Bonum Certa Men Certa

The European Patent Office Has Assaulted Patent Quality While Trying to Distract From That

German Tornado



Summary: The EPO's lack of interest in the merit of patents that it is granting poses a grave threat to Europe; the 'patent lust' of EPO management is helping nobody, definitely not patent examiners (who are the very core and heart of the Office)

MANAGEMENT of the European Patent Office (EPO) -- like the new Director of the USPTO -- has lost sight of the importance of patent quality and patent judges. Judges are treated like enemies because they guard patent quality (they refuse to accept wrongly-granted patents, based on the respective laws).



"Examiners constantly complain that they can no longer perform their job like they’re supposed to (as per the EPC)."Buried under a load of puff pieces, like the UPC nonsense we've just mentioned, is press coverage about decrease in patent quality. SUEPO has just cited one article to that effect (list updated yesterday). "New EPO messages reveal quality decline and ‘confuse’ staff," the headline says. The EPO's management would prefer nobody to see this. Instead, see the JD Supra press release that's an EPO puff piece from Barley Snyder. From his opening paragraphs:

During my time in Germany, I have learned and discussed with colleagues differences between American and European patent laws ranging from the nuanced to the more pronounced, and the differences in argument strategies corresponding to these legal distinctions.

But one of the commonalities between the patent laws and processes has recently become especially clear.

The patent process, by its nature, requires a patent examiner to conduct legal analyses regarding technology, including proverbially stepping into the shoes of a person “with ordinary skill in the art” at the time the patent application was filed, to determine whether written claim language of the present application is sufficiently different from the prior technology to issue a patent. This determination necessarily involves varying degrees of judgment based on experience. Critical points of understanding can depend on small variations in language. An examiner’s decision in a patent application is necessarily colored by his or her own opinions, personality and understanding of both the application and prior art.


Or, as things stand at the moment, demands and 'targets' from above. Examiners constantly complain that they can no longer perform their job like they're supposed to (as per the EPC).

Hogan Lovells has a new essay on the EPO allowing software patents in Europe (so-called 'computer-implemented inventions' or 'CII') through misuse of broad and vague buzzwords like "AI". Published on Friday, it said this:

Earlier this year the European Patent Office (“EPO”) held its first ever conference on patenting artificial intelligence (“AI”). Following intensive discussions on the impact of AI in the patents sector, the EPO promised to update its Guidelines for Examination, to provide specific guidance on the examination of AI applications under existing computer-implemented inventions (“CII”) practice and case law.

The EPO has delivered on its promise. A preview-version of the new Guidelines is now available on its website. These Guidelines are set to take effect on 1 November 2018. Plot spoiler alert – the new section on AI and machine learning now appears in section 3.3.1 of Part G of the Guidelines. Those of you who are familiar with the Guidelines will immediately spot that this new section on AI and machine learning has been inserted under the part of the guidelines that deals with mathematical methods.


We wrote about this as recently as yesterday when we also mentioned patents on life in light of this hearing, as covered yesterday by IPPro Patents. Ben Wodecki (of IPPro Patents) called these patents on nature "unlawful" in the headline (quoting those who judged them):

The European Patent Office (EPO) has reduced the scope of a patent granted to Carlsberg and Heineken related to conventionally-bred barley.

The decision was made during a public hearing in Munich, where examiners found that the patent, which covered conventionally-bred barley, its usage in brewing and the resulting beer, is now restricted to plants with a specific mutation which can influence the content of these flavours.

Originally, the patent covered all plants with a reduced content of some undesirable flavours.

The No Patents on Seeds pressure group said that it plans to appeal the decision as it is “only a partial success” and has called on politicians to take action.

The group had called on European politicians to speak out against companies abusing the patent system so that the EPO “will once again be reminded of their continuing responsibility to protect the common good”.


The EPO's Web site has not said a word about it. The Twitter account of the EPO did not mention it either. Yesterday the EPO instead chose to belatedly post this nonsense: (warning: epo.org link)

The 58th series of Meetings of the Assemblies of the member states of the World Intellectual Property Organization (WIPO), which took place from 24 September to 2 October 2018, provided a unique opportunity to take stock of the progress in co-operation activities, and to define future directions. The EPO agenda included over 45 official meetings with national patent offices from other regions.

The meetings aimed to further strengthen relations with a number of strategic partners; these take the form of comprehensive co-operation plans which aim to streamline patenting procedures while building up national capacities, and to deliver high-quality training and assistance to the partner offices.

IP Australia officially joined the Cooperative Patent Classification (CPC) family by signing Memorandum of Understanding (MoU) on the CPC together with a comprehensive biannual work plan. This brings to 28 the number of offices classifying their patent documentation using this highly refined system. Other important developments were the signing of MoUs on co-operation with the National Institute for the Defense of Free Competition and the Protection of Intellectual Property of Peru (INDECOPI), the Gulf Cooperation Council (GCC), and the Eurasian Patent Office (EAPO). The EPO also renewed its MoU on co-operation with the Superintendence of Industry and Commerce of Colombia, a user of EPOQUE Net.


Seeing the European Patent Office in bed with WIPO (whose abuses can be similar at times) is hardly surprising. Both institutions are patent maximalists who more or less disregard science for the sake of lawyers. Patent offices were never meant to be pipelines for litigation; that kind of changed when a patent lawyer was put in charge of the USPTO, whereas the EPO got itself a politician in charge (and now a former banker).

Recent Techrights' Posts

Security Isn't the Goal of Today's Software and Hardware Products
Any newly-added layer represents more attack surface
Godot 4.2 is Approaching, But After What Happened to Unity All Game Developers Should be Careful
We hope Unity will burn in a massive fire and, as for Godot, we hope it'll get rid of Microsoft
Purge of Software Freedom and Its Voices
Reprinted with permission from Ryan Farmer
 
Links 25/09/2023: Patent News and Coding
some remaining links for today
Steam Deck is Mostly Good in the Sense That It Weakens Microsoft's Dominance (Windows)
The Steam Deck is mostly a DRM appliance
SUSE is Just Another Black Cat Working for Proprietary Giants/Monopolies
SUSE's relationship with firms such as these generally means that SUSE works for authority, not for community, and when it comes to cryptography it just follows guidelines from the US government
IBM is Selling Complexity, Not GNU/Linux
It's not about the clients, it's about money
Birthday of Techrights in 6 Weeks (Tux Machines and Techrights Reach Combined Age of 40 in 2025)
We've already begun the migration to static
Linux Foundation: We Came, We Saw, We Plundered
Linux Foundation staff uses neither Linux nor Open Source. They're essentially using, exploiting, piggybacking goodwill gestures (altruism of volunteers) while paying themselves 6-figure salaries.
Linux Too Big to Be Properly Maintained When There's an Incentive to Sell More and More Things (Complexity and Narrow Support Window)
They want your money, not your peace of mind. That's a problem.
Modern Web Means Proprietary Trash
Mozilla is financially beholden to Google and thus we cannot expect any pushback or for Firefox to "reclaims the Web" a second time around
GNU/Linux Has Conquered the World, But Users' Freedom Has Not (Impediments Remain in Hardware)
Installing one's system of choice on a device is very hard, sometimes impossible
Another Copyright Lawsuit Against Microsoft (or its Proxy) for Misuse of Large Works by Chatbot
Some people mocked us for saying this day would come; chatbots are a huge disappointment and they're on very shaky legal ground
Privacy is Not a Crime, Reporting Hidden Facts Is Not a Crime Either
the powerful companies/governments/societies get to know everything about everybody, but if anyone out there discovers or shares dark secrets about those powerful companies/governments/societies, that's a "crime"
United Workforce Always Better for the Workers
In the case of technology, it is possible that a lack of collective action is because of relatively high salaries and less physically-demanding jobs
GNOME and GTK Taking Freedom Away From Users
Reprinted with permission from Ryan Farmer
GNOME is Worse Today (in 2023) Than When I Did GTK Development 20+ Years Ago
To me it seems like GNOME is moving backward, not forward, mostly removing features and functionality rather than adding any
HowTos Are Moving to Tux Machines
HowTos (or howtos) are very important in their own right, but they can easily distract from the news and howtos are usually quite timeless or time-insensitive
Proprietary Panda: Don't Be Misled by the Innocent Looks of Ubuntu (and Microsoft Canonical)
Given the number of disgruntled employees who leave Canonical and given Ubuntu's trend of just copying whatever IBM does in Fedora, is there still a good reason to choose Ubuntu?
Debian GNU/Linux is a Fine Operating System, But What if People Die Making It for Somebody's Corporate/Personal Gain?
Will companies that exploited unpaid volunteers ever be held accountable for loss of life, caused by burnout, excessive work, or poverty?
Links 24/09/2023: 5 Days' Worth of News (Catchup)
Links for the day
Leftover Links 24/09/2023: Russia, COVID, and More
Links for the day
Forty Years of GNU and the Free Software Movement
by FSF
Gemini and Web in Tandem
We're already learning, over IRC, that out new site is fully compatible with simple command line- and ncurses-based Web browsers. Failing that, there's Gemini.
Red Hat Pretends to Have "Community Commitment to Open Source" While Scuttling the Fedora Community (Among Others)
RHEL is becoming more proprietary over time and community seems to boil down to unpaid volunteers (at least that's how IBM see the "community")
IBM Neglecting Users of GNU/Linux on Laptops and Desktops
Reprinted with permission from Ryan Farmer
Personal Identification on the 'Modern' Net
Reprinted with permission from Ryan Farmer
Not Your Daily Driver: Don't Build With Rust or Adopt Rust-based Software If You Value Long-Term Reliance
Rust is a whole bunch of hype.
The Future of the Web is Not the Web
The supposedly "modern" stuff ought to occupy some other protocol, maybe "app://"
YouTube Has Just Become Even More Sinister
The way Google has been treating the Web (and Web browsers) sheds a clue about future plans and prospects
Initial Announcement of GNU (for Gnu's Not Unix) on September 27, 1983
History matters
Upgrade and Migration Status
Git is working, IPFS is working, IRC is working, Gemini is working
Yesterday in the 'Sister Site', Tux Machines (10 More Stories)
Scope-wise, many stories fit neatly into both sites, but posting the same twice makes no sense logistically
The New Techrights Will be Much Faster
A prompt response to FUD is important. It's time-sensitive.
Slanderous Media Campaigns Trying to Link Linux to 'Backdoors'
Backdoors are typically things that exist by design or get added intentionally (ask Microsoft!), but when it comes to "Linux" in the media the rules are different
The Spamification of GNU/Linux News Sites (or the Web as a Whole) and Why It's Time to Move on, Writing More Stories and Analysis
If you are an enthusiastic Free software user, consider setting up a blog or GemLog (Gemini log)
Techrights is Upgrading
Over the next few days Techrights will be archiving over 40,000 older pages
YouTube Was Never Free Hosting and It Turns Hard-Working People Into Hostages
An accusation, with presumed guilt, seems sufficient for some
The Right to Strike Underutilised by Workers in the Technology Sector
Geeks need to learn how to strike, too.
Welcome to the New Techrights
Looking ahead, we'll probably produce more stories than before because lessening the underlying complexity lets us focus on substance
A Short History of Content Management Systems or Data Shuffles in Boycott Novell and Techrights
In 2006 the site was 'purely' WordPress
GNU Turns 40 This Coming Week
4 decades of "4 Freedoms" show the world that the original definition withstood the test of time