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03.14.19

The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

Posted in America, Europe, Patents at 9:01 am by Dr. Roy Schestowitz

Examiners play a game of Whack-a-Mole against a surge of abstract patent applications

Whack-a-Mole

Summary: Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom

In lieu with 35 U.S.C. § 101/Alice (SCOTUS), the USPTO can’t quite grant patents on algorithms (but it does anyway). In lieu with the EPC, the EPO must reject all software patents in Europe. António Campinos promotes surrogate names for these. Here is a new example from earlier today (just a few hours ago). This EPO tweet says: “What impact do you think fourth industrial revolution technologies such as #AI and #blockchain will have on the #patent system? Tell us by tomorrow…”

“One just needs to pick the glorified (buzz)words and mislead examiners with fancy terms.”The EPO uses three different buzzwords and hype waves to promote verboten patents without saying the words “software patents” (it’s illegal). 4IR, AI and blockchain would be anything with algorithms (code), database (information system) and so on. One just needs to pick the glorified (buzz)words and mislead examiners with fancy terms. They lack the time needed to assess and come up with grounds for rejection.

What will happen when such patents are presented in court with well-funded opposition to them? This is already happening in the US. “When Software Patents are continually invalidated at court – that says it all,” said this one person. “Europe will be next (to see software patents dying by the hundreds of thousands after the EPO granted these),” I replied to this person. As it turns out, based on yesterday’s figures, 80% of lawsuits or “4 of the 5 patent suits filed yesterday were filed by patent trolls…”

Josh from the CCIA quoted Iancu as saying that the new 101 guidance is “working well at the PTO.”

“If your guidance works well at the PTO,” Josh remarked, “but the issued patents might not hold up in court… is that good guidance?”

“Iancu comes from a law firm where it is all about money rather than justice,” I responded. This is what also happens at the EPO right now. They vainly vilify/disregard judges and try to control judges (even by deterrence). Thankfully, as shown below, even the EFF nowdadays points that out, as we noted yesterday.

Related/contextual items from the news:

  1. The Patent Office Can’t Ignore Law it Dislikes

    The Patent Office’s new guidance cites a handful of Federal Circuit decisions in support of its approach. But it ignores countless cases in which the Federal Circuit has rejected ineligible abstract ideas that the Patent Office will now almost certainly approve, and it ignores key aspects of Alice itself.

    The Patent Office has no authority to ignore case law it dislikes. With your help, we will keep fighting to ensure the patent system promotes innovation by limiting patent grants to actual inventions.

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