Board of Appeal Thwarts a Software Patent Application in the EPO, From Company Indirectly Connected to the EPO
Summary: The story of an effort by a massive American (US) company to patent software in Europe, without success, owing to a Board of Appeal involvement
IN ITS reckless effort to maximise profit, as explained in our previous post, the European Patent Office (and by extension the organisation) tarnishes the reputation of European patent examiners and by extension Europe as a whole. The EPO abuses are already becoming an international embarrassment and they devalue Europe’s image as a scientific powerhouse. Even China or Russia do not have scandals of this severity or scale.
According to this post from last night, the “European Patent Office has announced the revised version of its Guidelines for Examination” and as we already know, the EPO’s management is basically racing to the bottom and even allowing patents on life these days (several more just days ago). Where does this end? This puts people’s lives at risk. And for what? For the bottom line of super-wealthy multi-national corporations?
“It’s about power, not science. It’s often about monopolies, too.”Then comes the issue of software patents, for which a loophole was created quite a while ago — one that the Enlarged Board of Appeal could not effectively thwart. Earlier this month we wrote about (or blew the lid off) Microsoft's special relationship with the EPO — a relationship that is bound to help Microsoft get some bogus software patents despite the rules being against that, whereupon Microsoft can use these patents to blackmail companies which use Linux (some are European, TomTom for example). Who does this help? Certainly not Europeans.
The EPO’s human ‘resources’ (that’s what they call educated people) department is in a very bad state right now. It reportedly lost a lot of staff, so it gets some under-qualified ‘interns’ with a very low salary and no rights (like temporary workforce). This is bound to lead to poor quality work and incorrect judgment. Does the EPO’s management even care? The EPO’s management seems to have been very busy trying to selfishly expand its scope of power to Moldova, Australia and various other places. It’s as if hand-shaking and back room deals are now viewed as a substitute for science and technology. It’s about power, not science. It’s often about monopolies, too.
“The EPO has become a political and corporate instrument of occupation against he vast majority of the public.”Watch what the EPO is doing regarding the unitary patent (UPC). The management is actively promoting this notorious thing in public, at taxpayers’ expense (the event and the resultant damage to the public). The UPC is still being ushered in by opportunistic patent lawyers who want to profit from it [1, 2], but what about the public? What about the collective interests of the overwhelming majority? This is symptomatic of class warfare and if the ruling class controls or is affiliated with EPO management, then the patent office becomes a tool of occupation, or large-scale passage of wealth.
The EPO has become a political and corporate instrument of occupation against he vast majority of the public. Can this be stopped? Well, one remaining ‘regulatory’ body remains in place, albeit Benoît Battistelli is trying hard to crush it, or push if not force it into exile. We are talking about the boards of appeal, which enjoy relative independence from the business-oriented EPO and its misguided ambitions of just increasing money flow. As long as EPO management is eager to just do anything for money (even favouritism to large clients, meaning applicants), it cannot be a public service. It is a self-serving business-like entity. It’s completely detached from its raison d’être and it gets only worse over time (indefinite pursuit of infinite power and wealth, i.e. the characteristics of a cancer).
Thankfully, for now at least, the boards of appeal serve to ‘moderate’ the EPO. Today’s case of point (potentially one of several to come) involves board 3.5.05. This board is in charge of fields G06F3 and H04L (see this table for reference), which according to the International patent classification relate, to put it roughly, to user I/O devices and data networks. This board would be typically in charge for these silly Apple or Samsung UI patents. These are, potentially, software patents by another name. The one below clearly looks like a software patent, and it is neither novel nor patent-eligible.
“It’s just a software patent, which friends of the EPO’s management probably wanted approved.”Below is one of the texts concerning a software application for monitoring healthcare facilities. It’s a software patent, but what makes it interesting is that Baxter (official site), the patent applicant, took over the Belgian company which used to manage the EPO’s health system. It’s hard to avoid the appearance of a conflict of interest. We wish to remind readers that Baxter is embroiled in many controversies, including tax dodging. To quote Wikipedia, Baxter was “spending $10.45 million on lobbying and not paying any taxes during 2008–2010, instead getting $66 million in tax rebates, despite making a profit of $926 million.”
This isn’t some benign or benevolent company saving people’s lives (as it really wants the public to think) but a rather selfish monopoliser with 61,500 employees and $25.9 billion in total assets (patents are infamously popular among giants of this kind). It’s not a European company; it’s based in the US, but USPTO patents are apparently not enough for them. They want protectionism in Europe too, or the ability to sue European rivals (or US rivals entering into Europe). It is, to put it quite crudely, part of a Turf War.
The preliminary opinion on the patent application was negative, and the examining division’s refusal was confirmed after oral proceedings.
One can see just how much effort this type of application involves, so the author is obviously a hard worker, as he cited many new documents in the appeal procedure.
As the board of appeal is directly involved here (not necessarily seeking to invite/welcome more such ‘business’, in the form of applications, from Baxter), this application was rightly rejected. It’s just a software patent, which friends of the EPO’s management probably wanted approved. I have personally read it twice from start to finish and I am happy to see that the board rejected the patent and fought against it. Baxter is trying to frame the software as tied to hardware, so as to exploit the loophole introduced back in the Brimelow days (software patents in Europe are only possible when one essentially tricks the examiner/s). For those who have patience, here is the full draft of the text, Dx (where x is some number) being a diagram which refers to an application to which we have no access at this stage (leaks would be appreciated).
European Patent Office
Tel. +49 (0) 89 2399-0
Fax +49 (0)892399 4465
Appeal number: T1508/12-3.5.05
Communication of the Board of Appeal pursuant to Article 15(1) of the Rules of Procedure of the Boards of Appeal
The Rapporteur P. Corcoran
This document: 16 page(s) including this page
D2: GB 2 343 334 A;
D3: US 5 396 230 B;
D4: EP 0 413 963 A;
D5: US 2002/0038392;
D6: G. Held, “Network Utility Tools”, The ABCs of IP Addressing, Chapter 9, pp. 163-183, Auerbach Publications, 2001, ISBN: 978-0-8493-1144-4;
D7: A. Berg, “Applets and Network Security: A Management Overview”, Network Design: Principles and Applications (ed. G. Held), Chapter 54, pp. 719-725, Auerbach Publications, 2000, ISBN: 978-0-8493-0859-8;
A preliminary study of the appeal has been carried out as foreseen by Article 5(3) of the Rules of Procedure of the Boards of Appeal (RPBA), OJ 11/2007, pp . 536-547.
The observations which follow are provisional in nature and are made without prejudice to the board’s final decision.
I. The Impugned Decision
1. Refusal of the application
1.1 The decision under appeal is the decision of the examining division to refuse the application. The decision was delivered during oral proceedings held on 7 February 2012 with written reasons being dispatched on 20 February 2012.
1.2 The impugned decision was taken with respect to a main request and five auxiliary requests.
1.3 The decision cites the following prior art document:
D1: US 6406426 B.
1.4 In said decision the examining division found that the subject-matter of claim 1 of the main request did not involve an inventive step in the light of D1 . With respect to the auxiliary requests, the examining division found that substantially the same arguments as to lack of patentability applied to said requests.
II. The Appellant’s Requests
2. The appellant has requested that the decision under appeal be set aside and that a patent be granted on the basis of a main request filed with the written statement setting out the grounds of appeal or subsidiarily on the basis of one of five auxiliary requests likewise filed with said written statement.
3. Oral proceedings have been requested on a precautionary basis.
4. The further documents on which the appeal is based, i.e. the text of the description and the drawings, do not appear to have been specified despite the requirement of Article 12(2) RPBA that the statement setting out the grounds of appeal shall contain the appellant’s complete case. Unless the appellant indicates otherwise, the board will proceed on the assumption that said documents correspond to those on which the impugned decision was based, viz.:
1, 7-12, 14, 18, 19, 21, 23-25, 27-36, 39, 40, 42-44, 46-52, 56-59, 62, 63, 66-71, 73, 74, 76, 83, 85, 89, 92-108, 111-114, 116, 117, 120-122, 124, 125, 127 as originally filed;
3-6, 13, 15-17, 20, 22, 26, 37, 38, 41, 45, 53-55, 60, 61, 64, 65, 72, 75, 77-82, 84, 86-88, 90, 91, 109, 110, 115, 118, 119, 123, 126 filed with entry into the regional phase before the EPO;
2, 128 filed with telefax on 19 December 2008.
1-59 filed with entry into the regional phase
before the EPO.
4.1 Claim 1 of the main request reads as follows: “A system for reporting on integrity of a wireless communication link within a healthcare facility comprising:
a wireless remote device within the healthcare facility having a message indicator responsive to status information transmitted over wireless communication link, the status information representative of a signal generated by a medication treatment appliance device;
wherein the message indicator comprises at least one of an audible alarm and a visual display, software installed on the wireless remote device having a time-out output,
wherein the time-out output indicates loss of the wireless communication link; and
wherein the audible alarm produces an audible sound in response to the time-out output, and/or
wherein an icon responsive to the time-out output is provided on the visual display.”
III. The Appellant’s Submissions
5. Main request
5.1 The main request was refused on the grounds of lack of inventive step in the light of D1 . The appellant contests the assessment of inventive step by the examining division.
5.2 According to the appellant, the essence of the examining division’s objection was that it would have been obvious to the skilled person to modify the healthcare system of D1 to include software on the remote devices which would indicate loss of the wireless communication link.
5.3 The examining division asserted that the skilled person would be well aware of the signal strength indicators used on cell phones, which were available at the priority date of the application, and took the view that installation on remote devices of software to check the integrity links was a “common” measure in the field of wireless communication which would solve this problem.
5.4 The appellant, however, disputes that the Examining Division properly substantiated its assertions in this regard and contests the statement in the decision to the effect that documentary evidence is not required because the generic mobile phone was so notorious.
5.5 The appellant further contests the inventive step objection on the grounds that a core teaching of D1 is that of central management of data transmission throughout the healthcare system. The appellant submits that D1 refers to the central monitoring system as being responsible for managing the transmission of data and alerts, throughout the system, including sending data to the remote devices.
5.6 According to the appellant, the text bridging columns 14 and 15 of D1 mentions that the central monitoring system periodically queries the remote devices and one result of this periodic querying is that the central monitoring system can tell if a remote device is not acknowledging receipt of data, which could be for a variety of reasons including the fact that it may be out of range. In this situation, the appellant submits that the skilled person, taking the core teaching of D1 into consideration, would follow the indications, for example at column 4 lines 8 to 18 and column 14 lines 56 to 60 of D1 which indicate that the central monitoring system would send alerts to additional caregivers until one of them acknowledged receipt.
5.7 The appellant further submits that the claimed invention provides advantages over D1 because the remote device itself alerts the caregiver to the fact that the wireless communication link has been lost. The caregiver could then take whatever remedial action is necessary to re-establish contact with the healthcare system. According to the appellant, this contrasts with D1 where the caregiver may not be aware of the fact that they were no longer in communication with the healthcare system.
B. Auxiliary requests
6. The appellant submits that the auxiliary requests are inventive over the prior art.
7. With particular respect to the fifth auxiliary request, the appellant disputes that the use of pop-up windows was not common general knowledge in this technical field at the claimed priority date (1 February 2003) and notes that the examining division did not substantiate its allegations in this regard.
IV. Preliminary Opinion of the Board
A. Introductory observations
8. Basis for the claimed subject-matter
8.1 With respect to claim 1 of the main request, the board notes that the subject-matter of said claim appears to be based on the embodiments of the invention disclosed on p. 23 1.31 to p. 25 1.2 of the application as originally filed.
8.2 Claim 1 of the main request appears to comprise a combination of features from independent claim 1 and dependent claims 9, 10 and 11 as originally filed.
9. Documents cited pursuant to Article 114(1)EPC
9.1 In the observations which follow, the following additional documents are introduced into the proceedings pursuant to Article 114(1)EPC:
D2: GB 2
D3: US 5
3 96 230
D4: EP 0
D5: US 2002/0038392;
D6: G. Held, “Network Utility Tools”, The ABCs of IP Addressing, Chapter 9, pp . 163-183, Auerbach Publications, 2001, ISBN: 978-0-8493-1144-4;
D7: A. Berg, “Applets and Network Security: A Management Overview”, Network Design: Principles and Applications (ed. G. Held), Chapter 54, pp. 719-725, Auerbach Publications, 2000, ISBN: 978-0-8493-0859-8;
Sams Publishing, 2002, ISBN: 0-672-32201-3.
9.2 D2, D3 and D4 are patent documents which relate to arrangements for indicating the probability of attaining successful communication between a remote device and a network and which, on this basis, appear to be of relevance to the claimed invention.
9.3 D5 is a document cited in the Search Report of the related European patent application 04 706 992.7 which appears to be of relevance with respect to the subject matter of the first auxiliary request.
9.4 D6, D7 and D8 are textbook extracts cited as evidence of common general knowledge which appears to be of relevance to the subject matter of the auxiliary requests.
B. Main request
10. Observations re D1
10.1 The appellant has referred to the text bridging columns 14 and 15 of D1 which mentions that the central monitoring system periodically queries the remote devices as a result of which the central monitoring system can tell if a remote device is not acknowledging receipt of data, which could be for a variety of reasons including the fact that it may be out of range. On this basis, the appellant submits that the skilled person would follow the indications of D1, e.g. at column 4 lines 8 to 18 and column 14 lines 56 to 60, which indicate that the central monitoring system would send alerts to additional caregivers until receipt is acknowledged.
10.2 The passage of D1 cited by the appellant appears to relate to aspects of the messaging functionality provided by the system of D1 according to which a central server may check whether messages have been correctly delivered to remote devices and, if not, determine an alternative delivery destination, e.g. a remote device associated with another clinician.
10.3 The aforementioned functionality of D1 appears to be substantially the same as that disclosed in the present application in relation to the transmission of notifications and messages (cf. originally filed application: section entitled “Messaging & Notifications, Including Alarm/Alert Notifications”, p. 84 1.17 et seq.). In particular, according to the embodiment disclosed on p. 88 1.9 to p. 89 1.8, alerts can be escalated by means of transmission to additional caregivers if a remote device is not acknowledging receipt of data, for example due to being out of range.
10.4 Claim 1, however, is essentially concerned with the provision of specific functionality on the client, i.e. the remote device, rather than the central server such that the user of the remote device can be informed if the wireless communication link between the device and the network is not operational. Insofar as D1 does not appear to disclose the provision of such functionality on the client devices, the claimed invention can be considered novel over D1.
11. Inventive step
11.1 The technical problem addressed by providing the aforementioned functionality on the client device is that of how to adapt the client device such that the user of the remote device can tell whether the wireless communication link between the device and the network is operational.
11.2 In the impugned decision, the examining division referred to the allegedly notorious installation on remote devices of software to check the integrity links in the field of wireless communication as exemplified by coverage indicators on mobile phones. Although the examining division did not provide any documentary evidence to support this assertion, the board is of the opinion that such functionality was indeed generally known at the claimed priority date as evidenced, for example, by D2 (cf. D2 : p.1 1.13-27).
11.3 The board is at present inclined to the view that the skilled person would have recognised the underlying technical problem on the basis of his general knowledge relating to mobile terminals and that he would have been prompted to modify the mobile terminal of D1 to include means for indicating the probability of attaining successful communication with the network.
11.4 More particularly, the board notes that the problem of providing such functionality in the context of remote devices used in wireless paging systems was known per se as evidenced by D3 and D4 . Particular reference is made to the following passages of said documents: D3: Abstract; col.1 1.6-30; col.2 1.58 – col.5 1.35. D4: Abstract; col. 1 1.3-18; col. 4 1.45 – col.13 1.3.
11.5 Having regard to the disclosure of D1 to the effect that the mobile terminal devices may inter alia be paging devices (cf. D1: col.4 1.8-22; col.9 1.16-33; col.11 1.11-19), the board is of the opinion that the skilled person would not require the exercise of inventive skill to combine the teaching of D1 with that of D3 or D4.
11.6 In view of the foregoing the board, is of the preliminary opinion that the provision of the aforementioned functionality on the client devices of D1, viz. means to indicate the probability of attaining successful communication with the network, would not require the exercise of inventive skill.
C. Auxiliary requests
12. First auxiliary request
12.1 Claim 1 of the first auxiliary request further specifies that the signal output generated by the medication device is a notification which comprises data relating to at least one of an alarm condition, an alert condition, an infusion volume rate and a time remaining before and infusion bag is emptied.
12.2 This additional specification appears to based on the embodiments disclosed on p. 27 1.32 – p. 28 1.21 of the originally filed application.
12.3 The board notes that said additional specification appears to relate primarily to the cognitive information context of the notification transmitted to the remote device and it is therefore questionable as to whether this additional specification makes any technical contribution to the claimed subject-matter.
12.4 To the extent that the additional specification provides any technical contribution, it would not appear to address the same technical problem underlying claim 1 of the main request but rather a further independent partial problem.
12.5 It is further noted in this regard that D1 appears to disclose the transmission of notifications relating to infusion pumps, (cf. for example D1: text bridging cols. 6 and 7; col.7 1.27-31) and similar subject-matter relating to the transmission of infusion pump notifications is likewise disclosed in D5 (cf. D5: in particular  to ).
12.6 In the given context, the additional feature of claim 1 of the first auxiliary request does not appear to make a non-obvious technical contribution to the claimed subject-matter.
13. Second auxiliary request
13.1 Claim 1 of the second auxiliary request additionally specifies that the medical treatment application device is a controller for an infusion pump.
13.2 Referring to the observations made above in relation to claim 1 of the preceding request, the specification of the medical treatment application device as a controller for an infusion pump appears to address a further independent partial problem.
13.3 Moreover, the choice of a controller for an infusion pump as the medical treatment application device appears to be disclosed or at least suggested by D1 (cf. for example D1: text bridging cols. 6 and 7; col.7 1.27-31). Reference is also made to the disclosure of D5 cf. observations under 12.6 above).
13.4 In the given context, the additional feature of claim 1 of the second auxiliary request does not appear to make a non-obvious technical contribution to the claimed subject-matter.
14. Third auxiliary request
14.1 Claim 1 of the third auxiliary request additionally specifies that loss of the wireless communication link is determined by periodic polling of the wireless communication link. This additional feature appears to be based on p. 24 1.1-9 of the originally found application which discloses a script that tests the integrity of the communication link by periodically polling, or monitoring communication, including notifications and messaging, from the central system or the access point.
14.2 The board notes in this regard that the checking of the communication link at pre-defined time intervals as disclosed in D3 and D4 would appear to be substantially similar to a form of “polling”.
14.3 Insofar as the appellant may succeed in establishing that D3 and D4 do not disclose a form of “polling”, the board further notes that utilities to check the availability of a remote network host were generally known per se at the claimed priority date. Particular reference is made in this regard to the generally known “ping” utility which can be invoked to determine the availability of a remote server or host and thus to determine the availability of the path to the destination. In support of this assertion, reference is made to D6 (cf. D6: in particular, p. 163 and 168).
14.4 Whereas the appellant has apparently argued to the effect that D1 teaches that the central monitoring system is solely responsible for managing the transmission of data and alerts throughout the system, including sending data to the remote devices, it is noted that column 4 lines 8 to 22 of D1 discloses that the remote access devices communicate bi-directionally with the central monitoring system. In the context of such bilateral communication, the use of a technique such as the aforementioned “ping” utility by a client device to determine the availability of the server would not appear to require the exercise of inventive skill.
14.5 In the given context, the additional feature of claim 1 of the third auxiliary request does not appear to make a non-obvious technical contribution to the claimed subject – matter.
14.6 The board further notes in this regard that the application as originally filed appears to disclose said “polling” as merely one of a number of possible design options freely available to the skilled person. The application does not appear to provide any further technical teaching with regard to how exactly said polling is to be implemented in technical terms nor is there any apparent disclosure of what particular technical advantages it is alleged to provide over other known methods for testing the communication link.
14.7 To the extent that the appellant disputes that the feature under discussion represents more than a mere design choice falling within the routine competence of the skilled person, the board notes that it may be necessary to give consideration to the question of sufficiency of disclosure under Article 83 and Rule 42(1)(e) EPC. Should this question require consideration the onus will be on the appellant to establish that the aforementioned feature has been sufficiently disclosed in the originally filed application documents.
15. Fourth auxiliary request
15.1 Claim 1 of the fourth auxiliary request additionally specifies that the software comprises a script automatically downloaded from the server to the wireless remote device.
15.2 This additional feature appears to be based on the embodiment of p. 23 1.34 – p. 24 1.1 and essentially relates to the form in which the software module or application is implemented, i.e. as a downloadable script. In this regard, the board notes that said feature appears to address a further independent partial problem, viz. how to implement the software module or application.
15.3 The proposed form for implementing said software module or application appears to be generally known and, in the board’s opinion, does not involve more than the application of conventional programming techniques. In support of the this assertion, reference is made to D7 which discloses relevant subject-matter relating to scripting techniques for providing programs (“applets”) that can be downloaded from a server for execution on a client device (cf. D7: in particular, p. 719).
15.4 In the given context, the additional feature of claim 1 of the fourth auxiliary request does not appear to make a non-obvious technical contribution to the claimed subject – matter.
16. Fifth auxiliary request
16.1 Claim 1 of the fifth auxiliary request additionally specifies that a pop-up window is provided on the visual display in response to the time-out output.
16.2 This additional feature group appears to be based on the embodiment disclosed on p. 24 1.9-12 of the originally filed application.
16.4 In the given context, the additional feature of claim 1 of the fifth auxiliary request does not appear to make a non-obvious technical contribution to the claimed subject-matter.
17. In view of the foregoing, the board is not at present inclined to accept that the additional features specified in the independent claims of the auxiliary requests involve the exercise of inventive skill.
V. Concluding Remarks
18. Oral proceedings
18.1 During oral proceedings the board intends to focus the discussion on the question of compliance with the inventive step requirement of Article 52(1) EPC, in particular having regard to the observations set forth above (cf. in particular, items 10 to 17 above).
19. Amendments to the appellant’s case
19.1 Any further written submissions which the appellant may wish to make should be filed at the latest one month before the appointed date for oral proceedings.
19.2 The appellant’s attention is drawn to Article 13 RPBA, relating to amendments to a party’s case. The board has discretion not to admit amendments based on a variety of considerations, including the imminence of oral proceedings. In particular, amendments sought to be made after oral proceedings have been arranged shall not be admitted if they raise issues which the board cannot reasonably be expected to deal with without adjournment of the proceedings.
Where amendments to the appellant’s case are filed it will be necessary to discuss their admissibility and their compliance with the EPC, including Articles 123(2), 84 and 52(1). In the light of Article 15(3) RPBA, the board may consider these issues and announce a decision based on new objections arising from such newly submitted amendments even if the appellant chooses not to attend the scheduled oral proceedings.
Stay tuned as we have plenty more to come. █