01.19.18

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The EPO Ignores This Week’s Decision Which Demonstrates Patent Scope Gone Awry; Software Patents Brought Up Again

Posted in Europe, Patents at 2:37 am by Dr. Roy Schestowitz

It’s all about money and replacing examiners with machines

Battistelli and money

Summary: The worrisome growth of European Patents (EPs) — a 40% jump in one year in spite of decline in the number of patent applications — is a symptom of the poor judgment, induced largely by bad policies that impede examiners’ activities for the sake of so-called ‘production’; this week’s decision regarding CRISPR is another wake-up call and software patents too need to be abolished (as a whole), in lieu with the European Patent Convention (EPC)

THE EPO has said absolutely nothing about the Board or about Broad. Odd, isn’t it? Not even a tweet. Sometimes they do link to decisions of the Boards of Appeal, but not this time. Instead, there’s this junk about a new Benoît Battistelli photo op (warning: epo.org link). We don’t know if they’re intentionally distracting from something, but we can only guess. Got to maintain the perception of top-notch patent quality, right?

“Battistelli took a flight on some plane and all he got was a lousy photo op (in which he is barely even visible).”As usual, this EPO ‘news’ is all about Benoît Battistelli. Heck, the entire Web site of the EPO is a shrine to Battistelli. How many years will that take to undo?

The world’s news aggregators said nothing about the above meeting, which is pretty insignificant anyway. Battistelli took a flight on some plane and all he got was a lousy photo op (in which he is barely even visible). Blog post imminent? Either way, let’s look at the real news.

“The EPO went overboard, unhinged from the actual purpose and function of patent offices.”Fallout of EPO granting (in error) patents on life is very much visible. It’s prominent in the news. We already wrote 3 articles about it earlier this week (on Wednesday and Thursday [1, 2, 3]). On Thursday it was widely covered by sites that — judging by their names — promote these monopolies for the most part [1, 2, 3, 4, 5]. Sites of lawyers too weighed in (some of them profit from CRISPR prosecution if not persecution). IAM, by the way, has still said nothing about it; the same goes for Watchtroll and other patent maximalists who would rather pretend nothing happened on Wednesday. CRISPR monopolists are in ‘damage control’ mode over this decision. They issue paid press releases which are face-saving spin.

“Merit-based patents (e.g. on economic grounds) will endure, but algorithms are already protected by copyright law and actual programmers do not want patents.”Yesterday, IP Watch published an article (behind paywall) about an “EPO-EU Conference [which] Examines Hot Topic Of Patentability Of Plants In Europe” and to quote what’s outside the paywall: “The last couple of years have brought heated discussions in Europe on the patentability of plant innovations, leading to a recent amendment of patent application rules at the European Patent Office. Two major actors share this innovation landscape: the biotechnologists and the plant breeders, with similar but not identical needs for protecting their invention. A joint conference on innovation in the plant sector was held recently by the EPO and the Community Plant Variety Office.”

The Community [sic] Plant Variety Office is somewhat of a sham. We wrote several articles about it. The EPO should never permit patents on life and the Community Plant Variety Office is basically the opposite of what its name suggests [1, 2]. It helps to think of it like a corporate think tank.

Curiously enough, not even IP Kat wrote about any of the above. Not at all. Instead, revisiting software patents in Europe, IP Kat wrote this blog post yesterday.

“But what if the Boards lacked independence and feared the Office whose President is a clueless patent maximalist?”“Is the EPO stretching the line for patentable subject-matter, again?”

So asks the headline. Sooner or later all software patents (the EPO always says “computer-implemented inventions” (CII) — a sneaky term which avoids “software patents” being mentioned) too will get wiped, as per the EPC. It happened with plants, seeds, genome etc. so why not software?

The EPO went overboard, unhinged from the actual purpose and function of patent offices. Merit-based patents (e.g. on economic grounds) will endure, but algorithms are already protected by copyright law and actual programmers do not want patents. Any time the EPO loses touch/alignment with the law the Boards should be there to correct it. But what if the Boards lacked independence and feared the Office whose President is a clueless patent maximalist? Battistelli's cluelessness is well documented and it’s an embarrassment to the entire organisation, not just the Office. There were warning signs about it right from the early stages (his candidacy) when he publicly admitted to not having a talent like creative people and inventors (his own words). His inability to comprehend software has repeatedly led to poor decisions, letting automation poorly replace some workflow at the Office. Staff repeatedly complained about it.

As Frantzeska Papadopoulou put it yesterday:

The new Guidelines for Examination of the EPO, valid from 1st of November 2017, include an interesting revised (and rather detailed) section G II 3.7, dedicated to the patentability of claims based on presentation of information. Presentation of information under 52(2)(d) of the EPC includes any form of information (such as visual or, audio) and covers both its cognitive aspect as well as the means of communication. However, the fact that the claims include purely cognitive (and thus non-technical) aspects does not automatically mean hat they are excluded from patentability. Presentation of information that assists the user in achieving a technical task has a technical effect (confirmed also in T336/14 and T1802/13).

Read the comments as well (they tend to be better than IP Kat posts). The first one says

Rather the Guidelines add examples from the case law in order to assist users how to find the rather difficult boarderline between patentable and non-patentable inventions in the field of computer implemented inventions.

The term “computer implemented inventions” is just a synonym of software patents. Don’t be misled by it. The next comment says: “I must confess that I’m slightly confused as to how a claim to lean manufacturing would be considered as a presentation of information, unless the claims were very poorly drafted. The link to pure business methods isn’t convincing at all, I’m afraid.”

“what is the definition of the word “technical” that is so heavily being leaned upon?” So said the next comment and one person replies: “What is a “pure business method?””

“Let’s quit pretending that these semantic and syntactic trick somehow (miraculously) permit the impermissible.”Exactly. These are pretty meaningless terms (“technical”, “pure” and so on) which were created to set up loopholes (“as such”) for patenting algorithms. The Boards ought to put an end to all this nonsense; the sooner, the better. Sure, it would harm Battistelli’s ‘productivity’ claims, but who cares about this megalomaniac? Just because he’s still bullying a judge from the Boards? One might suggest that — gasp! — he does so intentionally.

Anyway, the above issue was also brought up yesterday by Simon Kahn and Joshua McFarlane from Boult Wade Tennant. They’ve just published “EPO Board of Appeal advises how to determine technical subject matter for assessing inventive step” and here are a couple of portions:

Computer implemented inventions, such as computer software, can be easy to copy but time-consuming to develop. Therefore, companies and developers are keen to ensure that relevant intellectual property is obtained for the computer implemented inventions, in which they have invested considerable resources. Patent protection seems like a good choice for protecting such products, because it can provide broad protection and can be enforced without any need to prove copying. Although patent law often restricts protection for computer-implemented inventions, many such inventions are patentable. Nevertheless, there are still grey areas, where protection may be obtainable, but only in certain circumstances and each patent office assesses such inventions in a different way.

[...]

This decision does not change the approach taken by the EPO to assessment of inventive step for computer-implemented inventions that contain some technical subject matter. Nevertheless, it does remind us of the difficulties that are often faced in securing patent protection for computer-implemented inventions. Such objections from Examining Divisions come up frequently and it is important to be aware of how they can be overcome, so the applicant can be awarded the protection to which they are entitled.

Notice their use of words like “inventive step”, “computer-implemented inventions” and so on. Let’s quit pretending that these semantic and syntactic trick somehow (miraculously) permit the impermissible. In the US, more so after Alice (2014), the word “abstract” is thrown around a lot. Based on major European law firms, the US is now more strict than the EPO and has made it harder to obtain software patents (than in Europe). If the EPC still means anything and isn’t just an old piece of paper, then it’s time to enforce the rules and curtail the endless expansion of patent scope. WIPO might not like it, but so what? The patent systems need not operate like a capitalist enterprise in pursuit of constant growth. What is this growth anyway? An expansion of monopoly? Is this even desirable?

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