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. Links 6/4/2020: New Red Hat CEO, elementary OS Hera Updates

    Links for the day



  2. When the Decision is OK and the Judge's Motivations Are Also OK

    Justice Huber made the right call; but the bullies and charlatans who conspired to undermine laws and constitutions will never be satisfied



  3. The Fall of the UPC - Part XII: Doing the Unthinkable by Blaming the Judge's (Justice's) Wife?

    Team UPC and its media partners never cease to amaze us; anybody who stands in their way is either portrayed as a Russian stooge or too ignorant to be worth talking to



  4. The Fall of the UPC - Part XI: Lies Told by Bundesverband der Deutschen Industrie (BDI) in Süddeutsche Zeitung

    Today we look at misleading claims (or lies) published by Süddeutsche Zeitung after the Germans' constitutional court (FCC) had pointed out the obvious, namely that UPC ratification would be in violation of the German constitution



  5. IRC Proceedings: Sunday, April 05, 2020

    IRC logs for Sunday, April 05, 2020



  6. Links 5/4/2020: MindSpore, Covid-19 Projects and More

    Links for the day



  7. EPO is Just Like Some Cruel Political Party and Not a Patent Office

    The "cabal" which runs today's EPO (even the word "Mafia" seems suitable here) isn't acting -- not even remotely -- like a patent office; it's a patent-printing operation ("protection money" as income) that uses shallow political stunts to manufacture consent with the EU's 'generous' assistance



  8. Digitalisation and Digital Technologies as a Ploy to Justify Illegal Software Patents

    Say "hello" to the next weasel word/s; from the "hey hi" hype wave we've now moved to something "digital" (which can mean just about anything, including algorithms of all sorts)



  9. The Fall of the UPC - Part X: How We Shall Catalogue UPC Lies

    The cult that Team UPC became (one member lying to another member, maintaining a false version of reality) will be judged based on underlying facts, not lying about facts; we start with a token of contempt for IP Kat and Bristows LLP (there are overlaps)



  10. IRC Proceedings: Saturday, April 04, 2020

    IRC logs for Saturday, April 04, 2020



  11. Major Revelation: Microsoft Blackmail Against LAMP (GNU/Linux and Free Stacks for Servers) Goes At Least 16 Years Back, Predating the Novell Patent Deal

    (Techno-)Anthropological analyses of Microsoft's patent war on Free/libre software must take into account what Microsoft did to MySQL, a Swedish company at the time



  12. Links 4/4/2020: Sparky 5.11, Firefox 74.0.1, POCL 1.5

    Links for the day



  13. IRC Proceedings: Friday, April 03, 2020

    IRC logs for Friday, April 03, 2020



  14. Links 3/4/2020: Ubuntu Beta, GNOME 3.36.1, ExTiX LXQt Mini, NetBSD 8.2 Released

    Links for the day



  15. Digital Communication, Digitalisation and Videogaming Among the EPO's Latest Smokescreens for Illegal and Abstract Patents on Algorithms

    The EPO keeps liaising with the EU to promote patents which EU officials have themselves said were illegal; to make matters worse, the EPO's violations of its own laws inspire the United States to do the same



  16. Emotional Blackmail for Illegal Software Patents

    Semantic tactics the European Patent Office (EPO) uses to promote software patents in Europe and may theoretically use in the future (satire)



  17. Clear Linux is to GNU/Linux What Clearly Defined is to Open Source

    The idea that we need Intel to take GNU/Linux ‘mainstream’ is ludicrous; as OSDL co-founder (now succeeded in the flesh of the Corporate Linux Foundation), Intel is more about Linux (with DRM, “secure boot” and everything that lets it be remotely controlled) than about GNU and it’s not too keen on GPL (copyleft), either



  18. IRC Proceedings: Thursday, April 02, 2020

    IRC logs for Thursday, April 02, 2020



  19. Links 2/4/2020: Linux 5.6.2, Qt Creator 4.11.2, LineageOS ROM Based on Android 10

    Links for the day



  20. OIN in 2020 Resembles Linux Foundation in 2020 (Corporate Front Group Piggybacking the Linux Brand)

    We regret to say that the Open Invention Network seems not to care at all about Software Freedom; to make matters worse, it is a proponent of software patents and a voice for companies like IBM and Microsoft, not the "Community" it fancies misrepresenting



  21. Inside the Free Software Foundation (FSF) - Part IX: Semi-Happy Ending

    Richard Stallman is here to stay and the FSF will let him stay (as chief of GNU); we want to close the series on a positive note



  22. IRC Proceedings: Wednesday, April 01, 2020

    IRC logs for Wednesday, April 01, 2020



  23. Upcoming Articles and Research Areas

    Although we've failed to write as much as usual, we're still preparing some in-depth articles and maintaining Daily Links (in spite of unforeseen ordeals like a forced laptop migration)



  24. Links 2/4/2020: ProtonMail Bridge for Linux, GTK 3.98.2 and Red Hat DNF 4.2.21

    Links for the day



  25. Links 1/4/2020: Linux 5.7 Merges, Qt 5.14.2, GhostBSD 20.03, Linux Mint 20 Ulyana Plans, WordPress 5.4 “Adderley”

    Links for the day



  26. IRC Proceedings: Tuesday, March 31, 2020

    IRC logs for Tuesday, March 31, 2020



  27. Techrights to Delete Articles From All Past Years to Save Disk Space

    What if we deleted over 25,000 posts?



  28. IRC Proceedings: Monday, March 30, 2020

    IRC logs for Monday, March 30, 2020



  29. Links 30/3/2020: GNU Linux-libre 5.6, WireGuard 1.0.0

    Links for the day



  30. IRC Proceedings: Sunday, March 29, 2020

    IRC logs for Sunday, March 29, 2020


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