Bonum Certa Men Certa

EPO G 1/19 (Software Patents Case) Already Compromised by Overt Violations of the European Patent Convention (EPC)

'Orange Man' or unqualified joker who does illegal things (with extended impunity) has supremacy over judges now?

Graffiti of clown



Summary: Lawlessness prevails at the EPO because the President of the Office is not respecting the judges' ability to assess the EPC on their own (without fear of reprisal); he pressured them and he was meanwhile trying to 'legalise' -- using new guidelines -- a plethora of patents on abstract ideas

EARLIER this year we wrote about what had happened in G 2/19. The European Patent Office (EPO) continued to wage a wareon the European Patent Convention (EPC), which was supposed to govern the Organisation (which in turn should govern the Office; right now it's all working the other way around!).



We have never ever seen anything even remotely like it at the USPTO (ever; in its entire history!) because with 35 U.S.C. €§ 101 and PTAB there's little the USPTO can do to protect fake patents; moreover, unlike the EPO the USPTO can be sued (and this habitually does happen). The EFF has just spoken about -- in defence of course -- Alice[1]. They never ever speak about the EPO. Mark Cuban has not paid them to.

"...unlike the EPO the USPTO can be sued (and this habitually does happen)."Just before Christmas we caught some interesting bits regarding this matter. When patent maximalists (Gemma Wooden, Matthew Blaseby and Derk Visser in this case, a Wolters Kluwer bunch) want us to think that more patents would be "the merrier" (even fake patents courts would toss out) what are we supposed to think of them? Notice that third author. He's not the more famous Derk Visser, who is nearly 90 now, and not the actor but the person behind the famous and expensive book (about a hundred bucks, sold by the owner of this blog and his employer) about EPC, "The annotated European Patent Convention".

He's in EIP Europe LLP in London (litigation) and according to himself he has been "Lecturer European patent law" in CEIPI from Jan 1994 to present, i.e. 26 years of "Training on all topics of the European Patent Convention".

Over at the 'Kat' blog Riana Harvey has just advertised for CEIPI which is run by criminal Battistelli.

"Derk is actively involved in training students for the eqe all over Europe," his official pages states. Here's his latest about "inventive step" (published a couple of days ago):

One of the key questions in the assessment of inventive step within the EPO is whether or not the skilled person will adapt or modify the teaching of the closest prior art and arrive at the invention. The EPO answers this question using the so-called could-would approach developed in the early decision T2/83 of a technical board of appeal. Until recently, the Guidelines for examination in the EPO summarised the could-would approach as follows (see Guidelines 2018 G-VII, 5.3):

“In other words, the point is not whether the skilled person could have arrived at the invention by adapting or modifying the closest prior art, but whether he would have done so because the prior art incited him to do so in the hope of solving the objective technical problem or in expectation of some improvement or advantage (see T 2/83).”

The book Case Law of the Boards of Appeal of the EPO used the same summary of T2/83 as the Guidelines, also using ‘hope’ (see chapter I.D.5 in the July 2016 edition). However, the word ‘hope’ does not occur in T2/83.

The usual interpretation of T2/83 is that the skilled person must have a reasonable expectation of success to arrive at the invention, otherwise he will not adapt or modify the closest prior art. If he does have such a reasonable expectation of success and he does arrive at the invention, the invention is obvious within the meaning of Article 56 EPC. The reasonable expectation must be based on technical reasons.

The above-cited passage of the Guidelines suggests that ‘hope of solving the objective technical problem’ is an alternative to ‘expectation of some improvement or advantage’. Hence, an invention should also be obvious if the skilled person hopes to solve the objective technical problem when adapting or modifying the closest prior art.


It troubles us that Derk has said absolutely nothing about the EPO's gross violations of the EPC, which is nowadays violated and ignored (with shallow justifications). In this particular case Derk and his colleagues Gemma and Matthew persist with dreck. Never will they mention the loss of independence at the Boards of Appeal of the EPO -- a problem which judges themselves (and AMBA) have spoken about repeatedly. The EPO is still governed by thugs, who have systematically prevented these judges from regaining independence.

D Young & Co LLP's Stephanie Wroe has just written about this as well, unable to conceal that patent maximalists' agenda. All they want is lots of fake patents and frivolous lawsuits -- to the point where the firm apparently pays Lexology to spread this further and say:

The Board of Appeal held that because there had been no negative preliminary opinion from the Opposition Division and the change of opinion by the Opposition Division only occurred at oral proceedings, the patentee should be given the opportunity to respond by filing new requests. The Board of Appeal held that such new requests cannot be refused admission on the grounds that they are late filed.

The Board of Appeal went on to consider novelty which had been considered by the Opposition Division. The Board of Appeal held the claims were novel over the cited prior art. The Board of Appeal then remitted the case back to the Opposition Division to consider objections which the Opposition Division had not considered.


Good for patent maximalists, as usual.

But here comes the worse part.

As part of about 5 articles D Young & Co LLP has just published (shortly before Christmas) in Lexology and its corporate site we have Anton Baker showing his pro-software patents bias, celebrating the interference by António Campinos and trying to rationalise it. We mentioned this interference several times before, as did the 'Kats'. Campinos is meddling in the affairs of judges in order to push illegal software patents. To quote some bits:

In answering this question, the President began by immediately criticising the “direct link with physical reality” finding, noting that the EPO Examination Guidelines are littered with examples of inventions which have previously been found to be technical despite having no obvious link to physical reality. Examples occur in the fields of computer graphics, speech synthesis and cryptography.

The President went on to confirm that, in his assessment, the standard problem and solution approach coupled with the COMVIK [see note 2 below] guidance on how to tackle mixed technical/non-technical inventions is the appropriate approach to answering the referral questions.

In applying this approach, the President noted that a crucial factor is whether the design of the claimed invention “requires the technical knowledge of a person skilled in the technical field”. The President considered that it was unfair to allow technical knowledge to be included in the requirements specification provided to the notional skilled person, as this would prevent technical aspects from supporting an inventive step under the COMVIK guidance

The President went on to comment that simulations which reflect technical principles underlying the simulation actually provide an approximate imitation of the simulated operation, irrespective of any direct input or output, and hence gives information about the technical properties of the simulated system.

As such, the President concluded that the first question could be answered as follows: “a computer-implemented simulation of a technical system or process claimed as such solves a technical problem by producing a technical effect going beyond the computer-implementation when it reflects, at least in part, technical principles underlying the simulated system or process.”

[...]

It is very encouraging to see the EPO President taking an active role in helping to ensure that the Enlarged Board of Appeal comes to a well-reasoned decision in such an important area. Regarding the President’s motivation for taking such an active role it is interesting to note that over the last year Andrei Iancu, the Director of the USPTO, has produced some detailed guidance for US patent examiners on subject matter eligibility which may have acted as a source of inspiration and recognition that this is an important topic on both sides of the Atlantic.

The Enlarged Board of Appeal is presently considering the appeal but we are hopeful that they will reach their final decision in early 2020.


Why on Earth is Campinos meddling in this case? And in favour of patent maximalists of course...

What does that tell us about today's EPO? Is it a monarchy and, if so, whose?

A colleagues has also just published (in Lexology and corporate site) this reminder of the EPO formalising a 'legalisation' of illegal -- as per the EPC -- software patents. Quoting the relevant parts:

Interpretation of means-plus-function features (F-IV, 4.13.2)

The Guidelines as amended now include a section (F-IV, 4.13.2) directed specifically to the interpretation of means-plus-function features. The section states that means-plus-function features (“means for ...”) are functional features and therefore do not contravene Article 84 EPC. When considering patentability of these features, any prior art features which are suitable for carrying out the function of a means-plus function feature will anticipate that feature of the claim.

The Guidelines then highlight an exception to this in which the function of the means-plus-function feature is carried out by a computer. In this situation, the means-plus-function features are interpreted as means adapted to carry out the relevant steps/functions, rather than merely means suitable for carrying them out. Thus, in order to anticipate a claim, a prior art document must disclose an apparatus which carries out the claimed steps rather than merely an apparatus suitable for carrying out the steps. This is likely to have an effect on the patentability of computer implemented inventions which are often claimed as methods for carrying out a purpose.

Mathematical methods – technical implementations (G-II, 3.3)

The updates to the Guidelines include an additional comment regarding the technical effect of mathematical methods. If a mathematical method produces a technical effect when applied to a field of technology and/or adapted to a specific technical implementation, the computational efficiency of the steps affecting that established technical effect are taken into account when assessing inventive step. Therefore the efficiency of an algorithm will contribute when assessing inventive step. The EPO therefore seems to be acknowledging the effects that efficient algorithms can make. This may make it easier to argue the patentability of inventions in this field.

Mathematical methods – AI and machine learning (G-II, 3.3.1)

Further comments have been included with respect to AI within the section on mathematical methods. Previously, the expressions “support vector machine”, “reasoning engine” or “neural network” were written as referring to abstract models devoid of technical character. The Guidelines now state that these expressions may, depending on the context, merely refer to abstract models or algorithms and thus do not, on their own, necessarily imply the use of a technical means. The Guidelines then state that this has to be taken into account when examining whether the claimed subject matter has a technical character as a whole. It therefore seems that the EPO are recognising the potential for patentable inventions in this area.

Programs for computers (G-II, 3.6)

As for section (G-II, 3.3), updates have been made to state that if a further technical effect of the computer program has already been established, the computational efficiency of an algorithm affecting the established technical effect contributes to the technical character of the invention and thus to inventive step. An example of this is provided where the design of the algorithm is motivated by technical considerations of the internal functioning of the computer (for example the efficient functioning of the computer). As with the changes to the mathematical methods section, these may make it easier to argue the patentability of inventions in this field.


What we have above is D Young & Co LLP's Alice Stuart-Grumbar on the illegal guidelines that pressure patent examiners to grant illegal (as per EPC) patents because of that "HEY HI" hype; among other things...

This is a travesty. The people who best understand the EPC aren't saying anything when the EPO so grossly violates it and compels examiners the do the same. Either they obey the law or obey illegal guidelines from managers (to secure their job). This is wrong on so many levels and nobody in the media talks about it because journalism in the patents domain is dead, dead, dead. Well, journalism in general is dying, due to lack of funding and lack of financial independence. Some publishers that still exist depend on bribes they receive from the EPO.

Here's a brand new example of it. So much for "IP News Center" (Banana Republic 'IP'), copy-pasting EPO nonsense and presenting that as news:

EPO rejects two patent applications that designate a machine as an inventor


Not a single original word in there. Whatever the EPO wrote just got copied into "IP News Center" and then presented as "news". This deafening is really saddening. It's an echo chamber.

Related/contextual items from the news:



  1. Time to Save Alice: 2019 in Review

    All too often, software patents stop more innovation than they promote. Patents are legal instruments that can be used to sue people and companies for creating, selling, or using software. Very often, the entities wielding software patents are “patent trolls”—companies that make money off suing and threatening to sue others instead of building or doing anything of their own.

    We’ve been advocating against problematic patents, particularly in software, for many years. In the past few years, it’s fair to say that patent trolls have been down—but not out. Two big changes that happened several years ago have made it realistic, finally, to get bad patents kicked out of the system. The first is the creation of the inter partes review system, in 2012; and next, the Supreme Court’s Alice v. CLS Bank decision, in 2014.



Recent Techrights' Posts

The Register MS is Still Being Paid to Participate in the "AI" Ponzi Scheme Which Will Crash the Economy
The Register MS is hoping to get lucky by tricking people into a scam
Evidence Contradicting Microsoft's Non-Denying Denials and Expectation of Many Layoffs Soon
"Microsoft has had this constant drip of layoffs for months."
At Least 3 Richard Stallman Talks in Europe Confirmed So Far, Next Week in Rome There's Another
Dr. Stallman has not announced this yet
 
Links 07/10/2025: EU' Chat Control is Back, US Cracks Down on Democracy
Links for the day
Techrights Pursues Justice and Truth Because, Without Those, Society Descends Into Chaos
most people reject dogma and pseudoscience
Upcoming Talks by Richard Stallman in Helsinki, Göteborg, and Rome
Join with him and share the software
Something Bad is Happening in the Open Source Initiative (OSI)
The latest OSI blog post is from a Microsoft operative and a few weeks ago the Executive Director left
TLS 1.3 Dominates Geminispace (99% of Known Capsules)
it's nowadays safe to assume almost every capsule can handle TLS 1.3
Why soylentnews.org Has Been Having Technical Difficulties Lately
The network has been going up and down quite a lot this past week
A Statement Against Violence
The facts are on our side
They've Run Out of Things to Rebrand or Label as "AI"
The next few years will be interesting because if Microsoft lays off tens of thousands of workers each year, there won't be much left except mountains of debt and dying brands
Richard Stallman Confirms His Talk in Göteborg This Coming Friday
"The hosts say that the list will not be given to the state"
Most of the "Linux" Results This Morning in Google News Are LLM Slop From the Same Slopfarm, Plagiarising Phoronix
The main question is, does Google even care at this point?
Gemini Links 07/10/2025: Civil War and "Goodbye Web"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 06, 2025
IRC logs for Monday, October 06, 2025
The "AI Revolution" is Going Very Well, Right?
money that does not exist and alleged potential that is pure fiction
Links 06/10/2025: Scam Altman Himself Admits He Runs a Scam Based on a Bubble, US Administration Adopts “War From Within” Narrative to Crush Opposition/Dissent
Links for the day
Slopwatch: Fake Ubuntu 'Articles' and Google News Helps People Who Plagiarise Phoronix Using LLMs
Michael Larabel can't possibly be happy about that
6,000 Pages/Articles a Year
Today in one month from now the site turns 19
When Things Become So Ubiquitous That They're Almost Nameless
The notion or the concept of software freedom isn't tied to any particular brand or project, so it should still resonate
IDG Seems to Have Abandoned Sandra Henry Stocker's UNIX/Linux Column
Unless we hear otherwise or see some update/s, this may mark another death blow from IDG
Gemini Links 06/10/2025: Winter Nights and "Virtue Signaling"
Links for the day
Links 06/10/2025: Scientific Awards and Typhoon Matmo
Links for the day
IP Kat Gone Bonkers, Pushing Slop in Patents (Likely Illegal, With Severe Consequences)
AstraZenecaKat: "Last time, this Kat covered some practical steps on how to ensure client confidentiality when using AI tools (IPKat)."
Links 06/10/2025: Grokipedia as Malicious Slop, US 'Martial Law' a "New Normal"
Links for the day
Fake Economics and Clown Computing Circuses
who's gonna pay for these scams?
Nobel Prize in Economics Does Not Exist, It's Propaganda From Sveriges Riksbank
"It is that time of the year when it is important to remind people that there are no Nobel Prizes for professional wrestling, astrology, or economics"
Rust is Eating Linux
That's a recipe for problems
Cindy Cohn (Executive Director of EFF) is a Millionaire, Earned Almost $30,000 Per Month Before Departing While the EFF Lost Money
EFF is "Big Business"
Non-Denying Denial From Microsoft (Again) Regarding the End of XBox Consoles
It's kind of hilarious that even the site chosen by Microsoft to relay its BS, based on past loyalty, isn't quite buying it
Bringing Back Lost Articles From the 1990s: Microsoft Products Leave Door Open to NSA
Nothing has changed since then
When the Slop Bubble Pops People Will Say Richard Stallman Was Right (Again)
What was once known as Computer Science turned into "IT"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 05, 2025
IRC logs for Sunday, October 05, 2025
Links 06/10/2025: Science, Hardware, and Andrej Babis Making a Comeback
Links for the day
Links 05/10/2025: Slow News Day and Wondering About the Canada Post Walkout
Links for the day
Gemini Links 05/10/2025: Telnet Debugging and The Programmer’s Brain
Links for the day
More Than "Just a Rumour": XBox Seems to Have Just Died
At this point, why would any studio out there target or partner with XBox?
How to Tell Your Community, Project or Company is Being Infiltrated by Saboteurs
How to identify nefarious social engineering
The Fortieth Birthday of the FSF Made Us Extremely Happy
It feels like the 'hacker community' is regrouping to discuss things and prepare for the next Big Challenge
Chat Control 2 Them, Not 2 U
Follow the advice of Dr. Patrick Breyer
Mozilla: Throw Away Your "Old" PC and Enable "Digital Rights Management (DRM)"
This is heading in a bad direction
Controlling Our Computing for Another Forty Years
40 years of freedom
Motivational Small Place to Run Large Sites
We deem this scenery motivational and inspiring
Techrights' Text Version (Daily Bulletin) Turns Five This Month
our plain-text bulletins are turning 5 this month
We'll Continue Covering the Moribund OSI and Other Dysfunctional if Not Hostile Institutions
Stefano Maffulli's departure is due to his defection and due to him failing the mission in pursuit of money (his salary)
Microsoft XBox is Dying as More Retailers Stop Stocking It and Massive Layoffs Planned Again
Microsoft is circling down the drain
Links 05/10/2025: Lufthansa Layoffs (4,000) and More Spotify Woes (Aside From Massive Debt)
Links for the day
The Free Software Foundation's Livestream Has Ended, Video/s Might be Online Next
I've asked whether they'll upload video of some of the event; I still wait for an answer
The Register MS Does Not Know the Difference Between Microsoft GitHub and GitLab
At the time of writing (October 5) the article from "Thu 2 Oct 2025" remains uncorrected
Linux and the Freedom Paradox
Linux is losing freedom if some external actors who only use Microsoft tools for development wrest control
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025