On Thursday 26 September 2013, fifteen companies including Apple, Google, Microsoft, etc., published an open letter [3] to express their concerns about the Unitary Patent. They stress the insufficient safeguards and the risk of seeing the number of patent trolls1 explode in Europe. April, who has long denounced2 the risks that the Unitary Patent project presents, welcomes the endorsement of its views. This is in line with the open letter signed by nearly 500 European businesses in 2012 [4]. Unfortunately, the remedies advocated by the companies in the present letter fall short of securing an end to software patents and promoting genuine innovation-oriented policies.
The two issues that this text puts forward are bifurcation (i.e. the option to try a patent infringement seperately from trying the validity of the patent) and injunction (i.e. the option, for a patent holder, to have a product banned pending the final decision of a judge), which are two of the patent trolls' favourite weapons.
Effectively, bifurcation may cause some companies to be convicted for patent infringement even when the patent is invalid, since the decision on patent validity is handed down at a later date. Moreover, the injunctions allow banning a product from the market, including when the patents involved are trivial.
Despite both issues being valid, the problems associated with the Unitary Patent are farther-reaching. Changing the procedural rules, as these letters suggest, is not going to improve the Unitary Patent sufficiently to make it innovation-oriented and compliant with the European legislation. Its very structure, which relinquishes all power to the patent microcosm, must be reconsidered rather than subjected to a purely cosmetic amendment.
Furthermore, even though the open letter rightly brings up the patent troll issue, it does not provide a comprehensive answer. Stating again clearly, once and for all, that software patents are forbidden in Europe3 would be the only way to efficiently mitigate this threat.
- 1. Patent trolls are companies which do not produce anything, but operate on a business model that is solely based on patent infringement lawsuits. For additional information on the danger that they represent in Europe, refer in particular to the last part of the article “Only Gandalf can protect Europe from the Unitary Patent” [5], by Gérald Sédrati-Dinet.
- 2. Please refer to the http://www.unitary-patent.eu [6] website for further information.
- 3. For additional information on the dangers associated with software patents, see April's overview [7] [FR].