvodina ICT Cluster (SERBIA), STIKK – Kosovo Association of Information and Communication Technology (KOSOVO), Balkan and Black Sea ICT Clusters Network (ALBANIA, BOSNIA AND HERZEGOVINA, BULGARIA, GREECE, MONTENEGRO, ROMANIA, SERBIA, KOSOVO, TURKEY, REPUBLIC OF MACEDONIA, UKRAINE)
The UPC basically mirrors what we find in TPP and TTIP. It’s a corporate attack on democracy itself and it is falsely advertised to the public (if it’s advertised at all). Protests may be needed and more antagonism from those affected is now imperative. █
Permalink
Send this to a friend
Posted in Europe, Patents at 2:35 am by Dr. Roy Schestowitz
Battistelli and his ilk hope to keep it under the wraps, without any public backlash/flak like TPP and TTIP have received
Summary: The coup d’état of the EPO, large applicants (massive global corporations), and their patent lawyers continues with shameless lobbying, new unsubstantiated rumours, and the self-fulfilling prophecies strategy (to depress the opposition and lower its morale)
THERE is virtually no open debate or investigative journalism in the corporate media about the UPC (when it’s mentioned at all, if it’s ever mentioned, it’s corporate propaganda), the corporations-leaning deal which patent lawyers and their largest clients are crafting and drafting with help from clueless politicians, national patent offices, and EPO officials such as Battistelli. This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.
“This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.”While patent law firms keep us distracted with puff pieces like “Protecting software inventions in Europe” or “EPO developments on patentability of biotechnology inventions” (April 11th [1, 2, 3]) much bigger things are happening (not the openwashing of UPC, as seen in [1] below), which can serve to legitimise software patents in Europe and also bring patent trolls to the entire continent and beyond it (Britain gets them already).
Proponents of software patents already start to insinuate that it will be easier to be granted software patents in Europe than in the Unites States. As one of them put it a few days ago [1, 2, 3], “Message from the EPO to US Software Applicants: Give us your rejected, your software applns in 3600 yearning to be granted; The Alice-rejected inventions of your teeming shore, Send these, the disrespected, tempest tossed software inventions to us: We lift our lamp beside the Golden Door to issuance and validation in Europe.”
“What about the option of blocking it altogether?”Sadly, under the regime of the clueless Battistelli there is already some truth to it and this closer look by Merpel suggests that a wholly horrible package is expected to come with UPC. To quote: “Of course there are a number of things that need to be resolved as the clock starts ticking down on the UPC opening its doors, the Code of Conduct being one of them. However, while there is still time, it is important that the uncertainty and issues outlined in CCBE’s letter should be fully considered and addressed, with the current draft being a launching off point. Further, Merpel hopes that the current draft is circulated more widely so that the larger European profession, who will be bound by the Code, is given an opportunity to comment.”
What about the option of blocking it altogether? And why does Merpel assume that this is inevitable and that “the clock starts ticking down on the UPC opening its doors”? There are all sorts of great barriers which remain. The Bristows colleague of Merpel, a longtime proponent of software patents and the UPC, would probably have Merpel and others aware only of the ‘good’ news about UPC, not the rest. This booster has been meddling in UPC affairs for quite a while, this time omitting any of the negative publicity around UPC and instead latching onto this speculation from Italy. Italy opposed this package vigorously and rejected it strongly half a decade ago when it was called “EU Patent” [1, 2, 3]. It still hasn’t consented to it. “After a sunny lunch this afternoon,” the Bristows employee writes about herself in third person narrative, “the AmeriKat returned to her desk to find some very exciting news from her friends at leading Italian IP firm, Trevisan Cuonzo, about the status of Italy’s UPC ratification process.”
They would wish so, wouldn’t they?
“They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale.”So a law firm hears from another law firm about something and now they hope to give Italians the impression that their language and interests are being abandoned and there’s nothing they can do to stop it? Seems like yet another go at self-fulfilling prophecies. They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale. For shame. Those propagandists have been doing a lot of damage and Bristows played a significant role in this propaganda for quite some time, often taking advantage of IP Kat as a platform (because almost nobody bothers with Bristows’ own platform, even when they opportunistically — for marketing purposes — call it “Bristows UPC”).
Here is one comment posted in response to the rumour mill:
My guess is that the Netherlands will try to be with the first implementing countries at all cost… It passed the stage Italy currently is in months ago, and presented the agreement (well: the law approving the UPC Agreement) to parliament 2 months ago and is currently busy answering the first round of written questions by the responsible parliamentary committee. The government also requested the legislation to be fast-tracked.
However, there seems to be trouble with the advice of the Council of State (Raad van State) on the implementing legislation. The implementing legislation was thus not accompanying the approval of the agreement, when it was presented to parliament (which was the plan from the beginning), and the government has requested additional advice from the Council of State on “a new European patent system” (which is very special).
My guess therefore: NL will be nr 13, but the implementing legislation will come later….
Well, it’s a de facto coup; the UPC keeps changing names, which makes effective public criticism difficult and also misleads/confuses the public. EPO officials are not traveling to nations that wish to leave the EU and push the UPC down their officials' throats to bypass the referendum (or equivalent process). Not a coincidence. Bristow wants London to become a patent litigation hub and many other patent firms also look after their own interests, irrespective of what the general public wants and deserves. Watch how the London-based IAM tries pushing a similar meta-industry (patent feuds) into Asia, making it sound like a contest again (preaching and shaming, not objectively reporting):
Authorities in Shanghai have made fresh calls for the city to become an IP centre in recent months. The plans include efforts to improve IP rights enforcement, in both the judicial and administrative spheres, which is surely a prerequisite to having any sort of transactional activity. But like past blueprints, it also calls for building an ecosystem for IP trading, for example by attracting services providers that can facilitate and advise on deals, and professionals with the requisite expertise. The head of the Shanghai IP Office says that an IP ‘trading centre’ will be established within the year.
For a long time, Singapore and Hong Kong have been the most prominent jurisdictions vying for the hub mantle. The Lion City’s efforts have been decade-long and wide-ranging, and resulted in significant changes to the IP environment; the drive has seen it introduce a positive grant patent system, train its own patent examiners and other IP professionals, and open up the market to competition from foreign patent agents. Hong Kong’s plans, by contrast, have been more narrowly focused on IP trading, premised on its combination of a common law legal system and easy access to mainland China. Malaysia joined the fray about three years ago, pledging $65 million towards an IP financing plan that emphasised the collateralisation of patents, especially by SMEs.
Asia has been a lot more pacific on the patent front, but patent lawyers in Europe and the US obviously want to change that. They profit from making a mess. IAM itself is more of an advocacy site (for patent trolls, lawyers etc.) and it previously used shame tactics to pressure European officials to adopt the UPC, as we repeatedly showed here. █
Related/contextual items from the news:
-
Using Private Cloud and Drupal as a starting point together with small expert partners and agile management the new platform for the European UPC has been shaped to the exact requirements and quickly adapted while more needs surfaced. The only ready to use Open Source tool used has been Zarafa Collaboration Platform which integrated with the Case Management System will provide secure email, instant messaging, file sharing and video conferencing to the platform’s users.
The result is that, thanks to Open Source based platform and by working with SMEs, the UK IPO team has been able to deliver to the Unified Patent Court team the project earlier than planned and under budget.
Permalink
Send this to a friend
Posted in Australia, Patents at 2:07 am by Dr. Roy Schestowitz
Summary: Even though much of the Australian and the international media focused on copyright-related findings of Australia’s Productivity Commission, the findings against software patents continue to be mentioned to this date
At the start of this month and end of last month we wrote about an Australian recommendation to abolish software patents for good. Some corporate media came to cover it several days later (even over a week later), under the headline “Australian Gov’t. Body Recommends Banning Software Patents”. Here are the opening paragraphs:
Australia’s Productivity Commission wants to exclude business methods and software from patentable subject matter under that country’s laws.
The APC’s draft report on Australia’s “Intellectual Property Arrangements” called for a patent law amendment to explicitly exclude those types of inventions from patent protection.
There is a “clear case” to disallow the patenting of software and business methods because there’s evidence that patents in those areas don’t encourage new or valuable innovation, the draft issued April 29 said. What’s more, such patents can impede competition.
Having contacted some Australian activists against software patents about this, I was surprised to see that they hadn’t noticed, probably because the media mostly focused on other findings of the Commission, mostly copyright-related. Here are Peter Caporn and Rebecca Hembling from Wrays, an Australia law firm, mentioning this aspect somewhere towards the end of their new analysis:
Business Methods and Software (BM&S)
The Commission suggests that their newly characterised technology subset ‘BM&S’ should be specifically excluded from patent protection. Patents on this technology is said to be ‘unnecessary’, a conclusion bound to inspire a robust response. The Commission has adopted a narrow view of how ip relating to business methods and software is used and the impact it has. It will be particularly interesting to see if the reasoning set out as support for this draft recommendation survives the submissions that it will no doubt attract in response.
It sure looks like much of the media either missed or overlooked this one particular aspect of the findings, which is somewhat of a shame. If nobody notices or takes into account such input, will it have a lasting impact? █
Permalink
Send this to a friend