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02.03.17

Weekend Talk in Brussels to Speak of “Open Patents”, Relevant to the EPO at Times of Growing Lenience on Software Patents

Posted in Europe, Patents at 8:46 am by Dr. Roy Schestowitz

Frederik QuestierSummary: Professor Frederik Questier explains that “software patents are still a threat” and warns about patent trolls, like those with a history of operating in Belgium

ALMOST every year in Brussels (Belgium) there are some talks about patents at FOSDEM and this year is no exception. This time around there is the following talk, which covers (among other things) software patents. From the abstract:

Many people, also software developers, put their inventions or innovations on the ‘market’ without filing patents. For good reasons: the patent privileges to exclude others are not really compatible with freedoms and openness. However, to protect your freedom to operate, you need to avoid that others file a patent on your invention. Open Patents are a new way to do this.

Software patents are still a threat. When you publish your software code, a company or a patent troll might file a patent for the inventions in your code. The patent offices should not grant patents for existing knowledge (‘prior art’), but they will have a very hard time to find the ideas in your code. As such the troll might succeed in getting the patent, and might stop you and everyone else from further exploitation of your ideas.

People near Brussels can go to that talk on Sunday. The presentation starts at 10:20 and will be delivered by Professor Frederik Questier from the local university.

“This time around there is the following talk, which covers (among other things) software patents.”“Software patents are still a threat,” he wrote, and certainly they are now that Battistelli ignores the rules while pursing the UPC, which would bring patent trolls from abroad.

Incidentally, there are more articles emerging right now in light of a publication of a decision (G 1/15) from the Enlarged Board of Appeal (EBoA or EBA).”I didn’t expect them to call it Tufty’s law (I didn’t call it that anyway),” said this comment, “but it’s nice to have been proven right. I’ve written a bit more about it here.”

Tufty’s blog post summarises the problem as follows: “The problem, put simply, is that if a European application claims an invention more broadly than is disclosed in a priority application, can partial priority be allowed for what is disclosed in the priority application. If not, then the priority application, if it also publishes as a European application, becomes A54(3) prior art and knocks out the claimed invention”

“Incidentally, there are more articles emerging right now in light of a publication of a decision (G 1/15) from the Enlarged Board of Appeal (EBoA or EBA).”There is a discussion about the motivations of it. One person wrote: “I cannot but help feel that the EBA has decided what should be the “right” answer and crushed the meaning of the EPC to fit.”

Another said: “I would instead say the EBoA have purposively construed the EPC, having due regard for the intentions of those drafting it (FICPI memo etc).”

A later comment said: “Surely that is preferable to a literal interpretation that led to a ridiculous result? Laws should be fit for purpose, there is no point treating the EPC as an infallible text…”

“Are they following the EPC and the European Parliament or just “following orders” from a crooked tyrant like Battistelli?”“Shame they dodged the divisional question,” another one added. “What happens if priority is withdrawn for the parent case? Can the div be cited?”

As we have been arguing here for a long time, the loss of independence of the boards has made it even harder for them to combat software patents. I wrote to the Enlarged Board of Appeal in the past regarding the matter (they had asked for input) and now the subject is not even being brought up; not anymore. People who work for the EPO confess to us that they are against software patents but are still being compelled — under pressure — to grant them. Are they following the EPC and the European Parliament or just “following orders” from a crooked tyrant like Battistelli?

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