Bonum Certa Men Certa

Patent Scope in Europe Should Not be Decided by the Self-Serving Patent Law Firms, But They Totally Dominate the Media

The screenshot below (taken moments ago) shows how Lexology and the likes of it (law firms lobbying and/or advertising themselves) totally dominate channels of information

Lexology EPO



Summary: Coverage regarding patents in Europe is still (nearly) monopolised by the patent microcosm, i.e. the 'industry' that profits when many patents are granted and a lot of lawsuits get filed

LAST month we wrote about Switzerland in relation to Patent Boxes (means for dodging tax). Yesterday, Philipp Groz and Teresa Rudolph from Schellenberg Wittmer wrote two 'articles' about patents in Switzerland, noting that "[c]omputer programs as such are not patentable." (the term "as such" became infamous within the EPO and caused great controversy)



When we say "two articles" we use scare quotes because actually these are two identical self-promotional posts, possibly intended to help occupy more search results pages (SEO). One is titled "Patents in Switzerland" and the other "An overview of patentability in Switzerland". It's all the same. Here is the part we're interested in:

To what extent can inventions covering software be patented?

Computer programs as such are not patentable. However, computer-implemented inventions are patentable (eg, inventions involving the use of a computer, computer network or other programmable apparatus, where one or more features are realised by means of a computer program).

To what extent can inventions covering business methods be patented?

Business methods as such are not patentable. However, business methods may be patentable if they are combined with technical features.


Yesterday we wrote about a similar self-promotional piece from Keltie LLP (UK) and this morning a pseudonym which seems to be associated with the firm confronted us over it. They promote loopholes by which to mislead examiners and when people criticise them for it they just walk away, as usual...

Also published yesterday was this article from Potter Clarkson LLP (Richard Wells and David Carling to be specific).

It speaks about "inventive step"/"technical effect" at the European Patent Office (EPO) and bemoans the appeal boards "[r]aising the plausibility bar," which is the very thing these boards exist to ensure. To quote:

In T 0488/16, the board reiterated that it is not essential that the application contains experimental data or results, provided the nature of the invention is such that it relies on a technical effect which is either self-evident or predictable or based on a conclusive theoretical concept.

Nevertheless, it is clear that it is not sufficient merely to assert that the technical problem the application purports to solve is solved. Some form of verifiable evidence is required in the application as filed.

When drafting new European patent applications, applicants should minimise the extent to which they may need to rely on post-published evidence during pre- and post-grant proceedings, bearing in mind that reliance on what is made plausible from the common general knowledge opens up questions of obviousness.

In the absence of adequate experimental results, additional effort should be put into the construction of a strong technical explanation for the purported effect which overcomes the plausibility threshold, thereby enabling the applicant later to rely on post-published evidence.

It is clear from T 0488/16 that it will not always be possible to address this issue even by severely narrowing the scope of the claims.

Great care should, therefore, be taken when considering withholding experimental evidence simply to maintain a commercial advantage.

This decision may also provide useful ammunition for opponents during oppositions. In most cases, the threat of the plausibility issue may result in the delaying of filing new applications until sufficient data become available.

As the EPO’s recent decision brings its approach closer in line with that adopted by other patent offices, most notably those in China and Japan, these choices will be familiar to practitioners handling worldwide patent portfolios.


The authors ought to know that the boards have already been marginalised and oppositions made more difficult (for various reasons). It's all intended to ensure quick grants and many low-quality patents, which Battistelli is perpetually prepared to lie about (his greatest power is that he's willing to lie without qualm or guilt).

One last article of interest is this one from Kevin Kabler and Andrew Whitehead. They both work for patent maximalists and software patents lobbyists, Fenwick & West LLP, who can't help pushing towards patents on life just like they push hard for patents on abstract ideas. Here they are lobbying alongside the EPO (Georg Wimmer) and USPTO (Marjorie Moran):

At the September 21, 2017 symposium, Fenwick’s Kevin Kabler moderated the panel. Sharing insights* into patent eligibility and obviousness considerations in the U.S. were speakers Marjorie Moran (USPTO) and Andrew Whitehead (Fenwick). On the European side, our guests were Georg Wimmer (EPO) and Frances Salisbury (Partner, Mewburn Ellis, UK).

[...]

A: In Europe, make sure you’ve got some intermediates in the application and make sure your technical case is clearly stated. In the U.S., talk to your examiners. At the USPTO, you’ll find that going back and forth in writing, especially with the constantly changing landscape of patent eligibility, causes more confusion sometimes than it solves; so if your case has been picked up for examination, call your examiner at any point in time, it will help shorten your prosecution path considerably in the vast majority of cases.


Yes, the EPO has long advised people not to submit anything without a middle(wo)man which can cost up to $500 per hour. Such is the inane state of affairs and the reason people have reported abuse/sent complaints (some of which we covered here before).

Suffice to say, any financial gain for patent law firms happens at the expense of actual scientists/technologists (like patent examiners). ⬆

Recent Techrights' Posts

Linux is Not Controlled by Linus (Torvalds)
Torvalds has become "90% marketing hype"
 
Gemini Links 24/10/2026: Arch Linux Journey and Amin Bandali's Priorities
Links for the day
Bluewashing as a Form of Silent Layoffs
IBM will continue to shed off loads of workers while its debt climbs
Turning 20 in 2 Weeks and Upcoming Network Maintenance
That ought not interrupt our anniversary
Microsoft Shutdowns Accelerating, More Shutdowns Revealed (Not Connected to Gaming)
Silent layoffs disguised as "voluntary" "exits"
Links 24/10/2026: Microsoft Blackmail and Lingering Unrest in France:
Links for the day
Gemini Links 24/10/2026: From Bendigo to Kerang, Enshittification of Radio and Music in the UK
Links for the day
Red Hat Sinks With the Blue (IBM) Ship
As IBM's debt continues to soar so do the silent layoffs
The "No Pain No Gain" Expectations in Publishing
Sometimes truth hurts; but that does not mean it mustn't be told
Intercontinental Brigading - Part XIII - Censorship by All Means Available in a Continent So Far Away, as 'Secure' (Restricted, Restriction by Microsoft) Boot Has a Crisis of Legitimacy
it's about America controlling sites and computers everywhere
Links 24/10/2026: Oligarchs Already Buy US Elections, GAFAM Front Group "EFF" Speaks of "Vulnerability Apocalypse"
Links for the day
Gemini Links 24/10/2026: Automobile Differential Tire Movement, Samsung Washer Woe, and Slop Scraping
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 23, 2026
IRC logs for Friday, October 23, 2026
As Usual, Late on a Friday XBox (Microsoft) Releases Evidence of Its Demise
We covered several such Friday announcements earlier this year
Gemini Links 24/10/2026: Break/Fix and OpenStreetMap
Links for the day
Links 23/10/2026: Slop "is Scaling Transnational Repression" and Infringement and DMCA Suits Against Suno/Anthropic (Plagiarism Blenders)
Links for the day
More Shutdowns at Microsoft, Hundreds of Workers Impacted Shortly
It's not the entire wave, just part of it
The Register MS: About 60 Mentions of "AI" in One Day Are Paid-for Spam (Sponsored Hype, Composed by the Companies Covered)
The Register MS is a dying site
Links 22/10/2026: MElon (Elon Musk) Election Interference and Perl/Raku Foundation by the Numbers
Links for the day
Techrights Audience Grew as a Function of the Intensity of Attacks on Its Existence
We try to publish fewer stories but better (not necessarily long but at least important) stories
TechRepublic is Becoming a Slopfarm
It seems like TechRepublic became LLM slop (maybe all of it, maybe only some of it for now)
Techrights is Not About GNU/Linux, Tux Machines Is
When we say "GNU/Linux" we emphasise the GNU
The World Needs Activists With Social Skills and Perseverance
An everyday activist makes life better for everybody, everywhere (not for personal gain or even credit)
Intercontinental Brigading - Part XII - Lawfare to Cover Up Microsoft's Restricted Boot Calamity (Microsoft as Authority Over Linux), Garrett Wants to Talk About Penises Instead
When lawsuits become a political weapon
Without Microsoft's Monopoly (and Monopoly Rents) the Inevitable Microsoft Mass Layoffs Carry on Endlessly
Microsoft Windows is not retaining the dominance it once had
IBM's Debt Grew About $2 Billion in 3 Months
The silent layoffs still seem to impact Red Hat
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 22, 2026
IRC logs for Thursday, October 22, 2026
Gemini Links 22/10/2026: Solar MiniBBS, Building Major Tom, and Zig
Links for the day
Links 22/10/2026: Busan’s Celebrity Shark in Canal Again
Links for the day
Links 22/10/2026: "Software Developers Have Been Promoted Into Incompetence"
Links for the day
Intercontinental Brigading - Part XI - Losing Over a Million Pounds (Borrowed Money) to Try to Silence Critics of Restricted Boot With Microsoft-Controlled "Certificates"
Garrett is also very jealous of Daniel Pocock
Links 22/10/2026: eBay to Lay Off a Tenth of Staff (Again), Node.js and PHP Security Crises, Climate News
Links for the day
Red Hat Layoffs Still Going on This Week (Whilst IBM's Debt Grows in Spite of Mass Layoffs)
IBM is bluffing/cheating the shareholders again
IBM's Debt Continues to Increase While the Company Rapidly Shrinks
This is what a dying company looks like
Linux Kernel Needs Diversity and Diversity of Good Code, Not LLM Slop
Linux (and Linus) are kicking a can down the road
Microsoft Shrinks Every Year
Microsoft will try to spin or twist this as "efficiency"
Gemini Links 22/10/2026: Holiday Inn and Emacs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 21, 2026
IRC logs for Wednesday, October 21, 2026