Bonum Certa Men Certa

The Quality of European Patents Likely Declined Even Further in 2018

The EPO saw change of President, but patent examination continues to exacerbate in Europe (and it's not examiners' fault)

Reference (Wikipedia): Human capital flight



Summary: Bad leadership and loss of talent are dooming the European patent system, where the sole goal right now seems to be granting as many patents as possible, irrespective of underlying rules and economic analyses

THE American patent system (especially the courts) seems to have improved in the sense that it becomes a lot stricter; patents on software, for example, are harder to get/enforce in the US, but the system in Europe is all backwards. The European Patent Office (EPO) changed a lot -- obviously for the worse -- after 8 years of Battistelli; we aren't even talking about all the abuses and corruption but about purely technical things. Examiners and stakeholders both complain -- something that has not happened at any moment in history. The EPO makes the US Patent and Trademark Office (USPTO) look like a model organisation.



"The EPO makes the US Patent and Trademark Office (USPTO) look like a model organisation."The year is about to end and we want to minimise writing while we migrate to another datacentre (data synchronisation being of concern); but before Christmas kicks in (marking about a month since SUEPO last said anything) let's quickly look at what the patent trolls' lobby wrote some days ago. Adam Houldsworth, promoter of patents on life, spoke about the EPO's opening to patents on life again:

EPO announcement signals prohibited plant patents may be back on the cards – The EPO’s Technical Board of Appeal stated that a recently adopted rule of not granting rights for plants produced exclusively by an essentially biological process contradicts the European Patent Convention, suggesting that the office will now begin to grant patents for such inventions again. Following years of uncertainty about the patentability of the products of essentially biological processes under Article 53(b) of the EPC, the EPO Administrative Council provided clarification in 2017 by amending the Implementing Regulations to include Rule 28(2): “Under Article 53(b) European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.” However, in early December the Technical Board of Appeal issued a notice saying that: “At the oral proceedings, which took place on 5 December 2018, Technical Board of Appeal 3304, in an enlarged composition consisting of three technically and two legally qualified members, held that Rule 28(2) EPC (see OJ 2017, A56) is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13. The Board referred to Article 164(2) EPC, according to which the provisions of the Convention prevail in case of conflict with the Implementing Regulations, and decided to set the decision under appeal aside and to remit the case to the examining division for further prosecution.”


Cooley LLP's Colm Murphy and Steve Cuss [1, 2] and HGF Ltd's Ellie Purnell also wrote about it some days ago. The latter was titled "EPO Technical Board Of Appeal Considers Plants Produced By Essentially Biological Process Are In Fact Patentable," but it's likely far from over. The management of the EPO is acting in violation of directives and the EPC, i.e. both the authorities and its founding 'constitution'. There's likely parliamentary (or public interests' groups) opposition on the way, but it's too near to Christmas, so none has been waged yet. Wolters Kluwer has meanwhile announced this new (2018) edition of "Visser's Annotated European Patent Convention" [1, 2, 3]. Those are paid press releases (or copies thereof). Does the EPC even matter anymore? It certainly isn't being respected.

As always, what worries us most is software patenting in Europe; seeing that the EPO is willing to even grant patents on life/nature is a very bad sign. Consider this new article (Dentons' Sara Massalongo and Giangiacomo Olivi) that says "Artificial intelligence mainly consists of software—that is why it is also referred to as “super software”—which is typically protected by copyright."

So stop right there. Stop promoting "AI" patents or calling it "IP" (even in the headline). Here's the part about the EPO:

Programs for computers and mathematical methods as such are excluded from patentability; however, it is possible to patent the so-called “computer-implemented inventions” (CII), i.e. the inventions that have features realized wholly or in part by means of a computer program and which provide a technical effect.

Therefore core-AI, e.g. the algorithm as such, is not patentable, whereas only AI-related inventions which have a technical character are eligible for patent protection.

The European Patent Office has recently issued guidelines on the patentability of AI-related inventions, moving from the discussions carried out during the EPO conference on “Patenting Artificial Intelligence” held on May 30, 2018.


The EPO just ignores the EPC. It is violating basic rules in order to fake 'growth' and this inspires some others. DANIEL Legal & IP Strategy's Gustavo Sartori Guimarães and Rana Gosain, for example, have just published this article about Brazil and it mentions EPO programmes like PACE, Early Certainty, PPH and other accelerators. They may be missing the point that speed must never be the goal of patent offices but accuracy or validity only. "Despite a reputation for being slow to grant patents, Brazil’s IP office has introduced a number of programmes to expedite examination," they said. Even the EPO's applicants have complained about too fast a process, seeing this was sometimes done hastily, sloppily, and shoddily. Speeding up the process and then conflating speed with "quality" is a hallmark of the EPO's deception. The price for this will be paid over the years (the long run) as the certainty associated with European Patents is diminishing, defeating the purpose of examination.

Recent Techrights' Posts

Trolls With LLM Slop Are Disrupting Communications About Mass Layoffs at IBM
LLM slop to drown out the signal
Bing Might Shut Down - Just Like Skype Did - Some Time in the Coming Months/Years (Parts of It Already Shut Down)
they try to bring the losses under control
 
The SLAPPs From Microsofters Distract From Serious Copyright Infringement by Microsoft and Apparent Business Crimes
Aside from other issues, such as strangling women
Enshittification is Everywhere: You Pay More, the Services Get Worse
"Enshittification" is a term coined by an online friend; I increasingly use this term to describe what's happening even outside the realm of technology (which it was adopted to describe)
Microsoft Reduces Office Space Ahead of More Waves of Mass Layoffs
"The Gerstnerisation of Microsoft"
Anti-Linux FUD Produced by Microsoft LLMs to Blame "Linux" for Microsoft's Own Failures
We call out some of the worst culprits
Gemini Links 16/05/2025: Hoking GPS, Grabovac, and Tanana
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 15, 2025
IRC logs for Thursday, May 15, 2025
Microsoft WARN Notices Proliferate in the United States
From what we've seen, this wave was more than 3% (a lot more) and the next wave/s will be even bigger (possible as imminent as weeks from now), based on insider leaks
Links 15/05/2025: Google Betrays Publishers Again, Openwashing by Sysdig
Links for the day
Richard Stallman Still Respected by Many in the Libre Graphics Community
Richard Stallman and Professor Moglen never harmed anyone
If You Read Techrights, Then You Probably Want to Read Tux Machines as Well
That site is more active than this one
Gemini Links 15/05/2025: Forced Music in Publicly Accessible Space and ~silv is Online
Links for the day
Links 15/05/2025: KOSA Censorship (USA Becomes More Like KSA) and More National Cuts
Links for the day
Your Real Ally Would Not Defend the Company of SLAPP and Strangling of Women
who's left to tell us what's true?
Breakdown of Microsoft Layoffs Shows It's About Cost, Not Performance or Hype (Like "AI")
MSN (Microsoft) reposted this with some unnecessary spin
The Lawyers Working for the Serial Strangler From Microsoft on SLAPPing Techrights Have Apparently Lost Their Voice
the moment we mentioned that their media lawyer is leaving they went all quiet in social control media
At IBM, Relocation Can be a Trick or a Trap (IBM Gets Rid of Staff Under the Guise of "Relo")
IBM is not being honest with employees
Microsoft Rumours: This Week's Scale of Layoffs "Higher Than Reported" and More Coming Soon ("A Lot More Severe" Than May's)
The "3%" figure is false
Slopwatch: Sloppy Brian, Brittany Slop, and General Observations
Creative people don't need slop; there's just nothing good about it, slop appeals to lazy people careless about quality
Over at Tux Machines...
GNU/Linux news for the past day
Beyond Mass Layoffs at Microsoft: Entire Units Shut Down for Good
And it's far from over
Links 15/05/2025: Crikvenica, Analog Computer, and Slop 'Hallucinations'
Links for the day
IRC Proceedings: Wednesday, May 14, 2025
IRC logs for Wednesday, May 14, 2025
Links 14/05/2025: Fentanylware (TikTok) Harms Kids, Russia Refuses to Defuse
Links for the day
Gemini Links 15/05/2025: Poseur Nerds and Mennonites
Links for the day
VS Code Is Not FOSS, And Neither Is the Site "It's FOSS"
VS Code is proprietary spyware of Microsoft, yet this site keeps promoting it like it's FOSS
No, Microsoft Didn't Lay Off So Many People Because of "AI" "Innovation" or "Efficiency" or "Era" or "Revolution" Etc.
Debunking one very common lie
What We Do When We Say "GNU/Linux" to People
It talks about "Linux", "GNU", and what it means to say "GNU/Linux"
Links 14/05/2025: Facebook And Instagram Risk Nationwide Bans, Microsoft Subsidiaries Have Mass Layoffs Too
Links for the day
Canonical Will Give You Money Only If You Work for Microsoft!
Only if you are servicing (being a slave to) proprietary forges that Microsoft and the NSA control while violating the GPL will Canonical give you money
If Microsoft Staff That Strangles Woman Pays You to Write Lies, It Will Not End Well
The past couple of years were our most productive ever
Gemini Links 14/05/2025: "Writing My Story with Inspiration from Notable Lives" and People Start Shovelling Up LLM Slop Onto Geminispace,
Links for the day
Microsoft is Very Highly Stressed About Adoption of GNU/Linux at Windows' Expense (on Former "Vista 10" PCs)
What does this tell us?
Slopwatch: BetaNoise (BetaNews), LinuxSecurity, and Slopfarms Still Promoted by Google News
The primary goal is to demonstrate the problem persists
Links 14/05/2025: Google Agrees to $1.3 Billion Settlement After Spying, China Tariffs Don't Work
Links for the day
There Are Also Loads of Microsoft LinkedIn Layoffs Today (Keep Track of the Subsidiaries They Keep Out of Headlines)
Perhaps lost in the smokescreen
There Are Bigger Rounds of Microsoft Layoffs Coming, a Cull of 10% Implemented in Waves (the "3%" Figure is Misleading, Face-Saving)
Last night we said they might do the layoffs in three or at least two waves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 13, 2025
IRC logs for Tuesday, May 13, 2025