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Deadly Blow to the Pox of Software Patents in the EU

Accepted submission by canopic jug at 2020-03-21 04:24:50

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 busiensses, or developers.

It is predicted that the European Patent Office [] (EPO) which, despite the name is outside the jurisdiction of the European Union, has long been proponent of injecting by hook or crook software patents into the European market and will bemoan this decisive win for business and research. Their astroturfers are already engaged on spinning against the victory: Those that wish to continue to break the law see a lot of money on the table. The EPO has been illegally granting software patents in recent years in direct violation of the European Patent Convention of 1973, also known as the Convention on the Grant of European Patents of 5 October 1973. The EPC explicity prohibits granting of patents on many things including but not limited to scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.

Texas Court Upholds “Do It On A Computer” Check-Cashing Patent [] (2019)
A Case for the Total Abolition of Software Patents [] (2018)
The MP3 Format is now Patent Free [] (2017)
Microsoft Patents a Slider, Earning EFF's "Stupid Patent of the Month" Award [] (2015)

Original Submission