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03.20.17

Battistelli’s EPO Copies China — Not the US — When it Comes to Patenting Software and Expanding Patent Scope

Posted in America, Asia, Europe at 5:50 am by Dr. Roy Schestowitz

Battistelli mimics China not just when it comes to the human rights angle (as if the EPO became a Chinese bureau immune from prosecution and located in several European sites)

SIPO and Battistelli
Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)

Summary: A detailed explanation of some of the latest reports from China and the US, serving to show that one opens up to software patents whereas the other shuts the door on them (and guess whose lead the EPO is taking)

SOFTWARE patents started with the US patent office several decades ago, but these patents are going away, albeit China is eager to repeat the mistakes of the US. We worry that the same is true for the EPO, even in clear defiance of the EPC.

“We worry that the same is true for the EPO, even in clear defiance of the EPC.”A SUEPO-hostile and UPC-friendly new site (extension of the patent microcosm by all means, based on its short track record) calls a Qualcomm executive/lawyer who never wrote any code an “expert” (the headline is “Experts staunchly defend software patents”)

To quote: [via]

The quality of a software invention, rather than its mode of implementation, should be the litmus test for patent protection, according to two intellectual property consultants.

IP and innovation consultant Ania Jedrusik and former Qualcomm chief patent counsel Phil Wadsworth argued that patents are the strongest form of protection for the huge research and development expenditure associated with developing software-related inventions, in an article published in February’s edition of WIPO Magazine.

How convenient for WIPO.

WIPO, as we mentioned here the other day, misleads with Chinese figures, obviously in order to make it seem like there’s a huge surge in patents. IP Watch put this story in perspective (“China Soon To Overtake US In Patent Filings”), as SIPO basically lost a grip on patent quality (the EPO is going along the same trajectory). WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).

“WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).”As we noted here the other day, if not over the past few months, SIPO now grants software patents while litigation in China soars, as one might expect (companies destroying each others, lawyers get rich). Here is another new article on the subject. To quote the relevant section:

Software-related Inventions

In the past, patent protection for software related inventions was rather limited; their claims were commonly drafted a process claim, or an apparatus claim based on the computer program flow wherein each component is regarded as a function module required to realize each step in the said computer program flow or each step in the said method. Such apparatus claims are regarded as the function module architecture of the computer program described in the description, rather than entity devices needed to realize the said solution mainly through hardware.

Under the revised Guidelines, software claims may now include a computer program product, a machine-readable medium, or a Beauregard type of claim, which focuses on “an apparatus comprising a processor configured to execute instructions on a computer-readable medium to perform steps of ….”

An applicant should pursue all new possibilities and include as many claim types as needed in the patent application; among other things, it will to make it easier to enforce software patents once they are granted.

It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes. There was a short exchange last week between IBM and Henrion (FFII) [1, 2, 3], who less than a decade ago took note of IBM’s lobbying for software patents in Europe. IBM’s patent chief wrote: “How many years does the #patent community have to wait to learn precisely what abstract means?”

“It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes.”He’s just complaining about Alice, as usual, and he was soon joined by Europe’s loudest pro-software patents attorney, who wrote: “I’m afraid there is no clear definition of “abstract idea”. The USPTO should just copy the EPO” (on providing loopholes).

Henrion said, “just read art52: mental acts, programs for computers, math algos, presentations of information, rules for games.”

Software patents should not be allowed in Europe. Period. Each software patent granted by the EPO is a travesty and an insult to the EPC. As Henrion later added, “it should be copy the EPC, not the EPO practice, which goes around it, especially in fields where there is money” (all that matters under Battistelli is short-term profit, even if that ultimately kills the cash cow).

“Software patents should not be allowed in Europe. Period.”“Given the rate of Alice destruction in the courts,” “wrote a patent maximalist, the USPTO “should be absolutely embarrassed for ripping off patent owners. Fraudulent?”

See how angry they are? Another firm of patent maximalists, i.e. attorneys who were filling their pockets thanks to software patents (Fenwick & West staff), adds to that sort of shaming of the US patent office. What this law firm means by “best news” and “sunshine in the land of the dark” is software patents. To quote the conclusion below their detailed statistics: “Here we see that recently, the PTAB reversed 16 Section 101 rejections in a row beginning in October, 2016—and 14 of these were from the Business Method art units. This is perhaps the best news I’ve seen in months, a bit of sunshine in the land of the dark.”

They look at a level of granularity that suits them. In the same period of time the number of IPRs handled by PTAB grew. PTAB still eliminates a lot of software patents, maybe more than even before.

“PTAB still eliminates a lot of software patents, maybe more than even before.”This (the above) is good news for software developers. Suffice to say, those who have been taxing software developers aren’t too happy about it. See this new article titled “Patents [on software] harder to obtain now, attorney say”. A more suitable headline would be, “patent quality is improving in the US.”

To quote the key part: “Challenges have resulted in a pushback from the U.S. Patent Office that makes it harder to get patents, particularly on software, Woodral said. Many objectors claim the sought-after patent is not prior art, that someone has done it or it is a variation on something done earlier.”

How is that a bad thing, unless one is patent law firm?

This was responded to by Henrion with “value should not be created out of thin air, like with patents.”

He also argued, “if you run the code with your brain, do you allow or reject the application?”

Patent boosters and proponents of software patents (such as “Patent Buddy”) like to mostly ignore the bad news and instead promote cases such as this § 101 case:

Following a jury trial, the court denied defendant’s motion for partial judgment that plaintiff’s malware monitoring patent encompassed unpatentable subject matter because the asserted claims did not lack an inventive concept.

The higher up this goes (in the US court system), the less likely this patent is to survive, based on the latest figures from Fenwick & West (see the underlying invalidation rates). No matter what patent lawyers are trying to tell us, they know that they have lost the battle (or still losing the battle), which means that software developers regain their freedom to write code without fear of being sued or threatened by trolls.

Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.”Writing about software patents (ish) at CAFC the other day, Patently-O says that the “appeal here is somewhat complicated – as reflected by the Federal Circuit’s 42-page opinion. The complications begin with the founding of EVE, and emulation software company founded by folks who invented emulation software at Mentor.”

Being a CAFC-level case, one should expect the patent to be thrown away. Patently-O hardly makes it a secret whose side it is on. Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.

Last night Patently-O published this “Guest Post By Prof. Jonathan Barnett, University of Southern California School of Law & Prof. Ted Sichelman, University of San Diego School of Law” (because it suited Crouch’s convictions).

“People who haven’t money in this game don’t think with their wallet but rather with their brains.”Some patent maximalist professors support the evil side in this SCOTUS case regarding Lexmark, so Crouch just ignores the lion’s share of professors and places the outlier. As the authors themselves confess: “Drawing from this paper and other economically oriented analysis, we recently co-authored an amicus brief in Impression Products, which argues in favor of a presumptive understanding of the exhaustion doctrine. (Interestingly, although academics are usually pegged as strongly in favor of mandatory exhaustion, our brief garnered 44 signatures—significantly more than the brief filed by professors arguing in favor of mandatory exhaustion.)”

Whose signatures though? Well, maybe if not probably signed by the maximalists, not the professors. People who haven’t money in this game don’t think with their wallet but rather with their brains.

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