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04.04.19

The Staff Union of the European Patent Office (SUEPO) Warns About the Granting of Tens of Thousands of Invalid European Patents Every Year

Posted in Europe, Patents at 6:34 am by Dr. Roy Schestowitz

Even the examiners admit this

EPO delivery
Campinos Presidency, 9 months and no delivery. Published Tuesday by SUEPO, the staff union of the European Patent Office (EPO).

Summary: Patent maximalists who measure “success” in terms of the number of granted patents while diminishing patent scope/restrictions have turned what once was a source of pride for examiners into a rubber-stamping operation

WE HAVE SEEN the effect of it at the U.S. Patent and Trademark Office (USPTO); decades of bad patent grants (e.g. software patents that had been granted) were dropping like flies at the Federal Circuit and Patent Trial and Appeal Board (PTAB) (through inter partes reviews (IPRs), i.e. without even a lawsuit necessarily being filed). It’s not just 35 U.S.C. § 101 but also § 102 and § 103 that came into play (we have seen some new examples this morning, but we don’t wish to delve into finer details this year).

“We wish to gently remind all kind examiners around the world that buzzwords do not magically render algorithms patent-eligible.”The same thing is nowadays happening at the EPO, as António Campinos keeps promoting software patents in Europe (under the guise of “AI” and similar buzzwords). What gives? Where does it end?

Having posted it in Watchtroll first (we mentioned it in passing earlier this week), this law firm from the US is now promoting software patents disguised as “AI”, alluding to “EPO And USPTO Guidance” (loopholes):

“The extra attention that the EPO and USPTO are paying toward AI and ML will likely help swing the pendulum of patentable subject matter toward a place that is in harmony with the current state of technology.”

It is safe to say that Artificial intelligence (AI) and Machine Learning (ML) are hot topics and, as with any rapidly growing technological area on the industry side, there is also a rapidly growing number of patent applications being filed.

In view of this, the European Patent Office (EPO) issued new guidance for examination for AI and ML patent applications in November 2018. Meanwhile, in January 2019, the U.S. Patent and Trademark Office (USPTO) also issued revised guidance directed to what constitutes patent eligible subject matter under 35 U.S.C. §101. Although the USPTO’s revised guidance is more generally directed to software applications, at least one of the accompanying hypothetical examples (Example 39) is directed to the AI and ML space.

Those are, admittedly (even the patent maximalists admit this), software patents. It’s all about algorithms. Those are the patents which trolls love the most, for various tactical reasons. Most lawsuits in the US still come from patent trolls that develop nothing at all and never did anything at all (maybe bought a bunch of patents in an auction). Some days 90% and above (or 100%) of US patent lawsuits come from these trolls and earlier this week it was ‘merely’ a majority.

We wish to gently remind all kind examiners around the world that buzzwords do not magically render algorithms patent-eligible. Nowadays everything is “AI”, “cloud”, and “smart” if there’s some code, a server, and an Internet connection (respectively). Recently, WIPO has been repeatedly misusing the “AI” hype to promote illegal software patents. It even issued a report to that effect. Another thing that the EPO and WIPO have in common is this bunch of self-serving ‘studies’ (WIPO does a lot of what the EPO does to staff). This morning we saw WIPO misusing the “AI” buzzword (or phrase or acronym) to describe algorithms for imprints or signatures of images (these would not work for large, vast datasets, but it’s buzzwords that count). A new article by J A Kemp also speaks of new collaboration between the EPO and WIPO. Both are promoting the lie that success can be measured by the overall number of patents (an infamous fallacy) and to quote:

As reported previously here, the EPO has been participating in WIPO’s Digital Access Service (DAS) for the exchange of certified copies of priority documents since 1 November 2018. DAS allows for certified copies of priority documents to be exchanged electronically between the various participating patent offices, a complete list of which can be found here.

The EPO’s initial implementation of DAS did not extend to international (PCT) applications filed at the EPO as receiving office. However, the EPO recently announced here that from 1 April 2019 it would be extending its participation in DAS to such international (PCT) applications.

This development means that when an international (PCT) application is filed by online filing with the EPO as receiving office, the EPO (as “office of first filing”) will automatically generate a DAS access code in the online filing receipt. Subsequently, the DAS access code can be used when filing a priority-claiming patent application at a DAS-participating patent office (i.e. an “office of second filing”), to allow the patent office in question to obtain a copy of the international (PCT) application from the EPO. Thus, in the rare case where a patent application is filed at an “office of second filing” claiming priority from an international (PCT) application filed at the EPO as “office of first filing”, the “office of second filing” can use the DAS code generated by the EPO to access a copy of the priority application from the EPO.

At Vantage Asia, Swati Gupta, who an associate at LexOrbis (big boosters of software patents in India for a number of years), spoke of WIPO in relation to CASE, noting that “[t]he US patent laws require the applicant to furnish known prior art documents during the pendency of a patent application by submitting the information disclosure statement (IDS). However, the European patent Office (EPO) obligates an applicant to disclose the results of official searches and examination reports carried out on priority applications.”

If they have time to. Corners have been cut and examiners complain about the system that was abandoned a month ago. It is saddening if not maddening to see what the EPO turned into. The SUEPO document at the top says it all really (many aspects covered).

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