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

With 9 Mentions of Azure In Its Latest Blog Post, Canonical is Again Promoting Microsoft and Intel Vendor Lock-in, Surveillance, Back Doors, Considerable Power Waste, and Defects That Cannot be Fixed
Microsoft did not even have to buy Canonical (for Canonical to act like it happened)
Links 28/03/2024: GAFAM Replacing Full-Time Workers With Interns Now
Links for the day
Consent & Debian's illegitimate constitution
Reprinted with permission from Daniel Pocock
The Time Our Server Host Died in a Car Accident
If Debian has internal problems, then they need to be illuminated and then tackled, at the very least in order to ensure we do not end up with "Deadian"
China's New 'IT' Rules Are a Massive Headache for Microsoft
On the issue of China we're neutral except when it comes to human rights issues
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 27, 2024
IRC logs for Wednesday, March 27, 2024
WeMakeFedora.org: harassment decision, victory for volunteers and Fedora Foundations
Reprinted with permission from Daniel Pocock
Links 27/03/2024: Terrorism Grows in Africa, Unemployment in Finland Rose Sharply in a Year, Chinese Aggression Escalates
Links for the day
Links 27/03/2024: Ericsson and Tencent Layoffs
Links for the day
Amid Online Reports of XBox Sales Collapsing, Mass Layoffs in More Teams, and Windows Making Things Worse (Admission of Losses, Rumours About XBox Canceled as a Hardware Unit)...
Windows has loads of issues, also as a gaming platform
Links 27/03/2024: BBC Resorts to CG Cruft, Akamai Blocking Blunders in Piracy Shield
Links for the day
Android Approaches 90% of the Operating Systems Market in Chad (Windows Down From 99.5% 15 Years Ago to Just 2.5% Right Now)
Windows is down to about 2% on the Web-connected client side as measured by statCounter
Sainsbury's: Let Them Eat Yoghurts (and Microsoft Downtimes When They Need Proper Food)
a social control media 'scandal' this week
IRC Proceedings: Tuesday, March 26, 2024
IRC logs for Tuesday, March 26, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Windows/Client at Microsoft Falling Sharply (Well Over 10% Decline Every Quarter), So For His Next Trick the Ponzi in Chief Merges Units, Spices Everything Up With "AI"
Hiding the steep decline of Windows/Client at Microsoft?
Free technology in housing and construction
Reprinted with permission from Daniel Pocock
We Need Open Standards With Free Software Implementations, Not "Interoperability" Alone
Sadly we're confronting misguided managers and a bunch of clowns trying to herd us all - sometimes without consent - into "clown computing"
Microsoft's Collapse in the Web Server Space Continued This Month
Microsoft is the "2%", just like Windows in some countries
Links 26/03/2024: Inflation Problems, Strikes in Finland
Links for the day
Gemini Links 26/03/2024: Losing Children, Carbon Tax Discussed
Links for the day
Mark Shuttleworth resigns from Debian: volunteer suicide and Albania questions unanswered, mass resignations continue
Reprinted with permission from Daniel Pocock
Links 26/03/2024: 6,000 Layoffs at Dell, Microsoft “XBox is in Real Trouble as a Hardware Manufacturer”
Links for the day
Gemini Links 26/03/2024: Microsofters Still Trying to 'Extend' Gemini Protocol
Links for the day
Look What IBM's Red Hat is Turning CentOS Into
For 17 years our site ran on CentOS. Thankfully we're done with that...
The Julian Paul Assange Verdict: The High Court Has Granted Assange Leave to Appeal Extradition to the United States, Decision Adjourned to May 20th Pending Assurances
The decision is out
The Microsoft and Apple Antitrust Issues Have Some But Not Many Commonalities
gist of the comparison to Microsoft
ZDNet, Sponsored by Microsoft for Paid-for Propaganda (in 'Article' Clothing), Has Added Pop-Up or Overlay to All Pages, Saying "813 Partners Will Store and Access Information on Your Device"
Avoiding ZDNet may become imperative given what it has turned into
Julian Assange Verdict 3 Hours Away
Their decision is due to be published at 1030 GMT
People Who Cover Suicide Aren't Suicidal
Assange didn't just "deteriorate". This deterioration was involuntary and very much imposed upon him.
Overworking Kills
The body usually (but not always) knows best
Former Red Hat Chief (CEO), Who Decided to Leave the Company Earlier This Month, Talks About "Cloud Company Red Hat" to CNBC
shows a lack of foresight and dependence on buzzwords
IRC Proceedings: Monday, March 25, 2024
IRC logs for Monday, March 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Discord Does Not Make Money, It's Spying on People and Selling Data/Control (38% is Allegedly Controlled by the Communist Party of China)
a considerable share exists
In At Least Two Nations Windows is Now Measured at 2% "Market Share" (Microsoft Really Does Not Want People to Notice That)
Ignore the mindless "AI"-washing
Internet Relay Chat (IRC) Still Has Hundreds of Thousands of Simultaneously-Online Unique Users
The scale of IRC