11.21.18

To Mask the Decline in Patent Quality, e.g. Granting of Software Patents a.k.a. Computer-Implemented Inventions (CII), EPO Makes Oppositions Harder

Posted in Europe, Patents at 7:10 pm by Dr. Roy Schestowitz

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Summary: Using a bunch of two-, three- and sometimes four-letter acronyms/buzzwords the EPO tries to rationalise the granting of patents on algorithms, dubbing these “emerging technologies”

FOR over a decade we have been protesting software patents in Europe, seeing how a directive against them was being worked around (“as such”) by Brimelow, then Battistelli and now more than ever by António Campinos, whom we mentioned this morning because of his blog advocating software patents.

“The above conference is yet more of the same advocacy of software patents under the guise of “emerging technologies” (marketing and buzzword).”Today’s EPO does not value quality, only money. The management of the EPO still believes it is a corporation that sells “products” to then send millions of euros into the bank accounts of its corrupt officials (or colleagues/other employers of theirs). As the EPO put it a few hours ago: “We aim at providing you with the best products for your patent information needs.”

“Products”?

Sadly, with the staff representatives gagged like never before and the media barely covering EPO affairs (see EPO PR from IP Kat, where earlier today Rose Hughes had nothing do say about EPO scandals, only press releases from the management of the European Patent Office), we often feel rather lonely in criticising serious abuses. Staff of the EPO essentially lost its voice. Instead of actual examiners expressing their views all we see out there is management spreading lies and engaging in mischievous behaviour. Hours ago the EPO wrote: “Georg Weber, operational director at the EPO, and Yann Ménière, EPO Chief Economist, will discuss how the EPO is rising to the challenge of searching #blockchain & its current patent landscape at our upcoming conference.”

“Management at the EPO suggests calling algorithms “AI” to get software patents in defiance of the EPC and the courts.”Georg Weber [1, 2] and Yann Ménière have long promoted software patents under the leadership of corrupt Battistelli. The above conference is yet more of the same advocacy of software patents under the guise of “emerging technologies” (marketing and buzzword). The EPO wrote earlier today: “Don’t delay – registration for our “Global patenting and emerging technologies” conference co-hosted with @GoI_MeitY on 29 Nov closes soon. See you in Munich!”

Then came the typical “AIpatents” nonsense: “If you are looking for insights from experts on patenting #AI, this summary of the EPO’s recent conference on the topic might be of interest to you: http://bit.ly/AIpatents”

Management at the EPO suggests calling algorithms “AI” to get software patents in defiance of the EPC and the courts. They pretend it’s a new, emergent and separable discipline, but it clearly is not. José Santacroce (Moeller IP Advisors) wrote about it earlier today under the title “The European Patent Office (EPO) Publishes New Guidelines On Computer-Implemented Inventions (CII)” and to quote some bits:

The section on mathematical methods has been completely revised, adding a distinction between contribution in producing a technical effect that serves a technical purpose, by its application to a field of technology and/or by being adapted to a specific technical implementation.

[...]

Artificial Intelligence and Machine Learning (G-II 3.3.1)

The new CII Guidelines for the first time provide a section relating to AI and ML, which are first defined as computational models and algorithms for classification, clustering, regression and dimensionality reduction. They are considered per se to be of an abstract mathematical nature, irrespective of whether they can be “trained” based on (real) training data.

In order to overcome the first hurdle, a causal link to the technical purpose should be established, e.g. use of mathematical method in a heart monitoring apparatus for the purpose of identifying irregular heartbeats, classification of digital images, videos, audio or speech signals based on edges or pixel attributes, and avoid using expressions that may encompass cognitive aspects of data (e.g. textual content of a document).

Furthermore, the new EPO CII Guidelines now specify that steps of generating the training set and training the AI models also may contribute to the technical character of the invention if they support achieving a technical purpose.

[...]

Inventions realized in a distributed computing environment (F-IV 3.9.3)

This new section relates to CII realized in a distributed computing environment, in order to give guidance on unity requirements.

The new EPO CII Guidelines specify that it may be necessary to refer to the specific features of the different entities in the environment and to define how they interact to ensure the presence of all essential features, unless this is not essential to performing the invention. The different entities participating in the distributed system can be claimed without incurring a non-unity objection, however it may happen that not all claimed entities are new and inventive. This is the case when for example an entity encodes information in a more efficient way, but an information-receiving entity decodes such encoded information in a conventional way: the information-receiving entity is normally neither new nor inventive.

Like the U.S. Patent and Trademark Office (USPTO), the EPO is trying to come up with new tricks to allow patents that should really be rejected outright. Can this be corrected? Well, it has just gotten a lot harder. As FRKelly’s David Brophy put it earlier today, the “EPO tightens up on inventive step attacks in opposition” (calling legitimate objections “attacks” is a gross inversion of narratives, presuming monopolies are benign).

So the management basically heralded changes that lower patent quality and make it harder to squash fake European Patents. To quote Brophy:

A recent change in the EPO Guidelines suggests that opponents will be constrained in the number of attacks which they can mount using different starting documents.

Opposition divisions have traditionally been reluctant to decide in advance which document is the closest prior art, and even less inclined to force an opponent to stick to that starting point. The opposition division will usually prefer to consider all attacks put forward (within reason) on the basis that the public interest requires them to be satisfied that the claims are non-obvious in the face of any plausible attack.

To be fair to the opposition divisions, the EPO Guidelines have traditionally supported this approach. Until a recent (November 1, 2018) revision, the instruction in the Guidelines stated:

In some cases there are several equally valid starting points for the assessment of inventive step… If a patent is to be granted, it may be necessary to apply the problem-and-solution approach to each of these starting points in turn… In such a situation, there is no need to discuss which document is “closest” to the invention; the only relevant question is whether the document used is a feasible starting point for assessing inventive step…”.

This passage gave opponents considerable latitude to present a multiplicity of attacks from different starting documents.

Some time soon the liars from the management of the EPO might claim a reduction in opposition, ‘proving’ that patent quality has improved rather than the decline obscured. The USPTO is trying to do the same thing by limiting access to the Patent Trial and Appeal Board (PTAB), particularly when it comes to inter partes reviews (IPRs). Appeals too have become a lot harder since Battistelli understaffed and attacked the independence of appeal boards’ judges. █

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