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EU's Unitary Software Patent Challenged At the Belgian Constitutional Court
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."
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.
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!"
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
For the swedish case, it is even worse, as Sweden already ratified, and the only language of the regional court will be english only. Meaning that a swedish company accused in court will have to hire a translator. And patents will only be available in english of course, translations in swedish will be made "non-legally binding" bu the unipat.
Patent trolls are only part of the problem, yes they do go after big companies with big pockets where possible but those big companies also keep massive "war chests" of patents to attack other companies both big and small to keep competition out of the market. Just look at the smartphone patent wars between Nokia, Motorola, Microsoft & Apple. Patents as a whole need a major rethink, yes they do serve a purpose but only when they deal with a unique idea and are granted for a limited time only (IE not a half century). Someone who builds a company from the ground up to make a product (lets say a fork) should be able to laugh out of their office any lawyer who stops in claiming that they own the "idea" for the product in question (a instrument with between 2 and 50 pointy bits at the end of a handle or grip engineered to fit in the human hand and intended for moving food from a dish, plate or any other surface into the mouth). Most software patent and a significant number of standard patents now fall into this disturbingly obvious category.
In Denmark it is even worse, the Unitary Patent was subject to popular vote, and approved - after lots of lobbying from those who stood to benefit, of course.
The whole point of the patent system is to tax the market.
It's that simple. All the rest is smoke and mirrors. We filed our appeal in Belgium because we know, in Flanders, how language can be used as a political tool. Here, the use of French, English, and German, suppresses dissent and appeal. It is already extraordinarily expensive to defend against a patent suit. The larger the court, the more it costs. I showed in 2007 using the EPO's own figures that specialized courts cost 4x more than courts that deal in all matters including patents.
This adds to an extraordinary burden on those trying to make products, and a downhill fight for patent owners. You think the Microsoft tax on Android is exceptional or unique? No, it's the Future According the the Patent System. The cost of production falls to zero, and the cost of licensing fills the gap, and the price to the market remains flat.
Language is a weapon, in this case.
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