Software Patents in Europe via caselaw of a Central Patent Court

1. 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

2. Law in Europe
● 1973: European Patent
Convention
● Art52.2: Computer programs
are excluded of patentability
● Art52.3: exclusion „as such“

3. Change the Law
● 2000: European Patent
Convention
Deletion fails
●
● 2005: Software Patent
Directive
● Rejected by Parliament

4. A battle won but...

5. ...not the war:
The Patent Empire
strikes back

6. Change the Courts
● 2006: Consultation
BSA-EICTA: central caselaw
●
● 2006: EPLA
Remove National Courts
●
● Replace by Central Court
● 2009: EU-EPLA = UPLS

7. 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

8. 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

9. 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

10. 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

11. UPLS
● UPLS = United Patent
Litigation System
● International treaty
● Treaty where EU could join
● Patent injunctions from
Turkey
● No counter legislator
● Hand picked judges

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

13. 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

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

15. 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)

16. 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

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

18. 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

19. 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

20. EPO Enlarged Board of
Appeal
● Reinterpret the law
● This decision will guide the
hands of the courts
● 4 biased questions
● Captive patent judges?

21. 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

22. 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

23. 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

24. World Day next 24
September

25. National Road
● Ask for a national law
● Clarification 1: in whatever
form it is claimed
● Clarification 2: patentable if
contribution is physical

26. Tshirt & Questions?