08.09.17

Gemini version available ♊︎

When It Comes to Software Patents, the EPO Has Become Among the Worst in the World

Posted in America, Asia, Europe at 3:20 pm by Dr. Roy Schestowitz

CII at EPO
This EPO presentation spoke of software patents (“CII”). Photo credit: EPO Patent Information Conference 2016 (Grant Philpott)

Summary: Software patents, which were never meant to be granted by the EPO, are nowadays being granted quite leniently and easily (whereas other patent offices growingly reject these, deeming them too abstract and not beneficial)

THE EPO does not seem to mind the law (or any of the laws). It exists in a vacuum and it grants software patents in Europe in defiance of directives, the public interest, and the EPC.

Earlier today Graham McGlashan from Marks & Clerk said that a “computer program itself can potentially be patented at the European Patent Office” because the EPO has gone rogue and the subject isn’t even up for debate anymore; the EPO promotes these patents in public events and by doing so it metaphorically spits at the Parliament, at the European public, and on the EPC.

Here is the relevant paragraph:

The European Patent Office will potentially allow a patent if the claimed subject matter is novel and inventive and has a technical character – even if the invention is computer implemented. A computer program itself can potentially be patented at the European Patent Office if it is capable of bringing about, when running on a computer, a further technical effect going beyond the “normal” physical interactions between the program (software) and the computer (hardware) on which it is run.

This was published by people who put misleading puff pieces in British media and promote software patents, the UPC etc.

The above is of course the old mumbo-jumbo where general-purpose computers on which programs run are used to attribute some magical physical properties to code. It’s a clever trick, but it’s all just a sham. Yet it helps bypass examiners.

Several months ago Marks & Clerk said in a public event that it had become easier to patent software at the EPO than at the USPTO. How revealing a statement!

Looking elsewhere in the news today, IAM published another marketing piece (this one for Bereskin & Parr LLP) with nothing in it about patent scope as CIPO (Canada’s patent office) is having a consultation and there’s no sign of growing tolerance towards software patents. Innofy’s Katherine Rock wrote about software patents in Australia, taking stock of quite a few recent cases and concluding that “Australian Patent Office Says No” (to software patents).

From the concluding part:

On the face of it, the decision issued in July by the Australian Patent Office may be discouraging as the apparent rejections relate to a broad range of fields of innovation – from collection and analysis of data, targeting advertising, statistical optimisation for assay analysis, and insurance policy management.

However, it does appear that the Patent Office is operating on a case by case basis, and in addition looking to authorities which ostensibly require a demonstrable technical effect (see, eg, Aerotel), a concrete, physical effect (see, eg, Grant), and/or distinctions from a generic computer system(s). Therefore, we would advise that when seeking to apply for patent protection in Australia, you consider these authorities and seek a professional opinion – so feel free to contact us with any questions.

Notwithstanding the above, given the contention around the issue of patent eligibility of software, and the fact that the interpretation of the Patents Act may be subject to change as more cases are brought before the courts, we could well see a relaxing (or tightening) of these requirements in years to come.

Is it harder to get software patents in Australia than it is in Europe? Remember that in the US even if one manages to get a software patent, this patent is very unlikely to be upheld in courts. We have heard that the same is becoming true in Japan (the only other stronghold of software patents*). These patents just lack potency and would be worthless if asserted, which is why patent trolls prefer going after small firms which would settle out of court.

Earlier today we spotted this announcement about purchase [sic] (reassignment) of patents that are basically on software but are painted as “mobile” (to bypass abstractness tests). Here are the patents:

USPTO 8,369,828 “Mobile-to-Mobile Payment System and Method”;
USPTO 8,073,895 & 8,572,166 “System and Method for Delivering Web Content to a Mobile Device”;
USPTO 8,315,184 “Computer to Mobile Two-Way Chat System and Method”

This seems like a waste of time and money. Maybe they just didn’t get the ‘memo’ about software patents in the US.

So how did the EPO become a laughing stock for low patent quality? (or broad scope)

Part of the problem, we suspect, is Battistelli's attack on the Boards of Appeal of the European Patent Office (BoA), which exist to help guard — independently — the integrity and quality of the EPO. “In Decision T 488/16,” we learned today, BoA “have revoked EP 1 169 038…”

Here are the details:

In Decision T 488/16, the Boards of Appeal of the European Patent Office (BoA) have revoked EP 1 169 038, which protected the blockbuster protein tyrosine kinase (PTK) inhibitor dasatinib (Sprycel®). The only request on file — a single claim directed to dasatinib per se or a salt thereof — was found to lack inventive step in view of the absence of evidence in the application as filed (and the common general knowledge) which rendered the activity of dasatinib in inhibiting PTK “plausible”. A general statement in the application as filed that “Compounds described in the following Examples have been tested in one or more of these assays, and have shown activity” was not by itself considered enough to render it credible to the skilled person that the described compounds were PTK inhibitors. In the absence of a plausible disclosure of activity against PTK in the specification as filed, the objective technical problem was defined by the Board of Appeal as merely “the provision of a further chemical compound”. The extensive clinical data which became available after the filing date of the patent evidencing biological activity was not taken into account when determining inventive step.

The Boards of Appeal of the European Patent Office have for many years imposed a requirement that claims for large molecules (e.g., proteins) must be supported by a plausible disclosure of biological activity in the application as filed (see, for example, T 1329/04). A similar requirement for a plausible disclosure of activity in the original specification has also been required to support medical use claims (see, for example, T 0609/02). However, this Decision indicates that the Boards are willing to apply the same strict standards when assessing claims for small molecule drugs per se.

Based on recent reports, the BoA may already be ‘in transit’, having been exiled by Battistelli with help from Kongstad (who will be leaving the EPO next month). We are very worried that the EPO without a strong and independent BoA will take the European patent regime into total oblivion.
_____
* Japan has long been known as the ‘twin’ of the US when it comes to software patents, with Korea highly reluctant to follow suit and only China relaxing the rules as it opens the floodgates to just about any patent (not just on software).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States

    How unlawful EPO rules were unsurprisingly supported by Benoît Battistelli‘s friends in Baltic states; António Campinos maintained those same unlawful rules and Baltic connections, in effect liaising with offices known for their corruption (convicted officials, too; they did not have diplomatic immunity, unlike Battistelli and Campinos)



  2. Links 21/10/2021: GIMP 2.99.8 Released, Hardware Shortages, Mozilla Crisis

    Links for the day



  3. How Oppressive Governments and Web Monopolists Might Try to Discourage Adoption of Internet Protocols Like Gemini

    Popular movements and even some courageous publications have long been subverted by demonisation tactics, splits along unrelated grounds (such as controversial politics) and — failing that — technical sabotage and censorship; one must familiarise oneself with commonly-recurring themes of social control by altercation



  4. [Meme] Strike Triangulations, Reception Issues

    Financial strangulations for Benoît Battistelli‘s unlawful “Strike Regulations”? The EPO will come to regret 2013…



  5. [Meme] Is Saying “No!” to Unlawful Proposals Considered “Impolite”?

    A ‘toxic mix’ of enablers and cowards (who won’t vote negatively on EPO proposals which they know to be unlawful) can serve to show that the EPO isn’t a “social democracy” as Benoît Battistelli liked to call it; it’s just a dictatorship, currently run by the son of a person who actually fought dictatorship



  6. IRC Proceedings: Wednesday, October 20, 2021

    IRC logs for Wednesday, October 20, 2021



  7. [Meme] EPO Legal Sophistry and Double Dipping

    An imaginary EPO intercept of Administrative Council discussions in June 2013...



  8. Links 21/10/2021: PostgreSQL JDBC 42.3.0 and Maui Report

    Links for the day



  9. [Meme] [Teaser] “Judge a Person Both by His Friends and Enemies”

    Fervent supporters of Team Battistelli or Team Campinos (a dark EPO era) are showing their allegiances; WIPO and EPO have abused staff similarly over the past decade or so



  10. 'Cluster-Voting' in the European Patent Office/Organisation (When a Country With 1.9 Million Citizens Has the Same Voting Power as a Country With 83.1 Million Citizens)

    Today we examine who has been running the Finnish patent office and has moreover voted in the EPO during the ballot on unlawful "Strike Regulations"; they voted in favour of manifestly illegal rules and for 8.5 years after that (including last Wednesday) they continued to back a shady regime which undermines the EPO's mission statement



  11. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki's Accord

    The Finnish outpost has long been strategic to the EPO because it can help control the vote of four or more nations; evidence suggests this has not changed



  12. [Meme] Living as a Human Resource, Working for Despots

    The EPO has become a truly awful place/employer to work for; salary is 2,000 euros for some (despite workplace stress, sometimes relocation to a foreign country)



  13. Links 20/10/2021: New Redcore Linux and Hospital Adoption of GNU Health

    Links for the day



  14. IRC Proceedings: Tuesday, October 19, 2021

    IRC logs for Tuesday, October 19, 2021



  15. Links 19/10/2021: Karanbir Singh Leaves CentOS Board, GPL Violations at Vizio

    Links for the day



  16. [Meme] Giving the Knee

    The 'knee' champion Kratochvìl and 'kneel' champion Erlingsdóttir are simply crushing the law; they’re ignoring the trouble of EPO staff and abuses of the Office, facilitated by the Council itself (i.e. facilitated by themselves)



  17. Josef Kratochvìl Rewarded Again for Covering Up EPO Corruption and the EPO Bribes the Press for Lies Whilst Also Lying About Its Colossal Privacy Violations

    Corrupt officials and officials who actively enable the crimes still control the Office and also the body which was supposed to oversee it; it's pretty evident and clear judging by this week's press statements at the EPO's official Web site



  18. [Meme] Sorry, Wrong Country (Or: Slovenia isn't Great Britain)

    Team UPC is trying to go ahead with a total hoax which a high-level European court would certainly put an end to (if or when a referral is initiated)



  19. How Denmark, Iceland, Finland, Norway and Sweden Voted on Patently Unlawful Regulations at the EPO

    We look back and examine what happened 8 years ago when oppressed staff was subjected to unlawful new “regulations” (long enjoyed by António Campinos, the current EPO autocrat)



  20. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc

    We start our investigation of how countries in northern Europe ended up voting on the unlawful “Strike Regulations” at the EPO and why



  21. Proof That Windows “11” is a Hoax

    Guest post by Ryan, reprinted with permission



  22. Firefox Becomes as Morally Reprehensible as Apple, Facebook, or Uber

    Guest post by Ryan, reprinted with permission



  23. Links 19/10/2021: GNU dbm 1.22 and Godot 3.4 RC 1

    Links for the day



  24. [Meme] [Teaser] GitHub an Expensive and Dangerous Trap (Also: Misogyny Hub)

    The ongoing Microsoft GitHub exposé will give people compelling reasons to avoid GitHub, which is basically just a subsidised (at a loss) trap



  25. Norway Should Have Voted Against Benoît Battistelli's Illegal (Anti-)'Strike Regulations' at the European Patent Office

    Benoît Battistelli‘s EPO faced no real and potent opposition from Norwegian delegates, who chose to abstain from the vote on the notorious and illegal so-called ‘Strike Regulations’ (they’re just an attack on strikes, an assault on basic rights of labourers)



  26. Links 19/10/2021: Sequoia PGP LGPL 2.0+, Open RAN Adoption

    Links for the day



  27. [Meme] [Teaser] Benoît Battistelli, King of Iceland

    Later today we shall see how the current deputy of the head of the EPO‘s overseeing body was in fact likely rewarded for her complicity in Benoît Battistelli‘s abuses against EPO staff, including staff from Iceland



  28. IRC Proceedings: Monday, October 18, 2021

    IRC logs for Monday, October 18, 2021



  29. Links 19/10/2021: MyGNUHealth 1.0.5 and Ubuntu 22.04 Now Developed

    Links for the day



  30. [Meme] [Teaser] Thrown Under the Bus

    Tomorrow we shall look at Danish enablers of unlawful EPO regulations, Jesper Kongstad and Anne Rejnhold Jørgensen


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

Recent Posts