EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

10.26.19

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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Google Bookmarks
  • Ask
  • Digg
  • Mixx
  • Slashdot
  • StumbleUpon
  • Alltagz
  • BarraPunto
  • blinkbits
  • BlinkList
  • Bloglines
  • blogmarks
  • BlogMemes
  • Fark
  • Gwar
  • Klickts

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. Links 3/8/2020: Linux 5.8, GNU Linux-libre 5.8, Libinput 1.16, Rust 1.45.2, Julia 1.5

    Links for the day



  2. IRC Proceedings: Sunday, August 02, 2020

    IRC logs for Sunday, August 02, 2020



  3. [Meme] Is It Not a Layoffs Round When You Rebrand It?

    More and more Microsoft layoffs; but the media is hardly interested in reporting those and/or analysing the growing scale of the layoffs (about half a dozen rounds of layoffs this summer alone)



  4. IBM is Already Gutting Red Hat and Firing Employees Without Warning, Jim Whitehurst Isn't Even Using GNU/Linux

    The situation at Red Hat isn’t good, employee morale is very low, and yet — perhaps unsurprisingly — nobody seems to be talking about it (at least not in the mainstream media)



  5. Microsoft Lays Off Many More Workers in the Advertising Division/s and Terminates Products While the Press is Distracted by TikTok Rumours

    Microsoft is laying off a huge number of workers without properly reporting these and whilst exploring ways to divert attention away from those layoffs



  6. Links 2/8/2020: Wine-Staging 5.14, VokoscreenNG 3.0.5

    Links for the day



  7. IBM and the Bomb - Part VI: Diplomacy Replaced With 'Trade' (Money Over Politics), or How Watson Jr. Was Sold to the Public, in the Same Way His Father (IBM Co-founder) Sold His Business Relationship With Dictators Like Hitler

    Sometimes people are led to believe that corporations directly and indirectly run their country; judging by the events of 4 decades ago (IBM chief becoming the American representative in Russia/Soviet Union), this is hardly a new thing and it's not a myth, either



  8. IBM and the Bomb - Part V: Arms Control by Company That Profits From Nuclear Arms? World War II Mistakes Repeated?

    A decade after the end of the deadliest war his father died and two decades later he repeated the same mistake — the error of conflating business with politics, as if maximising revenue would miraculously achieve the best outcome for nations as well



  9. IRC Proceedings: Saturday, August 01, 2020

    IRC logs for Saturday, August 01, 2020



  10. Links 2/8/2020: Nitrux 1.3.1, Debian GNU/Linux 10.5 “Buster” and Wine 5.14 Released

    Links for the day



  11. [Meme] Privilege: When They're Born Into Money That Means They Know Everything About Anything

    Tens of thousands of nuclear weapons were in 'safe hands' because rich kid Tom was representing the United States in Russia (USSR at the time), having proven his skills by being born to the man who had met Hitler and made lots of money in the Third Reich



  12. IBM and the Bomb - Part IV: IBM's Watson Came Under Fire for Representing the U.S. in U.S.S.R./Russia With No Qualifications or Any Relevant Experience

    There was certainly resistance to "Mr. rich man" Watson Jr. becoming a US diplomat owing to privilege (born into the 'right' family) rather than experience and/or political track record, symbolising a sort of "revolving doors" phenomenon -- namely overlap between business and politics, or money and power, respectively



  13. IBM Loves Power (and Nuclear POWER, or Expensive OpenPOWER) More Than It Loves GNU/Linux

    As we noted last week, IBM is very close to Modi because it is moving a lot of its workforce to India and this can become a future liability to IBM’s reputation (or lack thereof) as a tolerant firm



  14. IBM and the Bomb - Part III: IBM's Watson Jr. Rose From Business V.I.P. to U.S. Ambassador in the Soviet Union During the Cold War (Which IBM Profited From)

    Like his father, who was IBM‘s co-founder and later president of the International Chamber of Commerce (ICC), which helped the Nazis, Watson Jr. entered US and international politics in his later days; recently-declassified documents show us his political legacy



  15. Donald Trump's Trash Against China Helps Prop up Microsoft Monopoly and Distract From All the Microsoft Layoffs

    Microsoft as a surveillance giant of the United States government isn’t a myth; it was first in the PRISM programme of the NSA (Bill Gates is a loud proponent of NSA surveillance), it took over European Skype under mysterious circumstances, and now it might be getting TikTok as a ‘gift’ from Donald Trump’s friends and the imperialists, in effect confiscating Chinese assets for full-spectrum dominance



  16. [Meme] Testosterone Patent Office

    When you're running an office that's barely diverse at all and you paint a misleading picture of it expect backlash



  17. The Criminals Who Run the EPO Are Exploiting Lesbian, Gay, Bisexual and Transgender People to Distract From Their Corruption and Crimes

    The misuse of social justice causes by corporate interests has become grotesque; more people ought to speak about the ramifications and object/work against this misuse, which mostly serves to obscure or distract from the biggest issues



  18. EPO Workers Are Losing Their Homes and Losing Their Time Off; It's All About So-called 'Production'

    As another wave of attack on labour rights, European Patent Office (EPO) workers turn their homes into their workplaces and they no longer enjoy any real breaks from work (they work all year around, sometimes until midnight and overnight); they’re supposed to be thankful and even happy as if António Campinos does them a favour by not firing them (at least not yet) and because there’s a health crisis they should be grateful for anything thrown at them (Benoît Battistelli + disaster = Campinos)



  19. IRC Proceedings: Friday, July 31, 2020

    IRC logs for Friday, July 31, 2020



  20. Managing IP Still Champions Fake 'News' for Team UPC

    Managing IP does not care about its reputation; all it cares about is appeasing its clients by spreading falsehoods and perpetuating baseless hope



  21. Links 31/7/2020: Sys Admin Appreciation Day, GTK 3.99, Alpha of Wayland's Weston 9.0

    Links for the day



  22. IRC Proceedings: Thursday, July 30, 2020

    IRC logs for Thursday, July 30, 2020



  23. Microsoft Banned *GPLv3 (It Would Have Done the Same Even in GitHub Had GitHub Not Already Hosted GPLv3-Licensed Projects)

    Techrights reproduces this decade-old article from RMS



  24. People Who Believe Global Warning is a 'Hoax' Are the Types Who Might Think Microsoft Really Loves Linux

    Facts don’t seem to matter all that much when the Public Relations ‘industry’ pays to push lies (and “Microsoft loves Linux” is among those truly laughable lies, which are valuable to Microsoft's long-term objectives and are therefore repeated endlessly in the media for maximal effect)



  25. [Meme] GitHub is Not About Sharing But About Giving... Everything to Microsoft

    Microsoft wants to meet your ‘meet’ (meat) and assimilate it as Microsoft’s own; why would anyone still be giving anything (code, bug tracker, CI etc.) to proprietary and centralised (controlled by Microsoft) platforms in 2020? It’s a trap, as even the logo serves to suggest (octopuses putting their tentacles all over you and crushing you with their mouths).



  26. Bill Gates Calls the Chinese 'Pirates' (But He's Simply Projecting Again)

    The world's "most generous" person (according to publishers whom this "generous person" pays to write this) is saving the world from "pirates" (but not the ones in Somalia, just poor people in places like China)



  27. Microsoft Needs Linux (More Than GNU/Linux Needs Microsoft) for the Same Reason a Drowning Person Needs 'Revenge'

    There’s this persistent notion, based upon a deliberate lie (which Microsoft pays the media to perpetuate), that Microsoft has ‘come around’ and magically learned to “love” the competition (as if Ballmer and Nadella are opposites when they’re in fact friends and longtime colleagues); it’s obviously just a phase of a very old strategy and some out there are still in denial about it (this denial is being encouraged by the bribed publishers, notably the mainstream media)



  28. [Meme] It Was Only a Matter of Time All Along

    Taking boot level control away from computer users was a bad idea all along; giving Microsoft control over Linux booting was the icing on the cake (having to ask Microsoft for certificate/permission), not to mention an FSF award for it



  29. IBM and the Bomb - Part II: How IBM Sneaks Into Positions of Power (and Nuclear Power, Global Superpower, Nuclear Weapons)

    We remind readers of the role IBM played in unbridled armament (from which it profited a lot) whilst also picking diplomatic roles in the American government



  30. Karma or Hubris? Is #TorvaldsWasRight a Thing Now?

    Techrights did not forget how UEFI 'secure' boot came into kernel space; This proposal came from Red Hat and then foisted/pushed onto Linus Torvalds by at least 3 Red Hat employees (the mainstream media blasted Torvalds for his response to this 'offensive' technical move by Red Hat, helping Intel and Microsoft control silicon at CA level)


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