Software patents: in France, the court does not want (still) not. – Village Justice (Blog)

A judgment of the High Court of Paris of June 18, 2015 is a reminder that the French judge does not like the patent on software.

Previously, three elements to inform the reader. First, we do not table patent in our firm. But we auditons and we draft contracts (including licensing) on ​​the patent. On the other hand, we follow a case against the firm Free. No patent infringement (phew) but copyright. Finally, I assure 8 years training on the legal protection of software (including through the INPI) and this judgment is right in the center of the subject.

The facts of the case are relatively simple, while often Patent complexity obscures the situation and legal issues.

In its latest version of its Freebox, Free had installed a solution (Freebox Companion) to watch on a mobile device (smartphone or tablet) multimedia content (video) stored on the hard disk of the Box. Orange believes that this feature infringes one of its patents. She investigate an engineer who makes a report stating that it is a forgery. Then, infringement seizure is made with different customers Free

The procedure is launched. Orange obtains authorization to issue a fixed day assignment (that is to say according to the procedural deadlines shortcuts). The court pat him on the wrist considering that there was no real urgency. It does not matter: the objective is achieved because the judgment is in June 2015 when the assignment went up to one year. In general, patent, in France, it takes around two years to obtain a judgment.

Since 2007, only the District Court of Paris has jurisdiction (that is to say, can judge patent litigation)

The Court follows a conventional method. it will first look (top of page 17) if the invention described in the patent is new, and cites Article 54 of the European Convention on the patent, the principle set out in Article L 611-10 of the Code of intellectual property.

Then it checks whether the invention can be patented.

The method follows the order of writing the article L 611-10: first it is checked whether it is new and if it is patentable. Does that make sense ? Not really. In my opinion, we must reverse the terms of the question. Is the invention patentable? first, then if that is the case, is this new invention? This is also the order adopted by the European Convention. It’s not very important.

The key is elsewhere. A patent consists of a description and claims (the areas on which the applicant claims that the patent is a new solution). When the title is requested by an applicant, there is a check of all conditions (including that of patentability and innovative character, of course).

But on patentability, there is a practice of the European Patent Office (EPO) that is very welcoming to software patents (specifically, inventions implemented by software). And the French Institute (INPI) after, for many years, had a strict attitude, following the practice of the EPO.

However, Article 52 of the European Convention, always covered by Article L 611-10 of the ICC, is clear: computer programs (software) are not patentable

Returning to judgment.. Initially, the court cancels half the claims of the patent because there was nothing innovative in what had filed Orange. Nothing very interesting legally there.

But secondly, the court cancels all other claims as they relate to a computer program regarded as such, contrary to Article 52 of the Convention on the patent. The defense of Orange? The court is severe: you oppose the practice of the EPO, which uses an artifice of language, speaking of “programs-products.” The court drives the point: there is no problem of interpretation

The result is clear:. Patent is void. So there is no infringement, since no intellectual property right has been infringed

The lesson three lessons.

• First, the majority of patents granted by the French or European institutes in technology would not pass the “legal test” … in France. In other words, they are only valid as long as they are not subject to a court. They are therefore very fragile.

• Then, this should not discourage innovative companies to consider the interest of obtaining a patent. Although the title is fragile (that is to say if it does not pass the course of the trial) is a valuation element. In clearer terms: the company has a patent on the balance sheet, even if the patent is fragile, is more expensive. What for ? because in the eyes of investors, the intellectual property title issued by a French or European office sits a value in accounting and financial terms.

• Finally, in drafting the judgment, there is a form of response of the shepherd (French) for tat (EPO). In 2010, the President of the EPO had questioned the great EPO Board of Appeal for it to clarify its practice concerning inventions implemented by software. The response of the large room was scathing and great room even had considered that the question was inadmissible! There, the court answered, there is not even room for interpretation: a computer program is not patentable. Not only the question (from patentability) is admissible, but the answer must be in the direction of great firmness, says the court.

We can add that this clash between French court and the EPO may be a swan song, as in the coming months, patents granted by the EPO will no longer be judged in each country, but by the unified patent court (see Wikipedia). And when this is the case, the French courts will now only Franco-French patents and European patents their escape. For the better ? The opinion of the writer of these lines is simple: yes intellectual property, but when an international convention says that the software is protected by copyright, it is the will (and not that of the industry) that must prevail.