09.05.19

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.

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

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. The US Election Was Not Rigged, But the Nomination Process Was (Undermined to Maintain Control by Oligarchy)

    Cheating/driving the left out of the Democratic Party seems like a longstanding tradition and we know who stands to gain from it; moreover, problems remain in the voting process because it's controlled by secret code of companies like Microsoft (in spite of the openwashing)



  2. InteLeaks – Part XX: Redacted (for Names Only) Release of Intel File About Developer eXperience (DX) Meddling in GNU/Linux

    Today (or tonight) we release the first 'phase' of InteLeaks in a sensibly redacted form; coming up next is a surprise from Team Microsoft



  3. Sites in Bed With the EPO and UPC 'Covering' the 'News' Without Mentioning Any of the Overt Abuses

    It is rather sad that blogs like IP Kat have turned into proponents of abusive EPO management and Team UPC increasingly resorts to lying using pseudonyms (to avert criticism and accountability); much of the rebuttal or response that’s hinged on reality/facts can only be found in comments, which are still subjected to a face-saving moderation process (conducted by Team UPC)



  4. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part IV: Stories From the Depths of the Free Software Foundation (FSF)

    To reduce or alleviate suspicions and a potential of mistrust the FSF needs to become more transparent and liberate information (such as the real reason Bradley Kuhn left, as noted in the previous part)



  5. Links 18/1/2021: GNU Radio 3.9, Wikipedia at 20

    Links for the day



  6. InteLeaks – Part XIX: Intel's Web 'Experts' Seen as Microsoft Champions Dealing With the Platform Microsoft is Looking to Destroy

    Things aren't rosy at Intel because the hires aren't suitable for the job of documenting and/or presenting GNU/Linux-centric products (whose target audience is Free software developers)



  7. Adding Images as Characters to the Daily Bulletins of Techrights

    Our daily bulletins now have inside them coarse graphics, depicted using characters alone, and the tool used to generate them announced a new release earlier today; we showcase some of its features (in a new video)



  8. Links 18/1/2021: Weekly Summaries and Linux 5.11 RC4

    Links for the day



  9. IRC Proceedings: Sunday, January 17, 2021

    IRC logs for Sunday, January 17, 2021



  10. The Oligarchs' Parties Will Never Choose the Side of Software Freedom Because Free Software Cannot Bribe Officials

    The tough reality is that next week's (or this coming week's, depending on what Sunday counts as) inauguration ceremony is partly symbolic as all the same and important issues remain largely untouched, for corporations control almost everything of significance



  11. COVID-19 Has Actually Helped Software Freedom Due to Financial and 'Spare Time' Factors

    Developers and users are increasingly exploring what the Free software world has to offer; this is actually measurable and it contradicts claims to the contrary



  12. Future Plans and Using Videos to Complement Text

    Remarks on recent and impending site changes; We are not replacing text with video, we're just trying to enhance the presentation a bit, especially where visuals help make a point or where browsing through Web sites (or leaks) is more suitable than static, linear presentation



  13. InteLeaks – Part XVIII: Intel Does Not Know How to Properly Do Research and It Seems Apparent Unscientific Methods Are Used to Justify Poor Documentation

    There appears to be a severe crisis at Intel; they cannot recruit scientists (or those whom they recruited are walking away) and as a result the company produces bad products with poor documentation (or highly defective chipsets that top-notch marketing cannot compensate for); in this video we walk through some examples of how studies are being conducted (as already noted in Part XVII)



  14. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part III: The Free Software Foundation (FSF) Seems More Like a Victim of Destabilisation Campaigns

    The Free Software Foundation (FSF), which turns 36 later this year, is looking to raise money that helps support the GNU Project, soon 38 years old and likely the most important Free software project to exist (ever)



  15. Links 17/1/2021: EasyOS on Raspberry Pi and GNU libsigsegv 2.13

    Links for the day



  16. InteLeaks – Part XVII: The High Cost of Microsoft Windows Users in GNU/Linux Development Teams

    A look inside Intel explains what holds back the technical team, which bemoans the lesser technical people getting in the way and not even using the product that they are writing about



  17. IRC Proceedings: Saturday, January 16, 2021

    IRC logs for Saturday, January 16, 2021



  18. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part II: Why Bradley Kuhn Left the Free Software Foundation (FSF)

    The founder of the FSF is still at the FSF (albeit not publicly) and the person who lobbied to oust him has basically been 'banished' by the founder



  19. Links 16/1/2021: LibreOffice 7.1 Release Candidate, Zeroshell 3.9.5, FreeBSD Report, and GhostBSD 21.01.15

    Links for the day



  20. Free Speech on the Web Not Respected by Companies That Used to Support Software Freedom

    Mozilla does not have to make its Web browser about politics; it can just make an excellent piece of software that is neutral about the Web pages that it renders, based on the user's personal preferences



  21. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part I: We Are Under Attack by Corporations and Their Salaried Facilitators

    The corporate takeover (taking over the Commons, produced by volunteers who are motivated by altruism) is a subject we must speak about and somehow tackle; this series will highlight uncomfortable or difficult truths



  22. InteLeaks – Part XVI: Intel Cannot Do Command Line, Even When It's Vastly Simpler and More Suitable for Development

    The Developer eXperience (DX) team at Intel seems to be full of Microsoft drones instead of developers and/or mildly technical people; this has not only harmed the quality of documentation but also upset staff, alienating people who actually understand what developers need (more than buzzwords like "DX")



  23. IRC Proceedings: Friday, January 15, 2021

    IRC logs for Friday, January 15, 2021



  24. Links 15/1/2021: KaOS 2021.01, Whisker Menu 2.5.2, Istio 1.8.2

    Links for the day



  25. InteLeaks – Part XV: Intel is Blind to Blind and Colour-Blind People

    Intel does not seem to grasp very basic concepts associated with accessibility; nevertheless, Intel shamelessly tries painting itself as "woke" and a "justice warrior" (policing speech while overlooking much-needed practical work)



  26. Links 15/1/2021: GStreamer 1.18.3 and Proton 5.13-5

    Links for the day



  27. IRC Proceedings: Thursday, January 14, 2021

    IRC logs for Thursday, January 14, 2021



  28. Links 14/1/2021: Wine 6.0, Debian 11 Freeze, and Alpine Linux 3.13

    Links for the day



  29. Patent Propaganda and UPC Jingoism Instead of Actual News

    Today's so-called 'news' about the EPO (Europe's second-largest institution) and the failed UPC is nothing short of shameless propaganda



  30. Links 14/1/2021: Season of KDE 2021 Selection, Mesa 21.0.0-RC1, Tor Browser 10.0.8

    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