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

Sounds Like IBM is Preparing for Mass Layoffs/Redundancies in Red Hat, Albeit in "PIP" (Performance Improvement Plan) or "Relocation" Clothing
This isn't the "old" IBM; they're applying pressure by confusion and humiliation
Gemini Links 17/04/2025: Role of Language and Back to Mutt for E-mail
Links for the day
Microsoft's Attack Dogs Have Failed. Now What?
It would be utterly foolish to assume that Microsoft has any intention of changing
All Your "Github Projects" Will be Gone One Day (Just Like Skype)
If you have code you wish to share and keep, then start learning how to do so on your own
Fedora Already Lost Its Soul Under IBM
Fedora used to be very strict compared to many other distros and it had attracted very bright volunteers
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 18, 2025
IRC logs for Friday, April 18, 2025
Links 18/04/2025: "Fentanylware (TikTok) Exodus Continues", Chinese Weapons Allegedly in Russia Already
Links for the day
Gemini Links 18/04/2025: Price of Games and State of Tinylog
Links for the day
"Sayonara" (さよなら), Microsoft
Windows had fallen below iOS in some countries
Links 18/04/2025: Layoffs at Microsoft Infosys and Qt Becoming Increasingly Proprietary (Plus Slop)
Links for the day
Google News is Dying
treating MElon's algorithmic/biased site as a source of verified news
To Understand Who's Truly Controlling You Follow the Trail of Censorship (or Self-Censorship)
Do not let media steal and steer the narrative; CoCs are not about "social justice", they're about corporate domination
Microsoft is Still Attacking GNU/Linux and the Net
Microsoft bribed the government using money that did not even exist
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 17, 2025
IRC logs for Thursday, April 17, 2025
Gemini Links 18/04/2025: Pinephone Pro and Linux is too Easy
Links for the day
Links 17/04/2025: Calling Whistleblowers at Microsoft, Slop Doing More Harm Everywhere
Links for the day
Links 17/04/2025: Russian Bot Farms Infect TikTok (Which US Government and SCOTUS Decided to Block January 19), US Hardware Stocks Crash Due to Tariffs
Links for the day
Gemini Links 17/04/2025: Sticking to Free Software, Smolnet, and Counting the Reals
Links for the day
Open Source Initiative (OSI) Privacy Fiasco in Detail: In Conclusion and Enforcement Action Proceeds Against OSI at the California Privacy Protection Agency (CPPA)
There's too much to cover in one single part
When You Fail to Filter Your Clients You End Up SLAPPing Reporters on Behalf of Bad People From Microsoft in Another Continent
“American Psycho”
Links 17/04/2025: LayoffBot and Tesla Cheats Buyers
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 16, 2025
IRC logs for Wednesday, April 16, 2025