03.08.19
Posted in Europe, Patents at 6:23 am by Dr. Roy Schestowitz
Summary: A man of his war (or his master’s war) rather than his word, Mr. Campinos makes it abundantly clear that patent quality issues are off the agenda and corruption persists without it ever being tackled
SOFT-SPOKEN EPO President António Campinos has just been to Bucharest, where Ben Wodecki of IPPro Magazine saw him speak. It was an EU event. Wodecki noted that this happened after “patentability of plants obtained by essentially biological processes [had been questioned] following several high profile invalidation cases.” We wrote about it earlier this morning as it signifies the decline in quality (of European Patents). To quote:
European Patent Office president António Campinos emphasised the need for “a strong partnership and results-oriented co-operation” at the EU Presidency conference in Bucharest.
Campinos called for all EPO member states to cooperate within a globally relevant European Patent Network.
Representatives from all EPO member states met recently to discuss the patentability of plants obtained by essentially biological processes following several high profile invalidation cases.
[...]
The event was hosted by Romania’s State Office for Inventions and Trademarks (OSIM). It was attended by almost 100 national, European and international IP stakeholders.
IPPro Magazine wrote yet more. In a new article titled “EPO users want greater flexibility in examination” Wodecki looks at what EPO management claims the findings of a survey to be, having surveyed self-selecting people (only a minuscule 600 folks participated in this EPO survey). The set of questions, as noted months ago, was designed to not talk about corruption and quality, instead on timing (which the management maliciously conflates with quality). To quote:
A majority of users at the European Patent Office (EPO) want greater flexibility in the timing of examination, according to a survey.
In a survey of 627 EPO users, more than 300 said they would be in favour of a procedural option for postponing examination of a European patent application in order to increase flexibility.
Respondents in favour of a procedural option commented on the need to allow time for examination results to return from other countries, more time to assess the commercial value of an invention and better alignment of the timing of examination with long product development cycles and regulatory approval procedures.
Respondents also noted that a postponement of examination could optimise resources by postponing the prosecution and/or validation costs, especially for small and medium-sized enterprises.
Notice how they dodge discussion about patent quality and EPO corruption. They’re not interested in tacking any of the problems introduced by Battistelli. SUEPO has linked to neither of the above articles and EPO staff (or staff representatives) weren’t contacted for their side of the story. To IPPro Magazine‘s credit, it does routinely seek their opinion.
The bottom line is, as even SUEPO alleged a week ago, Campinos is just another Battistelli. It’s all promises, but no actions, just stonewalling and occasional tantrums. █
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Posted in Europe, Fraud, Law, Patents at 5:57 am by Dr. Roy Schestowitz
The World Bank, which spends a lot of money on itself (photos below), is not above the law anymore; will the European Patent Office (EPO) also lose its immunity?
Summary: There are signs that the concept of institutional and diplomatic immunity can no longer be justified, not even by the world’s most powerful court (SCOTUS)
T
HE United States’ Patent and Trademark Office (USPTO) is a sort of government body/extension, unlike the supranational European Patent Office (EPO). The USPTO is routinely being sued; and yes, it’s definitely allowed. Just see all the cases in the dockets against Kappos, against Lee, and against Iancu. That is actually a positive thing, not just for lawyers. It means there’s a recourse or access to justice.
“A lot of people do not know or simply do not remember this, but the son of the EPO’s current President attempted to ‘borrow’ his father’s immunity.”The EPO has become a den of corruption. We’ve written nearly 3,000 articles and posts about it. We have published a lot of documents, including leaked ones. Will the EPO ever be held accountable? A lot of people do not know or simply do not remember this, but the son of the EPO’s current President attempted to 'borrow' his father's immunity. What an offensive thing to be doing after crashing a car, putting other people’s lives at great risk. Perhaps he, like his father, thinks that the law doesn’t apply to him. He thinks he can commit serious crimes with impunity.
The EPO, even in 2019, continues to act as though the law does not exist or the law can be made up by the EPO (and routinely violated thereafter by the management, as its own rules it is magically exempted from). Even incidents of fraud are being tolerated as long as it’s EPO management benefiting from the fraud.
A few days ago some EPO insiders floated or passed around this new report:
World Bank’s Legal Immunity Stripped, Opening Door for Lawsuits
The Supreme Court of the United States has rejected World Bank claims of complete legal immunity, ruling that one of its arms can be sued in relation to lending activities.
The 7-1 ruling could also open other American-based international organizations to the threat of lawsuits over financing overseas development.
For the World Bank, it means that it now faces having to defend against a suit by members of a fishing community in Mundra, India, who contend that their homes and livelihoods were damaged by pollution from a coal power plant that was financed by the bank’s private sector lending arm, the Washington, D.C.-based International Finance Corporation.
[...]
Lawyers for EarthRights International, which represents the plaintiffs, say that the World Bank must be accountable if its actions or its negligence harms local populations. The fishing community’s case against the bank will now be allowed to proceed in lower courts in the U.S.
“Immunity from all legal accountability does not further the development goals of international organizations,” said Marco Simon, the General Counsel for EarthRights. “It simply leads them to be careless, which is what happened here.”
Might the Dutch Supreme Court follow? Will any of the courts in Europe quit pretending that the EPO deserves its above-the-law status? Surely it should have lost such a privilege when it routinely broke the law.
This recent comment (19th of February, 2019) from “Anonymous Old examiner” reminds us of Questel [1, 2] in relation to last week’s (last Friday) shutdown of eDossier [1, 2, 3]. “This has happened before,” s/he said. “The office had a project called ELFOS, which was quite similar to the eDossier. It never worked and was scrapped in 1995 and replaced by a more primitive clunky system called Phoenix. We still use that one. ELFOS was a pet project of Jacques Michel, a French national who was then VP of The Hague. Jacques Michel came crom Questel, a French consulting firm in IT. It was reported that Questel was involved in the ELFOS project.”
We’ve already mentioned Questel in relation to French nepotism. How much of the EPO’s funds get ‘laundered’ in this fashion? When will someone — anyone — be held accountable? █
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Posted in Deception, Europe, Patents at 5:22 am by Dr. Roy Schestowitz
Flora and fauna aren’t inventions
Summary: “No Patents on Seeds” continues to challenge the utterly bizarre notion that plants, animals and even seeds or embryos are human inventions; thinly-veiled propaganda sites of law firms that profit from such lunacy try to discredit “No Patents on Seeds”
HAVING just commented on software patents being granted by and promoted by the European Patent Office (EPO), let’s examine where they stand on another outrageous kind (or family) of patents. Soon after 'Teffgate' the subject is resurfacing again, thanks to “No Patents on Seeds”.
“EPO lettuce patent hit by opposition from pressure group,” IPPro Magazine wrote some days ago (we mentioned it on Wednesday). “Pressure group No Patents on Seeds has filed an opposition against a European patent on lettuce claiming it is derived from convention breeding,” they said in the opening sentence, repeating the term “pressure group” to describe “No Patents on Seeds” as if it’s some notorious lobbyist that bullies or bribes officials. Why the negative connotation? Doesn’t the pressure come from thugs of Monsanto/Bayer and their lawyers who claim they own life and intimidate if not bankrupt small farmers around the world?
Life Sciences Intellectual Property Review, a propaganda (or “pressure”) site for patents on life, has also just commented on it, dubbing “No Patents on Seeds” an “Activist group” in the headline (first two words) and same in the article. “Activist” is a label once explained by Jacob Appelbaum (Wikileaks) as derogatory; media like The Guardian, he argued, uses the word “activist” to insinuate one lacks legitimacy of a journalist, scientist, historian etc. From the article in question:
Activist group No Patents on Seeds has filed an opposition against a patent on lettuce, owned by Dutch food supplier Rijk Zwaan Zaadteelt.
Announced yesterday, March 6, the activist group has opposed EP 2,966,992 B1, a patent covering lettuce seeds, plants and the harvest of lettuces that grow in a hotter climate.
According to No Patents to Seeds, the trait is supposed to be helpful in adaption to ongoing climate change and the seeds are derived from conventional breedings without any involvement of genetic engineering.
Earlier this week an article by Michael Dow (Madderns Patent & Trade Mark Attorneys) was published under the headline “Are plants patentable in Europe?”
The fact that questions like these are even being asked is significant as it highlights a low level of quality assurance at the EPO. To quote:
The rules keep changing over whether plants or plant products obtained by means of an essentially biological process are patentable in Europe.
Under Article 53(b) EPC (and Article 4 Biotech Directive), European patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants. Originally, this was interpreted to extend to plants and plant products obtained by means of an essentially biological process.
This was challenged in Broccoli/Tomatoes I ( G 0002/07 & G 0001/08) and Broccoli/Tomatoes II ( G 0002/12 & G 0002/13), following which, it was allowable to have a product claim directed to plants or plant material such as a fruit, even though the plant or plant material might be obtained by an essentially biological process, which is not patentable.
The European Commission considered the issue ( 2016/C 411/03) and took the view that the EU legislator’s intention when adopting the Biotech Directive was to exclude from patentability products (plants and plant parts) that are obtained by means of essentially biological processes.
The Administrative Council of the EPO then introduced Rule 28(2) to modify Article 53(b) EPC. Rule 28(2) states that European patents shall not be granted in respect of plants exclusively obtained by means of an essentially biological process.
So the European Commission does not seem to matter to the EPO, whose terrified-by-the-office judges were willing to reopen the floodgates to these dubious patents.
As we said several times last year, such patents do not contribute to innovation and they only serve to discredit the Office and provoke the public (which occasionally protests in front of the Office). █
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Posted in Europe, Patents at 4:39 am by Dr. Roy Schestowitz
It has already happened in the US and it may soon happen in Europe
Summary: Looks like EPO judges might soon be able to rule against software patents — a pressing matter and another fresh opportunity to set things straight in Europe (like Alice in the US half a decade ago)
THE European Patent Office (EPO) cannot help itself. Yesterday it wrote: “Tomorrow is your last chance to register for this event in Lundun, Sweden where we will address the topic of computer-implemented inventions in #Medtech with a focus on the value of patents for SMEs: https://bit.ly/2E5l03D #startups pic.twitter.com/sG6xVSbnhG” (accompanied by the same stock photography it used almost half a dozen times lately).
Notice how they add words/buzzwords like “med” and SMEs”; now there’s even “startups” as a hashtag. We remarked on these earlier this week and last week. By “computer-implemented inventions” the EPO means patents that ought not be granted and this tweet was apparently deleted later on the same day (we cannot find it anymore). The EPO was also promoting driving-centric software patents in Europe. Yesterday it wrote: “Europe and the USA have a strong lead in self-driving vehicle innovation with about 1 400 European patent applications each in 2017 alone. See how other regions performed here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/L0argQl72d”
It’s that “SDV” nonsense that we responded to like a dozen times before. Having come from that area myself, as a developer, it’s clear to me that the vast majority of these would be algorithms. “SDV” is just like “CII” or “4IR” — it’s a buzz phrase in acronym form. It’s like “AI” — a term which according to new research is being grossly misused (see our daily links). Many things that companies describe as “AI” are just ordinary algorithms and many so-called ‘AI’ startups have nothing to do with “AI” (hence the scare quotes).
We have come to the point where the EPO generally compensates for granting illegal or bogus patents by sticking misleading labels on these. The U.S. Patent and Trademark Office (USPTO) has copied some of these methods, e.g. calling software patents “AI”. Things have become rather different in the United States, where software patents are otherwise very difficult to assert in court. The patent maximalists have totally, entirely lost the plot. They’re panicking. They feel greatly irritated. Consider this new tweet from a retired attorney. That ridiculous patent maximalist, Janal Kalis, generalises; he now calls “anti-patent” anything that merely opposes abstract patents or patents on algorithms (which no software developers ever wanted) and also attributes anything against software patents to “EFF”. His tweet says: “The USPTO is seeking comments on the 2019 Revised Subject Matter Eligibility Guidelines. So far, 103/119 (87%) of the comments come from the EFF and are anti-patent. If you have another position, please send your comments to the USPTO asap: Eligibility2019@uspto.gov”
They panic. The public (not a few law firm) is talking and is now controlling the debate. Iancu (the USPTO equivalent of Ajit Pai at the FCC) cannot hide the fact that citizens of the United States oppose his plan.
How long (or how much longer) can judges be ignored, snubbed and ridiculed?
Gene Quinn of Watchtroll has returned for a day and earlier this week he pretended that the Federal Circuit (CAFC) has not adopted the SCOTUS decision on TC Heartland even though it clearly has. We don’t suppose fact-checking even matters in that horrible propaganda site, which smeared judges for merely following 35 U.S.C. § 101. This is what it nowadays boils down to. It certainly seems like the only CAFC reversal Watchtroll is able to find this week (in favour of plaintiff) has nothing to do with patents; it is about trade secrets.
This is of course encouraging. It doesn't seem as though a comeback for software patents in the US is possible (now or ever). The judges make the final call, not the attorney whom Trump put in charge of the Office (or the French/Portuguese banker whom Battistelli chose for Europe).
Here in Europe there’s an upcoming case/referral, which we wrote about thrice before [1, 2, 3] and last mentioned on Wednesday. It can, in theory or in principle, become a ‘European Alice‘ though it requires judicial independence (which is lacking).
IAM (blog) has just published, without the usual paywall that protects patent trolls from scrutiny, an outline from Philip Naylor regarding software patents. As usual, the patent trolls’ lobby pushes for (in favour of) software patents in “Patent cases in the EPO and UKIPO: different qualifications for computer software” (algorithms).
Much of the status quo gets attributed to an IBM case from two decades ago:
As a result, patents can be granted at the UK Intellectual Property Office (UKIPO) and at the EPO for inventions which involve the categories of excluded subject matter set out in Article 52. However, the “as such” qualification has also been used to limit the scope of allowable subject matter in these categories.
Over the years, the EPO and the UKIPO have developed the way in which the allowability of patent applications for computer software and business methods is assessed. The EPO has settled on an approach that gives greater certainty to applicants in comparison to other patent offices, such as the USPTO, where the law in this area is in a state of flux. The UKIPO’s approach is similar to that of the EPO, but with some subtle differences.
[...]
In 1999, two EPO Technical Board of Appeal cases, T935/97 and T1173/97 (IBM), established that claims having the form “a computer program product” and “a computer readable medium having a program recorded thereon” were allowable.
Following the IBM decisions, it became accepted practice at the EPO that software could be claimed directly. This continues to be its practice so long as other requirements (ie, clarity of the claim language and sufficiency of disclosure) are met.
In Case T931/95 (Pension Benefits System Partnership), it was held that the claims of an application must define non-excluded subject matter and be novel and inventive. The claims were directed to a method and an apparatus for controlling a pension benefit programme. The method claim referred to technical means, but was refused because it related to a method of doing business as such (ie, it did not define non-excluded subject matter).
In this case, the apparatus claims did define technical features and were not refused merely because they related to excluded subject matter. However, the apparatus claims were refused on the grounds that they lacked an inventive step because it was viewed that the differences from the prior art lay in an economic field (ie, non-technical) and hence there was no technical contribution provided by the distinguishing features of the invention. This case marked a substantial shift in the EPO’s approach to non-excluded subject matter.
[...]
In 2008 in referral G3/08, the president of the EPO referred questions regarding the patentability of computer programs to the EPO’s Enlarged Board of Appeal. After a lengthy period in which many amicus curiae briefs were filed, the board declined to answer the questions posed in the referral on a legal technicality; it was held that, since there was no divergence in existing case law, the legal requirements for the referral itself were not met.
Since then, the EPO has continued to apply the precedents set out in the Pension Benefits, Hitachi and Comvik cases, among others.
There may soon be another new precedent in the form of “simulation” software. We hope that the judges can regain their independence some time soon and rule on the matter without fear of retribution. █
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Posted in Europe, Patents, Site News at 1:50 am by Dr. Roy Schestowitz
Evolving and adapting to market needs
Summary: The general or the widely-held (popular) views are changing as expectations from patents, in light of ruinous symptoms such as patent trolls, compel judges to adapt; Europe’s adaptation (or ability to adapt), however, has been slow compared to counterparts’
LOOKING at our reference page (or index) for the European Patent Office, we’re fast approaching 3,000 posts (about this subject alone). Our writings on this topic have had impact and earlier this week we were contacted by German academia. These matters are being watched closely as there’s a legal as well as technical angle to it all. There are also economic aspects and António Campinos, considering his professional background in banking, will no doubt be aware of the financial ramifications. Patent systems cannot be presumed benign just because they grant lots and lots of patents, amassing a bunch of money in the process. The costs associated with these patents are passed outwards. Scholars have long studied these relationships between patents, innovation, and economics. It’s not a simple topic.
What compels me to set aside American patent cases and focus on European affairs isn’t my European nationality, residency etc. As I’ve explained towards the end of last year and again at the start of this year, the United States came to grips with the harms of software patents after courts had repeatedly ruled against these, starting with SCOTUS (decisions like Alice and Mayo as formulated or incorporated into 35 U.S.C. § 101) and then the Federal Circuit, the Patent Trial and Appeal Board (PTAB), examiners and petitions in the form of inter partes reviews (IPRs). Nowadays the U.S. Patent and Trademark Office (USPTO) and even the ITC cannot easily issue patents and sanctions. Presumption of infringement/guilt isn’t quite there anymore as many patents and allegations are suspect by default; defendants rather than plaintiffs/accusers very often win cases, either for non-infringement or invalidity of the asserted patents. After writing nearly 10,000 articles and short posts about US patents I’ve decided to mostly monitor the situation and only return to it in case things take a turn for the worse (which is possible but not likely based on the past 2 months’ court case outcomes).
“For Europe to have its own equivalents of Alice and Mayo the judiciary will need to enjoy independence from the Office, which measures its performance only in terms of money (or “products” to/from “customers”).”It is, on the one hand, troubling to see how the EPO embraced patent maximalism. On the other hand, there’s also growing opposition to it, even from insiders. This post from yesterday shows how patent maximalists such as Kevin E. Noonan (the lawsuits business) habitually advocate/promote patents on plants, life, genes/genetics. They fail to see just how irrational it is. They treat nature as though it was invented by (wo)man. That’s false. It is a colonialist ideology that persists in the 21st century and gets sold to the public using propaganda terms (euphemisms like “intellectual property rights” where every single word is a deliberate lie).
Patent maximalism may be waning, but only after decades of unstoppable gains. It was a bubble all along. We take note of the fact that many blogs about patents have become inactive or barely active. It’s very easy to demonstrate this statistically, albeit it would require some amount of work (like counting blog items in one’s RSS reader). Things have gotten so bad for the maximalists that some have had to change jobs. Blowhards like Gene Queen changed careers after a couple of decades only to be entertained, as per this new press release from Anaqua, in some events where keynotes involve Watchtroll and EPO (“Thomas Bereuter, Programme Area Manager of Innovation Support at the European Patent Academy, European Patent Office (EPO)”). Watchtroll, the Web site, is becoming more and more like a ghost town, with the large majority of the posts receiving no comments (there are no sign-up barriers), the overall number of posts declining, and the editor stepping down/aside. It’s not difficult to see the writings on the wall. We dare predict that the next major turnaround will be the demise of software patents in Europe as well as patents on life — a couple of subjects we shall cover next (in separate posts). For Europe to have its own equivalents of Alice and Mayo the judiciary will need to enjoy independence from the Office, which measures its performance only in terms of money (or “products” to/from “customers”). █
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