11.22.19

Global Patent Warming

Posted in Europe, Patents at 2:06 am by Dr. Roy Schestowitz

I cannot grant those patents. So I will change the rules.

Summary: The old term “Global Patent Warming” comes to mind when one assesses the neoliberal approach of today’s EPO, where the sole goal is making piles of money by granting loads and loads of illegal European Patents

UNDER the reckless management of Campinos and Battistelli the European Patent Office (EPO) makes it a lot easier for examiners to allow European software patents (sometimes compelling them to grant in defiance of the EPC because of the misguided guidelines), at least within the Office, not outside (national courts). Lawyers would admit and they occasionally say that it’s even harder to get software patents from the USPTO (after AIA and 35 U.S.C. § 101) than from the EPO.

“Off-the-shelf Free/libre software libraries allow programmers to paint just about everything as “hey hi” within less than one hour.”It’s very troubling to us, especially geeks. The EPO makes it easier to get illegal patents on statistics and mathematics by misusing buzzwords like "hey hi" (AI) — a term that nowadays refers to all sorts of things ranging from automation to computing. Off-the-shelf Free/libre software libraries allow programmers to paint just about everything as “hey hi” within less than one hour. It’s very ‘plug-n-play’; and still… it all boils down to algorithms.

Grzegorz Wesela-Bauman (JWP Patent & Trademark Attorneys) has published in Mondaq this piece entitled “New EPO Guidelines – Easier Procedures For Patenting AI-Based Inventions” and we’ll quote just the relevant pieces of text while highlighting key parts:

The EPO has made considerable changes to both the procedural issues, which are important for patent attorneys, and in recognizing the patentability of inventions, which is of importance for inventors.

Among the procedural changes, it is worth pointing out the simplified representation for applicants before the EPO before granting the patent, or the simplified method of obtaining discounts for application payments and substantiative examinations when there is more than one applicant.

Substantive changes include granting AI-based inventions the status of technical solutions. A significant change has also been made in the area of novelty search, which may affect the procedures required for inventions in chemistry and pharmaceutical sciences. Additionally, facilitation is on the way for demonstrating the level of inventiveness, in particular for biotechnological and pharmaceutical inventions.

The number of changes is enormous and exceeds the scope of this post. Below is a short presentation of selected changes.

[...]

At present, the European Patent Office is working on clarifying the issue of patentability of inventions which were previously considered non-technical. This is relevant because recognizing the technical character is the first and foremost condition for an invention to be considered as such. The examination of the novelty and inventive step cannot begin until the first condition has been met.

Inventions that were previously denied technological character were the so-called computer implemented inventions (CIIs). Last year the EPO decided that those inventions are in fact technical. Artificial intelligence-based inventions (AI) and machine learning-based inventions (ML) have recently followed suit.

In the previous versions of its guidelines, the EPO demonstrated that it should be assumed that AI/ML inventions are non-technical. In the new version of its guidelines, the EPO has changed that approach and stated that the EPO’s experts must assume that AI/ML-based inventions may have technical character.

Although this change may seem only superficial, it offers a significant improvement for the applicants. To be more precise, after the guidelines come into force, what the EPO experts will have to demonstrate is a lack of technical character of an AI/ML-based invention, whereas earlier it was the applicant who had to prove that the invention had technical character.

It is worth noting that there is a chance that the procedure for AI/ML inventions will become even friendlier for applicants this year. The European Patent Office is currently deliberating whether inventions based on computer simulations can be patented. Should this happen, it will become easier for applicants to not only demonstrate the technical character but also to demonstrate that this type of invention involves an inventive step.

So just like that they ignore caselaw, violate the EPC, throw away instructions from Parliament and trample over software developers (who were never consulted about this).

Lobbying by the litigation industry, helped by their media (with buzzwords and hype waves), may have yielded results.

“Lobbying by the litigation industry, helped by their media (with buzzwords and hype waves), may have yielded results.”The EPO is basically stepping away further and further — even more so under Campinos — from the rules that govern it. Then it goes to other countries for photo ops that yield this kind of piece from J A Kemp LLP (patent litigation firm). To quote: “It has been announced that the European Patent Office (EPO) has signed an agreement with the government of Georgia to enable European patents to be validated in Georgia. The validation agreement will enter into force once it has been adopted into Georgian law.”

So EPO guidelines become another country’s too? Even outside Europe? Even if the EPO violates the law? We don’t suppose Georgia’s ‘IP’ people understand that nowadays many European Patents are fake/invalid patents. We’ve also just noticed this new puff piece from World Intellectual Property Review, reminding us once again that it’s little but a megaphone of litigation zealots and — by extension — EPO management. To quote: “The European Patent Office (EPO) has released new search tools in a bid to improve the world’s largest free collection of patent documents. In an announcement yesterday, November 19, the EPO said the new Espacenet is a “substantially revised and improved version” of its existing patent information search tool. It said new functions will make it easier for users to conduct searches and access more than 110 million patent documents from across the world for free.”

“Good luck to the lone inventor, searching monopolies or millions of submarine patent ambushing him/her, awaiting litigation opportunities to bankrupt his/her business.”For free!

Good luck to the lone inventor, searching monopolies or millions of submarine patent ambushing him/her, awaiting litigation opportunities to bankrupt his/her business. Good for innovation?

Why aren’t there BILLIONS of documents? Not yet? Maybe trillions? That would be lots and lots of “innovation”… correct?

We’ve meanwhile also learned from this self-promotional article in Lexology that “a recent European Patent Office (EPO) case has shown that further measures may well be needed” to “keep information truly confidential…”

But wait, isn’t patenting all about publication?

Terence Broderick from UDL Intellectual Property [sic] writes about T2239/15, which concerns MPEG. These MPEG patents are very likely bogus software patents (geometry, mathematics etc.) that are grouped in massive numbers to make it far too expensive to invalidate them all. The EPO should not grant any of these, but in practice it even offers special awards to the person who's responsible for hundreds of these. From the article:

In recent case T2239/15 the EPO considered whether documents which were said to be ‘private’ were also ‘confidential’, in the absence of any agreement to say so.

Two prior art documents were cited in examination proceedings which the applicants claimed were confidential working documents, circulated as part of the MPEG (Motion Picture Expert Group) working group. The applicants submitted that a confidentiality agreement was in place within the working group.

A variety of submissions were filed to support this stance which centred on the secrecy associated with national standards bodies, obligations set out in guidelines for delegates and files which set out that documents resulting from meetings of the working group (known as input documents) were considered ‘private’.

However, the flexible nature of the working group couldn’t support an obligation of confidentiality on the members. Indeed, the documents themselves even indicated that members of the group were encouraged to seek external expertise. It was said that the number of members was indefinite and that no absolute obligation of confidentiality existed.

Therefore, the problem wasn’t sharing documents, but that it couldn’t be guaranteed that all members of that group were covered by an explicit obligation of confidentiality — even if documents shared between the members are accepted as being ‘private’.

The EPO does not care about confidentiality; the EPO violates confidentiality and then covers it up. It’s a crime, sure, but if the EPO hides evidence of it, will it count? And even if it got caught, nobody would be punished because of immunity.

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