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

03.08.19

Patent Law Firms Are Truly (and Visibly) Panicking Over the Demise of Software Patents

Posted in Europe, Patents at 4:39 am by Dr. Roy Schestowitz

It has already happened in the US and it may soon happen in Europe

Iancu plea

Summary: Looks like EPO judges might soon be able to rule against software patents — a pressing matter and another fresh opportunity to set things straight in Europe (like Alice in the US half a decade ago)

THE European Patent Office (EPO) cannot help itself. Yesterday it wrote: “Tomorrow is your last chance to register for this event in Lundun, Sweden where we will address the topic of computer-implemented inventions in #Medtech with a focus on the value of patents for SMEs: https://bit.ly/2E5l03D #startups pic.twitter.com/sG6xVSbnhG” (accompanied by the same stock photography it used almost half a dozen times lately).

Notice how they add words/buzzwords like “med” and SMEs”; now there’s even “startups” as a hashtag. We remarked on these earlier this week and last week. By “computer-implemented inventions” the EPO means patents that ought not be granted and this tweet was apparently deleted later on the same day (we cannot find it anymore). The EPO was also promoting driving-centric software patents in Europe. Yesterday it wrote: “Europe and the USA have a strong lead in self-driving vehicle innovation with about 1 400 European patent applications each in 2017 alone. See how other regions performed here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/L0argQl72d”

It’s that “SDV” nonsense that we responded to like a dozen times before. Having come from that area myself, as a developer, it’s clear to me that the vast majority of these would be algorithms. “SDV” is just like “CII” or “4IR” — it’s a buzz phrase in acronym form. It’s like “AI” — a term which according to new research is being grossly misused (see our daily links). Many things that companies describe as “AI” are just ordinary algorithms and many so-called ‘AI’ startups have nothing to do with “AI” (hence the scare quotes).

We have come to the point where the EPO generally compensates for granting illegal or bogus patents by sticking misleading labels on these. The U.S. Patent and Trademark Office (USPTO) has copied some of these methods, e.g. calling software patents “AI”. Things have become rather different in the United States, where software patents are otherwise very difficult to assert in court. The patent maximalists have totally, entirely lost the plot. They’re panicking. They feel greatly irritated. Consider this new tweet from a retired attorney. That ridiculous patent maximalist, Janal Kalis, generalises; he now calls “anti-patent” anything that merely opposes abstract patents or patents on algorithms (which no software developers ever wanted) and also attributes anything against software patents to “EFF”. His tweet says: “The USPTO is seeking comments on the 2019 Revised Subject Matter Eligibility Guidelines. So far, 103/119 (87%) of the comments come from the EFF and are anti-patent. If you have another position, please send your comments to the USPTO asap: Eligibility2019@uspto.gov”

They panic. The public (not a few law firm) is talking and is now controlling the debate. Iancu (the USPTO equivalent of Ajit Pai at the FCC) cannot hide the fact that citizens of the United States oppose his plan.

How long (or how much longer) can judges be ignored, snubbed and ridiculed?

Gene Quinn of Watchtroll has returned for a day and earlier this week he pretended that the Federal Circuit (CAFC) has not adopted the SCOTUS decision on TC Heartland even though it clearly has. We don’t suppose fact-checking even matters in that horrible propaganda site, which smeared judges for merely following 35 U.S.C. § 101. This is what it nowadays boils down to. It certainly seems like the only CAFC reversal Watchtroll is able to find this week (in favour of plaintiff) has nothing to do with patents; it is about trade secrets.

This is of course encouraging. It doesn't seem as though a comeback for software patents in the US is possible (now or ever). The judges make the final call, not the attorney whom Trump put in charge of the Office (or the French/Portuguese banker whom Battistelli chose for Europe).

Here in Europe there’s an upcoming case/referral, which we wrote about thrice before [1, 2, 3] and last mentioned on Wednesday. It can, in theory or in principle, become a ‘European Alice‘ though it requires judicial independence (which is lacking).

IAM (blog) has just published, without the usual paywall that protects patent trolls from scrutiny, an outline from Philip Naylor regarding software patents. As usual, the patent trolls’ lobby pushes for (in favour of) software patents in “Patent cases in the EPO and UKIPO: different qualifications for computer software” (algorithms).

Much of the status quo gets attributed to an IBM case from two decades ago:

As a result, patents can be granted at the UK Intellectual Property Office (UKIPO) and at the EPO for inventions which involve the categories of excluded subject matter set out in Article 52. However, the “as such” qualification has also been used to limit the scope of allowable subject matter in these categories.

Over the years, the EPO and the UKIPO have developed the way in which the allowability of patent applications for computer software and business methods is assessed. The EPO has settled on an approach that gives greater certainty to applicants in comparison to other patent offices, such as the USPTO, where the law in this area is in a state of flux. The UKIPO’s approach is similar to that of the EPO, but with some subtle differences.

[...]

In 1999, two EPO Technical Board of Appeal cases, T935/97 and T1173/97 (IBM), established that claims having the form “a computer program product” and “a computer readable medium having a program recorded thereon” were allowable.

Following the IBM decisions, it became accepted practice at the EPO that software could be claimed directly. This continues to be its practice so long as other requirements (ie, clarity of the claim language and sufficiency of disclosure) are met.

In Case T931/95 (Pension Benefits System Partnership), it was held that the claims of an application must define non-excluded subject matter and be novel and inventive. The claims were directed to a method and an apparatus for controlling a pension benefit programme. The method claim referred to technical means, but was refused because it related to a method of doing business as such (ie, it did not define non-excluded subject matter).

In this case, the apparatus claims did define technical features and were not refused merely because they related to excluded subject matter. However, the apparatus claims were refused on the grounds that they lacked an inventive step because it was viewed that the differences from the prior art lay in an economic field (ie, non-technical) and hence there was no technical contribution provided by the distinguishing features of the invention. This case marked a substantial shift in the EPO’s approach to non-excluded subject matter.

[...]

In 2008 in referral G3/08, the president of the EPO referred questions regarding the patentability of computer programs to the EPO’s Enlarged Board of Appeal. After a lengthy period in which many amicus curiae briefs were filed, the board declined to answer the questions posed in the referral on a legal technicality; it was held that, since there was no divergence in existing case law, the legal requirements for the referral itself were not met.

Since then, the EPO has continued to apply the precedents set out in the Pension Benefits, Hitachi and Comvik cases, among others.

There may soon be another new precedent in the form of “simulation” software. We hope that the judges can regain their independence some time soon and rule on the matter without fear of retribution.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. OSI Did Not Guard the Open Source Brand; Now Its Own Name, Open Source Initiative, is Being 'Diluted' and “Open Source” is Almost Meaningless

    The term or the brand “Open Source” is becoming worthless because those who use it typically engage in production of proprietary software falsely marketed as “Open Source” (that's what openwashing is inherently about)



  2. Microsoft is Not an Open Source Authority But an Opponent of Open Source

    Various outlets that are closely connected to Microsoft are trying to convince us that Microsoft is now 'king' of Open Source; nothing could be further from the truth however



  3. Links 22/9/2019: KMyMoney 5.0.7, Lennart's Latest Plan

    Links for the day



  4. Summits of Open Bear Traps: The Open Core Summit and Other 'Open' Events That Actually Attack Software Freedom

    Conferences that call themselves "open" something are sometimes nothing but an attack on openness (not to mention freedom) and promotion of FUD about Free/Open Source software (FOSS); there's an ample set of examples to that effect



  5. Openwashing Report: 'Open Source' Without Any or Most of the Benefits

    The cheapening of the term "Open Source" continues; sooner or later everything out there will be called "open" irrespective of what it really is



  6. Patent Extremism is Not Normal and Not an Innocent Mindset

    Reflection upon the sad state of the European patent system and how media turns a blind eye to it; worldwide, in general, the discussion about patents is being warped by the litigation giants, whose sole goal is to maximise the number of lawsuits/shakedowns (personal gain)



  7. Links 22/9/2019: LLVM 9.0.0 and FreeBSD 12.1 Beta

    Links for the day



  8. Links 21/9/2019: Plasma 5.17 Beta in Kubuntu, Cockpit 203

    Links for the day



  9. IBM Cannot Become a True Friend of Free Software Because of Its Current Patent Policy

    IBM needs to quit bullying people/companies with software patents; that would help towards appeasement of IBM critics and sceptics



  10. When Patent 'Professionals' Sound Like Children Who Learned to Parrot Some Intentionally-Misleading Buzzwords, Myths and Lies

    With buzzwords like "AI" and misleading terms like "IP" the litigation zealots are trying to convince themselves (and the public) that software is a physical thing and a "property" which needs "protecting" from "theft"; it doesn't seem to bother these people that copyright law already covers software



  11. The European Parliament Needs to Become More Outspoken About EPO Abuses

    There are few encouraging signs in Europe right now because the EPO's disregard for patent law (striving to just grant as many patents as possible) earned it much-needed backlash from the European Parliament



  12. Links 19/9/2019: German Federal Ministry of the Interior Wants FOSS, Top Snaps Named

    Links for the day



  13. Buying the Voices of 'Linux' People to Repeat Microsoft's Talking Points While Removing Our Icons and Leaders (Calling Them Sexist)

    The dirty games leveraged by several companies including Microsoft target charismatic people who are essential for morale and leadership; these tactics aren't particularly novel



  14. When the EPO Sees Itself as Above European Law, Grants Patents in Defiance of the EPC (Its Founding Document) and Violates Staff's Labour Rights/Protections (International Law)

    The absurd state of affairs at the EPO has reached the point where laws at every level are being violated and even judges are being threatened or vainly ignored; the EU is belatedly trying to tackle these issues, which have actually cost its credibility a great deal and threaten the perception of Rule of Law at multiple levels



  15. Links 19/9/2019: Samba 4.11.0 and Kubernetes 1.16

    Links for the day



  16. Update on Koch v EPO: Internal Appeals Committee (IAC) Composition Still Likely Illegal

    An important EPO case, concerning a dismissed staff representative, shows what ILO-AT and the EPO's Internal Appeals Committee boil down to



  17. Links 18/9/2019: Fedora Linux 31 Beta, PCLinuxOS 2019.09 Update

    Links for the day



  18. Links 17/9/2019: CentOS 7.7 and Funtoo Linux 1.4 Released

    Links for the day



  19. EPO is Not European

    Internationalists and patent trolls are those who stand to benefit from the 'globalisation' of low-quality and law-breaking patents such as patents on algorithms, nature and life itself; the EPO isn't equipped to serve its original goals anymore



  20. The EPO's Central Staff Committee and SUEPO (Staff Union) Respond to “Fascist Bills” Supported by EPO President António Campinos

    Raw material pertaining to the latest Campinos "scandal"; what Campinos said, what the Central Staff Committee (CSC) said, and what SUEPO said



  21. Storm Brewing in the European Patent Office After a Hot Summer

    Things aren't rosy in EPOnia (to say the least); in fact, things have been getting a lot worse lately, but the public wouldn't know judging by what media tells the public (almost nothing)



  22. Why I Once Called for Richard Stallman to Step Down

    Guest post from the developer who recently authored "Getting Stallman Wrong Means Getting The 21st Century Wrong"



  23. As Richard Stallman Resigns Let's Consider Why GNU/Linux Without Stallman and Torvalds Would be a Victory to Microsoft

    Stallman has been ejected after a lot of intentionally misleading press coverage; this is a dark day for Software Freedom



  24. Links 16/9/2019: GNU Linux-libre 5.3, GNU World Order 13×38, Vista 10 Breaks Itself Again

    Links for the day



  25. Links 16/9/2019: Qt Quick on Vulkan, Metal, and Direct3D; BlackWeb 1.2 Reviewed

    Links for the day



  26. Richard Stallman's Controversial Views Are Nothing New and They Distract From Bill Gates' Vastly Worse Role

    It's easier to attack Richard Stallman (RMS) using politics (than using his views on software) and media focus on Stallman's personal views on sexuality bears some resemblance to the push against Linus Torvalds, which leans largely on the false perception that he is sexist, rude and intolerant



  27. Links 16/9/2019: Linux 5.3, EasyOS Releases, Media Backlash Against RMS

    Links for the day



  28. Openwashing Report on Open Networking Foundation (ONF): When Open Source Means Collaboration Among Giant Spying Companies

    Massive telecommunications oligopolies (telecoms) are being described as ethical and responsible by means of openwashing; they even have their own front groups for that obscene mischaracterisation and ONF is one of those



  29. 'Open Source' You Cannot Run Without Renting or 'Licensing' Windows From Microsoft

    When so-called ‘open source’ programs strictly require Vista 10 (or similar) to run, how open are they really and does that not redefine the nature of Open Source while betraying everything Free/libre software stands for?



  30. All About Control: Microsoft is Not Open Source But an Open Source Censor/Spy and GitHub/LinkedIn/Skype Are Its Proprietary Censorship/Surveillance Tools

    All the big companies which Microsoft bought in recent years are proprietary software and all of the company’s big products remain proprietary software; all that “Open Source” is to Microsoft is “something to control and censor“


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