Bonum Certa Men Certa

Killing Patent Quality and Encouraging 'Covert' Software Patents Using the Buzzwords Du Jour

Du JourSummary: The epidemic of buzzwords and/or hype waves that are being exploited to dodge or bypass patent scope/limitations, as seen in Europe and the US these days

THE granting of software patents seems to have become routine at the EPO -- to the point where large law firms publicly assert that it's now easier to get such patents from the EPO than from the USPTO. It's a travesty because software patents are unofficially forbidden in Europe. It's like they swapped roles. Good for the US, bad for Europe.

Watch what the EPO has just formally said: "European patent applications related to smart, connected objects are rising rapidly, achieving a growth rate of 54% in the last three years."

"It's a travesty because software patents are unofficially forbidden in Europe."They have tagged this "Industry 4.0" (buzzword) and “4IR”, which is what the EPO calls software patents these days, so they basically brag about granting bogus software patents. This is where supposed 'growth' comes from: bogus software patents.

We aren't bashing EPO examiners; we know they're primarily victims of really terrible management. Battistelli destroyed the EPO and he'll be receiving two more years of salary as a bonus for it. There's no justice in this world. If there was, he would be detained like his padrone.

Anyway, some good people remain at the EPO. They're technical people, i.e. they're not top-level management (Team Battistelli is almost consistently nontechnical and under-qualified).

"We aren't bashing EPO examiners; we know they're primarily victims of really terrible management."The other day Shiri Burema and Rene van Duijvenbode (NLO) wrote about EPO oppositions again, this time too -- like the last time (very recently) -- in a sponsored self-promotional 'report' at IAM. EPO oppositions, as we noted here before, skyrocketed. It's not a modest incline but an explosion. These oppositions come from stakeholders and they represent strong opposition to a lot of patent grants. Patent grants are being disputed by the thousands!

The Opposition Division at the EPO has in fact just thwarted a bad patent. The company with a stake in it issued a press release as a response to that with a slightly modified headline reprinted here. To quote:

In its official opinion, the opposition division of the European Patent Office found the Turzi blood separation patent, which is licensed to Regenlab, to be invalid on the grounds of added matter, lack of novelty and lack of sufficient disclosure

[...]

In this preliminary opinion, the opposition division of the EPO found the Turzi patent to be invalid on the grounds of (i) added matter, (ii) lack of novelty, and (iii) lack of sufficient disclosure. With respect to the prior disclosure issue, the Opposition Division of the EPO found that "it is shown beyond any reasonable doubt that the product was available prior to priority, a prior use had taken place and the features of the product could be investigated."


This is actually the "happy ending"; how many times are staff assigned/belonging to the Opposition Division unable to properly deal with this due to heavy workload? As we pointed out before, the number of oppositions skyrocketed; the Opposition Division did not grow proportionally as far as we're aware. What does it mean? That simply means that many bad patents will continue to slip in and some legitimate oppositions slip through (fail).

"That simply means that many bad patents will continue to slip in and some legitimate oppositions slip through (fail)."Examples? Evidence? We have some new anecdotal ones...

The EPO wrote this a couple of days ago: "How relevant is patenting to the world of AI? That's one of the topics at this event in Munich..."

Well, “AI” is what the patent microcosm often calls software patents these days; this is done in order to disguise the fact that it's nothing but patent-ineligible algorithms. AI is just that. Earlier today we wrote about "blockchaining" of software patents at the EPO. But there are other hype waves and tricks, "AI" is just one of which.

"Well, “AI” is what the patent microcosm often calls software patents these days; this is done in order to disguise the fact that it's nothing but patent-ineligible algorithms."Taking a new example from the US, see the patent microcosm writing about "Artificial Intelligence" and "AI" (both in the headline) in relation to a "medical device" (also in the headline). It sounds like a familiar trick; call algorithms "AI", then say they run on a "device" and add words like "medical" to make it sound like life is at stake. Judge Patrick Corcoran had dealt with a case similar to this just before he was attacked by Battistelli.

Here's another new example, found just earlier today. "In biopharma," it says, "patents are everything. In tech? Not so much. Which is why it was unusual to see a company that's trying to turn software into medicine announce this week that it's bagged several patents."

"Judge Patrick Corcoran dealt with a case similar to this just before he was attacked by Battistelli.""A digital medicine company tries to adopt pharma’s patent game," said the headline, attempting to sort of conflate two separate disciplines. Having come from the software world and earned a Ph.D. in Medical Biophysics, I think I have reasonable grasp/understanding of both. Quite frankly, this is nonsensical. What next? Saying that DNA is "code of life" and thus the equivalent of computer programs? This kind of tiresome journalism, whose goal is to glorify patents (all of them), merely discredits patents. It makes people ask all sorts of 'funny' questions. Questions like, "can thoughts be patented?" (or life itself)

Here's another new example about something called the "Silver Edison Award". Calling an award after the patent troll who was more of a businessman than an inventor? Edison is not what people are led/left to believe. It's almost like mythology.

On the subject of software patents, watch what China's SIPO has just done; it has just granted more software patents because they don't really care about patent quality over there. From the announcement:

Says it received patent licenses (No. ZL 2015 10624219.3, ZL 2015 1 0611519.8), for USB device monitoring method and device based on USB interface granularity, and 32-bit progress and 64-bit progress alternate injecting method and device


Well, they use the word "device" several times, but it's really about monitoring. Should monitoring something be patent-eligible? In China, anything goes.

"What next? Saying that DNA is "code of life" and thus the equivalent of computer programs?"Network analytics? Well, that too can become a patent, apparently. Never mind if it seems like it's another case of bogus software patents ("KDE was patented as the first real-time...") and the US has Alice. How about this new one from SIOS? The USPTO has just granted more dubious software patents because the applicant (mis)used the word "apparatus" (the typical loophole). From the self-promotional press release:

U.S. Patent No. 9,772,871, titled “Apparatus and method for leveraging semi-supervised machine learning for self-adjusting policies in management of a computer infrastructure,” is the first of eight core innovations developed and implemented in SIOS iQ and covered by this patent. It validates the ability of SIOS iQ to perform unsupervised learning of an environment and its behaviors for use in IT operations for purposes such as automating performance root cause analysis, while permitting human input to be used to adjust its models.


There's no hardware there.

"Calling an award after the patent troll who was more of a businessman than an inventor?"Speaking of loopholes like "device", "apparatus" or "medical", how about greenwashing? The EPO does quite this a lot nowadays. Patents are being painted as "good for the environment". Gareth Dixon from software patents proponent Shelston IP Pty Ltd has just published this ad ('article') titled "Making use of expedited examination for “cleantech”" (buzzword again).

"In recent years," he says, "IP “buzzwords” have included superconductors, gene patents, business methods and computer software. Society's ever-increasing environmental awareness now dictates that “cleantech” is the latest vogue."

"Patents are being painted as "good for the environment"."He himself admits that these are “buzzwords”. We appreciate the honesty -- something we rarely saw at Shelston IP Pty Ltd. They're perhaps the most vocal lobbyists for software patents in Australia and New Zealand. We wrote about them many times before.

As another popular buzzword, consider "cloud". Unified Patents has a new report about trolls ("NPEs") with software patents that are disguised as "cloud". They are striking hard as "the volume of Cloud litigation increased more than 33% from 339 cases (between 2014 and 2015) to 454 cases (between 2016-2017) during the same period that overall patent litigation posted a 42% decrease," Unified Patents explained some days ago. From the "Overview":

In stark contrast to recent filing trends, the volume of Cloud litigation increased more than 33% from 339 cases (between 2014 and 2015) to 454 cases (between 2016-2017) during the same period that overall patent litigation posted a 42% decrease. From 2012 to 2017, NPE litigation activity for Cloud technologies remained consistently high (greater than 92% of all Cloud litigation) and amounted to a total of 1,058 cases over the last 5 years. Litigation involving various Cloud technologies fluctuated and notably, Cloud litigation involving Storage & Synchronization increased from 7% (2016) to 27% (2017).


The CCIA too has just bemoaned patent quality in the US, showing an "[i]llustration of a metal rose from a design patent" and then stating:

In an ideal world, patent examiners are perfect neutral arbiters. They find the best prior art and always make the right decision as to whether an idea is new and entitled to a patent. In this world, we wouldn’t need inter partes review or validity challenges in court—examiners would get it right the first time.

The reality, of course, is that examiners are humans. They make mistakes. They miss prior art or are unable to access it it. Some are better at the job than others. And, according to a new study from Yale’s School of Management, just like other humans, they sometimes exhibit biases. In particular, the study concludes that examiner biases result in fewer and narrower patents being granted to female inventors.

Given these sorts of flaws in examination, along with the structural incentives to grant marginal patents and the opportunities to improve patent quality identified by the GAO, the first priority for the Patent Office’s new Director should be to focus on improving examination.


Sometimes we're amazed at how shallow design patents can be. Copyright law should cover these instead. Not patent law.

"Patent maximalism is a global problem, but we're disappointed to see the EPO falling for it hook, line, and sinker."The bottom line is, patent quality must matter. Growth in patents just for the sake of growth is not the yardstick to go by or the goal to strive for.

Patent maximalism is a global problem, but we're disappointed to see the EPO falling for it hook, line, and sinker. The EPO used to be far better than this.

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
Support for harassment and abuse victims
Reprinted with permission from Daniel Pocock
Gemini Links 09/05/2024: Being Sick Enough and End of “World of Ends“
Links for the day
Links 09/05/2024: 'Hey Hi' (AI) Bubble Implodes Some More, Microsoft Layoffs So Widespread It's Hard to Keep Track
Links for the day
Speaking of Enshittification and Freedom, We've Still Not Begun Tackling the UEFI 'Secure' Boot Mess (Preventing GNU/Linux From Even Booting!)
Microsoft continues to fly under the radar and commit competition crimes with impunity
Microsoft Has Just Confirmed Mass Layoffs in Nigeria, It Now Adds Insult to Injury With Price Hikes for Locals
It's not like Microsoft paid them good salaries
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