Bonum Certa Men Certa

EPO Makes Guidelines for Examination That Formally Allow Software Patents in Defiance of European Law

AI hype at EPO



Summary: The whole "HEY HI!" (AI) nonsense is making its way into guidelines for EPO examiners; this means that even when they're facing patent applications that are ineligible/unsuitable due to them being on algorithms the management will be able to impose/force a grant (in violation of the EPC), leaving courts to clean up this mess (if accused parties can afford lengthy court battles)

"HEY HI HEY HI HEY HI HEY HI!" (AI)

Repeat that with us. HEY HI. HEY HI. HEY HI.

It's the new craze. It once meant things like machines that learn stuff from data to form classifiers; nowadays it often literally means "computer" or "algorithm" or "automation".

"Does a device do something clever? HEY HI!"Does some computer replace a human job? Does it automate a task? HEY HI!

Does a device do something clever? HEY HI!

This lunacy is being formalised not only by the European Patent Office (EPO) but also by the U.S. Patent and Trademark Office (USPTO), where the number of granted patents grew again (more on that in our Daily Links; it's just indicative of decline in patent quality).

"I myself developed several machine learning programs a long time ago, as far back as my teenage years. It's neither new nor emergent."The HEY HI hype started under Battistelli. So it obviously continues under António Campinos, his 'ginger replica'. They lobby for software patents in Europe under the guise of HEY HI! Who in their right minds would oppose something with "intellectual" or "intelligence" in the name??? Who???

I myself developed several machine learning programs a long time ago, as far back as my teenage years. It's neither new nor emergent. And it's all just algorithms; it's maths, notably statistics (a branch of it). As Benjamin Henrion has just noted, "IBM Belinda Gascoyne lobbying for software patents once again at WIPO" ("WIPO Conversation on Intellectual Property and Artificial Intelligence"). WIPO and by extension the UN has swallowed all this "HEY HI" Kool-Aid, which was 'waterboarded' down its throat by the likes of IBM, possibly the world's biggest proponent of software patents. IBM does this everywhere, from NZ in the east to India in the nearer east, Europe at the centre (of the map) and of course the US in the west (we covered examples from each; IBM lobbies for that everywhere).

"Suffice to say, the EPO still hopes to toss out the courts themselves."Suffice to say, the EPO is still allowing bogus patents to be granted provided they're disguised as "HEY HI" ("AI"). Just figure out some way to spin your implementation as "AI" and an examiners will be pressured to grant that because, as the EPO has just put it: "The Guidelines for examination 2019 are now available online for preview."

There's something similar in the US right now, but we try to focus on Europe. Laurence Lai published this article about those guidelines for examination only hours ago; the first item in the list is about making software patents acceptable in the EPO even though these are clearly illegal and European courts would reject these. To quote:

The European Patent Office has today published an advance preview of its annual update to the Guidelines for Examination which will come into force on 1 November 2019.

[...]

1. Technical character of artificial intelligence inventions

Last year, a new section discussing the patentability of AI and machine learning claims was added. This has already been updated in the new Guidelines to soften the stance on features such as “support vector machine”, “reasoning engine” or “neural network”.

Previously considered to usually be devoid of technical character, EPO examiners are now expected to take into account whether the context of these features contribute to the technical character of a claim as a whole. A positive finding on technical character is an important factor in establishing an inventive step.

Additionally, the computational efficiency of an algorithm is now considered to contribute to the technical character of an invention if a technical effect of the computer program has already been established.

The EPO is therefore taking a step forwards towards recognising contributions that machine learning and efficient algorithms can make as patentable inventions.


This means more awful patents, or European Patents that courts would toss out (if one could afford the court battle).

Suffice to say, the EPO still hopes to toss out the courts themselves. It wants some phony "unified" courts that it better controls and Steptoe & Johnson LLP (Michael Thompson and Paul Hughes to be specific) has just posted this clueless analysis which says UPC has "been developed..."

"If the UPC or something like it ever materialised, it's pretty clear who would benefit the most: patent trolls with software patents."It was drafted, but it's dead. It's not happening due to EPO corruption for the most part. The EPO's disregard for the EPC is very much visible to all, including the FCC in Germany. To quote the full sentence: "Within the EU, the Community Trademark, the Registered Community Design and Unregistered Community Design Rights, and Unitary Patent have been developed, giving the owners of such IPRs greater jurisdictional reach across all EU Member States."

Not the case with patents though. Not yet. Probably never. If the UPC or something like it ever materialised, it's pretty clear who would benefit the most: patent trolls with software patents. That's the American classic (trolls typically rely on these patent families). Team UPC is consciously lying on behalf of SMEs it's looking to hurt and Henrion has said/quoted (this week): "When reading the preceding blog, it also becomes abundantly clear, that the UPC is not for SMEs, and in view of the attitude of certain EU members towards the UPC for some European Countries like Poland."

"Businesses wake up, politicians stand to defend them, and judges sooner or later realise that their integrity too is under assault."People are pushing back. Businesses wake up, politicians stand to defend them, and judges sooner or later realise that their integrity too is under assault.

Not that the EPO's managers care. The EPO hates judges and loves trolls. The EPO has retweeted a front group of patent trolls once again, even twice in a short period of time [1, 2]. Today's EPO works for trolls, not for scientists. It lies, it cheats, it blackmails people. Just like the trolls do.

Incidentally, hours ago IP2Innovate wrote about this problem. There's a new press release available as HTML (or as PDF) and they alerted us about it over IRC, so we've decided to reproduce it below. Here's their vision of Europe:

Industry calls on upcoming EU Commissioner for Internal Market to bring greater balance to Europe’s patent legal system and adapt it to the digital age



Ahead of the parliamentary hearing of the EU Commissioner-designate for the Internal Market Sylvie Goulard, the cross-sector industry coalition IP2Innovate sent a letter to the Commissioner-designate urging her to take steps as part of her mission to bring balance to Europe’s patent system to ensure it supports the region’s digital growth ambitions and enhances competitiveness in critical technology sectors.

Commission President-elect Ursula von der Leyen in her mission letter to Goulard asked her to “take a close look at [EU’s] intellectual property regime to ensure that it is coherent, is fit for the digital age and supports our competitiveness”. According to IP2Innovate, an effective and balanced patent legal system is an important prerequisite for Europe to be able to compete globally in the next frontier of technologies, such as blockchain and artificial intelligence. Unfortunately, the experience of IP2Innovate member companies, and many other European innovators, is that Europe’s patent system presently lacks this necessary balance, making it harder for companies to scale up and bring new products to market rapidly.

“In the digital age, products are increasingly complex, often covered by thousands of patents, which make them constantly subject to patent disputes”, IP2Innovate said in its letter to the Commissioner-designate. “Because the practice of many European courts is to issue automatic injunctions upon a finding of infringement, without considering a remedy that could be more proportionate, an accidental infringement of just one patent among many others can result in removing from the market a product necessary to access digital goods or services”.

According to IP2Innovate, this situation makes Europe more and more attractive to Patent Assertion Entities (PAEs), also known as “patent trolls”, who buy up patents only to assert them against innovative companies, including SMEs, and extract high settlement. These entities increasingly target the ICT-industry, central to growth and innovation across many industries.

Under the leadership of Commissioner-designate Goulard, IP2Innovate calls on the European Commission to take concrete steps to bring greater balance to Europe’s patent legal system to support the region’s digital growth ambitions and secure its competitiveness in critical technology sectors.


This pretty much echoes what they say every year and what we've been saying for many years. IP2Innovate is fronting for (mostly) technology companies; those who throw insults at IP2Innovate are almost always law firms and their front groups. That speak volumes, does it not?

Recent Techrights' Posts

Even Microsoft (MSN) Covers Richard Stallman's Public Talk in Milan 2 Days Ago
He spoke in Spanish earlier this month (Alicante)
Very High Attendance Level at Richard Stallman's Talk Shows People Can Relate to His Message
Smear campaigns have their limits
 
Links 28/05/2025: 'Emulation Layers' (Measurements and Linguistics), Libraries, and Discomfort
Links for the day
Links 28/05/2025: More Arrests for Bitcoin-Connected Torture and Prosecutions for Dieselgate-Linked Executives
Links for the day
Gemini Links 28/05/2025: Techo-authoritarianism With Slop Plagiarism and "No Online June" (Going Offline)
Links for the day
Links 28/05/2025: GitHub MCP Exploited and MathWorks Discovers Huge Windows TCO
Links for the day
Microsofters Were Scheming to Take Over This Entire Web Site (in Their Own Words!)
Money gets spent censoring/deplatforming people who speak about real issues; no money gets spent actually tackling those underlying issues
Gemini Links 28/05/2025: Celsius-Fahrenheit, Endless Scrolling/Infinite Scrolling, and Trapping LLM Slop Bots
Links for the day
Bicycles for the Minds and the Story Harrison Bergeron
"The goal of having people in charge of the tools they use and that the tools should amplify ability" has long been abandoned
Prison gate backdrop to baptism by Fr Sean O'Connell, St Paul's, Coburg
Reprinted with permission from Daniel Pocock
More Photos From This Week's Milan Talk by Richard Stallman
The posts are in Italian, not English
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 27, 2025
IRC logs for Tuesday, May 27, 2025
Links 27/05/2025: Science Defunded, India Arrests an Academic
Links for the day
Gemini Links 27/05/2025: From Celsius to Fahrenheit and Deleting Social Control Media
Links for the day
Microsofters Have, in Effect, Attempted Extrajudicial Action Against Us
Courts and Judges (or Masters) don't exist to facilitate this kind of "bro" culture
UK High Court Masters Are Not Your Jesters, Microsoft
Judges aren't there for "funny" spectacles, they're there to act as arbiters in critical cases, not SLAPPs
Links 27/05/2025: Mass Layoffs at Volvo and More Evidence of 'AI' (Slop) Being a Passing Fad
Links for the day
The Code of Conduct (CoC) Gaslighting Phenomenon
There are still many people and projects foolish enough to outsource their labour to Microsoft via GitHub
They're Very Jealous of Richard Stallman and His Freedom (or Simple Lifestyle)
Jealousy is toxic because it can cause rational people to act irrationally and even severely harm themselves
Akira Urushibata on GNU coreutils
new message
Anouk Rozestraten (Deputy Director) Appears to Have Left the Free Software Foundation
Let's hope Rozestraten is still using and promoting Free software
There's Nothing Funny About Lawbreaking
There's plenty of room in society for humour, but "hacking" the state by breaking laws isn't cool or hip
More Mass Layoffs Coming Soon to Microsoft, Just a Question of When and How Many
Numbers from Washington were close to 5% and judging by prior rumours, it would be 5% + 5% (total 10%) at a later month
Links 27/05/2025: Bikes, Ideal Computers, and BYO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 26, 2025
IRC logs for Monday, May 26, 2025
Richard Stallman's Milan Talk (Public Presentation) Was Packed, Video Available Soon
Looks like they even ran out of seats
Gemini Links 26/05/2025: Intangible Stuff and Slop Issues
Links for the day
The Openwashing Shills Initiative (OSI) - Part I: Complaints to IRS or USDOJ Needed
If enough people do it, this will be more effective, more so if people who are based in the US do it
Open Source Initiative (OSI) Lobbying and the OSI's Status at Stake
At the end we plan to summarise all the issues in one very long article
Breaking Into Other People's Devices Without Authorisation Isn't "Funny" or "Research"
“Chaos was the law of nature; order was the dream of man.”
The Issue Isn't the Internet, the Issue is How People Are Taught to Use or Misuse It
The Web is circling down the drain. The Internet is not.
A Healed Reputation of a Movement's Leader and His Robust Message
The more aggressively you push against resistors, the more credibility they will gain
Links 26/05/2025: Deletions from Microsoft's GitHub, Telegram Blocked in Vietnam
Links for the day
Linux Released Last Night and There's Already LLM Slop With Slop Images
BetaNoise does not seem to mind this anymore
Links 26/05/2025: Walmart Layoffs and DRM Dumpster Fire ('Old' Fire TV Devices Lose Netflix Access)
Links for the day
Gemini Links 26/05/2025: USB Camera Viewer and Fantasy Life
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 25, 2025
IRC logs for Sunday, May 25, 2025