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

10.23.18

The EPO Under António Campinos Has Opened More Doors to Software Patents and Only Litigators Are Happy

Posted in Deception, Europe, Patents at 11:05 am by Dr. Roy Schestowitz

Persistence if not extension of Battistelli’s notorious strategy of broadening patent scope

Campinos at JUVE
Credit/source: JUVE

Summary: António Campinos continues Battistelli’s tradition of shredding the Convention on the Grant of European Patents (EPC); it’s all about generating as much assertion (e.g. litigation, shakedown) activity as possible, serving to bring Europe’s productive industries to a halt

THE existence of software patents in Europe in spite of the EPC and software patents in the U.S. in spite of 35 U.S.C. § 101 is the fault of U.S. Patent and Trademark Office (USPTO) and EPO management. Both are nowadays run by pretty clueless people, or what’s sometimes referred to as kakistocracy. The USPTO had a new chief, appointed by Donald Trump, replacing Michelle Lee earlier this year. Contrariwise, the Federal Circuit is still run by a lady who’s undoing much of the damage done by the corrupt (he got caught) Judge Rader. Will Trump replace her too? The Patent Trial and Appeal Board (PTAB) was run by the same man for a couple of years until Trump’s newly-appointed Director moved him, possibly as part of his war on inter partes reviews (IPRs). These people just really dislike patent quality. All they want is litigation and an ocean of low-quality patents.

We’ve been patiently observing today’s and yesterday’s news about software patents. That mostly focused on the EPO because António Campinos seems like a pretty big fan of such patents. Not that he ever developed software or anything remotely like it; he’s a career-climbing banker. He’s a “money man” — to the point of firing staff if he can get the work done on the cheap elsewhere (EU work done outside the EU).

The EPO has come up with terms other than “CII” — terms by which to refer to “software patents in Europe” without mentioning the S word (software). Another stupid/brain-dead buzzword (or term) that’s exploited by proponents of software patents (along with “AI”, “4IR” and other nonsense) is “IoT”. EPO examiners need to watch out for that. Here’s a new tweet that says: “IoT or Internet of Things technology is dramatically changing and is expected to be an extensive one in the coming decade. Find out the challenges to be faced while patenting in IoT Technology from the adjoining link: https://resources.sagaciousresearch.com/patent-drafting-challenges-in-iot-domain …”

They’re basically promoting hype, not substance. IoT Evolution World (blog) has just published something to that effect as well. So software patents are merely dodging their name (negative connotation); they nymshift a lot and hide behind buzzwords, media hype etc. Some more software patents are now disguised as “in or on a car” (new article by Admire Moyo, ITWeb’s business editor).

“An idea may be an invention if existing technologies are combined in a way that is novel, or used in a way that is novel,” the EPO has just said. They use buzzwords and hype to make fundamental and old ideas seem novel. Go ahead and define “novel” (typically just a synonym for new). EPO management also routinely misuses words like “technical”, then it grants patents on maths, life, and nature.

“Registration for our Patenting Blockchain conference is now open,” the EPO added, so here we have the EPO openly advertising and advocating for patents on software, using the hype du jour.

OIN staff (the people who repost the "Microsoft loves Linux" lie and write FRAND blog posts) were at this related conference/workshop of the EPO. This guy says he’s representing “the FOSS community,” which is actually incompatible with these patents. To quote him: “Representing the #FOSS community at @EPOorg at the #blockchain scoping workshop. Feel a bit exotic in the room :-) Great discussions however, and an eager audience on all sides.”

So here we have OIN helping the EPO’s software patents agenda, as one might expect from OIN. They also participate in IAM events with a similar agenda.

One angle we wish to mention but not to dwell too much on is patent law firms’ support for this agenda, which may mean more litigation and therefore ‘business’ for them. Aaron Gin (McDonnell Boehnen Hulbert & Berghoff LLP) wrote [1, 2] that “EPO Releases Patentability Guidance for AI-based Applications” and Gregory Rabin (Lundberg & Woessner, highly vocal proponents of software patents) wrote [1, 2] that “EPO Provides Patentability Guidance for AI-based Applications”. They couldn’t be happier. Only hours ago Marks & Clerk, a longtime proponent of software patents, published the usual marketing spam in that news site from Scotland. They had done it before. “Patent applications for AI-related inventions is key” was the headline of an article signed by: “Graham McGlashan is a Chartered (UK) and European Patent Attorney for Marks & Clerk LLP.”

So the patent lawyers/attorneys are apparently journalists now, as well…

Notice the abundance of buzzwords. From just one paragraph: “From smart meters to smartphones, technology continues to have a positive impact on our everyday lives with advancements being felt in almost every area. Welcome to the ‘fourth industrial revolution’, or industry 4.0 as many have labelled it, which is now in full swing across the globe, heralding a new era of technological development characterised by digitalisation and the storage and management of big data. Fundamentally, it is expected to disrupt the global economy. Industry 4.0 refers to the impact that increasingly sophisticated software, and in particular artificial intelligence (AI) software, will have on that economy. From energy to automotive to medtech and biotech, there are few areas which will be immune to AI-based disruption and the race is most certainly on globally to deliver the technologies that will define the next industrial revolution. Examples include Internet of Everything (IoE) and machine to machine (M2M) technologies underpinning factory environments, allowing machines to become increasingly automated and self-regulating, in turn realising smoother processes and freeing up workers to focus on other tasks.”

Chris Milton (J A Kemp) wrote that the “EPO has published its yearly update to the Guidelines for Examination, which will come into force on 1 November 2018.”

James Ward, David Lewin, David Brown and Magnus Johnston of Haseltine Lake LLP then wrote about shallow EPO examination, a.k.a. “Early Certainty”. To quote:

In mid-2016 the EPO introduced “Early Certainty from Opposition”, announcing that streamlined internal workflows would apply to first-instance opposition proceedings as from 1 July 2016: see notices in the EPO Official Journal, May 2016, A42 and A43. A stated intention was to reduce the time needed for a first-instance decision in “straightforward” cases to 15 months from expiry of the opposition term. Perhaps reasonably enough, no attempt was made to define “straightforward”.

Intended or possible effects of EPO-internal “streamlining” on requirements to be made of parties to proceedings were not particularly spelled out in the May 2016 notices. They indicated that the term to be set for the patentee to respond to the notice(s) of opposition would be 4 months, extendible only in exceptional cases, as was previously so (see e.g. Rule 132 EPC). In the November 2016 version of the Guidelines for Examination at the EPO, a passage was amended to emphasize that extensions would be granted “only in exceptional, duly substantiated cases”. This was maintained in the November 2017 version of the Guidelines (Part E, Chap. VIII, 1.6 Extension of a time limit).

The notices also indicated that the time between issue of a summons to oral hearing and the hearing date would now normally be at least 6 months (up from 4 months) and that the deadline for final written submissions would now normally be set at 2 months before the hearing (rather than 1 month). These changes were incorporated into the November 2016 Guidelines and maintained in the November 2017 Guidelines (Part E, Chap. III, 6. Summons to oral proceedings; Part D, Chap. VI, 3.2.

IAM is still helping the EPO with its software patents agenda (trashing the EPC — the basis upon which the EPO was founded).

In Twitter it wrote: “Computer implemented inventions are a big focus of the new @EPOorg examination guidelines which kick in on 1st November.”

It’s an article by James Sunderland (“UK and European patent attorney | Haseltine Lake, London”) and it’s titled “Latest EPO Guidelines bring substantial revisions, with CIIs a major focus” (there’s that term “CII” again). To quote:

Each year since 2012, the EPO has updated its Guidelines for Examination to follow changes to the European Patent Convention and its rules, and also to reflect developments in case law and evolution in EPO policies and practices. The 2018 edition of the Guidelines, that will come into force on 1st November 2018, includes extensively revised sections and newly added sections.

The revisions relate to computer implemented Inventions, inventive step assessment in opposition, unity and more.

While, as the name suggests, the Guidelines are not binding, they do set out the day-to-day practice to be adopted by examiners. Familiarity with them is important for a European patent attorney: they are the best tool we have for understanding how an examiner is likely to approach an issue and an argument solidly based on their content is unlikely to be dismissed.

So the EPO's management promotes software patents in clear defiance of many things, including the EPC. Law/litigation firms are happy, but scientists and techies simply don’t count. The EPO doesn’t care about those people.

Arnie Clarke published the following article yesterday; it’s about “late-filed submissions in EPO oppositions” and it says:

T0969/14 is the latest in a long line of decisions which make it clear that the EPO Boards of appeal will not accept late filed requests which could have been filed in first instance proceedings, whether or not the submission of such requests might be perceived as a procedural abuse.

One of the consequences of decisions like this is a proliferation of auxiliary requests in first and second instance opposition proceedings. This, in turn, is being used by patentees to justify certain procedurally abusive behaviours in oral proceedings which are disadvantageous to opponents.

How has this has come about, and what can the EPO do to redress the balance?

Campinos — like Battistelli — is really tightening the screws or knocking some more nails into the Boards’ coffin. They don’t want oppositions aplenty, at least not successful ones, as that would reveal the sharp decline in patent quality.

Last but not least we have another law firm, Inspicos A/S, writing about the problem-and-solution approach as follows:

The European Patent Office uses the well-established problem-and-solution approach when assessing inventive step (cf. Guidelines for Examination at the EPO G.VII 5). A crucial part of this analysis is the starting point, known as the “closest prior art”.

The selection of the closest prior art document is important, as it may prove easier to arrive at the claimed invention from one document than from another document. Selection of a particular document as the closest prior art generally sets the course for an assessment of inventive step.

There have been various approaches to selecting a document as the closest prior art. For many years, the Boards of Appeal at the EPO seemed to hold the opinion that there was one – and only one – document which could constitute the closest prior art. During EPO examination proceedings, and especially EPO opposition proceedings, parties before the EPO made great efforts to persuade EPO examiners that their choice of closest prior art was the correct one. Once the relevant document had been identified, arguments which started from other documents (however valid) were typically not accepted.

[...]

In the most recent update to the EPO Guidelines for Examination (valid from November 1 2018), this approach has been refined once again. With reference to decision T320/15, multiple inventive step attacks from multiple starting points are only allowed if the documents selected are “equally valid springboards”. In particular, opposition proceedings are not seen as “a forum where the opponent can freely develop as many inventive step attacks as he wishes in the hope that one of said attacks has the chance of succeeding.”

So the EPO promotes the lie and even propaganda that challenges or refutations of bogus patents are “attacks”. That’s because today’s EPO management works for lawyers, not science. It’s about litigation, but not justice. One more article of interest deals with EP 2937734B1, which was granted less than a couple of years ago and is already being used in lawsuits:

In the patent battle between Nikon and ASML in relation to which 11 cases were pending before the District Court of The Hague, the Court recently ruled on case three.

Nikon is holder of European patent EP 2937734B1, granted on December 28 2016. It has 18 claims with independent product claim 1 and independent process claim 15. Both independent claims incorporate feature 1.6: “The reference (MFM) is covered with a light-transmissive material”. The reference is provided on the substrate (wafer) that is used for detecting a projection position of the pattern image to be projected on the wafer. The parties agree that the other features in the claim are present in ASML’s machine, but dispute the presence of feature 1.6.

To prove infringement Nikon referred to a publication of ASML and Zeiss from 2010 and a patent application of ASML from the same year. These publications, however, do not disclose anything about the actual features in the machines that ASML is currently selling in 2018.

This case isn’t about software. However, if Campinos gets his way, then in the coming years we might see plenty more abusive lawsuits (meritless) over algorithms. Examiners at the EPO are certainly aware that such a thing would further damage Europe’s software industry.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

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. Freedom is Personal

    "Before I say anything else, note that there are literally hundreds of GNU/Linux distros, and I put in a lot of work to rate which were the least encumbered by corporate politics — directly or indirectly."



  2. Links 7/8/2020: Ubuntu 20.04.1 LTS and GNU C Library 2.32 Released

    Links for the day



  3. IRC Proceedings: Thursday, August 06, 2020

    IRC logs for Thursday, August 06, 2020



  4. Our Collective Privacy is Under Unprecedented Attacks and Privacy is Now Conflated With Bad Hygiene, Not Just Criminality

    At warp speed the "War on cash" or "War on anonymous transactions" is moving ahead; now that COVID-19 infects a lot of people we're led to assume that mass surveillance saves lives not because of counter-terrorism but because of contact-tracing or whatever (in practice it's hardly effective, but it's conditioning people to give up any remnants of their privacy)



  5. The Psychology of Developers

    "It turns out, there are ways around a free license -- you can make software "less free" or more imposing, without changing the license at all."



  6. Social Justice is Fine... When It is Not Just a Shallow Marketing Ploy

    Don't let well-meaning concepts such as "Social Justice" become mere buzzwords or tools of corporate propaganda (greedy people's objectives disguised as populism)



  7. Site Upgrades Likely Coming Soon

    After more than 28,000 posts are published it might be time to move from the WordPress x.9.x LTS to something newer (5.5 is about to be released); we explain why it’s not as simple as it might first seem



  8. Focus on the Big Issues, Not the Words

    The pattern that is emerging in recent months if not years is that words hurt and therefore contributors to code must shut up about injustices, including corporate misbehaviour



  9. Computing vs. Marketing

    “The important lesson here is that Windows is NOT a computer — it is actually a horrible thing that people DO to a computer, and to themselves.”



  10. Release: Several Police Reports About Searching the Home of Bill Gates' Engineer (Stockpiles of Child Pornography Found Along With Illegal Firearm)

    The final part of the first installment from Seattle PD, this one focusing on people who searched the home to find a lot of underage pornographic material being amassed



  11. Video: Microsoft-Sponsored 'Copyleft' Conf (Keynote Sold to Microsoft, a Serial GPL Violator and Primary FUD Source) Features Previous FSF (Co)President and RMS Ouster

    There's now a video online of the debates in CopyleftConf 2020



  12. Miseducation

    "...the real crime (OLPC founder Nicholas Negropontes word for it) is that schools aren't teaching computers at all -- they're doing application training."



  13. [Meme] RMS Succeeded by a Microsoft Sponsor

    Congratulations to the FSF, which elected a president almost a year after pushing RMS (its founder) out; but questions need to be answered by the new president, who apparently sees nothing wrong reinforcing the Microsoft monopoly, participating in a PR ploy designed to distract from the notorious ICE contract, and even paying Microsoft (as if it deserves the money)



  14. Controlling Your Computing

    "We at least want our software to be free, and for a while, that was possible. We want software to be free again, so let's talk about what made it free, what made it less free, and what could hopefully improve in the future."



  15. User Libre: Free Computing For Everyone, Start With Perfection

    "As the threats to user freedom evolve, so too must the response to those threats. So long as freedom remains the first priority, worthwhile responses will give more power to every user, and keep limits on how much control can be imposed by developers."



  16. IRC Proceedings: Wednesday, August 05, 2020

    IRC logs for Wednesday, August 05, 2020



  17. Release: Search Warrant and Reports on Findings When Bill Gates' Engineer Arrested for Pedophilia

    Readers can finally see all the details about what was taken (portable drives, laptop, desktop etc.) and what was found when a search was executed at the home of Bill Gates' engineer while he was at Bill's house (where he worked regularly); as far as we are aware, the police never searched Bill's house and computers



  18. Links 6/8/2020: FSF Has New Chief, LibreOffice 7.0, Linux App Summit Goes Online

    Links for the day



  19. Links 5/8/2020: Wayfire 0.5 and Plasma Browser Integration

    Links for the day



  20. IRC Proceedings: Tuesday, August 04, 2020

    IRC logs for Tuesday, August 04, 2020



  21. SUSE is Still Pushing Microsoft Proprietary Software and Bragging About the Novell Patent Collusion With Microsoft

    SUSE seems to have learned no lessons after the aftermath of its (or Novell’s) Microsoft patent scam, which had been negotiated partly by Miguel de Icaza (now working directly for Microsoft) before causing Novell to collapse and offload its patents to Microsoft (‘TikTok operandi’ or asset stripping); the past cannot be left behind if SUSE — like Novell — celebrates and perpetuates that past



  22. Release: 29 Pages of Internet Access Report About Pedophile Working for Bill Gates at His Home

    As we’ve found nothing too sensitive in the document, today we’re finally disclosing and publishing the second release (first one published yesterday); this includes network addresses used on the devices of the engineer of Bill Gates, who had a laptop and external hard drives (portable) with plenty of child pornography (imagery and videos)



  23. Links 4/8/2020: Kodachi 7.2, Collabora Office 6.4

    Links for the day



  24. [Meme] Nadella is Doing With Donald Trump What Ballmer Did With Elop and Icahn to Steal Other Companies (Nokia and Yahoo, Respectively)

    The illegal (attempted) confiscation of a Chinese company to distract from or compensate for Microsoft's collapse reminds us that Microsoft is only getting worse and more malicious under Nadella, who is happy to liaise with a hugely corrupt and racist regime



  25. We Don't Really Know How Many People Died With (or From) COVID-19 and How Many Will Die After Home Recovery or Release From Hospital

    The coronavirus pandemic that began last year as an epidemic (COVID-19) is still a very serious problem, even half a year after its widespread arrival in Europe; it's important to emphasise the importance of not down-playing this problem (which is far from solved) because social control media is full of junk



  26. IRC Proceedings: Monday, August 03, 2020

    IRC logs for Monday, August 03, 2020



  27. Release: Police Report About Arrest of Bill Gates Engineer for Pedophilia (Detained at Residence of Bill Gates)

    Today we release 15 pages (amongst almost 3,000 pages we have) about the Jones arrest; this includes details about what happened when the detectives came to the home of Bill Gates



  28. Bill Gates' Personal Engineer Rick Jones is Connected to Other Child Pornographers. One Key Contact Works (or Worked) Indirectly for Microsoft.

    MagicHour listed Microsoft among their clients, as we noted before, and the full (redacted for child porn reasons) name is Brett Paine. We had reached out to the employer (several of us, separately), but we never received any reply.



  29. Links 3/8/2020: Linux 5.8, GNU Linux-libre 5.8, Libinput 1.16, Rust 1.45.2, Julia 1.5

    Links for the day



  30. IRC Proceedings: Sunday, August 02, 2020

    IRC logs for Sunday, August 02, 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