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06.06.19

Lawlessness at the EPO Means That Software Patents Are Still Being Granted and EPO Judges Have Their Hands Tied

Posted in Europe, Patents at 2:15 pm by Dr. Roy Schestowitz

Summary: The EPO is making it virtually impossible to stop the illicit patenting of algorithms; even the EU nowadays participates in this EPC-violating agenda

THE European Patent Office (EPO) and the U.S. Patent and Trademark Office (USPTO) don’t seem to mind patent quality. Iancu and Campinos (like Battistelli before him) openly promote software patents in defiance of caselaw. They leave these for the courts to invalidate — to essentially void patents that should have never been granted in the first place. Iancu attacks Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), whereas Battistelli and Campinos ensure that EPO judges lack independence and autonomy. Iancu ignores all the Federal Circuit rulings that don’t suit his agenda/vendetta, whereas the EPO never seems to bother with decisions outside Munich (Munich?! Oops, we meant Haar).

The EPO under Campinos is still breaking the law and violating the EPC. Its latest buildings ‘shuffle’ is alleged to be — perhaps deliberately — making it a lot harder to return judges from ‘exile’ in Haar. It is still a growing headache for Campinos as bringing back these judges would prove that Battistelli (the man who gave him this job) broke the law and potentially void/discredit several years’ worth of court cases.

Gwilym Roberts from Kilburn & Strode (via Peter Ling) has just mentioned one key case to that effect:

When this Kat took on the pending referral G2/19 before the EPO Enlarged Board of Appeal to dwell on issues of geography in the greater Munich area, he mentioned that the same referral could warrant several additional Katposts to cover all the issues raised. Kat friend Gwilym Roberts from Kilburn & Strode took up the challenge and has had a closer look into the two other questions referred to the EBA.

[...]

The case background is simple – a third party unsuccessfully submitted observations on clarity (art. 84 EPC) prior to grant of a patent application. Because the third party could not oppose based on art. 84 (because lack of clarity is nott a ground), instead it lodged an appeal against the grant of the patent on the basis that it was adversely affected. This is extraordinary.

The issues referred are, roughly: (1) should oral proceedings be held to deal with the admissibility of the appeal, (2) does the complainer have standing as appellant and (3) the Haar thing. Question (1) has been looked at before (see for example T556/09, T114/09, T1289/10), but it would seem to open the door to frivolous abuse of proceedings. As long as the inadmissibility rules are applied responsibly, which seems to be the case generally (and it does not appear to be the subject of the complaint here), then there has to be a way of dismissing vexatious cases promptly.

It’s worrying to see that there’s still no resolution to it; in the meantime the EPO continues granting perhaps hundreds of thousands of patents that should not be granted. And retweeted by EPO some hours ago was this tweet from the EU: “Be quick and register TODAY! The next study visit to the European Patent Office ( @EPOorg) (27 June 2019, Munich) will focus on Artificial Intelligence and patents including hands-on experience of EPO experts, patent examiners and lawyers!”

Well, Artificial Intelligence or “AI” disguises invalid patents on algorithms. Here’s what the cited page from the EU says:

In particular, this study visit will focus on Artificial Intelligence and patents. Additionally to providing the participants with an overview of the EPO and the European patent system, it will guide them into the complex field of AI-based inventions and the new problems they may pose to the examiners on their way from a patent application to a granted patent.

So “complex field of AI-based inventions” (yes, very complex!) is how the EPO looks to justify granting fake European Patents. Notice the EU’s complicity? Didn’t Parliament pass a directive against it? Law does not seem to matter anymore.

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