On June 18th, 2015, the Paris High Court (tribunal de grande instance — TGI) issued a ruling in the Orange versus Free case [4] [fr] (both French ISPs); this ruling was published [5] [fr] on September 1st, 2015. On this occasion, the court reaffirmed that software patents are illegal in Europe under the European Patent Convention (EPC). While this reaffirmation is good news, it nevertheless testifies to the possibility of filing software patent applications today in Europe.
Orange was accusing Free of counterfeiting one of its European patents on the “switching of multimedia sessions from a mobile terminal to a local network device” in the Freebox Revolution (Free's Internet CPE - customer premises equipment).
The High Court rejected the Orange claims altogether, either for lack of novelty, or for non-patentability. On the latter aspect, the court ruling is enlightening and unambiguous:
“Article 52 of the EPC is perfectly clear and does not require any interpretation: computer programs as such are excluded from patentability, and the reason for this is that they are covered by copyright.
The EPO practice, which accepts claims on computer programs by labeling them “computer program products” cannot be used as the sole means of contesting the application for a declaration of invalidity of these two claims.
Indeed, it cannot be accepted that a mere rewording trick would allow one to issue patents contra legem.
Issuance of patents for computer programs, even if those are referred to as computer program products, is not actually supported by any legal text or any difficulty in interpreting the EPC, and these are even clearly excluded as such from patentability. As a result, Claims 12, 13 and 14 will be declared null and void for lack of patentability.”
[..]
“The computer program can be protected if it provides the invention with an additional technical effect — without this technical effect being clearly defined, however...
In this particular case, in view of the very wording of Claim 15 in patent EP 797, it appears that the recording medium does not claim any special technical feature; that what is involved, here again, is a dress-up which does not allow overstepping the exclusion from patentability as regards computer programs.
[...]
As a result, Claim 15 is null and void for lack of patentability.”
It is pathetic that, despite the non-patentability of the invention in question, it was granted patent qualification without any problems by the European Patent Office (EPO). This highlights once more the risks involved in the EPO practices, which nowadays issues such patents. Yet the EPO is at the heart of the European Unitary Patent [6] system, which was ratified by France in 2014 without a hitch [7]. It is thus more urgent than ever to reform the patent system in Europe.
April, therefore, calls for a re-shaping of the patent system, to ensure that this type of patent cannot be granted anymore. Indeed, such invalidation as has just been pronounced by the TGI implies that challenging the patent requires large resources which are not available to every company, let alone every individual.