Bonum Certa Men Certa

EPO and UPC in Europe Now the Hope of Patent Maximalists, China Too is Assimilating

Unitary Patent
Picture from FFII



Summary: A form of globalisation or unification among patent offices, courts and policies can serve to highlight the great role played by rich and powerful monopolists, including their rich lawyers who profit from protectionism

Patent monopolies, including monopolies on algorithms, are not going away quite so fast. There is resistance from very rich entities. These patents need to be squashed faster than they spread to more continents. There is a struggle between practitioners and lawyers, similar to the military industrial complex conflict with a peace-seeking public. The disparity between public will and moneyed interests (promoted to the public through corporate media) is not unique. The press likes to quote patent lawyers (almost exclusively) on patent-related matters, perpetuating a cycle of ignorance that we also view as overly prevalent in the copyright debate (propaganda terms/words like "intellectual property" and "pirates" don't help).



"There is a struggle between practitioners and lawyers, similar to the military industrial complex conflict with a peace-seeking public."Despite being corrupt, the EPO, which promotes software patents in Europe, has not come under scrutiny for years. There is some very blatant article from patent lawyers, titled "securing software patents through the EPO", and it says: "In June 2014 the US Supreme Court provided its opinion in Alice Corporation v CLS Bank. This is the latest in a number of decisions from the higher US courts which confirm the considerable uncertainty which has existed in the United States in recent years as to the boundary between what is and is not patentable. The Supreme Court’s opinion follows a high-profile decision from the US Court of Appeals for the Federal Circuit in which the court sat en banc and reached what one of its judges referred to as “judicial deadlock”, such was the disagreement as to what should be patentable and how patentability under the US statute should be assessed."

Further down it says: "Some European practitioners could be forgiven for feeling a sense of déjà vu on reading the Supreme Court’s opinion. After a rocky few years in the late 1990s and the early part of the 21st century, the European Patent Office (EPO) has now adopted an approach which is intended to focus only on the technical features of a claim when assessing patentability. That is, the mere presence of a computer or a generic computer implementation cannot in itself save subject matter from exclusion from patentability. In order to be patentable, an invention must provide a technical solution to a technical problem defined with reference to the closest prior art, and features excluded from patentability cannot contribute to the technical solution which the invention provides. In practice, it seems that this is a slightly different route to arriving at the position advocated by the US Supreme Court in its latest opinion – the invention itself must lie outside the abstract (in the United States) and outside the specifically excluded subject matter (in Europe)."

As we showed before, while USPTO reluctantly but surely moves away from software patents Europe goes the opposite way.

Here is another pro-patents blog (of lawyers) uttering some sentiments about patents in Europe, stating that "Pro-patent bias is a serious risk at the Unified Patent Court" (that's the headline). To quote a key part: "‘When all you have is a hammer, everything looks like a nail.’ At the EU Patent Package Congress in Brussels, organized on 17 October by the universities of Antwerp en Louvain attended by Kluwer IP Law, several speakers tackled the issue: is the creation of a specialized court for patent litigation necessarily positive?

"For companies and innovation the answer, in theory, is yes. That’s why the Unified Patent Court (UPC) was created in the first place. Patent litigation would be centralized, and lawsuits in a large number of countries would no longer be necessary. Life was going to be a lot easier.

"But specialization has its downsides too, critics in Brussels warned. The hammer metaphor has been used since the sixties of the last century to warn for overreliance on familiar tools or systems. In Brussels it was quoted by Rochelle Dreyfuss, a prominent IP and litigation expert from the US, to refer to the pro-patent bias that developed in the US Court of Appeals for the Federal Circuit (CAFC).

"The CAFC was created in 1982 to handle all patent cases. The first 15 years of its decisions, only eight cases were reviewed, four of which were on procedural grounds. But over the last 15 years, the Supreme Court reviewed more than thirty cases, mostly placing stricter limits on substantial issues: patentability, validity and scope of patents, remedies."

CAFC has been abducted by pro-patents lawyers, so we know how that goes. Finally, quoting another lawyers' blog (IPKat), there are issues surrounding the UPC. Just published over at the IPKat was also this analysis about bad behaviour at the EPO:

For a considerable time, both the IPKat and Merpel have received a steady stream of emails seeking to bring to their attention certain allegations concerning a Vice-President of the European Patent Office. Until recently, the nature of these allegations has been rather difficult to verify, since the sources have been invariably pseudonymous, and any corroborating information available in Croatian only. The IPKat is a site for community discussion of intellectual property law, not an investigative journalism site, and Merpel does not have the resources to undertake independent investigations.

Recently however, Merpel has been alerted to some further developments that are both newsworthy and raise some interesting legal issues. In particular, she has been informed that a Petition has been filed with the European Parliament, asking the European Parliament to investigate the appointment of Mr. Željko Topić as the Vice-President of Directorate-General 4 of the European Patent Office back in March 2012. Mr Topić had previously been Director General of the State Intellectual Property Office of the Republic of Croatia since 2004. In formation about the background to this, and a copy of the Petition itself, can be seen here (which is the same link as the first in this paragraph). The complaints about the suitability of Mr Topić for office relate to allegations about his previous position.


"It references one of the Techrights articles so it seem like the series is starting to have an effect," added one of our readers.

André Rebentisch (FFII) writes in the comments: "It is possible to empower the European Parliament to bring its questions to the attention of the EPO presidency by an inter-institutional treaty.

"In any case it seems advisable to harmonise substantive patent law within the European Union to make it part of the Acquis. The EPO is not authorised by its treaties to become a legal harmoniser of national patent laws, a de-facto role it successfully pursued."

China too seems to be going down the path of creating new courts for dealing with patents, which is bad news. It means that the patent maximalists are gaining influence in the big system. Here is one relevant report from China:

A special court for intellectual property rights (IPR) cases will open in Beijing early this month, said the Supreme People's Court (SPC) here Monday.

Two similar courts in Shanghai and Guangzhou will open by the end of this year, said Wang Chuang, deputy head of the IPR division with the SPC.


It is funny to see China using the 'IP' term which is typically used to insult China.

All in all what we have here is a sort of coup d'état by patent lawyers and their clients. They need to be stopped.

Recent Techrights' Posts

Over at Tux Machines...
GNU/Linux news for the past day
Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
 
Software Enshittification or Freedom? It's not a hard choice!
Reprinted from Alexandre Oliva
Links 09/05/2024: More Microsoft Layoffs on the Way
Links for the day
Amid Microsoft Layoffs in Nigeria GNU/Linux Climbs Above 6% Market Share (Not Including ChromeOS)
Hundreds are being laid off by Microsoft in Nigeria, based on yesterday's reports
[Meme] Blame the Robots or the 'Hey Hi' (AI), It Always Works in Today's Media
Companies do not have financial troubles! They have "efficiencies"...
News Reports Say Many More Microsoft Layoffs on the Way, Rumours Say Red Hat Also Imminently a Target
Microsoft is slipping out of control
Links 09/05/2024: Diplomacy Efforts With China, AstraZeneca Stops Experimenting With COVID-19 Vaccines
Links for the day
IRC Proceedings: Wednesday, May 08, 2024
IRC logs for Wednesday, May 08, 2024
Gemini Links 09/05/2024: Registered Computer Professionals and TLS (The Long Slog)
Links for the day
Links 08/05/2024: Android Malware and "AI" Hype
Links for the day
[Meme] Technical Committee With People Who Are Not Technical
the computing/computer industry being occupied by people who lack suitable background
The Demise of Computer Science Education
Education is essential for the future; without it, whole nations will perish
[Video] Prisons for the Minds and for Tech Workers
Today's video talks about what happens to workforces (across disciplines) in recent years
[Meme] Struggling to Leave Its Nazi Past Behind
digital arson
Microsoft Declines to Talk About How Many People It Has Just Laid Off
Hours ago in IGN: "Microsoft did not say how many staff will lose their jobs, but significant layoffs are inevitable. IGN has asked Bethesda for comment. Microsoft declined to expand further when contacted by IGN."
Microsoft Windows in South America: From 99% to 87%
the latest from statCounter
It's Rather Obvious Why They Try to Silence Richard Stallman, Eben Moglen, and Daniel Pocock
Some of them already sent physically menacing messages to Daniel Pocock
IRC Network of Techrights Turns 3 (or 16 if We Count the Freenode Days)
In a few months IRC turns 36
Sedating Oneself (and Shareholders) With Fuzzy Buzzwords and Pointless Acquisitions
IBM trying to buy time
Clickfraud Spamnil Ran Out of Clickfraud Budget, Apparently
sooner or later charlatans and frauds run out of steam
Techrights Gets Under the Skin of Bad, Corrupt, Immoral People (That's a Good Thing)
Journalism is the lifeblood of democracy and free societies
Companies Do Not Shut Down Offices and Lay Off Staff en Masse (Morale and Reputation Issue) Unless They're in Deep Financial Trouble
Microsoft has been faking its financial performance for years
IRC Proceedings: Tuesday, May 07, 2024
IRC logs for Tuesday, May 07, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Video] Leaving Microsoft Behind for the Sake of National Security
Threats to "National Security" aren't some users with an Android phone but Microsoft at the root of things
GNU/Linux and ChromeOS Now at 6% in France, According to statCounter
numbers from statCounter
Gemini Links 07/05/2024: Music Spotlight and Network Knobs
Links for the day
Only Weeks After Microsoft Closed Offices and Studios It is Closing Several More (Many Layoffs, Still Deeply Debt-Saddled)
When the sad news writes itself
Bolivarian Republic Of Venezuela: GNU/Linux Reaches 9% (ChromeOS Included)
Venezuela must have lost interest in some American proprietary software when users were locked out of their own data (Adobe) and the costs could no longer be justified
[Video] Microsoft is Like Big Oil, Big Tobacco, and Other Perpetrators of Fear, Uncertainty, Doubt/Fear-mongering
openwashing, Microsoft lobbying, and Microsoft subsidies (e.g. bailouts in the form of 'defence' contracts)
Security & Debian: Urgent: New Feed URLs after another WIPO censorship
Reprinted with permission from Daniel Pocock
World Press Freedom Day: WIPO censors Debian suicide cluster
Reprinted with permission from Daniel Pocock
Gemini Links 07/05/2024: Smashing Windows (Moving to GNU/Linux) and Mastodon Time-wasting
Links for the day
Links 07/05/2024: Pulitzer for Supreme Court Expose, New Threats to Media Reported
Links for the day
Links 07/05/2024: Cheap EVs and Cloudflare Layoffs
Links for the day
Berlin police declined to investigate FSFE Nazi comparisons
Reprinted with permission from Daniel Pocock
[Meme] Communities Governed by Parasitic Elements and Girlfriends (Who Can't Understand Those Communities)
Karen Sandler and Molly de Blanc present at DebConf18
[Meme] You Can't Kill an Idea (or Facts)
Thankfully, in Western societies, there's still due process, rule of law etc. You don't just hire assassins or imprison critics
[Meme] Software in the Public Interest (SPI), Inc, Values Articles of Daniel Pocock at ~$5,000 Each (and Fails to Hide the Facts)
we are laughing, not grieving
IRC Proceedings: Monday, May 06, 2024
IRC logs for Monday, May 06, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] About 2,564 Internet Sites Now at Risk of Hostile Takeover by Microsoft-Sponsored Software in the Public Interest (SPI)
WIPO censors Debian suicide cluster
Links 07/05/2024: Burning Plastic Waste, Facebook Censoring Politicians
Links for the day
Gemini Links 07/05/2024: Smashing Windows (Microsoft Losing Users to GNU/Linux), Sixty Years of BASIC
Links for the day