02.02.19

The European Patent Office’s Promotion of Software Patents Overlooks Ongoing ‘Spillage’ of the Patent Crisis to Patent Courts (Rejecting Such Patents)

Posted in Europe, Patents at 10:24 am by Dr. Roy Schestowitz

Presumption of Validity (in the United States): “All issued U.S. patents are presumed to be valid. However, the U.S. PTO is an administrative agency (i.e., a part of the executive branch of government) and its decisions are therefore reviewable by the courts. The presumption of validity means that a patentee does not have to prove in court that the patent is valid. The accused infringer bears the burden of proving, by clear and convincing evidence that the PTO erred in awarding the patent.” Source: Affirmed in U.S. Supreme Court‘s Microsoft v i4i 2011 decision.

Summary: The EPO has slipped into the same dangerous territories as the USPTO by overgranting and causing growing uncertainty about the real (as judged by courts) validity of European Patents

THE European patent law is not uniform (not EU). Different countries have different laws (and national patent offices as well as courts) and they’re quite consistent in their rejection of software patents. The latest request for stakeholders’ input at the European Patent Office (EPO) is rather revealing; they speak not about patent quality or presumption of validity; instead they speak of things like “quality of patent services” (an entirely different thing that they measure using yardsticks like speed, not actual quality). This is truly disturbing. They aren’t listening to their stakeholders (there are broadly-signed open letters) and examiners (there are massively-signed petitions), they only pretend to be listening. This is the strategy of the new man/management: pretending to listen. Creating the impression of being responsive to the needs of this system’s users.

“…they only pretend to be listening. This is the strategy of the new man/management: pretending to listen. Creating the impression of being responsive to the needs of this system’s users.”Watermark Intellectual Property’s Christian Schieber wrote a new article titled “European Patent Office to introduce option to defer commencement of examination of applications from 1 July 2018″ and it shows that the EPO, quite frankly as usual, rather than improve patent quality would rather just let applicants control speed of granting; it isn’t about how long examiners will work on the file but “commencement of examination”; applications can be ignored (left on the shelf, so to speak) but quality of examination will remain low due to time constraints, capacity and lack of skills (brain drain). What on Earth is going on? No need to get all alarmist, but it seems as though there’s not even intent to tackle the real, core, inherent problems.

Case of point: After Florian Müller‘s many recent articles about Qualcomm he is being mentioned in some media, showing also the role played by the EPO with questionable European Patents that it granted to Qualcomm. Here’s one such report which emerged just before the weekend:

Apple picked up a win in an ongoing legal spat with Qualcomm, after a German court rejected four out of eight infringement claims.

A district court found no infringement of the patents, related to on-device search, although it noted the judgement is not final. In the case of the four other claims, no final decision was reached, with Qualcomm having the opportunity to comment on a recently-issued missive from the European Patent Office (EPO).

Specialist website FOSS Patents explained the EPO’s findings mean Qualcomm’s remaining claims may also be set to fail.

Qualcomm invested a lot of money and time in patenting and litigation; now the patents come tumbling down. What would that do to the presumption of validity?

“What would that do to the presumption of validity?”FRKelly has just published two articles (the self-promotional kind), one that says “Patent enforcement through the courts in the European Union [...] A structured guide to enforcing patents through the courts in the European Union” and another more detailed one titled “Patents in the European Union”. Here’s the part about software patents:

To what extent can inventions covering software be patented?

Computer programs ‘as such’ are not regarded as inventions. Nevertheless, if an invention is computer implemented, whether through hardware or software, and if it solves a technical problem using technical means, it may be patentable. The standard applied by the EPO is that a computer program claimed by itself is not excluded from patentability if it is capable of bringing about, when running on or loaded onto a computer, a further technical effect going beyond the ‘normal’ physical interactions between the program (software) and the computer (hardware) on which it is run. Individual courts in member states may apply different criteria or tests in spite of a common statutory framework applying.

To what extent can inventions covering business methods be patented?

Business methods are excluded from patentability in all member states. However, an invention relating to a business method may be patentable if it involves further novel and inventive technical means.

To what extent can inventions relating to stem cells be patented?

The use of human embryos for industrial or commercial purposes is strictly excluded from patentability, and any application relating to stem cells will be refused insofar as the methods or products necessarily involve the destruction of human embryos. However, the European Court of Justice (ECJ) has ruled that parthenogenically derived stem cells are not “human embryos” and that:

As the EPO made clear, it’s willing to grant patents on algorithms in spite of the EPC and in spite of European courts repeatedly rejecting those (and chastising the EPO for misinterpreting the EPC to permit such patent grants).

“No wonder constitutional challenges against the UPC have been very potent and already successful, e.g. in Hungary.”“Join the “knowledge café” at #ExaminationMatters, a 90-minute open discussion forum,” the EPO wrote late on Friday. Well, notice how they neglect to say what this is actually about (it is software patents in Europe). Unless one follows the link to this new page, titled as follows: (warning: epo.org link)

Knowledge café on computer-implemented inventions (CII)

The “knowledge café” is a 90-minute open discussion forum.
You can join one or more of the café tables.
At each table a different topic is discussed.
Topics are introduced, moderated and summarised by EPO experts.
There will be one announced rotation of tables, however you are free to move at any time to explore other topics.
Participants may bring their own questions and examples to be discussed.

So this whole thing is about promotion of software patents, which the EPO continues to refer to as “CII” (to avoid the “S” word).

“This man scares me” is the name of a poster of a new comment who said about António Campinos the following. It’s the last comment of the bunch (no further comments are permitted):

He is sitting every morning at the bar listening to employees queuing to enjoy his beloved one-to-one meeting. Sometimes he listen so carefully that he does not say a single word.

There will be soon direct consequences from what he ‘listened’ and from the dooming survey due to start today.

We all miss and regret the time when he was just doing nothing.

“HE DID NOTHING” was how another person in that same thread put it. As we said back then, it seems abundantly clear that people are running out of patience with him (faster than Battistelli lost the trust of the staff). When the public and when corporations realise that the EPO is consciously allowing patents that courts don’t accept litigation numbers may collapse (like they did in the US, where even the number of patent grants decreased last year). The EPO may be counting on abolishing the appeal boards and the courts (replacing them with UPC), as we shall explain in our next post. No wonder constitutional challenges against the UPC have been very potent and already successful, e.g. in Hungary.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2019/02/02/epo-presumption-of-validity/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. GNU/Linux Users, Developers and Advocates Being Painted as Unruly and Rude by Corporate Media Looking to Undermine Software Freedom

    Corporate media, funded by companies that nonchalantly oppress people, would have us believe there's something wrong with people who reject corporate masters in their computing; reality, however, suggests that it is a wholly false narrative induced or cemented by endless repetition, so this framing ought to be rejected outright



  2. IRC Proceedings: Tuesday, August 03, 2021

    IRC logs for Tuesday, August 03, 2021



  3. The Free Software Community Needs Solidarity and Stronger Resistance Against Corporate Oligopolies With Their Overlapping Interests

    Linus Torvalds and Richard Stallman (RMS) do not have to be idolised ("cult of personalities") but they definitely need to be defended from a longstanding and ongoing corporate coup, which the corporations seek to justify using nicer-sounding terms like "security" (that's how they justify added complexity such as Rust) or "safe space" (they're collectively insulting the community as if only employees of monopolies can help combat bigotry)



  4. Links 4/8/2021: More IBM Downtimes and Firefox Losing Many Users

    Links for the day



  5. Links 3/8/2021: DeaDBeeF 1.8.8, CrossOver 21, AMD and Valve Hook Up for GNU/Linux Work

    Links for the day



  6. Links 3/8/2021: LibreOffice Autoupdater and Vulkan in X-Plane

    Links for the day



  7. How the News About 'Linux' Gets Manipulated to Spread FUD and Promote the Competition of GNU/Linux

    We quickly examine the sorts of news one gets from Google 'News' when searching for “Linux” and we conclude that real news is occluded or missing



  8. The EPO is Europe's Largest Scale Scam (by Far the Largest)

    In another fine instance of deja vu, the biggest scammers are warning everybody else about lesser “scammers”; one might be tempted to call this “projection tactics” or deflection (staring at the mirror) which helps churn/flood the "news" section with tons of recycled old fluff (they could certainly use a distraction right now)



  9. Links 3/8/2021: Raspberry Pi ‘WeatherClock’ and IPFire 2.27 - Core Update 159

    Links for the day



  10. IBM's Attack on the Community and on GPL/FSF is an Attack on Red Hat's Greatest Asset

    Ever since IBM bought Red Hat it has repeatedly attacked the FSF (in a malicious and personified fashion), looking for its own ‘copyright grab’ whilst outsourcing loads of code to proprietary software monopolisers who attack the GPL; by doing so, IBM is destroying the value of what it paid more than 30 billion dollars for (IBM is governed by pretentious fools, according to IBM insiders; they’ve already lost Red Hat’s longtime CEO and IBM’s new President), so it’s falling back on openwashing of IBM's proprietary software with help from the so-called ‘Linux’ Foundation



  11. Four Weeks of Non-Compliance: EPO Only Accepts Courts That It Rigs and Controls

    Compliance is for suckers, believes the “Mafia” which runs the EPO; it is not even responding (for three weeks!) to letters from the victims who won the cases; this is bad for Europe's image and it sets a dangerous precedent



  12. Seven Eleven: 11 is to 10 What 7 Was to Vista

    Microsoft is, as usual, aggressively manipulating/bribing the media (hyping up a shallow version inflation along with paid-for vapourware advertising) while strong-arming the market; there’s no other way they can compete anymore



  13. IRC Proceedings: Monday, August 02, 2021

    IRC logs for Monday, August 02, 2021



  14. Links 3/8/2021: Nitrux 1.5.1 and Gerbera Media Server 1.9.0

    Links for the day



  15. Links 2/8/2021: XEyes 1.2 and Fwupd 1.6.2 Released

    Links for the day



  16. Freenode is IRC... in Collapse

    Freenode is now down to just 13,194 online users, which makes it the 6th biggest IRC network. Months ago it was #1 with almost 6 times as many users as those below it. The graph above shows what the latest blunder has done (another massive drop in less than a week, with a poem and the all-time chart at the very bottom).



  17. Barrier and Synergy Can Work Together, Connecting Lots of Different Machines

    Barrier and Synergy can be configured to work properly in conjunction, though only provided different port numbers (non-default) are specified; in my current setup I have two computers to my right, working over Barrier, and two older ones on the left, working over Synergy; the video explains the setup and the underlying concepts



  18. Links 2/8/2021: Open Science in France and Zoom Pays to Settle Privacy Violations

    Links for the day



  19. It Almost Feels Like Battistelli Still Runs the EPO (by Extension/Proxy)

    The "Mafia" that destroyed the EPO is still being put in charge and is using the EPO for shameless self-promotion; it is never being held accountable, not even when courts demand remediatory action and staff seeks reparations



  20. [Meme] Vichyite Battistelli Committed Crimes and His Buddy António Snubs Courts That Confirm These Are Crimes

    Staff of the EPO is coming to realise (or reaching acceptance of the fact) that the spirit of Battistelli — not just people he left in charge of the EPO — dooms the Office and there’s no way out of this mess



  21. Links 2/8/2021: Linux 5.14 RC4 and 20% Growth in Steam

    Links for the day



  22. IRC Proceedings: Sunday, August 01, 2021

    IRC logs for Sunday, August 01, 2021



  23. Links 1/8/2021: LibreOffice 7.2 RC2 and Lakka 3.3

    Links for the day



  24. Was Microsoft Ever First in the Market?

    Confronting the false belief that Microsoft ever innovates anything of significance or is "first" in some market/s



  25. Links 1/8/2021: 4MLinux 37.0, IBM Fluff, and USMCA Update

    Links for the day



  26. Microsoft Knows That When Shareholders Realise Azure Has Failed the Whole Boat Will Sink

    The paranoia at Microsoft is well justified; they've been lying to shareholders to inflate share prices and they don't really deliver the goods, just false hopes and unfulfilled promises



  27. [Meme] Nobody and Nothing Harms Europe's Reputation Like the EPO Does

    Europe’s second-largest institution, the EPO, has caused severe harm/damage to Europe’s economy and reputation; its attacks on the courts and on justice itself (even on constitutions in the case of UPC — another attempt to override the law and introduce European software patents) won’t be easily forgotten; SUEPO has meanwhile (on Saturday, link at the bottom in German) reminded people that Benoît Battistelli and António Campinos have driven away the EPO’s most valuable workers or moral compass



  28. IRC Proceedings: Saturday, July 31, 2021

    IRC logs for Saturday, July 31, 2021



  29. [Meme] When it Comes to Server Share, Microsoft Azure is Minuscule (But Faking It)

    Don't believe the lies told by Microsoft's charlatans and frauds; Azure has been a total failure and that's why there are layoffs as well



  30. [Meme] Mozilla Has Turned From Technical to Marketing

    Way back, long before Mozilla and Firefox got hijacked by politics (turning Mozilla into a VPN reseller that lies about its stance on privacy), geeks were driving the company, not corporate lawyers and spying/marketing people


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts