03.05.19

The EPO Technical/Enlarged Board of Appeal Would, Potentially (If It Enjoyed Actual Independence), Serve a ‘European Alice’ and Eliminate All/Most Software Patents in Europe

Posted in Courtroom, Europe, Law, Patents at 10:46 am by Dr. Roy Schestowitz

Original/full (see the part about AMBA below): English [PDF] | German [PDF]

Boards of Appeal concern

Summary: For over half a decade the judges at the EPO have lacked the independence they need to appropriately govern patent scope; this is a very serious issue because it means that EPO corruption might in fact be the principal barrier in the face of software patents’ abolition

SEEING that the United States now deals (at the highest level) with copyright cases and no patent scope cases (fee shifting does not interest us much, but that can definitely imperil patent trolls), we will press on with our ever-increasing focus on the European Patent Office (EPO). It seems safe to say that nothing is going to change the status quo when it comes to software patents in the US, at least for the time being. Rather than delve into inter partes reviews (IPRs) and Federal Circuit cases (a few mentioned in our daily links this morning; US patent news has been relegated to this), patent maximalists obsess over Patent Trial and Appeal Board (PTAB) interactions with examiners regarding mere applications. Focus on what they distract from, not what they distract with. As always. Lies by omission are in law firms’ toolbox of the ‘trade’.

In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too). Florian Müller, who had campaigned against such patents a decade and a half ago in Europe, recently told me that he found these EPO tweets disturbing.

“In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too).”Team UPC and boosters of software patents in Europe (like Janal Kalis in another continent) took note of what could, in theory, become somewhat of a European Alice (35 U.S.C. § 101/SCOTUS), at least at the EPO level (not European courts, which António Campinos lacks control over). It would be very tricky for Campinos to simply ignore BoA, let alone smack some more judges in acts of overt retribution.

This is what “Patently German” (calling himself after patents) wrote a few days ago about the ‘simulation’ patent (actually a computer program):

The outcome of the referral has in my view implications far beyond simulation programs, for example also to inventions based on machine learning (ML). If you replace in the referral questions “simulation” by “machine learning process”, the same issues arise.

There can be no doubt: If the first two questions of the referral are not answered in the affirmative by the EBA, applicants of various types of computer-implemented inventions in Europe will be in trouble.

So even the software patents zealots acknowledge the importance of this referral, warning that a particular outcome could and would sweep away “various types of computer-implemented inventions [i.e. software patents] in Europe…”

“So even the software patents zealots acknowledge the importance of this referral…”I’ve come across only a few more posts/articles like the above. Certainly there are more on the way because of the possible ramifications. Coverage will, without a shadow of a doubt, be dominated by the patent microcosm. We wrote about it twice before [1, 2] (citing only the patent microcosm), noting in particular the judges’ lack of independence since the start of the term of Campinos. Even the judges admit this and bemoan this. Can they rule in defiance of patent maximalists without putting at jeopardy their job (or extension of tenure)? No, not as things stand. As “EPO Observer” put it a short while ago in this comment: “Haar has been chosen on purpose to remind the board members that they would pay the consequences of unwelcome decisions. So I expect the reminder to work and the members of the Enlarged Board to take the right (for the management decision) , confirming the lawfulness of the relocation to Haar.” Remember what happened to Judge Corcoran (hospitalisation). There are some more new comments of interest there. It’s all about the lack of the Boards’ independence and SUEPO linked to this earlier this week. The EPO has long been a dictaorship and one that violates its own rules.

The above speaks of the Enlarged Board of Appeal, but the same applies to the Technical Board of Appeal.

“If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU…”European software patents need to be buried once and for all, not just in the US but in Europe, too. If legal certainty associated with such patents gets obliterated (like in the post-Alice US), there will be no more lawsuits — or far fewer lawsuits — not to mention fewer such applications. Nobody really wants or needs patents that are duds. Even as ‘trophies’, these can be very expensive to earn and maintain. They’re hard to sell, too.

We certainly hope that the situation w.r.t. software patents in Europe might change some time soon. The sad thing is, programming gurus and habitual programmers don’t seem bothered enough to protest, let alone speak out. If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU — a subject Florian Müller has been covering a lot lately (with much impact)…

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