The European DIGITAL SME Alliance is concerned that the Agreement on a Unified Patent Court (UPC) will undermine the legal protection of software developers against lawsuits based on possibly invalid software patents.

Under this agreement, companies may be convicted for an alleged patent infringement without first proving whether the patent in question is valid or not.

The EU software market is loaded with tens of thousands of software patents. For SME software developers it becomes increasingly difficult to avoid such patents by using alternative means. Yet, many of these patents have been issued against the law. So far, about 50 % of all oppositions or nullity procedures lead to a partial or total revocation of patents.

Since the rejection of the Software Patent Directive in 2005, European digital SMEs have continuously opposed the patentability of software. Copyright law effectively protects computer programs, thus making unnecessary to patent software. In view of this, the legality of the entire portfolio of software patents is disputable.

Following the UPC agreement, proceedings for patent infringement may lead to an injunction even though the lawfulness of the patent in question has not yet been determined.

“We already know this situation is Germany, where injunctions force companies to withdraw their product from the market. Years after such injunction, when the SME has accumulated huge losses, a court may judge invalid the patent in question. SMEs need a patent system that prevents the implementation of questionable patents. We call on countries not to ratify the UPC agreement“ said Oliver Grün, President of the European DIGITAL SME Alliance.

Read here the full text of the position paper of the European DIGITAL SME Alliance on the UPC agreement.