Marja Oosterman on Wed, 8 Apr 2009 04:11:17 +0200 (CEST)

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[Nettime-nl] the question of software patents without democracy

Date: Mon, 06 Apr 2009 16:50:49 +0200
    From: "FFII e.V." <>
Reply-To: "FFII e.V." <>
 Subject: The question of software patents without democracy


we are contacting you as a signed supporter of the FFII. We would like
to inform you of a new attempt to consolidate software patents in Europe
and ask you for your support and involvement against it. This is an
urgent issue.

If you do not wish to receive email updates from the FFII regarding the
most crucial developments, you can simply change your user/member status
any time with your user-id at

The question of software patents without democracy and the FFII response

In October 2008, the President of the European Patent Office (EPO)
issued a Referral to its Enlarged Board of Appeal (EBoA) concerning the
questions as to the examination and granting of software patents in
Europe. In the absence of European legislative initiatives, the EBoA's
conclusion on this matter is likely to have the same effect as a
software patent directive.

However, since this decision will be based on a purely legal
interpretation of the European Patent Convention (EPC) by the EBoA, it
will not be accompanied by more extensive political and economic debate.

As stated by the EPO, third parties may wish to use the opportunity to
file written statements before the end of April

We would like to ask you to consider writing a statement in the name of
your company, organisation or as private person, and if possible also to
support the action plan of the FFII (see below).

You can see statements already submited by others at

We offer a dedicated mailing list for discussions on the referral at

and a petition page against software patents at

With our action plan, we are funding two experts to work full-time on
the issue and also produce detailed documentation about software patents
in Europe, to be published in the near future. We need your
contribution in order to do this. Please consider making a donation,
marking it as 'EBoA Referral'.

International bank data:

  IBAN:    DE78701500000031112097
  Country: Germany
  Name:    FFII e.V.
  Address: Blutenburgstr 17, DE 80636 Muenchen

Germany bank data:

  Name:            FFII e.V.
  Account:         31112097
  Sort code (BLZ): 70150000

For using Paypal, see

Background information

At present there is no central jurisdiction for European or community
patents. National court decisions are still not fully aligned with the
European Patent Office's (EPO) granting policy concerning software
patents that has been developed by decisions of the EPO Boards of
Appeal. The disparity between national patent enforcement courts and the
EPO's granting practice was one of the reasons why a directive on the
patentability of computer-implemented inventions was proposed. This
directive, as well as the 2000 attempt to change the European Patent
Convention, was rejected not least because of the larger FFII network's

Despite the fact that several attempts to formally legalise software
patents in Europe proved unsuccessful, the EPO still has not adapted to
the developments in the political arena. The EPO still grants software
patents under the application of loopholes created by its Boards
of Appeal decisions.

The EPO's granting practice gradually gains more acceptance in national
courts thanks to a trickle down effect, while the legal certainty of
national software patents remains to be determined. Validity rulings and
opposition mostly reject questionable software patents out of novelty
and inventive step considerations, but not on grounds of the substantive
scope of patent law.

On October 22, 2008 the Enlarged Board of Appeal was asked by the
President of the European Patent Office, Alison Brimelow (UK), for an
opinion concerning the exclusion of computer programs as such according
to Article 112(1)b EPC. She highlights that this matter is of
fundamental importance as it defines the limits of patentability in the
field of computing. The Referral is divided into four chapters. The
first chapter describes the background to the Referral, the second
chapter concerns definitions of auxiliary terms such as software, while
part three includes four questions about substantive law interpretation.
Part four describes the legal framework and options for its development.
The President also added background information and an overview of BoA
decisions related to this specific matter.

The FFII has a wiki page where comments on the questions can be added.

The EPO Enlarged Board of Appeal decided to allow third parties to make
statements concerning the points of law (November 11, 2008). We will
provide legal considerations which challenge the controversial Boards of
Appeal decisions and thus influence the decision-making process. In the
absence of legislative clarifications, some courts in the UK recently
accepted EPO 'case law'. The opinion of the Extended Boards of Appeal
will create the precedent for all future legislative developments.
As there is no legislative scenario in sight which might overrule the
EBoA in case it permits software patents, this particular Referral needs
our attention. Other parties interested in software patents are going to
submit comments in favour of software patents. Philips, in fact, has
already done so.

Our action plan

We will submit entries to the Enlarged Board of Appeal in order to bring
about a more balanced assessment, and to help the EBoA arrive at legal
solutions that are closer to our expectations. Our communication targets
are patent technocrats with a different belief system to which we need
to adapt. So far we have concluded that several different strategies
can be applied. We have discussed these extensively with patent
experts. For strategic reasons we cannot make them public, suffice it to
say that we are currently in the process of finding collaborators in our
attempt to stop software patents.


* Recent EPO legal patent literature has done little to challenge or
even criticise the teachings of the EPO. Patent scholars from other
professions such as political science, economics, etc. are hardly
discussed in the legal literature. Patent professionals' task is not
normative legislature, but winning cases and applications. While there
has been sustained disagreement with software patents in the field of
business, legal literature still hardly reflects this shift.

* Inside the EPO there is no open debate and employees are bound by
strict staff obligations (cmp. Communique 22). The EPO aggressively
intervenes in political and scientific debates, while the patent
community's belief system is still largely determined by an unchallenged
endorsement of software patents.

* The EBoA's members are not necessarily eligible for judicial office,
and some of them are merely technically qualified. The EBoA's lack of
independence is a known issue and an EPO reform is underway to make
these bodies more independent. Some patent scholars altogether question
the legal quality of EBoA reasoning.

* The political debate over patent law is largely blocked. The fact that
no corresponding parliament report was issued in response to an official
communication from the Commission about the future of Industrial
Property policy testifies to this.

* Members of the EBoA will probably only accept legal considerations and

* The EPO's dogmatic language is shielded against public criticism and,
even for legally trained people, like a net in which one easily gets
caught. Its reasoning is often based on logical fallacies and hidden
value judgments.

* Patent law interpretation practice is expansive.
In an allegedly unclear situation, the patent community will always
argue against exclusion from patentability. It lacks a negative
definition of "invention" and a sound basis in legal teaching which
could be used to explain why a field is not to be covered by patent law.
Patent professionals generally do not understand the economic rationale
behind incentive system application, while economists often assume for
their model that the patent system has the claimed effects.

* The EPO and its staff have a strong commercial bias in favour of
granting patents and are hardly ever subjected to public scrutiny and
control. Patent opposition is less than ideal due to free riding
effects and associated risks and transparency gaps (cmp. Guellec07)

* Complicated institutional conflicts between German and UK patent
traditions loom in the background of the Referral. De facto European
patent policy and litigation is strongly dominated by UK and Germany
stakeholders and traditions.


The following conferences - among others which are not public - will be
or have already been attended by some of our members.

Current Policy Issues in the Governance of the European Patent System
Venue: European Parliament, Rue Wiertz 60, Room Anna Lindt, P1A002,
Brussels B-1047, BELGIUM
17 March 2009
Alison Brimelow : Closing remarks

Geneva, March 23 to 27, 2009
(We have a written report available)

The future of intellectual property
Creativity and innovation in the digital era
April 23rd -24th, 2009, Committee of the Regions, Brussels

Making IPR work for SMEs
27th of April 2009, Brussels

April 28th-30th, Prague
Alison Brimelow opening it.
Workshop on patents and software

Measuring the value of IPR: theory, business practice and public policy
September 24-25, 2009, Bologna
Sponsored by the EPO. Alison Brimelow has been invited.

How to support the FFII

The FFII is divided in working groups. We welcome new active people in our
working groups which are listed at

If you consider our work important but you are not able to help
actively, you can become a passive sustaining member of the FFII,
starting at 15 EUR per year. See

How to contact us

Blutenburgstr. 17
80636 Munich

Tel. +49 30 417 22 597
Fax: +49 30 417 22 597
IRC: #ffii @

Tax number: 143 / 843 / 17600 at the German tax office in Munich.
IBAN: DE78701500000031112097, SWIFT/BIC: SSKMDEMM
Registered organisation in Munich, Amtsgericht München VR 16460
Board: Benjamin Henrion, Rene Mages, Ivan Villanueva, Andre Rebentisch,
       Alex Macfie

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* Meer info, archief & anderstalige edities:
* Contact: Menno Grootveld (