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03.23.19

The Unified Patent Court is Dead, But Doubts Remain Over the EPO’s Appeal Boards’ Ability to Rule Independently Against Patents on Nature and Code

Posted in Europe, Patents at 11:31 am by Dr. Roy Schestowitz

SCOTUS has handed down Alice/Mayo (now in 35 U.S.C. § 101), but European judges (internal to the EPO) lack the independence US Justices have (lifelong tenures)

Harley day in Arnhem

Summary: Patents used to cover physical inventions (such as engines); nowadays this just isn’t the case anymore and judges who can clarify these questions lack the freedom to think outside the box (and disobey patent maximalists’ dogma)

“WHAT is a patent?”

I’ve asked some people that question, seeking to find out/understand their perception of this concept. Many got it totally wrong and false analogies contribute to misunderstandings, misconceptions, miscomprehended goals.

To a patent attorney or lawyer, patents mean money. The more, the merrier. They can never have “enough!” Moreover, patent lawsuits are the best ‘products’ to sell. No wonder many of them still drool over the UPC and they generally hate Alice/Mayo .

“The UPC is unconstitutional in a lot of nations, but almost none even bothered assessing the matter.”In the United States, as we've just mentioned, courts don’t agree with the patent office. They in fact disagree quite a lot. The situation in the European Union is similar (increasingly so over time). Courts are not tolerating software patents, but the European Patent Office (EPO) allows these and the Commission keeps promoting FRAND agenda together with the EPO. It’s a gross attempt to let these patents creep in from the back door, bypassing actual courts. The same goes for the UPC, which is an attempt to replace the existing courts. The UPC is dead however. As noted yesterday, even “Nokia inhouse litigator just voiced skepticism of the Unified Patent Court materializing anytime soon in light of Brexit, German constitutional challenge, political climate in various countries for re-ratification.”

Hungary has already ruled that unconstitutional anyway. Hungarian courts rather than politicians looked into it. The UPC is unconstitutional in a lot of nations, but almost none even bothered assessing the matter.

“So the EPO disregards the law and grants patents in defiance of the EPO. Who can stop it? The Boards of Appeal? Not likely.”The lawlessness of the EPO is a really serious problem. EPO judges do not feel free to judge as they see fit. António Campinos can take them out of their job if he wishes; a colleague was already tortured after he had rejected a European software patent disguised as “medical” (but punished for allegedly passing around what many other people did too).

Yesterday, maybe for the dozenth time, the EPO spoke of “MedTech” as a semi-synonym for software patents when it published this tweet: “Businesses and commercialisation experts in the field of #MedTech should join this event” (we covered this before).

Aaron Gin and Bryan Helwig, messing around with buzzwords like “AI”, have just said there “there has been substantial growth in AI-based medical device patent applications over the last decade…”

AI-based? They mean software-based.

Here’s the New York Law Journal (“Alexa, Will I Be Able to Patent My Artificial Intelligence Technology This Year?”) — quite frankly as usual and as expected — calling such patents “AI” as recently as yesterday.

The EPO loves and adores the term “AI”; it reveres anything that gets labeled “AI” as though it’s revolutionary.

The EPO didn’t stop there. They then (also yesterday) used "blockchain" patents (i.e. bogus software patents that should not be granted) as follows (calling it a “revolution”): “Talking about a new revolution: #blockchain. We report on our recent conference on the topic here…”

So the EPO disregards the law and grants patents in defiance of the EPC. Who can stop it? The Boards of Appeal? Not likely. As we recently noted, they lack the independence they need to stop software patents.

Rose Hughes from IP Kat has just spoken about the decision/referral that can potentially end these patents once and for all. In her own words:

Article 52 EPC specifies that methods for performing mental acts and computer programs are not considered inventions. They are excluded from patentability in so far as a claim relates to excluded subject matter “as such”. Therefore, a claim directed to a computer implemented invention is considered patentable insofar as the claim causes “a further technical effect” (T 1173/97, Computer program product/IBM, Headnote). The question of the patentability of the claims is then shifted from an analysis of whether the claim is directed to excluded subject matter, to one of whether the claimed technical feature is novel and inventive (as established in T 154/04).

The EBA have previously considered a referral from the EPO President on the subject of computer implemented inventions (G 3/08, Programs for computers). Under Article 112(1)(b) EPC the EPO President may refer a question to the EBA where two Boards of Appeal have given different decisions on that question. The President at the time was Alison Brimelow. The EBA declined to hand down a decision, ruling that the President’s referral was inadmissible because the EBA found no divergence in the Boards of Appeal case law justifying the referral (Headnote 7) (IPKat post here).

In G 3/08 the EBA nonetheless reiterated the previous view of the TBA in T 1173/97, Computer program product/IBM, that computer implemented inventions are patenable insofar as they claim “a further technical effect”. This approach has been followed by subsequent TBAs and is outlined in the EPO Guidelines for Examination 2018. The Guidelines also provides examples of what is considered a “further technical effects”. Programs for processing code at low level, such as builders or compilers, for example, “may well have a technical character”.

An assessment of the patentability of a computer implemented invention is therefore dependent on a separation of the “technical” and “non-technical” features of the claim. However, making the distinction between the technical and non-technical features is not always straightforward, given the potentially complex interaction between such features.

Over at Managing Intellectual Property, Jakob Pade Frederiksen has meanwhile spoken about “[t]wo issues [that] have arisen recently causing the Technical Boards of Appeal to refer questions to the Enlarged Board of Appeal (EBA).”

“Are patents on cooking recipes next? The USPTO has some notorious patents on the making of sandwiches.”One of these issues is the independence of the Boards. In his own words: “by decision T 831/17 of February 25, an Appeal Board referred questions relating to (1) the right for oral proceedings, (2) a third party’s possible right to appeal, and (3) the venue of oral proceedings in appeal. In relation to the third issue, in particular the EBA is to consider if the president or the Administrative Council of the EPO had the powers to move the Boards of Appeals’ premises to Munich suburb Haar in 2017. In late 2016 the chairmen of the Boards of Appeal of the EPO adopted a resolution objecting to the relocation of the Boards of Appeal to Haar. At that time the issue appeared to be of a purely political nature, but now the matter is clearly becoming a legal one.”

Nicolas Marro and Bérengère Boudeau have meanwhile written about European Patents on life, noting that “the EPO practice concerning Mab sequence identity appears rather variable, all the more so given that there is no official guideline in this area. A journey through Board of Appeal decisions and examination files nonetheless enables certain conclusions to be drawn in order for applicants to be in a better position to handle examination proceedings.”

Hughes expanded on the same day, taking note of the EPO’s practice of granting patents on nature and life itself, specifically in relation to the CRISPR case. In her words:

A year ago, IPKat reported on the decision by the opposition division (OD) of the European Patent Office (EPO) to revoke the Broad Institute’s EP patent for CRISPR/Cas-9 technology (IPKat post here). Given the undeniable commercial importance of CRISPR, the Broad appealed the OD decision (T0844/18).The Broad’s Statement of Grounds of Appeal (and the Opponents’ responses) are a thought-provoking read for anyone with an interest in the concept of priority in Europe.

For a full background of the case and the EPO’s established approach to priority, see IPKat here. In brief, the OD decision for the CRISPR case was in line with the large body of EPO case law on priority. The case law states that the right to claim priority from an earlier application according to Article 87 EPC is afforded to the applicant of the earlier application and to no other party. The Broad’s CRISPR EP patent (EP2771468) was based on a PCT filing (WO 2014204729) claiming priority from a number of US provisional applications. One of the US provisionals named an inventor-applicant who was not named on the PCT application. The EP patent was thus revoked in view of an invalid priority claim.

In that same blog, a comment has meanwhile appeared which bemoans examination. “Ron” wrote:

You might be surprised at the number of unclear patents that exist! When I was a trainee UK examiner under the last days of the 1949-Act my trainer showed us a number of “Friday afternoon” patents as things to watch out for, such as claims not supported by the description, and one such was is this situation in a real infringement action I was involved in. Unfortunately, if the point is not raised in examination, it is not a ground of revocation, a lacuna in my view. This sort of thing is all the more likely nowadays. Under the 1949 Act, it was an essential part of an examiner’s duties to read the entire description to ensure it made sense. Come the 1977 Act, such detailed examination was deemed unnecessary as examiners no longer had to write detailed abridgments of the total disclosure. When patents became more “sexy”, and higher management positions in the Patent Office became progressively occupied by DTI generalists rather than examiners who had progressed up from the coal face, “efficiency” (disposing of the maximum cases in the minimum time, with salary progression determined by achieving disposal targets, regardless of quality) has become more important, meaning that policy has been to reduce the amount of intellectual examination work done by examiners. This is evident from the Manual of Patent Practice. There was even a proposal a few years ago (not adopted, at least officially) that examiners would no longer examine the description at all, but just search the claims. The post-Batistelli EPO, which used to have rigourous examination, now seems to operate on similar lines.

Thus it can be expected that practitioners will meet more unclear patents in the future.

Hughes wrote again some hours ago about another kind of ridiculous European Patents. First we saw patents on beer (this is actually being done, in relation to underlying seeds, thanks to the EPO’s greed) and now “bakers [are] seeking to protect bread-related inventions.” [sic]

Here are some jaw-dropping cases:

The broad definition of bread, and the consequent broad range of prior art, presents challenges to innovative bakers seeking to protect bread-related inventions. In the Board of Appeals decision T 1296/04, the patentee argued that their claim directed to a method for making bread, was not invalidated by prior art relating to pizza dough. Claim 1 of the granted patent (EP 0883348) in question specified a method including the steps of preparing the dough, rolling out the dough into a flat strip, cutting the strip of dough into pieces, baking the flat pieces of dough in an oven for 2-8 minutes at 250-270ºC and cooling.

The Board of Appeal found that the claim lacked novelty in view of prior art describing pizza dough. Pizza dough was considered bread despite the addition of a small amount of oil. The only difference between the claimed method and that of the prior art was therefore identified as the specified temperature range. However, the claimed sub-range was found not to be sufficiently narrow compared to the prior art range of 204-316º C.

[...]

The smell of bread, or more precisely “bread aroma” was the subject matter of granted patent EP0413368, bringing to mind the Peruvian fable The Theft of Smell. The claims of EP0413368are directed towards a method for preparing bread flour extract, particularly rye-bread extract, characterized by use of an organic solvent as an extracting agent. The description indicates that the rye-bread aroma can be used to flavour beer and other products. Thankfully, unlike in the fable, the patentee seeks to protect a process of making bread aroma, as opposed to the smell of bread itself.

Are patents on cooking recipes next? The USPTO has some notorious patents on the making of sandwiches.

These patents represent not an invention. They’re bogus patents. Also abstract ones. Since when is nature an invention? Or mathematics (laws of nature)?

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