Stop Software Patents

„Software Patents in Europe via caselaw of a Central Patent Court“

HSF2009 - Paris – 29 June 2009

Benjamin Henrion <bhenrion at ffii.org>

http://www.stopsoftwarepatents.org

http://www.ffii.org

Law in Europe

● 1973: European Patent Convention● Art52.2: Computer programs are excluded of patentability

● Art52.3: exclusion „as such“

Change the Law● 2000: European Patent Convention● Deletion fails

● 2005: Software Patent Directive● Rejected by Parliament

A battle won but...

...not the war:The Patent Empire

strikes back

Change the Courts

● 2006: Consultation● BSA-EICTA: central caselaw

● 2006: EPLA● Remove National Courts● Replace by Central Court

● 2009: EU-EPLA = UPLS

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.”

--German Federal Ministry of Economics and Technology

Central Caselaw“Baumann added that the new court was

not intended to "codify software patents", but it was hoped it would provide better intellectual property protection for inventions with embedded software, such as mobile phones and satellite navigation systems.”

— James Murray, IT Week

Central Caselaw“Baumann added that the new court was

not intended to "codify software patents", but it was hoped it would provide better intellectual property protection for inventions with embedded software, such as mobile phones and satellite navigation systems.”

— James Murray, IT Week

Saint Graal

„2009 must be the year for the negotiations in Brussels

a breakthrough in the creation of the Community

patent and a European patent court“

--Brigitte Zypries, German Ministry of Justice

UPLS● UPLS = United Patent Litigation System● International treaty ● Treaty where EU could join● Patent injunctions from Turkey

● No counter legislator● Hand picked judges

UPLS● UPLS = United Patent Litigation System● Human rights (TPB example)● Constitutional rights?● Unanimity● Location of courts● Risk of forum shopping● Eastern District of Iceland?

UPLS„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.“– FFII: European Commission pushes for software patents via a trusted court

UPLS● UPLS = United Patent Litigation System● Human rights (TPB example)● Constitutional rights?● Unanimity● Location of courts● Risk of forum shopping● Eastern District of Iceland?

Another way

„According to the Parliament, the Community Patent has been

mentioned by a number of MEPs as the appropriate legislative

instrument to address the issue of software patentability.“

— Out-law, Community Patent gets embroiled in software patent fight (7th July 2005)

Avoid the debate„Does the Community Patent restart the

debate over patents for computer-implemented inventions (software patents)? Why or why not? Pilch: It

restarts the push for software patents, without a debate.[…] The Community Patent plan doesn't even mention the

subject of software, although, make no mistake about it, software patentability

is one of the main drivers of these plans.“

— NSP, Current situation

Global Contagion

● India● US (Bilski)● New Zealand (2nd of July)● EPO (Enlarged Board of Appeal)

EPO Enlarged Board of Appeal

● Referral by the President● 100 letters received● Microsoft, IBM, FFII, /tmp/lab, etc...

● Goal: EPO asks itself how to give more legal certainty to its practice

EPO Enlarged Board of Appeal

● Very low probability to ban software patents

● Will allow to claim software● Will fuel the rage against software patents

● Lobby the judges

EPO Enlarged Board of Appeal

● Reinterpret the law● This decision will guide the hands of the courts

● 4 biased questions● Captive patent judges?

Judge Uwe Scharen

„Scharen is one of the BGH judges who followed the EPO's lead in

making software de facto patentable in Germany.“

–-Hartmut Pilch, FFII

Judge Uwe Scharen

„Due to an administrative error Ms. K. Härmand was designated to sit in the present case, instead of Mr. U. Scharen, who should have been designated according to the business distribution scheme of the Enlarged Board of Appeal.“

● –-Wikipedia page about G 3/08:

http://en.wikipedia.org/wiki/G_3/08

Judge Uwe Scharen

„The possibility of the software in question being subject to copyright protection is not an obstacle for its patentability.

Software can, in principle, just like any other object, be patented. This can be different only in exceptional cases. [...]“

–- Uwe Scharen, Patentierbarkeit von Software, 17./18. November 2000, München

World Day next 24 September

National Road

● Ask for a national law● Clarification 1: in whatever form it is claimed

● Clarification 2: patentable if contribution is physical

Tshirt & Questions?