Bonum Certa Men Certa

The Spanish Supreme Court Rejects the EPO's “Problem and Solution Approach” While Quality of European Patents Nosedives

SIPO and Battistelli Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)



Summary: European Patents (EPs) aren't what they used to be and their credibility is being further eroded and even detected as such

EARLIER this year an EPO stakeholder said that s/he had received better service from the Spanish patent office than from the EPO. That comment became widely cited in the sense that several other people referred to it later. Spain is not exactly renowned for high patent quality or even an abundance of patents.

"SIPO is an atrocious patent office which unfortunately reaffirms the view/perception that China makes low-quality things."In our view and our long-term assessment, the world's worst patents are being issued in China (SIPO), where even software patents are explicitly and unequivocally allowed (unlike the USPTO where such patents were born).

SIPO is an atrocious patent office which unfortunately reaffirms the view/perception that China makes low-quality things. Earlier today the EPO said that "SIPO [had] changed how often and when it publishes its patents. Read here more about the change..."

"Battistelli aspires for what we called "SIPO Europe" just under a year ago."As EPO workers ought to know, Battistelli is close to SIPO -- to the point of inviting Chinese officials to his home town in France (for professional work). Battistelli aspires for what we called "SIPO Europe" just under a year ago.

According to this blog post from three days ago, the "Spanish Supreme Court clarifies that “problem & solution approach” is not legal doctrine" (which is a big deal).

To quote:

For many years, Spanish Courts have considered the “problem & solution approach” developed by the European Patent Office (“EPO”) to be a very useful tool for the purpose of trying to make an objective assessment of inventive activity. Unlike in other jurisdictions such as Germany, in Spain this method has become the natural instrument used by the Courts to examine inventive activity. Its use in judicial decisions, including those emanating from the Supreme Court, is so frequent that in a recent case, one of the parties alleged that it had become legal doctrine. In particular, that party, in an appeal filed before the Supreme Court, alleged that in its judgment of 29 December 2014, the Court of Appeal of Navarre had infringed this legal doctrine because it had failed to apply the “problem & solution approach.”

[...]

All in all, the main teaching of this judgment is that although the “problem & solution approach” is a very valuable method, other methodologies may be used.


The subject was incidentally brought up again in comments on a bunch of event (echo chamber) reports from Bristows. One comment spoke of "making a scapegoat out of the EPO's "Problem and Solution Approach"."

Thanks for that Report, which I read with a sinking feeling in my stomach, that panellists are creating unnecessary difficulties and misunderstandings and (as usual) making a scapegoat out of the EPO's "Problem and Solution Approach". Why is this ever the case, I wonder.

My point is that what disclosure you need to include in the original patent filing for Europe is not what the Panel Chair said it was.

The reaction from the USA, that such drafting imperatives (stating "the problem") are incompatible with drafting for the USA, might be right. But, gentle readers, what if "stating the problem" is not actually required?

The way I see it, the EPO explores obviousness by toggling between the technical features recited in the claim and the technical effects they deliver. In his definitive book on drafting in Europe and the USA, Professor Paul Cole equates patentability with "A difference, that makes a difference". If I may state it in other words "A new combination of technical features that delivers a technical effect". What one needs in the original application, therefore, is not only a disclosure of the features but also of the effects delivered by that specific combination of technical features. No more than that.

Do the courts of the USA punish drafters and patent owners for saying in the application as filed what effects one gets with the claimed feature combination? I suspect not. But if they do, it is not helping to achieve the aims of the patents clause of the Constitution of the USA, to "promote the progress" of Useful Arts ie technology.

Amirite? Or do you disagree with me? Will other readers comment, please.


Watch the response:

Agreed re the "no more than that". Also I thought a technical effect canhelp in the US too (Enfish) or did I misunderstand?

A US view of Paul Cole's Fundamentals of Patent Drafting (I haven't seen one?) and whether US practice has since moved on/changed would be helpful. I believe a copy of the book is still given by CIPA to students joining the patents profession in the UK.


CIPA is now instrumental in running IP Kat (which is why, we often assume, IP Kat no longer covers EPO scandals).

And again from the original commenter:



It occurs to me that some readers might retort, in reply to my posting above, that EPC Rule 42 "Content of the Description" makes it mandatory to recite "the problem" in the application as filed. I have two thoughts on that.

First, when was a patent application ever refused by the EPO, or an issued patent ever revoked, for the reason that the application as filed failed to disclose "the problem"?

Second, if you read the text of Rule 42, after reading my posting above, and with knowledge of the EPO's Problem and Solution Approach to the analysis of obviousness, you can discern the beautiful clarity and simplicity of the EPC's substantive law of patentability, how it optimises, in a First to File context, the promotion by the patent system of progress in the useful arts.


Sadly, the EPC is history. We have lost count of how many times Battistelli blatantly violated the EPC. It's not even funny. It's a very serious matter. Don't expect Campinos to be much different or hold Battistelli accountable for it. He is, after all, not an Italian ICC judge.

Recent Techrights' Posts

The Brand 'Watsonx' is a Terrible Name for IBM 'Hey Hi' (Chatbots) Because Watson Agreed With Adolf Hitler
Almost a century has passed and IBM still believes that selling "intelligence", chatbots in particular, should be done under the name "Watson"
Digg's Latest Incarnation Already Failed, It's Infested With LLM Slop
Many submissions go to slopfarms and some get summarised by slop
Microsoft-Controlled Media With Embargo and Press Operatives
This won't be the last example of media manipulation for narrative control or face-saving "damage control"
EPO "Cocaine Communication Manager" - Part III - It's in His Eyes
Workers are free to draw their own conclusions
 
Our IRC 5-Year Anniversary (for Self-Hosted) is Fast Approaching
A week from now it's March already
Gemini Links 22/02/2026: Dream Job Gone and Slop in Taskwarrior
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 21, 2026
IRC logs for Saturday, February 21, 2026
GNU/Linux Grew a Lot in Nicaragua
We've not noticed until today
Techrights Has Over 1,000 Good Articles 'in the Tank'
Drafts, notes, and lengthy documents
New Article Challenges Solicitors Regulation Authority (SRA) for Choosing the Wrong SLAPP Cases to Investigate
The one point we can agree on is that SRA does not know how to correctly select the worst culprits/offenders
Why IBM is Still Scary and Dangerous
Keep a distance from "Big Blue" Bully
Measuring the Growth of Our Mission and Community
Something between experiment and prototype
Richard Stallman in the United States - Part III - Georgia Tech Did a Fine Job Upholding Free Speech Principles
The real problem was social control media (toxic)
Debian's Master is Deleting Criticism of SystemD and Other Things (On-Topic and Published by Debian Developers), Resorts to the Excuse Messages Are "Too Long"
Censorship serves nobody except the masters that control this censorship
Gemini Links 21/02/2026: Veganism and DeskPi RackMate T0
Links for the day
On The Web, XBox Already a Dying Breed
Down to about 0.05% on large machines, based on statCounter [...] Microsoft will never publicly admit or say how many billions it lost on the XBox
2026 a Year of 'Top-Down' Microsoft Layoffs (Management First)
Stay tuned for what comes next
Your "Likes" Aren't Yours and They're Mostly "Worthless Clicks"
Social hermits are not popular, irrespective of how many "Facebook friends" or "likes" they get
Waggener Edstrom/Frank Shaw Lied, There Are Definitely Microsoft Layoffs
Microsoft never issued a formal statement, it made allusions by proxy
Slop Hype Makes Our Core Technology Less Reliable and Far Less Resilient (We Pay for the Catastrophe That Follows)
Only slop-free projects can be trusted
Going for 1,000 (Days of Uptime)
universal records are vastly better
Firefox is No-Go in China, Not Even 1% "Market Share" Anymore
Given Mozilla's utterly rubbish marketing these days (politics over technical aspects), set aside the cheerleading for slop, there's hardly a chance of Mozilla Firefox reaching or exceeding 10% again
Links 21/02/2026: Tensions Over Iran and Illegal Cheeto Tariffs, Presidential Approval Sags
Links for the day
Links 21/02/2026: "Moving Away From Cloudflare", Many Layoffs or Shutdowns in Games (Including XBox/Microsoft)
Links for the day
GNU Linux-libre is a Grown-Up Today
"before that, every distro that wanted to respect its users' freedom had to remove itself all of the binary blobs that were distributed as part of the kernel Linux's so-called sources"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 20, 2026
IRC logs for Friday, February 20, 2026
Gemini Links 21/02/2026: "The Evil of Action" and Slop Bots Causing Great Harm Online (Not Just the Web)
Links for the day
Like a Shell
Overreactions can backfire
Not Only Leaders of XBox Got Sacked (Layoffs)
Phil Spencer and Sarah Bond got laid off
9PM on a Friday Night: Microsoft Says the Layoffs Are Not Layoffs
We've said for a long time that XBox is doomed this year
Gemini Links 20/02/2026: Misfin Server and Magic in Programming
Links for the day
Former Debian Project Leader Branden Robinson Cautions Against Cover-up and Censorship in Debian
Debian drama. Again.
analytics.usa.gov Reckons Windows "Market Share" Fell to Just 38%, Vista 11 Not Even a Third of Windows Users
This coming summer Vista 11 turns 5
The New Digg.com is Slop
Slop "summaries" and Serial Sloppers are drowning out the site with fake 'articles' (plagiarism)
Linus Torvalds: Bill Epsteingate Good Enough for Me to Wine and Dine With
Torvalds is more connected to Jeffrey Epstein than Richard Stallman ever was
Our Uptimes Are Always Better Than Any Site That Uses Clownflare
Clownflare as a company operates like a cult
GNU/Linux Apparently Rose to 6% in Uzbekistan
If accurate, this represents a new problem for Microsoft and a big win for Software Freedom
Sponsored Videos and 'Articles' in The Register MS, Stenography as a Service/Product
They should more accurately label these actors
It's Friday Again and Many People Leave IBM for Good (IBM Should be Reported for Illegal NDAs That Hide Layoffs)
we very seldom see anyone deviating a lot from the "template-like" narrative, let alone mentioning "layoffs" or "RA" or some other term that implies non-consensual departure
The Little Clique of Sloppers/Spammers About "Linux" Got Even Smaller
Thankfully there are still genuine and legit GNU/Linux sites out there
Links 20/02/2026: Microsoft Intentionally Kills Older Hardware, "The Story of XBox" Shows How Defective Microsoft Hardware Really Was
Links for the day
Turkmenistan One of Many Countries Where Microsoft Fell to Distant Third in Search
We expect many layoffs in Bing some time soon
Don't Wait for "Red Hat Layoffs" Because After Bluewashing They're IBM RAs and Don't Wait for "IBM Layoffs" Because They're Perpetual
IBM layoffs are silent and "forever" (small trickle that never ends and is widespread - after all IBM is a very global and ubiquitous firm)
Links 20/02/2026: Standards, Science, and Politics
Links for the day
What Do People Ever Buy From Microsoft Anyway (Not PCs)?
Microsoft sells two things these days: 1) vapourware/promises. 2) its stock.
Gemini Links 20/02/2026: "Mainstream Unix, Underground Unix", Slop Staging DDoS Attacks Against Small Sites
Links for the day
IBM Inclusivity: Red Hat Summit is for Rich Sponsors Like Microsoft and Rich Guests Who Pay $500 a Day
Nothing signals societal tolerance more than paying a large military contractor
GNU/Linux Adoption is Higher in Richer Countries
Is it because freedom is actually expensive - something that only privileged people can pursue?
Links 20/02/2026: Windows TCO Versus Deutsche Bahn, Europe Seeks More Independent Digital Future
Links for the day
IBM, Red Hat and Fedora: Don't Say "Master", It Offends People. Also IBM, Red Hat and Fedora: "Master Podman".
The hypocrisy at Red Hat and Fedora shows no boundaries
IBM Layoffs Aren't Just in IBM 'Proper'
Who is still using Lotus after the HCL move?
The Register MS Gets Paid by Gartner to Promote a Ponzi Scheme for Gartner, Microsoft, and Others
The credibility of that site will suffer because it tries to sell a major scam to its audience
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 19, 2026
IRC logs for Thursday, February 19, 2026