Bonum Certa Men Certa

Patent Scope in Europe Should Not be Decided by the Self-Serving Patent Law Firms, But They Totally Dominate the Media

The screenshot below (taken moments ago) shows how Lexology and the likes of it (law firms lobbying and/or advertising themselves) totally dominate channels of information

Lexology EPO



Summary: Coverage regarding patents in Europe is still (nearly) monopolised by the patent microcosm, i.e. the 'industry' that profits when many patents are granted and a lot of lawsuits get filed

LAST month we wrote about Switzerland in relation to Patent Boxes (means for dodging tax). Yesterday, Philipp Groz and Teresa Rudolph from Schellenberg Wittmer wrote two 'articles' about patents in Switzerland, noting that "[c]omputer programs as such are not patentable." (the term "as such" became infamous within the EPO and caused great controversy)



When we say "two articles" we use scare quotes because actually these are two identical self-promotional posts, possibly intended to help occupy more search results pages (SEO). One is titled "Patents in Switzerland" and the other "An overview of patentability in Switzerland". It's all the same. Here is the part we're interested in:

To what extent can inventions covering software be patented?

Computer programs as such are not patentable. However, computer-implemented inventions are patentable (eg, inventions involving the use of a computer, computer network or other programmable apparatus, where one or more features are realised by means of a computer program).

To what extent can inventions covering business methods be patented?

Business methods as such are not patentable. However, business methods may be patentable if they are combined with technical features.


Yesterday we wrote about a similar self-promotional piece from Keltie LLP (UK) and this morning a pseudonym which seems to be associated with the firm confronted us over it. They promote loopholes by which to mislead examiners and when people criticise them for it they just walk away, as usual...

Also published yesterday was this article from Potter Clarkson LLP (Richard Wells and David Carling to be specific).

It speaks about "inventive step"/"technical effect" at the European Patent Office (EPO) and bemoans the appeal boards "[r]aising the plausibility bar," which is the very thing these boards exist to ensure. To quote:

In T 0488/16, the board reiterated that it is not essential that the application contains experimental data or results, provided the nature of the invention is such that it relies on a technical effect which is either self-evident or predictable or based on a conclusive theoretical concept.

Nevertheless, it is clear that it is not sufficient merely to assert that the technical problem the application purports to solve is solved. Some form of verifiable evidence is required in the application as filed.

When drafting new European patent applications, applicants should minimise the extent to which they may need to rely on post-published evidence during pre- and post-grant proceedings, bearing in mind that reliance on what is made plausible from the common general knowledge opens up questions of obviousness.

In the absence of adequate experimental results, additional effort should be put into the construction of a strong technical explanation for the purported effect which overcomes the plausibility threshold, thereby enabling the applicant later to rely on post-published evidence.

It is clear from T 0488/16 that it will not always be possible to address this issue even by severely narrowing the scope of the claims.

Great care should, therefore, be taken when considering withholding experimental evidence simply to maintain a commercial advantage.

This decision may also provide useful ammunition for opponents during oppositions. In most cases, the threat of the plausibility issue may result in the delaying of filing new applications until sufficient data become available.

As the EPO’s recent decision brings its approach closer in line with that adopted by other patent offices, most notably those in China and Japan, these choices will be familiar to practitioners handling worldwide patent portfolios.


The authors ought to know that the boards have already been marginalised and oppositions made more difficult (for various reasons). It's all intended to ensure quick grants and many low-quality patents, which Battistelli is perpetually prepared to lie about (his greatest power is that he's willing to lie without qualm or guilt).

One last article of interest is this one from Kevin Kabler and Andrew Whitehead. They both work for patent maximalists and software patents lobbyists, Fenwick & West LLP, who can't help pushing towards patents on life just like they push hard for patents on abstract ideas. Here they are lobbying alongside the EPO (Georg Wimmer) and USPTO (Marjorie Moran):

At the September 21, 2017 symposium, Fenwick’s Kevin Kabler moderated the panel. Sharing insights* into patent eligibility and obviousness considerations in the U.S. were speakers Marjorie Moran (USPTO) and Andrew Whitehead (Fenwick). On the European side, our guests were Georg Wimmer (EPO) and Frances Salisbury (Partner, Mewburn Ellis, UK).

[...]

A: In Europe, make sure you’ve got some intermediates in the application and make sure your technical case is clearly stated. In the U.S., talk to your examiners. At the USPTO, you’ll find that going back and forth in writing, especially with the constantly changing landscape of patent eligibility, causes more confusion sometimes than it solves; so if your case has been picked up for examination, call your examiner at any point in time, it will help shorten your prosecution path considerably in the vast majority of cases.


Yes, the EPO has long advised people not to submit anything without a middle(wo)man which can cost up to $500 per hour. Such is the inane state of affairs and the reason people have reported abuse/sent complaints (some of which we covered here before).

Suffice to say, any financial gain for patent law firms happens at the expense of actual scientists/technologists (like patent examiners).

Recent Techrights' Posts

Linux Journal Might Have Become the Latest Slopfarm Targeting "Linux", the Trends Are Concerning for Dying News Sites
They tarnish the Web with junk and then die
On "Learning to Code"
quality may suffer, plus things get bloated
Quick Points Regarding This Week's Court Hearing
it paves the way for us to squash all the SLAPPs from Microsofters
 
"Six years of Gemini!"
From gemini://geminiprotocol.net
Gemini Links 20/06/2025: Summer Updates and Hardware Failures
Links for the day
Links 20/06/2025: Google Shareholder Sues Google and Google Sued for Defamatory Slop ('Hey Hi') Word Salads ('Summaries')
Links for the day
Common Mistake: Believing Social Control Media Will Document Your Writings/Thoughts and Search Engines Like Google Will Help You Find These
Many news sites wrongly assumed that posting directly to Twitter would be acceptable
The Manchester Bees and This Hot Summer
We have had a fantastic week so far this week
Gemini Protocol Enters Its Seventh Year, Growth Has Accelerated!
Maybe in June 20 2026 there will be over 3,500 active capsules?
Mastodon and the Fediverse Have an Issue: Liability for Content (Even in Other Instances) and Costs
self-hosting is the only logical path forward
Why Microsoft and Its 'Hey Hi' (Slop) Frenzy Fail While Sinking in Deep, Growing Debt
Right now, like Twitter around the time it was sold to MElon, "open" "hey hi" is a big pile of debt with a lot to pay for that debt (interest payments)
Europe is Leaving Microsoft, the Press Coverage Isn't Sufficiently Helpful
The news is generally positive, but the press coverage leaves so much to be desired
Slopwatch: Linuxsecurity, BetaNews, and Linux Journal
slippery slope
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 19, 2025
IRC logs for Thursday, June 19, 2025
Gemini Links 20/06/2025: Gemini Protocol Turns 6!
Links for the day
Links 19/06/2025: Ghostwriting Scam and Fentanylware (TikTok) Buying Time
Links for the day
Microsoft's Windows is a Niche Operating System in Africa
African nations aren't a large contributor to Microsoft's income, but if many African nations move away from Windows, then the monopoly is at risk
Gemini Links 19/06/2025: Unix Primitivism, Zine Club, and Gemini Protocol Turns 6 at Midnight
Links for the day
Links 19/06/2025: WhatsApp Identified as Assassination 'Crosshairs', Patreon Now Rips Off People Even More
Links for the day
"Told You So": Another Very Large Wave of Microsoft Layoffs Now Confirmed in Mainstream Media
So we were right to believe the rumours, based on the credibility of prior such rumours
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 18, 2025
IRC logs for Wednesday, June 18, 2025
Gemini Links 18/06/2025: Magit and Farming
Links for the day
Slopwatch: BetaNews is Now a Slopfarm (Like Linuxsecurity) and Google News is Overwhelmed by Slopfarms
The Web is bad
Links 18/06/2025: SCOTUS Decision on Fentanylware (TikTok) Still Ignored, 4.5-Day Work Weeks
Links for the day
Links 17/06/2025: Windows TCO and G7 Rifts
Links for the day
The Right to Know and the Freedom to Report on Crime (at the Higher Echelons)
I'd like to do the same thing for the next 20 years
BetaNews Appears to Have Fired All Of Its Staff
Even serial sloppers
After the Web Becomes Slopped to Death
A lot of people are rightly fed up with the "modern" Web
Gemini Protocol Turns 6 on Friday
Active (online) Gemini capsules are estimated by Lupa at over 3,000
Like Most Social Control Media, Microsoft LinkedIn is Collapsing
One reason for Microsoft acquisitions is debt-loading, i.e. offloading and burying its debt
Microsoft is Losing Its Richest Clients
Unlike some very poor countries, Germany and the EU are a considerable source of income to Microsoft
Proprietary Means Not Secure
Proprietary software tends to rely on secrecy, not good design
Slop in 'AI' Clothing is a Passing Fad, We'll Get Past It (Like Blockchain Before That)
Many people cheat in exams using slop and there are professionals that try using slop as a "shortcut"
GNOME Does Not Campaign Against Microsoft, KDE Does
It's good to see that KDE is still active in promotion of Free software - a term that it uses
Slopwatch: BetaNews, Linuxsecurity, and Other Prolific Slopfarms
name and shame the sites that establish such proliferation of slop
Gemini Links 18/06/2025: Birch Lake and Loon Pond
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 17, 2025
IRC logs for Tuesday, June 17, 2025