06.20.19

Gemini version available ♊︎

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. [Meme] Sounds Legit

    When not cheating on the wife, the EPO‘s “doyen” cheats in the exams and makes it into the epi Council, in effect working “[t]owards a common understanding [sic] of quality” with “patent attorneys nominated as “assessors” by the EPO, epi and BusinessEurope” (notorious lobbyists for dictators, litigation, and monopolies, neither business nor science)



  2. [Meme] Mayoral Patent Office Chief

    As it turns out, political 'double-dipping' isn't just a thing in North Macedonia, Austria, and EPOnia



  3. Romania's Patent Office (OSIM): Nine Different Chiefs in Just Eight Years

    The Romanian State Office for Inventions and Trademarks (OSIM), being the equivalent of the U.S. Patent and Trademark Office (USPTO) in the sense that it covers both patents and trademarks, is a very flaky institution with no shortage of scandals; for our English-reading audiences we now have a summary of a decade’s worth of blunders and leadership changes



  4. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League - Romania

    Romania’s patent office has been in flux this past decade, occasionally led by people with no relevant experience, but rather political connections (like EPO President António Campinos) and sometimes forged documents and fake degrees



  5. IRC Proceedings: Monday, October 25, 2021

    IRC logs for Monday, October 25, 2021



  6. [Meme] “Social Democracy” at the EPO

    Some comments on the current situation at the European Patent Office from Goran Gerasimovski, the new EPO Administrative Council delegate for North Macedonia and Social Democratic candidate for mayor of Centar (a municipality of Skopje)



  7. [Meme] António Campinos Visits the OSIM

    António Campinos visits OSIM Director-General Ionel Muscalu in February 2014



  8. [Meme] [Teaser] Meet the President

    Later today we shall see what Romania did for Battistelli



  9. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  10. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  11. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  12. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  13. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  14. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  15. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  16. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  17. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  18. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  19. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  20. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO



  21. Links 24/10/2021: GPS Daemon (GPSD) Bug and Lots of Openwashing

    Links for the day



  22. Links 24/10/2021: XWayland 21.1.3 and Ubuntu Linux 22.04 LTS Daily Build

    Links for the day



  23. IRC Proceedings: Saturday, October 23, 2021

    IRC logs for Saturday, October 23, 2021



  24. Links 24/10/2021: Ceph Boss Sage Weil Resigns and Many GPL Enforcement Stories

    Links for the day



  25. GAFAM-Funded NPR Reports That Facebook Let Millions of People Like Trump Flout the So-called Rules. Not Just “a Few”.

    Guest post by Ryan, reprinted with permission



  26. Some Memes About What Croatia Means to the European Patent Office

    Before we proceed to other countries in the region, let’s not forget or let’s immortalise the role played by Croatia in the EPO (memes are memorable)



  27. Gangster Culture in the EPO

    The EPO‘s Administrative Council was gamed by a gangster from Croatia; today we start the segment of the series which deals with the Balkan region



  28. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”

    The EPO‘s circle of corruption in the Balkan region will be the focus of today’s (and upcoming) coverage, showing some of the controversial enablers of Benoît Battistelli and António Campinos, two deeply corrupt French officials who rapidly drive the Office into the ground for personal gain (at Europe’s expense!)



  29. Links 23/10/2021: FreeBSD 12.3 Beta, Wine 6.20, and NuTyX 21.10.0

    Links for the day



  30. IRC Proceedings: Friday, October 22, 2021

    IRC logs for Friday, October 22, 2021


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