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Difference between revisions of "Software patents exist in Europe, kinda"

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'''Software patents exist in [[Europe]], kinda'''.  The [[European Patent Office grants software patents]] and courts in [[Germany]] and the [[UK]] have upheld software patents.
 
'''Software patents exist in [[Europe]], kinda'''.  The [[European Patent Office grants software patents]] and courts in [[Germany]] and the [[UK]] have upheld software patents.

Revision as of 09:51, 17 June 2010


Software patents exist in Europe, kinda. The European Patent Office grants software patents and courts in Germany and the UK have upheld software patents.

There are three main sources of patent governance in Europe: legislation, patent offices, and courts. The rules are in the legislation, these rules are interpreted on a daily basis at the patent office(s) by regular folk who hold not special position in our democracy, and disputes are settled by asking a judge who does hold a special position in our democracy.

(This breakdown mirrors somewhat the traditional separation of powers legislature-executive-judiciary, but since the UPLS proposes to introduce a new type of court that would be under the control of the patent office(s), we can't really claim that the separation of powers is a defining characteristic.)

Why fewer court cases?

(See also: Forum shopping#For litigation)

Firstly, counting court cases and lawsuits measures only one category of harm. Harm with neither litigation nor threats is more serious, and occurs as much in Europe as in the USA.

There's very little litigation in Europe because most software companies with enough money to be worth suing are active in many countries. This means the patent holder can go forum shopping to pick the best venue, and they usually pick the USA.

There are various reasons to litigate in the USA:

  • Highest chance of success - the USA has upheld a lot of software patents, including low-quality ones
  • Broader effects - if the patent holder wins in Germany, that only proves that their patent is valid in Germany. Financially, it's more interesting for the patent holder can get their patent upheld in the USA.
  • Higher damages - if the patent holder wins in Germany, they can only be awarded damages for the number of infringements that happened in Germany. Damages for all infringements in the USA will be higher in most cases.

What about the legislation?

The legislation (which comes from the European Patent Convention) says that "programs for computers ... are not patentable ... as such". In recent years, this has been interpreted by the European Patent Organisation as meaning that software patents are permitted. (See: as such)

Many people interpret the legislation as excluding software ideas from patentability, but Europe's legal systems attribute official interpretation to courts, and courts in the UK and Germany have upheld software patents.

Who can change the legislation?

The legislation can be changed at any of three levels: EPC signatories, the EU, and individual member states.

When the EU passes legislation on a topic, that topic becomes an EU competence and the member states lose their freedom to legislate on that topic. The EU proposed legislation on patentable subject matter (see: EU software patents directive), but that proposal was rejected, so the current situation (as of 2010) is that member states can still adopt local anti-software patent legislation if they like. The EU also has the option of proposing legislation.

Is the UK and Germany case law strong?

(See: Case law in Germany and Case law in the UK)

The UK case law is not strong. The Aerotel v. Telco (2006, UK) case looked at the value of software patents and ruled that they are bad for the UK and are thus invalid. The Symbian v. Comptroller General (2008, UK) case took a different approach and decided that the UK should follow the European Patent Office (EPO) whenever the EPO's interpretation is reasonable. Thus, if the EPO is forced to change it's interpretation, or if the UK courts can be convinced that UK interests are more important than consistency with the EPO, then this harmful case law will disappear.

(We don't yet have much analysis of the German case law. Help sought.)

For the 2010 court case that upheld the Microsoft FAT patents, it should be noted that the court has not yet (2010-05-15) published their reasoning, and that court can only respond to whatever question was posed. So if the question was not about the validity of patenting software, then their ruling does not support software patents. Their ruling might be on a question of prior art (did someone else invent something too similar before Microsoft?), or maybe they were asked if the idea is too obvious.

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