from the while-you-were-out dept.
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.
FFII is now calling on its supporting companies and on the open source community to donate to crowdfund a Constitutional Complaint in Karlsruhe. Stopping the UPC in Germany will be enough to kill the UPC for the whole Europe. Politicians willfully ignored the problem that the UPC violates the “Rule of Law” principle, as the EPO still cannot be sued for maladministration, where there are 4 pending complaints in Karlsruhe, which should be issued in early 2021.
Next steps are a vote in the Bundesrat, according to Stjerna’s blogpost
Legal Committee of the Federal Council is currently scheduled for 02/12/2020
Federal Council can therefore be expected to make its final deliberation on the draft legislation in its 998th session on 18/12/2020
–Dr Stjerna blog, Status of the UPCA ratification proceedings in Germany (12/12/2016, latest update on 26/11/2020) https://www.stjerna.de/restart/?lang=en
German government believe that they can ratify before the end of the year, as they consider the UK still a member of the EU till 31st December. The agenda of next votes have been designed on purpose to ratify the UPC before the end of the year.
This plot twist is time-dependent and hangs upon a loophole in Brexit. Thus the time between now and New Year are crucial for preserving the ability to use or develop software in Europe. Again, this is about the uses to which software may be applied, not distribution. Usage is covered by patent law, distribution by copyright law.
The FFII is a pan-European alliance of software companies and independent software developers. It is currently working to neutralize the Unitary Patent project, which is a third attempt to introduce software patents into Europe. The previous two attempts failed, but only because of the joint efforts of thousands of companies to defend against software patents in Europe.
(2020) UK Formally Abandons Europe's Unified Patent Court
(2020) Deadly Blow to the Pox of Software Patents in the EU
(2018) Software Patents are Harmful
(2018) A Case for the Total Abolition of Software Patents
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.
Cisco VP/CTO Jonathan Rosenberg has written a blog post about how harmful software patents are to industry. On top of being vague but also transferrable, they can be used offensively by grantees which are not involved in any aspect of making or using the technologies to which the patents apply, an aspect which has caused ongoing, grievous harm to computer-using companies for a long time now. Something needs to change and, so, after outlining the nature of the problem, he closes with two brief solutions.
Friends and relatives who are not in the technology industry always ask me if I've ever gotten a patent. For them, a patent has this sheen of accomplishment. They believe it means you invented something, that you are an innovator, that you've done something no one has done before. I give a little chuckle, tell them that yes, I have a few patents (I actually have 90 issued U.S. patents), but that it's not really a big deal, and thank you for asking. In reality, I'm being polite. I don't want to burst their bubble, nor do I want to launch into a long tirade. Because, the reality is, that patents — and in particular — software patents — are a plague upon the industry. They hamper innovation. They cost companies millions and millions of dollars in frivolous law suits. They waste time and energy from people who just want to build products. They are anathema to the Internet. Software patents are harmful.
Software patents have three key characteristics which have resulted in their harmfulness. They are vague in terms of what is actually invented. They can be passed along as property. You can sue for infringement without making the product to which the patent applies. Lets cover each in turn.
Software remains covered by copyright, as a form of creative expression. Again, while software patents is a problem mostly contained to the US, they are becoming a threat for the EU. Even as the European Patent Convention specifically exempts software from patentability, there remain prolonged efforts to circumvent the law and establish software patents in effect. After all, what do laws matter if companies can be convinced to universally ignore them?
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.
brexit means brexit
The UK has formally ditched the Unified Patent Court (UPC), a project to create a single pan-European patent system that would fix the confusing mess of contradictory laws currently in place.
In a written statement in the House of Commons on Monday, the British undersecretary for science, research and innovation Amanda Solloway noted that: "Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court."
The reason is, of course Brexit. "In view of the United Kingdom's withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government's aims of becoming an independent self-governing nation," she said.
[...] The whole idea of the UPC has been fought for over a decade now, making many its adherents borderline fanatical in making it a reality, even more so given frequent setbacks. In their unerring support, however, many seem willing to overlook or turn a blind eye to serious problems, not least of which is the mess that is the European Patent Office (EPO).
[...] The EPO is, of course, a big fan of the UPC and insists the UK leaving is a mere trifle to the larger European dream of a single patent system; a system that would give it significantly more power:
"These economic benefits for European companies and especially SMEs will not be affected by the announcement of the United Kingdom," it insisted in its submission to the German government.
"Even without the UK, the UP package will lead to significant simplification and cost reduction for the companies of the participating EU member states, which is also largely recognized by European companies."