07.21.19

Gemini version available ♊︎

EPO Gradually Becoming the World’s Most Permissive (Low Patent Quality) Patent Office by Consciously Violating the EPC

Posted in Europe, Patents at 5:22 pm by Dr. Roy Schestowitz

The EPO is overgranting monopolies in clear defiance of the laws that govern the EPO

Permissive

Summary: Today’s European Patent Office is making innovation a lot harder for Europeans; it limits what people can freely do, e.g. what computer code they can implement, and only lawyers are loving it

THE Campinos/Battistelli-run European Patent Office (EPO) has become more lenient than the USPTO, which is subjected to 35 U.S.C. § 101/Alice (SCOTUS) even if the new Director does not like it.

“It’s like the US administration choosing to hold meetings with white supremacy groups.”“I recently had the opportunity to speak on the record with three examiners at the European Patent Office (EPO) about their advice, pet peeves, and approaches to examining computer implemented inventions, particularly in the field of artificial intelligence (AI),” Gene Quinn (Watchtroll) wrote some hours ago, once again invoking "Hey Hi" hype and “computer implemented inventions”.

They push software patents in Europe and having just published something titled “How to Help an EPO Examiner and Improve Your Odds of Patenting a Computer-Implemented Invention” they give away their bias — that they try to to persist in encouraging violations of the EPC; they call it “help”. At the same time, over the past week or two Watchtroll repeatedly attacked the Federal Circuit and its judges (in at least 3 articles dedicated to just that). They used to do this to the Patent Trial and Appeal Board (PTAB) and its judges because of inter partes reviews (IPRs). These judge-bashing maniacs are the people the EPO’s management has chosen to associate with; it’s a tad disturbing. It’s like the US administration choosing to hold meetings with white supremacy groups.

“Federal Circuit more balanced than Germany’s Federal Court of Justice,” Florian Müller wrote earlier this weekend. As he put it:

The good news in the early part of Dr. Uhrich’s presentation was that even the EPO doesn’t grant patents that claim a data structure per se. So the issue here is not one of patentable subject matter in the strictest sense, but of the scope given to patent claims at the enforcement stage. To share the bad news upfront, the effect of an overreaching infringement theory can be just as bad as straightforward patent claims on data formats. But, at least for now, the related case law in the United States is fundamentally better than in Germany, though this may be attributable in no small part to the historic happenstance of what cases were put before the courts in what sequence–and what questions for review the parties raised.

Just so there is no misunderstanding: Dr. Uhrich’s academic talk was nonjudgmental, so when you find words like “good news” and “bad news” here, rest assured they’re just my opinion. He may or may not agree depending on context.

The enforcement-related main part of Dr. Uhrich’s talk started with a 19th-century holding by the German Reichsgericht (Imperial Court), Methylenblau, involving a patent covering a chemical manufacturing process that was employed outside of Germany, but the resulting product entered the German market. The key doctrine there was that the scope of protection of a manufacturing patent potentially extends to the output if the substance so produced is an integral part of the patented process. On that basis, the Reichsgericht remanded the matter to the trial court.

The legal tradition that started with Methylenblau wouldn’t have had to inevitably lead to a high-court decision, more than a century later, that data sequences generated by a patented data processing operation are afforded the same degree of protection (potentially, as it’s always subject to the specific facts of a case). Not only is there a fundamental difference between physical goods and non-physical data but what makes this doubly unreasonable is the blatant inconsistency of such an outcome with the statutory exclusion of patents on “computer programs as such.” Unfortunately, it nevertheless happened.

In 2012, the Bundesgerichtshof (Federal Court of Justice of Germany) handed down a decision on whether data storage media manufactured outside of, but imported into, Germany might infringe a video encoding patent, EP0630157 on “systems and methods for coding alternate fields of interlaced video sequences,” a patent declared essential to the MPEG 2 video standard. While the patent holder lost the case due to a combination of other reasons, particularly patent exhaustion (the video data was generated with a licensed tool), the decision held that the case could not be dismissed on the grounds of the accused products containing data sequences as opposed to an encoder (be it a physical device or a piece of software).

I have read the MPEG-2-Videosignalcodierung (MPEG 2 video signal encoding) decision, and there is no reference in it to the statutory exclusion of patentable subject matter under the EPC…

[...]

Thankfully, Dr. Uhrich also drew a comparison between German and U.S. case law on patent enforcement against data sequences. In Bayer v. Housey Pharmaceuticals (2003), the United States Court of Appeals for the Federal Circuit affirmed the dismissal of an infringement claim because “infringement under 35 U.S.C. § 271(g) is limited to physical goods that were manufactured and does not include information generated by a patented process, and because the physical goods here (drug products) were not ‘manufactured’ by a process claimed in the asserted patents.” The opinion was authored by Circuit Judge Timothy Dyk, joined by then-Chief Judge Mayer and now-Chief Judge Prost.

The term “manufacture” plays a key role in U.S. patent law. As some of you may remember, it was key to the Samsung v. Apple Supreme Court appeal related to the “article of manufacture” based on which a design patent holder would be entitled to an unapportioned disgorgement of an infringer’s profits. The term “manufacture” alone, coupled with an almost-originalist interpretative standard that takes into account what lawmakers really meant way back when, enabled the Federal Circuit to decide against what would have been a similarly expansive school of thought as the one of the Federal Court of Justice of Germany.

Here comes Judge Sharon Prost again, who in most contexts (with exceptions like design patent damages proving the rule) takes very balanced positions. Meanwhile she had become Chief Judge, and she authored the Federal Circuit opinion in ClearCorrect v. ITC, a decision that Google’s Dr. Uhrich also explained yesterday. In that case, the ITC had ordered an import ban on data generated outside the U.S. but sent to the U.S. for the purpose of 3D printing. It’s not unheard of for the ITC to have an expansive view of its jurisdiction, even including digital data transfers, but the appeals court made clear that it disagreed with what the ITC had already held prior to ClearCorrect, which was that the statutory term “articles” “should be construed to include electronic transmission of digital data [...].”

The way things work, there’s no doubt that some patent-asserting plaintiffs are still going to try to push the envelope of data format patentability in the United States. But at least for now, they’ll be facing an uphill battle whenever they try.

What is clearly needed is a pushback against overreaching patent enforcement in Germany. Yesterday’s academic presentation was neither a campaign speech nor particularly alarmist. Expressing a personal–not corporate–view, Dr. Uhrich responded to a question from the audience with a reference to other forms of intellectual property protection for data, such as database rights (a big thing in the EU, by the way) and copyright law.

Judge Sharon Prost was mentioned above; we had been praising her for years and recently we saw her and her court coming under attacks from Watchtroll almost every other day. Watchtroll also did this to Michelle Lee. Unless a radical person like Iancu (mate of Trump) runs things, or trolls-connected judges like Rader run courts (committing serious misconduct in the process), the beehives of patent parasites won’t rest.

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. IRC Proceedings: Sunday, September 26, 2021

    IRC logs for Sunday, September 26, 2021



  2. Links 27/9/2021: Librem 14 Reviewed, Linux 5.15 RC3 is Out

    Links for the day



  3. Links 26/9/2021: GNU Wget2 2.0.0 and MenuLibre 2.2.3 Released

    Links for the day



  4. How Basic Laws and Fundamental Rights Got Crushed in the European Patent Office

    Our next series will show the sheer hypocrisy of the EPO, hiding behind the veil of (patent) law while so shamelessly violating just about every law in the books without facing any form of accountability



  5. Regrettable Acts of Self-Harm: OpenMandriva and Mozilla Being Outsourced to Microsoft Proprietary Software and Monopoly

    In another blow to software freedom, OpenMandriva and Mozilla decide to abandon their own systems and use proprietary software from Microsoft instead



  6. Links 26/9/2021: Mozilla Spends on PR, OpenMandriva Outsourcing to Microsoft

    Links for the day



  7. IRC Proceedings: Saturday, September 25, 2021

    IRC logs for Saturday, September 25, 2021



  8. Links 25/9/2021: GNU/Linux Recognition in Mainstream Media and Wine-Staging 6.18

    Links for the day



  9. Reminder: GNU Turns 38 This Monday Around Midday (When GNU's Founder Gives Talk in Poland)

    With media and Torvalds speaking again about anniversaries (this has gone on for the past week because Torvalds wrote about it yet again), it is important to recall the announcement that got the ball rolling and basically started it all (the GNU/Linux operating system) because it was in 1983, not 1991. We reproduce in full the announcement.



  10. Links 25/9/2021: Wine 6.18 and Chromium Complier Woes

    Links for the day



  11. [Meme] When the EPO Watches Everything ('Dissidents', Media, Etc.) and Isn't Being Watched by Anybody

    The EPO is taking Europe for a wild ride; Everything is a vehicle for the very same agenda, with nobody left to hold it accountable or ask any tough questions… (even the media is in the EPO’s back pocket or back seat)



  12. Virtual Oversight

    “eMeetings” that simulate an impression of oversight are like ‘ViCo’ to simulate access to justice; will that ever change and will oversight be restored at EPOnia, Europe’s second-largest institution?



  13. The Corporate Coup Against the Soul of the Free Software Community Is Not Over

    The erosion of community role in the development of GNU/Linux is a growing problem; part of the problem is that large corporations target technical and philosophical (perceived) leaders in coordinated smear campaigns, led by media they own



  14. IRC Proceedings: Friday, September 24, 2021

    IRC logs for Friday, September 24, 2021



  15. Links 24/9/2021: GNU Coreutils 9.0, BattlEye GNU/Linux Support

    Links for the day



  16. [Meme] 'Linux' Foundation is Greenwashing Microsoft Again, Misusing the Linux Brand Like Nobody's Business

    Microsoft has weaponised the Linux brand to dub a toxic company like itself (helping notoriously polluting companies and generating lots of waste, both directly and through planned obsolescence, inefficient software, DRM, etc.) as "green"



  17. Richard Stallman to Speak (in Person) in Poland, Dedicate the Talk to Medical Professionals

    Days after his talk in Ukraine Richard Stallman plans to do the same in Poland (just announced)



  18. Links 24/9/2021: 30 Years of Europe’s First Root Name Server, Repairability of Laptops Discussed

    Links for the day



  19. ZDNet Has Failed

    ZDNet is on the decline and its demise appears to have greatly accelerated in recent months; we take a quick look at this month's coverage and explain the conflict of interest (it's PR, not news, and it's far too shallow/blatant to simply overlook)



  20. [Meme] Some People Are Just Above the Law

    A lot of people are still flabbergasted or at least baffled/miffed to discover that some people are in effect above the law; not even Europol and Interpol can apprehend and hold them accountable; that needs to change. Had Benoît Battistelli worked for France Télécom S.A. (not the EPO), would he be arrested? What about António Campinos and his drunk son?



  21. NPR and PBS, Both Funded by Bill Gates, Try to Save Him

    Bill Gates continues to corrupt the media and corrupt social control media (such as Twitter) using his money



  22. The EPO Must Forsake Its Diplomatic Immunity and Quit Pretending It's About Patent Law (or Any Law)

    There's no sign of the EPO actually trying to obey the law and correct the mistakes of the past; to make matters worse, the existing administration adds yet more corruption to an already-massive pile while dismissing any form of oversight



  23. IRC Proceedings: Thursday, September 23, 2021

    IRC logs for Thursday, September 23, 2021



  24. Links 24/9/2021: Ubuntu 21.10 Beta, Istio 1.11.3, and More Milestones for Steam Deck

    Links for the day



  25. [Meme] President Campinos Addresses the Legacy of Battistelli's “Strike Regulations”

    A sequence of four EPO memes about those infamous and unlawful “strike regulations” that Benoît Battistelli and António Campinos have exploited to abuse thousands of workers



  26. [Meme] Bill Gates Keeps Digging Himself Deeper in the Grave Each Time He Speaks

    These sorts of ‘interviews’ with Gates’ own propaganda mills (he also pays Twitter now) aren’t going to improve his image; people aren’t infinitely gullible (Source)



  27. Linux Foundation and Other 'Diploma Mills' Say There's Demand for Their Products in Their New 'Research' (Marketing)

    The so-called ‘Linux’ Foundation (LF), together with edX, are basically marketing their services and products, but this is disguised as 'research' (a false narrative widely parroted by shallow and paid-for media partners of theirs), piggybacking brands like “Linux” and buzzwords like “Open Source” (even when they promote proprietary things, e.g. memorisation of proprietary GUIs)



  28. [Meme] The EPO's Carte Blanche and 'Diplomatic Immunity' Card

    EPO staff is being taken for another ride by António Campinos and his cohorts, whose popularity among staff has likely gone down to sub-zero levels already (even faster than Benoît Battistelli)



  29. As Expected, Minimal Pseudo Compliance From EPO Management, Adding Insult to Injury

    SUEPO Central, the core of the staff union of EPO staff (almost 7,000 workers at the EPO, most of whom are SUEPO members), has strong words about the EPO's attitude and stance, which is perhaps unsurprising but still extremely disappointing



  30. Links 23/9/2021: PostgreSQL 14 RC 1 and MidnightBSD 2.1

    Links for the day


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