The EPO's "look over there!" moment -- as usual timed to take place a week or so before the Administrative Council reconvenes

Summary: Don't lose sight of the appalling behaviour of the management of the EPO; the last thing it wants is press coverage about its gross abuses and corruption -- an aspect it spent literally millions of euros to bury (gaming the news cycle)

THE European Patent Office (EPO) is about to start that stupid (and wasteful) "Inventor" festival. Managers past and present use this ceremony of theirs for political purposes (politicians are, as usual, attending after being invited). We're mostly interested in seeing whether António Campinos and judge Battistelli (yes, he was made a judge in this competition) choose to give an award to European software patents (there are several contenders of this kind, but we've focused on one). How low can patent quality (or validity) go while still receiving a special prize?

As usual, this festival is timed to almost coincide with the meeting of the Administrative Council -- something which we never regarded as a coincidence. Will that stupid festival impress the bands of lawyers and bureaucrats, who conveniently look the other way when patent quality or validity etc. (as determined by actual courts with technical expert witnesses) are discussed?

"As usual, this festival is timed to almost coincide with the meeting of the Administrative Council -- something which we never regarded as a coincidence."Over the past couple of days we saw no news about the social injustices at the EPO; SUEPO has said nothing and it only posted a link to an article about work atmosphere (not EPO-specific). Remember that none of these issues have been addressed and resolved, let alone discussed. Nothing at all is improving on that front and the same goes for patent quality. Quality of the workplace and the work alike suffer profoundly.

This post takes stock of the latest writings that pertain to patent quality or scope.

Earlier this week Isobel Finnie and Joanna Rowley (Haseltine Lake LLP) wrote about patents covering life and nature even though humans did not invent these; this is thievery, enabled by patent offices which only care about granting more and more patents. Rowley and Finnie have provided some background and an explanation of where things stand:

This amendment came as a surprise to many in the field because it created a conflict between Rule 28(2) EPC and Article 53(b) EPC as interpreted by Broccoli/ Tomatoes II. Soon enough a case came before the Boards of Appeal (T 1063/18) in which a patent application had been refused by an Examining Division for the sole reason that the invention was deemed to be a plant product exclusively obtained by essentially biological processes. In brief, the invention related to a "cultivated blocky fruit type pepper plant" and the only method described in the application for obtaining the pepper plant was an essentially biological process, namely crossing two previously known peppers followed by selfing and conventional pedigree selection to create stable fixed inbred lines. The Board in T 1063/18 held that the Articles of the EPC as interpreted by the Enlarged Board of Appeal must prevail over the Rules (in accordance with Article 164(2) EPC) and hence, Rule 28(2) EPC must be considered void. The Board of Appeal considered the law on this issue to be clear and hence a referral to the Enlarged Board of Appeal was not justified.

[...]

The EU Biotech Directive and Article 53(b) EPC clearly state that essentially biological processes for the production of plants or animals are not patentable, but are silent with regard to the patentability of plant and animal products exclusively obtained by means of such essentially biological processes. In 2015 the Enlarged Board of Appeal ruled that such products are patentable (G2/12 and G2/13, often referred to as "Broccoli/Tomatoes II"). This was seen as a positive step by agrochemical companies using the patents system and many commentators thought the issue was settled.

However, shortly afterwards in 2016 the European Commission issued a Notice (2016/C 411/03) stating that the EU Biotech Directive was intended to exclude products obtained by essentially biological processes from patentability, even though it didn't explicitly say so. Although this Notice was not legally binding it added to the existing pressure on the EPO from certain member states and political groups. The Administrative Council of the EPO responded by adding Rule 28 part (2) EPC, which states "Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process."

This amendment came as a surprise to many in the field because it created a conflict between Rule 28(2) EPC and Article 53(b) EPC as interpreted by Broccoli/ Tomatoes II. Soon enough a case came before the Boards of Appeal (T 1063/18) in which a patent application had been refused by an Examining Division for the sole reason that the invention was deemed to be a plant product exclusively obtained by essentially biological processes. In brief, the invention related to a "cultivated blocky fruit type pepper plant" and the only method described in the application for obtaining the pepper plant was an essentially biological process, namely crossing two previously known peppers followed by selfing and conventional pedigree selection to create stable fixed inbred lines. The Board in T 1063/18 held that the Articles of the EPC as interpreted by the Enlarged Board of Appeal must prevail over the Rules (in accordance with Article 164(2) EPC) and hence, Rule 28(2) EPC must be considered void. The Board of Appeal considered the law on this issue to be clear and hence a referral to the Enlarged Board of Appeal was not justified.

The EPC doesn't govern the Boards anymore; the Office does. The President of the Office does; he blatantly violates the EPC at every turn. This is one among several reasons the UPC will never become a reality. Speaking of the UPC, it looks like Bristows is writing its nonsense anonymously again (it is far too predictable a pseudonym, "Kluwer Patent blogger"). "Adapting the patent system to small companies means abolishing it," Benjamin Henrion said about it. The blog post, which deletes dissenting views/comments (we covered this before), still lacks comments. Interesting. Also found via Henrion is this new post from Alan Johnson. The same people who insisted a decision would be made by the FCC (BVerfG) by last Christmas are at it again. It's coming "real soon!!!" they promise us (as they have for years).

Pressing on, a Rowley and Finnie colleague, Andrew Sunderland (Haseltine Lake LLP), wrote about the EPO's next opportunity to throw out all software patents (but the judges in these cases lack autonomy, by their very own admission, so we doubt this will happen). To quote:

The first question is attempting to establish whether a simulation, by itself, can ever provide a technical effect.

If the EBA deems that a simulation, when taken in isolation, can have a technical effect, then the next question becomes; how can an examiner at the EPO reliably and repeatably assess patentability in such cases. This second question is essentially asking for a test or checklist, based on which an examiner can make an assessment.

The third question is asking whether a simulation, if claimed as part of a design process, could be patentable. Presumably if the answer to the first question is yes, then the answer to this question would also be yes. But a design process may imply a product, and verifying a design implies limitations to the simulation that may have real-world implications.

While the referral is pending, applications, oppositions and appeals in which the decision depends entirely on the answer to the above questions may be stayed at the request of the parties or by the examining or opposition division on its own initiative.

The EBA's answers should provide some useful guidance on how to improve an applicant's chances of successfully protecting simulation-related inventions in Europe. Watch this space for our follow-up article as soon as a decision is issued.

Depending on the outcome of this case, it may be possible to throw out European Patents on algorithms, not only at the courts but also at the Office. We've meanwhile noticed McKee Voorhees & Sease PLC's Gregory “Lars” Gunnerson "Comparing United States and European Patent Law for Software". Both de facto reject patents on software (the courts do), but dishonest patent offices continue granting these fake patents anyway. They leave the mess for the expensive courts and lawyers to deal with. We know at whose expense...

Henrion has just caught up with the article about "HEY HI" (AI) and what top British judges have to say. "UK judge skpetical of patents for AI," he said, "but not the reason that AI is mere computer programs and training data. As an ex-patent specialized judge now at the Highest Court, mmh..."

We've already seen his court throwing out European Patents on algorithms, even as recently as this year.

The EPO and "Programming Eligibility in the United States" are also covered here, in a new article that mentions, 35 U.S.C. § 101, the U.S. Patent and Trademark Office (USPTO), SCOTUS, and the Federal Circuit.

Both places (the US and Europe) grant patents on software -- patents that courts repeatedly reject. They just don't seem to care what the law is or what the rules explicitly say. To quote:

The patent qualification prerequisite at the EPO, that the topic must have a specialized character, is first surveyed without reference to the earlier workmanship. Accordingly, any non-specialized element, i.e., an element from a field prohibited from patentability under 52(2) and (3) EPC, can’t be considered for the evaluation of creative advance, except if the non-specialized component connects with the specialized topic to take care of a specialized issue. The “best in class” ought to be translated as significance the “condition of innovation”, and one of standard expertise in the workmanship is the individual talented in the applicable field of innovation. Fields barred under 52(2) EPC are not viewed as a major aspect of the innovation for the appraisal of imaginative advance. These appraisals are exceedingly emotional and have been liable to significant patent operator and patent inspector ion.

Programming Eligibility in the United States

No place in the United States Patent Act (Title 35 of the United States Code) is programming or PC programs explicitly referenced. Rather, patent law identifying with programming and PC projects is resolved, in any event fundamentally, by choices of the United States Supreme Court (SCOTUS) and United States Court of Appeals for the Federal Circuit (CAFC).

Writing about "medium-sized enterprises (SMEs)" at Lexology, Accura Advokatpartnerselskab's Morten Bruus, Christoffer Ege Andersen and Martin Dysterdich Jørgensen would have us believe anything EUIPO and EPO claim is true. Never mind who funded their so-called 'study'.

From their new article:

A joint EPO & EUIPO study measures the correlation between the IP activities of small and medium-sized enterprises (SMEs) and the likelihood that they will experience a high growth period. The study finds that SMEs applying for patents, trademarks or designs have a greater probability of experiencing growth compared to SMEs that do not. In the process of reaching these conclusions further results are found of particular interest for innovators and IP portfolio managers as well as potential investors- and business partners.

That's complete nonsense, but it's designed to distract from the harsh reality; they actively harm SMEs. They help lawyers and their largest clients, who are typically not even European. Their priority isn't Europe but large applicants, i.e. multinationals. ⬆