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07.12.17

The EPO Should Throw Away All Software Patents in the Same Way It Threw Away Patents on Plants and Animals

Posted in Europe, Patents at 12:05 am by Dr. Roy Schestowitz

“Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke.” —Kelledin, PLI: State Street Overruled… PERIOD

Summary: The ongoing pretense that it’s acceptable to grant software patents at the EPO needs to end before there’s too big an avalanche of invalidated patents — i.e. patents that should never have been granted in the first place

THE original and sole objection we had to the EPO (going back nearly a decade ago to Brimelow’s “as such”) was software patenting. How long can the Office pretend that it can carry on allowing the patenting of software (granting them in disguise) in clear defiance of the EPC, the European authorities, the will of the people and so on?

“Well, as a matter of principle and law, all software patents should be rejected.”Bastian Best‏, a loud and proud proponent of software patents (not a software developer, obviously), cited “A new hope” (again, not for software developers, obviously), calling or dubbing software patents “patents for computer-implemented mathematical methods” (the next term after “CII”?).

This says that a “bar on clarity at the EPO has always been high for software inventions in general and computer-implemented mathematical methods in particular, leading to a number of issues. It can of course be very costly for applicants in this field to ensure that all implementation details are included in the application in case there is a clarity objection. But there is also a specific issue related to the way Infineon is applied by examiners in practice: if a method claim is broad or unclear, it is easy for them to hold that the method is not “functionally limited” to a technical purpose or that said purpose is not “adequately defined”.”

“EPO examiners told us that despite being against software patents they were pressured by their management to grant these.”Well, as a matter of principle and law, all software patents should be rejected. We envision that one day they might all be invalidated, even in hindsight/retroactively (after a grant), just like patents on plants and animals are now being thrown away. They should never have been granted. There’s this new article that says:

The European Patent Office (EPO) has reopened cases in which the decision depends entirely on the patentability of plants or animals obtained by an essentially biological process.

It follows a June 29 decision by the EPO’s supervisory body, the Administrative Council, to exclude such plants and animals from patentability.

The council decided to amend rules 27 and 28 of the European Patent Convention following a proposal submitted by the office.

We certainly hope that software patents are next on the agenda. EPO examiners told us that despite being against software patents they were pressured by their management to grant these. Just one among so many dysfunctions at the EPO these days… usually descending from the top downwards.

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