06.20.19

Ignore the EPO’s Dumb Festival and Focus on the Abuses Against the Workforce and Its Quality of Work

Posted in Europe, Patents at 1:25 am by Dr. Roy Schestowitz

The EPO’s “look over there!” moment — as usual timed to take place a week or so before the Administrative Council reconvenes

Look over there!

Summary: Don’t lose sight of the appalling behaviour of the management of the EPO; the last thing it wants is press coverage about its gross abuses and corruption — an aspect it spent literally millions of euros to bury (gaming the news cycle)

THE European Patent Office (EPO) is about to start that stupid (and wasteful) “Inventor” festival. Managers past and present use this ceremony of theirs for political purposes (politicians are, as usual, attending after being invited). We’re mostly interested in seeing whether António Campinos and judge Battistelli (yes, he was made a judge in this competition) choose to give an award to European software patents (there are several contenders of this kind, but we’ve focused on one). How low can patent quality (or validity) go while still receiving a special prize?

As usual, this festival is timed to almost coincide with the meeting of the Administrative Council — something which we never regarded as a coincidence. Will that stupid festival impress the bands of lawyers and bureaucrats, who conveniently look the other way when patent quality or validity etc. (as determined by actual courts with technical expert witnesses) are discussed?

“As usual, this festival is timed to almost coincide with the meeting of the Administrative Council — something which we never regarded as a coincidence.”Over the past couple of days we saw no news about the social injustices at the EPO; SUEPO has said nothing and it only posted a link to an article about work atmosphere (not EPO-specific). Remember that none of these issues have been addressed and resolved, let alone discussed. Nothing at all is improving on that front and the same goes for patent quality. Quality of the workplace and the work alike suffer profoundly.

This post takes stock of the latest writings that pertain to patent quality or scope.

Earlier this week Isobel Finnie and Joanna Rowley (Haseltine Lake LLP) wrote about patents covering life and nature even though humans did not invent these; this is thievery, enabled by patent offices which only care about granting more and more patents. Rowley and Finnie have provided some background and an explanation of where things stand:

This amendment came as a surprise to many in the field because it created a conflict between Rule 28(2) EPC and Article 53(b) EPC as interpreted by Broccoli/ Tomatoes II. Soon enough a case came before the Boards of Appeal (T 1063/18) in which a patent application had been refused by an Examining Division for the sole reason that the invention was deemed to be a plant product exclusively obtained by essentially biological processes. In brief, the invention related to a “cultivated blocky fruit type pepper plant” and the only method described in the application for obtaining the pepper plant was an essentially biological process, namely crossing two previously known peppers followed by selfing and conventional pedigree selection to create stable fixed inbred lines. The Board in T 1063/18 held that the Articles of the EPC as interpreted by the Enlarged Board of Appeal must prevail over the Rules (in accordance with Article 164(2) EPC) and hence, Rule 28(2) EPC must be considered void. The Board of Appeal considered the law on this issue to be clear and hence a referral to the Enlarged Board of Appeal was not justified.

[...]

The EU Biotech Directive and Article 53(b) EPC clearly state that essentially biological processes for the production of plants or animals are not patentable, but are silent with regard to the patentability of plant and animal products exclusively obtained by means of such essentially biological processes. In 2015 the Enlarged Board of Appeal ruled that such products are patentable (G2/12 and G2/13, often referred to as “Broccoli/Tomatoes II”). This was seen as a positive step by agrochemical companies using the patents system and many commentators thought the issue was settled.

However, shortly afterwards in 2016 the European Commission issued a Notice (2016/C 411/03) stating that the EU Biotech Directive was intended to exclude products obtained by essentially biological processes from patentability, even though it didn’t explicitly say so. Although this Notice was not legally binding it added to the existing pressure on the EPO from certain member states and political groups. The Administrative Council of the EPO responded by adding Rule 28 part (2) EPC, which states “Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.”

This amendment came as a surprise to many in the field because it created a conflict between Rule 28(2) EPC and Article 53(b) EPC as interpreted by Broccoli/ Tomatoes II. Soon enough a case came before the Boards of Appeal (T 1063/18) in which a patent application had been refused by an Examining Division for the sole reason that the invention was deemed to be a plant product exclusively obtained by essentially biological processes. In brief, the invention related to a “cultivated blocky fruit type pepper plant” and the only method described in the application for obtaining the pepper plant was an essentially biological process, namely crossing two previously known peppers followed by selfing and conventional pedigree selection to create stable fixed inbred lines. The Board in T 1063/18 held that the Articles of the EPC as interpreted by the Enlarged Board of Appeal must prevail over the Rules (in accordance with Article 164(2) EPC) and hence, Rule 28(2) EPC must be considered void. The Board of Appeal considered the law on this issue to be clear and hence a referral to the Enlarged Board of Appeal was not justified.

The EPC doesn’t govern the Boards anymore; the Office does. The President of the Office does; he blatantly violates the EPC at every turn. This is one among several reasons the UPC will never become a reality. Speaking of the UPC, it looks like Bristows is writing its nonsense anonymously again (it is far too predictable a pseudonym, “Kluwer Patent blogger”). “Adapting the patent system to small companies means abolishing it,” Benjamin Henrion said about it. The blog post, which deletes dissenting views/comments (we covered this before), still lacks comments. Interesting. Also found via Henrion is this new post from Alan Johnson. The same people who insisted a decision would be made by the FCC (BVerfG) by last Christmas are at it again. It’s coming “real soon!!!” they promise us (as they have for years).

Pressing on, a Rowley and Finnie colleague, Andrew Sunderland (Haseltine Lake LLP), wrote about the EPO’s next opportunity to throw out all software patents (but the judges in these cases lack autonomy, by their very own admission, so we doubt this will happen). To quote:

The first question is attempting to establish whether a simulation, by itself, can ever provide a technical effect.

If the EBA deems that a simulation, when taken in isolation, can have a technical effect, then the next question becomes; how can an examiner at the EPO reliably and repeatably assess patentability in such cases. This second question is essentially asking for a test or checklist, based on which an examiner can make an assessment.

The third question is asking whether a simulation, if claimed as part of a design process, could be patentable. Presumably if the answer to the first question is yes, then the answer to this question would also be yes. But a design process may imply a product, and verifying a design implies limitations to the simulation that may have real-world implications.

While the referral is pending, applications, oppositions and appeals in which the decision depends entirely on the answer to the above questions may be stayed at the request of the parties or by the examining or opposition division on its own initiative.

The EBA’s answers should provide some useful guidance on how to improve an applicant’s chances of successfully protecting simulation-related inventions in Europe. Watch this space for our follow-up article as soon as a decision is issued.

Depending on the outcome of this case, it may be possible to throw out European Patents on algorithms, not only at the courts but also at the Office. We’ve meanwhile noticed McKee Voorhees & Sease PLC’s Gregory “Lars” Gunnerson “Comparing United States and European Patent Law for Software”. Both de facto reject patents on software (the courts do), but dishonest patent offices continue granting these fake patents anyway. They leave the mess for the expensive courts and lawyers to deal with. We know at whose expense…

Henrion has just caught up with the article about “HEY HI” (AI) and what top British judges have to say. “UK judge skpetical of patents for AI,” he said, “but not the reason that AI is mere computer programs and training data. As an ex-patent specialized judge now at the Highest Court, mmh…”

We’ve already seen his court throwing out European Patents on algorithms, even as recently as this year.

The EPO and “Programming Eligibility in the United States” are also covered here, in a new article that mentions, 35 U.S.C. § 101, the U.S. Patent and Trademark Office (USPTO), SCOTUS, and the Federal Circuit.

Both places (the US and Europe) grant patents on software — patents that courts repeatedly reject. They just don’t seem to care what the law is or what the rules explicitly say. To quote:

The patent qualification prerequisite at the EPO, that the topic must have a specialized character, is first surveyed without reference to the earlier workmanship. Accordingly, any non-specialized element, i.e., an element from a field prohibited from patentability under 52(2) and (3) EPC, can’t be considered for the evaluation of creative advance, except if the non-specialized component connects with the specialized topic to take care of a specialized issue. The “best in class” ought to be translated as significance the “condition of innovation”, and one of standard expertise in the workmanship is the individual talented in the applicable field of innovation. Fields barred under 52(2) EPC are not viewed as a major aspect of the innovation for the appraisal of imaginative advance. These appraisals are exceedingly emotional and have been liable to significant patent operator and patent inspector ion.

Programming Eligibility in the United States

No place in the United States Patent Act (Title 35 of the United States Code) is programming or PC programs explicitly referenced. Rather, patent law identifying with programming and PC projects is resolved, in any event fundamentally, by choices of the United States Supreme Court (SCOTUS) and United States Court of Appeals for the Federal Circuit (CAFC).

Writing about “medium-sized enterprises (SMEs)” at Lexology, Accura Advokatpartnerselskab’s Morten Bruus, Christoffer Ege Andersen and Martin Dysterdich Jørgensen would have us believe anything EUIPO and EPO claim is true. Never mind who funded their so-called 'study'.

From their new article:

A joint EPO & EUIPO study measures the correlation between the IP activities of small and medium-sized enterprises (SMEs) and the likelihood that they will experience a high growth period. The study finds that SMEs applying for patents, trademarks or designs have a greater probability of experiencing growth compared to SMEs that do not. In the process of reaching these conclusions further results are found of particular interest for innovators and IP portfolio managers as well as potential investors- and business partners.

That’s complete nonsense, but it’s designed to distract from the harsh reality; they actively harm SMEs. They help lawyers and their largest clients, who are typically not even European. Their priority isn’t Europe but large applicants, i.e. multinationals.

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

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. Links 27/10/2020: FuguIta 6.8, Fedora 33, Red Hat Satellite 6.8, KDE Plasma 5.20.2 and GStreamer 1.18.1

    Links for the day



  2. Site Changes Ahead of Anniversary

    We’re making some changes to the presentation and function of the site — changes that will become more prominent over the coming days



  3. IRC Proceedings: Monday, October 26, 2020

    IRC logs for Monday, October 26, 2020



  4. Links 26/10/2020: rpminspect 1.2, Open Source Hardware Certification and LibreOffice Conference

    Links for the day



  5. Links 26/10/2020: Debian "Bullseye" Artwork, Fwupd 1.5 Released

    Links for the day



  6. [Meme] Satya Na-DL

    Microsoft has shown its real priorities (just before the weekend when many people might not notice)



  7. Jonathan Wiltshire and Debian, Falsified Harassment Claims, Tiger Computing and GCHQ

    Reprinted with permission from Debian Community News



  8. Links 26/10/2020: Linux 5.10 RC1 and Loongsoon Laptops

    Links for the day



  9. The Downfall of Free Software Leaders (and Their Projects or Missions)

    "Cancel George Orwell, and happy hacking."



  10. IRC Proceedings: Sunday, October 25, 2020

    IRC logs for Sunday, October 25, 2020



  11. Links 25/10/2020: Kodi 18.9, ScummVM Android Love, Cutelyst 2.13

    Links for the day



  12. [Meme] Captain Zemlin and Neil McGovern's Ugly Legacy in GNOME (His Predecessors Work for Microsoft Directly Now)

    The Linux Foundation is already ‘sold’ and Microsoft Tim‘s interview with Neil McGovern, published a few days ago, was rather revealing (comments on the article/interview were also harsh)



  13. How Microsoft is Still Worse Than Google

    "I have decided that we should not publish these extensions. We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage."



  14. 'President Bill Gates' Wants to Punish Not Only Google After Using “Extensions” to the Web to Reinforce Microsoft's Monopoly (Antitrust Violations Are a Microsoft Thing)

    In gross distortion of facts and of history and in a rather incredible fashion (very shameless and insulting) the corporate media tries to paint Bill Gates as an antitrust hero that will save the world from monopolies



  15. Donald Trump Helped Bill Gates Increase His Wealth by More Than 50%, Especially During the Pandemic

    Contrary to ridiculous narratives disseminated by nutty accounts all around the Web, Gates and Trump are no foes but 'partners in crime'



  16. Our 14th Birthday is Coming

    We're turning 14 shortly and we need ideas from readers (things that can be done to mark the event and celebrate 'on-line')



  17. In Spite of IBM's Difficult Past and Particularly Dark History, Under Arvind Krishna’s Leadership It Has Only Shown Signs of Improving

    This winter, 6 months after Arvind Krishna’s tenure as CEO began, we can generally say that things seem to have improved and we look forward to further improvements



  18. Links 25/10/2020: GNU Taler's IETF Milestone, RISC OS 5.28 and New Ubuntu Community Council

    Links for the day



  19. IRC Proceedings: Saturday, October 24, 2020

    IRC logs for Saturday, October 24, 2020



  20. Links 24/10/2020: GDB 10.1, Kodachi 7.4, Wine 5.20

    Links for the day



  21. Celebrating Code of Conduct Violations

    Reprinted with permission from Daniel Pocock



  22. The Militarised Elephant in the Room Still Commands a Lot of Free Software Development

    We take a difficult (albeit in-depth and perfectly factual) look at IBM's past and present; considering this is the company that controls Red Hat (which in turn controls many key projects in GNU/Linux) we need a better understanding of the real context, not PR fluff and marketing



  23. Juve Patent's Love of Patent Trolls and Their Misinformation

    The press 'gutter' known as Juve (basically propaganda disguised as 'news' since years ago) has gotten to the point where the publisher is just an extension of lawyers and liars



  24. IRC Proceedings: Friday, October 23, 2020

    IRC logs for Friday, October 23, 2020



  25. Look How Many Tux I Give!

    "Long live rms, long live (Hyperbola) GNU/BSD, and happy hacking."



  26. Embrace, Extend, and Extensions: Two New Reasons to Delete GitHub, Which Microsoft Ruined for Everyone (Except the Copyright Cartel and Other Censors)

    GitHub is being turned into a garbage dump with malicious masters (or monsters, or mobsters); many people are denied access for using the 'wrong' browser and developers/projects are being censored (not for doing anything wrong or illegal, either)



  27. [Meme] When EPO Staff Claims to be 'Ill' or 'Sick'... During a Pandemic's European Peak

    Gotta check and verify that those 'lazy' EPO examiners aren't just faking being ill (in order to not meet "production" targets)



  28. The EPO Has Relegated or Lowered Itself to Extremely Poor Standards

    Today's EPO continues to reaffirm the image of global weakness; having failed to improve the working conditions and quality of the work (its actions did the exact opposite), it's nowadays begging China to send over lots of workload irrespective of quality or merit and it is outsourcing the functions of the Office to the United States



  29. Links 23/10/2020: Turing Pi 2, GNU Parallel 20201022

    Links for the day



  30. IRC Proceedings: Thursday, October 22, 2020

    IRC logs for Thursday, October 22, 2020


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