1. Danish software patents: to be or not to be? glyn moody

2. inventive scarcity patent law was framed in a world with few inventors, and few inventions monopoly was offered to attract foreign master craftsman to make technical knowledge freely available after monopoly expired to stimulate local industries to encourage more inventions 3. inventive abundance today, we live in an abundance of inventors and invention, as the creaking patent system shows in 2012, 469,000 patent applications filed with USPTO; 258,000 in Europe; 11,000 in Denmark in March 2013, USPTO *granted* 6,000 patents in a single week "30% of US patents are for things that have already been invented." 4. benefits & costs of patents Bessen, Neuhusler, Turner and Williams (2014) looked at costs and benefits to US companies of patents 1984-2009 total benefits - $385 billion total costs (e.g. litigation) - $538 billion or $1,490 billion order of magnitude: $1 trillion Bessen et al. looked at how things developed over time 5. something happened source: Bessen et al. (2014) 6. enter the patent trolls Non-Practising Entities (NPEs) typically buy patent portfolios demand licences/threaten to sue Practising Entities (PE) have no products, can't be sued no independent invention defence mount a defence in court costs $2- 5 million fees; most settle 1984-99: PE - 88%; NPE - 12%; 2000-09: PE - 39%; NPE - 61% 7. super patent troll Intellectual Ventures founded by Nathan Myhrvold owns 35,000 patents raised $5.5 billion from Microsoft, Intel, Sony, Nokia, Apple, Google, Yahoo, American Express, Adobe, SAP, Nvidia, and eBay computer-related patents cases 1984-99: PE - 17.2%; NPE - 5.4% 2000-09: PE - 12.1%; NPE - 32.6% 8. software patents obvious Wang's overlapping frames/windows trivial Amazon's 1-click ridiculously broad E-Data: system for reproducing information in material objects at a point of sale location (1985) generic e-commerce sites sued lack of well-defined boundaries intentionally blurred by lawyers 9. the key problem abstract patent of maths/idea often impossible to code around copyright is more appropriate: protects only the particular expression, not the general idea uniquely, software is patentable *and* copyrightable - anomaly 10. software patent infringement software depends on thousands of components/"inventions" more complex it becomes, more "inventions" it depends upon patents are monopolies to exclude others from using an invention if you can't code around it, you only need one "infringement" to block entire program/product 11. patent litigation source: Techdirt (2010) 12. smartphones: just the start 2012: $20 billion spent on smartphone patent litigation and purchase in previous 2 years 2011: Apple & Google spent more on patents than on R&D US smartphone patent thicket 2000 - 70,000 relevant patents 2012 - 250,000 relevant patents smartphone is phone+computer Internet of Things: thing+computer 13. US software patents If people had understood how patents would be granted when most of todays ideas were invented, and had taken out patents, the industry would be at a complete standstill today. some large company will patent some obvious thing and use the patent to take as much of our profits as they want. Bill Gates (1991) 14. EU software patents EPC (1973), Article 52: "(1) any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application." the following in particular shall not be regarded as inventions: "(2c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" 15. "as such" "Paragraph 2 shall exclude the patentability of the subject- matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such." "as such" opened up huge loophole for European software patents 16. computer-implemented inventions (CII) computer-implemented invention "one which involves the use of a computer, computer network or other programmable apparatus, where one or more features are realised wholly or partly by means of a computer program." in 2002 30,000 had already been issued in the EU 17. *not* software patents transforming file names (EP0800142) tabbed software palettes (EP0689133) generating buying incentives from cooking recipes (EP0756731) pay per use (EP0538888) online sales (EP0803105) etc. etc. etc. 18. European Directive on CII Directive on the patentability of computer-implemented inventions (2002) Denmark was against, ignored by European Commission 6 July 2005: European Parliament voted against it by 648 to 14 in favour: Microsoft, IBM, Hewlett-Packard and European Patent Office (EPO) 19. European Patent Office membership not coincident with EU 38 member states, not 28 supranational body enjoys extra- territoriality offices are "inviolable": local authorities can only enter with permission of EPO President funded through its services vested interest in widening scope of patents, incl. plants, GMOs - and software patents 20. Unitary Patent EPO handles European patents and European patents with unitary effect (Unitary Patents) European patents can also add unitary effect afterwards - open floodgates of CII patents national patents remain an option race to the bottom companies will choose whichever gives widest monopoly 21. Unitary Patent Court (UPC) Court of First Instance in France, Germany, UK local courts in Denmark, Sweden Mediation in Portugal, Slovenia Court of Appeal in Luxembourg EUCJ for "rulings on Union law" key: national courts play no part Spain, Italy, Bulgaria, Poland all have reservations 22. Polish concerns Unitary Patent fees may be higher than national ones could lead to flood of foreign patents applying in Poland more licence fees for Polish cos. more litigation against Polish companies, in other EU courts could see national patent court fading away; loss of autonomy, loss of national culture 23. something rotten? Unitary Patent will bring more, worse software patents to Denmark Denmark will lose its autonomy: must accept EPO's patent rulings Denmark sceptical about Directive on the patentability of CII wise to be sceptical of UPC adopt the Polish plan: before ratifying, wait and see if Unitary Patents are better 24. that is the question glyn.moody@gmail.com @glynmoody on Twitter +glynmoody on Google+ opendotdotdot.blogspot.com