European Commission pushes for software patents via a trusted court

Brussels, 8 May 2009 — The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the UPLS (United Patent Litigation System), an international treaty that would remove national courts. This court system would shielded against any review of the European Court of Justice (ECJ) on software patents. The last word over software patents would be in the hands of patent judges.

The complete power to validate software patents will reside in the hands of hand-picked specialized patent judges. There won't be any judicial oversight by an independent court.

The patent lords have the final word at the end of the story. This is not acceptable.

The Microsoft lobbying ecosystem is pushing hard for this central patent court, that would give more certainty to their floating software patents granted by the EPO. Quote Zuck here.

Hartmut Pilch had the right vision in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the association and leader of the litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on software patents."

XXX, member of the FFII litigation working group: "At the time the US Supreme Court is reviewing the deviant decisions of specialized patent courts, the European Commission is designing a system that forbids this. I have the impression they don't want to learn from the American mistakes."

It carries the risk that if the Advocate General is dependent of the patent system, it can deny a request to appeal for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention. The patent judges do not like judicial review of the ECJ."


The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired of the defunct European Patent Litigation Agreement (EPLA).

The current draft is shielded against ECJ intervention in software patents and substantive patent law.

The specialized patent courts in the United States (CAFC) have lowered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. One of the poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin impression. The Supreme Court judges were furious about: "This is googlleboyok".

German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "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 (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead (put a reference here).