Bonum Certa Men Certa

EPO-Style Problem-Solution: Tackling Backlog by Granting Lots of Low-Quality (Bogus) European Patents, Causing a Surge in Troll/Frivolous Litigation

Related: The Patent Trolls' Lobby, Bristows and IAM Among Others, Downplays Darts-IP/IP2Innovate Report About Rising If Not Soaring Troll Activity in Europe

SCSI



Summary: The EPO's lack of interest in genuine patent quality (measuring "quality" in terms of speed, not actual quality) may mean nothing but a litigation epidemic; many of these lawsuits would be abusive, baseless; those harmed the most would be small businesses that cannot afford a legal defense and would rather settle with those who exploit questionable patents, notably patent trolls

THE decline/demise of patent quality at the Munich-based patent office isn't just an hypothesis; firms and examiners speak about it. They're concerned. They even pen open letters with many signatures. Sometimes petitions. They rightly worry and they understand the long-term ramifications, knowing that the Munich-based patent office (other locations too) relies on its reputation and the high legal certainty once associated with patents assessed to be awarded/granted. Those who understand how the patent system works (either as examiners or law firms' staff) want what's best not only for themselves but also for their country/ies. As we last stressed a few days ago, patent maximalism is generally a threat to the entire patent system. Greed can cause the entire thing to collapse.



"...patent maximalism is generally a threat to the entire patent system. Greed can cause the entire thing to collapse."Frivolous litigation is nowadays being reported in Europe; we privately hear some stories and the EPO is to blame. "Opposition proceedings in the EPO are currently under appeal to the Technical Bureau of Appeal (“TBA”)," say Matheson's Michael Finn and Deirdre Kilroy. It's about Ireland. Yesterday they wrote:

The Irish Commercial Court has departed from a long standing precedent and refused to suspend national patent revocation proceedings whilst parallel opposition proceedings are ongoing in the European Patents Office (the “EPO”). This has the potential to result in an increase in litigating national patents devolved from European patents in Ireland. In this article, IP litigator Michael Finn highlights some of the key aspects of the decision.

[...]

On 31 July 2018, the Court refused to suspend the entire proceedings. The Court suspended the trial until late 2019. However, in a departure from previous Irish case law, the Court directed that all pre-trial steps in the proceedings should go ahead.

[...]

In deciding to suspend the trial until November 2019, the Court was influenced by the prospect that the EPO proceedings could potentially be resolved completely within 12 months, and the potential waste of court resources would outweigh other considerations.


Some of these European Patents should never have been granted in the first place. Once granted, they can form the basis for frivolous lawsuits, causing a lot of trouble and costing a fortune.

We have always been particularly concerned about software patents. The USPTO moves away from software patents, whereas the EPO is actively promoting software patents in Europe (several times per day lately; it got worse after António Campinos had taken over).

"They're "politely" if not "silently" destroying what used to be the world's best patent office."FB Rice's Eddie Walker, Jeremy Dobbin, Madeleine Kelly, Steve Gledhill, Andrea Ruhrmann, Will Morgan and Toby Thompson now have this new article. It is about Australia, which disallows software patents, imitating Europe's loopholes rather than be inspired by Alice (SCOTUS). Does Australia not know that the EPO does not follow European law, EPC etc.? They're alluding to what's often used as a 'trick' by which to patent algorithms.

To quote:

A new consultation regarding legislation that will change the way inventive step is considered for Australian patents has been announced, with the intention being to raise the threshold by aligning with European standards. In future, the EPO “problem-solution” test will usually be adopted when assessing inventive step in Australia, which is a different assessment from the lower level problem-solution assessment currently used here.

It remains to be seen whether other aspects of the European inventive step assessment will also be imported into Australian practice. A principal reason for the current difference in standards is that the circumstances under which two prior art documents can validly be mosaicked to sustain an obviousness attack are much broader in Europe. Unless this aspect of Australian practice also changes, the legislative amendments may not have as significant an effect as desired.

[...]

Whilst an EPO-style problem-solution approach may become the norm for assessing inventive step in Australia, the Draft Explanatory Memorandum sets out that there will be flexibility to adopt other tests in some circumstances.[ix] This is also welcome, since although the rigid approach of the EPO in following problem-solution provides relative legal certainty, it is not necessarily the best approach for all situations.


The approach of "problem-solution" is, in our humble assessment, unhelpful. It dodges underlying tests like Section 101 in the US -- a subject which we'll explore again later this weekend. The most distressing thing is Campinos and his silence on these matters; there's zero transparency, zero accountability and almost zero words from Campinos. They're "politely" if not "silently" destroying what used to be the world's best patent office. In the process they harm European firms.

Recent Techrights' Posts

Sloppy Reporting About Slop, or How The Register MS Lowers Its Standards
Maybe the management isn't even aware of this
IBM's Strategy: Cull 'Expensive' Workers, Replace Them With Cheaper Ones
So far we saw not even one rebuttal or challenge to the claim of Red Hat layoffs scheduled for tomorrow
The Goal of Coopetition Assumes You're Friends
it will never work with Microsoft
Seductive Mirage or Allure of Complex, Proprietary Coffee Machines (or Similar White Elephants)
Software is a lot like those things
Hate Mail From Anonymous Cowards
if this persists, we'll need to escalate
 
Sometimes Newer is Worse
We generally need to reject this dumb notion that "old" means bad
The Code Used to Make Techrights Fits on a Seventh of a Floppy Disk (or 100KB When Compressed)
For the sake of comparison I've just downloaded the latest version of WordPress. The ZIP file is 27.2MB in size, or ~27,200KB.
What They Tell Young Programmers
Coding in 2025
Simpler is Better When Simple is Enough
Over-complicating things to "sell" new versions is so 1990s
Links 10/08/2025: From Social Control Media to Prison, New Examples of Windows TCO
Links for the day
If You Attack Somebody Too Much You Legitimise and Strengthen That Somebody
at the end those attacks add up to a "martyr" status
The Man Who Helped Microsoft Kill Linux is Trying to Delay Our Lawsuits Against Him
By conservative estimates, and based on court documents submitted by them, they're prepared to spend over a million dollars on lawyers, fighting against me and my wife
Gemini Links 10/08/2025: Gen Con 2025 and Framework Laptop
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 09, 2025
IRC logs for Saturday, August 09, 2025
The Register MS (Microsoft) or The Register AI (Slop)?
What a slopfest!
Is Red Hat About to Give the Boot to GNOME People Who Helped Microsoft 'Secure' (Monopolised) Boot?
It was always a dumb idea to play along with Microsoft's hardware mischief
Sales of Windows on PCs (Windows Licences) Go Down
Microsoft has a big problem in its hands
The Hype That Microsoft and The Register MS (Among Others) Promote Helps Stage DDoS Attacks on Free Software Sites
Microsoft is, to put it bluntly, pure evil
Links 09/08/2025: Putin Allegedly to Visit Alaska (Which He Deems Part of Russia), Mike Tyson Sued for Copyright Infringement
Links for the day
Slopwatch: Linux Journal, LinuxSecurity, and Google News With Its Slopfarms of Choice
SEO spam, made with LLMs
Follow the Money: The Register MS Gets Paid to Promote "Hey Hi" Ponzi Scheme/Hype, Some Fake 'Articles' Might Be Composed by LLMs Already
paid to promote slop
Gemini Links 09/08/2025: Rethinking Aliases and Posting on Gopher vs. the Web
Links for the day
Links 09/08/2025: Apollo 13 Astronaut Jim Lovell Dies, Slop Future Bleak
Links for the day
After Shutting Down Studios, Divisions, Applications (e.g. Skype) Microsoft is Also Shutting Down 'Apps'
Cuts all around as layoffs persist this month, Microsoft tries to get many people to resign, and debt skyrockets
Most of Geminispace Can Probably Fit on a CD-ROM or a DVD (the Textual Part)
If one excludes very large capsules and ones that contain non-textual contenty
Eventually UEFI 'Secure Boot' Will be Dropped (Users Will Demand Its Removal and Boycott Its Pushers)
we expect OEMs will just listen to users
The Register MS: We Know Slop is a Bubble and Mindless Hype, But We Get Paid to Participate
Call out the culprits
There Are Probably Over a Million Pages in Geminispace
there are two many limitations which merit a mention when it comes to assessing magnitude
Informal Open Letter to the Lawyer of the Microsofters (on Who's Funding the SLAPPs Against Techrights)
Whenever I ask about the funding they try to change the subject and act all aggressive
Microsoft Lunduke is Just Provoking People for Provocation's Sake
Be forewarned and remember where this guy came from: Microsoft
Besieged by Plagiarists Who Play With LLMs and Image Fusions
We really need to exercise or use our collective voice to oppose Serial Sloppers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 08, 2025
IRC logs for Friday, August 08, 2025
Gemini Links 09/08/2025: Water Painting and Political Violence
Links for the day
Slopwatch: LLM Sloppers in Google News, LinuxSecurity, and More
they also perpetuate some falsehoods as the LLMs lack any comprehension
Links 08/08/2025: China King of Plastics and US Dictator Plans to Meet Russian Dictator
Links for the day
Gemini Links 08/08/2025: Cracking a Family Member's Password and Overdose of Slop
Links for the day
Red Hat's Latest Talent Hunt, Day Ahead of Mass Layoffs, is Yet Another Microsoft Executive
Red Hat will apparently commence mass layoffs early this coming Monday
Links 08/08/2025: "Quit Facebook" and High Cost of Microsoft/Windows Shown Again ("BlackSuit")
Links for the day
Good Morning, Readers of The Register MS
Things The Register MS could (but does not) cover this morning
Why Gemini Protocol Has a Bright Future
Maybe Gemini Protocol's promise becomes more appealing as the Web turns to slop and bloat
It's a Lot Easier to Participate in the Unethical System Than to Oppose Injustices in It
Going after powerful and high-budget interests is never easy
Microsofters Filed Two SLAPPs Against Us, Now They Cannot Keep Up With Judges' Orders
For over 4 months already their facilitator in London has been under investigation by British authorities because of what's being done to my wife and I
Censorship Regarding Red Hat Layoffs
Talk about this? They'd rather not.
Struggling to Cut Costs, Microsoft Continues Shutting Down and Cancelling Stuff This Month
There are August layoffs at Microsoft
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 07, 2025
IRC logs for Thursday, August 07, 2025
Fake 'Linux' Articles, Written by Bots to Take Traffic Away From Real Articles
LLM slop helps replace information with junk or misinformation
When Google's Googlebombing of "Gemini" Was Not Enough; They Now Also Googlebomb "Gemini Space"?
We know GAFAM not only worries about Gemini Protocol but also attempts to 'infiltrate' Geminispace
The Register MS Promotes Microsoft Slop, Assumes All Readers Use Microsoft Windows
Microsoft really dominates the site
Gemini Links 08/08/2025: KDE/Qt Development and What's Missing From "Retro"
Links for the day