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

Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
 
200 This Week
Monday started with 40 articles/pages and this is #200
Press Complicity and Public Apathy All Along Enabled 14 Years of Illegal, Arbitrary Detention and Coercion Into Plea Bargain of Julian Assange on Brink of Death
They basically blackmailed him into letting the US 'win' the argument
At the End Journalism a Crime (If It Involves Accessing or Gaining Access to Documents Marked "Confidential" or "Classified" by Those Looking to Hide Their Misconduct/Crimes)
At least in the US, especially where the imperialism is at stake
Links 30/06/2024: Tensions in Korea and Japan, Criminalisation of Sleeping Outdoors
Links for the day
100% Slop/Spam From linuxsecurity.com
This is the kind of stuff that's killing the Web faster
Gemini Links 30/06/2024: Murdoch and Ideal OS
Links for the day
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock