Bonum Certa Men Certa

EPO Makes Guidelines for Examination That Formally Allow Software Patents in Defiance of European Law

AI hype at EPO



Summary: The whole "HEY HI!" (AI) nonsense is making its way into guidelines for EPO examiners; this means that even when they're facing patent applications that are ineligible/unsuitable due to them being on algorithms the management will be able to impose/force a grant (in violation of the EPC), leaving courts to clean up this mess (if accused parties can afford lengthy court battles)

"HEY HI HEY HI HEY HI HEY HI!" (AI)

Repeat that with us. HEY HI. HEY HI. HEY HI.

It's the new craze. It once meant things like machines that learn stuff from data to form classifiers; nowadays it often literally means "computer" or "algorithm" or "automation".

"Does a device do something clever? HEY HI!"Does some computer replace a human job? Does it automate a task? HEY HI!

Does a device do something clever? HEY HI!

This lunacy is being formalised not only by the European Patent Office (EPO) but also by the U.S. Patent and Trademark Office (USPTO), where the number of granted patents grew again (more on that in our Daily Links; it's just indicative of decline in patent quality).

"I myself developed several machine learning programs a long time ago, as far back as my teenage years. It's neither new nor emergent."The HEY HI hype started under Battistelli. So it obviously continues under António Campinos, his 'ginger replica'. They lobby for software patents in Europe under the guise of HEY HI! Who in their right minds would oppose something with "intellectual" or "intelligence" in the name??? Who???

I myself developed several machine learning programs a long time ago, as far back as my teenage years. It's neither new nor emergent. And it's all just algorithms; it's maths, notably statistics (a branch of it). As Benjamin Henrion has just noted, "IBM Belinda Gascoyne lobbying for software patents once again at WIPO" ("WIPO Conversation on Intellectual Property and Artificial Intelligence"). WIPO and by extension the UN has swallowed all this "HEY HI" Kool-Aid, which was 'waterboarded' down its throat by the likes of IBM, possibly the world's biggest proponent of software patents. IBM does this everywhere, from NZ in the east to India in the nearer east, Europe at the centre (of the map) and of course the US in the west (we covered examples from each; IBM lobbies for that everywhere).

"Suffice to say, the EPO still hopes to toss out the courts themselves."Suffice to say, the EPO is still allowing bogus patents to be granted provided they're disguised as "HEY HI" ("AI"). Just figure out some way to spin your implementation as "AI" and an examiners will be pressured to grant that because, as the EPO has just put it: "The Guidelines for examination 2019 are now available online for preview."

There's something similar in the US right now, but we try to focus on Europe. Laurence Lai published this article about those guidelines for examination only hours ago; the first item in the list is about making software patents acceptable in the EPO even though these are clearly illegal and European courts would reject these. To quote:

The European Patent Office has today published an advance preview of its annual update to the Guidelines for Examination which will come into force on 1 November 2019.

[...]

1. Technical character of artificial intelligence inventions

Last year, a new section discussing the patentability of AI and machine learning claims was added. This has already been updated in the new Guidelines to soften the stance on features such as “support vector machine”, “reasoning engine” or “neural network”.

Previously considered to usually be devoid of technical character, EPO examiners are now expected to take into account whether the context of these features contribute to the technical character of a claim as a whole. A positive finding on technical character is an important factor in establishing an inventive step.

Additionally, the computational efficiency of an algorithm is now considered to contribute to the technical character of an invention if a technical effect of the computer program has already been established.

The EPO is therefore taking a step forwards towards recognising contributions that machine learning and efficient algorithms can make as patentable inventions.


This means more awful patents, or European Patents that courts would toss out (if one could afford the court battle).

Suffice to say, the EPO still hopes to toss out the courts themselves. It wants some phony "unified" courts that it better controls and Steptoe & Johnson LLP (Michael Thompson and Paul Hughes to be specific) has just posted this clueless analysis which says UPC has "been developed..."

"If the UPC or something like it ever materialised, it's pretty clear who would benefit the most: patent trolls with software patents."It was drafted, but it's dead. It's not happening due to EPO corruption for the most part. The EPO's disregard for the EPC is very much visible to all, including the FCC in Germany. To quote the full sentence: "Within the EU, the Community Trademark, the Registered Community Design and Unregistered Community Design Rights, and Unitary Patent have been developed, giving the owners of such IPRs greater jurisdictional reach across all EU Member States."

Not the case with patents though. Not yet. Probably never. If the UPC or something like it ever materialised, it's pretty clear who would benefit the most: patent trolls with software patents. That's the American classic (trolls typically rely on these patent families). Team UPC is consciously lying on behalf of SMEs it's looking to hurt and Henrion has said/quoted (this week): "When reading the preceding blog, it also becomes abundantly clear, that the UPC is not for SMEs, and in view of the attitude of certain EU members towards the UPC for some European Countries like Poland."

"Businesses wake up, politicians stand to defend them, and judges sooner or later realise that their integrity too is under assault."People are pushing back. Businesses wake up, politicians stand to defend them, and judges sooner or later realise that their integrity too is under assault.

Not that the EPO's managers care. The EPO hates judges and loves trolls. The EPO has retweeted a front group of patent trolls once again, even twice in a short period of time [1, 2]. Today's EPO works for trolls, not for scientists. It lies, it cheats, it blackmails people. Just like the trolls do.

Incidentally, hours ago IP2Innovate wrote about this problem. There's a new press release available as HTML (or as PDF) and they alerted us about it over IRC, so we've decided to reproduce it below. Here's their vision of Europe:

Industry calls on upcoming EU Commissioner for Internal Market to bring greater balance to Europe’s patent legal system and adapt it to the digital age



Ahead of the parliamentary hearing of the EU Commissioner-designate for the Internal Market Sylvie Goulard, the cross-sector industry coalition IP2Innovate sent a letter to the Commissioner-designate urging her to take steps as part of her mission to bring balance to Europe’s patent system to ensure it supports the region’s digital growth ambitions and enhances competitiveness in critical technology sectors.

Commission President-elect Ursula von der Leyen in her mission letter to Goulard asked her to “take a close look at [EU’s] intellectual property regime to ensure that it is coherent, is fit for the digital age and supports our competitiveness”. According to IP2Innovate, an effective and balanced patent legal system is an important prerequisite for Europe to be able to compete globally in the next frontier of technologies, such as blockchain and artificial intelligence. Unfortunately, the experience of IP2Innovate member companies, and many other European innovators, is that Europe’s patent system presently lacks this necessary balance, making it harder for companies to scale up and bring new products to market rapidly.

“In the digital age, products are increasingly complex, often covered by thousands of patents, which make them constantly subject to patent disputes”, IP2Innovate said in its letter to the Commissioner-designate. “Because the practice of many European courts is to issue automatic injunctions upon a finding of infringement, without considering a remedy that could be more proportionate, an accidental infringement of just one patent among many others can result in removing from the market a product necessary to access digital goods or services”.

According to IP2Innovate, this situation makes Europe more and more attractive to Patent Assertion Entities (PAEs), also known as “patent trolls”, who buy up patents only to assert them against innovative companies, including SMEs, and extract high settlement. These entities increasingly target the ICT-industry, central to growth and innovation across many industries.

Under the leadership of Commissioner-designate Goulard, IP2Innovate calls on the European Commission to take concrete steps to bring greater balance to Europe’s patent legal system to support the region’s digital growth ambitions and secure its competitiveness in critical technology sectors.


This pretty much echoes what they say every year and what we've been saying for many years. IP2Innovate is fronting for (mostly) technology companies; those who throw insults at IP2Innovate are almost always law firms and their front groups. That speak volumes, does it not?

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
 
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