10.26.19

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G1/19: Enlarged Board of Appeal Bombarded by Monopolies, Law Firms and EPO President in Favour of Software Patenting

Posted in Europe, IBM, Law, Patents, Red Hat at 6:31 am by Dr. Roy Schestowitz

It’s as if court outcomes too can be bought (caselaw up 'for sale' or setup)

EPO toons

Summary: The largest panel of judges at the European Patent Office (EPO) isn’t listening to actual scientists and technologists; instead it takes instructions from a nontechnical tyrant (who can punish them) along with law firms and legal departments of international monopolists that overwhelm submissions because they can afford it

THE absence of justice at the EPO is largely the fault of the dictatorship at the Office — a ruthless dictatorship that’s being defended by the Council too (the Organisation). How can there be a patent office where the very basic concept of justice does not prevail? Where judges are collectively punished by being sent to exile (Battistelli pretended this attack would ‘improve’ their independence) and when legally questioned over it the question itself gets squashed and buried? It’s like the lawlessness itself has become illegal to debate.

“How can there be a patent office where the very basic concept of justice does not prevail?”Simon Davies, Consultant and Patent Attorney at D Young & Co LLP, has just mentioned the upcoming case regarding — inter aliasoftware patents in Europe. He may be missing the point that this court or board or tribunal is pressured (already, as we’ve covered here before) by EPO President António Campinos to allow such abstract patents (which aren’t legal or constitutional; neither is his intervention!). In his employer’s site he wrote about it using the usual buzzwords and euphemisms, e.g. “CIIs”:

For the first time in the history of the EPO, the Enlarged Board of Appeal (EBA) has been asked for a decision relating to the patentability of computer-implemented inventions (CIIs) .

The present case, G1/19, stems from a referral by an EPO Board of Appeal in the case T489/14 and concerns the patentability of a computer-implemented simulation as described in EP 03793825.5, derived from WO2004023347: “MOVEMENT OF AN AUTONOMOUS ENTITY THROUGH AN ENVIRONMENT”. The web-site of the PCT applicant refers to the development of “a phenomenological model tuned to reproduce the movement of individuals in public venues hosting large crowds”. This topic has been the subject of academic study; for example, the application itself cites “Simulating dynamical features of escape panic“ by Dirk Helbing, Illis Farakas and Tamas Vicsek, Nature, volume 407, pages 487 to 490 (2000).

Benjamin Henrion has just reviewed the submissions, which can take a long time to prepare (lots of money in the event of using/hiring law firms to do this or even in-house legal departments with massive salaries), not just to read. “Watch all those large corporations pushing for software patents, where is the opposition? Time for a new directive,” he said. It has been a long time since 2005.

“It’s like the lawlessness itself has become illegal to debate.”“The “opposition” does not make billions of dollars per quarter,” I told him, “hence no dedicated legal department to lobby (write documents to) the corrupt EPO where judges are terrorised by EPO [P]resident, working for litigation zealots…”

Had the EFF given a damn about Europe and the EPO (it consciously ignores all this), there would be far more submissions from actual developers. That’s what happened after the U.S. Patent and Trademark Office (USPTO) had asked for feedback on 35 U.S.C. § 101 guidelines. Yesterday the EFF published two articles about the USPTO (see [1,2] below), but it never ever said anything about the EPO!

Henrion went on to providing some examples, which include “Amicus Curiae Brief for case G1/19 before the EPO Enlarged Board of Appeal” by Dr. Reinier B. Bakels (September 2019).

Bakels is quoted [1, 2] as arguing: “The EPO attempted to resolve this paradox by 65 requiring a “further technical effect” for “computer-implemented inventions” [...] As Enlarged Board of Appeal, you are at a turning point. Building on existing case law is normally desirable, but then the current fundamental problems remain: [...] 3.the lack of democratic legitimacy of particular EPO interpretations…”

“Benjamin Henrion has just reviewed the submissions, which can take a long time to prepare (lots of money in the event of using/hiring law firms to do this or even in-house legal departments with massive salaries), not just to read.”I quickly opened the entire document [PDF]. It’s long. Not many people will read it. I once submitted one of my own.

It should be noted that as recently as Friday the EPO tweeted: “Want to know more about patenting computer-implemented #inventions? Check this out…”

They’re still using misleading terms that help hide the illegal practice; they give tips for getting illegal, bunk patents — patents that European courts would throw out. This isn’t “the EPO’s problem,” according to management composed of patent maximalists, to whom the only thing that matters is money.

Henrion then said: “EFPIA (Big Pharma) is now lobbying for software patents … Leave business to big business.”

This is the document [PDF]

“They’re still using misleading terms that help hide the illegal practice; they give tips for getting illegal, bunk patents — patents that European courts would throw out.”Here’s the one from Philips [PDF] — a submission from which Henrion quoted “a technical solution for a technical problem,” remarking that it “sounds like it loops back to itself” (technical effect, solution, problem… something “technical” — whatever that means!).

Wake up, Red Hat employees. Your employer is lobbying for software patents in Europe yet again! About a decade ago it said that Open Source innovation was only possible ‘thanks’ to software patents — patently a lie that enraged many of us. Henrion pulled this document from IBM [PDF], remarking that “IBM still lobbying for software patents in G1/19…”

“Wake up, Red Hat employees. Your employer is lobbying for software patents in Europe yet again!”Suffice to say, G1/19 is expected to be more of the same, i.e. a case to be decided as the President pleases. G1/19 will likely give the EPO more excuses to grant illegal software patents while ignoring caselaw of European courts, instructions from Parliament, the EPC and so on. Actual software developers and their interests obviously don’t matter here. They’re treated as passive observers.

D Young & Co LLP’s Stephanie Wroe (collague of the above) has meanwhile promoted her article about another case, G1/18. To quote:

In view of conflicting decisions concerning the refund of Appeal fees, the Enlarged Board of Appeal considered in G1/18 the distinction between (i) an appeal deemed not to have been filed (and thus the fee is refunded) and (ii) an inadmissible appeal (in which the fee cannot be refunded).

The Enlarged Board concluded that an appeal is deemed not to have been filed if the notice of appeal is filed after the two-month limit and/or the appeal fee is paid after the two-month limit. Thus, the appeal fee will be reimbursed.

In a welcome development, the Enlarged Board indicated that this also applies to similar situations such as opposition proceedings.

There’s another new article being pushed, this time by Iain Robertson (Haseltine Lake Kempner LLP) who comments on T 0235/13. He would have won bonus points had he mentioned the EPO Boards of Appeal lack independence and any decision issued in Haar is legally invalid as per the EPC — a subject that the EPO refuses to even entertain.

“Unless or until this issue is properly tackled — i.e. without the Office President meddling in the outcome — everything will be buried instead of tackled.”“Two recent decisions from the Boards of Appeal of the European Patent Office have highlighted the difficulties applicants and opponents can face when trying to reply on new experimental data to support their arguments,” Robertson wrote. “In T 0235/13, the appellant tried to rely on post-published evidence to support the inventiveness of their application.”

Here’s more:

In T 2469/17, an appellant-opponent tried to rely on experimental evidence to show that a patent lacked novelty over D1, D2 and D5.

The appellant-opponent re-produced a sample from an example in D1. The re-produced sample had a different bulk density and a different viscosity to those reported in D1. Although claim 1 in this case did not define the claimed product by its bulk density or viscosity, the differences in these properties were enough for the Board of Appeal to conclude that the sample re-produced by the appellant-opponent was not, in fact, the same as that disclosed by D1, and so the re-produced sample was irrelevant to the novelty of the claims in this case.

D2 did not disclose all the information necessary to exactly re-produce the examples disclosed by D2, and so the appellant-opponent had to make some assumptions when trying to re-produce the examples from D2. They argued that these assumptions were based on an evaluation of what the skilled person would have done. However, the Board of Appeal decided that there simply was not enough information in D2 to re-produce the examples of D2, and so the Board decided that the sample produced by the appellant-opponent was not directly and unambiguously disclosed by D2. Consequently, the sample did not affect the novelty of the claims in this case.

All these other cases serve as somewhat of a distraction from what we’ve long focused on. That’s patent scope. The reason the EPO is said to have increased so-called ‘production’ (monopoly protection) is the lowering of the bar and granting of illegal patents. Unless or until this issue is properly tackled — i.e. without the Office President meddling in the outcome — everything will be buried instead of tackled.

Related/contextual items from the news:

  1. Weakening Our System of Patent Challenges Will Hurt Consumers, Unions, and Health Care Providers

    The Stronger Patents Act, S. 2082, won’t give us a stronger patent system—just the opposite, in fact. It is a deliberate attempt to dismantle one of the few effective forums for challenging wrongly-issued patents. The bill would put dramatic and unwarranted changes into effect that would make the U.S. Patent Office’s system of inter partes review, or IPR, much less effective. That means the Stronger Patents Act will weaken the quality of issued patents and the patent system as a whole.

  2. Patents Are About Sharing Information with the Public. Don’t Shroud Them in Secrecy.

    Patents give their owners the power to stop people (and companies) from doing whatever the patent claims as an “invention” for twenty years. But that power doesn’t come for free: it’s a trade. In exchange for the right to sue others to stop using the invention, patent applicants have to disclose enough information about their invention to allow others in the field to make and use it. Encouraging people to share information so that others can use it to make further advances is the whole point of the patent system.  

    The public can read the information in a patent from the moment it’s published. But for the twenty years of a patent’s term, the owner can sue anyone who uses their invention without their permission. To get permission, members of the public need to know who owns the patent and therefore has the power to control and demand payment for its use. Unfortunately, essential information about patent ownership is often out of the public’s reach. In particular, patent trolls—individuals or companies that make money by threatening to sue instead of developing or commercializing technology—often divide up patent rights between different entities in ways that make it practically impossible to identify the legal owner of a patent. A 2012 study found that notorious patent troll Intellectual Ventures divides its portfolio among over 1000 different shell companies. There are a number of reasons why patent owners might want to keep ownership information secret. For example, doing so might limit fee awards for bad litigation conduct to an entity with no assets, shielding its parent company from the full price of overly aggressive patent enforcement.

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