01.29.20

Patent Scavenging or Racing to the Bottom of Patent Quality

Posted in Europe, Patents at 5:33 am by Dr. Roy Schestowitz

As long as there’s a name of an individual on the application the EPO will look for excuses to grant, not reasons to reject

Vultures abound

Summary: The patent microcosm is pushing for software patents, and for litigation with such patents, but it all boils down to bottom feeding

THE patent maximalists pose a threat to the legitimacy of the patent system because they advocate a torrent if not an avalanche of low-quality patents, which the public in turn mocks and ridicules. It’s a bubble that will implode or structure which will collapse. See what happened in the US owing to 35 U.S.C. § 101 (which the USPTO cannot just ignore).

The European Patent Office’s (EPO) advocacy/promotion of software patents in Europe isn’t a new thing. Before António Campinos did it Battistelli had done that. They love using buzzwords.

Earlier this week the EPO tweeted: “Searching for patent applications related to disruptive technologies such as #AI and #3Dprinting can be challenging. We’ll be presenting some strategies at this event…”

There’s also this new tweet (about a day apart): “This year’s #SearchMatters will focus on disruptive technologies. Our experts will be sharing their insights with #patent search professionals from business, academia and IP firms…”

We’ve noticed that the corresponding Web page has been edited to add “CII (computer-implemented inventions).” Was the nonsensical “AI” not enough? It now says (warning: epo.org link): “This year’s Search Matters conference aims to deliver workshops and lectures with a special focus on disruptive technologies such as 3D printing/additive manufacturing, AI and CII (computer-implemented inventions).”

The “CII” part is definitely new. We also know what they typically mean by “AI”…

Sometimes they mean software patents; and sometimes they mean this thing they’ve rejected and explain as follows: (warning: epo.org link)

The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor. Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.

In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.

In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.

Watchtroll has already done a “me too” piece. To quote (what’s quoted): “The decisions to refuse the two patent applications can be appealed by the applicant within two months at the EPO’s independent judiciary, the Boards of Appeal, said the EPO release.”

Watchtroll’s “EPO Provides Reasoning for Rejecting Patent Applications Citing AI as Inventor” is more or less expected (“In the EPO press release today, the Office explained…”); it is hardly surprising that Watchtroll is an EPO megaphone because both nowadays work for patent zealots, litigators, and trolls. They even reuse the same words.

So, in short, EPO management continues to grant loads of invalid patents provided there’s a name of a human on the paper associated with the application. As some pundits have already pointed out, the above patents can be resubmitted with the name of a human and then be accepted. So the EPO isn’t actually solving the problem. Software patents will continue to be granted, with some exceptions, two of which have just been named [1, 2] and outlined as follows: “The EPO refused to grant a #software #patent on increased security when collecting and selling customer data. [] There’s a new entry in the EUROPEAN SOFTWARE PATENTS knowledge base: Animating a graphics icon by superimposing an image sequence on a static background: non-technical” (by “non-technical” they mean invalid).

We’ve meanwhile noticed the IBM-backed front groups pushing for software patents in the US, basing it on the EPO’s abusive interpretations of the EPC. Dennis Crouch says “Europe uses this approach found in Article 54 of the European Patent Convention” (it’s in our Daily Links already) and adds:

Intellectual Property Owners Association (IPO) Board has proposed a “clarifying” amendment to Section 101(a)(1) of the Patent Act:

[...]

EPC Art. 54. Note that 54(1) and 54(2) are parallel to 35 U.S.C. 102(a) while 54(3) is parallel to 102(a)(2) which the IPO does not propose to change. Regarding these secret prior patent application filings identified in 54(3) and 102(a)(2); the European approach is broader than the US in some ways because it creates prior art even when the prior filing is the same inventor / owner; at the same time, the European approach is narrower than the US because 54(3) prior art does not apply to the inventive step (obviousness) analysis.

As can be seen above, the EPO’s abusive approaches toward the matter (and violations of the EPC) are causing problems in other continents as well. Last year the EPO openly bragged that it would spread these practices — regarding software patents — to other countries.

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