Bonum Certa Men Certa

What Germany and the EPO Could (and Should) Learn From Australia About Patent Scope

Public Release of Productivity Commission Final Inquiry Report into Australia’s IP Arrangements
Reference: Public Release of Productivity Commission Final Inquiry Report into Australia’s IP Arrangements



Summary: Patent maximalism, including patenting of software, recognised as an undesirable, but will the EPO accept that rather than publicly advocate software patenting?

Australia -- like Canada (subject of our previous post) -- is a large developed country with a relatively small population. Both are historically inspired by English/British law.



"Australia's patent policy seems to be improving, e.g. by reducing the incentive to troll Australian firms."As we noted the other day, Australia not only recognises the dangers of overpatenting but also does something about it. Australia has just limited patent scope and Peter Leung from Bloomberg did an article about it ("Australia Seeks Tougher Inventiveness Patent Requirements").

Australia's patent policy seems to be improving, e.g. by reducing the incentive to troll Australian firms. Here are some portions from Leung's report, which compares it to the EPO:

Inventors seeking new patents in Australia may have to meet more stringent inventiveness requirements that better match Europe’s under a government proposal aimed at improving the nation’s intellectual property system.

Prime Minister Malcolm Turnbull’s government’s recent response to recommendations from the Productivity Commission, a government research body, included support for raising the inventive step requirement— analogous to the U.S. requirement that an invention be not obvious. An invention is not obvious if it’s sufficiently different from the known technology at the time.

“As it currently stands, the inventive step bar isn’t as high in Australia as it is at the European Patent Office,” Simon Potter, principal and patent attorney with Spruson & Ferguson in Sydney, told Bloomberg BNA. “Even though the Australian government made some changes back in 2013 with the Raising the Bar Act, the Productivity Commission’s view is that the bar remains too low, and the government apparently agrees.”

[...]

More Like Europe

The government said it supports amendments to the Patents Act to clearly establish that a “scintilla” of inventiveness is not enough to secure a patent. The law should also make clear that the “obvious to try” test used by the European Patent Office can be used to determine whether an invention has an inventive step, it said.

[...]

Rachel Hooke, a partner and patent attorney with FB Rice in Sydney, told Bloomberg BNA adopting an inventive step requirement in line with the EPO’s in theory likely won’t be too controversial, but much will depend on the details and implementation.

The government also supported a related Productivity Commission recommendation requiring applicants to identify the technical features in its patent claims, a practice that the EPO employs. Whether an invention meets the inventive step requirement should turn on the claim’s technical features, so requiring the applicant to lay out those features should help patent examiners come to the right conclusion, the commission said.

[...]

Furthermore, Australia has a “manner of manufacture” test but the EPO doesn’t, which is why the technical features analysis is so important in Europe, Hooke said. Having both seems “unnecessary and confusing,” she said.


Here in Britain patent trolls are quite rare. Software patents are also quite rare if not rarer than lawsuits from overseas trolls like Ericsson's (earlier this year in London it unfortunately got its way). Perhaps the departure from the UPC would help guard British software companies, which rightly oppose the UPC.

"Here in Britain patent trolls are quite rare."What about Germany?

The Germany-based EPO receives a lot of patent applications from Germany (far more so than from the UK) and "some similarities exist between German and EPO practice," say Meissner Bolte's Dr. Stefan M. Zech, Jochen Kilchert, Dr. Stephan Held, Christian Hess, Tilman Pfrang and Dr. Tobias Wuttke. Their days-old article notes: "Another restriction on software is the requirement under Section 1(1) of the [German] Patent Act that patents are granted to inventions or fields of technology, excluding any subject matter considered to be non-technological" (as is often pointed out by the German patent 'industry') and here is the part about the EPO, where software patents are being in granted in defiance of the rules:

When determining novelty, only direct and unambiguous disclosure is relevant. However, this requirement is broadly interpreted when compared to the practice before the European Patent Office (EPO).

With respect to the inventive step, some similarities exist between German and EPO practice. However, the EPO problem-solution approach – although generally known by German patent law practitioners – is of considerably lower importance. The decisive question in Germany is often whether the prior art can provide any motivation or incentive to add further features to an already-known solution of the prior art.


It's already widely publicised that in Germany there's a plague of patent trolls; they're truly surging there. We wrote many articles about that. No doubt it's good for law firms, especially those that specialise in litigation/prosecution. But what does that mean for the ordinary German software developer? No good...

"It's already widely publicised that in Germany there's a plague of patent trolls; they're truly surging there."The following portion of text was brought forth to me by an online friend, citing an old book from James Stewart Martin, titled All Honorable Men (1950). It's about fascism's history (Patents and Cartels) and the role played by patents at the time. Under "Chief of the Decartelization Branch for Military Government in Germany after World War II" it says this:

The practice of I.G. Farben was to capture the basic patents in each field of synthetic chemistry. They would file applications for patents not only in Germany but also in most of the civilized countries of the world.

Our own patent laws were full of loopholes that helped a great deal. For one thing, despite the legal requirement that a patent specification must be so detailed as to enable a man “skilled in the art” to practice the invention, a vague description of the method of producing a chemical compound is often enough to obtain a patent.

(…)

Further, these loopholes permitted an enterprising firm to file its application for a patent long before the actual “bugs” had been worked out of the production process.

The Germans, between the two wars, made an especially energetic drive to exploit their initial advantage in the field of synthetic chemistry in this way. In many cases they blanketed whole new fields of industrial technology by securing basic patents covering all known or suspected processes for synthesizing important materials.

In some cases they themselves had not discovered how to make these materials, but that mattered very little. If someone else did discover the “know-how,” he would find himself blocked by the patents already issued to some German firm or individual on the basis of a general description of the process.

Confronted with this earlier patent, the new inventor had a simple choice before him : spend anywhere up to ten years and thousands of dollars in arguing a patent interference through the Patent Office and the courts; or make a deal. Most of them chose to make a deal. But each deal included specific and legally enforceable recognition by contract on the part of the newcomer that the German patent was valid and not open to question.

Then he would get a promise from the Germans that as they worked with the new process in their own factories and laboratories, they in turn would make available to him the technical know-how that they might discover.

This made it a mutual enterprise beneficial to both, saved expense of litigation, and besides the two could then join forces against any other inventors who might still be outside the arrangement.

In practice, this meant that if I.G. Farben caught Du Pont on the first go-round with the Farben patents in the United States and made a deal with Du Pont, from then on it was I.G. Farben and Du Pont against, shall we say, Monsanto. And as more outsiders fell in with the scheme the team of solidly organized patentees grew and the chances of the remaining outsiders were less and less.


There's a true danger that unless Germany ends the gold rush for patents, small- and medium-sized companies will suffer. At the EPO, last year's statistics show a consistently high number of patents. From 2007 to 2016 the number of German patent filings was: 32,103, 33,384, 30,472, 33,104, 33,447, 33,814, 31,887, 31,691, 31,379, and 31,815 (last year).

"There's a true danger that unless Germany ends the gold rush for patents, small- and medium-sized companies will suffer."Compare that to France with: 10,797, 11,487, 11,608, 11,721, 11,865, 12,234, 12,378, 13,194, 13,294, and 12,726 (last year).

The UK is even lower with: 7,260, 7,172, 6,569, 7,142, 6,508, 6,691, 6,510, 6,917, 7,099, and 7,226 (last year).

"If the EPO was to study the reports from Australia, Battistelli would get the boot the following day."Remember that the EPO is primarily based in Germany, France's INPI does not really do proper examination, and the UK has the IPO.

France never quite did any quality assessment of patents (it's more like registration), the UK-IPO is pretty strict, and EPO is nowadays granting patents like mad. Insiders tell us that anything goes, even software patents. If the EPO was to study the reports from Australia, Battistelli would get the boot the following day.

Recent Techrights' Posts

Team Campinos Talks About SAP Days Before EPO Industrial Actions and a Day Before the "Alicante Mafia" Series (About Team Campinos Doing Cocaine)
EPO staff that isn't morally feeble will insist on objecting to illegal instructions
Stack(ed) Rankings and Ongoing Layoffs at Red Hat and IBM (Failure to Keep Staff Acquired by IBM)
IBM is mismanaged and its sole aim is to game the stock market (by faking a lot of things)
Linuxiac May Have Reverted Back to LLM Slop (Updated Same Day)
Is he back off the wagon?
Links 15/01/2026: Internet Blackouts, Jackboots Society in US
Links for the day
The Last 'Dilberts' or Some of the Last Salvaged (Comic Strips Which Disappeared Shortly After They Had Been Published)
Around the time the creator of Dilbert went silent he published some strips mocking TikTok and usage of it
GAFAM is a National and International Threat to Everybody
GAFAM is just a tentacle in service of imperialism
 
More People Nowadays Say "GNU/Linux"
We still see many distros and even journalists that say "GNU/Linux"
LLM Slop on the Web is Waning, But Linuxiac Has Become a Slopfarm
I gave Linuxiac a chance to deny this or explain this; Linuxiac did not
More Signs of Financial Troubles at Microsoft, Europe Puts Microsoft Under Investigation
The end of the library is part of the cuts
The "Alicante Mafia" - Part I - An Introduction to the Mafia Governing the EPO
Are some people 'evacuating' themselves to save face?
Pedophilia-Enabling Microsoft Co-founder Cuts Staff
Compensating by sleeping with young girls does not make one younger
Microsoft Shuts Down Campus Library, Resorts to Storytelling About "AI" to Spin the Seriousness of It
Microsoft is in pain
Free Software Foundation (FSF) Back to Advertising the Talks of Richard Stallman
A pleasant surprise
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 15, 2026
IRC logs for Thursday, January 15, 2026
Gemini Links 16/01/2026: House Flood and Pragmatic Retrocomputing Dogfooding
Links for the day
Links 15/01/2026: Starlink Weaponised for Regime Change (by Man Who Boasted About Annexing South American Countries for Tesla's Mining), Corruption in Switzerland Uncovered by JuristGate
Links for the day
GAFAM and IBM Layoffs Outline
a lot of the layoffs happen in secrecy and involve convincing people to resign, retire, relocate etc.
Coming Soon: Impact With EPO Cocainegate
Will Campinos survive 2026?
The Creator of Git Probably Doesn't Know How to Install and Deploy Git
Nobody disputes this: Mr. Torvalds created Git
Slop is a Liability
Slopfarms too will become extinct because people aren't interested in them
EPO People Power - Part XXXVI - In Conclusion and Taking Things Up Another Notch
They often say that the law won't deter or stop criminals because it's hard to enforce laws against people who reject the law
Running Techrights is Fun, Rewarding, and Gratifying
In Geminispace we are already quite dominant
Red Hat is Connected to the Military, Its Chief Comes From Military Family (From Both Sides)
The founder of Red Hat's parent company literally saluted Hitler himself (yes, a Nazi salute)
Don't Cry for Gaslighting Media in a Country Which Loathes the Press
my wife and I received threats for merely writing about Americans
Red Hat (IBM) is Driving Away Remaining Fedora Users
I've not used Fedora since Moonshine
Robert X. Cringely Has Already Explained IBM's Bullying Culture (Towards Its Own Staff)
IBM is a fairly nasty company
Proton Mail compromise, Hannah Natanson (Washington Post) police raid & Debian
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 14, 2026
IRC logs for Wednesday, January 14, 2026
Gemini Links 15/01/2026: "Ode to elinks", envs.net Pubnix and Downtime at geminiprotocol.net
Links for the day
Still Condoning Child Labour and Exploiting Unpaid Children Developers as PR Props (to Raise Monopoly Money)
These people lack morals. So they project.
"Security, AI or Quantum" on "the IBM Titanic"
Who's RMS?
Hours Ago The Register MS Published Microsoft Windows SPAM "Sponsored by Intel." The Fake 'Article' Says "AI" 34 Times.
The Register MS isn't a serious online newspaper
EPO People Power - Part XXXV - Where Else Will Corruption and Substance Abuse be Tolerated?
We need to raise standards
Status and Capital
People who do a lot are too busy to boast about it and wear fancy garments
IBM Paying the Price for Treating Workers Badly and Discarding Real Talent (Because It's "Expensive")
IBM is dead man walking
Turbulence Ahead
I last rebooted my laptop in 2023
Google News Rewards Plagiarism With LLMs (About Linux, Too)
Google is in the slop business now
Links 14/01/2026: Failing Economy and Conquest Abroad as a Distraction From Domestic Woes
Links for the day
Gemini Links 14/01/2026: The Ephemerality of Our Digital Lives and "Summer of Upgrades"
Links for the day
Projection Tactics - Part III: Silencing Inconvenient Voices Online
If X gets banned in the UK, it'll be hard to see what the spouse says in public
Outsourcing on Microsoft's Agenda, Offshoring Also
"In some cases, India hiring is poised to replace certain roles previously based in the U.S."
Links 13/01/2026: 'Dilbert' creator Scott Adams Passes Away With Cancer, Ban on X/Twitter Considered for CSAM Profiteering
Links for the day
The Goal is Software Freedom for All
Anything to do with "Linux Foundation" is timewasting
Reminder That Red Hat Enterprise Linux (RHEL) Is Not Free, And It's Because of IBM
software freedom just 'gets in the way'
Under IBM, in Order to Game the Stock Market, Red Hat Resorted to Boosting the Biggest Ponzi Scheme in Human History
This is what IBM turned Red Hat into
Revision handed Microsoft the keys to the distortion of the past/history
This isn't the first time The Register MS rewrites computing history in Microsoft's favour, as we pointed out several times in past years
What Will Happen to GAFAM After the US Defaults Rather Than Bails Out the Market?
Or tries to topple every government that doesn't play by its rules?
EPO People Power - Part XXXIV - Bad Optics for the European Union (for Failing to Act and Tolerating Cocaine Use in Europe's Second-Largest Institution)
There are principles in laws which tie awareness with complicity
EPO's Central Staff Committee is Now Redacting (Self-Censoring) Due to Threats From the EPO "Mafia"
"On the agenda: salary adjustment procedure for 2025 (as of January 2026)"
"AI" (Slop) 'Demand' Isn't Growing, It's Fake, It's a Pyramid Scheme
They try to resort to 'creative' accounting (fraudulent schemes like circular financing)
Difficult Times at IBM and Microsoft Ahead of Mass Layoffs (Probably Before This Month's Results Unless Postponed to 'Prove' Rumours 'Wrong')
IBM and Microsoft used to be tech giants. Nowadays they mostly pretend by pumping up their stock and buying back their own shares.
Canonical: Make Ubuntu Bloated (Debian With Snaps), Then Sell the 'Debloated' Version for a Fee
If people want a light distro, then they ought not pay Canonical but instead choose a light (by design) GNU/Linux distro
People Don't Want "Just Enough", They'll Look for Quality
That's why slopfarms will go away or become inactive
Gemini Links 14/01/2026: 3D and Tiny Traffic Lights Pack
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 13, 2026
IRC logs for Tuesday, January 13, 2026
Slop Waning Whilst Originals Perish
Slop is way past its "prime"
XBox's 'Major Nelson' Loses His Job Again, This Time in a Microsoft Mono Pusher
Microsoft hasn't much of a future in gaming. XBox's business is in rapid decline and people who push Mono to game developers are the same