Archive for December, 2012

What’s wrong with the EU unitary patent?

Wednesday, December 12th, 2012

The European Parliament approving the unitary patent is bad because:

  1. Patents become a lot cheaper, which means more patents, which means more restrictions and litigation. People can now get one patent that’s valid in 25 countries (the EU minus Spain and Italy), instead of making 25 separate applications involving many translations. If patents were a good thing, then efficiency would be welcome, but in domains such as software, patents are an affliction.
  2. Litigation becomes more profitable. Patent holders can now go to a single European court to ask for payment for infringements in multiple countries instead of having to go to each national court. The inefficiency of the old system was what saved Europe from masses of litigation. Patent holders preferred to litigate in the USA. Now they’ll litigate and racketeer in Europe too.
  3. There’s also the risk that this new court will be made up of judges who are “experts” in patents, i.e. have a background in the patent industry and will bring a strong pro-patent bias, thus entrenching software patents in Europe just like was done in 1982 in the USA when they created the pro-patent appeals court, the CAFC.
  4. (I’ll have to read the details on this last point, but I hope the European Parliament hasn’t given away its power to legislate on what is and isn’t patentable. Anti-software-patent legislation at the EU level is now acutely more necessary.)

One remaining ray of hope is that the European Court of Justice might throw it out. There’s an obvious democratic problem: unitary patents will only be published in English, and if you use a patented idea without permission, you’ve broken the law. So, if you don’t speak English, how do you avoid breaking the law?

Uh…

That’s how stupid this idea is. The European Parliament’s vote is an act of desparation, but for what? Why was there so much pressure to get this done? As IP lawyer Alison Crofts wrote in 2007, back when the proposal was called the EPLA:

“The industry-based driving force behind the EPLA comes from the pro-software patent group as a way of ensuring that their software or potential software patents are fully enforceable across Europe.”

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