EU Software Patents Battle 2.0

Florian Mueller, who did more than most to rally people against the software patents directive in the European Parliament, has flagged up the next - and potentially even more serious - threat from software patents.

This time, though, it's couched in rather obscure terms. The battle is not about allowing software patents "as such" - since they are explicitly forbidden in Europe - but about how litigation over patents should proceed. The point is, if the current proposal for something called the European Patent Litigation Agreement (EPLA) goes through, the European patent offices, many of which are happily handing out software patents, would have enormous influence over the litigation of such questionable patents, which is hardly right, methinks. As Mueller explains:

The legal status of software patents in Europe is contradictory. While the existing written rules, which go back to the year 1973, disallow patents on computer programs “as such”, the European Patent Office (EPO) and various national patent offices have granted tens of thousands of software patents. However, European patents, even if granted by the EPO, can only be enforced country by country as of now, and national courts declare many EPO software patents invalid when their holders try to use them against alleged infringers. Critics argue that the EPLA would create a new court system that would be under the control of the same group of government officials who already govern the EPO, and that the judges appointed by those people would support the EPO’s granting practice and its broad scope of patentable subject-matter with respect to software and business methods.

It's still very early days for the EPLA, but fore-warned is fore-armed.