12

The EUCJ has just published another decision regarding data protection that got me puzzled (but I’m not the only one!).

This one is primarily concerned with the interpretation of exceptions to the 1995 directive, but it also has interesting things to say regarding the infamous so-called right to be forgotten decision where legitimate interests in personal data processing were involved.

The facts are simple: someone puts a camera to monitor the entrance of his house. One day, people break in, but they are later identified thanks to the camera. Then, these suspects challenge the legality of the camera system on the grounds that they were not notified of the processing of their personal data.

Article 3 of the 1995 directive provides:

2  This Directive shall not apply to the processing of personal data: […]

– by a natural person in the course of a purely personal or household activity.’

But for the Court, (emphasis is mine)

33  To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity

This is a strange reasoning in my opinion, as it seems to make no distinction between purely personal activities and purely household activities—they are now combined under the criteria of the “private setting.”


So here’s how this applies to us: thanks to Neil, we already have a solution!

How does this relate to the so-called right to be forgotten?

The Court notes that:

34  At the same time, the application of Directive 95/46 makes it possible, where appropriate, to take into account — in accordance, in particular, with Articles 7(f), 11(2), and 13(1)(d) and (g) of that directive — legitimate interests pursued by the controller, such as the protection of the property, health and life of his family and himself, as in the case in the main proceedings.

I wish the Court followed the same approach in the so-called Right to be forgotten decision. But instead, the legitimate interest of the public to access published information has not been taken into account.

Some facts and statistics about patents (with a focus on software and information technology). I will update this post over time, so subscribe to commits to get notified! Please suggest other noteworthy facts in the comments.

  • the number of patent lawsuits filed each year in the US has tripled.

    source: New York Times

    years: 1990-2010

  • “Internet software patents” are litigated eight times as often as other patents.

    source: Allison, Standford [404] in 2012 Stan. Tech. L. Rev. 3 SSRN

    years: 1998-2009

  • In Germany, patents covering software and telecoms are invalidated by courts in 88.11% of cases. For all patents, the main ground for invalidations by the German Federal Patent Court is lack of patentability in 75% of the cases.

    source: Bardehle [pdf]

    years: 2010-2013

  • In the US, patents challenged on the basis of the US Supreme Court Alice v. CLS Bank decision are invalidated by Federal Circuit courts in 91.9% of cases (66.5% for all courts). (Also ses Deb Nicholson’s talk)

    source: Japser L. Tran, Univ. of Minnesota

    years: 2013-2016

  • Apple and Google spend more on patent litigation and patent purchases than on research and development.

    source: New York Times

    year: 2011

  • IBM abandons around 40% of their US patents in the first three years.

    source: patentlyo

    year: 2012

  • IBM has been granted most US patents for [more than] 20 years in a row

    source: bloomberg

    year: 2013

  • More than 1000 software patents are granted each year by the EPO or EPC states.

    source: European Commission

    years: 1978-2002

  • More than 20 000 patent applications on “digital communications”, “IT methods” and “computer technology” are filed each year at the EPO.

    source: European Patent Office

    year: 2013

  • 88% of the patents held by “patent assertion entities” (a.k.a. “patent trolls”) in the US are information and communication technology patents, with more than 75% software-related.

    source: US Federal Trade Commission (FTC) pdf

    years: 2009-2014

The following assertions rely on surveys or do not have reliable sources or data. If you have some idea of a better source for these facts, please get in touch.

  • 52% of companies purchase patents to secure freedom to operate

    source: IAM

    year: 2015

  • Between 40% and 90% of all patents issued are never used or licensed by their owners.

    source: The Economist

    year: ???

Good articles and other sources on patent facts

Journalism

Official statistics

Not patent facts

Unfortunately, a lot of debates on patents do not rely on facts, especially debates on patents applied to information technology. Instead, we are witnessing what Mark Lemley has described as “Faith-Based Intellectual Property”. Here’s a list of things which are not facts about patents but which are often asserted.

  • “companies invest heavily in software research and development in the United States because new inventions, implemented through software, can be protected by patents”. Yet, the article that makes this assertion offers absolutely no evidence that the eligibility of software as patent subject matter has specifically contributed significantly to US growth in software research and development.

    (I would also note that the conclusion in the executive summary is legally incorrect: the promotion of progress in the useful arts is not a “constitutional imperative”; under the US constitution, Congress “shall have the power to“ promote the progress in the useful arts, but this is not an imperative.)

    source: David J. Kappos (former USPTO president) and Aaron Cooper, At the core of America’ s competitive edge: why software - implemented inventions are — and must remain — patent eligible [pdf], Aug 26, 2015

Posted