London, 9th March 2017 – Companies across UK have expressed their opposition to an attempt to ratify the Unitary Patent treaty which is neither desirable for British software companies nor compatible with Brexit. They call for an urgent debate in the House of Lords and in the Scottish Parliament. After years of intense lobbying by large corporations, as well as their patent lawyers, progress was made towards a Unitary Patent Court (UPC) that would not only facilitate expansion of patent scope to software but also usher in so-called ‘patent trolls’. The Unitary Patent Court will have pan-european authority to impose injunctions, royalties for supposed damages from British companies. This represents an existential threat to many British companies, which foreign companies are hoping to thwart or cripple using patents.
“The acrimonious debate over the proposed directive on computer-implemented inventions might never have arisen if the patent litigation system in Europe had been unified, thereby eliminating the possibility of disparate national rulings on the same patent matter.” — David Sant, former EPO lobbyist in Brussels
“The volunteer activists drifted away, thinking the battle won, but the corporate lobbyists for software patents were paid to stay on the job. Now they have contrived another sneaky method: the “unitary patent” system proposed for the EU.” — Richard Stallman, Europe’s “unitary patent” could mean unlimited software patents
“We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system in which the member states can voluntarily participate.
In recent years trade deals as TTIP, ACTA, TISA, TPP, SOPA etc. face a public call for greater transparency. Relevant trade institutions responded to it, released documents and promotional material. Though the European Commission, mandated by the Lisbon Treaty to conduct its work “as openly as possible”, concluded confidentiality agreements with negotiating partners, on unknown legal grounds, that give a pretext to deny access to incoming documents. While the legacy document access rules don’t provide for better access to existing documents the European institutions released more official documents, often documents that were previously leaked.
Some European consumers are concerned about the transatlantic Trade and Investment Partnership (TTIP), others are not. The EU negotiates it on our behalf with the US. As a consumer association FFII took a critical stance towards TTIP early on, like an expert who explains you whether a used car you might consider to buy has defects. We now have a vital and broad public debate where at times criticism is over the top and very badly informed. The same applies towards the voices of proponents.
Spiegel Online quotes an internal document of the German Ministry of Economics on the TTIP negotiations (round 8):
Im Bereich der öffentlichen Beschaffung hat die US-Seite weitere Zugeständnisse mit der Aufnahme von Diskussionen zu Investitionsschutz / ISDS verknüpft. (In the area of public procurement the US side made further concessions conditional on the start of deliberations on investor protection /ISDS). The background is that the US negotiator side is very reluctant to revoke anti-free trade procurement policies like the Berry Amendments and Buy American, and has little support no support whatsoever from Congress for that. A removal of the enforcement layer ISDS is now used as a bargaining chip to stifle negotiation progress on public procurement. Given that ISDS is just an enforcement component it seems tricky to bargain over the substantive items such as public procurement.
EU Trade Commissioner Malmström addressed a question from MEP Adam Gierek on TTIP effects on transatlantic patentability differences. The Commissioner did not actually answer the question of the Polish social democrat and responded with routine information: “Notwithstanding patent protection granted by US law to computer programs, our current international obligations ensure copyright protection in both parties.”
5 February 2015 P-001944-15 Question for written answer to the Commission Rule 130, Adam Gierek (S&D)
Intellectual property rights and the TTIP
The patent systems in the EU and the patent system which operates in the US differ significantly in terms of patentability practice: in the US, GMOs can be patented, as well as computer programs, whereas in the EU the latter come under the category of copyright. Will the TTIP agreement not automatically result in the adoption of the previously rejected ACTA? Will the lack of harmonisation of the contracting parties’ intellectual property rights not lead to the unauthorised use of business computer programs by one of the parties?
It does not feel good when you are exposed to risks. Exactly this happens, exposure to potential liabilities, when you share your Wifi connection in Germany with others. Störerhaftung, secondary liability. As a result you hardly find public open wifi spots anymore as we used to have them all over Germany in the early days. The legal situation is actually quite mixed and the government prepared a new draft law that would not resolve the issue. In the case of the FFII e.V. it went like this, we had an open wifi in the office even when it was starting to get uncommon.
A new Open Source Strategy applies a concept of equal treatment:
The Commission will ensure a level playing field to open source software when procuring new software solutions. This means that open source solutions and proprietary solutions will be assessed on an equal basis, being both evaluated on the basis of total cost of ownership, including exit costs. What is apparently the advantage of Open Source software is that you get the source code disclosed and enjoy the rights to build upon it. The argument of total costs of ownership is completely unrelated and does not even consider the advantages of the mentioned openness characteristics. A decision based on “total costs of ownership” actually implies that the Commission does not care at all to promote Open Source.
The European Commission acknowledges that the unitary patent is not safeguarded against the granting of software patents by endorsing the EPO teaching:
21. Will the new unitary patent regime facilitate the patenting of computer programmes? The patentability requirements for European patents with unitary effect are identical to those of “classical” European patents. The envisaged regulation on unitary patent protection does not contain any particular disposition or derogation on the patentability conditions for inventions. As to the patentability of software, Article 52(2) of the European Patent Convention provides that programs for computers do not constitute a patentable invention.
The German delegation to the Council puts the axe against the data protection regulation. The trick is a special new pseudonyme data proposal. This shows a document from the Germans that was published by Statewatch. Under specific circumstances further processing which leads to revealing (re)-identification of the data subject should be allowed if the controller demonstrates compelling legitimate grounds which override the interests or fundamental rights and freedoms of the data subject (Art.6 (5)). The controller shall consider all the determinants of risk and assess whether a threat to the data subject exists.
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