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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.

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