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

09.03.17

What Germany and the EPO Could (and Should) Learn From Australia About Patent Scope

Posted in Australia, Europe, Patents at 6:24 am by Dr. Roy Schestowitz

Public Release of Productivity Commission Final Inquiry Report into Australia’s IP Arrangements
Reference: Public Release of Productivity Commission Final Inquiry Report into Australia’s IP Arrangements

Summary: Patent maximalism, including patenting of software, recognised as an undesirable, but will the EPO accept that rather than publicly advocate software patenting?

Australia — like Canada (subject of our previous post) — is a large developed country with a relatively small population. Both are historically inspired by English/British law.

“Australia’s patent policy seems to be improving, e.g. by reducing the incentive to troll Australian firms.”As we noted the other day, Australia not only recognises the dangers of overpatenting but also does something about it. Australia has just limited patent scope and Peter Leung from Bloomberg did an article about it (“Australia Seeks Tougher Inventiveness Patent Requirements”).

Australia’s patent policy seems to be improving, e.g. by reducing the incentive to troll Australian firms. Here are some portions from Leung’s report, which compares it to the EPO:

Inventors seeking new patents in Australia may have to meet more stringent inventiveness requirements that better match Europe’s under a government proposal aimed at improving the nation’s intellectual property system.

Prime Minister Malcolm Turnbull’s government’s recent response to recommendations from the Productivity Commission, a government research body, included support for raising the inventive step requirement— analogous to the U.S. requirement that an invention be not obvious. An invention is not obvious if it’s sufficiently different from the known technology at the time.

“As it currently stands, the inventive step bar isn’t as high in Australia as it is at the European Patent Office,” Simon Potter, principal and patent attorney with Spruson & Ferguson in Sydney, told Bloomberg BNA. “Even though the Australian government made some changes back in 2013 with the Raising the Bar Act, the Productivity Commission’s view is that the bar remains too low, and the government apparently agrees.”

[...]

More Like Europe

The government said it supports amendments to the Patents Act to clearly establish that a “scintilla” of inventiveness is not enough to secure a patent. The law should also make clear that the “obvious to try” test used by the European Patent Office can be used to determine whether an invention has an inventive step, it said.

[...]

Rachel Hooke, a partner and patent attorney with FB Rice in Sydney, told Bloomberg BNA adopting an inventive step requirement in line with the EPO’s in theory likely won’t be too controversial, but much will depend on the details and implementation.

The government also supported a related Productivity Commission recommendation requiring applicants to identify the technical features in its patent claims, a practice that the EPO employs. Whether an invention meets the inventive step requirement should turn on the claim’s technical features, so requiring the applicant to lay out those features should help patent examiners come to the right conclusion, the commission said.

[...]

Furthermore, Australia has a “manner of manufacture” test but the EPO doesn’t, which is why the technical features analysis is so important in Europe, Hooke said. Having both seems “unnecessary and confusing,” she said.

Here in Britain patent trolls are quite rare. Software patents are also quite rare if not rarer than lawsuits from overseas trolls like Ericsson’s (earlier this year in London it unfortunately got its way). Perhaps the departure from the UPC would help guard British software companies, which rightly oppose the UPC.

“Here in Britain patent trolls are quite rare.”What about Germany?

The Germany-based EPO receives a lot of patent applications from Germany (far more so than from the UK) and “some similarities exist between German and EPO practice,” say Meissner Bolte’s Dr. Stefan M. Zech, Jochen Kilchert, Dr. Stephan Held, Christian Hess, Tilman Pfrang and Dr. Tobias Wuttke. Their days-old article notes: “Another restriction on software is the requirement under Section 1(1) of the [German] Patent Act that patents are granted to inventions or fields of technology, excluding any subject matter considered to be non-technological” (as is often pointed out by the German patent ‘industry’) and here is the part about the EPO, where software patents are being in granted in defiance of the rules:

When determining novelty, only direct and unambiguous disclosure is relevant. However, this requirement is broadly interpreted when compared to the practice before the European Patent Office (EPO).

With respect to the inventive step, some similarities exist between German and EPO practice. However, the EPO problem-solution approach – although generally known by German patent law practitioners – is of considerably lower importance. The decisive question in Germany is often whether the prior art can provide any motivation or incentive to add further features to an already-known solution of the prior art.

It’s already widely publicised that in Germany there’s a plague of patent trolls; they’re truly surging there. We wrote many articles about that. No doubt it’s good for law firms, especially those that specialise in litigation/prosecution. But what does that mean for the ordinary German software developer? No good…

“It’s already widely publicised that in Germany there’s a plague of patent trolls; they’re truly surging there.”The following portion of text was brought forth to me by an online friend, citing an old book from James Stewart Martin, titled All Honorable Men (1950). It’s about fascism’s history (Patents and Cartels) and the role played by patents at the time. Under “Chief of the Decartelization Branch for Military Government in Germany after World War II” it says this:

The practice of I.G. Farben was to capture the basic patents in each field of synthetic chemistry. They would file applications for patents not only in Germany but also in most of the civilized countries of the world.

Our own patent laws were full of loopholes that helped a great deal. For one thing, despite the legal requirement that a patent specification must be so detailed as to enable a man “skilled in the art” to practice the invention, a vague description of the method of producing a chemical compound is often enough to obtain a patent.

(…)

Further, these loopholes permitted an enterprising firm to file its application for a patent long before the actual “bugs” had been worked out of the production process.

The Germans, between the two wars, made an especially energetic drive to exploit their initial advantage in the field of synthetic chemistry in this way. In many cases they blanketed whole new fields of industrial technology by securing basic patents covering all known or suspected processes for synthesizing important materials.

In some cases they themselves had not discovered how to make these materials, but that mattered very little. If someone else did discover the “know-how,” he would find himself blocked by the patents already issued to some German firm or individual on the basis of a general description of the process.

Confronted with this earlier patent, the new inventor had a simple choice before him : spend anywhere up to ten years and thousands of dollars in arguing a patent interference through the Patent Office and the courts; or make a deal. Most of them chose to make a deal. But each deal included specific and legally enforceable recognition by contract on the part of the newcomer that the German patent was valid and not open to question.

Then he would get a promise from the Germans that as they worked with the new process in their own factories and laboratories, they in turn would make available to him the technical know-how that they might discover.

This made it a mutual enterprise beneficial to both, saved expense of litigation, and besides the two could then join forces against any other inventors who might still be outside the arrangement.

In practice, this meant that if I.G. Farben caught Du Pont on the first go-round with the Farben patents in the United States and made a deal with Du Pont, from then on it was I.G. Farben and Du Pont against, shall we say, Monsanto. And as more outsiders fell in with the scheme the team of solidly organized patentees grew and the chances of the remaining outsiders were less and less.

There’s a true danger that unless Germany ends the gold rush for patents, small- and medium-sized companies will suffer. At the EPO, last year’s statistics show a consistently high number of patents. From 2007 to 2016 the number of German patent filings was: 32,103, 33,384, 30,472, 33,104, 33,447, 33,814, 31,887, 31,691, 31,379, and 31,815 (last year).

“There’s a true danger that unless Germany ends the gold rush for patents, small- and medium-sized companies will suffer.”Compare that to France with: 10,797, 11,487, 11,608, 11,721, 11,865, 12,234, 12,378, 13,194, 13,294, and 12,726 (last year).

The UK is even lower with: 7,260, 7,172, 6,569, 7,142, 6,508, 6,691, 6,510, 6,917, 7,099, and 7,226 (last year).

“If the EPO was to study the reports from Australia, Battistelli would get the boot the following day.”Remember that the EPO is primarily based in Germany, France’s INPI does not really do proper examination, and the UK has the IPO.

France never quite did any quality assessment of patents (it’s more like registration), the UK-IPO is pretty strict, and EPO is nowadays granting patents like mad. Insiders tell us that anything goes, even software patents. If the EPO was to study the reports from Australia, Battistelli would get the boot the following day.

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

What Else is New


  1. “US Inventor” is a “Bucket of Deplorables” Not Worthy of Media Coverage

    Jan Wolfe of Reuters treats a fringe group called “US Inventor” as though it's a conservative voice rather than a bunch of patent extremists pretending to be inventors



  2. Team Battistelli's Attacks on the EPO Boards of Appeal Predate the Illegal Sanctions Against a Judge

    A walk back along memory lane reveals that Battistelli has, all along, suppressed and marginalised DG3 members, in order to cement total control over the entire Organisation, not just the Office



  3. PTAB is Safe, the Patent Extremists Just Try to Scandalise It Out of Sheer Desperation

    The Leahy-Smith America Invents Act (AIA), which gave powers to the Patent Trial and Appeal Board (PTAB) through inter partes reviews (IPRs), has no imminent threats, not potent ones anyway



  4. Update on the EPO's Crackdown on the Boards of Appeal

    Demand of 35% increases from the boards serves to show that Battistelli now does to the 'independent' judges what he already did to examiners at the Office



  5. The Lobbyists Are Trying to Subvert US Law in Favour of Patent Predators

    Mingorance, Kappos, Underweiser and other lobbyists for the software patents agenda (paid by firms like Microsoft and IBM) keep trying to undo progress, notably the bans on software patents



  6. Patent Trolls Based in East Texas Are Affected Very Critically by TC Heartland

    The latest situation in Texas (United States District Court for the Eastern District of Texas in particular), which according to new analyses is the target of legal scrutiny for the 'loopholes' it provided to patent trolls in search of easy legal battles



  7. Alice Remains a Strong Precedential Decision and the Media Has Turned Against Software Patents

    The momentum against the scourge of software patents and the desperation among patent 'professionals' (people who don't create/develop/invent) is growing



  8. Harm Still Caused by Granted Software Patents

    A roundup of recent (past week's) announcements, including legal actions, contingent upon software patents in an age when software patents bear no real legitimacy



  9. Links 18/11/2017: Raspberry Digital Signage 10, New Nano

    Links for the day



  10. 23,000 Posts

    23,000 blog posts milestone reached in 11 years



  11. BlackBerry Cannot Sell Phones and Apple Looks Like the Next BlackBerry (a Pile of Patents)

    The lifecycle of mobile giants seems to typically end in patent shakedown, as Apple loses its business to Android just like Nokia and BlackBerry lost it to Apple



  12. EFF and CCIA Use Docket Navigator and Lex Machina to Identify 'Stupid Patents' (Usually Software Patents That Are Not Valid)

    In spite of threats and lawsuits from bogus 'inventors' whom they criticise, EFF staff continues the battle against patents that should never have been granted at all



  13. The Australian Productivity Commission Shows the Correct Approach to Setting Patent Laws and Scope

    Australia views patents on software as undesirable and acts accordingly, making nobody angry except a bunch of law firms that profited from litigation and patent maximalism



  14. EPO 'Business' From the United States Has Nosedived and UPC is on Its Death Throes

    Benoît Battistelli and Elodie Bergot further accelerate the ultimate demise of the EPO (getting rid of experienced and thus 'expensive' staff), for which there is no replacement because there is a monopoly (which means Europe will suffer severely)



  15. Links 17/11/2017: KDE Applications 17.12, Akademy 2018 Plans

    Links for the day



  16. Today's EPO and Team UPC Do Not Work for Europe But Actively Work Against Europe

    The tough reality that some Europeans actively work to undermine science and technology in Europe because they personally profit from it and how this relates to the Unitary Patent (UPC), which is still aggressively lobbied for, sometimes by bribing/manipulating the media, academia, and public servants



  17. Links 16/11/2017: WordPress 4.9 and GhostBSD 11.1 Released

    Links for the day



  18. The Staff Union of the EPO (SUEPO) is Rightly Upset If Not Shocked at What Battistelli and Bergot Are Doing to the Office

    The EPO's dictatorial management is destroying everything that's left (of value) at the Office while corrupting academia and censoring discussion by threatening those who publish comments (gagging its own staff even when that staff posts anonymously)



  19. EPO Continues to Disobey the Law on Software Patents in Europe

    Using the same old euphemisms, e.g. "computer-implemented inventions" (or "CII"), the EPO continues to grant patents which are clearly and strictly out of scope



  20. Links 16/11/2017: Tails 3.3, Deepin 15.5 Beta

    Links for the day



  21. Benoît Battistelli and Elodie Bergot Have Just Ensured That EPO Will Get Even More Corrupt

    Revolving door-type tactics will become more widespread at the EPO now that the management (Battistelli and his cronies) hires for low cost rather than skills/quality and minimises staff retention; this is yet another reason to dread anything like the UPC, which prioritises litigation over examination



  22. Australia is Banning Software Patents and Shelston IP is Complaining as Usual

    The Australian Productivity Commission, which defies copyright and patent bullies, is finally having policies put in place that better serve the interests of Australians, but the legal 'industry' is unhappy (as expected)



  23. Patent Trial and Appeal Board (PTAB) Defended by Technology Giants, by Small Companies, by US Congress and by Judges, So Why Does USPTO Make It Less Accessible?

    In spite of the popularity of PTAB and the growing need/demand for it, the US patent system is apparently determined to help it discriminate against poor petitioners (who probably need PTAB the most)



  24. Declines in Patent Quality at the EPO and 'Independent' Judges Can No Longer Say a Thing

    The EPO's troubling race to the bottom (of patent quality) concerns the staff examiners and the judges, but they cannot speak about it without facing rather severe consequences



  25. The EPO is Now Corrupting Academia, Wasting Stakeholders' Money Lying to Stakeholders About the Unitary Patent (UPC)

    The Unified Patent Court/Unitary Patent (UPC) is a dying project and the EPO, seeing that it is going nowhere fast, has resorted to new tactics and these tactics cost a lot of money (at the expense of those who are being lied to)



  26. Links 15/11/2017: Fedora 27 Released, Linux Mint Has New Betas

    Links for the day



  27. Patents Roundup: Packet Intelligence, B.E. Technology, Violin, and Square

    The latest stories and warnings about software patents in the United States



  28. Decline of Skills Level of Staff Like Examiners and Impartiality (Independence) of Judges at the EPO Should Cause Concern, Alarm

    Access to justice is severely compromised at the EPO as staff is led to rely on deficient tools for determining novelty while judges are kept out of the way or ill-chosen for an agenda other than justice



  29. Links 14/11/2017: GNU/Linux at Samsung, Firefox 57 Quantum

    Links for the day



  30. Microsoft: Sheltering Oneself From Patent Litigation While Passing Patents for Trolls to Attack GNU/Linux

    Another closer look at Provenance Asset Holdings and what exactly it is (connection to AST, part of the cartel Microsoft subsidises to shield itself)


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