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02.11.20

The European Patent Office Continues to Violate the European Patent Convention (EPC) With Impunity While the European Commission Lets That Happen

Posted in Deception, Europe, Patents at 6:07 am by Dr. Roy Schestowitz

A blindfolded horse
A blindfolded horse

Summary: The European Commission (and Union) can be seen as increasingly complicit in the EPO’s abuses; this means that the EPO has become a liability or source of accountability for the integrity of Europe as a bloc

THE Web site of the European Commission has long promoted buzzwords and hype waves favoured if not created by management of the European Patent Office. We pointed this out in the past.

This is particularly disturbing.

“If or when this spills over to the EU, it becomes risk of more exits from the EU.”Do we wish the corruption of the EPO to spread to the European Commission and Union? Remember the nepotism and entryism which implicate both (António Campinos giving top EPO posts to his EU mates, mimicking the notorious appointments of his successor and selector). There was a further sign of this in a tweet posted by the EPO yesterday. I responded to that in Twitter (not that they even respond with any substance).

“Nepotism, bribes, lies, union-busting etc.” are an integral part of the EPO in recent years and “it’s a den of corruption at every level, every aspect (including inwards).” If or when this spills over to the EU, it becomes risk of more exits from the EU. In recent days some people pointed this out to EU officials, citing Techrights for examples…

Remember that critics of EPO corruption are often pro-EU people who are genuinely concerned about what they see.

“Software patents lack legal basis in the EU, neither the EPO with its invention and novlang of the ‘technical effect’ can render it patentable,” Benjamin Henrion wrote/quoted yesterday, citing this EU paper [PDF], a recent formal publication from the “Publications Office of the European Union.” The first words of both the abstract and the body are “Artificial intelligence” (AI). It says “AI relies heavily on software and data. While software as such is not patentable, it may be protected by copyright and trade secrets (or even by patent law in the case of computer-implemented inventions (CIIs)) if certain requirements are met. There is an ongoing debate about the adequacy of the current IP system to cope with AI technologies18 as well as about the implications of AI for existing standards of patentability. The following paragraphs review the key requirements for protection of AI by patent and copyright law.”

Later it speaks of “Fourth Industrial Revolution” and then says that “[f]or several years now, the courts have struggled with the issue of whether to grant patents in new fields of invention, particularly computer software (Kohlhepp, 2008). The eligibility of software, including AI software, to receive patent protection is an intricate issue. Generally, computer programs “as such” are excluded from patentability at the EPO (Article 52(2)(c) and (3) of the European Patent Convention (EPC)), but the exclusion does not apply to computer programs having a technical character…”

There’s further discussion there about the EPO’s guidelines (the complete reference is Iglesias, M., Shamuilia, S. Anderberg, A., Intellectual Property and Artificial Intelligence – A literature review, EUR 30017 EN, Publications Office of the European Union, Luxembourg, 2019, ISBN 978-92-76-14178-5, doi:10.2760/2517, JRC119102.).

In our latest Daily Links we included several new articles about DABUS and CRISPR patents at the EPO. These show that the EPO continues to flagrantly disregard the EPC and judging by the paper above, the EU and EC are more or less fine with it.

Incidentally, “NLO attorneys Marta Alvarez Guede and Katelyn Bernier” have just published this piece of marketing (“The six big ways the US and Europe differ on software patents”) or lawyers pretending to be journalists. Software patents are bunk in US and in European courts (35 U.S.C. § 101 puts curbs/limits on USPTO examiners and EPO examiners cannot grant software patents in Europe… unless they’re spun as “hey hi” (AI) or some other buzzword), but liars from IAM won’t tell anyone that. They’re paid to mislead and here’s more of the same:

The USPTO and EPO do not see software-related inventions in the same way. NLO attorneys Marta Alvarez Guede and Katelyn Bernier highlight what applicants must understand about the offices’ different approaches

According to the European Patent Convention (EPC), a patent can be granted in any field. However, it does not regard computer programs as inventions if claimed as such, while methods for performing mental acts, playing games, doing business and presenting information are excluded from patentability altogether.

Under the approach followed by the EPO, a claim directed to a computer program will not be excluded from patentability under Article 52 of the EPC if it contains at least one feature that is considered to have technical character. In this way, it is sufficient that a claim is directed to a device or a method implemented in a computer to avoid exclusion. The non-technical features of such a claim will be ignored when assessing an inventive step.

The EPC provides no general definition of what is technical, but relevant case law before the EPO Boards of Appeal gives some indication of what constitutes ‘technical character’. In particular, a claim to a computer program is not excluded from patentability if, when running in a computer, it provides a further technical effect going beyond the computer’s normal behaviour. Such further technical effect could be saving computer resources such as memory, processor time or energy, or controlling further processes.

The judges of the EPO Boards of Appeal lack independence (they say so themselves) and as recently as months ago they were pressured by Campinos to rule in favour of software patenting.

Where’s the European Commission when one needs it? Oh, that’s right, issuing silly papers with buzzwords like “hey hi” and “4IR” in them — the same nonsense that EPO management bribed European publications to spread far and wide.

The National Law Review has meanwhile also published this piece where Laura Morelli (McDermott Will & Emery) pretends the UK can negotiate a place in the UPC. It’s not possible, it’s an EU system. UPC means EU. But on she goes anyway, conflating that with another matter (EPC):

The European Patent Office (EPO) is established under the European Patent Convention (EPC). It is separate from the EU and counts among its contracting states the EU Member States as well as non-EU Member States. European patents will, therefore, continue to cover the UK without the impact of Brexit.

In contrast, the impact of Brexit on the Unitary Patent (which establishes a unitary patent enforceable in all participating Member States) and on the Unitary Patent Court (which provides a unified court system with exclusive jurisdiction for litigation relating to Unitary Patents and European Patents) remains uncertain. Although ratifying the UPCA on 28 April 2018 in the midst of the Brexit process, thereby expressing its willingness to remain within the framework of the Unitary Patent and Unitary Patent Court, the continued involvement of the UK in such system will need to be negotiated.

It cannot be negotiated unless the UK rejoins the EU, but this is just the typical kind of spin we see from UPC fanatics every day this month. We’ve come to witness in Europe the same lies and abuses that are often condemned when they happen across the Atlantic. Don’t let this become ‘normalcy’.

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