Bonum Certa Men Certa

EPO Gradually Becoming the World's Most Permissive (Low Patent Quality) Patent Office by Consciously Violating the EPC

The EPO is overgranting monopolies in clear defiance of the laws that govern the EPO

Permissive



Summary: Today's European Patent Office is making innovation a lot harder for Europeans; it limits what people can freely do, e.g. what computer code they can implement, and only lawyers are loving it

THE Campinos/Battistelli-run European Patent Office (EPO) has become more lenient than the USPTO, which is subjected to 35 U.S.C. €§ 101/Alice (SCOTUS) even if the new Director does not like it.



"It's like the US administration choosing to hold meetings with white supremacy groups.""I recently had the opportunity to speak on the record with three examiners at the European Patent Office (EPO) about their advice, pet peeves, and approaches to examining computer implemented inventions, particularly in the field of artificial intelligence (AI)," Gene Quinn (Watchtroll) wrote some hours ago, once again invoking "Hey Hi" hype and "computer implemented inventions".

They push software patents in Europe and having just published something titled "How to Help an EPO Examiner and Improve Your Odds of Patenting a Computer-Implemented Invention" they give away their bias -- that they try to to persist in encouraging violations of the EPC; they call it "help". At the same time, over the past week or two Watchtroll repeatedly attacked the Federal Circuit and its judges (in at least 3 articles dedicated to just that). They used to do this to the Patent Trial and Appeal Board (PTAB) and its judges because of inter partes reviews (IPRs). These judge-bashing maniacs are the people the EPO's management has chosen to associate with; it's a tad disturbing. It's like the US administration choosing to hold meetings with white supremacy groups.

"Federal Circuit more balanced than Germany's Federal Court of Justice," Florian Müller wrote earlier this weekend. As he put it:

The good news in the early part of Dr. Uhrich's presentation was that even the EPO doesn't grant patents that claim a data structure per se. So the issue here is not one of patentable subject matter in the strictest sense, but of the scope given to patent claims at the enforcement stage. To share the bad news upfront, the effect of an overreaching infringement theory can be just as bad as straightforward patent claims on data formats. But, at least for now, the related case law in the United States is fundamentally better than in Germany, though this may be attributable in no small part to the historic happenstance of what cases were put before the courts in what sequence--and what questions for review the parties raised.

Just so there is no misunderstanding: Dr. Uhrich's academic talk was nonjudgmental, so when you find words like "good news" and "bad news" here, rest assured they're just my opinion. He may or may not agree depending on context.

The enforcement-related main part of Dr. Uhrich's talk started with a 19th-century holding by the German Reichsgericht (Imperial Court), Methylenblau, involving a patent covering a chemical manufacturing process that was employed outside of Germany, but the resulting product entered the German market. The key doctrine there was that the scope of protection of a manufacturing patent potentially extends to the output if the substance so produced is an integral part of the patented process. On that basis, the Reichsgericht remanded the matter to the trial court.

The legal tradition that started with Methylenblau wouldn't have had to inevitably lead to a high-court decision, more than a century later, that data sequences generated by a patented data processing operation are afforded the same degree of protection (potentially, as it's always subject to the specific facts of a case). Not only is there a fundamental difference between physical goods and non-physical data but what makes this doubly unreasonable is the blatant inconsistency of such an outcome with the statutory exclusion of patents on "computer programs as such." Unfortunately, it nevertheless happened.

In 2012, the Bundesgerichtshof (Federal Court of Justice of Germany) handed down a decision on whether data storage media manufactured outside of, but imported into, Germany might infringe a video encoding patent, EP0630157 on "systems and methods for coding alternate fields of interlaced video sequences," a patent declared essential to the MPEG 2 video standard. While the patent holder lost the case due to a combination of other reasons, particularly patent exhaustion (the video data was generated with a licensed tool), the decision held that the case could not be dismissed on the grounds of the accused products containing data sequences as opposed to an encoder (be it a physical device or a piece of software).

I have read the MPEG-2-Videosignalcodierung (MPEG 2 video signal encoding) decision, and there is no reference in it to the statutory exclusion of patentable subject matter under the EPC...

[...]

Thankfully, Dr. Uhrich also drew a comparison between German and U.S. case law on patent enforcement against data sequences. In Bayer v. Housey Pharmaceuticals (2003), the United States Court of Appeals for the Federal Circuit affirmed the dismissal of an infringement claim because "infringement under 35 U.S.C. €§Ã¢â‚¬â€š271(g) is limited to physical goods that were manufactured and does not include information generated by a patented process, and because the physical goods here (drug products) were not 'manufactured' by a process claimed in the asserted patents." The opinion was authored by Circuit Judge Timothy Dyk, joined by then-Chief Judge Mayer and now-Chief Judge Prost.

The term "manufacture" plays a key role in U.S. patent law. As some of you may remember, it was key to the Samsung v. Apple Supreme Court appeal related to the "article of manufacture" based on which a design patent holder would be entitled to an unapportioned disgorgement of an infringer's profits. The term "manufacture" alone, coupled with an almost-originalist interpretative standard that takes into account what lawmakers really meant way back when, enabled the Federal Circuit to decide against what would have been a similarly expansive school of thought as the one of the Federal Court of Justice of Germany.

Here comes Judge Sharon Prost again, who in most contexts (with exceptions like design patent damages proving the rule) takes very balanced positions. Meanwhile she had become Chief Judge, and she authored the Federal Circuit opinion in ClearCorrect v. ITC, a decision that Google's Dr. Uhrich also explained yesterday. In that case, the ITC had ordered an import ban on data generated outside the U.S. but sent to the U.S. for the purpose of 3D printing. It's not unheard of for the ITC to have an expansive view of its jurisdiction, even including digital data transfers, but the appeals court made clear that it disagreed with what the ITC had already held prior to ClearCorrect, which was that the statutory term "articles" "should be construed to include electronic transmission of digital data [...]."

The way things work, there's no doubt that some patent-asserting plaintiffs are still going to try to push the envelope of data format patentability in the United States. But at least for now, they'll be facing an uphill battle whenever they try.

What is clearly needed is a pushback against overreaching patent enforcement in Germany. Yesterday's academic presentation was neither a campaign speech nor particularly alarmist. Expressing a personal--not corporate--view, Dr. Uhrich responded to a question from the audience with a reference to other forms of intellectual property protection for data, such as database rights (a big thing in the EU, by the way) and copyright law.


Judge Sharon Prost was mentioned above; we had been praising her for years and recently we saw her and her court coming under attacks from Watchtroll almost every other day. Watchtroll also did this to Michelle Lee. Unless a radical person like Iancu (mate of Trump) runs things, or trolls-connected judges like Rader run courts (committing serious misconduct in the process), the beehives of patent parasites won't rest.

Recent Techrights' Posts

How We Process Screenshots of Slop to Suitably Tag Them as Slop
everything is a single command
 
Links 11/08/2025: Meritless Twitter Suspensions and Disney Scraps Deepfake Dwayne Johnson
Links for the day
Gemini Links 11/08/2025: Upgrading Debian Bookworm and Better Quality PDFs From Gemini Pages
Links for the day
Currys PCWorld Lied a Decade Ago, 10 Years Later It Still Effectively Voids Your Warranty for Installing GNU/Linux Despite It Being Increasingly Mainstream
Microsoft gatekeepers
Team GNOME Has Libeled Me for Nearly 20 Years
we are not dealing with sane people
Experience With Airlines in 'Web Sites' and in 'Apps'
In a lot of ways, Stallman Was Right about what JavaScript would turn out to be
Open Does Not Mean Free
wiser to ask if some program is freedom-respecting
The Register MS Takes Money From Companies Banned by the Biden and Trump Administrations (National Security Risk)
today's sponsor
Sabotaging GNU/Linux PCs (and Users) is Not a 'Joke'
maybe cruelty is the very objective
Links 11/08/2025: Data Breaches, Politics, and Climate
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 10, 2025
IRC logs for Sunday, August 10, 2025
Gemini Links 11/08/2025: Tea Caffeine Hot and Super ZZ Zero
Links for the day
Slopwatch: LinuxSecurity, Brian Fagioli, and Other Serial Sloppers
Maybe Microsoft wants to dub this "Web5"
Gemini Links 10/08/2025: Residents Management Company, Automation, and Politics
Links for the day
Links 10/08/2025: AOL Ending Dial-up
Links for the day
Seductive Mirage or Allure of Complex, Proprietary Coffee Machines (or Similar White Elephants)
Software is a lot like those things
Links 10/08/2025: Webrings, “AI Sunglasses” and “AI Eyeglasses”, US Administration Intensifies Attacks on Science and Research
Links for the day
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
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
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
The Goal of Coopetition Assumes You're Friends
it will never work with Microsoft
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
Hate Mail From Anonymous Cowards
if this persists, we'll need to escalate
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