A couple of noteworthy developments in the European software patent debate. Firstly, the European Commission has criticised the European Patent Office harshly as lacking political accountability. The lack of accountability has allowed the EPO to change policy so that it permits the issuing of software and business methods patents.
Secondly, FFII has presented a statement to the Commission’s patent policy hearing against the proposed European Patent Litigation Agreement (EPLA). The statement reads:
As has been said by other speakers, the EPLA will make litigation 2-3 times more expensive. These numbers come from the EPO.
What does this mean for SMEs?
It means that if you are an SME and have a patent, it will become harder to enforce your patent because litigation just became 2-3 times more expensive. It also means that if you are an SME and accused of patent infringement, it becomes harder to defend yourself because litigation just became more expensive. And if you cannot defend yourself, you will be forced to license, even if the patent is weak or invalid.
Granted patents that are invalid are a plague, yet 50 % of all patent litigation concerns patent validity. That means every second trial relates to a problem that should not be there in the first place. Every second patent trial is a trial which could be 100% cheaper for all parties involved if the organisation responsible for the granting of patents would have taken it’s full responsibility, but also if these patents would never have been filed.
We will keep an eye on this, it seems to me that we are headed towards another struggle in Brussels.