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Software patents are
here and they're
really hard to kill and they
keep coming, so
it is time to do something.
Our next two speakers will
give you a brief overview of what
happened in the past, how it worked
and what we could do about that
in the future.
Please give a very warm applause to
EGA and Benjamin.
OK, then.
I cannot see the first slide,
I'm not sure if I'm supposed to do
anything that is going to be just
screened behind my back.
I don't know, so I'm still wet and
hello, my name is Seega, I'm a lawyer, so
someone with a different interest
probably than you to have.
And what I can say by now, all
the law related conference
I've ever been to, a much more boring
than this one.
OK, so you have.
I've been into this problem for many
years, I've defended
my master's thesis on patenting
software, and I feel that by the end
I've done it. It was like 2009.
We have almost 2016.
I was sure that it's probably has
to be settled, but it's not.
And a guy who works at a Polish patent
office, he told me that maybe I would
like to go once again into the subject
because there are many new decisions.
The problem has not been solved.
And right now, what I would like to do
is to motivate you to call
you for action because the situation
needs to be changed and you're going to
see why and in which direction
right now it's going to.
All right, what do we want to talk about
with Benjamin here?
We're still a little bit in a Christmas
mood, so this is a scene from Christmas
Carol. As far as you know, the Scrooge is
being visited by the ghost of the past,
ghost of the present and ghost of the
future. I will tell you a little bit
about the past and the present and
probably something that Benjamin has to
say combines the present situation
with the future.
How far we've come since the directive
proposal issued a directive proposal.
This is this directive that was
rejected by the European Parliament
on. Well, that's the question
on what was it?
Because in Europe we tend to pretend
that it was on something like computer
implemented inventions.
I will tell you something about situation
in the U.S. and they purely call it like
the software patents.
But in Europe it was called like computer
implemented inventions.
And how far have you come from that?
Where? Well, then we were in the middle
of nowhere because actually we didn't go
anywhere.
Some people say that, OK, so was it
finished by 2005?
So they rejected the directive.
So it means that they just said no to
software patents. We don't have any
software patents in Europe, and that's
totally not true.
And, well, we here in a black hole
because nothing has happened.
Good happened between this
time gap.
Benjamin will tell you something more
about
unitary patent.
And this is something would
be really dangerous right now in that
case, where it will be in 2016.
It's up to you would like to suggest it
to some actions.
I've been to a very brilliant speech
of the guy that named Thomas from Save
the Internet. He described the ways that
they undertook to fight for the free
Internet.
He said that some of the things he said,
it's too late for that.
So let's be beware because
he offended like with kept fighting.
So this is what we're going to do.
All right. So how does it look like
relating to software patents?
And I'm going to just give you a brief
speech from the legal point of view.
First of all, we have a patent convention
that is a source of the mess.
You must remember, that does not give
you a patent that is effective in all
European countries.
This is only a bendall of patents.
And this is very important because each
national code, each national
officials may refuse
grant this bet.
And on the basis of European
Patent Convention regarding, for
example, the differences when it comes
to patenting software.
And Benjamin, tell you about this
regulation, introducing, implementing
enhanced cooperation.
So I would just skip it right now.
What's the problem with that?
First of all, in the very basic version
of a European patent convention, we
didn't have anything
about fields of technology for which
the patents granted it was something that
was so-called obvious, but it was that
much obvious that nobody actually knew
what it meant.
We lawyers tend to
keep to the idea that the patents are
only for the technology, for something
that may be verified by
the experiment, for something that it's
connected in tangible work, not for
mathematical or abstract
idea. So that was introduced in 2000.
So that is really late because this is
something, as I'm telling you, it's a
very basic rule in Pattengale.
Then we have exceptions
from the patent protection.
And as you can see here in let's say
we have programs from computers
and this is what a representative says.
But then there is a problem because
it says that they're not protected only
as long as there are programs as such.
So it gives the false assumption that
there are some computer programs that are
patentable as some computers program that
are not.
And when you read the patent claims that
people who want to convince you that
what they actually have, it's not a
software patent.
Well, this
description is something that
they know that they do not sell meat,
but actually what is it?
Nobody knows.
You can only imagine how it looks like
this is the impression that I get when I
read the patent claims.
And at first I thought this is my fault
because I'm a lawyer. I don't understand
them, but I consulted them.
And no one understands what they try and
express, apart from the fact that it's
obvious they do not have the invention
to have a software or something and it
tastes like chicken.
Okay.
Then
in 2000, before the
directive was rejected, of course, that
was after several years of implementing
the action plan and they were up in
commission. First of all, tell tall
people, told US citizens that they have
to do something because this is what is
required by the economy in
the US and common in Japan, where
they forgot to tell was that the
attitude in US towards software patents
has been changing and that
the conclusions that they gave wasn't
true anymore and they are not true right
now.
So the European Commission said that
since by the end of 2000,
the EPA already granted to
twenty hundreds
of thousands.
Thank you. Software patents, it means
that we need to change the law.
Normally, I would treat it as a
confession that they did something
against the law because the law said you
may not grant pattern, but they say, OK,
that's a great argument.
Let's introduce the software patent
protection.
And this is something that they failed to
do. They also wanted to cross out this
exception for computer programs that were
up in patent convention as the result
of the fact that they already granted
that many patents for software.
Those two actions actually
failed how
actually European Patent Office deals
with that kind of applications.
Well, they tried to convince you once
again that this what is claimed,
this is not purely a computer program.
This is something in between.
So at first they went
with the attitude, the approach that
check the technical contribution
approach. So if the
solution gives up something to the
technical aspects, regardless whether it
lies in software itself
on a different characteristic of
invention, that's still cool.
So we may grant the patent
on the solution that it's purely
software.
If we cross that out, that's still be
nothing actually new to the technical
side. Now it evolved, but
actually the result
is the same. Now the ipoh all
goes with the technical effect.
What does it mean? No one knows.
It means that software may produce a
father technical effect.
Why is it, father? Because it produced
no technical effect while using
the invention.
OK, these are some examples you may
go through what is technical in
the eyes of IPOs and
for example, in Polish legislation, we
don't have, as in many legislation,
this exclusion, that patent
cannot be granted only for software
as such.
So our officials,
our court just say, OK, we don't have to
apply that because we don't have it in
our national law.
European Patent Convention is something
that only allows you to get faster
the protection in the countries
that you indicate.
So this is only procedural stuff.
The thing if you get a patent or
not depends on the local authorities.
What do we have here next?
The question the answer to it's supposed
to be obvious. Can the president
of EPA instruct national judges?
Kenny or she, depending on
their circumstances.
Well, we are supposed to say that no,
but there is a curious
case of Polish cases, but I'm
truly convinced that it's not only
what's happening in Poland.
I'm telling about Poland cases because
this is something that I know from my
practice, from my legal practice and
let's say my scientific
activity, what's happening in Poland
and maybe happening right now in your
country, if you want to get
a patent to go to the patent office of
Republic of Poland, if you're not pleased
with the decision, especially when you
are Zimmers, Google or any huge company
that the software patents was rejected,
then you can appeal to District
Administrative Court.
And then the last chance Supreme
Administrative Court and what is going on
right now in Poland. And the first
instance, like Patent Office says, this
is what you've given us, is nothing more
but a pure software, even though trying
to convince us that it's not we
don't grant you the patent.
We don't care that you've already have a
patent for that because we have our
domestic legal provisions and
we don't have that kind of estrogen is as
such. We don't know it is as such.
As such, I'm telling you, not getting a
patent. So then
it's getting higher in states district
administrative court and usually does.
Judges are
totally in line with patent
office.
They say, yes, we are truly convinced
their opinion of the experts, this
is not the invention.
We don't get a patent for that.
And then magic happens and it
goes to Supreme Administrative Court.
And for the last few years, this is
what's happening.
First of all, this is one of the
judgments. But I could name many of
them. As you can see, it's pretty fresh.
So there are some kind of instructions.
They are not called instructions.
Darkhold justifications for the
judgment and the justifications
are that Polish Patent Office
is obliged to follow EPOs understanding
of invention of its technical character.
Why? Because this is international
agreement and it is superior to our
national law.
The problem is that that would
be true if that would be the same,
the same matter that is regulated.
But European Patent Convention does
not tell you about the content of
the patent, about what you can do.
This is just procedural stuff.
The thing's going to be changed after
unitary patent will come into force.
The Benjamin, we'll talk about that right
now. National authorities
have still the power to say
no.
And what's here is actually this is
applied also to purely domestic cases,
to purely domestic cases when we even
don't have the EPPO patent evolved.
But because we are part of the
European Patent Organization, we are
supposed to follow that.
Then they also say,
by they I mean, the judges of the Supreme
Administrative Court that impose
reasoning is coherent with
trips.
I would like you to go to this
website. I recommend you because
there is a resolution that started by
Max Planck Institute
that explains that still
the countries are independent of
how they actually interpret the technical
character. They don't have to follow any
imposes of international law.
They're afraid to do that.
So this is not a lie.
And the final one,
that Polish Patent Office is obliged to
follow EBOs decisions and proceed
according to guidelines for examination
in the EPPO.
So something that was designed for the
internal use suddenly is right
up as if that was any kind of source of
law, because the Polish judge says
that we are obliged to do that because
this is for the common good.
Does this international thing, let's make
it clear that we do it the same way as
the EPPO does, but no one judges if depos
OK or not with that
OK, how does it look like in the US?
And I'm talking about that because as I
told you at the beginning, the European
Commission says that I had to introduce
some changes, some amendments
to write Panpan convention
by ruling out the computer
programs exception
because this is what the U.S.
actually imposes on us.
So this is on what
the innovative technologies built in us.
This looks a little bit different.
You see, first of all, they don't have
any particular provision that would say
that software patents are allowed.
But there are, of course, much
big interests that say that that could
be read in this provision where
because it says that you can get a patent
over a process.
But by that time when this provision
was made, no one ever thought about
computer programs.
So this process is nothing
to do with the process.
That machine does, according to the
algorithm,
what they also have that don't have the
legal exclusions.
But they have to also decide
this are just exceptions to the four
categories like this process processors,
manufacturing.
Composition matters if there is a law
of nature, natural phenomena or abstract
idea, then you don't get a pet.
And now the task of the judge is
to look at the invention, to look
at the computer program, to look at the
business method.
Right now, business methods are usually
introduced by the use of
software patents.
So sometimes they're combined with each
other. So someone has a way
in which the business supposed to be
conducted and introduce it through the
software. So it's like a double claim
here.
Look at this statistics.
They're pretty fresh because they're from
the end of the October.
And as you can see here,
the total invalid under
this provision that says what may be the
subject, which is pretty high.
And if you go to another statistics, like
85 to 90 percent, depending on
the court, it's all about
software or business methods.
So it means that the U.S.
is no longer pro software patents.
This is false assumption telling that we
have to change our law, Pendrell,
to give equal chances
to what's going on in America.
The thing that is going to Marikar really
surprising.
There is a brilliant guy called
John Oliver. I wanted to post his video,
but I'm afraid that he would stole the
show so I wouldn't
just dove into into YouTube.
Not right now.
The last week's show with John
Oliver. And he tells us there's
something that I cannot tell whether it's
true. This is as if sometimes I read
political description of what
Polish government had done.
I have no idea. Is it true or is it not
true? Did someone enter in the middle of
the night of the Nettos?
I have no idea if it's true or not.
What actually he said he said that
American companies deduced that there
is in Texas in of
the city, there is a card that is very,
very
well, I don't know how even to call it
up. He understands the pain
of the big companies and the jurors
also do understand them.
So if you want to sue someone, go there.
They don't have that many inhabitance.
But if you check how many actually
lawsuits were brought them, this is
highly technological, inventive
city and the information that is
best. And I cannot tell you whether it
was true or not.
That was a journalist inside
of the in front of the courthouse.
And she said, look, this is ice
rink that was sponsored by Samsung.
So he could skate during
when there is no snow and there is no ice
in front of the courtroom that was
sponsored by Samsung.
Is it true? Is it not?
I have no idea. But if it's true,
it is a very simple
message. Go pro Samsung.
So you'd have to say
so that would be easy for you to get to
the ice rink before the house.
OK, so this is the American attitude
right now.
Usually you can go for that in that
kind of stages.
I don't want to go through that cases
because I probably know them.
The thing is that the attitude has
evolved. It has changed from from
the time that when
the court said that it's enough
if you give a new software to totally
not new machine, you get as a result
of the invention. OK, but that was many
years ago right now after the Bilski
case, after the Alice case, it's
obvious that American courts really
don't want to get a patent for abstract
ideas and there are not that easy
to be deceived.
OK, so this is the description
of the cases. You may go for the
for the presentation. I want to waste
time for that right now.
What I want to also to tell you that that
would be very important in a European
case. What can we do about that?
The great thing was done in the US
by the year 2012.
There was a great conference, why I call
it great conference.
First of all, a lot of people
representing different
different societies can there are
different stakeholders, not only lawyers
who can tell whatever they want because
what who cares if it doesn't have
application?
This is something that I'm
that can exist without any
without any application.
I may say whatever I want.
But they also gathered that the program
is also gathered a representative of a
huge, huge technology
of them. And they say that actually
they go for the patents only to defend
themselves. The nominee then.
But if they see that that many people are
getting patents, they also
want to do that. So these were
the solutions that are suggested.
I will skip that is getting rid of all
software patents.
I'm not saying that it's fair, but at
least we know what we're standing
on right now. The situation is not good
because one may be great.
We'll be granted a patent and the other
may not. This is something that is the
worst for for the competition.
And I think
that this is something that we supposed
to oppose.
All right. So are we helpless?
I would say that not.
And here we have some voice
from the society.
That's what's supposed to be done.
I highly
recommend you to go to the Bundestag,
merge and address the German government.
They say they require from
their government to
not to allow to give software
patents just to focus on copyright
protection.
And the very brand new decision,
the resolution of December 17th
on patterns of biotechnological
inventions as broccoli and tomatoes.
And if you go for this resolution
of Abbey, as you can see here, it's
exactly what we need in case of software
patents, because they want
to explain how all the provisions
is supposed to be understood.
And what Benjamin will talk about in a
minute, how is going
to look like after the unitary patents
come into first? Because if it comes into
force, then the national judges wouldn't
have any authority to decide whether
the patent supposed to be granted or
not.
The Polish or the Polish
approach towards this unitary patent
has changed because from the very end of
the stick and the beginning,
we went for the enhanced cooperation.
But at the very last moment, Polish
government just didn't sign the final
papers. But if he wishes to that,
there's open way.
So we need to do something just to tell
people that it is important that it
wasn't solved by the year 2005,
that the directive was rejected.
It doesn't mean that we don't have
software patents
in in Europe.
All right. So probably Benjamin would
like to take the floor right now because
I heard some ringin and probably
it was addressed to me.
So the floor is yours.
Thank you.
Are the first normally there is a
picture, very important picture,
and it's not on the slide.
So, um,
we have to do something about it.
Uh.
But, uh.
Otherwise, I try to take my computer.
Do you have Internet there?
Yes,
very. And stuff.
All right.
So we've got
to start presenting myself.
Um, so I'm Benjamin Harrison
from Brussels and Belgium.
And, uh, basically,
I started university,
uh, in 1998.
And, uh, that was the beginning
of the Internet, the first Internet, uh,
the university.
And, uh, I went to some websites,
uh, translated into many languages.
Uh, there was asking a petition to,
uh, Commissioner Kalven,
uh, who was, uh,
commissioner for the internal market for
a study on software patents, and
that was made by a person named
HelpAge had webpage,
uh, is, uh, um,
the founder of the Wi-Fi.
And, uh, that's how
I became involved into
software patterns.
So, um,
I then organized some conference
with my Linux group in my university,
inviting, uh, people who worked
on the version 1.0 of
the first attempt to to change the law
regarding software patents in Europe.
And that first change was, uh,
uh, trying to remove the
word computer programs from the list of
exceptions, uh, in the European
Convention.
So the patent community tried to do that,
uh, via a diplomatic conference, like,
uh, for any any, uh,
international treaty.
You have to call for a diplomatic
conference where all the countries,
uh, like Monaco or France
or Germany have each one
vote. And, uh,
they
had no PILCH. And another Frenchman,
uh, John Smith, managed
to convince, uh, the delegation
of France and other countries to
oppose this, uh, removal
of the word computer programs from the
from the from the list of
exceptions.
And, uh, so
the diplomatic conference happened,
uh, they managed to get through, uh,
in 2000, a revision of the,
uh, EPK to insert,
uh, words from trips that says
that pattern should be granted for any
field of technology.
And, uh, when you read the convention
and you read this new, uh, thing,
you could say that there is a there
might be a clash between the exceptions
and the, um,
and the, um.
I mean, those two articles.
So at the end, the
result of the episode 2000
was that there was a huge frustration
among the pageant community to not being
able to remove, uh,
that, uh, exception, uh,
too much.
The practice of the European Patent
Office and European benefits had been
granted so far, but since
mostly the first
big decision, administrative one, was
in 1986, uh,
where they started to grant software
patents.
Um, so
the the
next step was to call, uh,
this community wanted to to
to, uh, to find another way.
And so they called the ask the European
Commission to launch a process for having
a European directive.
And this process lasted from 2000 to
2005.
And that was the period of, uh,
software patents version 2.0.
Maybe I can try to get my slides.
Um.
I will keep the picture.
Even though it was important.
So actually, the picture I wanted to show
you, which someone ruined my
presentation, they.
I prefer PIDF for a reason.
Um.
So the picture I wanted to show you is,
is
we were we were in the British parliament
in July 2005
and there was another lobby
from the big companies that rented
a yacht in the parliament.
So European Parliament is two buildings
with some river crossing in in, uh,
in the middle.
And they wrote a yacht with a big banner,
vote for SII,
vote for software patents, basically.
And, uh, on my side,
I was also helping to organize people
with yellow T-shirts in front of the
European Parliament so that, uh,
we had like, uh, protesters
in the in front of the of the parliament.
And I was so upset by this vote that
I managed to to call
a friend of mine who was in the
in the in the front
of the parliament.
And, uh, I saw that there were some
place to rent some kayaks.
And I asked him, can you rent some kayaks
and and kick me that boat?
So they took, uh, they took some banners,
uh, saying soft patterns kill
innovation.
And they went with two, three kayaks
fighting against that yacht.
And, uh, so at that moment,
that moment, the decision of the open
parliament was already, uh,
already kind of done.
Not the vote was not the vote was not
done. But the crucial moment
was, uh, the,
uh, the other side, the big corporation
asked for, uh, dropping
the, uh, the vote on this issue.
And they asked for, uh,
a new, uh, European court.
So I was I was very surprised because,
uh, to my opinion, it's it's,
uh, if they cannot change
the law, they cannot change the law.
The problem is in this case is that
you have at least seven
or eight different interpretation of the
what the law means.
And so it depends on the judge.
Uh, it depends on the judge.
What what what is going to be the
interpretation.
So actually, now, uh, in
2005, the plan
for what is now becoming the
European patent was already,
uh, the the third
version of software patents in Europe,
which is not having not reopening
the Soviet patent debate.
But having
said that, it's setting up a court
system, a pan-European court system,
which is outside of, uh,
the structure of nations, outside of, uh,
uh, even Europe, the
European Union itself.
So and, uh, at that time,
I don't know if I can,
uh, go find my slides
back.
So that was the press release
that was published by Ekta, which was
regrouping the the Microsoft, IBM
and others, and, uh,
you had to have a
look on what they they published.
And it was clear that their plan,
uh, at the time was already to prepare,
uh.
A call for European Bettencourt's.
So they said, we're going to look at
how to improve the system for everybody
in another in another way.
Um, so, uh,
this court is on a website
called EPELI that if I dot org
and that's, uh, basically when
we were talking about this directive
in Brussels, there was a representative
of the EPU, uh, Davidson,
who is now working as a patent attorney
in London, filing software patents
or at least helping them.
And he said, yeah, we don't need, uh, we
don't need these debates about software
patents. We just need a unified
potentially education system.
Because if we have this unified patent
litigation system, we do not have any
difference between, uh,
U.K. or Germany and interpret the
convention differently.
No, we have we have a central
court that's going to decide.
And it creates a single point of failure,
a single point of reference where we
know the interpretation.
Uh, for sure.
OK, um.
So, uh, this is a screenshot
from the so after
the directive, there was six months
just after the directive, there was a
commission relaunching
consultation about patents, how to
improve patents.
Uh, and, uh, there
was like a huge, uh,
huge submissions from small software
companies that participating to the
directive.
And, uh, the outcome of
the consultation was the relaunch
of, uh, treaty,
uh, that was negotiated back before,
which is what's called EPELI,
the European Pending Litigation
Agreement. And the European Patent
Litigation Agreement was a clone of the
EPC, but for courts.
So, uh, in Europe you have
for the ground parts, you have the EPPO,
which is granting those national
patents in, uh, in a central way.
But those national patents, they still
have to be litigated by country, country
by country. You do not have a court
system which is doing this the
same old as EPO, but for enforcing the
patents.
Um, so this, uh,
treaty was coming from the EPO
circles.
And, uh, so they
they discussed that, uh, option
to sign, uh, having an airplane
back in 2007.
And that was mostly rejected because,
uh, France and other countries said,
yeah, but how does that fit with the
European Union system?
How does that play with the European
Court of Justice?
And so, um, they make
they made, uh, France said we we have
considerable problems. We cannot sign
this treaty.
And, uh, so they made another version
and another version.
It became the European
the Union patent litigation system.
Um, and, uh,
so they they kind of made several
versions through the years
up to a point where they had some
kind of thing that could be called
compatible with the whole of the European
Court of Justice.
And, uh, so what happened is that the,
uh, they signed, uh,
something back in 2012,
which is called the Unitary Patent and
the Unitary Patent Court, which is formed
out of three regulations,
uh, that has to be ratified
by each national parliament
in each country
and the state.
Is it it is now that eight
countries have ratified,
uh, by heart, uh,
uh, France, uh, Denmark,
Portugal, uh,
Malta and some others.
But the main two countries, uh, that
has to ratify in order for the treaty to
enter into force.
The main two countries are UK
and Germany, and those two countries
have not ratified yet.
One of the issue is the Brexit in the UK,
because if the uh.
So the question is whether they put the
ratification before the Brexit.
After the Brexit.
And the second, uh, question is,
if the UK goes for Brexit,
what happens with the treaty?
Because it says that's
a separate discussion.
Um,
yeah. So what I wanted to say is that
this, uh, screen
capture comes from the website of
European Parliament, where it's is a Kuai
about, uh, the 2012 agreement
that was signed in December.
And they said that they have a
Q and they said, uh, yeah,
can you can you can suffer B bartended
under the new rules and they said no.
And when I read that I was like, OK,
they thought I mean, it's propaganda and
they fell into the to
some trap.
Um, so this is a tweet
from a conference, recent
conference in London, where
the representative of xPos had
said basically, yeah, the European court
will provide strong harmonization for,
uh, for Ista or software,
and we play a dominant role
in the patent world.
So that's the fact I
wanted to show a contrast between how
the legislation is sold,
how it's, uh, how
they sell it to people and what
it means in reality after it
has been adopted. They say, yes, it's
about.
Um, so
a small initiative that I made, uh,
back in March in Belgium,
we have a very interesting country
with three official languages, mostly,
uh, German, French and
Dutch.
And, um,
there is a special case where, uh,
the patent granted to a German
company got granted in Belgium
without any translation to
French and Dutch, and it
was declared valid for the whole country,
even if most people in Belgium don't
speak German.
Um, so there is already
in the law in Belgium very strange things
about the validity of,
uh, translations.
And the main goal of the
unitary patent on the ground side
is to remove, uh,
mandatory translations for patents.
So actually, because of, uh,
when you apply for a patent and you want
the 27 member states of the EU
is very costly because you have to
translate into legalese words,
uh, in each language.
And they made Diplomate a partnership
with Google so that,
uh, they can have automatic
translation of patents.
And that's actually what is in the
regulation.
Uh, the council regulation
is that they have a ten year period where
they, uh, they
they start with a system where,
uh, companies, uh, have
legally binding, uh, versions in English
and legally binding automated translation
with Google Translate
with, uh, non legal effect.
So they created a
new law that says, uh,
automated translation without any legal
validity is OK.
Um, so
if you Google for the the challenge,
I raised, uh, three important points.
The first was, uh, languages.
As a French native speaker, of course, I
felt a bit offended
by the fact that I don't have a legally
binding version and I have to build a
business on that.
Um,
so did
Spain also made
an appeal to the to the
European Court of Justice against the
unitary patent on five or six points
and what the point was the language, uh,
translations.
I mean, uh, I do have, uh,
a girlfriend who is Spanish.
And, uh, I've been to the
family in Spain and they mostly only
speak Spanish.
Um.
The court says, yes, it's
perfectly fine if you discriminate
people and have this
automated language translation
system for the unitary patent
and basically they they said they give
the green light to, uh,
the unitary patent in a.
For that issue.
Another interesting point, a legal point
was the you have those three
regulations and then you have
the rules of procedure of the court.
And I was in a conference back in
the end of 2012
14 where representative
of Microsoft was lobbying for
some rules on the thresholds for
exemption. So thresholds for induction is
whether you can freeze some assets,
whether you can, uh,
the judge can decide to stop the the
at the for example, the Xbox being sold
in Germany and things like that.
And, uh, he was very surprised
because he was lobbying people who who
were not politicians.
He was lobbying people who who were an
administrative committee, but who had the
power to write some rules.
And, uh, afterwards, uh,
I, I engaged with a lawyer who
was very critical on that point because
he said, yeah, normally rules of
procedure for court are decided and
accepted by parliament.
So, uh, in in the
buttons, you have a committee drafting
130 pages of legal rules,
and that's mostly lawyers
and judges that even writes the
the the the rules for their own
future court.
And there is something there of which I
was not very comfortable.
And I found, uh, very.
Because, uh,
the, um, the DP
cannot be attacked in court for what they
do, um.
And so the whole, uh,
it's called in English, the rule of law,
uh, in French is littered with war.
And, uh, the rule of law,
uh, says there is there should be an
institutional system where the
public authority, uh, is,
uh, regulated by law.
So unfortunately, this appeal was
rejected because that's a different
situation in Belgium between, uh,
appeals for against normal law
and against international treaties.
And we find it just the last day of the
six months. But actually it was six
weeks. So, uh, our appeal was
rejected. But I'm looking at other
countries like Portugal, where it's
way easier.
Uh, there's no constraint on how
you can file, uh, uh,
something, uh, against the council
record.
And I'm also looking at, uh,
forming a group of lawyers
and experts on how to bring those
three points, uh,
to the European Court of Human Rights in
Strasbourg. But for that, I might need
to raise a bit
of money in the future.
In the near future.
Uh, yes. On crowdfunding or something.
Um.
Okay.
So, uh, what is going on
right now?
DPO is there is some crisis
going on because, uh, I don't
know if you read some news or at least if
you are interested.
There is a very interesting blog.
Coltec writes, uh,
where, uh,
many people in the in the staff of Deepu
people are very upset about new
Staffords, uh, push
by the president of the Pew.
And, uh, there is an ongoing strikes
every two weeks.
Uh, uh, the, uh, the work
atmosphere is not very good.
Uh, the people who committed suicide.
And, uh, so the atmosphere
there is not is not great.
Uh, and there's
many people they are afraid they they
they they have cloggers on their
computers.
Uh, the, uh, the management
is trying to spy everything they do
to avoid leaks.
So I wanted to mention a very small
point here, which is another,
uh, angle of attack for against
the injury pattern, is that
the, uh, Article
142 of the European Convention
and then mentioned here that they kind of
solve the problem of enhanced
cooperation with the council regulation.
So, uh, if you are a specialist in
international law, normally you
you are able to to have an agreement
in international law, not using
EU law to fix international
law.
That's for Spain if they want to go
forward.
Um, so the future the
near future is that I'm preparing
something on the legal side.
But that would be very, uh,
I would be very interested
if some of the people joined to wake
up the coalition, uh,
in countries such as Germany, uh, UK
or even other countries where the EC is
not yet ratified.
Because there's evidence that, uh,
this court is is not made for
people, it's made for the patent system,
and it's gonna contribute to the
to the inflation, to the, uh,
the pattern warming, the global warming
of more patterns, cheaper patterns,
uh, patterns for Moorfield,
patterns for software, patterns for
biotech, uh, patterns for
medical, uh,
medical treatments, uh, medical
schools, prison medical techniques.
Um, and, uh,
there is a need for, uh,
getting to your parliament and say, look,
we have some problems with this
unitary patent monster.
Um, so I wanted to give the floor to
Andre.
So Andre is the secretary
of FFI, and he made
an initiative which is, uh, he
called for, uh, a petition
at the EU level to integrate the
EPO inside the European Union
system.
So I wanted to give him the floor for,
uh, for one or two minutes,
OK.
I don't know.
You can do it without the sleight of
hand. Yeah, I know, but,
uh.
OK, so
you have to speak in the microphone, then
switch on the microphone.
Yeah.
It doesn't work.
Yeah. OK, so
many of the problems that are very
technical and maybe very abstract for
people not working in the
field of patents, um,
boil down to governance issues,
governance issues within the patent
system and
out of these governance issues,
whether you're property or anti
patent or reject patents on certain
fields or are satisfied
with the patent system or not,
there should be some window for reform,
for the ability of the lawmaker to
somehow influence the process.
And during the last 20 years, there
was this tendency within the patent
system to shield itself from
the political process, from the
democratic process.
And it's going further and further.
And one of the main points of this
unitary patent court is that it's like.
Judiciary without
a legislative correction branch,
so the European Parliament cannot change
what the judiciary then decides,
and that's somehow against basic
principles of governance.
So regardless
how we see the issue of software patents,
we want to somehow bring this
institution, the European Patent Office,
back into the EU system because
the EU system is very well developed
and the EPPO is say it's a
treaty organization from the
19th in the 1960s, 1970s
style. So there's no
parliamentary oversight and so
on. So it just filed a petition
to the European Parliament and
I got confirmation like two months
ago that was accepted.
So the substance of my petition
and what is first of all, I
want the European Parliament to have
the ability to send questions
to the European Patent Office or its
administrative council that's governing
the EPPO.
So how do we get parliament oversight
of the appeal right now if they
write to the commission or to the
council? They say, but this is not an EU
institution, we can't do it.
So the way to do it very simply is
the European Parliament can independently
with the appeal on try
to get an interinstitutional
agreement.
So my petition is
about asking the European
Parliament to start a negotiation process
with the European Patent Office to start.
Do you have a line to get on the screen?
Can you put online?
I don't know how to do.
Doesn't matter.
So, yeah, my so
according to me, the European Patent
Office is an international European
institution which does not fall under EU
law, which is right.
He proposes that the EU contacts DPO
in order to conclude an
interinstitutional agreement that would
enable the members of the European
Parliament, your select elected
representatives and European Parliament
to address parliamentary questions to
the EPPO and improve the parliamentary
supervision of the appeal.
The petitioner.
That's me. Also ask the European
Commission to harmonize national
substantive patent law so
that patent law becomes part
of the acquis communautaire.
What does that mean? Well, the
European Software Patents Directive was
rejected and as there's no
European patent law, there's just
national patent law.
And then we have the European Patent
Office that centralized
in the 70s, the granting of patents, and
then became like the de facto
institution, deciding what's
patentable or not.
But that's not really the point behind
this European Patent Convention.
So my idea is there should be a directive
on the European level that at least
US patent law, like the status
quo, not specifically addressing
software patents, just the law.
So it's on the European level and you
harmonize all the national laws
because then actually the European
Union, the European Commission gets in
charge because it's part of the so-called
acquis communautaire.
That's, again, a very technical term, but
it basically means everything that's
regulated on the EU level.
And yeah, because the major
differences that still exist,
Poland has a completely different law
than Germany.
And this would then enable actually
on the European side that we are able to
balance the different areas
of patent law with, say, competition
law, with standardization, because it's
all on the same level.
Yeah.
And the EPO, which is just a patent
office, it cannot deal.
Oh, sorry, it cannot deal with all these
differences is de facto harmonizer.
So and yeah,
I guess it's good for the balance of
powers and it
would strengthen also the international
negotiating position
of the European Union in matters of
patent law with respect to third parties
like on the international global
level was VIPR, the SPOG
trips and trade fora.
So my petition, the
name of my petition, that's.
My petition has a number, and that's
two three seven zero,
2014.
So when you just remember this, a 23
17 slash
2014, that's that's the name of
my petition.
Then you can you are able to support
my petition by writing to the petition
committee of the European Parliament, say
while this is a good idea and I also have
these experiences with the European
Parliament and let's do something about
it. And I guess it would be very helpful
to get some public support for
my petition.
And when they see in European Parliament
that there's a lot of attention to this
proposal for an institutional reform,
which just leads to
say governance, not resolve,
the issue of software patents just
moves a bit to say in governance.
Um, yeah.
Then I would say.
There's a process now where you can
inject your stuff without a process,
we can talk, sit in a room, but there's
there's nothing right now that can be
done. And maybe then we would get
hearings.
We've got some experts discussions
when there's a huge public interest in
my petition. So just remember
the number 23, 17,
2014.
And I would
very much welcome, if you write some
letters in support through the petition
committee of the European Parliament
under this.
Of subject.
Thank you.
Thank you very much.
You know, if you have questions,
please line up at the microphones.
We have around seven minutes for
a few questions. We have them all their
questions from the Internet.
Yes, I have a question.
Um, it is,
um, is there a differentiation
between the patentability of
computer software and mere mathematical
formulas
you can answer of?
Like, for example, there's,
um, compression algorithms
for music, for example, every free
was patented.
Well, I've heard about a few
solutions of that kind, but the question
is that they actually
give patents for the solutions that
you once known about.
And this is like first come, first
served. So probably in that case, is you
supposed to look for that that sort
of pattern.
So in that particular compression,
but probably in
that part, um, so
actually in the European Convention, you
have another item for the exclusion
of, uh, algorithms.
It's an abstract matter.
So, yeah, purely in abstract matter.
But when it comes to, uh,
let's say if you if you implement in the
form of computer program, you for
let's say the pure mathematical is not
patentable, but if you implement it in
the form of software, then it becomes
patentable because the EPA says it's
patentable despite the exclusion of
computer programs.
Uh, so, yeah, for me, it's
abstract matter.
So and all those, um,
exclusions in the LPC are all
about abstract matters like mathematics,
uh, like idea concepts
like complex mathematics,
presentation of information, like,
uh, computer programs, uh,
and, uh, business methods, methods for
doing business. So all those
things have one thing in common is that
they are abstract.
And that makes the reference to the
current discussion in Alice in the US
that they all say it's an abstract idea.
But yeah, it is abstract.
So, uh, that's a criteria that
the Supreme Court kind of
used to say those matters
should be excluded.
So they have something in common.
The fact that the EPA makes an exception
for software
and even other fields get attacked.
Because if you look at the EPA,
uh, jurisprudence on ongoings,
on graphical user interface, they also
grant patents for, let's say, drugging
a mouse, uh, an icon somewhere
on the screen. So, uh, even though there
are other exceptions are getting
attacked.
Question from the front, right
microphone.
Yeah, thank you. Well, thank you for your
presentation is a very complex issue
and I support the idea.
But I would like to, if I may, clarify
the answer to the question.
Thank you.
Well, algorithm as such are
not patentable.
But in case of empathy,
if you have an algorithm and
software that solves certain technical
problem in a technical way, was
the issue you also tried then is
patentable?
That that was the case with empathy
and many other software.
But well, I have a couple
of issues.
Well, to your anecdotal
case from Texas, it's true, really.
I can't recall the name of the city, but
I'm sure something like that.
Yeah, yeah. It could be because
the company I work for, we have American
lawyers who also told us about this
situation, Samsung and Apple,
because they meet there very often.
So they have to entertain himself
in a certain manner.
Yeah, I would
like to point out a very,
I think, important issue in a unitary
substantive law because you focused
your presentation on procedural matters
in case of renting software.
But there is in the UPC agreement
in Article 27, letter key.
Oh, well, I conduct research on patent
exceptions. And I also focus on this.
And there is provision on
interoperability, which is
such concern.
Well, its source code and software
as such. But lawmakers
for some reason included this in
clearly patent patent
law. And I think this is also very
troublemaking issue.
And instead of clarifying
the situation, it spells only troubles
and well, if you have anchorman's.
Because interoperability
is about protocols and formats.
Yeah, but OK, yeah, but this is
software like pure software and now
you have this in also in patent law,
in material patent law.
So I think this is an issue because
I think if you if you make an
exception, we had the same debate during
the software directive.
We we had read that and, uh,
and the IBM pushing for interoperability
exception because if they saw
like if the directive is adopted, it's a
fallback position to have to diminish
the impact of software patents.
And, uh, the fact that it's in the UPC
is a bit worrying because it
means that they imply that
the software is patentable and they have
interoperability exception.
Yes, exactly.
And do you have besides the petition,
do you have any other ideas to
to, you know, to make further steps in
your action?
Because I would say the first step is,
uh, um, either we try,
we I try or other people try to
recreate some some some coalitions
of industry in Germany, in the UK to
block the ratification.
Mm hmm.
And I think that should be the first step
for me.
The legal steps are just they can be done
in the future after that.
But when you have, uh, when you are
in a war, you have some, uh,
some bullets to to to shoot.
And it's better to shoot the first
bullet. And this is the first bullet.
You still have the second one.
Well, if I may add something to the
problem is that these amendments got
to be really huge. It's not like one
provision is going to change.
This is something like starting work from
the bottom. And I don't want to say it's
too late for that because it wasn't the
case that people didn't do anything
because it was, you know, some kind of
activities during the years.
But I think that that's the main problem,
that this is not like the one provision
you take out and you may come
up with a conclusion that may come up
with a solution, because this is the
easiest way of dialog.
We want that kind of change.
We want to change actually almost
everything. And that changes the mindset.
Yeah. So that's why it's so problematic.
Not it's not simple
to to address a given action.
So it's it to be complex.
OK, I will give we have another question
from the front left microphone.
So I have a question with regard
to the 20000 patents you mentioned
before. Uh, how do we attack those?
Because they are still persistent and
they may still also prevent
companies for for coming into business.
I see here another challenge
on maybe on a case by case basis
just to say, OK, all of those patents we
have to tackle somehow and to get rid of
it.
Well, some of these patterns that were
mentioned, these were the statistic
by the end of 2000, because that was the
time when the European Commission entered
into Blendr action plan.
So hopefully, maybe some of them
are just expired by now.
What what the
experience show is that
you may talk about kind of patent, but
usually depending on the color, they
would just say
that, OK, this is technical.
That was what you also mentioned about
this technical effect.
Technical function of software are many
people who doubt that because if
something is purely non-technical,
I cannot have any kind of
technical aspects.
That was the main problem when they
started say that patent law.
It's not about protection of technical
solutions to technical problems,
but also using non-technical
ways to resolve some
kind of problem that could be described
as technical.
So nowadays, the statistic in Europe
are not that good. In us it's better,
as you saw, because there are almost
like as I noticed, it is like eighty
five percent, up to 90.
That was the invalidation on the basis
that it was estimated business
method or software. But I also mention
that nowadays it's combined.
It's usually you need a software to
introduce this innovative
business matters.
So the more money you have,
the battery come up with and
the main problem is which you are
probably aware of, that sometimes
they just sue for fun even though they
know you're going to lose.
And it costs are so huge.
And when they are introduced, when
they're first introduced in this
unitary patent system, they say
we have to do that because it's going to
be cheaper right now to get the patent
protection. But for whom cheaper?
That's the first question.
And then they didn't take into
consideration all the litigation.
And of course, I'm from a country
where the innovative in
terms of patent application is very,
very low. And as you see for the whole
European Union map, these countries
are the most developed will
will, you know, just gain the more.
So actually,
when you look at Europe in terms of
number of software patents per country,
all the American big companies, they go
France, UK, Germany
and, uh, other countries like Poland,
mostly, they are not concerned about
those patterns. But the problem with
unitary buttons is that instead
of. Filing for those three countries,
they're going to have the twenty seven
countries for free, so all the
countries, let's say Hungary
or even Belgium, won't suddenly
will get a we'll get an
extension of of more patents
because they're going to be cheaper
because the they're going to cover the
whole European Union at once.
So this problem of inflation
that is very visible in the United States
because there is a lot of litigation
around them, is going to come with
the patent, because that's the objective
of the of the lawmaker, is
to get cheaper patents and,
uh, enforceable, much
more easier and so on.
So the troll phenomena that you see
in the US, they are all all
the ingredients are here with
the entire burden to have the same
effect.
OK, and the last remark, there are very
hard to detect these software patterns
because since officially you don't get a
patent over software methods, you don't
have a given category
among which you may make a research for.
So probably there are lots of software
patents that are not called software
patents and you cannot even detect them.
So the numbers are also maybe not
reflecting the reality.
I'm afraid we're all out of time.
Thank you very much.
And if you have any further
questions up about.