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Software patents exist in Europe, kinda

Software patents exist in Europe, kinda. The European Patent Office grants software patents and courts in Germany and the UK have upheld software patents.

The three powers that decide

There are three main sources of patent governance in Europe: legislation, patent offices, and courts. The rules are in the legislation, these rules are interpreted on a daily basis at the patent office(s) by regular folk who hold not special position in our democracy, and disputes are settled by asking a judge who does hold a special position in our democracy.

(This breakdown mirrors somewhat the traditional separation of powers legislature-executive-judiciary, but since the UPLS proposes to introduce a new type of court that would be under the control of the patent office(s), we can't really claim that the separation of powers is a defining characteristic.)

Which "Europe"?

Patent governance in Europe is a mix of overlapping systems, so the geographical scope is vague and changes depending on what you look at.

The legislation and the patent offices are mostly regulated by the European Patent Convention (38 member countries), but also partly regulated by the individual countries.

The national courts are all completely independent, but they often mention rulings in other countries when seeking examples of how to decide an issue. There is a political push to create a unified European patent jurisdiction, which could be part of the EU, but it more likely to be an international treaty outside of the EU.

Why fewer court cases than the USA?

See also: Forum shopping#For litigation

Firstly, counting court cases and lawsuits measures only one category of harm. Harm with neither litigation nor threats is more serious, and occurs as much in Europe as in the USA.

There's very little litigation in Europe because most software companies with enough money to be worth suing are active in many countries. This means the patent holder can go forum shopping to pick the best venue, and they usually pick the USA.

There are various reasons to litigate in the USA:

  • Highest chance of success - the USA has upheld a lot of software patents, including low-quality ones
  • Broader effects - if the patent holder wins in Germany, that only proves that their patent is valid in Germany. Financially, it's more interesting for the patent holder can get their patent upheld in the USA.
  • Higher damages - if the patent holder wins in Germany, they can only be awarded damages for the number of infringements that happened in Germany. Damages for all infringements in the USA will be higher in almost all cases.

What about the legislation?

The legislation (which comes from the European Patent Convention) says that "programs for computers ... are not patentable ... as such". In recent years, this has been interpreted by the European Patent Organisation as meaning that software patents are permitted. (See: as such)

Many people interpret the legislation as excluding software ideas from patentability, but Europe's legal systems attribute official interpretation to courts, and courts in the UK and Germany have upheld software patents.

Who can change the legislation?

The legislation can be changed at any of three levels: EPC signatories, the EU, and individual member states.

When the EU passes legislation on a topic, that topic becomes an EU competence and the member states lose their freedom to legislate on that topic. The EU proposed legislation on patentable subject matter (see: EU software patents directive), but that proposal was rejected, so the current situation (as of 2010) is that member states can still adopt local anti-software patent legislation if they like. The EU also has the option of proposing legislation.

Is the UK and Germany case law strong?

See also: Case law in Germany and Case law in the UK

The UK case law is not strong. The Aerotel v. Telco (2006, UK) case looked at the value of software patents and ruled that they are bad for the UK and are thus invalid. The Symbian v. Comptroller General (2008, UK) case took a different approach and decided that the UK should follow the European Patent Office (EPO) whenever the EPO's interpretation is reasonable. Thus, if the EPO is forced to change it's interpretation, or if the UK courts can be convinced that UK interests are more important than consistency with the EPO, then this harmful case law will disappear.

The German ruling from 2010 on Microsoft FAT patents ruling does indeed support software patents, by the bare statement "Der Gegenstand des Patentanspruchs 1 bezieht sich nicht auf ein Programm für Datenverarbeitungsanlagen als solche (Art. 52 Abs. 2 c, Abs. 3 EPÜ)." (# 31), roughly "The subject of claim 1 does not relate to a program for computers as such (Art. 52 par. 2 c, par. 3 EPC)". No further justification is given as to why this should be the case, consistent with prior BGH rulings about software patents. An English version of claim 1 is quoted in the text of the decision.

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