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. 2023 is the Year Taxpayers' Money Goes to War and Energy Subsidies, Not Tech

    Now that a lot of powerful and omnipresent ‘tech’ (spying and policing) companies are rotting away we have golden opportunities to bring about positive change and maybe even recruit technical people for good causes



  2. Getting Back to Productive Computer Systems Would Benefit Public Health and Not Just Boost Productivity

    “Smartphoneshame” (shaming an unhealthy culture of obsession with “apps”) would potentially bring about a better, more sociable society with fewer mental health crises and higher productivity levels



  3. Links 04/02/2023: This Week in KDE and Many More Tech Layoffs

    Links for the day



  4. Dotcom Boom and Bust, Round 2

    The age of technology giants/monopolies devouring everything or military-funded (i.e. taxpayers-subsidised) surveillance/censorship tentacles, in effect privatised eyes of the state, may be ending; the United States can barely sustain that anymore and raising the debt ceiling won't solve that (buying time isn't the solution)



  5. Society Would Benefit From a Smartphoneshame Movement

    In a society plagued by blackmail, surveillance and frivolous lawsuits it is important to reconsider the notion of “smart” phone ownership; these devices give potentially authoritarian companies and governments far too much power over people (in the EU they want to introduce new legislation that would, in effect, ban Free software if it enables true privacy)



  6. IRC Proceedings: Friday, February 03, 2023

    IRC logs for Friday, February 03, 2023



  7. IRC Proceedings: Thursday, February 02, 2023

    IRC logs for Thursday, February 02, 2023



  8. Links 03/02/2023: Proton 7.0-6 Released, ScummVM 2.7 Testing

    Links for the day



  9. Links 03/02/2023: OpenSSH 9.2 and OBS Studio 29.0.1

    Links for the day



  10. Links 03/02/2023: GNU C Library 2.37

    Links for the day



  11. Sirius Finished

    Yesterday I was sent a letter approving my resignation from Sirius ‘Open Source’, two months after I had already announced that I was resigning with immediate effect; they sent an identical letter to my wife (this time, unlike before, they remembered to also change the names!!)



  12. The Collapse of Sirius in a Nutshell: How to Identify the Symptoms and Decide When to Leave

    Sirius is finished, but it's important to share the lessons learned with other people; there might be other "pretenders" out there and they need to be abandoned



  13. Links 03/02/2023: WINE 8.1 and RapidDisk 9.0.0

    Links for the day



  14. Links 02/02/2023: KDE Gear 22.12.2 and LibreOffice 7.5

    Links for the day



  15. Linux News or Marketing Platform?

    Ads everywhere: Phoronix puts them at the top, bottom, navigation bar, left, and right just to read some Microsoft junk (puff pieces about something that nobody other than Microsoft even uses); in addition there are pop-ups asking for consent to send visitors’ data to hundreds of data brokers



  16. Daily Links at Techrights Turn 15, Time to Give Them an Upgrade

    This year we have several 15-year anniversaries; one of them is Daily Links (it turned 15 earlier this week) and we've been working to improve these batches of links, making them a lot more extensive and somewhat better structured/clustered



  17. Back to Focusing on Unified Patent Court (UPC) Crimes and Illegal Patent Agenda, Including the EPO's

    The EPO's (European Patent Office, Europe's second-largest institution) violations of constitutions, laws and so on merit more coverage, seeing that what's left of the "media" not only fails to cover scandalous things but is actively cheering for criminals (in exchange for money)



  18. European Patent Office Staff Votes in Favour of Freedom of Association (97% of Voters in Support)

    The Central Staff Committee (CSC) at the EPO makes a strong case for António Campinos to stop breaking and law and actually start obeying court orders (he’s no better than Benoît Battistelli and he uses worse language already)



  19. Links 02/02/2023: Glibc 2.37 and Go 1.20

    Links for the day



  20. IRC Proceedings: Wednesday, February 01, 2023

    IRC logs for Wednesday, February 01, 2023



  21. Links 01/02/2023: Security Problems, Unrest, and More

    Links for the day



  22. Links 01/02/2023: Stables Kernels and Upcoming COSMIC From System76

    Links for the day



  23. IRC Proceedings: Tuesday, January 31, 2023

    IRC logs for Tuesday, January 31, 2023



  24. Links 31/01/2023: Catchup Again, Wayland in Xfce 4.20

    Links for the day



  25. Links 31/01/2023: elementary OS 7

    Links for the day



  26. Intimidation Against Nitrux Development Team Upsets the Community and Makes the Media Less Trustworthy

    Nitrux is being criticised for being “very unappealing”; but a look behind the scenes reveals an angry reviewer (habitual mouthpiece of the Linux Foundation and Linux foes) trying to intimidate Nitrux developers, who are unpaid volunteers rather than “corporate” developers



  27. Links 31/01/2023: GNOME 44 Wallpapers and Alpha

    Links for the day



  28. Free and Open Source Software Developers' European Meeting (FOSDEM) and KU Leuven Boosting Americans and Cancellers of the Father of Free Software

    The Free Software Foundation (FSF) and its founder, Richard M. Stallman (RMS), along with the SFLC one might add, have been under a siege by the trademark-abusing FSFE and SFC; Belgium helps legitimise the ‘fakes’



  29. Techrights in the Next 5 or 10 Years

    Now that I’m free from the shackles of a company (it deteriorated a lot after grabbing Gates Foundation money under an NDA) the site Techrights can flourish and become more active



  30. 60 Days of Articles About Sirius 'Open Source' and the Long Road Ahead

    The Sirius ‘Open Source’ series ended after 60 days (parts published every day except the day my SSD died completely and very suddenly); the video above explains what’s to come and what lessons can be learned from the 21-year collective experience (my wife and I; work periods combined) in a company that still claims, in vain, to be “Open Source”


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