EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.08.16

Claim and Perception: Under Battistelli, EPO More Permissive on Software Patents Than USPTO, In Spite of the EPC

Posted in Europe, Patents at 10:47 am by Dr. Roy Schestowitz

Software patents in Europe

Summary: Software patents in Europe have become an issue so serious that some companies now consider the European Patent Office (EPO) more friendly towards software patents than their country of origin (US/USPTO)

OUR core concern (and original concern) about the EPO was its growing lenience on and friendliness towards software patents, contrary to the EPC (on the basis of which the EPO exists). A patent system without quality control/assurance is bound to collapse, devaluing all the patents it ever granted.

According to this new post from IP Kat, “Dennis Crouch, in a post titled “US Patent Applicants Heading to the EPO,” notes that many practitioners believe that the EPO is less restrictive in its application of patent eligible subject matter than the USPTO. [Is that the beginning of a new myth? What do you think?] Interestingly, he also notes that recent data from the EPO supports that belief and that the Unified Patent Court will only make those EPO patents more valuable. Others have said it, but will the UPC be a troll friendly zone?”

The UPC means an open door to yet more software patents, more patent trolls, and more litigation. Good for patent lawyers, trolls, and non-European corporations, that’s for sure. In the comments section a regular reader wrote the following response:

Mike you ask what we the readers think, on the issue whether the EPO is more permissive on patent eligibility than the USPTO.

Well, given that the EPC, Art 52, is more restrictive on eligibility than Section 101 of the US patent statute, it certainly would be interesting, if it were indeed the case. Me, I am sceptical that Europe really is more permissive on business method eligibility than the USA.

Mike, I suggest to you and other readers that an important factor in the USPTO’s current strictness on eligibility is nervousness about the consequences of letting claims through to issue. Owners of issued US patents can use them to intimidate accused infringers in ways not known in Europe. That’s because of the notion in the USA that it has a “strong” patent system which deters folks from infringing. If you choose to operate within the ambit of a duly issued claim, you are “betting the farm” ie putting your entire business at risk. The US patent system is one in which there is a high presumption that issued patents are valid and enforeceable, and that wilful infringement can be punished by triple damages.

Whereas in Europe there is far less fear of infringing.

In Europe, nobody gives any deference to the work of the EPO. A patent owner has to prove the fact of infringement and the infringer has only to get to a “more likely than not” standard of proof to blow away the asserted claim. That being the case, the EPO can take a relatively relaxed view on eligibility/patentability, and let 50:50 claims through to issue, to give the striving Inventor his or her “day in court”.

Readers, keep in mind that the filtering the USPTO does on “eligibility” the EPO chooses not to do under Art 52 EPC. The strongest filtering is left at the EPO till we get to obviousness under Art 56 EPC. No other Patent Office in the world confines itself to technological obviousness, or has a “technological arts” test for obviousness. That’s how it can filter out business methods under the obviousness filter. Nobody else has the “Problem and Solution Approach” so everybody else (including the USPTO) has to do the difficult filtering under the “eligibility” section of its Statute.

It is troubling to see that a professor such as Crouch, whose knowledge in this area is beyond doubt (it’s what he does for a living), believes that the perception of the EPO under Battistelli is this bad. It’s perhaps widely perceived to be a software patents-friendly zone now. When Marshall Phelps worked for patent aggressor Microsoft he said the the EPO “can’t distinguish between hardware and software so the patents get issued anyway” (pretty damning if true).

In the mean time, one of our readers is assessing the stance on software patents as it relates to the only person who (so far) is rumoured to be Battistelli’s replacement (Christoph Ernst). Germany is known to be more software patents-friendly than most of Europe, but this doesn’t necessarily mean that Ernst would misinterpret the EPC in the same way that Brimelow and Battistelli did. Here is what this reader wrote to us this afternoon:

It’s hard to find much of anything. That which is found is neutral, political in wording. He’s mentioned several times in these annual reports, but no detail:

http://www.dpma.de/docs/service/veroeffentlichungen/jahresberichte_en/dpma-annualreport2011_barrierefrei.pdf

http://www.dpma.de/docs/service/veroeffentlichungen/jahresberichte_en/dpma_annualreport2013.pdf

http://www.dpma.de/docs/presse/jahresberichte/dpma_annualreport2014.pdf

Either he’s not in the 2015 report or there is no such report ready yet.

This one appears to be him also, but I am not able to wade through it:

http://eureka.sbs.ox.ac.uk/4509/1/WP1301.pdf

It did also have an alternate spelling of his name in addition to the common spelling.

http://ftp.zew.de/pub/zew-docs/dp/dp11024.pdf

I’ve skimmed a few more from other authors but, again, can’t wade through them. Though I might be misinterpreting it looks like there is a large pool of people who wish to interpret number of resulting patents with ‘quality’ of research.

It is of couse perfectly reasonable to believe that Ernst is just one among several who will be considered as Battistelli’s replacement. It’s also plausible that the rumours are false and that he is not at all being considered for this job.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

2 Comments

  1. Anton_P said,

    March 9, 2016 at 4:21 am

    Gravatar

    I think that eureka article was written by a different C. Ernst. His ZEW bio at
    http://www.zew.de/en/team/cer/?cHash=50796c47df91dc809f3a4745d36f8748
    has a different picture.

    Dr. Roy Schestowitz Reply:

    You’re right. Different guy.

What Else is New


  1. Recognising the Death of Software Patents, Microsoft's Largest Ally in India Belatedly Joins the Linux-Centric Open Invention Network

    With the demise of software patents come some interesting new developments, including the decision at Infosys — historically very close to Microsoft and a proponent of software patents — to join the Open Invention Network (OIN)



  2. LG Not Only Suing Rivals Using Patents But is Also Passing Patents for Trolls Like Sentegra to Sue

    LG gives yet more reasons for a boycott, having just leveraged not just patents but also patent trolls in a battle against a competitor



  3. March 29th: The Day the Unitary Patent (UPC) Died

    Stating the obvious and proving us right amid Article 50 débâcle



  4. Kongstad and Battistelli Have Staged a Coup at the European Patent Organisation (EPO)

    Discussion about Battistelli and his chinchilla denying national representatives their rights and power to oust Battistelli, who is rapidly destroying not just the Office but also the whole Organisation, Europe's reputation, and the image of France



  5. Europe as the World's Laughing Stock When it Comes to Patent Quality/Scope and the Coming Appeals

    Criticism and embarrassing coverage for the EPO, which has just decided to grant patents even on genome, in defiance of a lot of things



  6. Links 29/3/2017: End of Linux Action Show, Top NSA Partner Pays Linux Foundation

    Links for the day



  7. In Attempt to Promote the Horrific UPC (Poor Quality of Patents Everywhere), Minnoye and Casado Cerviño Attack Their Own Staff for Saying the Truth

    An attack on truth itself -- the disintegration of the European Patent Office (EPO) -- carries on, after staff found the courage to tell delegates what had happened due to Battistelli's policies and incredible oppression that prevails and expands



  8. Another Likely Casualty of the Battistelli Regime at the EPO: Validity of Decisions of Terrified Boards of Appeal Judges

    Under pressure and habitual intervention from a demoralising, overreaching, and out-of-control President (from an entirely different division), examiners and judges 'normalise' the practice of granting patents on genetics -- a very slippery slope in terms of patent scope



  9. Benoît Battistelli 'Pulls an Erdoğan' Faster Than Erdoğan

    An explanation of what the imminent departure of Minnoye (this summer) will mean for Benoît Battistelli and his confidants, who now resemble some of the world's most ruthless dictatorships



  10. With Important Supreme Court Decisions Looming, Mainstream Media Tackles Patent Trolls

    The US Supreme Court (SCOTUS) will soon rule on TC Heartland and Lexmark, potentially restricting abusive patent behaviour even further (making room for freedom to innovate and for competition)



  11. IAM Magazine is Very Blatantly Promoting Patent Trolls and Their Agenda

    IAM Media, which produces a magazine every now and then while posting online every day, maintains its pro-trolls agenda, which is becoming so clear to see that it is definitely worth documenting yet again



  12. A “Perfect Recipe for Fraud” at the European Patent Office (EPO)

    How the world's leading patent office became a world-leading source of abuse, corruption, nepotism, injustice, incompetence, censorship, alleged bribery, pure deception, distortion of media, defamation, and suicides (among many other things)



  13. Techrights Was Right About the Unitary Patent (UPC)

    No Unified Patent Court in the UK and probably nothing like it in the rest of Europe any time soon (if ever)



  14. Patents on Life and Patents on Software Serve to Show That EPO Patent Quality Fell Well Behind the US (PTO)

    Anything goes at the EPO, except dissent; any patent application seems to be grantable, provided one uses simple tricks and persists against overworked examiners who are pressured to increase so-called 'production'



  15. Links 28/3/2017: Linux 4.11-rc4 Kernel Released, Red Hat Surge on Sales

    Links for the day



  16. The Crook Goes to Brussels to Lie About the Unitary Patent (UPC)

    The person who spent years lying about the UPC and severely attacking critics (usually by blatantly lying about them) goes to Brussels for another nose extension



  17. The EPO's HR Roadmap Retrospective

    A look back at the terrible ‘accomplishments’ of the Jesper Kongstad-led Administrative Council, which still issues hogwash and face-saving lies, as one might expect from a protector of Battistelli that lies to national representatives and buries inconvenient topics



  18. Links 26/3/2017: Debian Project Leader Elections, SecureDrop and Alexandre Oliva FSF Winners

    Links for the day



  19. His Master's Voice, Jesper Kongstad, Blocks Discussion of Investigative and Disciplinary Procedures at the EPO

    The Chairman of the Administrative Council of the European Patent Organisation is actively preventing not just the dismissal of Battistelli but also discussion of Battistelli's abuses



  20. Heiko Maas and the State of Germany Viewed as Increasingly Complicit in EPO Scandals and Toxic UPC Agenda

    It is becoming hard if not impossible to interpret silence and inaction from Maas as a form of endorsement for everything the EPO has been doing, with the German delegates displaying more of that apathy which in itself constitutes a form of complicity



  21. With IP Kat Coverage of EPO Scandals Coming to an End (Officially), Techrights and The Register Remain to Cover New Developments

    One final post about the end of Merpel’s EPO coverage, which is unfortunate but understandable given the EPO’s track record attacking the media, including blogs like IP Kat, sites of patent stakeholders, and even so-called media partners



  22. Everyone, Including Patent Law Firms, Will Suffer From the Demise of the EPO

    Concerns about quality of patents granted by the EPO (EPs) are publicly raised by industry/EPO insiders, albeit in an anonymous fashion



  23. Yes, Battistelli's Ban on EPO Strikes (or Severe Limitation Thereof) is a Violation of Human Rights

    Battistelli has curtailed even the right to strike, yet anonymous cowards attempt to blame the staff (as in patent examiners) for not going out of their way to engage in 'unauthorised' strikes (entailing dismissal)



  24. Even the EPO's Administrative Council No Longer Trusts Its Chairman, Battistelli's 'Chinchilla' Jesper Kongstad

    Kongstad's protection of Battistelli, whom he is supposed to oversee, stretches to the point where national representatives (delegates) are being misinformed



  25. Thanks to Merpel, the World Knows EPO Scandals a Lot Better, But It's a Shame That IP Kat Helped UPC

    A look back at Merpel's final post about EPO scandals and the looming threat of the UPC, which UPC opportunists such as Bristows LLP still try hard to make a reality, exploiting bogus (hastily-granted) patents for endless litigation all around Europe



  26. EPO Critics Threatened by Self-Censorship, Comment Censorship, and a Growing Threat to Anonymity

    Putting in perspective the campaign for justice at the EPO, which to a large degree relies on whistleblowers and thus depends a great deal on freedom of the press, freedom of speech, and anonymity



  27. Links 25/3/2017: Maru OS 0.4, C++17 Complete

    Links for the day



  28. Judge and Justice Bashing in the United States, EPC Bashing at the EPO

    Enforcement of the law based on constitutional grounds and based on the European Patent Convention (EPC) in an age of retribution and insults -- sometimes even libel -- against judges



  29. Looking for EPO Nepotism? Forget About Jouve and Look Closely at Europatis Instead.

    Debates about the contract of Jouve with the EPO overlook the elephants in the room, which include companies that are established and run by former EPO chiefs and enjoy a relationship with the EPO



  30. Depressing EPO News: Attacks on Staff, Attacks on Life, Brain Drain, Patents on Life, Patent Trolls Come to Germany, and Spain Being Misled

    A roundup of the latest developments at the EPO combined with feedback from insiders, who are not tolerating their misguided and increasingly abusive management


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts