Threats in a Patent litigation treaty

Benjamin, president at ffii.org has written an excellent article to explain the threats in UPLS (Untied Patent Litigation System). The article gives more reasons to stay clear of any treaties like this until we have a better community patent implemented in the EU to work with. Otherwise it would be like a roof with no pillars.

The second question makes the threats in the treaty so very concrete for us programmers:

"Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples"

The reply is divided into:
1. Higher total costs of litigation
2. EU-wide injunctions to stop a software product
3. Out of court settlements for most of European players
4. Loss of legal certainty

Finally Bejamin gives a short pros and cons list:

Pros:

1. EU-wide injunctions and damages for patent holders
2. EU-wide revocation of a patent for defendents
3. Possible invalidation of software patents EU-wide (not very likely, but possible)
4. High costs of litigation, good for the patentee to reach a deal out of court
5. Uniform caselaw developed for software and biotech patents
6. No diverging decisions over the same patent by multiple courts

Cons:

1. No real legislator to correct decisions of such international patent court
2. No divergence of decisions which might show to the legislator where to intervene
3. Possible validation of software patents EU-wide (very likely)
4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
5. More incentives for patentees to litigate and enforce their patents
6. Pro-patentee courts
7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
9. No judicial review to correct the eventual deviance of such specialized courts
10. Potential higher costs of litigation for the patent holder

A recommended read.

Also see the EU-Councils request (9669/09) for comments from the European Court of Justice, ECJ, on the UPLS draft (7928/09). Lets hope that the ECJ can see the obvious conflict of interests with the IPRE-Directive and innovation policy legislation within EU. The UPLS process is one of the top priorities for the Swedish presidency until the end of 2009. The pressure is high.

/jonas