EU Patent Examiners Warn Parliament Will Have "No Power"

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."

Comments

Software is simply not of patent-able matter.

[3seas]

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

Beware of software patent pursuers bearing gifts.

Report on European Commission agenda and criticism

[FlorianMueller]

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.

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". 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.