 Welcome everyone to our next talk, software patents 3.0, the Unitary Patent Court. Show some love to the speaker, and please come to the front. So it's nice and cozy here, thank you. I'd like to introduce to Benjamin Henrion. He's coming from Brussels, and since almost 20 years fighting for free programming and against software patents. And there is a new thing on the horizon that everyone should know about, and he's going to talk about that. It's the Unitary Patent Court. Is anyone of you a developer? Is anyone of you working in IT? That's your talk. Enjoy. I'm going to try not to rely too much on slides today. It's due to a good friend of mine who passed away last year, and who trained a lot into public presentations. And he came to the conclusion that slides are a distraction, so today there's going to be some pictures, I'm going to show you some websites, but basically my talk is going to be a talk without slides, and I'm just going to follow some notes for me to follow some red line on my presentation. So I'm Benjamin Henrion, I come from Brussels in Belgium. I've been starting with the issue of software patents when I signed a petition online in 1998 set up by someone called Harmut Birch, and at that time the patent community was secretly trying to change what is called the European Patent Convention. The European Patent Convention is an international treaty which regulates the grant of patents by the European Patent Office, and it's a system which is outside of the European Union per se. And this treaty contains a lot of rules, a lot of articles about patents, what should be granted, what should not be granted, and there's a list of exclusions in Article 52. Article 52 of the EPC says that patents cannot be granted for mathematical algorithms, rules for playing games, presentation of information, and programs for computers. So what happened in 1989 was that there was a diplomatic conference that was called by member of the, by countries of the, were a signatory of the international convention. So all of the EU members are signatory of this international convention, but there are more countries like Monaco, Lichtenstein, Iceland who are also participating in this. So when you go to the European Patent Office, you ask for a patent, you can designate Iceland and then get your patent validated in Iceland without going to the Icelandic Patent Office. And so the system is working in some countries, in most of the countries right now. If you want to validate your patent in Iceland, it needs to be, you need to provide a translation in Icelandic, and it's the same in France, it needs to be translated in French, it needs to be translated in German. So European Patent is actually a patchwork, like you select your countries, and most of the time, large companies, they say, oh, we want Germany, France, and UK, and that's it. So most of the patents are filed in those three countries. So what happened in 1999, there were two people, Hadmoud Pilsch and Jean-Paul Smets. Hadmoud founded the FFI, and Jean-Paul Smets founded the association called Eurolinux, and they basically managed to convince some countries like France to oppose this removal of computer programs from the list, and this led to the patent community calling the European Commission for a European Directive to replace that failed attempt. The first attempt to validate software patents in Europe failed, and they moved to the second attempt with European Directive, so the Commission made a consultation back in 2000, where I participated and other people participated. Mostly the consultation was against patents for computer programs, but the Commission went on following the advice from the business software alliance, from Siemens and large Ericsson, Nokia, Microsoft, and they proposed the European Directive in 2002. That was interesting, because we got, so when the Commission published a proposal of a directive, all the members, the countries in the Council received a copy, and that copy was in a word format, and Jean-Paul got an email forwarded by France saying, hey, we have the final proposal, that's going to be discussed, and when you go into the details of the file, it was actually written by Francisco Mingarans from the business software alliance, so it might have meant that the BSA was actually writing part of the European Directive. What happened is that after this directive was proposed, there was some discussion inside the Parliament, there was a lot of debate, and then we came to the first vote in the European Parliament, where our side managed to patch the text to that, mostly software patents would be not allowed, and that was 23rd of September 2003, and in August I remember I was still a student and I had to postpone some exams to start a web demonstration. We had a petition running called petition.euroenics.org, which had 50,000 signatures, and basically all the open source, like gimme.org, Apache.org, some other big open source website just closed down for days, and that drove our petition traffic to 300,000 signatures in two weeks. And that made a difference because the attention of the people on this topic went high on the list and there was so much pressure on members of the European Parliament that it made a difference, the vote. Actually we won the vote because there was a large attention and pressure on politicians. So what happened after that is the text, which was all the big companies were against what was agreed, what was voted by the Parliament, and they asked the Council of Ministers to go again, basically delete everything that we managed to clarify and reinstall software patents again. The problem with the Council of Ministers is that it's a very, for me it's an undemocratic institution because Ministers are part of the executive and the executive at the national level becomes legislator. Especially when you have separation of powers the executive cannot become legislator, it's a role of the Parliament to legislate. But in Europe we have an hybrid system, which is on this side, it's very undemocratic. And the other problem is mostly it's the Ministry of Economic who are responsible in each country and the national patented offices are just next door. So at some point in most countries the position of the country was made by the national patented office, which of course they don't see any problems with software patents. And that's still the case. I mean, when we followed the discussion on the unitary patent we also found heavily influenced by the national patented offices. Yeah. Do you have a problem with the camera? Yeah, there? Okay. So what happened with the Council is that Ireland played a nasty role when basically they had to have a qualified majority. So not all the countries have to agree but certain percentage of countries have to agree on the text and so they managed to basically remove everything that we achieved and send that back to the Parliament. And so it was very dangerous. At some point we made so much fuss about the second vote, which was critical, because if the Parliament would just say we don't follow the same line as we had in the first reading, then it would have been lost. And we put so much pressure the day of the vote with demonstrations, with letters, that at some point the large companies who were pushing for software patents said no, no, we don't want to discuss this thing anymore. We want the Parliament to reject the directive and we're going to push for the next phase, which is the community patent. So I remember I was in Strasbourg on the bridge, which is linking two buildings and in the middle you have water. And the big companies paid a yacht to display some things to vote for software patents. And I called a friend of mine and said, hey, I saw this kayak shop. Can you actually fetch some kayak and then counter this boat? Because it's really annoying. And at that moment the large companies already said we go for rejection. On our side we were heavily debating whether we should push for rejection as well or continue. And then we said, yeah, we are fine. I mean, the exclusion of computer programs is still in the law. But what we didn't see is that this can be, I mean, in Germany, for example, they interpret it very narrowly. They say you have the exclusion, but you have also the exclusion to be interpreted as such. And so at the end, most of the software patents gets granted and the judge says those are valid. So we didn't, at that moment I didn't understand why they were pushing for rejection because you can't actually change the law. But what they can change is other judges. Because here you have a piece of law where you have, I counted at least seven to eight different interpretations. So if you change the judges and made them specialized or at least it's the case in Germany and some other countries, you make them, they have a bias, let's say, for patents in general. So if you change the judges, you change the whole game. And the whole, so what happened is in July 2005 the directive was rejected by the parliament, basically the two forces neutralized and it took six months for the commission to come back and say, hey, we want to relaunch the debate on the committee patent. Which is the next one where that was January 2006. And it took them roughly 10 years to set up this court because it's not foreseen in the European treaties. And basically they had a project called EPLA, European patent litigation agreement which was kind of the copy of the European Patent Convention but also an international treaty but installing a court to go with the EPC. And some of the countries said, no, we want something which is integrated in the European Union so that European Court of Justice have a say. And the patent community never wanted specialized tribunals for patents inside the European Court of Justice because they can't control it. So they took the EPLA, they tried multiple times to get the consensus around it and they renamed it like two or three times. And in 2012 they came with an international treaty proposal called the European Patent Court which is basically consisting of three legal texts and which is basically setting up an international court but with some links with the European Court of Justice. Which is still they had like two opinions from the European Court of Justice on the compatibility of these texts with the existing utilities. But even after those two opinions is still not yet clear how, if there is a link or. So we are now in a situation where this European Patent Convention, this UPC treaty needs to be ratified by all the countries one by one. And we are in a situation where the treaty is not yet running. You need three countries, UK, Germany and France, if those three countries have ratified the treaty runs. And so the court can be in a running status. And right now that's not the case because in the meantime you had Brexit and Brexit means if you read the position of, first of all you go out of the EU and then the position of the ministry is that it's an international treaty and not an EU treaty then they can still ratify it. But the problem is inside the treaty they mentioned the word member state which has a particular certification for being a member state of the European Union. And so there is still a big debate in the UK especially among lawyers whether, so right now as I understood the plan might be that to get the stuff running, which they try for 40 years to get it running, they ask the UK to sign. And when the Brexit deadline is there, the UK might leave. So that's being discussed right now during the secret Brexit negotiations between the council in the UK but basically that's what they are trying to do. And on that front, I helped people, I managed to switch, I helped to set up a small petition basically which summarized the problems. One of the problems we saw for patents especially when you see the US example but I also worked with Peter Hinge who was the past president of FFI. Basically his company was threatened by a penitent, a pension penitent who had a patent on an SMS gateway, email SMS gateway. And at the time they were working for some SMS application with Belgacom, Proximus now. And basically they threatened all the vendors of SMS gateways in Belgium. And basically when Proximus received a threat letter they basically stopped the project and Peter's company had like 10 employees and from one moment to another he had to fire everybody. This situation for small companies, I mean in IT there's a lot of companies with one, two, ten more people but those kind of companies don't have the means to fight against a patent which might take a lot of money, a lot of time, a lot of resource for at the end, you're not sure about the result. Most of those companies can't litigate in court because it's too expensive. Even at the national level, even for a country like Belgium, their lawyers are already asking for too much. So the problem we see in the US is that you have now actually in 2005, 2006 it was not really the case but right now there is a business of creating companies who are only issuing with patents. They are sending threat letters, they are asking you money and the amount they ask is usually below the amount of money that you will have to pay for a court for a proper lawsuit. So if it's cheaper to settle than to go to court then you go for settlement. Those companies just send hundreds of letters to companies they see on their website, they are mostly infringing their patent. So when you read those patents they are very broad, very generic, it's about transmitting data over the internet and processing the thing and changing it or whatever. So I give the example of the SMS gateway but there are many others, at some point we used the progress bar, the European patent office granted the progress bar, a patent over the progress bar to Apple and the patent was running until 2008. On the other hand they say yeah but we have a strict, we have high quality but at the end when you look what they grant is pure garbage and especially the problem is when I work on a daily basis I write, basically I write texts, I write code and the government says yeah but you have to look at patents before writing code, I'm like how is it possible? I mean for me it's like there's a free speech issue, there is an economic issue because it impacts jobs especially in the US, in Europe it's less visible but there's still some litigation activity and the problem is the UPC, they're going to replace all the national courts in all the countries with the UPC system and if this UPC system gets in favour of software patents then there is, the only way would be to call for a new directive to come to that but it's already a lost game. So the structure of the UPC is that they're going to create a central appeal court and this appeal court will judge about the validity, typically they will say is this patent valid? Basically in patent law you have two flows, you have whether the validity or the infringement. The infringement deals, okay you have a product, you have a patent, does the product infringe the patent and the validity is more like yeah this patent is not valid and then you have to judge on whether there's prior art, whether it's patentable, whether the whole thing is actually valid. And in Germany for example now what's going on is most of the patent rolls are going to courts like Düsseldorf because in Germany they have split those two circuits. So when I have a patent I threaten the company, I go to court in Germany in Düsseldorf and the court give me an injunction to stop all the products over Germany but at the same time the other company might go and ask for validity saying it's not valid but the court doesn't wait for the other circuit to pronounce itself on the validity so once the judge issued an injunction to stop the product the other court has not been said if it was valid or not and most of the time it says it's not valid but in between the two decisions you have one year and the product is already stopped on the market, the thing is already destroyed but at the end the patent is not valid. So there's like an equilibrium that you have to have between both. For example what happens is when you have an infringement case the patent owners say yeah my patent is very broad and your product is infringing, it fits in there but when you go to validity it says my patent is very narrow, it's very precise. So on one side they say yeah it's very broad because you have to infringe but on the other side they say no it's very narrow because it has to be valid. So there's two, yeah it doesn't fit together. So it has to fit together and the problem with the current EPC system is that they didn't clarify that one so it will be up to the judge to say how I go with infringement or I go with validity or I mix both. And the other problem is they try to set up that court, it has to be certified by all national parliaments but this issue for example of bifurcation they put it into 130 pages of how the court is going to function called the rules of procedure and this text is made by an administrative committee. No member of parliament has a say on which line should be changed so they gather legal experts and then they draft those rules but actually those rules to my opinion should be validated and voted by politicians and discussed. So in there you have procedure to say if you have an infringement case you can say it's all the material to gather evidence, stuff like this needs to be made by politicians not by technocrats. And so I worked, so I had looked on this topic for like 10 years, I followed most of the discussions and I came to the conclusion that some of those bits in the treaty are not constitutional. There is an interesting, so the goal of the unitary pattern is to make patent filing cheaper and for that they had to get rid of the language diversity of Europe. So they design a system where you provide translation in English and then the APO made a deal with Google to have an automatic translation of this to all the languages of Europe and they made another trick to say this translation is for information only it's not legally binding. The only legally binding text is the English text. And first of all I don't know if this is constitutional and secondly right now the quality of the translation are still especially some weird languages like Hungarian or Estonian or I don't know what the quality, what I found out even Spanish at some point is the quality is just very basic. What I tried to do was to file a complaint in Belgium so I raised three legal points, one of the fact that if there's also next to English there's also French and German as languages. I raised the point that if you have let's say two companies, one in Flanders, one in Wallonia, one is going to get a legally binding version of the patent while the company in Flanders is not going to get a legally binding version of the patent and that's already creating some distortion where one company is more aware than the other and actually in the Belgian constitution you have something called equality before the law and that's to my point of view that was not the case. So I also raised the fact that this administrative committee, this case law in Belgium and in the European courts of human rights to say those rules of procedures will be voted by parliaments and not by an administrative committee and secondly the administrative committee when the treaty is running they have the power to adapt the treaty without going through a re-ratification of the changes and that's also not for me not constitutional. And the third point I raised was the fact that the European panel office when the administration, when the executive does something you should be able to go to court and say this is wrong. Like if the policeman arrest you for nothing you should be able to go to court and they have a judge that decides that the act of the policeman is was wrong or not legal and with the European panel office you don't have that. Basically the European panel office grants a patent in your country but if they made a mistake like in the whole process you can't actually attack the procedure in court because they are not responsible in front of a court. So the only thing that UPC does is take those patents and look at the validity or infringement but they won't be competent to judge on the whole procedure of the grant of the patent or the non-grant of the patent. So in the U.S. they have this mechanism where if you are example you apply for a patent in the U.S. panel office and the U.S. panel office rejected you can still go to court and say hey look they were wrong they shouldn't have granted it and so you go to court. And what happened in the U.S. in our field is someone called Bilski he had some kind of more business method patent he asked for that the USPTO and the USPTO said no it's not something that can be patented and he took that to court to the specialized panel court in the U.S. and this specialized panel court asked the Supreme Court and the Supreme Court said I mean the title of the case was Inrei Bilski it means the patent owner is going against the administration to against the administration and with what they have set up with UPC this is not still available. So there's something in law called the rule of law which says the executive should be able to be in front of a court and that's not the case right now. Okay I wanted to touch a bit on the situation in Germany and the U.K. so in Germany some people in the patent community are following this very closely and someone filed the constitution complaint in April because they ratified that at 1 a.m. in the morning with 20 people in the audience and there is some part of the German constitution which says that if you have delegation of power to international court like for example the international criminal court in the Hague then you should have a two-third majority of the member of parliament voting for it and there that was typically not the case. So the problem is that there's no detail about this complaint and for example the three point I raised in Belgium I don't know if they are included in this complaint and if the constitutional court will look at that. Right now the process in Germany is mostly if it has been ratified by the parliament but the act has not been transferred to the basically it's frozen till the constitutional court gives its position but my feeling is that they won't look at the real problems. So what I'm trying to do is to find a lawyer in Germany companies in Germany that also give money because lawyer to write that kind of stuff is not free. In Belgium I had the chance to be able to find out that you don't need lawyers actually to find a constitutional complaint so when I found that it was really two weeks before the deadline so I took mostly a week off to write it to submit it but the problem is there were two deadlines there were one deadline with six months which is the normal time against the normal law but since it was an international treaty it was six weeks so I filed it the last week of the six months and the court said no it was too late. So when you look at country by country I looked at Netherlands for example there's no way to file a constitutional complaint other countries it's already you have a small time window there's one special country Portugal you can find at any time a constitutional complaint to review a law to see if this law is compatible with the constitution. But the advantage with Germany is that it's one of the key countries if Germany cannot ratify for whatever reason the whole thing dies. So in the UK the government reintroduced the bill in the parliament they want to get it ratified by September and basically we set up a petition but with not much traction at the moment and I'm really thinking we need to get the web demonstration running with people taking the streets again. So I'm looking at doing something in the UK it's very hard because people who were involved at the time in the UK are not in the loop anymore they are not very reactive or they work on some other projects but we're going to try. Right now we have 10 companies who signed up mostly 30 companies already signed up but we would need more to get more pressure especially on the Conservative Party who is basically saying yeah there's still a link with the European Court of Justice but we can ratify it anyway. There's also the thing with that we set up a clone of this petition on the UK Parliament website before the election but the petition was scrapped and now if you want to file it again the petition committee is not ready yet they will be ready in October so it will be too late to do something. So right now I think the best is just to try to generate some movement in the UK to try to get some members of Parliament opposing it. There's also Scotland because Scotland has also to give it its grid line so there's also a possibility there to get some movement just in Scotland. So actually the URL is nounitaryselfappendance.uk if you want to have a look. One thing we might also do is on the 23rd of September in the past years we were running the World Day Against Self-Appendance we are thinking to relaunch that again. The situation in the US improved a lot with Alice like a lot of self-appendance got rejected but still companies like IBM and others are trying to propose a law saying everything should be patentable including computer programs. Of course they don't put it like this but it's a text. They propose a text that they're going to sell to politicians to get rid of Alice. That was mostly it for me. I don't know if you have any questions. Maybe you had deal with self-appendance or... Just one second. Thank you so much for your really great talk on a really complicated and really important matter. So if you have questions would you please go to the microphone at the second one? Yeah, that one. Thank you very much. I was just wondering what Alice is in the US. Alice is a decision of the US Supreme Court against a patent on some business method. It's more like business method. It's something that runs on the computer and the court say no that's not patentable and this decision is used by the Specialized Patent Court the Court of Appeal of the Federal Circuit and the USPTO to say we reject this patent because it's a self-appendance. So it's actually the... Right now the Court of Appeal of the Federal Circuit is still using that to say yeah but they are good self-appendance and bad ones. Good ones are typically advanced breaking system in your car but typically a word processor wouldn't be patentable. Basically they are trying to draw a line they are trying to copy what the European Pen Office is doing to say like for example MP3 for them is a compression algorithm which saves CPU cycles so it's the thing where you save resources so that should be patentable but there's still a grey line. I mean most of the self-appendance gets rejected but for some cases like it's more like an embedded industrial device like a break system or they still tend to grant them. So Alice is useful but still the Specialized Patent Court have a hard time to listen to what the Supreme Court is saying. Like in the patent field the Supreme Court has been taken like 10 or 15 cases and most of the time they go against the decision of those the Court of Appeal of the Federal Circuit which is the Specialized Patent Court and the Specialized Patent Court is what the UPC is about. Most of the courts in Europe are not specialized in patents and they will make it specialized with that so they will be a high bias for patents. So that's the whole situation in the US and I know I have read days ago on TechRide.org that companies like Microsoft basically they are split whether a change of law is necessary or not. So Google is saying it's fine we don't need to change the law but IBM especially is saying you know we need to this is a disaster for innovation and patents in general we need to fix that one. So on this topic the USPTO just concluded a round of opinions there's a big PDF report that has been published so you can have a look at that one but it's basically they don't ask everybody they just ask patent lawyers what they should do. Any more? Is there another question in the room? Well I have a question so if everything sinks in and there comes some questions where can people find you in the upcoming days? I'm in the Belgian Embassy and I'm also doing on my daily work is mostly doing DevOps so I'm doing Kubernetes and Docker workshop tomorrow at 7.30 and also on Sunday so if you are into DevOps and Docker and everything join the workshop. Thank you very much and please a warm applause.