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09.14.19

Illegal/Invalid Patents (IPs) Have Become the ‘Norm’ in Europe

Posted in Europe, Patents at 11:06 am by Dr. Roy Schestowitz

The European Patent Office keeps spitting on the laws which govern it (EPC)

Illegal spit

Summary: Normalisation of invalid patents (granted by the EPO in defiance of the EPC) is a serious problem, but patent law firms continue to exploit that while this whole ‘patent bubble’ lasts (apparently the number of applications will continue to decrease because the perceived value of European Patents diminishes)

35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) and the EPC at the European Patent Office (EPO) ought to have prevented all sorts of crazy abstract patents or patents on things in nature; but António Campinos follows Battistelli‘s footsteps and only ever strives to increase so-called ‘production’ as measured by things like number of patents granted. This means that bogus European Patents are being granted.

“Too bad the EPO does not follow the rule of law, maybe the other German constitutional complaint about the EPO will end up declaring the EPC construction illegal…”
      –Benjamin Henrion
In response to something we wrote some days ago about Koch v EPO [1, 2, 3, 4] Benjamin Henrion of FFII joked about the FCC (Germany’s Constitutional Court): “Too bad the EPO does not follow the rule of law, maybe the other German constitutional complaint about the EPO will end up declaring the EPC construction illegal…”

Given that the EPO already grants lots of software patents in Europe, one wonders if the EPO is bound by the EPC and Europe’s political system. As recently as days ago the EPO mentioned Fröhlich, a booster of illegal software patents. “Michael Fröhlich,” it said, “our Director European & International Legal Affairs, PCT, will be talking about the most efficient filing strategies at this event. It’s being held in various European cities…”

Michael Fröhlich typically offers tricks and loopholes for obtaining illegal patents. We’ve mentioned Fröhlich several times over the years, e.g. in relation to “blockchain” patents.

“Michael Fröhlich typically offers tricks and loopholes for obtaining illegal patents.”Lawlessness isn’t limited to the EPO itself. As we’ve shown here many times before, it extends to ILO — a subject we shall revisit some other day. They hide the lawlessness using all sorts of legal maneuvering. It would be good for all EPO staff to become familiar with these tricks. As Henrion put it just before the weekend: “Software patents are excluded from the EPC art52, but the EPO grants them anyway. And even if this case makes jurisprudence in Belgium on that topic, the EPO will ignore it and continue to pollute the market with those pesky patents.”

Henrion also took note of some more propaganda from Bardehle Pagenberg; they constantly promote these illegal patents — something they try to specialise in. Here’s Bardehle Pagenberg’s Bastian Best pushing their sales pitch into hubs right now. So does Kilburn & Strode LLP, which we wrote about earlier today (same hubs).

“Video games are software. Algorithms in computer games (as opposed to controllers etc.) are not patent-eligible, even if one calls them “AI” or whatever.”Misleading headlines can now be found in Lexology (original here by Kilburn & Strode LLP’s Thomas Hamer and Matthew Woodhill). It’s a marketing piece by which they try to advance/push fake patents into Europe (where these patent are illegal), riding hype waves and buzzwords such as “AI”. To quote: “A recent report by the Interactive Software Federation of Europe (ISFE) puts the 2018 market size for the video game industry in Europe at €21bn, with a year-on-year growth of 15%. It’s therefore no wonder that the biggest players in the industry want to protect the next generation of hand-held controllers, software and consoles. By looking at publication and grant data for applications at the EPO over the last 10 years, we can observe the technological trends in this time and try to predict what the future might have in store for gamers. [...] The third patent trend: using AI and machine learning (ML) to dynamically improve gameplay.”

Video games are software. Algorithms in computer games (as opposed to controllers etc.) are not patent-eligible, even if one calls them “AI” or whatever. Surely they know this, but they just don’t care. Neither does the EPO, whose management actively encourages applicants to call all sorts of things “AI” and then pressures examiners to grant.

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