EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

02.17.19

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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Google Bookmarks
  • Ask
  • Digg
  • Mixx
  • Slashdot
  • StumbleUpon
  • Alltagz
  • BarraPunto
  • blinkbits
  • BlinkList
  • Bloglines
  • blogmarks
  • BlogMemes
  • Fark
  • Gwar
  • Klickts

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. IRC Proceedings: Sunday, August 02, 2020

    IRC logs for Sunday, August 02, 2020



  2. [Meme] Is It Not a Layoffs Round When You Rebrand It?

    More and more Microsoft layoffs; but the media is hardly interested in reporting those and/or analysing the growing scale of the layoffs (about half a dozen rounds of layoffs this summer alone)



  3. IBM is Already Gutting Red Hat and Firing Employees Without Warning, Jim Whitehurst Isn't Even Using GNU/Linux

    The situation at Red Hat isn’t good, employee morale is very low, and yet — perhaps unsurprisingly — nobody seems to be talking about it (at least not in the mainstream media)



  4. Microsoft Lays Off Many More Workers in the Advertising Division/s and Terminates Products While the Press is Distracted by TikTok Rumours

    Microsoft is laying off a huge number of workers without properly reporting these and whilst exploring ways to divert attention away from those layoffs



  5. Links 2/8/2020: Wine-Staging 5.14, VokoscreenNG 3.0.5

    Links for the day



  6. IBM and the Bomb - Part VI: Diplomacy Replaced With 'Trade' (Money Over Politics), or How Watson Jr. Was Sold to the Public, in the Same Way His Father (IBM Co-founder) Sold His Business Relationship With Dictators Like Hitler

    Sometimes people are led to believe that corporations directly and indirectly run their country; judging by the events of 4 decades ago (IBM chief becoming the American representative in Russia/Soviet Union), this is hardly a new thing and it's not a myth, either



  7. IBM and the Bomb - Part V: Arms Control by Company That Profits From Nuclear Arms? World War II Mistakes Repeated?

    A decade after the end of the deadliest war his father died and two decades later he repeated the same mistake — the error of conflating business with politics, as if maximising revenue would miraculously achieve the best outcome for nations as well



  8. IRC Proceedings: Saturday, August 01, 2020

    IRC logs for Saturday, August 01, 2020



  9. Links 2/8/2020: Nitrux 1.3.1, Debian GNU/Linux 10.5 “Buster” and Wine 5.14 Released

    Links for the day



  10. [Meme] Privilege: When They're Born Into Money That Means They Know Everything About Anything

    Tens of thousands of nuclear weapons were in 'safe hands' because rich kid Tom was representing the United States in Russia (USSR at the time), having proven his skills by being born to the man who had met Hitler and made lots of money in the Third Reich



  11. IBM and the Bomb - Part IV: IBM's Watson Came Under Fire for Representing the U.S. in U.S.S.R./Russia With No Qualifications or Any Relevant Experience

    There was certainly resistance to "Mr. rich man" Watson Jr. becoming a US diplomat owing to privilege (born into the 'right' family) rather than experience and/or political track record, symbolising a sort of "revolving doors" phenomenon -- namely overlap between business and politics, or money and power, respectively



  12. IBM Loves Power (and Nuclear POWER, or Expensive OpenPOWER) More Than It Loves GNU/Linux

    As we noted last week, IBM is very close to Modi because it is moving a lot of its workforce to India and this can become a future liability to IBM’s reputation (or lack thereof) as a tolerant firm



  13. IBM and the Bomb - Part III: IBM's Watson Jr. Rose From Business V.I.P. to U.S. Ambassador in the Soviet Union During the Cold War (Which IBM Profited From)

    Like his father, who was IBM‘s co-founder and later president of the International Chamber of Commerce (ICC), which helped the Nazis, Watson Jr. entered US and international politics in his later days; recently-declassified documents show us his political legacy



  14. Donald Trump's Trash Against China Helps Prop up Microsoft Monopoly and Distract From All the Microsoft Layoffs

    Microsoft as a surveillance giant of the United States government isn’t a myth; it was first in the PRISM programme of the NSA (Bill Gates is a loud proponent of NSA surveillance), it took over European Skype under mysterious circumstances, and now it might be getting TikTok as a ‘gift’ from Donald Trump’s friends and the imperialists, in effect confiscating Chinese assets for full-spectrum dominance



  15. [Meme] Testosterone Patent Office

    When you're running an office that's barely diverse at all and you paint a misleading picture of it expect backlash



  16. The Criminals Who Run the EPO Are Exploiting Lesbian, Gay, Bisexual and Transgender People to Distract From Their Corruption and Crimes

    The misuse of social justice causes by corporate interests has become grotesque; more people ought to speak about the ramifications and object/work against this misuse, which mostly serves to obscure or distract from the biggest issues



  17. EPO Workers Are Losing Their Homes and Losing Their Time Off; It's All About So-called 'Production'

    As another wave of attack on labour rights, European Patent Office (EPO) workers turn their homes into their workplaces and they no longer enjoy any real breaks from work (they work all year around, sometimes until midnight and overnight); they’re supposed to be thankful and even happy as if António Campinos does them a favour by not firing them (at least not yet) and because there’s a health crisis they should be grateful for anything thrown at them (Benoît Battistelli + disaster = Campinos)



  18. IRC Proceedings: Friday, July 31, 2020

    IRC logs for Friday, July 31, 2020



  19. Managing IP Still Champions Fake 'News' for Team UPC

    Managing IP does not care about its reputation; all it cares about is appeasing its clients by spreading falsehoods and perpetuating baseless hope



  20. Links 31/7/2020: Sys Admin Appreciation Day, GTK 3.99, Alpha of Wayland's Weston 9.0

    Links for the day



  21. IRC Proceedings: Thursday, July 30, 2020

    IRC logs for Thursday, July 30, 2020



  22. Microsoft Banned *GPLv3 (It Would Have Done the Same Even in GitHub Had GitHub Not Already Hosted GPLv3-Licensed Projects)

    Techrights reproduces this decade-old article from RMS



  23. People Who Believe Global Warning is a 'Hoax' Are the Types Who Might Think Microsoft Really Loves Linux

    Facts don’t seem to matter all that much when the Public Relations ‘industry’ pays to push lies (and “Microsoft loves Linux” is among those truly laughable lies, which are valuable to Microsoft's long-term objectives and are therefore repeated endlessly in the media for maximal effect)



  24. [Meme] GitHub is Not About Sharing But About Giving... Everything to Microsoft

    Microsoft wants to meet your ‘meet’ (meat) and assimilate it as Microsoft’s own; why would anyone still be giving anything (code, bug tracker, CI etc.) to proprietary and centralised (controlled by Microsoft) platforms in 2020? It’s a trap, as even the logo serves to suggest (octopuses putting their tentacles all over you and crushing you with their mouths).



  25. Bill Gates Calls the Chinese 'Pirates' (But He's Simply Projecting Again)

    The world's "most generous" person (according to publishers whom this "generous person" pays to write this) is saving the world from "pirates" (but not the ones in Somalia, just poor people in places like China)



  26. Microsoft Needs Linux (More Than GNU/Linux Needs Microsoft) for the Same Reason a Drowning Person Needs 'Revenge'

    There’s this persistent notion, based upon a deliberate lie (which Microsoft pays the media to perpetuate), that Microsoft has ‘come around’ and magically learned to “love” the competition (as if Ballmer and Nadella are opposites when they’re in fact friends and longtime colleagues); it’s obviously just a phase of a very old strategy and some out there are still in denial about it (this denial is being encouraged by the bribed publishers, notably the mainstream media)



  27. [Meme] It Was Only a Matter of Time All Along

    Taking boot level control away from computer users was a bad idea all along; giving Microsoft control over Linux booting was the icing on the cake (having to ask Microsoft for certificate/permission), not to mention an FSF award for it



  28. IBM and the Bomb - Part II: How IBM Sneaks Into Positions of Power (and Nuclear Power, Global Superpower, Nuclear Weapons)

    We remind readers of the role IBM played in unbridled armament (from which it profited a lot) whilst also picking diplomatic roles in the American government



  29. Karma or Hubris? Is #TorvaldsWasRight a Thing Now?

    Techrights did not forget how UEFI 'secure' boot came into kernel space; This proposal came from Red Hat and then foisted/pushed onto Linus Torvalds by at least 3 Red Hat employees (the mainstream media blasted Torvalds for his response to this 'offensive' technical move by Red Hat, helping Intel and Microsoft control silicon at CA level)



  30. Links 31/7/2020: New Thunderbird and FreeBSD Foundation, Now 20, Has Got a New Look

    Links for the day


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