Unitary patent and software patents: a case study

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The war between Apple & Samsung provides us with the opportunity to show why substantive patent law with exclusion of software patents should be included in the regulation on the unitary patent.

In August, 2011, a Dutch court ruled that some Android smartphones violated a patent owned by Apple and therefore Glaxy S, S II and Ace smartphones were prohibited from being sold on the Dutch market 1. The corresponding patent 2 is a "pure" software patent, claiming an algorithm to scroll in a gallery of thumbnails, and a "software product" implementing this algorithm (i.e. any distribution of the software, even if the software is not run, is an infringement; and for that reason, Samsung may be prosecuted).

In Europe, software is excluded from patentability. However the European Patent Office (EPO) has delivered this patent.

The OEB's rationale is that the software "allows a user to navigate within an image and to switch between images with a minimum of user input types". This would amount to a "technical effect", which allows to bypass the non-patentable subject matter requirement. In other words, a computer program, which isn't patentable according to the European Patent Convention (EPC), isn't software "as such" as soon as it has a technical effect, and therefore it can be patented if it's new and inventive.

Yet, the technical effect found in Apple's patent is nothing more than data processing in response to an action of a user. As Richard Stallman reacted: “If that is ‘technical’ then any software feature whatsoever is ‘technical‘”. By issuing such a patent, the OEB is going against the EPC and is attempting to reintroduce software patents in Europe.

While this drift is worrying, this ruling affects the Netherlands only and not sales on other European markets. However, with the unitary patent and unified patent jurisdiction project currently being discussed in the European Parliament3, this will not be the case anymore: the smartphones affected would be banned on the whole EU market (excepted for Spain and Italy, which did not want to take part into these projects). It should be noted that in the same judgement, another Apple patent has been ruled invalid and that invalidation would apply to the whole Europe if the unified patent jurisdiction existed. To the extent that the granting of patents would be controlled by the EPO, it would give it "carte blanche" to change the scope of patentability.

That's why April rallies against the current project of unitary patent: if the idea of a unification of the courts isn't problematic in itself, its implementation in the project currently presented by the European Commission would be problematic. Thus, April proposed on http://www.unitary-patent.eu amendments to render an hypothetical unitary patent fully compliant with EU law. For example, the 6th amendement in those we have proposed would invalidate this patent. If this amendment was accepted, the provisions introduced would be part of EU law and the European Court of Justice (ECJ) would have jurisdiction to overturn the Dutch ruling.

Let's act against software patents in Europe and reject the proposed unitary patent: get in touch with your MEPs and tell them about it!

This post was first published on April website.