Bonum Certa Men Certa

Courts in Disagreement: Warning on Wrongly-Granted European Patents and the Looming Collapse of All Software Patents in Europe



Similar to what happened owing to 35 U.S.C. €§ 101/Alice (SCOTUS). Many patents granted by the U.S. Patent and Trademark Office (USPTO) for a number of decades turned out to be worthless. Litigation numbers completely collapsed and even the number of applications is decreasing.

Abandoned pier



Summary: By devaluing patents and reducing their perceived worth (as is happening in China and Europe) patent offices risk decreasing participation in the very system they fundamentally depend on

INCLUDED in our daily links, lumped together for brevity, are some of the latest patent cases and their outcomes in the US. They show that patents granted by the U.S. Patent and Trademark Office (USPTO) continue to perish (be thrown away by courts) at all levels, not just the Federal Circuit. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) also persist as usual. The danger is that the same is already happening to the European Patent Office (EPO) and people are gradually realising it. Companies might divest. We wrote about it yesterday.



"...when such courts do blast the EPO (for misinterpreting the EPC) the EPO just simply ignores it, just like Iancu at the USPTO."Yesterday we saw this new Regeneron press release about Immunex/Amgen (e.g. in PharmiWeb). Many patents are nowadays being granted in error, also by EPO examiners who were traditionally a lot better. Once there's a lawsuit or a challenge here's what happens increasingly and more frequently (we covered many more similar examples earlier this year):

Today the European Patent Office invalidated Immunex's European patent claiming antibodies that target human IL-4 receptors (IL-4R)

Decision follows yesterday's ruling by the U.S. Patent & Trademark Office invalidating a similar Immunex patent claiming antibodies that target human IL-4R

Regeneron Pharmaceuticals, Inc. (NASDAQ: REGN) today announced two important legal developments invalidating Immunex patents with functional claims to antibodies that target human interleukin-4 receptors (IL-4R). Earlier today, the Opposition Division of the European Patent Office (EPO) revoked Immunex's European Patent No. 2,990,420 in its entirety because the claims were invalid for insufficiency of disclosure. This follows a decision yesterday by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office (USPTO) to invalidate all 17 claims of Immunex's U.S. Patent No. 8,679,487 as obvious. These decisions are subject to appeal by Immunex.

The patents in question are owned by Immunex Corporation, which is wholly-owned by Amgen.


Sooner or later companies like Immunex/Amgen might simply decide to no longer pursue European Patents, seeing that these sometimes lack legitimacy and cost a lot of money in legal bills (not just application/renewal). Those should be the lessons learned from the USPTO's failings. What happens in the US right now is despicable because a Trump appointee tries to change all that by breaking the law while patent maximalists are bypassing the law and dodging 35 U.S.C. €§ 101 so as to get software patents that courts would reject anyway. A new 'webinar' entitled "The USPTO's Updated Guidance on Section 101: Adjusting Your IP Evaluations for Maximum Protection" has just been promoted by Patent Docs. This isn't about law but about working around the law. Director Iancu turns out to be even worse than David Kappos, whose former employer, IBM, is pushing for software patents in Europe under the guise of "AI". What would courts in Europe have to say about such patents?

Well, on the 6th of February J A Kemp published this "Review Of Software Patent Appeals At The EPO 2018". From the section about algorithms:

Inventions in the field of computer science can in some cases derive technical character from the technical nature of the data being processed, and in other cases, from a technical improvement in processing data independently of the nature of the data itself. However, inventions where the data is too abstract, or is non-technical in nature, can fall between these two categories.

Thus, it is instructive to contrast T 2707/16 (Dynamically generating multiple hierarchies/MICROSOFT TECHNOLOGY with T 0841/16 (Business rule interface/AB INITIO). The latter case concerned a graph-based system for editing and compiling business rules where neither the nature of the data nor the alleged advantage of improved editing were considered technical. In the former case it was held that "the use of caching for dynamically generated data (i.e. the data polyarchy) with an authoritative store is a technical concept that serves as a compromise between higher scalability and fast response times for query processing on the one hand and freshness of the data on the other hand and that this goes beyond the notoriously known use of caching in general. Consequently, the Board considers that the claimed implementation achieves the technical effect of higher scalability of query processing on a server by means of a particular application of caching which reflects further technical considerations." The claims at issue, which were remitted for further prosecution, did not specify the nature of the data being searched.

Independence of the nature of the program being executed also contributed to technical character in T 2052/15 (Asychronous antivirus processing/KASPERSKY) where an increase in the responsiveness of a computer by using computing resources in an asynchronous manner was considered a technical solution to a problem.

A rare case of the implementation of a non-technical method being considered technical is T 2330/13 (Checking selection conditions/SAP). This concerned a method for checking whether selected options for a "configurable product" (e.g. a car) are consistent before manufacture. The Board considered that the term "configurable product" did not confer technical character because it did not exclude non-technical products, such as insurance policies. However they did consider that "the specific claimed bit (sub-)matrices, bit strings and steps of the method, especially those of splitting the bit matrix, forming bit strings representing the selection and restriction conditions and determining inconsistent pairs of selection conditions when performed by parallel processing, do contribute to the technical character of the invention and should be taken into account when assessing inventive step." The case was therefore remitted for further prosecution.

Given that computer programs are considered non-technical, it is perhaps not surprising that even higher abstractions such as programming languages and systems for assisting programmers have been rejected. In 2018, examples include T 0790/14 (Programming language construct/MATHWORKS), a programming language for mathematical operations; and T 2497/12 (Java RMI integration/MATHWORKS), a system for integrating programs in different languages.


Software patents are not permitted in Europe. So Strafford will train people or teach people how to pretend algorithms are "AI" (for the EPO to let them slip in). A post titled "Webinar on EU Guidelines for Patenting AI and Machine Learning Technologies" was published several hours ago by Patent Docs, whose majority of posts are nowadays these ads, not actual articles (all the patent maximalists' blogs have become mostly or entirely dormant because they've lost the argument). Here's what it says:

Strafford will be offering a webinar entitled "New EU Guidelines for Patenting AI and Machine Learning Technologies: Comparison With U.S. Approach -- Navigating EPO and USPTO Rules to Maximize Patent Protection" on February 26, 2019 from 1:00 to 2:30 pm (EST). Aliza G. Carrano and Susan Y. Tull of Finnegan Henderson Farabow Garrett & Dunner will guide patent practitioners in overcoming the challenges when seeking patent protection for artificial intelligence (AI) or machine learning (ML) inventions, examine the new guidelines from the European Patent Office (EPO), and compare the EU approach with the U.S. approach.


So their strategy is to basically pretend algorithms are "AI" (buzzword) or "ML" (an actual technical term, albeit often misused and still alluding just to software). We recently wrote about how EPO management admitted it was granting software patents under the guise of "Blockchain" (also a technical term, albeit often misused). The USPTO does the same thing ("Blockchain-based Patents"). These fake patents are abstract patents that courts would throw out everywhere but China perhaps. Media, nevertheless, pays a lip service to these and days ago an article was published by Mareesa A. Frederick and Alyssa Holtslander (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) to promote "IoT" (buzzword), admitting that "IoT patents will contain claims directed to computer-related methods of gathering data" (so they admit/concede these to be abstract patents). Large litigation firms are leveraging made-up buzzwords and hype like "AI" or "IoT" in an effort to justify patents on all the foods and associated processes. Abstract ideas? Yes. They even admit so further down in the text:

Another important consideration is patent eligibility. In order to obtain a patent, a patent must claim eligible subject matter. Laws of nature, natural/physical phenomena, and abstract ideas are not considered subject matter that is patentable. For example, one cannot obtain a patent claim on the law of gravity.

Patent eligibility is particularly important for inventions for computer-related technology. Abstract ideas that are implemented on a computer may not be considered subject matter that is patentable. The underlying concern is that companies will seek to obtain patents for well-known methods and systems by merely using a computer to implement them.

Because IoT patents will contain claims directed to computer-related methods of gathering data, subject matter eligibility might be an issue for IoT inventions. Notably, the Supreme Court recently held that patents directed to electronic methods and computer programs for financial-trading systems did not claim eligible subject matter.


It's obvious who's going to suffer the most from such patents; small companies cannot quite afford a legal challenge and might simply settle instead.

There's a timely new example of it in the media (published a few days ago). "A “patent troll” has filed suit against U.S. Safety Gear, a small business with 95 employees in 13 locations, including one in Leavittsburg," Warren Tribune Chronicle wrote in "'Patent troll' files suit against small business" (as trolls so typically do; they attack the weak). Are small companies in Europe going to suffer a similar fate because of the EPO's granting of software patents? Some are already reporting such abuse, yet they cannot take the matter to sufficiently high courts; when such courts do blast the EPO (for misinterpreting the EPC) the EPO just simply ignores it, just like Iancu at the USPTO.

Recent Techrights' Posts

IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Big Trouble in GNOME
even GNOME people admit the CoC went wrong
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
 
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
Streaming Apps Are “Investor Fraud” That Kills the Planet
Reprinted with permission from Ryan Farmer
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025
Open Source Initiative (OSI) Promoting Microsoft and Proprietary Software Using Microsoft Operatives
Because nothing says "Open Source" like GPL violations facilitated by Microsoft
Another Site Bites the Dust: "Open Source For You" Becoming a Slopfarm (LLM Slop)
What a shame. Another dead site.
Links 23/04/2025: Crackdowns on Dissent, Palin Loses Libel Retrial Against New York Times
Links for the day
Links 23/04/2025: Hard Times and Digital Amnesia
Links for the day
The GNU/Linux Site Formerly Known as "linoxide.com" is Back... as an LLM Slopfarm!
Better for linoxide.com to go offline than to do this
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Richard Stallman to Speak in Oxford University Exactly a Day From Now
outsourced to GAFAM
Links 23/04/2025: "Hiding Corruption" and "The Cost of Defunding Harvard"
Links for the day
Microsoft 'Studies' Again? Leon Musolff is Writing Papers With Microsoft.
Even if one can see/find a link to "the study" (in the Bezos-controlled publication), most people won't look any further and just take everything at face value.
Towards GNU World Domination
The FSF led by Geoffrey S. Knauth with his friend Richard Stallman in the FSF's Board [...] Let's encourage people to adopt GNU/Linux. There has never been a better time.
statCounter Helps Visualise Just How Deep in Trouble Microsoft is (Especially in Africa)
Microsoft sabotaged efforts to connect Africans and equip them with GNU/Linux laptops
The Register is Using Linux-Hostile Clickbait in Articles of Linux Proponents
Don't be a "whore" to advertisers, team El Reg
Microsoft Windows in Cyprus Lacking a Future
Most people access the Web there from mobile
Matrix Has a Severe Problem With Illegal Images
If Matrix cannot get the CP problem under control, many projects and people will dump Matrix
Never Try to Justify Strangulation of Women (Not in the US and Not in the UK)
Joint post by Mrs. Rianne Schestowitz and Dr. Roy Schestowitz
Links 23/04/2025: Tesla Profits Plunge 71%, Intel Ready to Lay Off 20% of Staff, Microsoft and IBM Layoffs
Links for the day
Microsoft's Most Profound Issue is That People Moved to 'Mobile' and "App Stores" (Microsoft's Presence There is Negligible)
Expect a wild ride for Microsoft this year
Google News is Amplifying FUD and Lies About Linux (and OpenSSH/SSH) by Promoting Slopfarms With Machine-Generated FUD and Slop Images
Google should know better
Gemini Links 23/04/2025: Librarians, Anubis, and Refactoring a Gemini Capsule
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 22, 2025
IRC logs for Tuesday, April 22, 2025