Flood of EU Software Patents on the Way?

The idea of bringing in a unitary EU patent system has been rolling around Brussels so long most people have assumed it will never happen. But there is a clear push on at the moment to realise these plans once and for all. That's hinted at in...


The idea of bringing in a unitary EU patent system has been rolling around Brussels so long most people have assumed it will never happen. But there is a clear push on at the moment to realise these plans once and for all. That's hinted at in this very low-key press release from yesterday [.pdf]:

Ministers in charge of intellectual property files held a policy debate on the creation of a unified patent litigation court, as a part of a package aimed at establishing a patent system with unitary effect that ensure uniform protection for inventions across Europe, together with the corresponding translation arrangements.

The debate took place on the basis of a compromise package drawn up by the Presidency.

The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011.

What makes the current work on this topic scandalous is that is taking place largely in secret: this is a hugely important area, with implications for all businesses, and yet we are not permitted to see how the final negotiations are being conducted. Instead, our overlords in Brussels intend to present us with a fait accompli which we must just accept. This is old-style politics at its worst – and one that looks perilously out of touch with a world being swept by street protests against arbitrary exercise of self-interested power.

Aside from the general issue of transparency and accountability, there is also a more particular concern for readers of this blog. Despite the fact that in Europe patents may not be given for software "as such", patents are being issued for software using a variety of legal tricks (mostly involving extremely dubious redefinition of key terms to avoid the ban on software patents.) If the EU Unitary patent comes into force it is likely to lead to even more of these non-software patent software patents being granted. Richard Stallman explains why:

Under this system, if the European Patent Office issues a patent, it will automatically be valid in every participating country, which in this case means all of the EU except for Spain and Italy.

How would that affect software patents? Evidently, either the unitary patent system would allow software patents or it wouldn't. If it allows them, no country will be able to escape them on its own. That would be bad, but what if the system rejects software patents? Then it would be good – right?

Right – except the plan was designed to prevent that. A small but crucial detail in the plan is that appeals against the EPO's decisions would be decided based on the EPO's own rules. The EPO could thus tie European business and computer users in knots to its heart's content.

One of the key issues that still seems up in the air is whether the European Court of Justice would be involved in deciding on the validity of patents. That matters, because it has shown itself quite savvy on technical matters recently, and there is a good chance that it would be much more sceptical about software patents than the EPO.

As the press release quoted above indicates, the EU bureaucratic machine hopes to ram through an agreement by the end of the year. Another section explains what will happen then:

During the last weeks, EU preparatory bodies have carried out intensive work on the other parts that configure the package: two draft regulations implementing enhanced cooperation in the area of unitary patent protection (see press release 11831/11). Following negotiations with the European Parliament, a provisional agreement has been achieved between the Council and the Parliament, which includes additional provisions for the benefit of the small and medium-sized enterprises (SMEs) in the future use of unitary patent protection.

The European Parliament is expected to vote on the two draft regulations for the creation of unitary patent protection and the applicable translation arrangements early in 2012.

Although that indicates that the European Parliament has already agreed to the "provisional agreement", this was only with various representatives of it as far as I am aware. That means there will be scope for contacting individual MEPs next year and asking them to vote against the final agreement when it is presented to them. Assuming the politicians finish stitching us up in the next few weeks, I'll report again in 2012 with some suggestions on what we can do to prevent this software patent train-wreck from happening.

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