(Last updated: October 2012)
The European Commission is pushing two initiatives:
- Unified Patent Court: a court of patent experts (which means the judges will have links to the patent industry), under the control over the European Patent Office, so it will uphold the software patents they grant.
- "European Union patent with unitary effect" (or "unitary patent"): a much cheaper application process, for a patent which can be used to demand "damages" for all infringements in the EU (or at least 25 member states) instead of the current per-country system. This will lead to more patent applications and dramatically more litigation.
With a single patent valid for the whole of the EU (or at least 25 member states) will encourage companies to apply for more patents, by replacing the expensive per-country system with a single patent, and will increase the financial incentives to file litigation by allowing the patent holder to apply for "damages" for infringements in the whole of the EU (instead of just one member state).
The inefficiency of Europe’s current system is the reason for having much less patent litigation than, say, the USA. If patent litigation becomes easier and more profitable, and a special court ensures that there’s little risk of a software patent being invalidated, then Europe will have a system identical to that of the USA.
There are two solutions. The best is to push for these proposals to include a definition of what is patentable, and clearly exclude software. The other solution is to push for the European Parliament to reject these proposals. Both solutions are going to be very difficult. We can push for both at the same time by saying "The proposal in its current form is bad for Europe but it can be made good by adding a software patent exception".
For the software exclusion solution to be reliable, it must also be possible for the rulings of the Unified Patent Court to be appealed to the European Court of Justice. An appeal is not a solution in itself, but it is a necessary detail of the exclusion solution.
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