Bonum Certa Men Certa

Who Will Merpel be in 2020? (Now Defending Battistelli's Attacks on EPO Judges and Serious Violations of the EPC)

Maximalists (patent, copyright, trademark etc.) and litigation zealots have taken over IP Kat, which has sadly become merely an amplifier of EPO lies (deliberate falsehoods) and propaganda

The old IP Kat
The 'old' IP Kat (several more key people have left since)



Summary: The tone of IP Kat has changed to the point where it's very much part of Team Campinos/Battistelli -- i.e. the very opposite of what it was prior to key departures and sanctions from the European Patent Office (EPO)

THE EPO is not an ordinary institution. I probably ought to know this, having covered it very closely since 2014 (I had covered it before that, albeit not as closely and without inside informants). Today's EPO is bribing and threatening publishers (they tried this on us several times). Sheer corruption, sheer abuse, but these people enjoy immunity...



I've often read about practices such as these in Russia or sometimes China as well. Is Europe prone to tolerating the same? The corrupt people who have seized control of the Office are effectively killing every form of journalism (about patents) that dares criticise or even speak about EPO abuses. I spoke to some reporters and they told me stories. Giving the full details would likely reveal identities of publishers and therefore writers too.

"I've often read about practices such as these in Russia or sometimes China as well. Is Europe prone to tolerating the same?"The EPO may in fact be Europe's most corrupt institution. This very much matters because it's also Europe's second-largest one. Why don't more publications speak about it? Well, being Europe's second-largest institution means a lot of power, connections and even budget ('slush funds'). Therein lies a very big problem. Publications that used to speak of EPO issues refrain from saying anything at all. It's not necessarily the case that they all paint a rosy picture; but when there's a scandal they pretend not to see, they perpetuate the idea that it does not exist. I've witnessed similar things when Wikileaks published some bombshell reports/leaks, whereupon there were even (as recently as this month) reports about reporters who resign, having been denied -- by the publisher -- the permission to cover the story. 4 years ago I saw that at the BBC. They try to keep as 'marginal' as possible particular stories/developments, suppressing 'inconvenient' facts to guard an incomplete and misleading narrative. JUVE totally embraced that. Yes, JUVE... which used to provide splendid coverage back in the days.

Several years ago people reported to us that IP Kat had begun actively deleting comments -- even entire threads -- critical of EPO management. Moderators changed. They sought to police the tone, narrative, discussion etc. It was rather astounding given the low standards applied; totally polite comments were deleted as well (we made copies -- where possible -- before these deletions). Since then IP Kat has been pushing UPC lies every month or so. With AstraZeneca and Bristows in key positions it's hardly surprising (consider their corporate agenda), which means that IP Kat has become 'litigation industry' blog. Also remember Stephen Jones; previously in charge, not just at CIPA, an integral part of Team UPC, he did photo ops with Battistelli. It was as if he chose to make photographic evidence of a complete coup.

"Several years ago people reported to us that IP Kat had begun actively deleting comments -- even entire threads -- critical of EPO management."We could go on and on talking about the pro-software patents bias of IP Kat; it hardly deals with 35 U.S.C. ۤ 101 at the U.S. Patent and Trademark Office (USPTO) and a lot of the time it uses misleading propaganda terms that are technically and legally unsound. So what is this blog even useful for? When it comes to patents, it's not scholarly at all (the scholars have mostly left), it's a litigation lobby. Ask around the EPO (examiners); they might say the same. The difference is felt. Speak to former 'Kats' (if they dare speak out); they too might say the same.

This morning I saw this latest tidbit, preceded by the following introductory paragraph: "It has been a busy year for the Enlarged Board of Appeal. 2019 has seen four referrals from the Boards of Appeal and one decision. The more controversial of this year's referrals (namely Pepper and Computer simulated inventions) have attracted a large number of third party comments. Other referrals (i.e. "Double-patenting") seem to have dropped off the radar of even the EBA. Readers may therefore be forgiven for losing track."

This is far from a balanced overview; we'll get to that in a moment. Rose Hughes with her typically dismissive remarks about software patents critics (we covered her stance on software patents in Europe in the past; she's no coder) isn't quite surprising to us. We've become accustomed to it by now. Her outline does not mention at all those who oppose software patents, instead giving the impression that software companies are in favour (citing monopolies and law firms); they try to 'vanish' actual coders, letting legal departments of multinationals claim to speak 'for' them. She also mentions Campinos with his violation of the European Patent Convention (EPC) -- the principle of separation of powers -- but seems to see nothing wrong with that!

"Remember that Merpel is not an actual person but a pseudonym for several (they told me so themselves)."For those who wish to hear from critics of software patents (people who actually do software) there's this talk tomorrow by Benjamin Henrion at CCC/36C3 in Hamburg (Germany). They've "Moved the Unitary Software Patents discussion to Sunday at 6PM", he noted. It was supposed to be today. "Unitary Software Patents discussion moved to 6PM on Sunday," he added later. We know that some of our readers will be there (but won't name them).

Going back to IP Kat, notice what Hughes added in: "[Merpel: Whilst relocation of the Boards of Appeal was undoubtedly an unpopular move, was it really necessary to expend EBA time on such a question?]"

Remember that Merpel is not an actual person but a pseudonym for several (they told me so themselves). It wasn't an "unpopular" move but an illegal one. But now they're changing history and retroactively justifying the abuse. Here's the full text about software patents and Haar:



Computer simulated inventions (G 1/19)

The patentability of software (which takes the form of computer "simulated" or "implemented" inventions under the EPO's problem and solution approach) is a controversial topic. In the first of a couple of referrals in February, a Board of Appeal (3.5.07) sought clarity from the EBA on the patentability of computer-implemented simulations (T 0489/14): The patentability of computer simulated methods - another referral to the Enlarged Board of Appeal. The referral was followed by comments from the EPO president: Comments from the EPO President on the patentability of computer-implemented simulations (G 1/19). The President appears broadly in favour of the patentability of computer-simulated inventions. The referral particularly relates to claims having both a technical and non-technical character. The referral asks whether the non-technical features of such an invention and/or the technical purpose of the invention can be considered in the assessment of inventive step.

G 1/19 has received a large number of amicus curiae from third parties. A number of the amicus curiae are from large software companies, who are unsurprisingly in favour of the patentability of this kind of software invention (e.g. Siemens, Philips and IBM). CIPA and EPI have also all given their view, which are in favour of including the technical purpose of a claim in the assessment of inventive step.

Clarity in appeal and is Munich in Haar? (G 2/19)

The second referral in February related to appeals procedure. The referral sought an answer to whether a clarity objection can be discussed in appeal oral proceedings. Clarity can not be raised in opposition (accept in response to a Patentee's post-grant amendment). A clarity objection may be raised in examination by a third party (Article 115 EPC). In the case in question (T 831/17), in order to pursue a clarity objection after grant, a third party filed an appeal against the decision to grant the patent (EP2378735). The appeal was rejected as inadmissible. However, the Board of Appeal referred the question to the EBA of whether the appellant still has the right to oral proceedings even when an appeal is deemed inadmissible.

In response to the referral, the EBA decided that following an inadmissible appeal, a third party is not entitled to oral proceedings in order to discuss the third party's clarity objections. The EBA therefore closed the door on the possibility that clarity may be discussed as a ground of opposition in appeal proceedings: Enlarged Board of Appeal releases full reasoning in G2/19. The opposition period for the granted patent has now expired.

The final question in the referral raised a collective sigh from many in the patent community. The question related to whether Haar could really be said to be situated in Munich: Where is Haar and how did it get there? Observations on Geography while Waiting for G2/19. In particular, did the location of oral proceedings in Haar contravene a party's right to be heard? Rather unsurprisingly, the EBA decided that Haar was in Munich. [Merpel: Whilst relocation of the Boards of Appeal was undoubtedly an unpopular move, was it really necessary to expend EBA time on such a question?]



Wow, what a truly terrible remark, attributed to "Merpel". In past years Merpel held exactly the opposite position, but the whisperer handle which is "Merpel" is now used to justify what happened to G 2/19. Sorry, "Merpel", but now you're contradicting yourself, you're not even consistent!

Now that the blog's founder has left -- and later those whom he left in charge (entrusted so to speak) -- who's even in charge? We have a rough idea as it's at the top of all pages in the blog (names but not employers). They try to give the impression that the blog is run by a vast and diverse team.

"Now that the blog's founder has left -- and later those whom he left in charge (entrusted so to speak) -- who's even in charge? We have a rough idea as it's at the top of all pages in the blog (names but not employers)."Read again that last paragraph (above); to them, it's almost as if it's a waste of time to check whether the law is being broken (which isn't hard to see, but they make it a political question and thwart it altogether). Remember that this decision was released not in English (intentional). As we explained and showed at the time, they googlebombed in every way possible to distract from what was happening. Read the first (and as of now only) comment: "Regarding G4/19, the written decision was handed down on December 20, 10 months after the hearing."

By that stage will anyone care/notice/bother?

Days ago we also saw Sterne, Kessler, Goldstein & Fox P.L.L.C. wrongly assuming that the EPO respects the EPC (it does not, it's a rubber-stamping machine) when writing about bioinformatics patent claims. To quote:

This article discusses challenges in prosecuting bioinformatics patent applications before the European Patent Office (EPO). The EPO determines the subject-matter eligibility of bioinformatics patent applications under Articles 52 and 56 of the European Patent Convention. Article 52 governs what is considered patent eligible subject matter.[1] Article 56 governs whether a bioinformatics patent claim involves an inventive step.[2] While Article 56 is not directly related to eligible subject matter determinations, the EPO uses this Article to screen bioinformatics patent application for eligible subject matter issues. Four points of concern and consideration related to the subject-matter eligibility of bioinformatics patent applications in Europe are discussed below.

First, under Article 52, the EPO may incorrectly reject a bioinformatics patent claim as being directed to (1) discoveries, scientific theories, and mathematical methods, or (2) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.[3] One way patent applicants can argue that a bioinformatics patent claim is not directed to either category is to explicitly recite a computer or physical step (e.g., tying bioinformatics method claim to specific technical equipment) to support technical character in the claim.

Second, under Article 56, the EPO may overlook a technical purpose of a bioinformatics patent claim. In response, patent applicants can argue that the technical purpose is the biological rationale for performing the bioinformatics analysis. For example, the biological rationale can be related to diagnosing a disease or assessing a particular physical property. Patent applicants should be cognizant that issues may arise when arguing that the features fundamental to solving the biological problem (e.g., aligning gene sequences) are the biological rationale. This is because such features may not be considered by the EPO to sufficiently provide the requisite biological rationale.


Articles 52 and 56 of the European Patent Convention won't matter to today's EPO management; because it routinely violates many other articles and it gloats about that mass violation having no consequences!

Last but not least, Kluwer Patent Blog is the latest of several to speak of "inventive step" (the EPO's bizarre terminology, which includes "technical problem") in the context of "hope" -- as pertaining to T/83. Arianna Bartolini, Charlotte Richards-Taylor and Thorsten Bausch (published by the last of the bunch) say this:



As was rightly noted on this blog, the skilled person’s “hope” of solving the objective technical problem using the means that led to the (later claimed) invention, has disappeared from the Guidelines for Examination. What we are left with is the (perhaps) more objective “expectation of some improvement or advantage (see T/83)”. Interestingly, this expectation of “some improvement or advantage” no longer appears to be so closely linked to the objective technical problem than the language previously used in the Guidelines. Whether this will in the future give rise to more problems for applicants or patentees remains to be seen. In any case, it may be a good point in time to remind ourselves that even recognizing a problem and its roots can (at least sometimes) be an invention of itself.

[...]

Conclusion

Decision T 2321/15 thus came to the interesting conclusion that the discovery of a yet unrecognized problem may give rise to patentable subject-matter in spite of the fact that the claimed solution may be, once the root of a problem has been identified, retrospectively trivial and in itself obvious. As such, T 2321/15 is not the first decision of its kind, but rather follows a long tradition starting with T 2/83 itself, which was confirmed in T 764/12. It may thus be prudent for parties applying the problem-solution-approach to include the recognizability of the objective problem and its cause into their considerations.


Nothing is said about the lack of independence of the Board; this has, apparently, become the new 'normal'; the EPO has managed to silence or 'tame' its critics and now everyone is supposed to accept that Haar is the permanent home of 'justice' -- where judges are actively lobbied/pressured by Campinos himself to allow illegal patents.

"Articles 52 and 56 of the European Patent Convention won't matter to today's EPO management; because it routinely violates many other articles and it gloats about that mass violation having no consequences!"We certainly hope that more blogs will appear that the EPO won't bribe or censor (or threaten). As it stands, however, even IPPro Magazine no longer covers EPO affairs (it did for a while and Barney did a decent job). Based on their site, they stopped publication about a month ago (prior to that they had significantly slowed down and only Becky Bellamy composed new articles, mostly PR and 'puff pieces' that resemble advertisements).

Recent Techrights' Posts

You Should Probably Self-Host Your E-mail and Never Use a Web Browser for Mail
Does anyone still believe Gmail is "free"?
StatCounter Shows the Market Share of Vista 11 is Decreasing in Ukraine This Year
Microsoft abandoning Vista 10 users would be a victory for Vladimir Putin
The "Gold" Rule: Taking Money for Reputation Laundering and Openwashing Under the "Linux" Banner
Seller of expensive toilet paper, Jim Zemlin
LLM Slop Says Slop is "coming for white-collar jobs. Microsoft’s layoffs are just the start"
Look what the Web has become
Reporting Facts About Violence Against Women Deserves Awards, Not Frivolous Lawsuits and Threats
What is Microsoft's stance on women's safety?
Linux.com as Spamfarm of the Linux Foundation, Partner of the Gates Foundation
They no longer publish articles
Slopwatch: The Typical Slopfarms and the 'Brian Fagioli Dilemma'
To the Web and to society (exposed to the Web) LLMs are a net negative
 
Trump Authority (CA) With a Trump NSA is All About Security, But Whose?
A "turnkey tyranny", as the NSA whistleblower Thomas Drake loved to call it
Confirming IBM Shutdowns and Layoffs Today
It's not over yet
Gemini Links 16/04/2025: The 2010s Are Calling and Why "Tools Will Not Liberate Us"
Links for the day
Links 16/04/2025: Cliff Lynch RIP, More Attacks on Science (NASA)
Links for the day
Google Promotes Fake Articles (LLM Slop) Instead of Originals, Relaying Microsoft's Linux FUD Emanating From Microsoft LLMs
Shame on Google for participating in the slopfest
In Some Countries the Largest OEMs Already Dump Microsoft Windows
Windows at 18.9%, Android 60.2%
Microsoft Down From 100% to 10% in Myanmar/Burma
only about 4% of Web requests in Myanmar/Burma come from Vista 11, soon to be the only "supported" version of Windows
When Fedora Said It Was Looking to Integrate "AI" It Meant Promoting Microsoft's Proprietary Spyware and GPL-Violating Slop
When they say "AI" they mean Microsoft
It Used to be IBM, Now It's Microsoft (Why You Need to Fire Microsofters or CIOs Working for Microsoft)
Typically the only effective solution is to identity and remove Microsofters from one's project/organisation (before they can bring more Microsofters in)
IBM Closes Offices and Labs in the United States to Open New Ones in India
It's not layoffs per se; they're substituting/swapping veteran employees for lesser-paid ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 15, 2025
IRC logs for Tuesday, April 15, 2025
Gemini Links 16/04/2025: IndieWeb Carnival, Tinylog RFC, "Focus, the Web and Gemini"
Links for the day
Links 15/04/2025: Touchable Volumetric Display and Resistance to American Spying Firms
Links for the day
Links 15/04/2025: Some People Cannot Read and Re-discovering of 'Web 1.0'
Links for the day
Links 15/04/2025: China Admits Targetting Critical Infrastructure Using CALEA Back Doors, NASCAR Cracked by Windows Usage
Links for the day
Why We Support Carole Cadwalladr (Even If We Don't Agree With Everything She Said)
I first became aware of Cadwalladr's work a long time ago
Microsoft's Serial Strangler Chose to Attack Techrights With SLAPP When Over 400 Victims of Mohamed Al Fayed Complained About Media's Role in Enabling Him
There is a strong element of "free press" here
A Coalition or a Coup of Sexism
In the Free software community it's hard to avoid this issue
statCounter Sees GNU/Linux at New High of 6% in Bosnia and Herzegovina
GNU/Linux is measured at all-time high
To Celebrate Git Turning 20 Linus Torvalds is 'Selling Out' to Microsoft and Proprietary Software Which Attacks Git (E.E.E.)
He makes it seem like he's endorsing his attackers
Gemini Protocol Milestone (3,000 Active Capsules)
and a total of nearly 4,500
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 14, 2025
IRC logs for Monday, April 14, 2025
Gemini Links 14/04/2025: Silver Pigs and more Foundation, Disliking Computers
Links for the day
Hundreds of Microsoft Layoffs (Net Headcount Decrease) in the United Kingdom
headcount decreased
Links 14/04/2025: Russian Attack on Sumy Shows No Intention of Peace, Virgin Australia Admits Overcharging People
Links for the day
The Dilemma of Web Browsers Lying About What They Are (in Order to Bypass Discriminatory Gateways Like Clownflare) Worsens Due to LLM Slop
LLM crawlers/scrapers have made sites more restrictive and hostile towards browsers that are potent but not "famous"
What Really Matters to Companies is Net Income or Profit (Bankruptcy is Possible Even With High Revenue)
We ought to stop talking about revenue without focusing on actual profit
Carole Cadwalladr Talks About How Big Business Tried to Silence Her (and Why You Might be Next)
Our story is very different from Cadwalladr's for many reasons
Companies Conspiring to Keep Salaries Down and Undermine Competition
People who do all the practical work are being paid less and made to work for much longer
Links 14/04/2025: Disinformation, Public Disdain for LLMs, and "Lessons on Tyranny"
Links for the day
LLM Slop and SEO SPAM Take Us Further Away From Facts (the Case of IBM Layoffs)
Some of these can impact Red Hat as well
Gemini Links 14/04/2025: Ween and Historic Ada Project Management
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 13, 2025
IRC logs for Sunday, April 13, 2025
Influencers: Red Hat, Inc's IPO, 1999, post-mortem on the directed share offer to open source developer community
Reprinted with permission from Daniel Pocock