Bonum Certa Men Certa

European Enlarged Board of Appeal Dismisses Claim that Pro-Software Patents Judges Are Biased

Software patents protest against EPO



Summary: Enlarged Board of Appeal to make decision regarding software patentability in Europe, but some judges may have already made up their minds

THE FFII's president has just pointed out that the "European Patent Office "independent" Enlarged Board of Appeal says its judges are "independent"." We append its response in plain text. Of course they would just act in self defence here, justifying their own integrity rather than relying on independent, external judgment. To quote the crux of the matter:



In an amicus curiae brief addressed to the Enlarged Board on 26 April 2009 Mr M. Schulz contested the impartiality of the Board giving the following reasons: 1. A technically qualified person in charge and mandated by the Enlarged Board of Appeal had officially and publicly given his opinion on the decisions mentioned in the referral of the President and on the interpretation of the EPC with respect to the exclusion of computer programs from patentability, among others on the decision in the case T 1173/97.


We previously wrote about this referral to the Enlarged Board of Appeal in:



I have also submitted my own brief.

Separately, says FFII's president, "Oracle [is] not mentioning patents" when claiming that "because MySQL is open source, it cannot be controlled by anyone." Oracle wrote this in response to the European Commission, which blocks the Sun takeover.

We wrote about MySQL and patents back in 2008 [1, 2, 3, 4, 5].







b

Europäisches European Office européen Patentamt Patent Office des brevets Große Enlarged Grande Beschwerdekammer Board of Appeal Chambre de recours

Internal distribution code: (A) [ ] Publication in OJ (B) [X] To Chairmen and Members (C) [ ] To Chairmen (D) [ ] No distribution Datasheet for the Interlocutory Decision of 16 October 2009 Case Number: G 0003/08 Language of the proceedings: EN Referral by the President of the EPO in relation to a point of law pursuant to Article 112(1)(b) EPC Headword: - Relevant legal provisions: EPC Art. 24 RPBA Art. 4 Relevant legal provisions (EPC 1973): EPC Art. 24 Keyword: "Objection to a member of the EBA, suspicion of partiality" Decisions cited: G 0001/05, G 0002/08, T 0954/98, J 0015/04 [2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence; [2003] UKHL 35, [2003] ICR 856 - Lawal v. Northern Spirit Ltd.; Locabail (UK) Ltd. v. Bayfield Properties Ltd. Catchword: - EPA Form 3030 06.03 C2034.D

b

Europäisches European Office européen Patentamt Patent Office des brevets Große Enlarged Grande Beschwerdekammer Board of Appeal Chambre de recours

Case Number: G 0003/08 I n t e r l o c u t o r y D e c i s i o n of the Enlarged Board of Appeal of 16 October 2009 Composition of the Board: Chairman: P. Messerli Members: M. J. Vogel P. Alting Van Geusau M. Dorn A. G. Klein U. Scharen J.-P. Seitz C2034.D - 1 - G 0003/08 Summary of Facts and Submissions I. In the present referral case under Article 112(1)b EPC concerning several questions raised by the President of the EPO on Computer Implemented Inventions ("CII") the Enlarged Board of Appeal invited the public to file opinions on the questions submitted by the President. II. In an amicus curiae brief addressed to the Enlarged Board on 26 April 2009 Mr M. Schulz contested the impartiality of the Board giving the following reasons: 1. A technically qualified person in charge and mandated by the Enlarged Board of Appeal had officially and publicly given his opinion on the decisions mentioned in the referral of the President and on the interpretation of the EPC with respect to the exclusion of computer programs from patentability, among others on the decision in the case T 1173/97. 2. In the documents of the Diplomatic Conference of 2000, the decision in the case T 1173/97 was considered to justify the deletion of the EPC provision excluding computer programs as non patentable subject matter. This means that this decision was not taken on the basis of the law in force at that time. 3. Furthermore, the person mentioned above, now a member of the Enlarged Board in the present case, supported the EU-proposal of a directive on CII as a lobbyist of the Commission. He declared publicly that the then-drafted version of the EU-directive would not initiate a reversal of the jurisdiction of the Boards of Appeal. This is further proof that the then-valid C2034.D - 2 - G 0003/08 law, which excluded computer programs from legal protection, had been disregarded by the Boards. 4. Finally, just before its publication, a member of the Boards of Appeal publicly took the position that the referral of the President was inadmissible. This was an undue attempt to put pressure on the President and the Members of the Enlarged Board. 5. On the strength of past experience with the behaviour of Board members the question is not whether there are different decisions and even whether these decisions are in line with the Convention. These questions have already been answered by the Boards' decisions. The question is rather whether it is possible having regard to the foregoing facts to compose an Enlarged Board from members of the Boards of Appeal, who have already been subject to a reproach of obliqueness. 6. Under these conditions there is a suspicion of partiality with the consequence that the present composition of the Enlarged Board has to be dissolved and the grounds of dissolution have to be published. III. After due deliberation of the Board, in the absence of the member concerned, the Chairman of the Enlarged Board of Appeal by order dated 28 September 2009 appointed Mr Alting van Geusau as alternate to Mr Rees for the purpose of the proceedings under Article 4 RPEBA and Article 24(4) EPC. IV. In his statement according to Article 4(2) RPEBA Mr Rees declared that, as a director in DG 2 between C2034.D - 3 - G 0003/08 2000 and 2003, he was assigned the duty of explaining the examination policy of DGs 1 and 2 with respect to computer-implemented inventions (CII), which was based on the case law of the Boards of Appeal, to the public and external bodies like the European Parliament. Furthermore he did the same when he attended as an expert for the European Commission a number of meetings of the responsible committee of the Council of Ministers where the proposal of a EU-directive on CII was discussed. Reasons for the Decision 1.1 As provided by Article 24(3) EPC, members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for one of the reasons mentioned in Article 24(1) EPC, or if suspected of partiality. Whereas objections based on Article 24(1) EPC (iudex inhabilis) may be raised by anyone, whether he is a party or not, the right to object to a member of the Board because of alleged partiality (iudex suspectus) is reserved to parties in the proceedings (see interlocutory decision of 15 June 2009 in case G 2/08, point 1.4 of the Reasons). In referral cases under Article 112 EPC, however, members of the public who file amicus curiae briefs do not have the status of a party. They are not entitled to file requests but only to submit their personal view of the case or that of their organisations, in order to support the Board with arguments that should be considered in its findings. Since an amicus curiae is not a party to the referral proceedings his request for exclusion of a C2034.D - 4 - G 0003/08 member of the Enlarged Board or of the Enlarged Board as a whole is inadmissible under Article 24(3) EPC. 1.2 However, pursuant to Rule 4(1) of the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) in the version approved by the Administrative Council of the EPO on 7 December 2006 (OJ 2007, 304), the procedure of Article 24(4) EPC is also to be applied, if the Enlarged Board of Appeal has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings. Under this provision the submissions of a third party with respect to a member of the Enlarged Board to be objected to according to Article 24(1) EPC or suspected of partiality under Article 24(3) EPC are taken as information on the basis of which the Board can ex officio look at the alleged grounds of objection or suspicion of partiality. 2.1 In the amicus curiae brief under consideration it is not alleged that one of the members of the Enlarged Board should be excluded from the case for reasons of a personal interest in the case, or for having been involved previously as a representative of the party (Article 24(1) EPC). Rather, the submission is based on the ground that one member of the Enlarged Board of Appeal in this case as well as the Board as a whole is suspected of partiality. 2.2 The interlocutory decision in case G 2/08 mentioned under point 1.1 above states that it might appear appropriate not to proceed any further with a complaint or information received if the so-called "possible" reason for exclusion or objection which does not C2034.D - 5 - G 0003/08 originate from a party to the proceedings or the Enlarged Board of Appeal itself, would amount to an abuse of procedure. The decision mentions as an example a complaint that is completely unsubstantiated or ignores established case law (point 2.3 of the Reasons). 2.3 Turning to the present case, the Enlarged Board notes that the submissions in the amicus curiae brief are vague and largely unsubstantiated. The brief does not say who made which concrete remarks in which function under which circumstances and in which connection with respect to the referred questions such as to justify his exclusion as a member of the Enlarged Board of Appeal for reasons of suspicion of partiality. Nevertheless the Enlarged Board is in the position to identify Mr D. Rees on the basis of these submissions as the member suspected in the amicus curiae brief and is also aware of his earlier duties as a director in DG 2 of the EPO between 2000 and 2003 and as an expert for the EU-Commission in the field of CII at that time. But these facts submitted to establish the suspicion of partiality are not suitable to do so. The mere general and unsubstantiated assertion that the member in question explained as an expert in earlier times, when he was still a director in DG 2, that the jurisprudence of the Boards of Appeal in the field of CII would not be against the EPC and the law of the member states of the EPO cannot support an argument that this member or even the whole Enlarged Board in this case (G 3/08) should be excluded from dealing with the referral. Nor can such a conclusion be supported by the – actually incorrect - submission that the members of the present Enlarged Board are all members of the Boards of Appeal. C2034.D - 6 - G 0003/08 This is not an argument justifying the assumption that - deciding on the present referral - they are not solely bound by the provisions of the EPC. 2.4 According to established case law of the Boards of Appeal, of the Enlarged Board and also of national courts of member states, the mere fact that a board member has expressed a view on the legal issue to be decided on a previous occasion, be it in a prior decision or in literature, be it in a prior position in the EPO or as an expert for external political institutions, cannot lead to the conclusion of doubts as to impartiality. Nor does a purely subjective impression that the opinions of a board member might be disadvantageous to a particular interest justify an exclusion (see T 954/98, point 2.4 of the Reasons; see also J 15/04; see further Interlocutory decision of 7 December 2006 in case G 1/05, point 20 of the Reasons; confirmed in G 2/08, supra, point 4.2 of the Reasons; [2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence; [2003] UKHL 35, [2003] ICR 856 - Lawal v. Northern Spirit Ltd.; Locabail (UK) Ltd. v. Bayfield Properties Ltd.; Rappel de la portée des stipulations de l'article 6 de la Convention européenne des droits de l'homme et des libertés fondamentales, JurisClasseur Justice Administrative, Fasc 70-11; Baumbach/Lauterbach, Zivilprozessordnung, Vol. 1, 67th Edition, 2009, €§ 42 Margin 44, 45, 57; Zöller, Zivilprozessordnung, 27th Edition, 2009 €§ 42 Margin 26, 33; Fasching, Lehrbuch des österreichischen Zivilprozessrechts, 2nd Edition, 1990, Margin 154; Fasching, Kommentar zu den Zivilprozessgesetzen, Vol. 1, 2nd Edition, 2000, €§ 19 Jurisdiktionsnorm Margin 10). C2034.D - 7 - G 0003/08 2.5 Once lawfully appointed, a judge is deemed to act in good faith and is therefore presumed impartial until proven otherwise (see interlocutory decision in G 2/08, point 3.2 with further remarks). Moreover the parties to judicial proceedings have a right to have their case considered and decided by lawfully appointed judges. Such judges not only have the right to be member of a Board but also have the duty to decide in the cases allocated to them. They can neither withdraw at will from the proceedings, nor be objected to, at will, by a party to the proceedings, or by any other person. On the other hand they have to withdraw from a case in which their impartiality could be reasonably doubted (see interlocutory decision in case G 2/08). E.g. there might indeed exist an issue of partiality if a judge let it be known that he would never change his mind on certain questions on which he has given his opinion before. However, in the present case there is no indication whatsoever that this might be so. 3. Therefore, this Board sees no reason to exclude Mr Rees from its composition in case G 3/08 or to replace further members. C2034.D - 8 - G 0003/08 Order For these reasons it is decided that: 1. The request of Mr Schultz is rejected as inadmissible. 2. The composition of the Enlarged Board of Appeal in case G 3/08 remains unchanged. The Registrar: The Chairman: P. Martorana P. Messerli C2034.D



"A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. Since you can’t expect representatives of our competitors to speak on your behalf, you have to get the moderator to agree to having only “independent ISVs” on the panel. No one from Microsoft or any other formal backer of the competing technologies would be allowed -just ISVs who have to use this stuff in the “real world.” Sounds marvellously independent doesn’t it? In feet, it allows us to stack the panel with ISVs that back our cause. Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands."

--Microsoft, internal document [PDF]

Recent Techrights' Posts

Wayland is About Less Choice, About Removing Choices, It's Not About Freedom
IBM insists that it cares about "diversity"
Keeping Things Accessible
Gemini Protocol seems to be growing
Not Much Better Than LLM Slop: Linux Foundation-Funded 'News' Site Writes Linux Foundation 'News', Composed by Linux Foundation Operative, Quoting Linux Foundation Staff
...they get paid (sponsored) to produce this spam. Then they call it "journalism".
Annual Southern California Linux Expo (SCALE 22x) 'Bought' by Microsoft and Microsoft Exceeded Sponsorship Limits by Giving Double the Maximum Permitted Amount
When people get bribed they tend to forget how to utter a simple word: "No."
EPO Examiners Point Out to the Heads of Delegations in the Administrative Council of the EPO That the "AI Policy" of the Office is Illegal
"the Central Staff Committee (CSC) asks the Administrative Council to exert its supervisory role and instruct EPO management to enter into genuine dialogue with the staff representation on the AI Policy, to revise the “Leverage AI” target of 90% AI-automated classification in the SP2028 and to put in place the measures supported by staff in the resolution."
French Cities Dumping Microsoft Because They Recognise Software Freedom, Open Standards, GNU/Linux Autonomy
We hope that more French cities - maybe Paris - will follow Lyon.
LWN is a Voice of GAFAM (Through Linux Foundation, Their Front Group or Occupying Force Inside Linux)
remember who the chief editor works for and who sponsors many of the articles
 
X is Dying, But Not XServer/X11. Twitter X.com is Dying.
People or businesses or government officials (and departments) that still rely on Social Control Media are playing Russian Roulette with their future online
Escaping Colonialism (or 'Hegemony') Requires Abandoning GAFAM, Microsoft in Particular
Europe is already in the process of abandoning Microsoft
Microsoft Will Shut Down More Studios This Week, Its Media Operatives Will Tell Lies About the Magnitude of the Shutdowns and Layoffs (They Always Do)
Many people who get counted as "workforce" are "temps" or similar
What Linux Foundation 'Research' is: Paid Marketing
What is Linux Foundation 'Research'?
No, IBM Does Not Care About People With Disabilities
"Aktion T4" did not seem to bother Watson
Microsoft's Financial Problems Mean Shutdowns, Not Just Mass Layoffs
If the original rumour is true, then expect almost 30,000 Microsoft workers to be let go this year
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 26, 2025
IRC logs for Thursday, June 26, 2025
The Netherlands: GNU/Linux Measured at All-Time High
Are any Dutch cities going to announce dumping Microsoft?
Gemini Links 27/06/2025: "Interstitial Existence" and Autocorrect
Links for the day
Technical People Need Technical Lawyers
Technical Litigants in Person (LIPs) have many real and concrete advantages
10,000+ Articles in About 20 Months (and How We Got Here)
More bloat does not beget efficiency and "bells and whistles" tend to have a hidden cost
Links 26/06/2025: Illegal Kangaroo Court (UPC) Failing Scandinavia, K-Pop Agencies Abuse People
Links for the day
Gemini Links 26/06/2025: AuraGem Twitch Proxy is Back and UI Sluggishness
Links for the day
Links 26/06/2025: Noise Pollution Considered High in Europe, Mass Layoffs Next Week in Microsoft Confirmed, Very Large in Scale and Scope
Links for the day
The 'Case' of the Serial Strangler From Microsoft is a Lot of Copypasta (Maybe Also LLM Slop) From the Matthew Garrett 'Case'
5RB deserves to know and the matter shall be properly reported in due course (when the time is right)
EPO Squeezing the Staff - Part II - Office Breaks Rules, Ignores Courts, Defies Justice
False promises everywhere
No, I Don't Want Your Latest XYZ, ThankYouVeryMuch...
Wayland is finally ready?
China Keeps Breaking Into Microsoft Systems, So for True Sovereignty, Nations Wary of China Need to Dump Microsoft
Looking at data from Taiwan (not China) and Maharlika (not Philippines, the king is dead and Spain is out), there are encouraging signs
Linux Journal Wants Ads on Its LLM Slop or Ads as 'Articles'
it's basically another BetaNews
How to Kill a Monopoly
in 10 simple steps
IBM - Like Microsoft - is a Dying Company and Perishing Brand ("AI" is a Lie and Decoy)
"Arvind is cutting costs (layoffs, PIPs, forced RTO, etc...) like crazy. IBM offices are closing all over the place in the US."
"Code of Conduct" Invoked When Fedora and Red Hat Users (Since the 1990s) Don't Want to Use Wayland
That is IBM "DEI"
Mozambique: GNU/Linux Rose From 0.5% Last Year to 3% This Year
what (or how) statCounter is measuring
Microsoft Layoffs Next Week: About 10% to be Laid Off in Microsoft Gaming (2 Days Before Independence Day), About 20%+ of XBox Staff
Microsoft is rapidly collapsing
Next Month Marks 11 Years Since Our In-Depth EPO Coverage
The same is happening to Microsoft right now
Free Software Foundation (FSF) Campaigns Against Vista 11, Adds 4 New Associate Members Per Day
If more people understood the underlying principles, more of them would flock to Free software overnight
Canonical Seems to Have Culled Some Sources of LLM Slop From Planet Ubuntu
It's like "junk food", it's not information
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 25, 2025
IRC logs for Wednesday, June 25, 2025
On "Weak Claims"
For the record, they sent me unjustified threats, repeatedly tried injunctions (censorship)
EPO Squeezing the Staff - Part I - Burnout and Family Health
more exceptional circumstances
This Month's Mail (MX) Server Survey Shows Microsoft at 0.20% "Market Share"
We need to remind people that desktops and laptops decline (in proportion to other client devices) and at the "back end" GNU/Linux is already dominant and has long been dominant
Links 26/06/2025: Filespooler Guide and Learning to Code
Links for the day
Why Techrights Cannot be Vilified (and Instead It Gets SLAPPed Repeatedly by Microsoft People)
Attack dogs are all "bark"; because they have no actual "bite"
Austrian GNU/Linux Usage Up to About 5% as More of Europe Abandons Microsoft
Since inauguration day the Austrian people have adopted more and more of GNU/Linux
Why the "Wayland People" and "Rust People" Will Lose Hearts and Minds (Same Reasons)
Wayland pushers are fast becoming like "Rust People"
5,600 Pages/Articles Per Year
So far this year we've kept all the promises
BetaNews Beginning to Show What Its True Goals Are
The 'new' BetaNews won't be about journalism. It's trying to sell things.
Microsoft Has Lost "The War"
We'll soon see the 9th or 10th wave of Microsoft layoffs in 2025 alone
Slopwatch: A Wreck and a Dreck, "Flooding the Zone With Dreck" or Flooding the Web With Junk
"Slopwatch" continues today because we have many new examples
Links 25/06/2025: Thwarting More Software Patents, Overlap Grows Between EPO Corruption and Illegal Kangaroo Patent Courts in EU
Links for the day
Links 25/06/2025: Elon Musk’s Lawyers Caught Lying, WhatsApp Faces More Bans
Links for the day
Wayland Pushers Lose the Argument, Use LLM Slop and Chatbots to Make Up Arguments for IBM
Another new low and low blow
Brian Fagioli Created Another Slopfarm Targeting "Linux" After BetaNews Became a Slopfarm of Phantom Accounts and Pseudonyms
Mr. Fagioli even had slop about a dead Torvalds (hypothetical) as clickbait
Wayland is Perfect, Nobody Can Escape Its Perfection! (Or Not)
Do not form on opinion on Wayland based on politics
What is "MATA"?
Think of it as GAFAM or "Meta"
Moral Duty for "Linux Sites" to Speak Out Against LLM Slop
My wife has long complained about "Linux bloggers" keeping quiet and thus passive about a growing problem: slop
In Recent Hours Google News Promoted at Least 3 Slopfarms That Relayed Linux Foundation Propaganda Made by Bots or LLM "Bullshit Generators" (as Dr. Stallman Dubbed Them)
Google is circling down the drain and Google News too is hopeless
Linux Journal is a Slopfarm, It's Experimenting With LLM 'Authors'
Is Slashdot next?
WebProNews is a Slopfarm
Please avoid linking to WebProNews
Microsoft LinkedIn is Dying and Many More Layoffs Are on the Way
LinkedIn is just a failed acquisition of Microsoft. It causes losses and debt.
Gemini Links 25/06/2025: Combinatorial Music and Self Hosting
Links for the day
Richard Stallman Coming Back to Europe This Autumn to Give More Talks
His last talk in Europe attracted about 400-450 people
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 24, 2025
IRC logs for Tuesday, June 24, 2025
Social Control Media, Technology & Catholicism: Synod on Synodality review and feedback
Reprinted with permission from Daniel Pocock
How Many More Women Will Managers at Microsoft Strangle and Tell to Kill Themselves (or Try to Kill)?
The world needs to know what happened
The New BetaNews: 7 New 'Articles', All of Them LLM Slop
BetaNews is basically defunct. Nobody writes there anymore.
Another "Told You So!": XBox Mass Layoffs at Microsoft (Many Recent Reports Were Chaff and Spin), Many Other Divisions Affected
With mass layoffs at Microsoft the world would be much better