Projekt gostujočih prispevkov

V želji po večji povezanosti revij s pravnimi vsebinami v letošnji rubriki Mundus Oeconomicus izvajamo projekt gostujočih prispevkov. Sledeča članka avtorjev Laure Ratniece ter Rastka Pavlovića sta bila izvorno objavljena v reviji Student economic law review1, ki pa v svoji zadnji izdaji gosti angleški različici člankov NeODEMOKRATIČNOsti!2 ter Politični izzivi in odzivi3.

1 Dostopno na: http://selr.bg.ac.rs/ (2. 3. 2014)

2 Setnikar, N. : NeODEMOKRATIČNOsti!, Pamfil (januar 2013), str. 5-9, v angleščino prevedla Nina Stankovič, STIKS ŠOU v Ljubljani.

3 Dolinar, M. : Politični izzivi in odzivi, Pamfil (januar 2013), str. 10-13, v angleščino prevedla Nina Stankovič, STIKS ŠOU v Ljubljani.

THE EFFICIENCY OF THE EUROPEAN PATENT SYSTEM AS A REGULATORY MECHANISM FOR THE SOFTWARE INDUSTRY

Laura Ratniece in Rastko Pavlović

During the last few decades, there has been an intensification of the debate on whether it is justified to enforce patent protection for software, and on the possibility of introducing such norms into a system based on the European Patent Convention (1973). The main dilemma in the discussion is if introducing a full patent protection scheme would discourage or invigorate investments in the software industry. The aim of this paper is to present arguments both for and against, analyze available empirical data, and only then make a judgment on the efficiency of the proposed legislative solution.

Since the last decade of the 20th century, industrial manufacturing facilities have migrated, drawn by cheap labour, from the traditional hubs in Western Europe to Asia. Such events threatened to leave a vacated spot in the structure of developed economies, and the question of which activities would take this niche and facilitate further stable growth and development arose. Furthermore, substantial investments in R&D activities allowed for a quick expansion of the Japanese electronics industry in the 1980s. Today it holds a dominant position in the global market. Nevertheless, Europe currently views China1 as its biggest competitor in the technology sector.

The first suggestion for a new model of growth which left the practice of state intervention, with subsidies in the forefront, came from Martin Bangemann, who at the time held office as Commissioner for internal market and industrial affairs.2 The strategy that he developed was liberal in the sense that the measures suggested were supposed to eliminate most of the obstacles in the way of the free market. Authors of the plan had the US industry as a model and were of the opinion that the most significant reason for its success was the existence of large corporations. The introduction of such corporations was the main goal of the proposed measures for Europe. They believed that a reform of the patent legislation in the EU as a whole would be among the best tools for achieving their goals. Therefore, although the plan itself was nominally designed to ensure the growth of small and medium enterprises as well, proposed reforms were actually set up to achieve a completely different result. To this day a significant part of the European software industry is comprised of said companies,3 whose development the EU sees as a very important component of its future development,4 Bangemann’s proposal, as well as the latest I20105 initiative, make a case for a system that essentially creates conditions for the existence of a small number of large companies, whilst promoting such a concept as essential for establishing Europe as the »leading knowledge economy«.

The main point of divergence among the authors discussing this subject is the issue of which companies would really profit from introducing software patents. The main purpose of this paper will be to briefly describe the current state of the rules concerning the patenting of computer software, in the system based on the European Patent Convention, as well as to introduce the reader to the arguments both for and against reforming said system. No country of civil law tradition has yet implemented legislative solutions based on mentioned proposals. As a predominant source of data on how such solutions would influence the sector, we shall use the findings of authors researching the US market, where there are no restraints on patenting inventions in the field of software design. It is of use to bring attention to the fact that China, a country with the fastest growth of economic activities in the field, implements policy a of offering less protection to patented technological solutions. There is even an obligation for foreign manufacturers to disclose the source code of their products to the authorities.

The first important document to harmonize patent legislation in the European continent, the European Patent Convention of 1973,6 as well as the Patent Cooperation Treaty of 19707 (which connects countries even outside Europe), has not accepted the possibility of patenting software as such. The European Patent Office is a body with extensive jurisdiction in investigating patent applications and solving disputes that arise from such matters, on a territory broader than the EU. Its interpretation of EPC provisions has a crucial influence on the opinions and decisions of national courts in such matters. Although in the beginning the EPO enforced a strong anti-patenting policy when it came to software inventions,8 the body quickly changed its stance and allowed patenting software inventions if there was a »technical effect«.9 Software was patentable in this way if it was a part of a technical device, the GSM standard for mobile telephony being an excellent example of such a practice. This brought the European law closer to the US doctrine of patenting »anything under the sun that is made by man«.10 Although protected to a certain extent, the software could still be distributed detached from the device, which gave an incentive to big companies, especially those from the US, to campaign for the introduction of more protective measures. Their goal was to achieve a level of protection closer to the one enforced in the USA. Two decisions of the EPO Board of Appeals from 199711 implement an even liberal interpretation of the Convention, by regarding that a software invention which would achieve a specific technical effect could be patented regardless of its connection to any device. In the following year, a diplomatic conference was organized in order to revise the EPC and procure a new EPC 2000. One of the suggestions was to remove the ban on patenting software as such, regarding that it was already discarded through the EPO decisions from 1997. Such an idea was never enforced, due to intensive objections of experts. The next, somewhat more successful attempt of reform, came from the European Commission through a Proposal for a Directive,12 which essentially followed the ideas from 1998. Seeing this as a threat to introduce US solutions in Europe, by allowing patenting software as such, European manufacturers (predominantly SMEs) firmly opposed such a proposal, fearing the potential costs which would arise from an obligation to pay license fees. A decision of the European Parliament from 200313introduced significant changes influenced by the open source community,14 and in so doing removed the possibility of patenting methods for data analysis with no regard for its technical use. All patents had to have a detailed description of the technical effect that they were achieving, and a ban was put on patenting methods for the prevention of intercompatibility of computer systems. This solution threatened to cause significant damage to holders of patents granted in the previous years, so the EP, in order to balance out the situation, acted in 2006, putting out of force the previously introduced changes. In doing so the EP put the regulation back to the state it was in at the beginning of the 21st century.

As the goal of the failed reform was to provide a more prosperous climate for growth and development in the industry, it is of importance to introduce ourselves to the current state of the European software industry. European software manufacturers, the ones who were said to be the recipients of the benefits of the proposed reform, have a positive opinion of the current state of affairs, but recognize that there still is room for improvement.15 Manufacturers judge the software industry to be strong and competitive, estimating that it comprised 2.7% of the GDP of Western European countries from 2002 to 2006. Moreover, the projected rate of growth of this field in Western European countries during this period (2002-2006) is significantly higher (6.8%) than the one for the IT sector as a whole (5.7%). In the countries of Central and Eastern Europe the software industry is expected to grow by a staggering 14.1%16 in the same period. Further on, it is stated that the production is diverse, and that the whole sector is competitive. There are continuous investments in R&D, which is of utmost importance for such a young and dynamic industry, and it is estimated that investments in open source software so far amount to 1.2 billion euro. Being of the opinion that there are enough chances for the development of production, the manufacturers are clear when stating that it can’t be predicted with certainty how the situation will develop, but asses that the intellectual property rights shall remain an important factor in that development. A high opinion of the system of copyright protection was given, as a traditional model of protecting software. Moreover, it was disclosed that although even the open source community relies on copyright, only a part of the industry seeks protection through patenting their inventions, thus making around 33% of all applications to the EPO.17 Efficiency and accessibility are said to be of greatest importance for such efficient functioning of this portion of intellectual property rights.

On the other hand, the state could spend the money it usually spends on subsidies and other forms of direct intervention on arranging an ef?cient administrative mechanism for granting patents and preventing their infringement.

This area has felt the consequences of the recession,18 despite a good growth rate from 2000 to 2005.19 This growth rate was significantly higher than the average growth rate of Europe’s economy as a whole,20 as well as one projected for the period from 2006 to 2011.21 When talking about the general condition of the software industry in Europe, it is essential to take into calculation the long-term tendencies of both the European and the global economy. This is a high growth rate field which unavoidably suffers from turmoils in the global market due to close connections with other areas.

The first suggested reform plan of the patent system saw in the new legislation one of the pillars of an efficient liberalized software market. Since clearly arranged and enforced property rights, and a patent is one of such rights, are essential for any well-functioning market, reform of this field was a logical step towards introducing the free market. While copyright protects the final composition of software, namely the source code, it doesn’t protect the algorithms for processing data, which represent the basic parts that comprise a computer program. Patent Law was meant to protect this aspect of software, thus developing better conditions for entrepreneurship and investments from the private sector in the EU. This way of helping the industry was supposed to influence growth of production and competitiveness in the field, and all of that without direct public investments or subsidies,22 which proved to be inefficient.

Investing in the development of new technologies is important in any field of production, but even more so for in a dynamic sector like software production. In comparison to the USA and Japan, its competitors in the global IT market, the European industry spends proportionally less on R&D (EU 1.3%, USA 1.86%, Japan 2.2%), while the percentages of public spending are roughly the same. Investments from the private sector, which is looking allocate its resources in the most efficient way in order to maximize profit, are regarded as superior to public spending of this kind. Results from studies of the connection between simultaneous public and private investments in this sector differ from country to country, but there are clear tendencies of diminishing private investments with a growth of public spending of the same sort in the sector, unless they are invested in infrastructure, like higher education facilities.23 Speakers for the reform of Patent Law are of the opinion that guaranteeing patents for software would insentivize the private sector to increase investments in R&D. On the other hand, the state could spend the money it usually spends on subsidies and other forms of direct intervention on arranging an efficient administrative mechanism for granting patents and preventing their infringement.

The efficiency of the patent system and its accessibility, the two main prerequisites for having positive effects on any industry, become ever harder to achieve with the passing of time. This is due to the growing number of applications on a global scale, and it stymies the development of the software industry. The first deficit, on which there more or less is a consensus among authors, is the fact that patents granted for software inventions are generally of a low quality, meaning that the inventive level is low, if there even is one. The whole purpose of patents, as a tool for stimulating the economy, is to reward inventions which solve a technical problem in a new and original fashion, while other inventions can be freely (commercially) used. The object of a patent in the field of software is the algorithm for processing data and sending instructions to the computer. The final version of the software is protected through copyright, although in Europe there are limitations in signatory countries to the EPC. These limitations mandate that the invention must achieve a certain technical effect in order to be protected by a patent. On the other hand, the EPO as well as national courts, in their interpretations of the EPC, under the influence of political pressures, continue to grant patents for invention which are out of the boundaries set by law, thus developing a situation in which it is unclear what can be patented, and what can’t. For example, there is a developed practice of patenting business methods. Although the EPC explicitly forbids such patents,24 the EPO later concluded that patenting is only excluded for software as such (which is quite a vague legal standard), while it allows for it in a number of other cases. The results of such policy are patents of far inferior quality. Sixteen percent of these patents are challenged in court, as opposed to 6% in other fields, while the rate of successfully challenged patents of business methods is 41%, compared to an average of 36% in other fields.25Even in the USA, where there is a much more liberal policy of granting patents, the situation is not any clearer, especially having in mind that around a thousand of software patents are granted for software-related inventions.26

The process of granting a patent can also present an obstacle. As years pass by, more and more patent applications are submitted to patent offices all around Europe, and to the EPO as well, which threatens to overfill their capacities. For this reason, ever more time is needed to thoroughly examine an application. The factor that makes the patent system less accessible to a wider population are the expenses of processing an application. Some institutions, aware of this problem, have decreased their fees. The Patent Court in London introduced such measures in 1990, and a Patents County Court was established with a jurisdiction over less valuable cases, which cleared some space at the Patent Court, but the fact remains that the German courts countinue to be the most popular when it comes to disputes over patents, mainly due to lower costs of procedures.27

The second suggested solution was to educate the SME sector on how to effectively apply for a patent, so that these business could do it with decreased expenses, but there have been no significant steps to achieve this. In any case, with a system in which it is problematic to achieve legal protection through patents, and even once the patent is granted there is significant chance of a successful challenge in court, doing business is made harder for all, but especially for SME owners, thus raising the risk of investing capital in this field.

Although formally directed towards SMEs, Bangemann’s plan, through insisting on further liberalization by moving towards the US model, sought to stimulate the development of large corporations, which would be the engine of further development in Europe’s software sector. The understanding was that this type of enterprise, due to its resources and diversified activities inside the company, would be fitter to make use of the new proposed patent legislation. For instance, when it comes to submitting multiple patent applications, an internal legal service in a company achieves significantly lesser average costs, compared to outsorcing this activity to an independent law office.

On the other hand, although big corporations are the ones who easily procure patent protection for their products, and are thus more likely to benefit from it, there are substantial arguments for a different conclusion. Big names of the US IT industry, such as Lotus, Microsoft, IBM, WordPerfect, Novell, etc., are the ones who inspired the authors of the mentioned plan and they are the holders of a significant portion of patents issued for software inventions. It must be remembered that these companies earned their spot as leading market participants long before the expansion of patenting software. They have based their success solely on protection granted by copyright, and by cleverly trying to protect their source code, for instance, by distributing software only in assembly code.

Again, it could be argued that by allowing for source code to be patented, the situation has gone for the better, because of the additional protection that such a system provides. The problem with this concept is that with the rise in number of patents the amount of litigation pertinent to these patents has also significantly risen. The other patent holders are requesting protection of their rights, which causes companies to seek as many patents as possible in order to later use them as a bargaining chip.28-29 Market participants are faced with additional costs for applying for patents, as well as for litigation costs in order to protect them, which was not the case when the only means of protecting software was copyright. A great deal of such litigation ends by settlement, so that the sources invested in protection have in effect been used to prolong the status quo, while only a small number of them actually brings profit by way of awarded damages.30 It is justified to raise the question of why would one wish to introduce or maintain a system which constantly generates high costs and only at times secures profit, and all of this to protect market participants who made their success in a fundamentally different environment.

Although big business faces the problem of high costs when it comes to procuring patent protection for software, these problems are even clearer with SMEs. One way of looking at things is to blame the lack of knowledge of entrepreneurs and small business when it comes to using the patent system efficiently, and as a solution it is proposed to educate them in order for them to be more efficient. Speakers for this view are of the opinion that the mechanisms that are currently in place in Europe and the USA are in essence efficient, but that the lack of knowledge among its targeted users makes them inefficient.

On the other hand, different authors bring attention to systemic issues in the mechanism of granting a patent, which a priori put SME in an inferior position, not because of their lack of knowledge but mostly for the lack of financial assets when compared to bigger enterprises.31 A legal system is considered to be unacceptable should it only provide effective protection to the most affluent. The SME sector and entrepreneurs are often victims of obvious and deliberate infringement, and suffer significant damages from an array of unfounded claims, which are used by big business as an intimidation tactic in order to minimize new entries to the market.32 Limited by their own financial inferiority, SMEs are lacking adequate defense mechanisms against harassment like this. Due to the described system of patent protection, SMEs are rightfully lacking optimism when it comes to their prospects of securing patent rights, so new entries to the field are in a decline. It has been empirically confirmed,33 that due to such tendencies the amount of investments in R&D are in decline as well, which is highly detrimental for the competitiveness of the industry. If one would like to preserve the patent system in this field instead of abolishing it totally, it would be necessary to create a significantly more efficient mechanism for the protection of granted rights (certain steps in that direction were taken by the European Commission and Parliament in a Directive from 200434). Furthermore, in order to prevent the abuse of extensive patent portfolios of big business, a reform of the process of granting patents would have to occur, simply due to the fact that a significant portion of currently granted patents are successfully disputed in court (if SMEs make the effort of taking matters to court in the first place). Even when the outcome of the court proceedings is in favor of these market participants, the proportionately low awarded damages are rarely enough to cover even the attorney fees, which limits the financial incentives to litigate in the beginning.

It is often suggested that a specialized insurance system against patent infringement should be introduced. One of the most elaborate proposals of this kind has been published in the UK, where a more beneficial climate for SMEs to protect their rights35 has been established by reforms in court fees and organization. Nevertheless, attention has been brought to high premiums at one hand, and the significant difficulties in assessing the risk of litigation on the other, so there is still a lot to be done until a successful solution is devised.36

There have also been suggestions that businesses in the SME sector should organize themselves in order to face litigation issues together, by joining into some sort of a Patent Defence Union. Companies which specialize in representing SME patent holders have played an important role in making a better business climate for SMEs in the US. After patenting software was enabled, they significantly changed their business model. Since they are in a position to litigate in the name of all of their clients, these companies began to litigate extensively against companies which are in business of software development. In this way, from 2007 to 2011, an average of 80 billion dollars a year was awarded in the name of such claims.37 This sum could not be interpreted as damaging if most of it would eventually be paid to the rightful patent holders, but it is instead kept by the representing companies in name of fees for their services, so it can be said that it is basically lost to the software industry, instead of being invested in further development.

One of the increasingly substantial threats to SMEs in software development is the simultaneous infringement by multiple small market participants. To individually litigate against each and every one of them is too costly, but if an option of some sort of joint action was introduced (a concept opposite to the class action mechanism), it could significantly reduce fees, which would allow businesses to protect their rights far more efficiently.

In spite of the difficulties mentioned so far, there still are authors who claim that the benefits from patenting software are greater than the shortcomings, and as proof for such a statement they bring up the amount of resources invested each year in procuring patent protection in this field. Nevertheless, beginning with empirical research from the 1980s, it has been shown that patents have different impacts in different areas of production.38 The reason why patents are so beneficial for some industries (for example the farmaceutical industry) is due to the fact that research in those fields requires substantial funding in order to bring sufficient results. The security which is brought by patenting such inventions secures continuous investments. The software development industry, on the other hand, has far smaller costs necessary to make new products, which is one of the reasons against allowing for software inventions to be patented.39 This is a field in which most of the advancement is closely connected and builds upon previous achievements. Of course, this is not to say that there is or should be a practice of mere copying, which would not lead to any kind of advancement, and is prohibited under the existing copyright system.40

To individually litigate against each and every one of them is too costly, but if an option of some sort of joint action was introduced (a concept opposite to the class action mechanism), it could signi?cantly reduce fees, which would allow businesses to protect their rights far more ef?ciently.

The US market, due to its liberal policy when it comes to patenting, makes for an excellent test ground for effects of patent legislation on market trends. Some attribute the negative effects of such policy to the idiosyncrasy of the software industry—the fact that it bases its development on a dynamic flow of information between potential competitors.41 The substantial funding spent on patent procurement is not rarely taken from funds initially reserved for funding R&D.42 This practically boils down to the fact that the system designed to stimulate investments in developing new technologies has a completely opposite effect, which makes building a case for it ever more difficult.

As with other patented inventions, the competition will always try to produce its own invention with similar effects. Of course, since the patent should protect only an invention of a certain (high) inventive level, it should be expected that other market participants will either try to come up with an original solution of their own, or simply pay for the license to use the patented solution. The situation in the software development industry is somewhat different. In this case, the patented invention is an algorithm for processing data, which would allow a faster, hence more efficient way of completing the process. Since an individual program consists of a rather large number of algorithms, it is possible to come up with a great number of similar algorithms that could process the same type of data, but would of course require more time. Due to the fact that the program does not depend on the functioning of just one of these processes, it could achieve roughly the same result as the one comprised of patented algorithms.43 That puts a question mark on whether it would be financially efficient to invest in a patent in this field in the first place.

In the end, it should be best to present another argument of the proponents of software patents. Since the flow of ideas between competitors is of such importance to the development of this industry, in the absence of protection granted by patenting, the manufacturers will try to conceal their source code through distributing their products in assembly code. Such code is very difficult to translate to any of the commonly used program languages, and the flow of ideas would therefore be significantly hindered. The argument is more than valid, namely since this is one of the most common tools for preventing the competition from finding out the parts of the source code of a freshly developed software. As a solution for said issue in Europe, an open source license was introduced. It is a case of a free license which allows its users to, under certain conditions, use parts of the source code of other software protected by the license,44 mostly to enable other license users to use segments of their own source code. An advantage of such a system is that it enables developers to use the solutions of other authors, which stimulates development and innovation, while the rules for using the license prevent mere copying, and thus preserve the economic interests of developers.45

Patent protection is traditionally regarded as one of the basic means to stimulate technological development. By enabling on one side a temporary monopoly for the inventor, society ensures a constant development of new technologies, and a rise in the standard of living. Traditional models should however be subject to constant scrutiny. The software industry undoubtedly has many similarities to other industries in the IT sector, but it also has its own peculiar traits. The need to connect software developers and facilitate the flow of ideas between them is of essential importance when it comes to ensuring constant development of technologies. A possibility of building on previous achievements can only ensure procurement of new and more efficient solutions to the existing problems of a wide array of end users. In this field, fierce competition is the only mechanism that would ensure that only the market participants which are able to adapt to new needs of consumers will remain in business. On the other hand, the robust mechanism of patent protection has proved to be quite detrimental to the development in this field.

Patent legislation based on the EPC, although it still bestows certain limits to what can be patented, with the passing of time moves ever closer to the US model, through interpretations of the EPO. According to the arguments presented in this paper, it can clearly be deduced that this regulatory trend should not only be stopped, but that the patents in this field ought to be abolished completely. Since there is a number of already granted patents for software inventions, it would be against basic legal reasoning to abolish such rights ex post, but their existence should not be an obstacle to changing the policy of granting patents in the future. Only then can we expect to see a continuous rise in the level of competitiveness in the European software industry, which can only reach its full potential in a highly competitive environment.

Although there is currently available data from which it can be deduced just how software patents are efficient (and such data was used in this paper), it predominantly comes from the USA, a country of common law tradition, as opposed to the more prevalent civil law tradition in Europe. For this reason a discussion based on facts would be more convincing if there was some experience of this sort in civil law countries. Nevertheless, we are of the opinion that the data available today is sufficient to make a solid judgment on the problem discussed in this paper.

1 European Commission, European Competitiveness Report 2004, p. 258.

2 Recommendations to the European Council: Europe and the global informational Society, Brussels, 26 May 1996.

3 http://www.truffle100.com/2012/ranking.php.

4 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Think Small First - A Small Business Act for Europe {SEC(2008) 2101} {SEC(2008) 2102}/* COM/2008/0394 final, p. 2.

5 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - i2010 – A European Information Society for growth and employment« {SEC(2005) 717} /* COM/2005/0229 final.

6 Available at: http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/index.html.

7 Available at: http://www.wipo.int/pct/en/texts/articles/atoc.htm.

8 European Patent Office 1978: Examination Guidelines, Art. 52. Available at: http://eupat.ffii.org/papers/epo-gl78/#exc.

9 H. MacQueen, C. Waelde, G. Laurie, Contemporary Intellectual Property: Law and Policy, Oxford University Press, p. 513.

10 Diamond v. Chakrabarty, 447 U.S. 303 (1980). Available at: http:// caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=447&invol=303.

11 European Patent Office Technical Board of Appeal-T 1173/97, p. 1. Available at: http://www.epo.org/law-practice/case-law-appeals/pdf/ t971173ep1.pdf. Board of Appeals of the European Patent Office-T 1194/97, p. 20-21, 24. Available at: http://www.epo.org/law-practice/case-law-appeals/pdf/ t971194ex1.pdf.

12 Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, COM/2002/0092 final - COD 2002/0047.

13 Position of the European Parliament adopted at first reading on 24 September 2003 with a view to the adoption of Directive 2003/…./EC of the European Parliament and of the Council on the patentability of computer-implemented inventions.

14 More on this issue on ?. 13.

15 White Paper: Promoting the European Software Industry, Brussels, 29 October 2008.

16 IDC: Economic Impact Study, 2000.

17 Gauss project, European Patent Office statistics. Available at: http:// gauss.ffii.org/.

18 Commission of the European Communities, Europes Digital Competitiveness Report, Brussels 2009, p. 3, available at: http://ec.europa. eu/information_society/eeurope/i2010/docs/annual_report/2009/ com_2009_390_en.pdf.

19 Key figures on Europe: Statistical Pocketbook 2006, European Commission, Eurostat.

20 Eurostat, Real GDP Growth Rate, available at: http://epp.eurostat. ec.europa.eu/tgm/table.do?tab=table&init=1&plugin=1&language=en&pcode=tec00115.

21 White Paper: Promoting the European Software Industry, Brussels, 29 October 2008.

22 Recommendations to the European Council: Europe and the global informational Society, Brussels, 26. May 199, p. 3.

23 European Commission, European Competitiveness Report, 2004., ?. 53.

24 EPC, Art. 52, ?. 2.

25 S. Wagner, Business Method Patents in Europe and their strategic use: Evidence from Franking Device Manufacturers, University of Munich 2006, ?. 16.

26 M. Kapor, S. Garfinkel, R. Stallman, „Why patents are bad for software„, Issues in Science and Technology,3/1991, ?. 3.

27 P.Leith, Software patents in Europe, Cambridge intellectual property rights an information law , Cambridge University Press 2007, ?. 86.

28 M. Kapor, S. Garfinkel, R. Stallman, „Why patents are bad for software„, Issues in Science and Technology Fall 1991. ?. 5.

29 Federal Trade Commission, Report on Patents and Competition, 2003, available at: http://www.ftc.gov/os/2003/10/innovationrpt.pdf.

30 P. Leith, Software patents in Europe, Cambridge University Press 2007, ?. 85-97.

31 M. Haberman, R. Hill, Patent Enforcement for SMEs and Lone Investors - a System Failure, 2003.

32 W. Kingston, »Enforcing Small Firms’ Patent Rights« - The Kingston Report, 2000

33 DKPTO »Economic Consequences of Legal Expense Insurance for Patents«, 2001.

34 Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004. on the enforcement of intellectual property rights, OJ L 157, 30/04/2004.

35 M. Haberman and R. Hill, Patent Enforcement for SMEs and Lone investors - a system faliure 18. Nov. 2003 Apendix 1, ?. 34-38.

36 CJA Consultants Ltd., Patent Litigation Insurance: a study for the European Commission on possible insurance schemes against patent litigation risk - Final Report, Jan. 2003.

37 J. Bessen, J. Ford, M. Meurer, ‘’Private and social costs of patent trolls’’, Boston University - School of Law, Working paper No. 11-45, Nov. 2011.

38 E. Mansfield, Patents and Inovation: An Empirical Study, Center for Economics and Technology, University of Pennsylvania, 1986.

39 Federal Trade Commission, Report on Patents and Competition, 2003. Available at: http://www.ftc.gov/os/2003/10/innovationrpt.pdf.

40 European Commission, Directive on Legal Protection of Computer Programes, 2009/24/EC.

41 J. Bessen, E. Maskin, Sequential innovation: patent and innovation, MIT, 2000.

42 Patents, Innovation and Economic Performance - OECD Conference Proceedings: Chapter 14 - The software patent experiment, 2004.

43 An accomplished programmer Linus Torvalds used this method to avoid litigation by Microsoft. See: Software and Patents in Europe, p. 97.

44 Among the more famous are the ones created under the OSI (Open Source Initiative).

45 Even some of the larger companies, such is Google, are using these licenses. This company, in 2009, made publicly available around 14 million lines of code (10 million for Android OS, 2 million for Chrome, and the rest for various other applications), which stimulated various authors to develop new applications compatible with Google’s products, and that in turn makes its products more desirable and profitable.