Bonum Certa Men Certa

Declining Patent Quality and Lies About Software Patents at the EPO

Decreasing credibility, improved PR

António Campinos FTI



Summary: The quality of patents -- and the legal certainty associated with them -- has collapsed even further under the new management; even insiders can recognise the difference, but they just can't speak about it publicly (for fear of retaliation)

WE REGRET to say and to see that nothing has changed for the better under António Campinos, except the whitewashing. As insiders can attest/say anonymously -- as some do -- things have gotten even worse in some aspects.



"The relationship may nowadays seem symbiotic because the EPO is also publicly supporting patent trolls."Yesterday we saw the European Patent Office (EPO) once again associating with patent extremists who attack courts and attack judges, having already attacked a technical Director of the U.S. Patent and Trademark Office (USPTO) until she was replaced by Iancu, who serves law firms and patent trolls, not science and technology. The relationship may nowadays seem symbiotic because the EPO is also publicly supporting patent trolls. This wasn't always the case. Far from it...

Not too long ago the EPO set up a conference that invited patent trolls to lead a discussion (as lead panelists, not just conferees), promoting illegal software patents in Europe under the guise of "blockchain". The EPO brought that up again yesterday when it asked: "How does CNIPA deal with #blockchain patents?"

"Well, the EPO even granted patents on chewing gums."The EPO also retweeted this nonsense which said: "There are 5,050 #patents related to #skiing in the @EPOorg database ... #IntellectualProperty is everywhere..."

Well, the EPO even granted patents on chewing gums. EPO insiders are joking at this; they're upset to see the rapidly-declining quality of European Patents these days. Judges too seem to be realising that there's an issue.

A new press release, pinned in Associated Press and elsewhere, speaks of a patent being revoked. To quote:

Today the European Patent Office revoked Pacific Biosciences patent EP3045542 with claims to a single molecule sequencing process wherein two strands of DNA are linked by a connecting nucleic acid. The validity of the patent had been challenged by Oxford Nanopore.

The EPO ruled that the claims to a single molecule sequencing process were unsupported in the application and that the application only supported a template-directed synthesis sequencing method. As Pacific Biosciences were unwilling to accept this change, the patent was revoked.


Life Sciences Intellectual Property Review, which promotes patents on life, soon caught up and wrote about the EPO's granting of invalid European Patents (and then taking these away):

The European Patent Office (EPO) has revoked a patent held by a US biotechnology company, Pacific Biosciences, after its UK-based rival Oxford Nanopore Technologies challenged the validity of the patent.

Oxford Nanopore announced the news in a press release today, January 23. The EPO granted Pacific Biosciences the now-invalidated patent (EU number 304552) in 2016 for “methods for nucleic acid sequencing”.


This has also just happened at the UK High Court (at great cost). As this press release [1, 2] put it, "Regen Lab had attempted to enforce its European Patent No. 2073862 against Estar Medical who, in turn, counter-claimed that the patent was invalid."

Here's more, with some context:

Regen Lab's patent was challenged by Estar Medical. This UK judgment adds to the recent German court's decision denying Regen Lab's patent infringement claim against Estar Medical, the European Patent Office preliminary opinion which found the same Regen Lab patent to be invalid on multiple grounds and the venue judgment in New York in which Regen Lab lost its case against Estar Medical.

[...]

Regen Lab had attempted to enforce its European Patent No. 2073862 against Estar Medical who, in turn, counter-claimed that the patent was invalid. The UK Court agreed with Estar Medical's position and revoked the patent. In its ruling, the UK Court stated that the Regen Lab patent "is invalid for lack of novelty and inventive step. Regen's application to amend the Patent is refused on the ground that the amended Patent would still be invalid". The court also found Regen Lab's owner and CEO, Mr. Antoine Turzi, to be "not a reliable witness". Estar Medical is pleased that the UK Court ruled in its favor, agreeing that the Regen Lab patent lacks both novelty and inventive step. Estar Medical has remained confident throughout the case of its ability to sell its leading products in the UK and elsewhere and is gratified to see that confidence affirmed by the UK Court.


It ought to be clear by now that there's a severe patent quality problem and the public pays for it; who profits? Lawyers.

Isobel Finnie (Haseltine Lake LLP) has just commented on a subject which is often discussed these days:

Second medical use claims are used before the European Patent Office (EPO) for inventions involving additional or improved treatments using already known drugs. For example, using a known drug to treat a different disease or changing the dosage regimen of a known drug to provide a better effect or to treat a different patient group. In the context of second medical use claims the EPO has made it clear that the therapeutic effect must be made plausible...


The problem, however, is that there's no potent body to enforce rules; the appeal boards, for instance, are about 10,000 cases behind and there's no recruitment, there's no pretense that this kind of backlog the EPO's management wants to bother with. Moreover, the appeal boards still lack independence.

In the meantime, as usual, more software patents are being granted; they're just disguised using fashionable buzzwords. Yesterday the National Law Review published for a law firm (as usual, as the site serves their agenda) an article from Michael T. Renaud. "As previously discussed," he wrote, "the European Patent Office (EPO) issued new guidelines for the patentability of artificial intelligence (AI) and machine learning (ML) inventions. These guidelines create a seemingly insurmountable threshold for patentability of AI and ML inventions. However, patenting AI and ML inventions within this framework is possible and even predictably likely with historical knowledge of the EPO’s examination practice coupled with creative strategies for the new patentability challenges."

"Until or unless the EPO takes patent scope and patent quality seriously (those two things are intertwined and related) it does not work for Europe but for law firms and patent trolls."These are just software patents. The EPO has just tweeted: "How does the EPO deal with the challenges of AI in patent applications? Find out here: http://bit.ly/AIpatents"

There is no such thing as "AIpatents"; those are just software patents where algorithms are spun as "AI". As usual, however, the Office keeps granting software patents in clear defiance of its own rules, the EPC, EP, courts and common sense. Why does it get called "European Patent Office" if it's there just to harm Europe? That's what I told the FFII's President after he had pointed out this new article from Rose Hughes of IP Kat, in which she promoted European software parents. Here's one example:

WO2018064591 (Generating video frames using neural networks, see full file here) has now entered the EP regional phase, i.e. it is now in the hands of the European Patent Office. DeepMind took the unusual step of entering the EP regional phase early (5 months before the January 2019 deadline). The majority of applicants wait until the deadline for entering the EP regional phase. Applicants generally request early entry when they wish to achieve a quick grant. Given that DeepMind has purportedly indicated that their patent strategy is defensive, why the hurry?


"EPO Examiner observed that the claimed method had the technical effect of decreasing the computational requirements to generate audio waveform," Benjamin Henrion quoted and then added: "it is a computer program dude..."

Until or unless the EPO takes patent scope and patent quality seriously (those two things are intertwined and related) it does not work for Europe but for law firms and patent trolls. It's a sad but real reckoning to some insiders -- that realisation that joining the EPO did not mean helping to advance science but to sabotage it.

Recent Techrights' Posts

Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
 
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day