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 in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2019/03/08/the-demise-of-software-patents/

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. GNU/Linux Turns 38 This Year, But the (Partly) Microsoft-Led Linux Foundation Wants You to Think It's Only 30 and a Good Friend of Microsoft

    What the Linux Foundation calls “Linux” (as its PR staff members refer to it in their new press release) is 38 years old, not 30. “Open Source” as a term did not formally exist yet, so this latest waffle makes no sense at all (the press release keeps mentioning a term that’s designed to attack and replace the original). But it’s part of a broader pattern of deception, attacking software freedom and pretending GNU never existed. Did money corrupt everything and is it too late to salvage truth, let alone freedom?



  2. Richard Stallman on Paid Smear Campaigns

    Dr. Richard Stallman on people who lie about him online (4 years after the older campaign of hate and distortion and half a decade before the current one, coordinated by groups funded by monopolies that dislike GPL)



  3. Links 22/4/2021: Grafana Goes for AGPLv3, Godot 3.3 Released, Mesa 21.0.3 Available

    Links for the day



  4. IRC Proceedings: Wednesday, April 21, 2021

    IRC logs for Wednesday, April 21, 2021



  5. Behind the Curtains of Cheap and Cheesy PR the EPO is a Machine of Oppression (Against Its Very Own Staff), Tribunal to Rule on Strike Busting

    The laughable regime of Campinos is a naked emperor with nothing but diplomatic immunity (almost not a single member of staff trusts the President) and the PR strategic front is becoming worse than pathetic; it's like the place is run by infantile career-climbing sociopaths with no qualifications, trying to weaponise a sea of money against staff, inquisitive media, and states (by bribing them or hiring lawyers to intimidate/bankrupt them); while the EPO still swims in money its reputation drowns too quickly to ever resurface, recover



  6. Links 21/4/2021: University of Minnesota Blacklisted Over Defects, Red Hat Satellite 6.9 is Out

    Links for the day



  7. Links 21/4/2021: VirtualBox 6.1.20, GCC 11.1 Release Candidate, Nginx 1.20.0

    Links for the day



  8. IRC Proceedings: Tuesday, April 20, 2021

    IRC logs for Tuesday, April 20, 2021



  9. Some People Who Asked to Be Removed From the Slanderous Hate Letter Against the FSF Are Still Being Denied Removal (But Not All)

    I am aware of some people (evidence is in the public domain for all to see) who asked to be removed from the hate list; their requests have not yet been processed, or simply denied. Maybe they should ask again. There are silent and selective changes.



  10. Overt Abuse and Mischaracterisations by Bully de Blanc

    The campaign to ruin the FSF and silence its founder, Richard M. Stallman (RMS), goes months prior to the hate letter set up by Bully de Blanc, her boss, and the Microsoft-sponsored OSI; they just attack the licence (GPL/copyleft) and they try to redefine things for the corporations which fund them



  11. According to StatCounter, This Month GNU/Linux Market Share on Desktops/Laptops Exceeded 2% (Based on Sites They Monitor)

    StatCounter does not monitor everything and not every machine connects to the Web, but in relative terms, based on the chart above, no doubt GNU/Linux continues growing relative to other operating systems (chart plotted based on the latest raw data, rendered in LibreOffice Calc)



  12. At the EPO, Lawlessness Has Become “a New Normal”

    Without as much as a real consultation with those who are impacted (by the EPO's gross infringements) the management of the EPO rushes ahead again, enjoying zero oversight, no legal review, and no accountability or scrutiny of any kind



  13. Links 20/4/2021: Tails 4.18 and Mark Surman in Mozilla's Board of Directors

    Links for the day



  14. Microsoft as a Censorship Machine Working to Undermine Free Software and Code Sharing (Also Sharing in General)

    Microsoft is, as usual, a tool of destruction rather than creation; it seems to be better at ruining things and censoring things, notably things that compete against Microsoft or pose a threat to Microsoft's business model (and close partners, such as RIAA)



  15. Phoronix Needs to Exercise Caution and Stay Vigilant/Careful of Microsoft

    Taking note or lessons from the blunder of Raspberry Pi (back in February), Phoronix should be careful of Microsoft 'freebies' as they're never free and there are strings attached, destined to alienate longtime supporters



  16. IRC Proceedings: Monday, April 19, 2021

    IRC logs for Monday, April 19, 2021



  17. Links 20/4/2021: EasyOS Dunfell 2.7.1, Phoronix Takes Microsoft 'Freebies', Microsoft Trying to Steal Credit for Linux on Mars

    Links for the day



  18. Richard Stallman on How UPC is a Trojan Horse for Software Patents in Europe

    Dr. Richard Stallman, the Free Software Foundation's founder, offers his analysis of the Unitary Patent (or UPC) and what it means for software patents in Europe now that the EPO increases its influence over continental law



  19. Technology Can Make Life Worse, Even in the Public Sector, Not Just the Private Sector

    There are growing concerns — increasingly justified concerns as a matter of fact — that customer service is universally going away and “COVID” has become the impenetrable shield or a cover in the face of facts, laws, and basic rights



  20. Links 19/4/2021: LibreSSL 3.3.2, OpenSSH 8.6, Firefox 88

    Links for the day



  21. Time to Move to Gemini, Wherever/Whenever Possible, as the World Wide Web is a Burden on Everybody

    A 30-minute rant about what the Web has become and the promise of gemini:// (designed to simplify everything, enable self-hosting, preserve privacy, and empower communities rather than military-connected monopolies)



  22. The Number of Signatures in the Anti-FSF Petition is Decreasing, Not Increasing

    A reader has notified Techrights that belatedly, perhaps where people’s job is at risk (we’ve heard of stories and situations wherein the employer’s view and a worker’s view diverge), the GNOME Foundation/OSI did in fact remove some people from the hate letter they had set up for their monopolistic sponsors. We do, however, still see some names in there of people who asked to be removed, so it must be a very selective process. They don’t want to lose face, so they must have made it very difficult to revoke one’s name. Exceptional circumstances? We have checked to confirm, based on the available archives, and indeed that number decreased since 10 days ago, whereas 6,415 people have thus far signed the support letter (it's still growing), so we’ve just re-plotted the chart.



  23. IRC Proceedings: Sunday, April 18, 2021

    IRC logs for Sunday, April 18, 2021



  24. How Many People Developed GNU (Maybe Hundreds) in the 1980s

    Dr. Richard Stallman, the Free Software Foundation's founder, explains how code was managed and contributed in the early days of GNU



  25. Links 19/4/2021: Linux 5.12 RC8, GNU Poke 1.2, EndeavourOS 2021.04

    Links for the day



  26. Proprietary Software (BT Hub) Has Ruined My Whole Day

    While we did have some plans to publish long articles, those plans were curtailed or at least delayed due to the fact our sole device at home not to be controlled by us (a so-called 'Smart' Hub from BT) decided to break itself and by doing so bring productivity to a standstill (that firmware update, silently installed without notice or any form of consent, managed to screw with the local network)



  27. IRC Proceedings: Saturday, April 17, 2021

    IRC logs for Saturday, April 17, 2021



  28. Tolerating the Intolerant and Lacking Tolerance for Opposing Views

    The person who shouted...



  29. Letter of Support for Richard Stallman - Doing Better in Community

    "How do you support someone you’ve known for years who is unfairly attacked and publicly maligned?"



  30. Richard Stallman on Rejecting Workplace Bureaucracy in the 1970s

    Dr. Richard Stallman, the Free Software Foundation's founder, explains what inspired him to get involved in non-software matters


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