Bonum Certa Men Certa

Claim and Perception: Under Battistelli, EPO More Permissive on Software Patents Than USPTO, In Spite of the EPC

Software patents in Europe



Summary: Software patents in Europe have become an issue so serious that some companies now consider the European Patent Office (EPO) more friendly towards software patents than their country of origin (US/USPTO)

OUR core concern (and original concern) about the EPO was its growing lenience on and friendliness towards software patents, contrary to the EPC (on the basis of which the EPO exists). A patent system without quality control/assurance is bound to collapse, devaluing all the patents it ever granted.



According to this new post from IP Kat, "Dennis Crouch, in a post titled “US Patent Applicants Heading to the EPO,” notes that many practitioners believe that the EPO is less restrictive in its application of patent eligible subject matter than the USPTO. [Is that the beginning of a new myth? What do you think?] Interestingly, he also notes that recent data from the EPO supports that belief and that the Unified Patent Court will only make those EPO patents more valuable. Others have said it, but will the UPC be a troll friendly zone?"

The UPC means an open door to yet more software patents, more patent trolls, and more litigation. Good for patent lawyers, trolls, and non-European corporations, that's for sure. In the comments section a regular reader wrote the following response:

Mike you ask what we the readers think, on the issue whether the EPO is more permissive on patent eligibility than the USPTO.

Well, given that the EPC, Art 52, is more restrictive on eligibility than Section 101 of the US patent statute, it certainly would be interesting, if it were indeed the case. Me, I am sceptical that Europe really is more permissive on business method eligibility than the USA.

Mike, I suggest to you and other readers that an important factor in the USPTO's current strictness on eligibility is nervousness about the consequences of letting claims through to issue. Owners of issued US patents can use them to intimidate accused infringers in ways not known in Europe. That's because of the notion in the USA that it has a "strong" patent system which deters folks from infringing. If you choose to operate within the ambit of a duly issued claim, you are "betting the farm" ie putting your entire business at risk. The US patent system is one in which there is a high presumption that issued patents are valid and enforeceable, and that wilful infringement can be punished by triple damages.

Whereas in Europe there is far less fear of infringing.

In Europe, nobody gives any deference to the work of the EPO. A patent owner has to prove the fact of infringement and the infringer has only to get to a "more likely than not" standard of proof to blow away the asserted claim. That being the case, the EPO can take a relatively relaxed view on eligibility/patentability, and let 50:50 claims through to issue, to give the striving Inventor his or her "day in court".

Readers, keep in mind that the filtering the USPTO does on "eligibility" the EPO chooses not to do under Art 52 EPC. The strongest filtering is left at the EPO till we get to obviousness under Art 56 EPC. No other Patent Office in the world confines itself to technological obviousness, or has a "technological arts" test for obviousness. That's how it can filter out business methods under the obviousness filter. Nobody else has the "Problem and Solution Approach" so everybody else (including the USPTO) has to do the difficult filtering under the "eligibility" section of its Statute.


It is troubling to see that a professor such as Crouch, whose knowledge in this area is beyond doubt (it's what he does for a living), believes that the perception of the EPO under Battistelli is this bad. It's perhaps widely perceived to be a software patents-friendly zone now. When Marshall Phelps worked for patent aggressor Microsoft he said the the EPO "can’t distinguish between hardware and software so the patents get issued anyway" (pretty damning if true).

In the mean time, one of our readers is assessing the stance on software patents as it relates to the only person who (so far) is rumoured to be Battistelli's replacement (Christoph Ernst). Germany is known to be more software patents-friendly than most of Europe, but this doesn't necessarily mean that Ernst would misinterpret the EPC in the same way that Brimelow and Battistelli did. Here is what this reader wrote to us this afternoon:

It's hard to find much of anything. That which is found is neutral, political in wording. He's mentioned several times in these annual reports, but no detail:

http://www.dpma.de/docs/service/veroeffentlichungen/jahresberichte_en/dpma-annualreport2011_barrierefrei.pdf

http://www.dpma.de/docs/service/veroeffentlichungen/jahresberichte_en/dpma_annualreport2013.pdf

http://www.dpma.de/docs/presse/jahresberichte/dpma_annualreport2014.pdf

Either he's not in the 2015 report or there is no such report ready yet.

This one appears to be him also, but I am not able to wade through it:

http://eureka.sbs.ox.ac.uk/4509/1/WP1301.pdf

It did also have an alternate spelling of his name in addition to the common spelling.

http://ftp.zew.de/pub/zew-docs/dp/dp11024.pdf

I've skimmed a few more from other authors but, again, can't wade through them. Though I might be misinterpreting it looks like there is a large pool of people who wish to interpret number of resulting patents with 'quality' of research.


It is of couse perfectly reasonable to believe that Ernst is just one among several who will be considered as Battistelli's replacement. It's also plausible that the rumours are false and that he is not at all being considered for this job.

Comments

Recent Techrights' Posts

The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
 
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol