02.02.19

Gemini version available ♊︎

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. The Corporate Coup Against the Soul of the Free Software Community Is Not Over

    The erosion of community role in the development of GNU/Linux is a growing problem; part of the problem is that large corporations target technical and philosophical (perceived) leaders in coordinated smear campaigns, led by media they own



  2. IRC Proceedings: Friday, September 24, 2021

    IRC logs for Friday, September 24, 2021



  3. Links 24/9/2021: GNU Coreutils 9.0, BattlEye GNU/Linux Support

    Links for the day



  4. [Meme] 'Linux' Foundation is Greenwashing Microsoft Again, Misusing the Linux Brand Like Nobody's Business

    Microsoft has weaponised the Linux brand to dub a toxic company like itself (helping notoriously polluting companies and generating lots of waste, both directly and through planned obsolescence, inefficient software, DRM, etc.) as "green"



  5. Richard Stallman to Speak (in Person) in Poland, Dedicate the Talk to Medical Professionals

    Days after his talk in Ukraine Richard Stallman plans to do the same in Poland (just announced)



  6. Links 24/9/2021: 30 Years of Europe’s First Root Name Server, Repairability of Laptops Discussed

    Links for the day



  7. ZDNet Has Failed

    ZDNet is on the decline and its demise appears to have greatly accelerated in recent months; we take a quick look at this month's coverage and explain the conflict of interest (it's PR, not news, and it's far too shallow/blatant to simply overlook)



  8. [Meme] Some People Are Just Above the Law

    A lot of people are still flabbergasted or at least baffled/miffed to discover that some people are in effect above the law; not even Europol and Interpol can apprehend and hold them accountable; that needs to change. Had Benoît Battistelli worked for France Télécom S.A. (not the EPO), would he be arrested? What about António Campinos and his drunk son?



  9. NPR and PBS, Both Funded by Bill Gates, Try to Save Him

    Bill Gates continues to corrupt the media and corrupt social control media (such as Twitter) using his money



  10. The EPO Must Forsake Its Diplomatic Immunity and Quit Pretending It's About Patent Law (or Any Law)

    There's no sign of the EPO actually trying to obey the law and correct the mistakes of the past; to make matters worse, the existing administration adds yet more corruption to an already-massive pile while dismissing any form of oversight



  11. IRC Proceedings: Thursday, September 23, 2021

    IRC logs for Thursday, September 23, 2021



  12. Links 24/9/2021: Ubuntu 21.10 Beta, Istio 1.11.3, and More Milestones for Steam Deck

    Links for the day



  13. [Meme] President Campinos Addresses the Legacy of Battistelli's “Strike Regulations”

    A sequence of four EPO memes about those infamous and unlawful “strike regulations” that Benoît Battistelli and António Campinos have exploited to abuse thousands of workers



  14. [Meme] Bill Gates Keeps Digging Himself Deeper in the Grave Each Time He Speaks

    These sorts of ‘interviews’ with Gates’ own propaganda mills (he also pays Twitter now) aren’t going to improve his image; people aren’t infinitely gullible (Source)



  15. Linux Foundation and Other 'Diploma Mills' Say There's Demand for Their Products in Their New 'Research' (Marketing)

    The so-called ‘Linux’ Foundation (LF), together with edX, are basically marketing their services and products, but this is disguised as 'research' (a false narrative widely parroted by shallow and paid-for media partners of theirs), piggybacking brands like “Linux” and buzzwords like “Open Source” (even when they promote proprietary things, e.g. memorisation of proprietary GUIs)



  16. [Meme] The EPO's Carte Blanche and 'Diplomatic Immunity' Card

    EPO staff is being taken for another ride by António Campinos and his cohorts, whose popularity among staff has likely gone down to sub-zero levels already (even faster than Benoît Battistelli)



  17. As Expected, Minimal Pseudo Compliance From EPO Management, Adding Insult to Injury

    SUEPO Central, the core of the staff union of EPO staff (almost 7,000 workers at the EPO, most of whom are SUEPO members), has strong words about the EPO's attitude and stance, which is perhaps unsurprising but still extremely disappointing



  18. Links 23/9/2021: PostgreSQL 14 RC 1 and MidnightBSD 2.1

    Links for the day



  19. Links 23/9/2021: More UPC PR Stunts and IBM (Poettering) TPM for Linux

    Links for the day



  20. The EPO is on the Run (Escaping Negative Press Coverage)

    Aside from tens of millions of euros granted to media and academia (to keep them complicit or silent about EPO corruption, which also implicates the EU) there’s also SLAPP and threats against staff representatives; but Members of the European Parliament are becoming interested in what’s really going on in Europe’s second-largest institution, so this utter waste of EPO money (manipulating the press and gaming universities’ research) might in itself become a scandal sooner or later



  21. [Meme] Lowering the Standards...

    It's time for another round of fluff at the EPO, this time without even travelling (PR-over-'ViCo')



  22. Gemini HTTP/HTML/Web Proxies and Self-Hosting Your Own Proxy

    Gemini protocol (gemini://) and the fast-growing Geminispace (expected to exceed 2,000 known capsules by year’s end, in effect quadrupling in a single year!) are possible to access using Web browsers, at least for those who do not have Gemini clients/browsers just yet; today we examine and give an outline of the options



  23. IRC Proceedings: Wednesday, September 22, 2021

    IRC logs for Wednesday, September 22, 2021



  24. Links 23/9/2021: GNU Parallel 20210922, Moroccan Propaganda From EPO

    Links for the day



  25. Links 22/9/2021: Google 'Upstream First' in Linux and New Maui Report

    Links for the day



  26. Links 22/9/2021: Mesa 21.2.2, GNOME 41 Released

    Links for the day



  27. Socially- or Corporate- or Centrally-Controlled Surveillance, Censorship and Throttling is Not Media

    The 'social control media' situation is getting out of hand; in YouTube, for example, there's a broad revolt against strict editorial control by Google and in Twitter it seems like ordinary users aren't shown so much to people who actually "follow" them



  28. Links 22/9/2021: Panfrost's OpenGL ES 3.1 Conformanc and NovProg 3.2.0

    Links for the day



  29. IRC Proceedings: Tuesday, September 21, 2021

    IRC logs for Tuesday, September 21, 2021



  30. Agents of Monopoly: WIPO is Lobbying for or Reinforcing Microsoft Monopoly by Pushing Its Proprietary Software and Formats

    The World Intellectual Property [sic] Organization — like the EPO (where António Campinos outsourced IT systems to Microsoft) — is choosing the most notorious/corrupt ‘tech’ ‘company’ (cult) instead of open standards and, as the links above show, this is nowadays done inside the United States and outside the United States as well, raising legal questions/ire


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