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11.16.17

EPO Continues to Disobey the Law on Software Patents in Europe

Posted in Europe, Law, Patents at 5:00 am by Dr. Roy Schestowitz

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Summary: 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

TO say that the EPO operates as though it’s above the law would be an understatement. We have covered many dozens of examples to that effect.

Our original gripe/complaint about the EPO was solely about software patents in Europe. This actually started under Battistelli’s predecessor, more so after her “as such” debacle, but here we are almost a decade later and the EPO continues to disregard the rules. It just refers to software patents as “CII” in order to give the impression that algorithms are “inventions”.

Yesterday, the EPO’s buddies at IAM published this article which was immediately thereafter copied across from IAM to its new “partner” site. Jacobacci & Partners’ Andrea Perronance repeated the term “CII” (they don’t even want to say “software”, so they say “computer” instead) and here is the core of it. It came into effect a fortnight ago:

The European Patent Office Guidelines 2017 were recently published on the European Patent Office (EPO) website. They entered into force on November 1 2017.

Like the previous edition, this year’s guidelines include substantial, extensive and comprehensive improvements with regard to guidance on the eligibility of computer-implemented inventions (CII) parts. These parts have been discussed with the European Patent Institute (epi), in particular with the CII sub-committee of the European Patent Practice Committee.

The changes appear mainly in Parts F-IV and G-VII of the European Patent Convention Guidelines (the Patent Cooperation Treaty Guidelines are also available) and deal with the presentation of information eligibility and patentability. There is also a substantial revision of one example of eligible/non-eligible, patentable/non-patentable subject matter in CII, as asked and suggested by epi (see relevant article in epi Information 1/2017).

Why is this still even up for debate and why is the European Patent Institute there and not any software developers? It says a lot about the underlying intentions. It has nothing whatsoever to do with science or innovation. It’s just about cash for the EPO and the patent ‘industry’. This is just wrong.

Incidentally, the same site also published this take on patents in Denmark, courtesy of Accura Advokatpartnerselskab’s Morten Bruus and Christoffer Ege Andersen. Software patents are banned in Denmark, as can be expected (they’re banned in just about every European nation, as least in principle). But there are tricks around that. Remember that the DKPTO’s chief until 1.5 months ago was Battistelli’s protector, who immediately entered the private sector after he had allegedly been pushed out (maybe for conflict of interest) and turned out to have lied about retirement.

Anyway, from the relevant sections:

To what extent can inventions covering software be patented?

In general, software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect that goes beyond the normal physical interactions between the program and the computer.

To what extent can inventions covering business methods be patented?

In general, business methods as such are not patentable (Section 1(2) of the Patents Act). That said, business methods can be patented as part of a patent whose subject matter is a process. However, jurisprudence shows that it is difficult to invent business methods that essentially differ from known methods, which is why patents are rarely granted for business methods.

To what extent can inventions relating to stem cells be patented?

Stem cells that have an inherent ability to create human life (so-called ‘totipotent stem cells’) cannot be patented, whereas pluripotent and multipotent stem cells can be patented, as they cannot create human life.

That last part is a reminder of the fact that, just as EPs got invalidated in bulk for being inappropriately granted (on organisms), one day EPs on software too may get invalidated in bulk. We are waiting for that day.

That same site also mentioned former French colony Tunisia, whose special arrangement with the EPO we published in full a couple of months back. Marks & Clerk, writing in Lexology, say this:

From 1 December 2017, it will become possible to validate European patents in Tunisia.

Until now, patent protection in Tunisia could only be obtained as a national patent filed directly or by national phase entry from a PCT application. From December, applicants wishing to file in Tunisia will be able to do so via a European patent application.

Who would that be useful for if not few of Battistelli’s French friends? No disrespect for Tunisia, but it’s hardly known for EPs, let alone patents in general. Such validation agreements make the EPO look feeble and pathetic. Battistelli and his cronies have already traveled to sign such deals in countries with not a single EP! What’s the point?

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