The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: “I don’t think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself.”

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: “A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law.”

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: “Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system.”

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: “This specialized patent court will be shielded against external intervention and won’t be an EU institution. Those patent judges want to have the last word over European patent law.”

Source: FFII Press Release

This notice provides further guidance on how patent examiners will assess the patentability of inventions with particular emphasis on the exclusion of computer programs as such

Source: IPKat trying to explain the Intellectual Property Office practice note Patentability of computer programs

Therefore, the UK-IPO will continue to use the Aerotel/Macrossan test but in doing so it will take account of the Court of Appeal’s judgment in the Symbian case whenever appropriate.

Source: UK Intellectual Property Office Press Release

Court decisions on whether software patents are permissible within Europe have see-sawed wildly, with some decisions in favour being counterbalanced by others that confirm that software cannot be patented “as such”. Unfortunately, those meaningless weasel words “as such” have provided a tiny opening for proponents of software patents – typically large companies that want to use intellectual monopolies to stifle competition, and software patent lawyers who want more lucrative business – that the latter are constantly trying to widen.

Here’s the latest attempt, which takes the form of a referral of a “point of law” concerning software patents by the President of the European Patent Office (EPO) to the EPO “Enlarged Board of Appeal”, something that seems to happen quite rarely. Now, you do not have to be a genius to see the problem with this; essentially, the EPO is asking itself whether it wants to widen its own jurisdiction, increase its power and boost its income by allowing software patents. Unless the Enlarged Board of Appeal consists entirely of self-denying, altruistic masochists, I think we can all guess what the answer will be.

Source: ComputerworldUK

President of the EPO asks for clarification of exclusion

Considering that diverging decisions of the EPO’s boards of appeal have created uncertainty, EPO President Alison Brimelow has referred a number of questions to the Enlarged Board of Appeal of the EPO (EBoA) in relation to the patentability of programs for computers under the European Patent Convention (EPC). The answers to the questions are believed to be necessary to enable the further harmonious development of case law in this field and the EBoA is in charge of ensuring uniform application of the EPC.

The referral does not call into question the applicable provisions of the EPC: Article 52(2) and (3) states that programs for computers as such are not to be regarded as inventions, in other words they are excluded from patentability. However, guidance is sought on how some of the finer aspects of this exclusion are to be applied.

The questions seek clarification not only on when a claim as a whole falls under the exclusion, but also on the circumstances under which individual features relating to programs for computers can contribute to the technical character of a claim (in which case they are relevant for assessing novelty and inventive step). It is hoped that the answers to these questions will lead to greater clarity concerning the limits of patentability, thereby facilitating application of the EPC by patent examiners and enabling both applicants and the wider public to understand the law regarding the patentability of programs for computers.

Specifically, the questions address four different aspects of patentability in this field. The first question relates to the relevance of the category of the claim. The other three questions ask where the line should be drawn between those aspects excluded from patentability and those contributing to the technical character of the claimed subject-matter: the second question concerns the claim as a whole; the third, individual features of the claim; and the fourth - relevant for defining the skills of the (technically) skilled person - concerns the activity (the programming) underlying the resulting product (the computer program).

Source: The European Patent Office

The Court of Appeal said today that complex software such as programmes designed to make mobile phones and computers work faster can be patented in the UK. … As a result of the ruling, developers are likely to find it easier to secure approval from the UK’s Intellectual Property Office, which has traditionally been reluctant to grant patents to cover software.

Source: The Times

From Outlaw:

Software companies involved in setting technical standards should be forced to declare their intellectual property in the area and fix maximum fees for the standard’s use of it before the standard is set, according to the European Commission.