BLOG@IP::JUR

 

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The anti-patent lobby ???

There is no anti-patent lobby, but there are hundreds of thousands of people opposing to the unbounded [*] extension of patentable subject matter in E.U., contrary to the letter and the spirit of the law (Munich Convention Art 52).

I guess you could call them anti-softwarepatent lobby, but "forgetting" the software part is disingenuous : you are setting up straw-man argument.

[*] because in practice, the EPO hubris will find the most laughable excuses to circumvent the "technicality" criterion .
 
 

 

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Would you like to reflect again whether you really are "lost" when attempting to advise a client what is patentably "technical". Wouldn't you say that the concept is getting progressively firmer, by Darwinian survival of the fittest line of legal logic, as cases get decided in the EPO at TBA level, hundreds of them, if not already then quite soon.

And don't most CII Applicants well understand that they are routinely pushing the margins, so that it is inevitable that they will "win some, lose some". they factor this in to their patenting policy, don't they?

Isn't that better than some sort of common law (or ECJ) CAFC handing down snapshot binding precedents with flawed and soon out of date tests what is "technical".

Would you not agree that the chemists have it harder, with disconformities between the chemical Boards leaving chemical patent attorneys "lost", at least until they know the composition of the TBA that will hear the case. Shouldn't VP DG3 be more vigorously banging heads together here?

Let's ask Greg Aharonian to plead a CII case at the EPO, at TBA level. He has some interesting theories what makes a business method "technical" and it would be interesting to see how a TBA Decision would set about them.
 
 

 

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@AFrightenedComputerScientist:

Hmm..., well, a number of people have complained that I appear to be somewhat sloppy with regard to any discrimination between "anti-patent activists", on the one hand, and "anti-software-patent activists", on the other hand. And I must confess that I am increasingly experiencing difficulties in making any substantial difference.

Mr. Paul Graham wrote: "[...] One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not. [...]"

And, Mark F. Schultz and David B. Walker wrote:"[...] International intellectual property has become a far livelier subject in recent years with the rise of a counteragenda far more skeptical of the value of intellectual property rights. This paper describes this counter-agenda, which it calls the 'New International IP Agenda.' Proponents of the New International IP Agenda contend that even if some intellectual property rights are a good thing, more are not necessarily better. They believe that the world's intellectual property laws have expanded to the point where they no longer strike a proper balance between the rights of intellectual property owners and the public good.1 They assert that intellectual property rights may impede research and innovation, distort pharmaceutical research priorities, interfere with economic development in the developing world, and raise the cost of a host of items needed by the poorest of the poor, including pharmaceuticals, software, and educational materials. A group of developing countries led by Brazil and Argentina thus has proposed that there should be a presumption against increased international protection of IP rights, allowing 'higher standards of protection . . . only when it is clearly necessary . . . and where the benefits outweigh the costs of protection.' [...]"

Maybe some individuals campaigning against patents on CIIs have only software in mind but I guess many of them would be very much prepared to accept any "collateral damage" to the patent system in ist entirety caused by reforms to take software out of the patent system. As I have explained umpteen times, for taking out software from the patent system on the post-grant side (infringement) by means of exclusion on the pre-grant side, you would have to ban the patentability not only of cimputer-implemented inventions but of each and every computer-implementable invention. With other words, signal processing, even if done purely on the basis of hardware, would have to be excluded from patentability.

And, the letter and the spirit of the law (Munich Convention Art 52) is finally interpreted by the competent Boards of Appeal, not by the general public, whether they like the interpretation given by the Boards or not. The Boards are not bening the law just because of the common laymen do not understand the methodology of interpretation of statutory provisions.

However, the general public is of course free to demand changes to the statutory provisions. However, up to now there have not been any effective political majorities to amend statutory patent law throughout the EU in a way as desired by the patent critics.
 
 

 

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However, on the other hand, it is also clear that any attempt to find a rble definition eligible for incorporation in the statutory law is doomed to nder the present political circumstances.

Why that? Widely diverging political opinion does not neccesarily preclude cise. Anyway, I guess a move in the direction of the latter should start by sng for a common terminology -- even as a sign of the stakeholders' good will
 
 

 

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It's not correct to say that the letter and the spirit of the law (Munich Convention Art 52) is finally interpreted by the competent Boards of Appeal: the letter and spirit of the law is finally interpreted by the national courts of member states.

Indeed, I believe it is in the statutes somewhere that the EPO should only grant a patent if it believes it would be upheld in the courts of at least half of the contracting states.

My belief, only strengthened by the most recent decision on methods of presenting information, is that the EPO has jumped the shark. I suspect that other courts in future may well prove sympathetic to the analysis in the UK CFPH judgment, that the various Art 52 exclusions impose limitations on their own terms, to which discussions of whether either the claim as a whole or the inventive step are "technical" may not be a very helpful guide.

In particular, I find the logic of the judgment at paragraph 102 and 103 notably persuasive: that if a patent would foreclose the use of a particular computer program in all circumstances, then it may indeed be said to be directed to a computer program as such.

I suspect other courts may well find that quite telling, as well.

The EPO Boards of Appeal have already pushed the boundaries beyond the limit that the UK courts are prepared to follow them. The German BGH also now looks a lot less lenient towards software patents than it did in 1999-2001.

Will national courts meekly follow the EPO in its ongoing exploration of broader and broader notions of patentability? I do hope you're advising your clients not necessarily to assume so.
 
 

 

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It's not correct to say that the letter and the spirit of the law (Munich Convention Art 52) is finally interpreted by the competent Boards of Appeal: the letter and spirit of the law is finally interpreted by the national courts of member states.

Indeed, I believe it is in the statutes somewhere that the EPO should only grant a patent if it believes it would be upheld in the courts of at least half of the contracting states.

My belief, only strengthened by the most recent decision on methods of presenting information, is that the EPO has jumped the shark. I suspect that other courts in future may well prove sympathetic to the analysis in the UK CFPH judgment, that the various Art 52 exclusions impose limitations on their own terms, to which discussions of whether either the claim as a whole or the inventive step are "technical" may not be a very helpful guide.

In particular, I find the logic of the judgment at paragraph 102 and 103 notably persuasive: that if a patent would foreclose the use of a particular computer program in all circumstances, then it may indeed be said to be directed to a computer program as such.

I suspect other courts may well find that quite telling, as well.

The EPO Boards of Appeal have already pushed the boundaries beyond the limit that the UK courts are prepared to follow them. The German BGH also now looks a lot less lenient towards software patents than it did in 1999-2001.

Will national courts meekly follow the EPO in its ongoing exploration of broader and broader notions of patentability? I do hope you're advising your clients not necessarily to assume so.
 
 

 

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Mr Horn, I do not agree with your arguments because patents should be granted for inventions and not for there applications.
The tests of techinality, novelty and inventive step are supposed to be applied to the "would-be invention", not their field of application.
The fact that software can be used to solve problems that used to be solved by hardware is completely irrelevent !
Would you and Mr. Paul Graham also demand that safety rules for driving training using real cars should also be enforced on computer simulators used to train would-be drivers ?

However, I do understand how the shift from hardware to software is relevent and worrisome to patent professionals...
 
 

 

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@InventiveStep:

You are right if you look at the (national) cancellation proceedings. My focus was set on the pre-grant procedure before the EPO up to the "Decision to Grant", and for this phase the BoA have final authority to interpret the EPC.

And, as I mentioned earlier, national courts so far have been quite reluctant to oppose expressively against any legal doctrines created by the BoA. Cancellation before a national court usually is easy going only if the plaintiff introduces fresh prior art (not discussed before EPO) killing novelty of the patented subject-matter into the proceedings.

If I remember that matter correctly, the UK CFPH judgment was related to some national UK patent application, not to the UK part of some European Patent granted by the EPO.

I am not aware that it is in the statutes somewhere that the EPO should only grant a patent if it believes it would be upheld in the courts of at least half of the contracting states.
 
 

 

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@AFrightenedComputerScientist:

"The fact that software can be used to solve problems that used to be solved by hardware is completely irrelevent!"

The fact that software can be used to solve problems that used to be solved by hardware might be considered irrelevant insofar as the patent system covers inventions irrespective their implementation as a fixed electrical circuitry or as a combination of software running on a processor.

Whenever patent offices grant patents on non-novel and/or obvious subject-matters, then they have to be reformed. I think the IBM-sponsored Peer-To-Peer Patent Project is an interesting attempt to enhance the work processes of patent offices.

I prefer reforming patent offices over wrecking the patent system in its entirety.
 
 

 

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@MaxDrei:

"Wouldn't you say that the concept is getting progressively firmer, by Darwinian survival of the fittest line of legal logic, as cases get decided in the EPO at TBA level, hundreds of them, if not already then quite soon."

Well, maybe in ten years or so ...

As of today, I feel lost when attempting to predict chances of success/failure in cases where a claim comprises novel features on the borderline of technicality which are not listed in such example lists as given by Dr. Neppel or if those features are not at least somehow similar to listed examples.

If the Client is ambitious of obtaining a patent and has enough money, of course, my advice would be "It's a bit risky, but if you can afford a failure, then try."

What else should I do?

"Would you not agree that the chemists have it harder, with disconformities between the chemical Boards leaving chemical patent attorneys 'lost', at least until they know the composition of the TBA that will hear the case. Shouldn't VP DG3 be more vigorously banging heads together here?"

Well, as I am not a chemist I do have the privilege never to appear befor such TBAs.

But, to be serious, it might well be that EPO should do reforms there.

I never globally have defended the "status quo" of the Offices. Don't spare the Offices, if there are deficiencies.
 
 

 

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@Mr Horn :
I refuse to follow you on the ground of "inventions [and]their implementation [...] as a combination of software running on a processor" also known as "the CII rethoric".
I believe that "software as such" is ALWAYS running (or intended to run) on a processor. So "software running on a processor" IS "software as such", hence it shall not be regarded as inventions .

To me, you sentence about "invention [...] implementation" is meaningless : you do not implement inventions. You implement (non patentable) ideas into hardware inventions OR software non-inventions as per Art 52 of Munich convention.
 
 

 

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@AFrightenedComputerScientist:

I would like to suggest: let's agree to differ so far.

"I believe that 'software as such' is ALWAYS running (or intended to run) on a processor. So 'software running on a processor' IS 'software as such', hence it shall not be regarded as inventions."

No BoA appears to be ready to follow you this way, and no national court ever has cancelled a European Patent grented by EPO on the basis of such reasoning, and any attempts by patent critics to amend statutory law this way have failed so far.

Why do you further insist on going this way politically?

Believe me, I do see at least some of the problems SMEs can encounter with regard to the patent system.

Politically, the anti-patent mainstream of our days appears to insist on "solving" problems by way of exclusion of problematic subject-matter from patentability on the pre-grant side of the patent system. In particular, in order to establish that what I like to call "Stallman's Utopia" (i.e. a world where no patent is ever granted, the claim of which potentially enforceable against anybody commercially tinkering with software) you would have to exclude not only computer-implemented inventions from patentability but also all computer-implementable inventions.

Dont' you think that you make your life very, very difficult if you promote political ideas which would take away patent protection not only for inventions concerning PC and Internet server systems but also for most inventions in the fields of mobile phones, automotives, elevators and other embedded systems?

Are you really surprised that companies like BMW, Siemens, Nokia or Ericsson (in order to name only a very few of them) did not enthusiastically welcome proposals to exclude virtually everything related to software from patentability as seen in the European Parliament during the past years?

BMW argues that about one third of the money to develop a new car model goes into projects related to embedded systems.
 
 

 

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@Axel

Axel, are you seriously suggesting that whether a patent had been granted in Munich or Newport would make the slightest difference to a UK Court's analysis of the law?

You know that's not the case.

Spuriously implying that there might be any kind of distinction made in UK law between UK and EPO granted patents is wholly misleading, and does your readers a considerable disservice.
 
 

 

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@InventiveStep:

"Spuriously implying that there might be any kind of distinction made in UK law between UK and EPO granted patents is wholly misleading, and does your readers a considerable disservice."

Why you are so confident in presenting such assertion?

I assume judges are well aware that in case of a patent granted on the basis of national law only the respective national law applies.

However, if judges sit over some EPO patent they know that they are expected to interpret EPC law.

There is enough room for allowing differences, if so desired by competent judges, even if statutory law is almost identical (different case law to be considered etc.).

I would be inclined to say that it is common gossip amongst patent people here in Germany that judges of the Federal Patents Court in Munich as well as of the Federal Supreme Court in Karlsruhe would see the difference and make use thereof at will.

As I am not practising as a Patent Attorney in the UK, I cannot definitively say how UK judges see this question.

It is a very sensible political point, and most probably you would not get a direct answer to such questions from any of the judges involved. Rather, European patent judges including BoA members are used to have regular trans-European conference meetings on an annual basis or so, and perhaps they would try to sort out some problems on an informal level.

Do you have any striking example where a national judge has challenged central doctrines of patenting of CIIs as devleloped by the EPO BoAs?
 
 

 

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@Axel

The validity of all patents in the UK, whether granted by the United Kingdom Office or the EPO, is governed by the Patents Act (1977).

As is typical for international treaties, European directives and so forth, the European Patent Convention has no direct applicability in domestic courts, but applies only through its national transposition into national law -- in this case the PA (1977), which applies equally to GB and EP granted patents.

Section 130(7) of the PA (1977) provides that section 1(1) to (4), of the Act (covering exclusions from patentability) and various other section "are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty have in the territories to which those Conventions apply".

The desirability of having a uniform interpretation of patent law across Europe is accepted as a desideratum.

However, the EPO is not in a position to impose it. Final interpretation of English law rests with the English courts.

As the deputy judge explains at paragraphs 55 and 56 of the judgment in CFPH, "... it is not good that the law should be applied differently in London and Munich. That said, the EPO, beyond having certain limited powers to revoke patents it granted itself, has no jurisdiction over the patent law of the U.K. The EPO is not the European Court of Justice, and Parliament has not seen fit to confer such powers upon it. On matters of patent law the role of the EPO is persuasive, not prescriptive [(citing Merrill Dow (1996) and Genentech (1989)]. The EPO is not equipped with a staff of expert economists who are competent to decide if the patenting of business methods, or computer programs, would be good for our country and even if it was it would still be for our Parliament to decide. So, although we should pay careful attention to EPO decisions, and the decisions of other Convention courts, we are not bound to follow them blindly."

The deputy judge then went on to set out his understanding of the exclusions, based on the previous authorities in English law; remarks which apply equally to GB and EP granted patents; and which have since been cited without dissent in a number of other English High Court judgments.

As I understand it, this is the case all across Europe: with the possible exception of Sweden, there is no territory I am aware of that has given up the authority of its own courts to find their own path on interpreting the exclusions, regardless of whether the patents in question were granted by the EPO or by national offices.
 
 

 

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@InventiveStep:

"The validity of all patents in the UK, whether granted by the United Kingdom Office or the EPO, is governed by the Patents Act (1977)."

I fear I'll need to object.

Article 138 EPC is quite clear (emphasis added):

Article 138

Grounds for revocation

(1) Subject to the provisions of Article 139, a European patent may only be revoked under the law of a Contracting State, with effect for its territory, on the following grounds:

(a) if the subject-matter of the European patent is not patentable within the terms of Articles 52 to 57;

(b) if the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;

(c) if the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent was granted on a divisional application or on a new application filed in accordance with Article 61, beyond the content of the earlier application as filed;

(d) if the protection conferred by the European patent has been extended;

(e) if the proprietor of the European patent is not entitled under Article 60, paragraph 1.

(2) If the grounds for revocation only affect the European patent in part, revocation shall be pronounced in the form of a corresponding limitation of the said patent. If the national law so allows, the limitation may be effected in the form of an amendment to the claims, the description or the drawings.

Hence, the substantive law to be referred to when deciding on a patent cancellation case concerning a European Patent is completely given by the EPC alone whereas procedural matters etc. are governed by applicable national law. There is no room for applying any UK statutory provisions concerning the material conditions of patentability.
 
 

 

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@Axel

Indeed; these are provisions which are transposed into UK law by the Patents Act 1977. And, through that Act, they apply to GB patents just as they apply to UK designations of EP patents.

The statute law is just the same. But what we were discussing was the case law in Munich and in London - the interpretation of the statute law - and not the black letter law itself.

The validity of all patents in the UK, whether granted by the United Kingdom Office or the EPO, is governed by the relevant provisions of the European Patent Convention, as transposed in the Patents Act (1977), as interpreted by the English and Scottish courts.

"The most comprehensive discussion of the law in recent times is that of Mr Peter Prescott QC, sitting as a Deputy Judge of the Chancery Division in CFPH LLC's Application [2005] EWHC 1589 (Pat)" -- Lewison, J., in Aerotel vs Telco [2006] EWHC 997 (Pat).

The CFPH decision discusses how section 1 of the Patents Act (1977), and by extension Article 52 of the EPC, should properly be interpreted by the English courts, with respect to both GB and EP granted patents.

The decision notably rejects the idea that the concept of "technicity" has any ontological value for interpreting the exclusions beyond their black-letter statement in statute. The exclusions are not merely expressions of a need for technicity; rather, they stand on their own terms, to be interpreted on their own terms:

"I mention this near the outset of this judgment because it is important. If you look at the case law on the subject, both here and in Munich, you will find many references to "technical contribution", "technical result", and so on, being touchstones by which these cases are decided. The use of the word 'technical' as a short-hand expression in order to identify patentable subject-matter is often convenient. But it should be remembered that it was not used by the framers of the Patents Act 1977 or the European Patent Convention when they wanted to tell us what is or is not an 'invention'... The word 'technical' is not a solution. It is merely a restatement of the problem in different and more imprecise language."
-- Mr Prescott QC, CFPH, at paragraph 14.

Thus for example, the constraint that a patent application shall be excluded if it relates only to the subject matter or activities of programs for computers as programs for computers imposes a requirement which is specific and concrete, to be evaluated on its own terms, beyond vague notions of technicity.

In particular, as I mentioned in my original post, the deputy judge puts down a marker in the sand at paragraphs 102 and 103, that if a patent would foreclose the use of a particular computer program in all circumstances, then it may indeed be said to be directed to subject matter or activities relating to a computer program as such.

That analysis is fully consonant with the judgement of the Court of
Appeal on this very point in Gale's Application [1991] RPC 305 (CA); and with the judgment of Pumfrey J. in Halliburton v Smith [2005] EWHC 1623 (Pat), handed down the very same day.

So, for example, a new software technique giving increased speed or reduced memory usage by a computer program will not be held validly patentable in London (whatever the EPO has decided) -- unless the increased speed or reduced memory usage has a technical significance in a technical area beyond the execution of the computer program as such, one which could not equally well be achieved just by installing more memory or a faster processor as such; and unless the scope of the patent monopoly is explicitly limited just to such use.

That's why I return to my original comment: the interpretations of the EPO are not the whole story; furthermore, to the extent that the EPO continues to explore wider and wider limits of patentability, limited only by vaguer and vaguer notions of technicity, further and further from the black-letter law of the Convention itself, there is more and more a danger that the EPO will be seen to have jumped the shark, and national courts will refuse to meekly fall in line.
 
 

 

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it is interesting to examine the different ways that the courts in Germany, and those in England, interpret the EPC. Germany has the misfortune to be the biggest and most central EPC economy, with the biggest number of patent validity suits. So, naturally, it thinks that the rest of Europe should follow its line on validity (take for example novelty)and is mystified when it does not. England has no such illusions.

Germany thinks that England goes its own way, on interpretation of the law. This is because English courts have handed down decisions that contradict those in Germany. But that is not because England goes its own sweet way on the law (it is deferential to the EBA Decisions), but just because it uses different tools to find out the facts. The effectiveness of those tools can be seen in the use pharmaceutical companies (these days often the generics companies) are steadily making of the English courts, to establish the facts, and therby avoid what would otherwise be multi-national patent litigation.
 
 

 

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Politically, the anti-patent mainstream of our days appears to insist on "solving" problems by way of exclusion of problematic subject-matter from patentability on the pre-grant side of the patent system.


The reason the FFII focusses on the pre-grant phase, is simply that it's the most cost-effective for the market and society.

You want to minimise cases where applicants first spend money on a patent, then the applicant and opposition filers on opposition, and finally litigants and society on litigation with the end situation exactly the same as the one at the beginning, except that everyone (but the patent office and some lawyers) have less money and lost time.

These are all overhead costs, and with every measure you move to post-grant (by increasing what gets through pre-grant), you increase the financial overhead of the patent system (so it's only defensible if that overhead is clearly compensated by other factors). In each of the above steps steps, money is spent which no longer can be used for R&D, marketing and whatnot. You want to minimize that as much as possible.

It's similar with that peer-2-patent project: it shifts overhead costs, of a system which apparently doesn't work properly (otherwise there would be no need for such a project), to society. You don't solve the problems of software patents by making everyone work for free for the patent offices. If there ever was a communist idea in this discussion, this would be it...
 
 

 

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@JonasMaebe:

"The reason the FFII focusses on the pre-grant phase, is simply that it's the most cost-effective for the market and society."

Obviously, FFII is playing va bancque.

This way surely has the potential to cause a maximum of "collateral damages" because of, if consequently implemented, it would also take away patent protection from fields of technology (in particular in the field of embedded systems) where nobody has seriously complained so far. And during the past years I have not seen so far any particular wording for amended statutory provisions which, on the pre-grant side, could be deemed suitable to create something like "Stallman's Utopia" in the fields mainly represented by FFII without creating serious and detrimental side-effects with regard to the patentability of inventions other fields of technology.

This political tactics is "cheap" for the FFII only because of they think that it can be communicated easily to the intended audience whereas any discussion concerning patchworks of post-grant matters might, at the first glance, look less handsome, all of such effects taken for granted without expecting any negative feedback to FFII's supporters. Siemens, Nokia, or BMW are not on the FFII supporters' list anyway. And, coming to the starting point of this discussion, the pre-grant path politically goes well with various exploitable anti-patent resentments out there not confined to what FFII calls "software patents".

"You want to minimise cases where applicants first spend money on a patent, then the applicant and opposition filers on opposition, and finally litigants and society on litigation with the end situation exactly the same as the one at the beginning, except that everyone (but the patent office and some lawyers) have less money and lost time."

I do not see this as a problem. Applicants could, over the time, well be advised with regard to exemptions. We should not forget that even today there are exemptions in patent law.

"It's similar with that peer-2-patent project: it shifts overhead costs, of a system which apparently doesn't work properly (otherwise there would be no need for such a project), to society. You don't solve the problems of software patents by making everyone work for free for the patent offices. If there ever was a communist idea in this discussion, this would be it..."

Well, I do not see this project as being related only to help the patent offices. Such peer-to-peer projects might also or even in the first line help closing the gap between, on the one hand, the huge amount of technical knowledge potentially available in millions of patent documents, and, on the other hand, SMEs. By effectively discriminating irrelevant from relevant patent data such P2P-projects might greatly simplify the task of finding golden needles in the patent haystack. One day, such projects might, hence, generally boost the acceptance of the patent system (not only in the field of CIIs).

But for those circles breeding anti-patent resentments in general, such thoughts must come as shock and horror.

FFII is over-simplifying the patent system in order to facilitate its propagandistic efforts. In business, there is no such thing like a pure back-and-white dichotomy "pro patent" or "contra patent". In reality, it is all about "business models". And, in fact, the patent system facilitates some kinds of business models at the expense of others. How and with which effects this is done crucially depends on very particular details of statutory law, of case law, and of available contractual provisions. In real life, even the difference between a "RAND Zero"-Licence and a "RF" License may create or destroy certain business models. But FFII attempts to utilise a sledgehammer for adjusting a timepiece.
 
 

 

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This way surely has the potential to cause a maximum of "collateral damages" because of, if consequently implemented, it would also take away patent protection from fields of technology (in particular in the field of embedded systems) where nobody has seriously complained so far.

So e.g. the UK machine tools industry is "nobody"? Nor is this SME which makes embedded automotive software? What about Opera and its embedded web browser?


And during the past years I have not seen so far any particular wording for amended statutory provisions which, on the pre-grant side, could be deemed suitable to create something like "Stallman's Utopia" in the fields mainly represented by FFII without creating serious and detrimental side-effects with regard to the patentability of inventions other fields of technology.

It's indeed quite irrelevant where the software innovations are put to use if they are pure software innovations (i.e. logic/mathematical/mental rules). The 21 compromise amendments tabled by politicians from all political groups in the second EP reading however allowed for a grey area (which can never be eliminated, unless you either make everything or nothing at all patentable subject matter).

The Commission/Council proposal would probably have brought more legal certainty than the EP's counterproposals, namely by making it impossible for any court to reject software patents based on subject matter (let's leave aside the non-sensical "software which will never be run on a computer" EPO TBA "exemption"). The legal certainty that all software patents is patentable subject matter is not the kind of legal certainty that our backing companies are looking for.


This political tactics is "cheap" for the FFII only because of they think that it can be communicated easily to the intended audience whereas any discussion concerning patchworks of post-grant matters might, at the first glance, look less handsome, all of such effects taken for granted without expecting any negative feedback to FFII's supporters.

I've always proposed to get such a patchwork of post-grant measures (or whatever the proposed "solution of the day for the problems that plague software patents" might be) be first implemented for other patents, check whether it actually solves similar problems and if so, only then start thinking about pulling software into the fray. Not the other way round.

And you can argue all day that the EPO already grants such patents and that it's thus too late for that, but the fact remains that
a) national courts are at the very least not literally following the EPO, so we mainly have an executive branch running wild at this point;
b) in the end society still has the last word on how to proceed, in spite of all "competency" of the TBAs.


Siemens, Nokia, or BMW are not on the FFII supporters' list anyway.

Their patenting departments aren't indeed. Their engineers and (computer) scientists are whole other matter. And once they start getting swamped by Chinese companies, some of which are obtaining European software patents at a rate which is quite competitive with Microsoft, their management will probably start to realise that all these defensive patents don't help them at all in the end (and rather increase their chance of being sued -- see the Q&A at the end).


I do not see this as a problem. Applicants could, over the time, well be advised with regard to exemptions. We should not forget that even today there are exemptions in patent law.

The point is simply that the more patents get through the pre-grant phase, the more costs you get by definition: more licensing overhead, more litigation, more negotiations and deliberations over all sorts of exceptions required to keep the market working with all these (often overlapping) monopolies in place.

You need an equilibrium somewhere.


Well, I do not see this project as being related only to help the patent offices. Such peer-to-peer projects might also or even in the first line help closing the gap between, on the one hand, the huge amount of technical knowledge potentially available in millions of patent documents, and, on the other hand, SMEs.

The SMEs that come to us are not interested in any way in this supposedly hidden treasure. They worry because they are threatened by AllIsBlue and its patent on providing SMS2Mail services, or because Forgent threatened them over the JPEG patent (click link again after clicking on "not a spammer" button on target page), or because the MPEGLA tries to make them pay for a license they don't even need (because they use an already installed codec for which Microsoft already paid license fees).

All these companies care for is to sell their 100% self-written software. You may think that this is not a valid business model anymore in the software sector and that they should shut up, put up with the fact that someone else "thought of that first" and pay licensing fees to every Joe Schmuck who claims they are infringing something (since they don't have even have time for lawsuits, as they are busy writing software and trying to sell it), but that does not help these companies in any way. Peer2Patent or not.


In business, there is no such thing like a pure back-and-white dichotomy "pro patent" or "contra patent". In reality, it is all about "business models". And, in fact, the patent system facilitates some kinds of business models at the expense of others.

I completely agree that in case of businesses, this is exactly what it boils down to. And our constituency considers software patents to be very detrimental to their business model, which basically consists of writing and selling software.


How and with which effects this is done crucially depends on very particular details of statutory law, of case law, and of available contractual provisions. In real life, even the difference between a "RAND Zero"-Licence and a "RF" License may create or destroy certain business models. But FFII attempts to utilise a sledgehammer for adjusting a timepiece.

Software patents are the sledge hammer which is supposed to help some business models, and at the same time completely ignore the realities of how software development works and what a computer program is. Companies moving out of the mechano-electrical age into software should adapt to the realities of software development and business, not the other way round.