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EU Patents Technology

EU's Unitary Software Patent Challenged At the Belgian Constitutional Court 42

zoobab writes The Unitary Patent for Europe is being challenged at the Belgian Constitutional Court. One of the plaintiffs, Benjamin Henrion, is a fifteen-year campaigner against software patents in Europe. He says: "The Unitary Patent is the third major attempt to legalize software patents in Europe. The captive European Patent Court will become the Eastern District of Texas when it comes to software patent disputes in Europe. As happened in America, the concentration of power will force up legal costs, punish small European companies, and benefit large patent holders."
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EU's Unitary Software Patent Challenged At the Belgian Constitutional Court

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  • Mr. Henrion is apparently so strongly opposed to software patents that he's seeing them everywhere he turns. The Unitary Patent is not an "attempt to legalize software patents," it's an attempt to harmonize the current patent system in Europe, which is a silly mishmash of union-wide and nation-specific laws. Specifically, right now, you file a patent application with the European Patent Office, which examines it. If it's allowed, then it doesn't become a patent, as there is no "European patent". Instead, you then also have to file patent applications in the UK, France, Germany, Spain, Greece, Italy, Austria, Belgium, etc., etc., paying national patent fees to each country. Those countries will rubber-stamp the patent as allowed based on the European Patent Office's decision to grant, so there's nothing added - it's just a way for each country to grab additional fees.

    Of course, as a result of those individual country fees, hardly anyone files for patent protection in, say, Luxembourg, or Albania, or Latvia, because the markets aren't big enough to justify several thousand in fees per country (except in pharma, where they can just charge thousands of dollars per dose of medicine and get the costs back easily). In fact, generally, high tech inventors only get protection in the UK, France, and Germany.

    As a result of not having patent protection in those other countries, companies also don't invest in those other countries... You're not going to open a manufacturing plant in, say, Portugal, even if the labor is really cheap, if you have no patent protection there and your competitor can simply open a plant across the street and spy through your windows. Nor are you really going to focus marketing efforts in those countries, if your competitor can simply buy the product and reverse engineer it. So, you end up with 1st world Europe in UK/FR/DE, and 2nd (or 3rd) world Europe everywhere else.

    The Unitary Patent, on the other hand, is an actual European Patent. Rather than nationalizing in each individual country, you get a single European Patent that is enforceable everywhere in Europe. It doesn't make software patents legal - and in fact, software patenting is explicitly not allowed in Europe already, and this doesn't change anything about it - it just makes the filing and fees more straightforward, while extending protection into those other countries.

    The other thing it does - and Slashdot should like this - is that it creates a Unified Patent Court that hears cases on infringement and validity of European patents. And it's not just one old fart in a black robe who doesn't use email and 12 idiots who had the day off from work, it's actually panels of three specialist judges who only hear patent cases and have appropriate scientific or engineering backgrounds (there's a mechanical division, a chemical division, and an electrical division).

    Now, there is some opposition to the Unitary Patent, but it's not "zomg, this legalizes software!" Instead, it's coming from companies in those countries that no one bothers getting a patent in that actually are doing reverse engineering of competitor's products. And yeah, they should be upset, because this would force them to come up with their own inventions rather than just stealing everyone else's.

    Disclaimer: I am a U.S. patent attorney, I'm not your attorney, this is not legal advice, etc.

    • by zoobab ( 201383 ) on Thursday April 02, 2015 @10:42AM (#49391455) Homepage

      Sorry, but other experts then me says the opposite:

      http://epla.ffii.org/quotes

      • Sorry, but other experts then me says the opposite:

        http://epla.ffii.org/quotes

        Notice that none of those are actually complaining about the establishment of a unitary court or patent, nor are they saying that this legalizes software patents, which it doesn't. Instead, they say that this could "restart the debate" over software patents. In fact, if you only read the fear-mongering, bolded "software patents are fully enforceable across Europe" in the second quote, you might miss the fact that it's saying that pro-software patent groups want that result, not that it actually exists now.

    • Re: (Score:3, Interesting)

      by Anonymous Coward

      This is like reading theology from a religious zealot.

      Your premise that building on others' discoveries is "stealing" is patent nonsense, and reverse engineering is a workaround to a problem - not a sin.

      You know full fucking well that it'd be easier to further the reach of patents once they are harmonised across the EU, and much harder to eliminate such laws once successfully lobbied for. Since you are a patent lawyer I shall assume you are not stupid, which means you are simply dishonest out of conflict of

    • by Carewolf ( 581105 ) on Thursday April 02, 2015 @10:59AM (#49391593) Homepage

      Software patents are explicitly not allowed in US either. It was the US patent court that after it was established as being outside the normal courts that unilaterally decided to allow software patents. That is what people are afraid will happen in Europe.

      • by pieterh ( 196118 ) on Thursday April 02, 2015 @11:10AM (#49391651) Homepage

        Yes, it's what people are afraid of, since the patent industry has been very clearly fighting for this for decades now. Their apologists will deny it, as usual. The EPO however is not so shy: http://www.epo.org/news-issues... [epo.org] lists software patents above biotech in their topics of interest with respect to the Unitary Patent.

        Anyone who claims the Unitary Patent is about reducing costs and somehow "protecting innovation" is a troll, a liar, extraordinarily ignorant, and/or a paid lobbyist. This isn't magic. We've been watching this for more than a decade. I personally spent two years doing nothing else than studying the patent system and learning its motives.

        The patent system is sociopathic, corrupt, and built on lies and the capture of politics by vested interests.

      • Software patents are explicitly not allowed in US either.

        That's true, which is why there aren't any enforceable patents on software, nor are any being issued now. There are patents on machines that implement software, but not on the software itself.

        It was the US patent court that after it was established as being outside the normal courts that unilaterally decided to allow software patents.

        I'm not sure what you're trying to say here. The "US patent court"? You mean the Appeal Board at the USPTO? And no, it wasn't anything "outside the normal courts" - it was the Supreme Court in Diamond v. Diehr that said that inventions aren't excluded from patentability merely because they use software. And the PTAB wa

    • by Anonymous Coward

      This is BS. Noone has to spy on you to find out how your patented product works, because that is supposed to be explained in the patent. And a patent will also not protect you from reverse engineering. So why not invest in a cheap labor country, when you have explained the howto in your patent anyway and you don't seem to want to patent in that country for some reason.

    • Informative? Really mods? When a PATENT ATTORNEY uses outright FUD like comparing patents to trade secrets while outright ignoring the description for the fucking thing is IN THE PATENT?

      You sir should be ashamed of yourself, I've seen more honest televangelists and used car salesmen, for shame.

      • Informative? Really mods? When a PATENT ATTORNEY uses outright FUD like comparing patents to trade secrets while outright ignoring the description for the fucking thing is IN THE PATENT?

        ... what are you talking about? I didn't compare patents to trade secrets, and what description "IN THE PATENT"? What "PATENT"? There's no patent mentioned in the article, thread, post you're replying to, etc., etc. Are you off your meds? That would explain the all-caps frothing of rage.

    • by Halo1 ( 136547 )

      It doesn't make software patents legal - and in fact, software patenting is explicitly not allowed in Europe already, and this doesn't change anything about it

      Formally, it doesn't. In practice, just as the European Patent Office creatively reinterpreted the European Patent Convention (EPC) over the years and as the US C.A.F.C. kept broadening software patentability (until the Supreme Court reigned it in a bit again — and yes, I know they started it in the first place), it is unlikely that a an incrowd of patent people will forever be very stringent regarding interpreting the boundaries of patentability (hammers, nails and all that).

      And since the Unified Pat

  • This is an early warning sign of encroaching European federalism. Your grand children will think of themselves as Europeans, pay homage to that government, and turn to it for legislation rather than France, or Germany, or Luxumburg, the New York, California, and Rhode Island of Europe.

    What state do you live in? "I live in United Kingdom!"

    • This is an early warning sign of encroaching European federalism.

      Does that mean we're going to get national health care and free travel to neighboring countries without showing papers? Sounds cool

    • by jiriw ( 444695 ) on Thursday April 02, 2015 @11:33AM (#49391789) Homepage

      I already think of myself as European. I'm Dutch as well, by the way. There are many more who think the same. There are also quite some people who do not. European integration is already at work for at least half a century. With mixed results, I have to admit... but one thing it did do right; 1945 was the last year there was an active war between European nations (there has been quite an ugly civil war (Yugoslavia) and Russia doesn't seem to play nice, recently. But France, Germany and the U.K. seem to have lost their imperial aspirations). Let's hope people are smart enough to see the benefits and be wary of things that should be better - and keep voting accordingly.

      • by chthon ( 580889 )

        Indeed, being Flemish myself, I resent all European parties which are anti-Europe (Vlaams Blok, Geert Wilders, French Front National). Having read a whole lot on the history of WW1 and WW2, my take on matters is that anti-European parties are in reality pro-war parties.

  • The Euro patent legislation specifically bans software patents "as such". But the EPO has interpreted "as such" to means only "pure software" that does does not run on a computer is unpatentable. Once it runs on a computer, it is no longer "as such" and therefor patenable.

    Does not make sense, but who cares if you are the judge, jury and executioner. Unified patent is pure evilness.

Comparing information and knowledge is like asking whether the fatness of a pig is more or less green than the designated hitter rule." -- David Guaspari

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