The Foundation for a Free Information Infrastructure (FFII), a pan-European alliance defending the rights to free and competitive software, has
issued a statment about this now third attempt to sneak software patents into the EU by creating a Unitary Patent Court (UPC):
Quote:
Back in 2007, we documented the problems of the predecessor of the UPC, the European Patent Litigation Agreement (EPLA). The UPC is nothing more than an EPLA “réchauffé”. Most of the problems listed are roughly the same as the ones we listed in 2007 (see http://epla.ffii.org/analysis):
1. Software patents granted by the EPO will be made enforceable, using loopholes like the “technical effect” or “as such”;
2. Litigation will be more expensive, especially for small companies, raising the cost for a simple case compared to the current situation, awarding EU-wide damages, and stopping products from the market even if the patent is later found invalid (bifurcation);
3. A captive Unitary Patent Court: we have independent national courts and Supreme Courts for civil patent cases, we will have a captive Unitary Patent Court, with no Court of the Justice of the EU nor the European Parliament as correctives;
4. A tribunal not established by law: the Rules of procedure of the UPC were made by an administrative committee, which is not compliant with the principle of Art6 of the European Convention on Human Rights (ECHR) on a “tribunal established by law”;
5. A patent office (the EPO) not following the Rule of Law: an administration which has diplomatic immunity, and which cannot be sued for maladministration (or refusal to grant) in front of an independent court.
We invite the European Commission not to pursue the Unitary Patent project any further, as it has too many deficiencies, and look at simpler and cheaper alternatives, such as installing specialized tribunals within the premises of the European Court of Justice, like it was done for EU trademarks.
|
This plan for a centralized patent court aims to circumvent existing structures and put into place an entity outside of supervision or correction from competing courts.
Point #1 above is key. Software patents have shown themselves to be very harmful to business, especially small and medium-sized ones, and to innovation in general. Patents govern actual
usage and not copying, writing, or development, so this will also hit individuals, schools, and governments as hard as it will hit businesses since they all use software.
The only solution is prevention. There is no way to code around the problem presented by software patents, if the new software does what is described in the patent, then it infringes now matter how the code was made or acquired. Additionally,
Non-Practicing Entities (NPE) have been stockpiling invalid patents on software, algorithms, and business methods for years, everything from printing an e-mail to basic computer science heuristics.
The FFII statement is well worth reading.
FFII warns against another attempt to sneak software patents into EU law
