Bonum Certa Men Certa

Patent Law Firms Are Truly (and Visibly) Panicking Over the Demise of Software Patents

It has already happened in the US and it may soon happen in Europe

Iancu plea



Summary: Looks like EPO judges might soon be able to rule against software patents -- a pressing matter and another fresh opportunity to set things straight in Europe (like Alice in the US half a decade ago)

THE European Patent Office (EPO) cannot help itself. Yesterday it wrote: "Tomorrow is your last chance to register for this event in Lundun, Sweden where we will address the topic of computer-implemented inventions in #Medtech with a focus on the value of patents for SMEs: https://bit.ly/2E5l03D #startups pic.twitter.com/sG6xVSbnhG" (accompanied by the same stock photography it used almost half a dozen times lately).



Notice how they add words/buzzwords like "med" and SMEs"; now there's even "startups" as a hashtag. We remarked on these earlier this week and last week. By "computer-implemented inventions" the EPO means patents that ought not be granted and this tweet was apparently deleted later on the same day (we cannot find it anymore). The EPO was also promoting driving-centric software patents in Europe. Yesterday it wrote: "Europe and the USA have a strong lead in self-driving vehicle innovation with about 1 400 European patent applications each in 2017 alone. See how other regions performed here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/L0argQl72d"

It's that "SDV" nonsense that we responded to like a dozen times before. Having come from that area myself, as a developer, it's clear to me that the vast majority of these would be algorithms. "SDV" is just like "CII" or "4IR" -- it's a buzz phrase in acronym form. It's like "AI" -- a term which according to new research is being grossly misused (see our daily links). Many things that companies describe as "AI" are just ordinary algorithms and many so-called 'AI' startups have nothing to do with "AI" (hence the scare quotes).

We have come to the point where the EPO generally compensates for granting illegal or bogus patents by sticking misleading labels on these. The U.S. Patent and Trademark Office (USPTO) has copied some of these methods, e.g. calling software patents "AI". Things have become rather different in the United States, where software patents are otherwise very difficult to assert in court. The patent maximalists have totally, entirely lost the plot. They're panicking. They feel greatly irritated. Consider this new tweet from a retired attorney. That ridiculous patent maximalist, Janal Kalis, generalises; he now calls "anti-patent" anything that merely opposes abstract patents or patents on algorithms (which no software developers ever wanted) and also attributes anything against software patents to "EFF". His tweet says: "The USPTO is seeking comments on the 2019 Revised Subject Matter Eligibility Guidelines. So far, 103/119 (87%) of the comments come from the EFF and are anti-patent. If you have another position, please send your comments to the USPTO asap: Eligibility2019@uspto.gov"

They panic. The public (not a few law firm) is talking and is now controlling the debate. Iancu (the USPTO equivalent of Ajit Pai at the FCC) cannot hide the fact that citizens of the United States oppose his plan.

How long (or how much longer) can judges be ignored, snubbed and ridiculed?

Gene Quinn of Watchtroll has returned for a day and earlier this week he pretended that the Federal Circuit (CAFC) has not adopted the SCOTUS decision on TC Heartland even though it clearly has. We don't suppose fact-checking even matters in that horrible propaganda site, which smeared judges for merely following 35 U.S.C. €§ 101. This is what it nowadays boils down to. It certainly seems like the only CAFC reversal Watchtroll is able to find this week (in favour of plaintiff) has nothing to do with patents; it is about trade secrets.

This is of course encouraging. It doesn't seem as though a comeback for software patents in the US is possible (now or ever). The judges make the final call, not the attorney whom Trump put in charge of the Office (or the French/Portuguese banker whom Battistelli chose for Europe).

Here in Europe there's an upcoming case/referral, which we wrote about thrice before [1, 2, 3] and last mentioned on Wednesday. It can, in theory or in principle, become a 'European Alice' though it requires judicial independence (which is lacking).

IAM (blog) has just published, without the usual paywall that protects patent trolls from scrutiny, an outline from Philip Naylor regarding software patents. As usual, the patent trolls' lobby pushes for (in favour of) software patents in "Patent cases in the EPO and UKIPO: different qualifications for computer software" (algorithms).

Much of the status quo gets attributed to an IBM case from two decades ago:

As a result, patents can be granted at the UK Intellectual Property Office (UKIPO) and at the EPO for inventions which involve the categories of excluded subject matter set out in Article 52. However, the “as such” qualification has also been used to limit the scope of allowable subject matter in these categories.

Over the years, the EPO and the UKIPO have developed the way in which the allowability of patent applications for computer software and business methods is assessed. The EPO has settled on an approach that gives greater certainty to applicants in comparison to other patent offices, such as the USPTO, where the law in this area is in a state of flux. The UKIPO’s approach is similar to that of the EPO, but with some subtle differences.

[...]

In 1999, two EPO Technical Board of Appeal cases, T935/97 and T1173/97 (IBM), established that claims having the form “a computer program product” and “a computer readable medium having a program recorded thereon” were allowable.

Following the IBM decisions, it became accepted practice at the EPO that software could be claimed directly. This continues to be its practice so long as other requirements (ie, clarity of the claim language and sufficiency of disclosure) are met.

In Case T931/95 (Pension Benefits System Partnership), it was held that the claims of an application must define non-excluded subject matter and be novel and inventive. The claims were directed to a method and an apparatus for controlling a pension benefit programme. The method claim referred to technical means, but was refused because it related to a method of doing business as such (ie, it did not define non-excluded subject matter).

In this case, the apparatus claims did define technical features and were not refused merely because they related to excluded subject matter. However, the apparatus claims were refused on the grounds that they lacked an inventive step because it was viewed that the differences from the prior art lay in an economic field (ie, non-technical) and hence there was no technical contribution provided by the distinguishing features of the invention. This case marked a substantial shift in the EPO’s approach to non-excluded subject matter.

[...]

In 2008 in referral G3/08, the president of the EPO referred questions regarding the patentability of computer programs to the EPO’s Enlarged Board of Appeal. After a lengthy period in which many amicus curiae briefs were filed, the board declined to answer the questions posed in the referral on a legal technicality; it was held that, since there was no divergence in existing case law, the legal requirements for the referral itself were not met.

Since then, the EPO has continued to apply the precedents set out in the Pension Benefits, Hitachi and Comvik cases, among others.


There may soon be another new precedent in the form of "simulation" software. We hope that the judges can regain their independence some time soon and rule on the matter without fear of retribution.

Recent Techrights' Posts

Qualcomm Arduino Takes Aim at Raspberry Pi
Qualcomm is a Microsoft partner
Arduino is Now a Patent Bully (Qualcomm)
Qualcomm has just bought Arduino
Many Years of Microsoft Cancellations and Faked (Acquired) Revenue "Growth"
XBox is basically the "next Skype"
Microsoft's Non-Denying Denial About XBox's Death is Already Being Shattered to Pieces
Like Microsoft's 'open' 'hey hi', heralding meaningless non-committing agreements with AMD is little more than vapourware
 
Links 08/10/2025: Y2K38 Bug is a Vulnerability, Chat Control in Europe a Threat
Links for the day
Microsoft Windows is No Longer an Operating System, It's Surveillance Project
Why is this even legal to preload on PCs outside the US?
How and Why Once-Legitimate Sites Turn Into Slopfarms
Many sites will go offline and many social control networks will shut down once they realise or even openly admit they spend money and time gardening a bunch of bots and slop
UbuntuPIT Became a Slopfarm and Gnoppix Tarnishes Its Own Brand With Slop
It fits all the characteristics of mildly-edited (if at all) slop
Slopwatch: Linux Journal and Other Slopfarms
GAFAM needs to go the way of the dodo
Gemini Links 08/10/2025: "Seek Seek Revolution" and Gradient Backgrounds
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 07, 2025
IRC logs for Tuesday, October 07, 2025
Stagnation of the Economy and What Free Software Can (or Could) Do For It
If your economic model is based on a pyramid of lies, it won't last very long
Social Control Media is Sinking
it would rightly seem like the era of centralised "social" sites (they're not social, they're about controlling the users) is ending, not overnight but gradually
Participation in Cancel Culture Detrimental to One's Career
A cautionary tale
Passion Wins
we've increased the number of birds we feed to 100+
How Solderpunk and Sean Conner Started Gemini Protocol (and, Collectively, Geminispace) Back in 2019
Based on the "official" history
The Comment TheLayoff.com Has Just Censored for Criticising a Ridiculous Puff Piece of IBM Management
If comments get censored for their "style" rather than their substance, then society will be worse off
The Power of Writing Down Facts
The more we write and publish, the more people will know what happened
Slopwatch: UbuntuPIT Joins the Slopfarms Club
Slopfarms gonna slop
Links 07/10/2025: Privacy at Risk, GAFAM Remains Off the Hook
Links for the day
Gemini Links 07/10/2025: Modern Retro Console Idea and Batch vs Bash
Links for the day
Links 07/10/2025: International Criminal Court (ICC) Convicts Ali Kushayb; Moroccan Imprisoned for 'Offensive' Shirt
Links for the day
Links 07/10/2025: EU' Chat Control is Back, US Cracks Down on Democracy
Links for the day
Techrights Pursues Justice and Truth Because, Without Those, Society Descends Into Chaos
most people reject dogma and pseudoscience
Upcoming Talks by Richard Stallman in Helsinki, Göteborg, and Rome
Join with him and share the software
Something Bad is Happening in the Open Source Initiative (OSI)
The latest OSI blog post is from a Microsoft operative and a few weeks ago the Executive Director left
TLS 1.3 Dominates Geminispace (99% of Known Capsules)
it's nowadays safe to assume almost every capsule can handle TLS 1.3
Why soylentnews.org Has Been Having Technical Difficulties Lately
The network has been going up and down quite a lot this past week
A Statement Against Violence
The facts are on our side
They've Run Out of Things to Rebrand or Label as "AI"
The next few years will be interesting because if Microsoft lays off tens of thousands of workers each year, there won't be much left except mountains of debt and dying brands
The Register MS is Still Being Paid to Participate in the "AI" Ponzi Scheme Which Will Crash the Economy
The Register MS is hoping to get lucky by tricking people into a scam
Richard Stallman Confirms His Talk in Göteborg This Coming Friday
"The hosts say that the list will not be given to the state"
Most of the "Linux" Results This Morning in Google News Are LLM Slop From the Same Slopfarm, Plagiarising Phoronix
The main question is, does Google even care at this point?
Gemini Links 07/10/2025: Civil War and "Goodbye Web"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 06, 2025
IRC logs for Monday, October 06, 2025
Evidence Contradicting Microsoft's Non-Denying Denials and Expectation of Many Layoffs Soon
"Microsoft has had this constant drip of layoffs for months."
The "AI Revolution" is Going Very Well, Right?
money that does not exist and alleged potential that is pure fiction
Links 06/10/2025: Scam Altman Himself Admits He Runs a Scam Based on a Bubble, US Administration Adopts “War From Within” Narrative to Crush Opposition/Dissent
Links for the day
Slopwatch: Fake Ubuntu 'Articles' and Google News Helps People Who Plagiarise Phoronix Using LLMs
Michael Larabel can't possibly be happy about that
6,000 Pages/Articles a Year
Today in one month from now the site turns 19
When Things Become So Ubiquitous That They're Almost Nameless
The notion or the concept of software freedom isn't tied to any particular brand or project, so it should still resonate
At Least 3 Richard Stallman Talks in Europe Confirmed So Far, Next Week in Rome There's Another
Dr. Stallman has not announced this yet
IDG Seems to Have Abandoned Sandra Henry Stocker's UNIX/Linux Column
Unless we hear otherwise or see some update/s, this may mark another death blow from IDG
Gemini Links 06/10/2025: Winter Nights and "Virtue Signaling"
Links for the day
Links 06/10/2025: Scientific Awards and Typhoon Matmo
Links for the day
IP Kat Gone Bonkers, Pushing Slop in Patents (Likely Illegal, With Severe Consequences)
AstraZenecaKat: "Last time, this Kat covered some practical steps on how to ensure client confidentiality when using AI tools (IPKat)."
Links 06/10/2025: Grokipedia as Malicious Slop, US 'Martial Law' a "New Normal"
Links for the day
Fake Economics and Clown Computing Circuses
who's gonna pay for these scams?
Nobel Prize in Economics Does Not Exist, It's Propaganda From Sveriges Riksbank
"It is that time of the year when it is important to remind people that there are no Nobel Prizes for professional wrestling, astrology, or economics"
Rust is Eating Linux
That's a recipe for problems
Cindy Cohn (Executive Director of EFF) is a Millionaire, Earned Almost $30,000 Per Month Before Departing While the EFF Lost Money
EFF is "Big Business"
Non-Denying Denial From Microsoft (Again) Regarding the End of XBox Consoles
It's kind of hilarious that even the site chosen by Microsoft to relay its BS, based on past loyalty, isn't quite buying it
Bringing Back Lost Articles From the 1990s: Microsoft Products Leave Door Open to NSA
Nothing has changed since then
When the Slop Bubble Pops People Will Say Richard Stallman Was Right (Again)
What was once known as Computer Science turned into "IT"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 05, 2025
IRC logs for Sunday, October 05, 2025
Links 06/10/2025: Science, Hardware, and Andrej Babis Making a Comeback
Links for the day