Bonum Certa Men Certa

The Technical Board of Appeal Will Need True Independence to Squash Software Patents at the EPO (T 0489/14)

It totally and patently lacks that at the moment, by its very own admission

Judicial independence
Reference: Judicial independence



Summary: The EPO has been going dark and shady when it comes to abstract patents in Europe (courts reject these, but the Office still grants these); will that change in T 0489/14?

THE prestige associated with the European Patent Office (EPO) is long gone. The conditions for workers aren't attractive, the quality of the work is not high, and the experienced/talented examiners are leaving/retiring (or have already left/retired). Some people and some companies aren't aware of it yet; they're stuck in the past -- way back when the EPO was best bar none. Talicia's pursuit of a European Patent has just been noted in this new press release, but have they paid attention to the high rate of rejection in European courts (judges in effect overturning examiners' decisions)?



"The Federated European Patent Register provides information regarding the legal status of EU patents," Oya Yalvaç (DeriÅŸ Patents and Trademarks Agency) wrote yesterday, perhaps conflating the EPO with the EU (a big no-no, especially as there's no UPC). Pertinent patents are being assessed in NPOs or at the EPO, then (sometimes, in case of lawsuits) to be judged by national courts, which have repeatedly rejected European software patents, at times blasting the EPO for intentionally misinterpreting the EPC and grossly bypassing policy of European authorities. Seeing how António Campinos is flagrantly and shamelessly violating the rules, however (disclosure about this from last Friday), should we be surprised? They're so nonchalant about it. They fear nothing. They're immune.

Sadly, EPO judges still lack independence. They casually complain about this. As we noted last week, they will soon issue a judgment on software patents. Here is what World Intellectual Property Review wrote about it yesterday:

The European Patent Office’s (EPO) Technical Board of Appeal has referred questions relating to computer-implemented inventions to the Enlarged Board of Appeal (EBA).

This is the second time that questions relating to the patentability of software have been considered by the EBA, according to law firm Venner Shipley.

“Indeed, it could be the first case that the EBA actively decides on a point of fundamental importance: although the EBA considered a referral in G 3/08 (Programs for computers), it declined to hand down a decision, ruling that the referral was inadmissible,” said a release from Venner Shipley.

The law firm drafted and prosecuted the patent application, which covers an invention for modelling pedestrian movement which can be used to help design or modify venues such as a railway station or stadium.


Outside the circles of law firms' media we also see some writings from law firms directly. John Leeming (J A Kemp), for example, has just said:

EPO Technical Board of Appeal 3.5.07 has, in case T 0489/14 (Pedestrian simulation/CONNOR), referred questions to the Enlarged Board of appeal concerning what is to be considered technical in the fields of design and simulation. The cases of Designing optical systems/Philips and Circuit Simulation I/Infineon have long been cited as precedent that the design or simulation of a technical system is itself technical and eligible for patent protection. However, some more recent cases have put limits on that proposition, suggesting that the technical system must be defined with sufficient specificity and that the purpose of the simulation might also be relevant.

[...]

The Board accepted that the simulation in Connor was analogous to that in Infineon and so ought to be patentable under the reasoning of Infineon. However, the Board "is not fully convinced" by the reasoning of Infineon and the questions referred could overturn or reduce the precedent effect of Infineon.

The first question referred to the Enlarged Board seeks to test Board 3.5.07's view that "a technical effect requires a direct link with physical reality" and that it is not enough for technical character that a technical (i.e. physical) system is simulated. However, a negative answer to this question would imply that no modelling or simulation inventions were patentable.

The second question, to be addressed if the Enlarged Board considers that something more than merely simulating a technical system is required, asks what more is required. The question implies that it is at least necessary that the simulation be based on technical principles underlying the systems. This would perhaps exclude some recent cases relating economic modelling of wind farms and mobile phone networks.

The final question addresses the common fall-back position in simulation and design cases: to include a step of manufacturing or controlling something physical. This has long been thought to be a safe port of last resort, especially since the UK case of Halliburton v Comptroller-General of Patents [2011] EWHC 2508 (Pat). If the Enlarged Board were to decide that inclusion of such features is not sufficient to save a claim to a design or simulation method, a great many cases would be affected.


The problem is, Campinos has already made himself a bad reputation for tantrums, irrational firings, and probably a better masked Battistelli-like temper. Remember Judge Corcoran? He was attacked by Battistelli just before he could finalise his decision to reject a software patent of an EPO partner. How can his colleagues rule peacefully against patent maximalism? It's not the "safe" option when governed by brutes like Battistelli and his French friends.

Recent Techrights' Posts

Things to Like About London
Many important or "powerful" people leave near there
The Significance of the Timing of the Ridiculous Letters From Brett Wilson LLP, Acting on Behalf of People From Microsoft
A preliminary look at the timeline and what it tells us
 
The So-called 'IT' Industry Became Somewhat of a Fraud Where People Equate Usage and Power Wasted With "Value" or "Success"
When did 'IT' become a weapon rather than technology/science?
Links 23/02/2025: Democracy Backsliding and German Election
Links for the day
Joining APRIL(.org), AGM weekend, Paris, 15-16 March 2025
Reprinted with permission from Daniel Pocock
Links 23/02/2025: Zuckerberg Despised, US Government Does Not Obey Judges, France Grapples With Terrorism
Links for the day
Links 23/02/2025: Apple Back Doors, Ukraine Updates, and Gemini Leftovers
Links for the day
Recent Improvements in Techrights
minimalism works fine when the main goal is to relay information
Slopwatch: Brian Fagioli, Brittany Day (linuxsecurity.com), and Microsoft Misinformation, False Marketing
Serial Sloppers
Censored: Debian Zizian transgender vigilante comparisons in open source Linux communities
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 22, 2025
IRC logs for Saturday, February 22, 2025
Links 22/02/2025: OpenAI Plans to Possibly Abandon Microsoft, Facebook Doubles Execs' Bonuses While Sacking Thousands
Links for the day
Gemini Links 22/02/2025: Weekend Chill and Programming Thoughts
Links for the day
Politicians Ought to Invite Dr. Richard Stallman and Prof. Eben Moglen to Speak About Policies, Licensing, Digital Sovereignty
Is there something in Europe other than RMS' talk this coming Monday (that we're not yet aware of)?
Good Explanation of Why IBM Has Chosen to Conceal Mass Layoffs (of 'Expensive' Staff) as "R.T.O." (Even For People Who Never Worked at the Office to Which They're Ordered to "Return")
Many remaining IBM (or Red Hat) workers in Europe are in "cheaper" places such as Brno
Microsoft's Serial Strangler and Matthew J. Garrett Join Forces in Trying to Gag Techrights (for Exposing Microsoft Corruption and Crimes Against Women)
Whose terrible idea was it?
Links 22/02/2025: Labour Department Investigates Microsoft Infosys Amid Mass Layoffs, Large Law Firms Caught Red Handed With LLM Slop (Defrauding Clients and Courts)
Links for the day
Gemini Links 22/02/2025: Analog Stuff, Sigil, and SSGs
Links for the day
Microsoft's Market Share in Cameroon Falls to New Lows
This means a lot of Android users (iOS is about 4 times smaller), but Android does not mean freedom
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 21, 2025
IRC logs for Friday, February 21, 2025
The Streisand Effect is Real
So don't be evil. Also, don't strangle women.
Links 21/02/2025: Linux Foundation Openwashing, Microsoft Copilot Goes Down
Links for the day
Links 21/02/2025: Doomscrolling and European Ham Radio Show
Links for the day
Free University of Bozen-Bolzano Proud to Host Free Software Talk by Richard Stallman
ahead of Monday's talk
Slopwatch: Anti-Linux Machine-Generated FUD (LLM Slop) From GBHackers, CybersecurityNews, and Guardian Digital, Inc (Google News Promotes Slop Plagiarism, Misinformation)
Companies that lie try to drown out the signal with falsehoods
Links 21/02/2025: TikTok Layoffs, WebOS Software Patents in Bad Hands
Links for the day
Gemini Links 21/02/2025: Web Browsers, Mechanical Shortcuts, and Internet Hygiene
Links for the day
Richard Stallman 'Only' Founded the FSF
there's no reason to be upset at the FSF for keeping their founder in the Board
Techrights Disconnected From the United States Two Years Ago
Did people really need to wait for the US government to become this hostile towards the media before recognising the threat?
Before Trying Censorship by Extortion the Serial Strangler From Microsoft Literally Begged Us to Delete Pages
This is very clearly just a broad campaign of intimidation
Hype Watch: Weeks After Microsoft Disappointed Investors With "Hey Hi" It's Trying Some "Quantum" Hype (Adding Impractical Vapourware to Accompany This Hype and Even LLM Slop in 'News' Clothing)
Remember "metaverse"? What happened to media hype about "blockchain" and "IoT"?
Report About February Mass Layoffs at Microsoft (Third Wave of Microsoft Layoffs in 2025) Comes Back From the Dead
Yesterday we wrote about an article in CRN (reporting Microsoft layoffs) being removed without any reasons specified
Links 21/02/2025: Myanmar Scam Centre and Disruptions at USPTO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 20, 2025
IRC logs for Thursday, February 20, 2025