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The question of software patents without democracy and the FFII response

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In October 2008, the President of the European Patent Office (EPO)

issued a Referral to its Enlarged Board of Appeal (EBoA) concerning the

questions as to the examination and granting of software patents in

Europe. In the absence of European legislative initiatives, the EBoA's

conclusion on this matter is likely to have the same effect as a

software patent directive.

However, since this decision will be based on a purely legal

interpretation of the European Patent Convention (EPC) by the EBoA, it

will not be accompanied by more extensive political and economic debate.

As stated by the EPO, third parties may wish to use the opportunity to

file written statements before the end of April

(http://tinyurl.com/chkljo)

We would like to ask you to consider writing a statement in the name of

your company, organisation or as private person, and if possible also to

support the action plan of the FFII (see below).

You can see statements already submited by others at

http://www.epo.org/patents/appeals/eba-decisions/referrals/pending.html

We offer a dedicated mailing list for discussions on the referral at

https://lists.ffii.org/mailman/listinfo/boa

and a petition page against software patents at

http://stopsoftwarepatents.eu/

With our action plan, we are funding two experts to work full-time on

the issue and also produce detailed documentation about software patents

in Europe, to be published in the near future. We need your

contribution in order to do this. Please consider making a donation,

marking it as 'EBoA Referral'.

International bank data:

IBAN: DE78701500000031112097

BIC: SSKMDEMM

Country: Germany

Name: FFII e.V.

Address: Blutenburgstr 17, DE 80636 Muenchen

Germany bank data:

Name: FFII e.V.

Account: 31112097

Sort code (BLZ): 70150000

For using Paypal, see

http://ffii.org/Donations

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Background information

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At present there is no central jurisdiction for European or community

patents. National court decisions are still not fully aligned with the

European Patent Office's (EPO) granting policy concerning software

patents that has been developed by decisions of the EPO Boards of

Appeal. The disparity between national patent enforcement courts and the

EPO's granting practice was one of the reasons why a directive on the

patentability of computer-implemented inventions was proposed. This

directive, as well as the 2000 attempt to change the European Patent

Convention, was rejected not least because of the larger FFII network's

activities.

Despite the fact that several attempts to formally legalise software

patents in Europe proved unsuccessful, the EPO still has not adapted to

the developments in the political arena. The EPO still grants software

patents under the application of loopholes created by its Boards

of Appeal decisions.

The EPO's granting practice gradually gains more acceptance in national

courts thanks to a trickle down effect, while the legal certainty of

national software patents remains to be determined. Validity rulings and

opposition mostly reject questionable software patents out of novelty

and inventive step considerations, but not on grounds of the substantive

scope of patent law.

On October 22, 2008 the Enlarged Board of Appeal was asked by the

President of the European Patent Office, Alison Brimelow (UK), for an

opinion concerning the exclusion of computer programs as such according

to Article 112(1)b EPC. She highlights that this matter is of

fundamental importance as it defines the limits of patentability in the

field of computing. The Referral is divided into four chapters. The

first chapter describes the background to the Referral, the second

chapter concerns definitions of auxiliary terms such as software, while

part three includes four questions about substantive law interpretation.

Part four describes the legal framework and options for its development.

The President also added background information and an overview of BoA

decisions related to this specific matter.

The FFII has a wiki page where comments on the questions can be added.

https://www.ffii.org/EPOReferral

The EPO Enlarged Board of Appeal decided to allow third parties to make

statements concerning the points of law (November 11, 2008). We will

provide legal considerations which challenge the controversial Boards of

Appeal decisions and thus influence the decision-making process. In the

absence of legislative clarifications, some courts in the UK recently

accepted EPO 'case law'. The opinion of the Extended Boards of Appeal

will create the precedent for all future legislative developments.

As there is no legislative scenario in sight which might overrule the

EBoA in case it permits software patents, this particular Referral needs

our attention. Other parties interested in software patents are going to

submit comments in favour of software patents. Philips, in fact, has

already done so.

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Our action plan

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We will submit entries to the Enlarged Board of Appeal in order to bring

about a more balanced assessment, and to help the EBoA arrive at legal

solutions that are closer to our expectations. Our communication targets

are patent technocrats with a different belief system to which we need

to adapt. So far we have concluded that several different strategies

can be applied. We have discussed these extensively with patent

experts. For strategic reasons we cannot make them public, suffice it to

say that we are currently in the process of finding collaborators in our

attempt to stop software patents.

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Challenge

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* Recent EPO legal patent literature has done little to challenge or

even criticise the teachings of the EPO. Patent scholars from other

professions such as political science, economics, etc. are hardly

discussed in the legal literature. Patent professionals' task is not

normative legislature, but winning cases and applications. While there

has been sustained disagreement with software patents in the field of

business, legal literature still hardly reflects this shift.

* Inside the EPO there is no open debate and employees are bound by

strict staff obligations (cmp. Communique 22). The EPO aggressively

intervenes in political and scientific debates, while the patent

community's belief system is still largely determined by an unchallenged

endorsement of software patents.

* The EBoA's members are not necessarily eligible for judicial office,

and some of them are merely technically qualified. The EBoA's lack of

independence is a known issue and an EPO reform is underway to make

these bodies more independent. Some patent scholars altogether question

the legal quality of EBoA reasoning.

* The political debate over patent law is largely blocked. The fact that

no corresponding parliament report was issued in response to an official

communication from the Commission about the future of Industrial

Property policy testifies to this.

* Members of the EBoA will probably only accept legal considerations and

solutions.

* The EPO's dogmatic language is shielded against public criticism and,

even for legally trained people, like a net in which one easily gets

caught. Its reasoning is often based on logical fallacies and hidden

value judgments.

* Patent law interpretation practice is expansive.

In an allegedly unclear situation, the patent community will always

argue against exclusion from patentability. It lacks a negative

definition of "invention" and a sound basis in legal teaching which

could be used to explain why a field is not to be covered by patent law.

Patent professionals generally do not understand the economic rationale

behind incentive system application, while economists often assume for

their model that the patent system has the claimed effects.

* The EPO and its staff have a strong commercial bias in favour of

granting patents and are hardly ever subjected to public scrutiny and

control. Patent opposition is less than ideal due to free riding

effects and associated risks and transparency gaps (cmp. Guellec07)

* Complicated institutional conflicts between German and UK patent

traditions loom in the background of the Referral. De facto European

patent policy and litigation is strongly dominated by UK and Germany

stakeholders and traditions.

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Conferences

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The following conferences - among others which are not public - will be

or have already been attended by some of our members.

Current Policy Issues in the Governance of the European Patent System

Venue: European Parliament, Rue Wiertz 60, Room Anna Lindt, P1A002,

Brussels B-1047, BELGIUM

17 March 2009

Alison Brimelow : Closing remarks

www.europarl.europa.eu/stoa/events/workshop/20090317/programme_en.pdf

WIPO - STANDING COMMITTEE ON THE LAW OF PATENTS

Geneva, March 23 to 27, 2009

(We have a written report available)

The future of intellectual property

Creativity and innovation in the digital era

April 23rd -24th, 2009, Committee of the Regions, Brussels

Making IPR work for SMEs

27th of April 2009, Brussels

http://ec.europa.eu/enterprise/enterprise_policy/industry/ipr_conference.htm

Patinnova

April 28th-30th, Prague

Alison Brimelow opening it.

Workshop on patents and software

http://www.epo.org/about-us/events/epf2009.html

Measuring the value of IPR: theory, business practice and public policy

September 24-25, 2009, Bologna

Sponsored by the EPO. Alison Brimelow has been invited.

http://www.epip.eu/conferences/epip04/

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How to support the FFII

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The FFII is divided in working groups. We welcome new active people in our

working groups which are listed at

https://action.ffii.org

If you consider our work important but you are not able to help

actively, you can become a passive sustaining member of the FFII,

starting at 15 EUR per year. See

http://action.ffii.org/member_application

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How to contact us

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FFII e.V.

Blutenburgstr. 17

80636 Munich

Germany

https://www.ffii.org

office@ffii.org

Tel. +49 30 417 22 597

Fax: +49 30 417 22 597

IRC: #ffii @ irc.freenode.net

Blogs: http://planet.ffii.org/

Tax number: 143 / 843 / 17600 at the German tax office in Munich.

IBAN: DE78701500000031112097, SWIFT/BIC: SSKMDEMM

Registered organisation in Munich, Amtsgericht M�nchen VR 16460

Board: Benjamin Henrion, Rene Mages, Ivan Villanueva, Andre Rebentisch,