09.05.19

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Fake Software Patents in Europe (Invalid Patents) Would Only Discourage or Drive Away the European Software Industry, But Lawyers Don’t Care

Posted in Europe, Patents at 8:27 am by Dr. Roy Schestowitz

When one litigates for a living computer code looks like something to be taxed, nothing else

Louvre at night

Summary: Patent maximalists are running the largest patent office in Europe and despite the law clearly disallowing abstract patents these continue to be enshrined as European Patents; the EPO’s management wants judges that it controls (already besieged in Haar) to say “OK” to this illegal practice

THE Campinos/Battistelli-led European Patent Office (EPO) is an utter embarrassment to Europe. It disproves perceptions about Rule of Law in Europe and it harms the European industry. In that respect, today’s EPO also discredits the world’s patent systems. It makes them look anarchic and uncaring about underlying laws, constitutions etc.

“It’s a ‘fixed’ game that gives an illusion of so-called “growth” in “productivity” (as measured using ludicrous yardsticks).”Back in 2007 and maybe before that we wrote about software patents in Europe, a year or two after the subject had been hotly debated in European and international media. We wrongly assumed that the European Parliament put an end to these ridiculous patents once and for all. The EPO’s management pretends that it’s still an unanswered question and in the meantime it instructs examiners to grant such patents; it just throws loads of ridiculous buzzwords at them while encouraging applicants to leverage these buzzwords. It’s a ‘fixed’ game that gives an illusion of so-called “growth” in “productivity” (as measured using ludicrous yardsticks).

Earlier this week we saw promotion of an article about “stay of national proceedings pending outcome of opposition,” citing Coloplast v Salts Healthcare. To quote: “With the parallel systems of patent revocation in Europe (opposition before the European Patent Office (EPO) and revocation/nullity before the national courts), where the opposition runs slower than the national courts, there is a risk that a patent found to be valid and infringed by the national courts is subsequently found to be invalid by the EPO.”

Only the lawyers benefit and many parties would choose to settle without actual justice. Fake patents, unfounded and unsound as per the EPC, can result in payments and it’s no secret that patents are an extreme injustice when monopoly is given for unoriginal ideas, trivial ideas, or abstract ideas. Sadly, however, it happens far too often nowadays and the public rarely talks about it. Lawyers lie to the public to keep the public uninvolved. Jargon and lingo contribute to that (e.g. FRAND and other intentionally misleading terms).

“Only the lawyers benefit and many parties would choose to settle without actual justice.”SUEPO, the staff union of the EPO, openly speaks about bad quality of European Patents. It says it has gotten far worse very fast. It repeatedly warns that, according to the EPO itself, not many European Patents even comply with the EPC!

Patent maximalists obviously aren’t bothered. Fake patents too are business to them (applications, litigation/lawsuits and so on). Serial litigants couldn’t ask for more!

Rose Hughes has just mentioned T 0703/19, a decision before the EPO’s boards; she very well knows these boards are 10,000 cases behind and won't deal with questions of EPO breaking the law (the blog where she wrote this used to write about this subject regularly before it self-censored and she joined the monopolists). To quote her blog post:

The Enlarged Board of Appeal (EBA) recently dealt thoroughly with the thorny issue of the consequences of appeal fee payment after the deadline for filing an appeal (G 1/18, IPKat post here). Readers with an enthusiasm for the legal intricacies surrounding appeal filings, may also be interested in a recent Technical Boards of Appeal (TBA) decision (T 0703/19). In this decision, the TBA considered another issue arising from appeal fee payment: when may a user of the EPO have legitimate expectations to be informed of an underpayment of an appeal fee?

[...]

The patent in question, EP11700179, was a Swiss originating patent related to a dental implant. Following a negative decision by the Opposition Division, the patentee filed a notice of appeal by online filing by the deadline for filing an appeal. The notice of appeal included a completed form and accompanying letter. The letter included the statement (in German) that the appeal fee was thereby paid via online fee payment. The form stated the amount of the appeal fee, but not the method of payment. The method of payment was indicated as “not specified” (“nicht angegeben”). An account number for debit of the amount was not provided, and payment was thus not taken.

TBA’s upcoming decision that many people look forward to actually concerns software patents; it has the potential to become ‘European Alice‘, albeit it’s unlikely to happen because of rigging by EPO (Office) management. We saw that before. At the U.S. Patent and Trademark Office (USPTO) the impact of Alice is still being felt; over at Watchtroll this week litigation zealot Robert Sachs calls the demise of software patents (Alice) “Benevolent Despot or Tyrant,” which is a false choice, two negatives. These are greedy litigation ‘activists’ (working for their pockets, for patent trolls etc.) and they are attacking the law itself. It’s not just this one article (“Alice: Benevolent Despot or Tyrant? Analyzing Five Years of Case Law Since Alice v. CLS Bank”) but also another one by Mark Nowotarski at Watchtroll: “If You Want to Protect Your Business Method, Reframe It as a Technical Invention”

They give ‘tricks’ for getting patents that are bogus, in effect invalid (as judged by courts).

“They give ‘tricks’ for getting patents that are bogus, in effect invalid (as judged by courts).”Watchtroll now has a ‘Webinar’ for patents at the EPO (“IPW Webinar: Getting to Grant: How to get your patent approved by the EPO”).

It says: “What are the necessary steps for obtaining a Notice of Allowance at the European Patent Office (EPO)?”

Notice how patent extremists in the US ‘interfere’ with EPO affairs? And the EPO works closely with Watchtroll. Today’s EPO is in bed with people who habitually attack judges, just like EPO management does.

Here in the UK, according to Cambridge Network’s new announcement, the EPO will participate in some patent propaganda very soon. To quote: “The event will feature an impressive array of speakers including a keynote address from Professor Christopher R Lowe (University of Cambridge), and speakers from companies including AstraZeneca, Tokomak Energy and the EPO.”

Notice who the EPO speaks alongside; AstraZeneca et al. (the firms that nowadays have key positions at IP Kat as well).

“Today’s EPO is in bed with people who habitually attack judges, just like EPO management does.”Earlier this week the EPO invited feedback on its software patent policy, G 1/19 (“Patentability of computer-implemented simulations”).

Hardly to our surprise, Hans Wegner and Tobias Kaufmann, two patent zealots from Bardehle Pagenberg (i.e. the usual), are already lobbying the EPO for these illegal software patents. Why? Simply because they profit from frivolous lawsuits over bogus, abstract patents.

Bastian Best, their colleague, wrote in Twitter: “Should computer-implemented simulations be patentable? This is a very important question for the future of the digital economy in Europe. I hope the @EPOorg Enlarged Board of Appeal follows our position.”

Why? So you can destroy yet more European software companies, Bastian?

What he says there is akin to, “I hope EPO breaks the law (as it already does every day)…”

Benjamin Henrion has already noticed this and said: “For those with a brain: “These inventions cannot be classified as merely mental or abstract ideas” Like software is not abstract, nor the other items excluded in the EPC [] Red Dove software patent decision is 50 years old https://www.bardehle.com/de/ip-news-wissen/ip-news/news-detail/amicus-curiae-brief-concerning-g-119-patentability-of-computer-implemented-simulation-methods.html”

“Earlier this week the EPO invited feedback on its software patent policy, G 1/19 (“Patentability of computer-implemented simulations”).”A longterm activist against software patents (hired since then by Red Hat and thus working for IBM now) said: “It’s still called „software“, no matter how much EPO er al try to push „computer implemented X“. We are talking about patents on software. It’s that simple.”

The EPO “breaks the law,” I told him, “and hopes to disguise that using semantics.”

Here’s what the EPO wrote (warning: epo.org link): (“EPO technical tautologism at its paroxism,” as the above puts it): “can the simulation of a technical system solve a technical problem by producing a technical effect which goes beyond the simulation’s implementation on a computer, if the simulation is claimed as such?”

What baloney; I’d gladly submit another letter to the boards as I did a decade ago (to the Enlarged Board); but this time, under the new and profoundly rogue administration (not Brimelow), it doesn’t look like these boards are liberated/permitted to rule as they see fit, i.e. based on the EPC.

“it doesn’t look like these boards are liberated/permitted to rule as they see fit, i.e. based on the EPC.”Buzzwords, buzzwords, buzzwords, buzzwords…

Just stick one in: “AI”? “CII”? What next?

Here come ENSafrica’s Hugo Biermann and Rowan Forster with another promoted pile of literary nonsense entitled “When intelligence is artificial” (just more of the “hey hi” hype in the context of patents, quoting the EPO which exploits the buzzword to grant illegal patent monopolies).

This is what they wrote:

The abovementioned article in The Patent Lawyer discusses the fact that a team led by a university professor has successfully filed the first patent applications for inventions created by AI, with the inventor having been named as DABUS. DABUS is the name given to the machine in question and stands for “device for the autonomous bootstrapping of unified sentience”. Both the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO) have apparently indicated that there are no issues with novelty, inventive step or industrial applicability in respect of these inventions.

But what about the fact that the inventor is not human, but rather an AI machine or program? That’s the tricky part. According to the article there “have been claims of AI generating inventions for decades, but an AI inventor has never been disclosed in a patent application.” However, that is likely to change. “Modern AI may fundamentally change how research and development takes place. In some cases AI is no longer a tool, even a very sophisticated tool; in some cases, AI is automating innovation.”

The article explains that no country’s law specifically deals with the issue of whether or not AI inventions can be patented. However, most jurisdictions have restricted inventorship to natural persons, in order to prevent corporate inventorship. The article suggests that the right approach is for the AI to be listed as the inventor and for the AI’s owner to be recorded as the owner or assignee of the patent.

In another article dealing with the DABUS applications, a spokesman for the EPO is quoted as follows: “The current state of technological development suggests that, for the foreseeable future, AI is… a tool used by a human inventor.” We’re told that a UKIPO spokesman has also confirmed that an inventor must be a natural person. Whilst conceding that, change may well be required: “The government believes that AI technology could increase the UK’s GDP by 10% in the next decade, and the IPO is focussed on responding to the challenges that come with this growth”.

There are two aspects to this “hey hi” hype; one is about automating applications (or drafting thereof) and another regards patenting of such processes. The EPO often conflates the two aspects, probably by intention.

“Today’s EPO is a highly dysfunctional patent office which often seems to be run by litigation firms, for litigation firms.”Yesterday we spotted OSE Immunotherapeutics celebrating a new EPO-granted monopoly on cancer treatment. This is nothing to be celebrated, but they issued a paid-for press release [1, 2]; imagine what would happen if the boards weren’t 10,000 cases (appeals) behind and were able to actually decide on the legality of such controversial patents.

Today’s EPO is a highly dysfunctional patent office which often seems to be run by litigation firms, for litigation firms.

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