EU Opens Itself Up To Massive Innovation-Hindering Patent Trolling

from the a-big-step-backwards dept

Wed, Dec 12th 2012 1:04pm — Mike Masnick

Ah, Europe. After years (decades!) of arguing about it, the EU Parliament has finally approved a unitary patent system -- in which inventors will be able to file for a single patent across much of Europe. There are good reasons to want to do this, rather than having a fragmented system which required getting multiple patents in so many different places, having a single system could be a lot more efficient. But, of course, the devil is in the details and the details here are bad. There are two major concerns, both of which should have been easily avoidable because the EU can look at the absolute mess in the US. Instead, they seem to have decided to head in the exact direction of the US's mess.

The two key issues:

Software patents: There's been growing support in the US to finally recognize that broad patents that cover software on general purpose computers are a problem, and that something needs to be done about it. Europe, for the most part, has had much more limiting rules concerning software patents -- but less so in Germany. The new unitary patent system will more or less default to the German setup, in which software patents are much more possible. And, as we discovered in the US following the State Street decision in 1998, when you suddenly clarify that an entire area is patentable after people long believed it was not, you leave open a huge space for trolls to rush in and patent everything under the sun to be used against companies which actually innovate.
A patent specific court: This part may be even worse. Despite the clear evidence that the US's decision to set up a single appeals court for handling patent appeals resulted in a form of judicial capture leading to a massive expansion of patentable subject matter (and, along with it, the number of patents granted and the number of bogus patent trolling cases), the EU has decided that as part of the Unitary Patent, it will also set up a "specialist" court for dealing with patent disputes. The thinking here may appear to make sense on the surface: patent disputes can get technical quickly, and you worry about judges having little technical understanding. However, as we've seen quite clearly with CAFC, having a patent-specific court means having judges who deal an awful lot with patent lawyers, but rarely deal with actual innovators. The end result is that they often believe that the patent system works fine, and are happy to expand it (which also helps job security).

Of course, that doesn't even mention the fact that the new system will make patents a lot cheaper to get, meaning that there will be a lot more patent applications filed. Combine it all and you have a recipe not for increasing innovation, but for the opposite: massively increasing patent trolling and patent litigation that is a clear deadweight loss to society, innovation and economic growth. It's a bad, bad move for Europe. Rather than strike out on a clear path for open innovation, they're following the US's footsteps, despite all of the evidence that the path leads over a cliff, rather than towards some wonderful innovation nirvana.

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Filed Under: eu, eu parliament, europe, patent trolls, patents, software patents

12 Comments

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Zakida Paul (profile), 12 Dec 2012 @ 1:25pm

It never ceases to amaze that people believe patents are good for innovation.

It is basic business knowledge that competition is good for innovation and patents, by and large, are good for monopolies and bad for competition.
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Anonymous Coward, 12 Dec 2012 @ 1:34pm

considering how the US has messed up on things, is anyone really surprised that the EU is going down the same road?
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Anonymous Coward, 12 Dec 2012 @ 1:34pm

Re:
people believe patents are good for innovation.

I'm afraid it's much worse than that. They believe patents are innovation: if you are innovating, you are getting patents, and (the contrapositive) if you are not getting patents, you are not innovating.

From the linked post:

E.U. leaders hope the single patent will be more attractive for inventors than the existing regime, which could help Europe catch up on its global competitors. In 2011, about 224,000 patents were granted in the United States and 172,000 in China, compared with just 62,000 in Europe.
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elemecca (profile), 12 Dec 2012 @ 2:08pm

You might want to add some punctuation to that title. At first I read it as "EU Opens Itself Up To Massive Innovation, Hindering Patent Trolling" and was very surprised. After reading the article it becomes obvious you meant "EU Opens Itself Up To Massive, Innovation-Hindering Patent Trolling".
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Anonymous Coward, 12 Dec 2012 @ 2:19pm

Well. Three things:

1. One of the overshadowing reasons for people to troll the patent system in USA is the damages awarded. In Europe damages are very small. The only reason to go to court is that the loosing side gets the bill for the case and a large fine. I highly doubt that these relatively small changes will make trolling viable in itself.

2. It is a complex area to reach a concensus on. That Germany and Great Britain have had so much say in it is troubling. In the end it seems more like a compromise prepared from the right wing parties. It really doesn't look like a reasonable compromise seen from the left wings side.

3. We are moving towards national approval. In many countries that will mean a parliamentary approval, but it has been determined that at least Denmark and probably others will need a popular vote on the issue. It is a very far-reaching issue in Denmark needing a yes from 50 % of the people with voting rights to pass, meaning that given a ~82 % participation, there needs to be about 60 % voting yes. It happened with a very small margin when our constitution was changed, but I highly doubt that will happen again since the anti-software patent movement is extremely strong among IT-professionals and even the media have brought several negative stories on it.

The last word is not even close to having been said about this issue.
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Anonymous Coward, 12 Dec 2012 @ 2:36pm

Re: Re:
Politicians and business leaders have fallen for the measurement fallacy, if it is not measurable it doesn't exist, and alo think that increases in the measured quantity represent increases in what it is meant to measure.
It is also difficult to sell to these groups that openess and cooperation are the best means of innovation, as they have a naturally competitive mind set.
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Mike Masnick (profile), 12 Dec 2012 @ 2:38pm

Re:
You might want to add some punctuation to that title. At first I read it as "EU Opens Itself Up To Massive Innovation, Hindering Patent Trolling" and was very surprised. After reading the article it becomes obvious you meant "EU Opens Itself Up To Massive, Innovation-Hindering Patent Trolling".

Good point. Done and done.
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Anonymous Coward, 12 Dec 2012 @ 2:39pm

Software patents is like being given a dictionary of words and being told that certain words cant be used together

Stupidity and greedness, surpressing inovation
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Anonymous Coward, 12 Dec 2012 @ 2:42pm

The US is innovating, New ways of abusing IP laws are popping up all the time. There's even a business model that relies on abusing IP to make money that would not exist if not for the ability to innovate new abuses of IP law.
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Anonymous Coward, 12 Dec 2012 @ 3:25pm

Re:
There are a few exceptions to software patents in article 5 and 6 of: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML , which basically boils down to the wishy washy:

"The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b)(red: articles demanding approval from rightholder to do anything with the code basically) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs"

That part is being talked up by defenders of the agreement as a protection against overreaching software patents. In the end it is not even close to true.
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Anonymous Coward, 12 Dec 2012 @ 9:51pm

Re No. 2 above conserning the CAFC, it would be a pleasure indeed to for at least once read something other than revisionist history.
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fenixbrood (profile), 12 Dec 2012 @ 10:16pm

Pushing
The US have pushed us to get a patentsystem that resembles the US, that includes software patents.

Tell your goverment to push shitty stuff on us or is that protectism and does not help the free market?
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