from the EU-got-something-right dept.
Gervase Markham has a thorough blog post about a case for the total abolition of software patents. He makes his case based on their complete lack of promotion of innovation and aims at identifying the principles involved. The feasibility of eliminating them may be a ways off due to the heavy politics involved so the idea may seem like a very distant policy possibility.
One immediate question is: how does one define a software patent? Where is the boundary? Various suggestions have been made, but actually, this question is not as important as it appears, for two reasons. Firstly, if we can demonstrate that there is a group of clearly identifiable patents which are harmful, or harmful when enforced in particular situations, then we can adopt the principle that such patents should not be granted or should not be enforceable, and where one draws the exact line between them and other patents becomes a secondary, practical, definitional issue beyond the initial principle. Secondly, some methods proposed for dealing with the problem of software patents do not actually require one to define what a software patent is. For example, one proposal is that one could change the law such that no program written to run on a general purpose computer could ever be said to be infringing a patent. In this case, you need a definition of "general purpose computer", but you don't need one for "software patent". Given these two points, I don't intend to spend time on definitional issues.
Currently software patents are a problem affecting the US and prohibited in the EU due to Article 52 of the European Patent Convention in 1973 (EPC). However, they are currently being pushed by the European Patent Office (EPO) in the name of "harmonization" despite being invalid. Many consider the fact that Europe remains unafflicted by software patents to be a moderating influence on the US market, holding back a free for all.
The Federal Constitutional Court of Germany (FCC) has delivered a decisive win for software users and developers around Europe. In a recently-published court decision, 2 BvR 739/17 (in German) from February, it has declared that the Act of Approval to the Agreement on a Unified Patent Court (UPC) is void. The Unified Patent Court has been widely considered to be a shell for bringing software patents into Europe through the side door, in violation of international treaties which prohibit by name patents on programs for computers.
The Act of Approval to the Agreement on a Unified Patent Court ("the Act of Approval") to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority. This is what the Second Senate of the Federal Constitutional Court decided on a constitutional complaint in an order published today. In its reasoning, the Senate stated that, in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.
Once more for emphasis, software is protected by copyright law and that governs distribution. Patents govern usage and function, regardless of origin. So had the EPC gone through and forced software patents into Europe, neither clean room nor independent implementations would have protected either end-users, software-using businesses, or developers.
The Foundation for a Free Information Infrastructure has a call for donations against the Unitary Software Patent Trolls after Thursday's disastrous Bundestag vote. On Thursday in Germany, the Bundestag voted on ratification of a proposal for a Unified Patent Court, largely seen as purely a vehicle for introducing software patents into Europe. As software patents in the US were on the way out, introducing them into Europe would bring them back into the US after further "harmonization". Thursday's vote is the result of the software patent lobby changing its strategy in Europe by creating a central patent court outside of the control of the individual member states under which it would make its own rules and avoid democratically elected legislators.