Our answer to the EU consultation on patents in Europe
OFSET
Organization for Free Software in Education and Teaching
Bagneux, March 31, 2006
Our answer to the EU consultation on patents in Europe
1.1 Do you agree that these are the basic features required of the patent system?
The most important feature of the patent system is that it must
guarantee continued or increased innovation. We do not want to see its
expansion in areas where it is counterproductive. For example we do
not want to see an expansion of subject matter without clear evidence
that this produces better results.
1.2 Are there other features that you consider important?
The patent system is only part of the problem. We would like to see an
overall innovation strategy, and more assurance that the patent system
produces "good" patents, in a way that can be empirically defined.
1.3 How can the Community better take into account the broader public interest?
By separating the legislative, judiciary and executive tasks in the
patent system, and by making the patent system accessible to society
at large, not just specialists. We want to see more innovation, not
simply more patents.
2.1 By comparison with the common political approach, are there any alternative or additional features that you believe an effective Community patent system should offer?
The most important point is to separate the executive, legislative and
judicial powers which are all currently performed by the EPO to some
extent. We really do not want to see the EPO defining community law,
bypassing the Commission and Parliament.
3.1 What advantages and disadvantages do you think that pan-European litigation arrangements as set out in the draft EPLA would have for those who use and are affected by patents?
If the EPLA were to enforce the high-quality patents defined by EPC
article 52, this could have a positive impact. If the EPLA were to
enforce the EPO TBA case law (and thus enforce software and business
method patents), the results would be catastrophic in our opinion.
3.2 Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in your view would be the ideal patent litigation scheme in Europe?
We would want to litigate a Community patent before a Community court,
based on Community law made by Community legislators. This court
should be independent of any Patent Office.
We would want to litigate national patents in national courts. This is
convenient in terms of geography, language, and culture. Given that
European Patents are more or less collections of national patents, at
least the possibility to go to a national court should be kept.
Above all we must be able to appeal to a court which is not bound by
the case law of the executive (the various patent offices), since such
judicial independence is a basic requirement of our justice system.
4.1 What aspects of patent law do you feel give rise to barriers to free movement or distortion of competition because of differences in law or its application in practice between Member States?
Any business operating in a country with software patents (like the
UK) is at a disadvantage compared to a business in a country where
these are not allowed (like Poland).
4.2 To what extent is your business affected by such differences?
Our business is affected when we are unable to determine accurately
whether our products and services are "legal" in other member states,
so we are exposed to a significant and unmanageable risk if we decide
to export. Software patents make this risk very high and there is no
insurance available for software patent infringement.
4.3 What are your views on the value-added and feasibility of the different options (1) - (3) outlined above?
The "subject matter" criterion is missing from the list in point
1. Subject matter is a critical criterion, since it is on this basis
that the EPO has granted tens of thousands of software and business
process patents.
4.4 Are there any alternative proposals that the Commission might consider?
All proposals must come back to these basics: does the system
guarantee good patents, transparency, and accountability?
5.1 How important is the patent system in Europe compared to other areas of legislation affecting your business?
Without software patents: 1.
With software and business method patents: 10 (as in, the patent
system becomes a very serious problem for us).
Before the introduction of bad patents, the patent system was of low
importance to us. We did not file patents since we operated in a
domain that was adequately protected by copyrights. Furthermore, the
EPO has told us on several occasions that software could not be
patented, so we assumed this was "off the radar". However, since we
started getting phone calls and threats from patent-owning firms, on
the basis of pure software patents, we have been forced to move the
patent issue to become a top priority.
5.2 Compared to the other areas of intellectual property such as trade marks, designs, plant variety rights, copyright and related rights, how important is the patent system in Europe?
Answer: 1. Completely irrelevant to our business, we have never
used the patent system, but we use trademarks and copyright heavily.
Copyright is free, automatic, proportional, and very effective for all
domains it covers. Trademarks are useful for certain cases. The patent
system has traditionally only been applicable to innovations in fields
of applied natural science. Our company has no direct experience with
patents in this field, so we cannot comment on their effects
there. However, when applied to other areas, the patent system creates
significant distortions. These distortions are clear from any
examination of the litigation that occurs in industries that produce
or use software.
The extreme case of software and business process method patents is of
most concern. These patents create such distortions that they bring
the entire patent system into disrepute. Even US financial analysts
are starting to become concerned that the US is actually becoming less
competitive by having software patents. (See: [WWW]
http://www.cfo.com/article.cfm/5570346?f=home_featured)
5.3 How important to you is the patent system in Europe compared to the patent system worldwide?
Answer: 1. We do not seek patents on our software. Copyright and
trademarks are ideal tools for us.
The greatest advantage of the current European patent system, based on
EPC law, with respect to (e.g.) the US patent system is that it
largely protects innovation from the predation of patent speculators
(also called "patent trolls"). This happens through the effect of
national courts, which tend to reject software and business method
patents, and through language and cost barriers which prevent
mass-patenting. Ironically, the higher cost of patents improves the
quality of patents, as can be seen from the US, which has very low
patent costs, and very low general quality of patent claims.
5.4 If you are responding as an SME, how do you make use of patents now and how do you expect to use them in future? What problems have you encountered using the existing patent system?
Answer: 1. We do not seek patents on our software.
Our organization does not require or use patents. We rely on
copyright and lead time.
The patent system is largely unusable for us and we stay as
far away from it as possible.
5.5 Are there other issues than those in this paper you feel the Commission should address in relation to the patent system?
Answer: 10. Yes. For us, the key issues are not documented at all.
We would like to restate these key issues:
a) The current lack of and urgent need for separation of powers in the
patent system.
b) The current lack of a comprehensive innovation management. The
patent system is only one tool available in the legislator's arsenal
of innovation policy measures. Far too often, more patents are equated
with more innovation. The UK study mentioned in the Commission's
impact assessment of the software patents directive (which received
replies from 11 UK SMEs) showed that these SMEs in general did not
care about patents. The conclusion was not that they did not need
patents (this possibility was not even considered), but that they
should be better informed about the usefulness of patents.
A Community Innovation Office, which bases its recommendations on
input from businesses, academics and civil society, and which can
formulate all-encompassing innovation strategies, would be much more
productive and useful than yet another attempt to force the EU into
following the EPO's case law. Patents should only be applied if a
market is clearly distorted in a way which can be solved by
introducing limited time monopolies. They may also prove to be useful
in case innovation in a market is stagnant because knowledge is too
closely guarded and barely disseminated, thereby hampering follow-up
innovation by competitors. But they are not a magical means which one
simply can apply to a field in order to make it even more innovative
and competitive.
c) A functioning patent system must produce measurably good
patents. This essential criteria is not mentioned anywhere. What
defines "good"? How is this measured, over time? What rules are in
place to protect that definition? How are those rules protected from
the eternal hunt by patent specialists who seek to "hack" them into
meaning something else? Which courts judge on these rules? How does
the patent system adapt to change without becoming hijacked by vested
interests? How does the patent system prevent the business of "patent
speculation"? These are the questions that we feel are at the heart of
the matter, not the superficial issues of patent cost, translation,
etc.
