02.17.19

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Courts in Disagreement: Warning on Wrongly-Granted European Patents and the Looming Collapse of All Software Patents in Europe

Posted in Europe, Patents at 5:07 am by Dr. Roy Schestowitz

Similar to what happened owing to 35 U.S.C. § 101/Alice (SCOTUS). Many patents granted by the U.S. Patent and Trademark Office (USPTO) for a number of decades turned out to be worthless. Litigation numbers completely collapsed and even the number of applications is decreasing.

Abandoned pier

Summary: By devaluing patents and reducing their perceived worth (as is happening in China and Europe) patent offices risk decreasing participation in the very system they fundamentally depend on

INCLUDED in our daily links, lumped together for brevity, are some of the latest patent cases and their outcomes in the US. They show that patents granted by the U.S. Patent and Trademark Office (USPTO) continue to perish (be thrown away by courts) at all levels, not just the Federal Circuit. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) also persist as usual. The danger is that the same is already happening to the European Patent Office (EPO) and people are gradually realising it. Companies might divest. We wrote about it yesterday.

“…when such courts do blast the EPO (for misinterpreting the EPC) the EPO just simply ignores it, just like Iancu at the USPTO.”Yesterday we saw this new Regeneron press release about Immunex/Amgen (e.g. in PharmiWeb). Many patents are nowadays being granted in error, also by EPO examiners who were traditionally a lot better. Once there’s a lawsuit or a challenge here’s what happens increasingly and more frequently (we covered many more similar examples earlier this year):

Today the European Patent Office invalidated Immunex’s European patent claiming antibodies that target human IL-4 receptors (IL-4R)

Decision follows yesterday’s ruling by the U.S. Patent & Trademark Office invalidating a similar Immunex patent claiming antibodies that target human IL-4R

Regeneron Pharmaceuticals, Inc. (NASDAQ: REGN) today announced two important legal developments invalidating Immunex patents with functional claims to antibodies that target human interleukin-4 receptors (IL-4R). Earlier today, the Opposition Division of the European Patent Office (EPO) revoked Immunex’s European Patent No. 2,990,420 in its entirety because the claims were invalid for insufficiency of disclosure. This follows a decision yesterday by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office (USPTO) to invalidate all 17 claims of Immunex’s U.S. Patent No. 8,679,487 as obvious. These decisions are subject to appeal by Immunex.

The patents in question are owned by Immunex Corporation, which is wholly-owned by Amgen.

Sooner or later companies like Immunex/Amgen might simply decide to no longer pursue European Patents, seeing that these sometimes lack legitimacy and cost a lot of money in legal bills (not just application/renewal). Those should be the lessons learned from the USPTO’s failings. What happens in the US right now is despicable because a Trump appointee tries to change all that by breaking the law while patent maximalists are bypassing the law and dodging 35 U.S.C. § 101 so as to get software patents that courts would reject anyway. A new ‘webinar’ entitled “The USPTO’s Updated Guidance on Section 101: Adjusting Your IP Evaluations for Maximum Protection” has just been promoted by Patent Docs. This isn’t about law but about working around the law. Director Iancu turns out to be even worse than David Kappos, whose former employer, IBM, is pushing for software patents in Europe under the guise of “AI”. What would courts in Europe have to say about such patents?

Well, on the 6th of February J A Kemp published this “Review Of Software Patent Appeals At The EPO 2018″. From the section about algorithms:

Inventions in the field of computer science can in some cases derive technical character from the technical nature of the data being processed, and in other cases, from a technical improvement in processing data independently of the nature of the data itself. However, inventions where the data is too abstract, or is non-technical in nature, can fall between these two categories.

Thus, it is instructive to contrast T 2707/16 (Dynamically generating multiple hierarchies/MICROSOFT TECHNOLOGY with T 0841/16 (Business rule interface/AB INITIO). The latter case concerned a graph-based system for editing and compiling business rules where neither the nature of the data nor the alleged advantage of improved editing were considered technical. In the former case it was held that “the use of caching for dynamically generated data (i.e. the data polyarchy) with an authoritative store is a technical concept that serves as a compromise between higher scalability and fast response times for query processing on the one hand and freshness of the data on the other hand and that this goes beyond the notoriously known use of caching in general. Consequently, the Board considers that the claimed implementation achieves the technical effect of higher scalability of query processing on a server by means of a particular application of caching which reflects further technical considerations.” The claims at issue, which were remitted for further prosecution, did not specify the nature of the data being searched.

Independence of the nature of the program being executed also contributed to technical character in T 2052/15 (Asychronous antivirus processing/KASPERSKY) where an increase in the responsiveness of a computer by using computing resources in an asynchronous manner was considered a technical solution to a problem.

A rare case of the implementation of a non-technical method being considered technical is T 2330/13 (Checking selection conditions/SAP). This concerned a method for checking whether selected options for a “configurable product” (e.g. a car) are consistent before manufacture. The Board considered that the term “configurable product” did not confer technical character because it did not exclude non-technical products, such as insurance policies. However they did consider that “the specific claimed bit (sub-)matrices, bit strings and steps of the method, especially those of splitting the bit matrix, forming bit strings representing the selection and restriction conditions and determining inconsistent pairs of selection conditions when performed by parallel processing, do contribute to the technical character of the invention and should be taken into account when assessing inventive step.” The case was therefore remitted for further prosecution.

Given that computer programs are considered non-technical, it is perhaps not surprising that even higher abstractions such as programming languages and systems for assisting programmers have been rejected. In 2018, examples include T 0790/14 (Programming language construct/MATHWORKS), a programming language for mathematical operations; and T 2497/12 (Java RMI integration/MATHWORKS), a system for integrating programs in different languages.

Software patents are not permitted in Europe. So Strafford will train people or teach people how to pretend algorithms are “AI” (for the EPO to let them slip in). A post titled “Webinar on EU Guidelines for Patenting AI and Machine Learning Technologies” was published several hours ago by Patent Docs, whose majority of posts are nowadays these ads, not actual articles (all the patent maximalists’ blogs have become mostly or entirely dormant because they’ve lost the argument). Here’s what it says:

Strafford will be offering a webinar entitled “New EU Guidelines for Patenting AI and Machine Learning Technologies: Comparison With U.S. Approach — Navigating EPO and USPTO Rules to Maximize Patent Protection” on February 26, 2019 from 1:00 to 2:30 pm (EST). Aliza G. Carrano and Susan Y. Tull of Finnegan Henderson Farabow Garrett & Dunner will guide patent practitioners in overcoming the challenges when seeking patent protection for artificial intelligence (AI) or machine learning (ML) inventions, examine the new guidelines from the European Patent Office (EPO), and compare the EU approach with the U.S. approach.

So their strategy is to basically pretend algorithms are “AI” (buzzword) or “ML” (an actual technical term, albeit often misused and still alluding just to software). We recently wrote about how EPO management admitted it was granting software patents under the guise of "Blockchain" (also a technical term, albeit often misused). The USPTO does the same thing (“Blockchain-based Patents”). These fake patents are abstract patents that courts would throw out everywhere but China perhaps. Media, nevertheless, pays a lip service to these and days ago an article was published by Mareesa A. Frederick and Alyssa Holtslander (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) to promote “IoT” (buzzword), admitting that “IoT patents will contain claims directed to computer-related methods of gathering data” (so they admit/concede these to be abstract patents). Large litigation firms are leveraging made-up buzzwords and hype like “AI” or “IoT” in an effort to justify patents on all the foods and associated processes. Abstract ideas? Yes. They even admit so further down in the text:

Another important consideration is patent eligibility. In order to obtain a patent, a patent must claim eligible subject matter. Laws of nature, natural/physical phenomena, and abstract ideas are not considered subject matter that is patentable. For example, one cannot obtain a patent claim on the law of gravity.

Patent eligibility is particularly important for inventions for computer-related technology. Abstract ideas that are implemented on a computer may not be considered subject matter that is patentable. The underlying concern is that companies will seek to obtain patents for well-known methods and systems by merely using a computer to implement them.

Because IoT patents will contain claims directed to computer-related methods of gathering data, subject matter eligibility might be an issue for IoT inventions. Notably, the Supreme Court recently held that patents directed to electronic methods and computer programs for financial-trading systems did not claim eligible subject matter.

It’s obvious who’s going to suffer the most from such patents; small companies cannot quite afford a legal challenge and might simply settle instead.

There’s a timely new example of it in the media (published a few days ago). “A “patent troll” has filed suit against U.S. Safety Gear, a small business with 95 employees in 13 locations, including one in Leavittsburg,” Warren Tribune Chronicle wrote in “‘Patent troll’ files suit against small business” (as trolls so typically do; they attack the weak). Are small companies in Europe going to suffer a similar fate because of the EPO’s granting of software patents? Some are already reporting such abuse, yet they cannot take the matter to sufficiently high courts; when such courts do blast the EPO (for misinterpreting the EPC) the EPO just simply ignores it, just like Iancu at the USPTO.

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