Fighting Software Patents in the Unitary Patent Again

Back in July, I warned about the imminent threat of software patents sneaking into Europe thanks to horse-trading over the proposed EU Unitary Patent. Nothing happened then, but purely because MEPs turned to far more important matters – their summer holidays. Now that those balmy days are over, MEPs are back at work, and the Unitary Patent rears its misbegotten head again.

Here's what the Free Software Foundation Europe has to say on the subject:

The current proposal has the following problems:

No due process: Under the current proposal, the EPO [European Patent Office] not only awards the patent, but also gets to make the final decision on whether it remains valid when someone complains. The EPO court also lacks a broader perspective of the social costs of patents.

We demand that the European Court of Justice must be the final court of appeal for patent complaints.

Patents on software: Software patents are seriously hurting Europe's technology companies. The EPO has been granting software patents for decades, even though they are illegal under the European Patent Convention. The unitary patent would make this problem worse.

We demand that the current proposal should explicitely exclude computer programs from patentability. A computer program is not a patentable invention just because it runs on generic data processing hardware.

Giving up on innovation policy: Patents are a tool to promote innovation. Europe needs a more active innovation policy. Under the current proposal, the EU is handing over part of its sovereignty to an organisation that it has no control over – the EPO.

We demand that the power to set Europe's innovation policy must rest with the democratically elected European Parliament.

The French free software organisation April has put together the following resolution, and invites companies to email their support:

The European Patent Office (EPO)'s practices to grant software patents, under the deceiving term of "computer-implemented inventions", pose a threat to our professional activities.

We are concerned that the regulation on the unitary patent, as agreed in December 2011 by the negotiators of the Council, the Commission, and the Committee on Legal Affairs of the European Parliament, leaves any and every issue on the limits of patentability to the EPO's case law, without any democratic control or review by an independent court.

The regulation on the unitary patent is an opportunity for the EU legislators to harmonise substantive patent law in the EU institutional and jurisdictional framework, and to put an end to the EPO's self-motivated practices extending the realm of patentability to software. Failing to do so, this unitary patent will do more harm than good to the EU ICT firms.

For these reasons, we urge MEPs to adopt amendments which clearly state that the EPO's decisions are subject to a review from the Court of Justice of the European Union, and which reaffirm the rejection of software patentability, as expressed by the votes of the European Parliament on September 24th, 2003 and July 6th, 2005.

The committee that is dealing with this matter, JURI, is apparently meeting next week, on the 17th and 18th, to discuss the Unitary Patent. So now would also be a really good time to write personally to your representatives on the JURI committee. Here are the UK members:

The best thing would be to send them an email, and then follow this up with a personal call later this week. Here's what I'm sending:

I am writing to you about the imminent vote in the JURI committee on the Unitary Patent. In particular, I would like to urge you to safeguard Europe's software industry, which could be at risk if the Unitary Patent is brought in without due consideration of the issues here.;

As you know, software patents are not granted in the EU because of their exclusion in Article 52 of the European Patent Convention (EPC). Unfortunately, the European Patent Office has been issuing what are effectively software patents by using the administrative trick of re-defining them "computer-implemented inventions".

In 2005 the European Parliament voted definitively against the introduction of software patents in Europe ( This confirmed the European Patent Convention, which also excludes "programs for computers" from patentability (Article 52 –

Patents on software techniques are as damaging for computing as patents on words would be for literature, because they place a tax on indispensable elements. The consequences of allowing such a tax on innovation can be clearly seen in the US, which has allowed software patents for two decades.

In their book, "Patent Failure" (, the legal scholars Bessen and Meurer estimate that for the US the aggregate annual patent profits and costs from 1996 to 1999 were respectively $100 million and $3.88 billion, which means that on average during this period software patents cost the US economy around $3.78 billion. The situation since then has deteriorated, notably in the field of smartphones, where dozens of companies are suing each other over alleged infringement of their software patents (see the diagrammatic representation here:

Thanks to the European Parliament's action in 2005, the EU has been spared the worst of these excesses. But the proposal for a Unitary or EU patent, which you are voting on next week, could have the effect of allowing software patents into Europe, and thus opening the floodgates of costly litigation at a time when European companies are already under extreme financial pressure because of the current economic crisis.

The Unitary Patent will be administered by the European Patent Office. Here's how the latter describes the change it will bring (

"Currently, once a European patent is granted by the EPO, it has to be validated in each EPO member state for which the patent proprietor seeks patent protection. For this purpose, the majority of states require a full translation of the patent in their official language(s). The future unitary patent will be automatically valid throughout the territory of the EU member states participating in the enhanced co-operation scheme in the EPO language in which it was granted."

That is, currently the patents awarded by the EPO are not necessarily valid in individual European countries, and can be challenged in national courts. But once the Unitary Patent is brought in, it will automatically be valid throughout the participating nations.

This is a problem because the EPO has been issuing software patents in increasing numbers, using a concept called Computer-Implemented Inventions (CII), which allows it to circumvent the ban on software patents. Because these were not automatically recognised in EU countries, and could be challenged in national courts, the effects of these CII patents were limited.

But once the Unitary Patent comes into force, all such software patents will be valid, and can only be challenged in a central court following EPO rules. This will permit US software companies, which have deep pockets and decades of experience in this area, to file huge numbers of patents that are valid Europe wide, and enable them to hold European companies to ransom: either the latter must pay arbitrarily-high licensing fees to continue to use basic programming ideas that have been standard parts of their toolkits for years, or they will be sued for potentially huge damages.

I therefore urge you to support Amendments 63 and 64, tabled by Eva Lichtenberger, Christian Engström. As they write of the latter:

"This amendment defines some rules of patentability in the same way as voted by the European Parliament on September 24th 2003 on its first reading of the Directive on the patentability of computer-implemented inventions (2002/0047 (COD)). The wordings of the amendment is compliant with the EPC, and moreover is enhancing the EPC own wordings, by clarifying some difficulties that have resulted in divergent interpretations by various national courts. Hence, this amendment contributes to goal of having a unified enforcement of European patents with unitary effect."

The vote on the Unitary Patent next week is a crucially important opportunity to re-affirm the European Patent Convention and the European Parliament's long-standing policy on this subject, both of which have served Europe so well.

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