ENDitorial – Regulating the Patent Industry

By EDRi · October 25, 2006

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

We know that for over two decades, the global patent industry has been
trying – discretely, and sometimes less discretely – to get software
patents legalised. When Brian Kahin wrote about the US software
patent issue in 1990, the US had already allowed software patents for almost
a decade.

Today, in Europe, we still have the uncertain status where the EPO
grants software patents and national high courts mostly reject them.
The Commission has been promoting a new scheme, called EPLA, which is
driven by the hunger of the global patent industry and its frustration
with Europe’s failure to follow the American lead.

A key to understanding EPLA is to see that the global patent industry
is a lucrative set of businesses that makes money from researching,
writing, granting, licensing, and litigating patents. The patent
industry in Europe consists of:
– The national patent offices.
– The European Patent Office. (EPO)
– Independent patent experts and attorneys.
– Patent lawyers who manage intellectual property issues for major corporations.
– Patent-holding specialist firms (also called ‘patent trolls’).

It’s a global industry because most of the investment in purchasing
and litigating patents is from overseas. EPO patents are not
rewarding European investors as much as they are giving foreign
interests control over European industries.

The patent industry already has a near-monopoly over the patent
system. The same people govern the EPO, help define the EU Council’s
and Commission’s patent policies, work as experts in business and
private practice, sit as MEPs, and lobby for laws that favour the
patent industry.

The only real regulation on the patent industry today is the system of
national high courts that strike down EPO patents when they are
considered invalid. EPLA proposes to remove that layer of regulation
and create a self-regulating monopoly. The justification for EPLA is
that a single court is cheaper and more predictable than the current
diversity of national courts. (This justification is false – the EPO
has itself said EPLA would be more costly for most SMEs.)

In my blog entry “The EPLA Shuffle”, I describe the way the Commission has
acted as the mouthpiece and patron of the patent industry. I describe the
pro-EPLA propaganda, so you can recognise and counter it when you see it. I
explain how the Commission is conducting a huge astroturf campaign to push
for EPLA. And I say that the Foundation for a Free Information
Infrastructure (FFII) is taking steps on designing a new patent system.

Let me describe the FFII vision. We believe that change in the patent
system is needed. The patent industry is already a dangerous
monopoly, and it cannot remain loosely regulated. We want to see a
proper EU patent system that sits under our courts and is governed by
our European Parliament.

The initiative is called the “European Patent Conference”. We are
launching it with two conferences. One will be on 25 November, in
Munich. The second will be in mid-January in Brussels. We plan to
include not just the software industry but telecoms, pharma, and other
sectors. During 2007 we’ll continue to organise events, build up a
base of ideas and papers, and aim to bring a solid proposal to the

The European Patent Conference is not just an event, it’s a work in
progress that will, if we succeed, turn the software patent debate on
its head. The core question is not whether software should be
patentable. As Kahin said: “never before has an industry in which
copyright was widely established suddenly been subjected to
patenting”. The core question is whether an unregulated global patent
industry can be allowed to take over the European patent system.

Do we control our future patent system, or does it control us? That’s
the question, and we – you and me – are the answer. If you want to
help, you can become a member of the FFII, you can donate, or you can
work with us on the European Patent Conference.

Brian Kahin – The Software Patent Crisis (1990)

The EPLA Shuffle (22.10.2006)

EDRI-gram: The European Parliament ready to vote on EPLA (11.10.2006)

(Contribution by Pieter Hintjens – President FFII e.V.)