02.02.19

The European Patent Office’s Promotion of Software Patents Overlooks Ongoing ‘Spillage’ of the Patent Crisis to Patent Courts (Rejecting Such Patents)

Posted in Europe, Patents at 10:24 am by Dr. Roy Schestowitz

Presumption of Validity (in the United States): “All issued U.S. patents are presumed to be valid. However, the U.S. PTO is an administrative agency (i.e., a part of the executive branch of government) and its decisions are therefore reviewable by the courts. The presumption of validity means that a patentee does not have to prove in court that the patent is valid. The accused infringer bears the burden of proving, by clear and convincing evidence that the PTO erred in awarding the patent.” Source: Affirmed in U.S. Supreme Court‘s Microsoft v i4i 2011 decision.

Summary: The EPO has slipped into the same dangerous territories as the USPTO by overgranting and causing growing uncertainty about the real (as judged by courts) validity of European Patents

THE European patent law is not uniform (not EU). Different countries have different laws (and national patent offices as well as courts) and they’re quite consistent in their rejection of software patents. The latest request for stakeholders’ input at the European Patent Office (EPO) is rather revealing; they speak not about patent quality or presumption of validity; instead they speak of things like “quality of patent services” (an entirely different thing that they measure using yardsticks like speed, not actual quality). This is truly disturbing. They aren’t listening to their stakeholders (there are broadly-signed open letters) and examiners (there are massively-signed petitions), they only pretend to be listening. This is the strategy of the new man/management: pretending to listen. Creating the impression of being responsive to the needs of this system’s users.

“…they only pretend to be listening. This is the strategy of the new man/management: pretending to listen. Creating the impression of being responsive to the needs of this system’s users.”Watermark Intellectual Property’s Christian Schieber wrote a new article titled “European Patent Office to introduce option to defer commencement of examination of applications from 1 July 2018″ and it shows that the EPO, quite frankly as usual, rather than improve patent quality would rather just let applicants control speed of granting; it isn’t about how long examiners will work on the file but “commencement of examination”; applications can be ignored (left on the shelf, so to speak) but quality of examination will remain low due to time constraints, capacity and lack of skills (brain drain). What on Earth is going on? No need to get all alarmist, but it seems as though there’s not even intent to tackle the real, core, inherent problems.

Case of point: After Florian Müller‘s many recent articles about Qualcomm he is being mentioned in some media, showing also the role played by the EPO with questionable European Patents that it granted to Qualcomm. Here’s one such report which emerged just before the weekend:

Apple picked up a win in an ongoing legal spat with Qualcomm, after a German court rejected four out of eight infringement claims.

A district court found no infringement of the patents, related to on-device search, although it noted the judgement is not final. In the case of the four other claims, no final decision was reached, with Qualcomm having the opportunity to comment on a recently-issued missive from the European Patent Office (EPO).

Specialist website FOSS Patents explained the EPO’s findings mean Qualcomm’s remaining claims may also be set to fail.

Qualcomm invested a lot of money and time in patenting and litigation; now the patents come tumbling down. What would that do to the presumption of validity?

“What would that do to the presumption of validity?”FRKelly has just published two articles (the self-promotional kind), one that says “Patent enforcement through the courts in the European Union [...] A structured guide to enforcing patents through the courts in the European Union” and another more detailed one titled “Patents in the European Union”. Here’s the part about software patents:

To what extent can inventions covering software be patented?

Computer programs ‘as such’ are not regarded as inventions. Nevertheless, if an invention is computer implemented, whether through hardware or software, and if it solves a technical problem using technical means, it may be patentable. The standard applied by the EPO is that a computer program claimed by itself is not excluded from patentability if it is capable of bringing about, when running on or loaded onto a computer, a further technical effect going beyond the ‘normal’ physical interactions between the program (software) and the computer (hardware) on which it is run. Individual courts in member states may apply different criteria or tests in spite of a common statutory framework applying.

To what extent can inventions covering business methods be patented?

Business methods are excluded from patentability in all member states. However, an invention relating to a business method may be patentable if it involves further novel and inventive technical means.

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

The use of human embryos for industrial or commercial purposes is strictly excluded from patentability, and any application relating to stem cells will be refused insofar as the methods or products necessarily involve the destruction of human embryos. However, the European Court of Justice (ECJ) has ruled that parthenogenically derived stem cells are not “human embryos” and that:

As the EPO made clear, it’s willing to grant patents on algorithms in spite of the EPC and in spite of European courts repeatedly rejecting those (and chastising the EPO for misinterpreting the EPC to permit such patent grants).

“No wonder constitutional challenges against the UPC have been very potent and already successful, e.g. in Hungary.”“Join the “knowledge café” at #ExaminationMatters, a 90-minute open discussion forum,” the EPO wrote late on Friday. Well, notice how they neglect to say what this is actually about (it is software patents in Europe). Unless one follows the link to this new page, titled as follows: (warning: epo.org link)

Knowledge café on computer-implemented inventions (CII)

The “knowledge café” is a 90-minute open discussion forum.
You can join one or more of the café tables.
At each table a different topic is discussed.
Topics are introduced, moderated and summarised by EPO experts.
There will be one announced rotation of tables, however you are free to move at any time to explore other topics.
Participants may bring their own questions and examples to be discussed.

So this whole thing is about promotion of software patents, which the EPO continues to refer to as “CII” (to avoid the “S” word).

“This man scares me” is the name of a poster of a new comment who said about António Campinos the following. It’s the last comment of the bunch (no further comments are permitted):

He is sitting every morning at the bar listening to employees queuing to enjoy his beloved one-to-one meeting. Sometimes he listen so carefully that he does not say a single word.

There will be soon direct consequences from what he ‘listened’ and from the dooming survey due to start today.

We all miss and regret the time when he was just doing nothing.

“HE DID NOTHING” was how another person in that same thread put it. As we said back then, it seems abundantly clear that people are running out of patience with him (faster than Battistelli lost the trust of the staff). When the public and when corporations realise that the EPO is consciously allowing patents that courts don’t accept litigation numbers may collapse (like they did in the US, where even the number of patent grants decreased last year). The EPO may be counting on abolishing the appeal boards and the courts (replacing them with UPC), as we shall explain in our next post. No wonder constitutional challenges against the UPC have been very potent and already successful, e.g. in Hungary.

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. Links 27/10/2020: FuguIta 6.8, Fedora 33, Red Hat Satellite 6.8, KDE Plasma 5.20.2 and GStreamer 1.18.1

    Links for the day



  2. Site Changes Ahead of Anniversary

    We’re making some changes to the presentation and function of the site — changes that will become more prominent over the coming days



  3. IRC Proceedings: Monday, October 26, 2020

    IRC logs for Monday, October 26, 2020



  4. Links 26/10/2020: rpminspect 1.2, Open Source Hardware Certification and LibreOffice Conference

    Links for the day



  5. Links 26/10/2020: Debian "Bullseye" Artwork, Fwupd 1.5 Released

    Links for the day



  6. [Meme] Satya Na-DL

    Microsoft has shown its real priorities (just before the weekend when many people might not notice)



  7. Jonathan Wiltshire and Debian, Falsified Harassment Claims, Tiger Computing and GCHQ

    Reprinted with permission from Debian Community News



  8. Links 26/10/2020: Linux 5.10 RC1 and Loongsoon Laptops

    Links for the day



  9. The Downfall of Free Software Leaders (and Their Projects or Missions)

    "Cancel George Orwell, and happy hacking."



  10. IRC Proceedings: Sunday, October 25, 2020

    IRC logs for Sunday, October 25, 2020



  11. Links 25/10/2020: Kodi 18.9, ScummVM Android Love, Cutelyst 2.13

    Links for the day



  12. [Meme] Captain Zemlin and Neil McGovern's Ugly Legacy in GNOME (His Predecessors Work for Microsoft Directly Now)

    The Linux Foundation is already ‘sold’ and Microsoft Tim‘s interview with Neil McGovern, published a few days ago, was rather revealing (comments on the article/interview were also harsh)



  13. How Microsoft is Still Worse Than Google

    "I have decided that we should not publish these extensions. We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage."



  14. 'President Bill Gates' Wants to Punish Not Only Google After Using “Extensions” to the Web to Reinforce Microsoft's Monopoly (Antitrust Violations Are a Microsoft Thing)

    In gross distortion of facts and of history and in a rather incredible fashion (very shameless and insulting) the corporate media tries to paint Bill Gates as an antitrust hero that will save the world from monopolies



  15. Donald Trump Helped Bill Gates Increase His Wealth by More Than 50%, Especially During the Pandemic

    Contrary to ridiculous narratives disseminated by nutty accounts all around the Web, Gates and Trump are no foes but 'partners in crime'



  16. Our 14th Birthday is Coming

    We're turning 14 shortly and we need ideas from readers (things that can be done to mark the event and celebrate 'on-line')



  17. In Spite of IBM's Difficult Past and Particularly Dark History, Under Arvind Krishna’s Leadership It Has Only Shown Signs of Improving

    This winter, 6 months after Arvind Krishna’s tenure as CEO began, we can generally say that things seem to have improved and we look forward to further improvements



  18. Links 25/10/2020: GNU Taler's IETF Milestone, RISC OS 5.28 and New Ubuntu Community Council

    Links for the day



  19. IRC Proceedings: Saturday, October 24, 2020

    IRC logs for Saturday, October 24, 2020



  20. Links 24/10/2020: GDB 10.1, Kodachi 7.4, Wine 5.20

    Links for the day



  21. Celebrating Code of Conduct Violations

    Reprinted with permission from Daniel Pocock



  22. The Militarised Elephant in the Room Still Commands a Lot of Free Software Development

    We take a difficult (albeit in-depth and perfectly factual) look at IBM's past and present; considering this is the company that controls Red Hat (which in turn controls many key projects in GNU/Linux) we need a better understanding of the real context, not PR fluff and marketing



  23. Juve Patent's Love of Patent Trolls and Their Misinformation

    The press 'gutter' known as Juve (basically propaganda disguised as 'news' since years ago) has gotten to the point where the publisher is just an extension of lawyers and liars



  24. IRC Proceedings: Friday, October 23, 2020

    IRC logs for Friday, October 23, 2020



  25. Look How Many Tux I Give!

    "Long live rms, long live (Hyperbola) GNU/BSD, and happy hacking."



  26. Embrace, Extend, and Extensions: Two New Reasons to Delete GitHub, Which Microsoft Ruined for Everyone (Except the Copyright Cartel and Other Censors)

    GitHub is being turned into a garbage dump with malicious masters (or monsters, or mobsters); many people are denied access for using the 'wrong' browser and developers/projects are being censored (not for doing anything wrong or illegal, either)



  27. [Meme] When EPO Staff Claims to be 'Ill' or 'Sick'... During a Pandemic's European Peak

    Gotta check and verify that those 'lazy' EPO examiners aren't just faking being ill (in order to not meet "production" targets)



  28. The EPO Has Relegated or Lowered Itself to Extremely Poor Standards

    Today's EPO continues to reaffirm the image of global weakness; having failed to improve the working conditions and quality of the work (its actions did the exact opposite), it's nowadays begging China to send over lots of workload irrespective of quality or merit and it is outsourcing the functions of the Office to the United States



  29. Links 23/10/2020: Turing Pi 2, GNU Parallel 20201022

    Links for the day



  30. IRC Proceedings: Thursday, October 22, 2020

    IRC logs for Thursday, October 22, 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