10.13.18

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Quality of Patents Granted by the EPO is Still Low and Nobody Will Benefit Except Lawyers, Jubilant Over Growing Lenience on Software Patents

Posted in Europe, Patents at 10:18 am by Dr. Roy Schestowitz

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Summary: Deterioration of patent quality at the EPO — a serious problem which examiners themselves are complaining about — is becoming rather evident as new guidelines are very lenient on software patenting

THE EPO under António Campinos — like the USPTO under Director Iancu — seems to have no concept or understanding of patent quality. Maybe they just fail to appreciate the importance of patent quality, instead assuming that the goal is to grant as many patents as possible, i.e. generate as many monopolies as possible, then — in turn — generating as many patent lawsuits as possible.

The issues associated with software patents in Europe have been covered here for a dozen years. We covered various court cases that dealt with such patents in Europe, including in the UK (Symbian was a famous case). Sara Moran at Kluwer Patent Blog has just highlighted what happens when some European patents or patents granted in Europe (not necessarily European Patents) turn out to be bogus, fake patents. “The Court of Appeal dismissed an appeal filed by Cubist against the Patents Court decision that one of its patents relating to antibiotic daptomycin was invalid for obviousness,” she wrote. So nobody benefited from this case other than lawyers. It was a total waste of time.

European Patents (EPs) of Qualcomm were mentioned in this blog post just before the weekend: [via]

Munich I Regional Court throws out Qualcomm patent infringement lawsuit against Apple: no infringement

[...]

The Munich I Regional Court (“Landgericht München I” in German) just announced the first final judgment on a Qualcomm v. Apple patent infringement complaint anywhere in the world. Apple (and, by extension, Intel) fended off one of various Qualcomm patent infringement lawsuits.The court agreed with Apple’s claim construction.

A few months after the Federal Trade Commission of the United States and, in a separate case, Apple sued Qualcomm over antitrust and contract-related matters in January 2017, the San Diego-based company that dominates the market for cellular baseband chips started a patent infringement lawsuit campaign against the iPhone maker in the U.S., Germany, and China. Qualcomm wanted to kick off the German “rulings season” with a Mannheim injunction–and got a Munich rejection.

A three-judge panel–composed of Judge Dr. Schoen (“Schön” in German), who filled in for Presiding Judge Dr. Zigann at last week’s trial, and Judges Klein and Schmitz–held that Apple’s iPhone 7 and iPhone 7 Plus do not infringe Qualcomm’s European patent EP1199750 on a “post[-]passivation interconnection scheme on top of [an] IC chip.”

In a follow-up related to this (Qualcomm, albeit in the US with Nokia‘s support) the same blog said: [via]

While Qualcomm’s patent infringement lawsuits against Apple (and, by extension Intel) are merely a sideshow to the antitrust matters pending on three continents, let’s start with a brief follow-up to yesterday’s Munich judgment. The court has meanwhile, thankfully, provided a redacted copy of the decision. I’ve read it, and the most interesting part is that Qualcomm had submitted two expert reports in support of its claim construction, while Apple had provided only one, but the deficiencies of Qualcomm’s reports were massive while Apple’s expert provided instructive, helpful information. I’ll publish a translation of the relevant passages soon.

Meanwhile, Judge Lucy H. Koh of the United States District Court for the Northern District of California has granted the Federal Trade Commission of the United States permission to file a reply to Nokia’s recent amicus curiae brief in support of Qualcomm with respect to the FTC’s motion for partial summary judgment regarding Qualcomm’s obligation to extend FRAND licenses to its cellular standard-essential patents (SEPs) to rival chipset makers. In its reply brief in support of its motion (that post also contained a link to Nokia’s brief), the FTC had already reserved the right to request leave to file such a reply since Nokia’s brief was filed just on the eve of the FTC’s reply to Qualcomm’s opposition.

FRAND and standard-essential patents (SEPs) are highly detrimental in the domain of software as they’re inherently not compatible with Free/libre Open Source software (FOSS/FLOSS). The EPO doesn’t care however. Under the leadership of Campinos the EPO promotes software patents more often than ever before. It’s rather disturbing to watch their Twitter account. From yesterday alone we have two different tweets (if not more) that implicitly advocate software patents in Europe. First we have Battistelli’s French “economist” (i.e. pseudo-’scientist’) promoting software patents using familiar buzzwords. “For the patent system,” it says, “the Fourth Industrial Revolution has opened up a new era. For more from our Chief Economist’s recent speech on the topic, click here: http://bit.ly/AIpatents”

This, in turn, links to the “AI” nonsense (buzzwords that can refer to just about any algorithm). Once again, on the same day, the EPO promoted such patents under the guise of “AI”. To quote the tweet: “What are the main challenges in drafting patent applications for AI-related inventions? Our panel of experts discussed: http://bit.ly/AIconf”

Suffice to say, this is against the rules of the EPO (or the EPC), but they bypass the rules and break the laws without any implications. European politicians don’t seem to care.

Meanwhile, Herbert Smith Freehills LLP’s Jonathan Turnbull, Krishna Kakkaiyadi and Julie Chiu published this piece titled “EPO publishes 2018 revision of Guidelines for Examination directed to computer-implemented inventions” (what the EPO calls software patents). To quote:

The EPO has recently published the 2018 revision to its Guidelines for Examination, which are generally updated annually to take into account developments in patent law and practice. For a complete list of sections that have been amended this year, please see the EPO’s website here. These new Guidelines will come into effect on 1 November 2018.

Notably, some of the key updates this year concern Part G, Chapter II, 3.3-3.7: these provisions outline the exceptions to patentability under Article 52 of the European Patent Convention (“EPC“), including mathematical methods, business methods and programs for computers. Claims directed to such subject matter would normally not be patentable, but the updated Guidelines elaborate on the types of claims which still might be eligible for patenting, and provide concrete examples of such eligible claims.

[...]

Nevertheless, these developments have to be seen alongside the other efforts being taken by the EPO in ensuring that European patent law remains suitable and robust to tackle computer-implemented inventions. In May 2018, the EPO held (for the first time) a conference on patenting Artificial Intelligence and soon after, in June 2018, the heads of the five largest patent offices (USPTO, EPO, JPO, the Korean patent Office and the State Intellectual Property office in China) re-emphasised the impact of AI on the patent system as one of their “main strategic priorities“. In December 2018, the EPO will host a conference on the patenting of blockchain-based inventions.

These recent developments are indicative of the EPO’s proactive response towards the changing technological landscape, and a willingness to engage with and potentially grant patents for computer-implemented inventions such as AI- or blockchain-enabled technologies if they meet the applicable criteria.

So the EPO lost all legitimacy on patent scope. Quite flagrantly it ignores the European Patent Convention and disregards a European directive. The EPO is just above the law. They openly tell candidates for examination (of which there are none; there’s a permanent hiring freeze) or current examiners (while they last or manage to survive) to grant such patents and they just say to applicants that it they include terms like “AI” or “blockchain” or some other nonsense, then they’ll be granted a patent on algorithms.

This isn’t even a legacy of Battistelli alone; had Campinos shown interest in genuine patent quality (never mind actually obeying the rules and the law), he would stop this, not accelerate it as he does.

In the interests of ‘production’ (low quality of patents as priority) the EPO further limits access to facts, to oppositions, to appeals etc.

Joanna Rowley (Haseltine Lake LLP) has just published this article:

New EPO Guidelines On The Issuance Of A Summons To Oral Proceedings As The First Action In Examination

A summons to oral proceedings before the Examining Division is usually only issued after at least one examination report – if not several – has been issued. However, last year the EPO revised the Guidelines for Examination to state that the Division may issue a summons to oral proceedings as the first action in examination after issuance of the extended European search report, albeit only in exceptional cases.

So they cut some more corners, except “in exceptional cases.”

Great resurgence of patent quality or just further deterioration (which also makes more staff redundant)? Remember that examiners’ contracts are now time-limited, so not even layoffs per se are needed; Campinos can just patiently wait for their work contract to expire (unless they leave earlier or get fired under strange circumstances, as some do).

Not only software patents are the problem; the EPO also continues to double down on patents on nature. Want beer? Sorry, that’s patented. The beer and the seeds it’s made from. Under Campinos this disturbing policy was recently reaffirmed and there’s this new article about a ‘compromise’:

A second patent granted to Carlsberg and Heineken related to conventionally-bred barley has been reduced in scope by the European Patent Office (EPO).

The patent, which covered conventionally-bred barley, its usage in brewing and the resulting beer, and is now restricted to plants with a specific mutation which can influence the content of these flavours.

This is the second patent of this type that has been reduced in scope by the EPO following pressure from lobbying groups.

So they still allow patents on life and nature; as if people invent nature by manipulating it a little.

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