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Government Patents The Courts

EU Patent Examiners Warn Parliament Will Have "No Power" 99

Posted by kdawson
from the abdication-by-another-name dept.
zoobab writes "The Staff Union of the European Patent Organisation sent a letter to the President of the European Parliament, warning that after the EU accedes to the European Patent Convention, there is a risk that the European Parliament would be 'circumvented' as a legislator. The European Patent Organisation is in no way a model of democracy: national patent offices are in power, there is no parliament involved in the decision-making process, and diplomatic conferences are held behind closed doors. There are plans to create a central patent court in Europe, which would operate in a democratic vacuum, not counterbalanced by any legislative assembly, in particular not the European Parliament. Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent). And Microsoft, IBM, and SAP are lobbying in Brussels not to reopen consideration of the software patent directive."
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EU Patent Examiners Warn Parliament Will Have "No Power"

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  • by ciaran_o_riordan (662132) on Wednesday May 12, 2010 @04:58AM (#32180210) Homepage

    The United Patent Litigation System replaces the EPLA. The official justifications are that it will decrease bureaucracy and costs. As a side effect (which is the real motivation of some pushers), it will push aside the European Parliament (which threw out swpats in 2005), and give more power to the European Patent Office (which approves almost as much as the USPTO does). More details:

    • Required (Score:4, Interesting)

      by twisteddk (201366) on Wednesday May 12, 2010 @05:35AM (#32180370)

      While I appreaciate the links and information. I even more appreaciate the fact that someone finally said what as needed (and was heard).

      As a patentholder (no, hardware, not software), I can vouch for the fact that a centralized european patent office is sorely needed. Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying; "Ee dont under stand this technology, it's new to us". Yeah morons, ofcourse it's new, otherwise I wouldn't be patenting it, now would I ?), and then running around to every OTHER patent office in europe and saying "But THEY already gave me the patent rights".

      And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

      • Re:Required (Score:5, Insightful)

        by FlorianMueller (801981) on Wednesday May 12, 2010 @05:51AM (#32180394) Homepage
        There's no question that the current setup, in which the European Patent Office only performs a unified examination of a patent application but doesn't really grant a single European patent, is suboptimal from the perspective of those taking out patents. It's also an inefficiency that patent litigation can currently only take place on a country-by-country basis (including invalidation, unless oppositions happens early enough so that the EPO itself could reject the patent application).

        However, if an international construct such as the European patent system is made more efficient and powerful, then that increase in power and efficiency should be accompanied by an at least proportional increase in power of democratically elected lawmakers governing the same field of policy-making. That should be a governing principle regardless of whether hardware, software or other patents are at stake. The patent examiners' union raises that point and basically says that the exact opposite is happening from their point of view: more power and less control.
      • Re:Required (Score:5, Insightful)

        by Pinky's Brain (1158667) on Wednesday May 12, 2010 @06:10AM (#32180444)

        Or you know, you can just file an application at the ALREADY EXISTING European Patent Office.

        http://www.epo.org/patents/Grant-procedure/Filing-an-application/European-applications.html [epo.org]

        This isn't about application/grants ... this is about enforcement (and consequently patentability).

      • Re:Required (Score:5, Insightful)

        by Jurily (900488) <jurily.gmail@com> on Wednesday May 12, 2010 @06:46AM (#32180566)

        And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

        While that is true, please consider the following scenario:

        1. Create office with power, without responsibility, and without anyone in the bureaucratic machine who can question their decisions
        2. Install own people (did I mention it's not an elected body?)
        3. WELCOME BACK SOFTWARE PATENTS

        At least the national patent offices have clearly defined authorities they report to. Do we really need more red tape to sync databases?

      • Re: (Score:3, Informative)

        by swilver (617741)

        All I can say is... good. I see no value in short-lived monopolies. I believe ideas (or tiny extensions of existing ideas in most patent cases) can occur (near) simultaneously -- in which case the patent is nothing short of paying for your own private monopoly, which can be enforced even if someone has a similar idea independently (this last bit is my main beef with patents in general).

        I'm convinced that a harder-to-use patent system is actually the reason that there's such a huge amount of florishing sma

        • Re:Required (Score:5, Insightful)

          by aurispector (530273) on Wednesday May 12, 2010 @07:52AM (#32180794)

          Patents will always be a double edged sword. A guy with a great idea can easily have it stolen by a large company in the same field with the ability to create and market the product much faster. Knock off companies become king. Think of an entire world full of unscrupulous chinese manufacturers forever cloning other people's products.

          OTOH big companies with deep pockets can play the patent troll game far easier than in individual entrepreneur/inventor.

          Ideally a patent provides a limited time period for inventors to profit from their idea, encouraging innovation while including a mechanism whereby these innovations can eventually pass into the public domain for the benefit of the general public.

          The entire purpose of the EU was to reduce the crippling bureaucratic balkanization and get all the countries working from the same playbook. How can you expect a small country with, for example, no electronics manufacturing to have patent office expertise for that industry?

          The big problem with the current issue isn't patents but the lack of checks and balances. The core idea of democracy is that every part of government has "civilian oversight".

      • And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

        Anything that makes it more difficult to get a patent has my unequivocal support. Patents are not worth the trouble they cause in any field. Encouraging innovation is not worth the price paid in the form of the litigation and legal costs which are seising up not only our economies, but also out societies and culture.

        Patents need to die.

      • Re: (Score:2, Informative)

        by Anonymous Coward
        What on earth are you talking about? You clearly have no real experience of filing a European patent application at all. There IS a centralized European patent office. http://www.epo.org/ [epo.org] When you file a European patent application, you apply through the EPO. You certainly don't need to go 'finding a patent office that WILL grant you the patent'. No national office has the power to grant you a European patent anyway. Mod parent down.
      • Re:Required (Score:4, Informative)

        by Ash-Fox (726320) on Wednesday May 12, 2010 @10:04AM (#32181878)

        Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying

        Please stop talking bullshit, I own patents myself and never had to do that, see http://www.epo.org/ [epo.org]

        • To further clarify - there is actually no such thing as an "European Patent". However, you can apply for a patent at the EPO, which will be the only office researching and examining your application. If and when the EPO grants the "European Patent", national patents for every EPC member state you named in your application come into existence, without the national patent offices having a say in the matter. The so-called European patent actually exists as a bundle of national patents in all named member state
      • It's a patent office, of course they're unaccustomed to seeing anything new or original!

    • Re: (Score:3, Informative)

      by Theaetetus (590071)

      it will push aside the European Parliament (which threw out swpats in 2005)

      You keep repeating this in multiple threads, but it's still not true. The EU threw out patents on software per se. That's exactly the same holding as Bilski - software per se is unpatentable, but if it is tied to a computer, it is patentable both as a method and as a system. There are software patents being issued every week in the EU.

      • > The EU threw out patents on software /per se/

        What makes you say that? The background was that the legislation excludes "swpats as such", and the EPO interprets so narrowly to be almost non-existant. The story with the EU is that the Commission proposed to clearly allow software patents, and it was discussed at great volume levels for a few years, and the Parliament threw out the Commission's proposal almost unanimously.

        This means there was no change in the legislation, so were back to the

        • The current situation is that the EPO tends to separate the claims of your application into technical and non-technical properties. The non-technical properties are viewed as "pre-inventive", as something like a design goal, and therefore can not contribute to the novelty or non-obviousness of the subject-matter. The examination is then done only regarding the technical properties. For example, if you apply for an algorithm with steps A-D, performed on a computer (steps A-D being some numeric calculation fo
      • Re: (Score:3, Insightful)

        by Alsee (515537)

        I followed it fairly closely at the time. The EU Council created legislation that would have solidly established Software Patents. The EU Parliament then passed several reasonably solid amendments against Software Patents. And then the legislation was killed. Some would speculate that it was killed because certain interests decided that the existing muddy EU patent situation was preferable to permitting the EU Parliament to legislate against Software Patents.

        The EU Parliament definitely sided against that "

        • Alsee wrote:

          Some would speculate that it was killed because certain interests decided that the existing muddy EU patent situation was preferable to permitting the EU Parliament to legislate against Software Patents.

          All of that is right "per se" ;-) but let me clarify that the European Parliament's amendments wouldn't have resulted directly in a new law. The Parliament's amended bill would have gone back to the EU Council. In that one, the proponents of software patents had approximately 70% of the votes, a

  • by 3seas (184403) on Wednesday May 12, 2010 @05:15AM (#32180292) Journal

    The pursuit of software patents is teh pursuit of fraud and public deception.
    abstraction physics application (including software)is a human right and duty. [abstractionphysics.net]

    Beware of software patent pursuers bearing gifts.

    • Its really simple, nobody wants to deal with the matter for the honesty of the matter.
      Neither Proprietary patent supporting parties nor open source patent free parties.

      Why is also simple. The honesty of the matter of software would result in not only no software patents but also in genuinely free software, free in the since of making it possible for anyone to create software.

      Current software development methodologies are like the roman numeral system in mathematics, where it takes specialization and trade s

    • Re: (Score:1, Flamebait)

      by Hurricane78 (562437)

      I think it is fundamentally wrong to separate software from (other) ideas. After all, software is nothing more than a written down idea.

      But I think that no idea should be “patentable”. I even think that such a process should not exist at all, since in reality it is 1. not enforceable anyway, and 2. only stifles innovation. Since every idea builds upon other ideas.
      But I still think inventors should be getting something for their ideas.

      Of course unifying the two is the problem. ;)
      But since it

      • by 3seas (184403)

        And then there is copyright, different from patents but applicable to software.

  • those lobbyists are preventing progress for the sake of established bloodsucking institutions and Associations.

    the equivalent would have been in medieval times the monks to block the printing press after they realized that not only bibles can be printed!

    Oh my God I hate these lobbyists and IP-lords!

  • by FlorianMueller (801981) on Wednesday May 12, 2010 @05:22AM (#32180322) Homepage
    I listened to a European Commission official (the one who's considered the driving force behind the "patent reform" effort in question) as well as to Benjamin Henrion, the president of the FFII and submitter of this slashdot story, at a conference in Vienna, Austria, a week ago. On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].

    It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.

    There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling" [blogspot.com]. The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".

    Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents [blogspot.com].

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].

      The FFII and the European Union are institutions I admire. You are very opinionated as an activist about patents but only strong political organisations like these may keep a patent office accountable. Patent reform is high on their agenda, blogger activism is not enough. We need to support them (donate to FFII [ffii.org]) , support their agenda in any possible way. Without the EU there would still be wars in Europe.

    • Re: (Score:2, Insightful)

      by Hurga (265993)

      I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?

      • The MP3 example (Score:3, Interesting)

        Hurga wrote:

        I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?

        Your question is right on. MP3 patents are pure software patents:

        • by Khashishi (775369)

          Or, the differences can be immaterial and similar patents are thrown out due to fickle and arbitrary power.

  • by FlorianMueller (801981) on Wednesday May 12, 2010 @05:39AM (#32180378) Homepage
    For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech [blogspot.com] by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.
  • by MRe_nl (306212) on Wednesday May 12, 2010 @06:31AM (#32180514)

    Or to put it politely;
    Originality is the art of concealing one's sources.

    "The distinction between creation and discovery is not clear cut or rigorous.Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything. They merely re arrange matter into new arrangements and patterns. An engineer who invents a new mousetrap has rearranged existing parts to provide a function not previously performed. Others who learn of this new arrangement can now also make an improved mousetrap. Yet the mousetrap merely follows laws of nature. The inventor did not invent the matter out of which the mousetrap is made, nor the facts and laws exploited to make it work.
    Similarly, Einstein's "discovery" of the relation E=mc2, once known by others, allows them to manipulate matter in a more efficient way. Without Einstein's, or the inventor's, efforts, others would have been ignorant of certain causal laws, of ways matter can be manipulated and utilized. Both the inventor and the theoretical scientist engage in creative mental effort to produce useful, new ideas. Yet one is rewarded, and the other is not".(Kinsella, Stephan. "Against Intellectual Property").

    "Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property".
    --Thomas Jefferson, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      I wish you idiots would stop trolling around that Jefferson quote. It is part of a long exchange of letters and deals with the argument of the patent as a natural right. Jefferson was not opposed to patents; he was instrumental in the creation of the Patent Office.

      He was opposed to the argument, popular at the time, that there was a natural right to the fruits of intellectual labor. Jefferson writes in that same letter that real property is not a natural right, and thus what was called at the time indust

      • by MRe_nl (306212)

        Jefferson had serious doubts about the Patent office, some of which are expressed in this part of the discourse. The entire exchange was somewhat long for a /. post.

        He was opposed to the argument, popular at the time, that there was a natural right to the fruits of intellectual labor.Jefferson writes in that same letter that real property is not a natural right, and thus what was called at the time industrial property, was, like ALL property, a social construct.

        And on this too i agree with Mr. Jefferson. Your point being?

        Using the quote to say that patents and copyrights aren't property is no more accurate than saying that real estate isn't property.

        Real estate isn't property per se. Stolen, squatted, ill-gained, abandoned etc. real estate would under circumstances not be seen as (your) property, even by law.

        In nature, the only property that exists is that which you can physically defend from others who would want to obtain it. There is no form of property in civilized society that meets that criterion.

        Au contraire, all forms of property in modern society meet that criterium. Property is defined by law, laws are defined by n

        • Jefferson had serious doubts about the Patent office, some of which are expressed in this part of the discourse.

          No, he didn't. He was the director of the Patent Office and wrote the 1790 Act.

          • by MRe_nl (306212)

            It might surprise you that sometimes the people most involved in any given sector are also those most critical of it.
            Sometimes these people even carry on with their job, aware of the faults, addressing these to the best of their ability, and still remain critical of the system.
            I am actually under the impression that all the so called "Founding fathers" possessed this trait in abundance.
            "He was the director of the Patent Office and wrote the 1790 Act".
            He was also an actor, firefighter, architect, pig breeder

            • It might surprise you that sometimes the people most involved in any given sector are also those most critical of it. Sometimes these people even carry on with their job, aware of the faults, addressing these to the best of their ability, and still remain critical of the system. I am actually under the impression that all the so called "Founding fathers" possessed this trait in abundance. "He was the director of the Patent Office and wrote the 1790 Act". He was also an actor, firefighter, architect, pig breeder, calender maker, president, attorney, governor of Virginia, co-founder of the Democratic-Republican Party, author of the Declaration of Independence, founder of the University of Virginia, author of the Statute of Virginia for Religious Freedom and author of the Notes on the State of Virginia. You think he didn't have any doubts about the system or indeed his own competence in any of those endeavors? I think he embarked on them BECAUSE of his doubts.

              Yes, but to say "he had serious doubts about the Patent office," is either woefully naive or intentionally misleading. He had no doubts about whether the patent system should exist.

        • Re: (Score:1, Interesting)

          by Anonymous Coward

          Real estate isn't property per se.

          Real estate is the fundamental form of property--indeed, it's called real property!

          Au contraire, all forms of property in modern society meet that criterium. Property is defined by law, laws are defined by nation-states, and i think most nation-states can will try to physically defend themselves and their laws.

          Well coming from the person who thinks real property isn't property per se, this is not an unsurprising statement, but it's still idiotic.

          There is no form of property, in any modern society, contingent upon the owner's ability to fend off would-be takers with physical force. On the contrary, in most of the world, it is expressly illegal to use excessive force to defend mere possessions, on the theory that you can seek redres

          • by MRe_nl (306212)

            Not all real estate is property (more specifically private property), even though the legal term is "real property. I just dislike absolutes. But i admire the twist.
            To state that it is fundamental is perhaps close to the truth. Was the concept of property evolved at all among hunter/gatherers?
            There were/are some interesting takes on property even among native americans and aboriginals.
            As for the state-monopoly on justice (and violence), that's just for the poor, the lawful and the powerless. Heavily armed (

      • Not many people are completely opposed to patents, but the patent system is broken and our viewpoints on patents are broken as well. The clause in the constitution that allows for copyright and patents to exist clearly defines the reason behind them as 'To promote the Progress of Science and useful Arts.' This makes it clear that patents in the US exist for the benefit of the public. not because inventors are inherently entitled to it, as calling them 'intellectual property' suggests. Patents act very di
  • Plan to win (Score:4, Insightful)

    by xororand (860319) on Wednesday May 12, 2010 @07:19AM (#32180686)

    1. Design crippled file system (8.3 filenames)
    2. "Invent" "ingenious" fix that fixes the aforementioned flaw somewhat (long filenames)
    3. Patent & license. Win.

    No "???" here. Only "WTF" and where is our society heading?

    • The real WTF is that we are voluntarily use that crappy file system.
      Come on. There are things like ZFS out there. Compared to those, FAT32 looks like putting a rusty old Russian pedal car next to a cybernetically enhanced supercar / interstellar space ship. ^^

  • How can it happen ? (Score:4, Interesting)

    by unity100 (970058) on Wednesday May 12, 2010 @08:18AM (#32180920) Homepage Journal
    anything that Eu does now have to be approved by the Eu parliament. If parl doesnt approve it, it cant happen.
    • You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.

      Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member State

  • Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent).

    No, no, it isn't a general validation of software patents. The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law. This is quite different to the Comm

    • The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law.

      What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn

      • What you are saying is, the FAT-patent can still be challenged at a Constitutional Court?

        • I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.

          Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which

          • Microsoft's FAT patent affects all citizens, even the consitutional court. Microsoft can threaten the court not store their judgements on hard disc because they own a patent, and if the Court countersues, refuse to license Microsoft Windows, IE, Office, Outlook to them. Then they have to learn the Linux command line interface Latex and store their documents on ReiserFS file servers.

      • As I see it, a "Leitsatz"-judgement indeed technically has to be followed by lower courts, but they still can actually rule to the contrary, opening up the way to higher instances until the issue reaches the BGH again. Certain judges on certain OLGs (state courts, roughly) seem to have it made a hobby ruling against the established guidelines from the BPatG (patent court) and sometimes BGH lately in patent matters. If you follow the guidelines issued by the BGH on software patents, their opinion seems to ch

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