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

Why the Microsoft People Who Started SLAPPs Against Techrights Could Very Well be Sent Back to Prison
White-collar crime is also a crime
 
Will Microsoft Once Again Choose Its Favourite Liar to Spread Lies About Today's Layoffs, Quickly to be Replicated and Spread by Slopfarms?
What lies is Microsoft briefing its media moles to tell today?
"OSS Fetishism" Wins After Ferenc Zsolt Szabó Ousted (Microsoft Mole From Capgemini)
Many people said 2025 would be the "year of Linux on the desktop"
There is Nothing That LLMs Can Offer Honest People
LLMs are a passing fad; they're expensive and offer poor "value" for energy; they usually offer no value at all unless you are a cheater, spammer, and liar
What statCounter Shows Today Helps Explain Microsoft's Helplessness, Mass Layoffs
Since many US journalists are already away on holiday almost nobody will dare ask the difficult questions or give a voice to whistleblowers
Microsoft Gets the Chop in South America
The notion of digital sovereignty gained a lot of popularity
Europe Has an 'Exit'
Let's see what happens the rest of this year
El Presidente Talks, Canada Walks (Away From Windows)
GNU/Linux rising
Cities in France and Germany Move to GNU/Linux and statCounter Detects Big Differences
Will governments lead by example?
Microsoft Lost Its Foothold in Africa
How many of these are "old" Windows machines converted to GNU/Linux? Probably a lot.
Led by Europe, GNU/Linux Makes Big Gains This Month
statCounter started showing new/fresh stats
Links 02/07/2025: Massive Microsoft Layoffs About to Commence, "Tesla's Robotaxi Program Is Failing"
Links for the day
The Company Run by Former (and Last Proper) Red Hat CEO, Promoting Microsoft Mono, Faces Shock as Senior Partner Jailed for 33 Sexual Offenses Including Pedophilia
"As reported by The Oxford Mail in April 2025, the offenses include rape, sexual assault, engaging in non-penetrative activity with a child, and more."
Microsoft Lost 29% of Windows Users, Based on Microsoft, Now Come Massive Layoffs
Microsoft collapse is today
Slopwatch: Google Serves to People Linux Slop and Linux FUD (Made by Bots)
"Slopwatch" finds it difficult to ignore Google's role in encouraging LLM slop
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 01, 2025
IRC logs for Tuesday, July 01, 2025
"Wayland People" Behave Like the Googles and Microsofts of This World
Published yesterday by Igor Ljubuncic
Gemini Links 02/07/2025: Arch Linux and Fulfillment in Gemini
Links for the day
Links 01/07/2025: "Independence Day in Taiwan", Bounties on Software Patents
Links for the day
What Happens When Your Law Firm is Preoccupied With Harassing and Trying to Extort a Humble Couple in Manchester, Even on Behalf of Violent Microsoft Staff From Another Continent
It's good to see that law firms which operate in bad faith are perishing
Lawyer X, Law Firm X and Elon Musk's X: scandals linked by Old Xaverian
Reprinted with permission from Daniel Pocock
Gemini Links 01/07/2025: Distraction-Free Writing and Hytale Mismanagement
Links for the day
Links 01/07/2025: "Beauty of Blogging" and "Etiquette of Collapse"
Links for the day
Microsoft Uses LLM Slop to Defraud (or Rob) Shareholders
Microsoft is basically defrauding its shareholders by LLM slop
The Web is a Dead End
We need to adopt alternatives
When Words Lose Their Intended Meaning
examples of words that, at least in the technical spheres, don't mean what they sound like
People Who Disagree With You on Technical Matters May or May Not Agree With You on Political Things (But Usually They Do)
What bothers me a great deal is seeing left-leaning people accusing other left-leaning people of being "nazis"
"Too Much Choice" and "Too Many Programming Languages"
What IBM and its apologists aim for was attempted in the 1930s and it failed
Microsoft Lost 400,000,000 Windows Users, According to Microsoft
more people adopt smaller computers and many people replace Windows with GNU/Linux, as they don't really need a new computer
The "Davos Effect": Tarnishing the Reputation of Places Not by Overtourism But by Oligarch Infestation
The last Venice needs is an affiliation with Venetian oligarchs
Half a Year Gone, What's to Come Next
In the second half of 2025 we expect to be done with the Microsoft SLAPPs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 30, 2025
IRC logs for Monday, June 30, 2025
People at the Very Top of Microsoft Know How Bad Things Really Are
There's no product that can replace the former profitability of Windows licensing and stuff that went on top of Windows
Gemini Links 01/07/2025: Mid Year and a Tour of Old Languages
Links for the day
EPO Presentation Bemoans Misuse of Slop in Decision-Making on Patents and in Classification (Which is Likely Illegal Too)
We habitually mention failed use cases of LLMs on the Web
Mass Layoffs at Microsoft Confirmed, "XBox Hardware Is Dead"
It's possible that over 20% of the staff will be laid off
Links 30/06/2025: Kyrgyzstan vs Media Freedom, Dalai Lama Succession
Links for the day
Gemini Links 30/06/2025: Backend Programs in Gemini and Dynamic Content Without The Scripting
Links for the day
Links 30/06/2025: Zuckerberg’s Tax-Evading Scheme Harms Kids, US Copyright Office Lacks Leadership
Links for the day
Microsoft Isn't Laying Off Tens of Thousands to 'Invest' in Slop ('Hey Hi'), It's Laying Off Tens of Thousands Because It's Running Out of Money (and Willing Lenders)
the layoffs are a sign of the business failing, not "hey hi" (whatever that is) replacing staff
Intel Lays Off 20% of Its Workforce, Microsoft is Doing the Same This Year
Like a yoyo, whatever goes up will come back down
Microsoft XBox Layoffs: Almost 2,000 Layoffs Became "Over 2,000"? (Over 20% of the Staff)
over 20% of staff will be let go, not counting staff that leaves voluntarily
GNU/Linux Rises to New Highs in Angola, Africa in General is Abandoning Windows
Western media barely covers Microsoft layoffs in Africa, but in recent years Microsoft culled the workforce and even shut down entire operations
Summer Plans in Techrights and Elsewhere
massive layoffs at Microsoft
Destination Geminispace (in the Age of LLM Slop and Slop Images That Infest the Web and Social Control Media)
Geminispace isn't vast, but at least it is - on average - a lot "cleaner"
GNU/Linux Growing in Sierra Leone This Year
Based on what statCounter is seeing, this year there are more and more people there who adopt GNU/Linux
Serial Sloppers Gonna Slop
More sites out there ought to call out the cheaters
Quartz (qz.com) is Spam and a Slopfarm
It used to be OK. Then they fired the staff.
Links 30/06/2025: US Economic Woes, Extreme Heat
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 29, 2025
IRC logs for Sunday, June 29, 2025
Gemini Links 30/06/2025: "The AI Hype" and New AuraGem Ask
Links for the day