Unlocking the door for parasites

Summary: Analysis of the views of academics (profiting from solid research), contrasted with patent lawyers (profiting from feuds and conflicts), and the latter group's exploitation of Benoît Battistelli's misguided policies

THERE is excellent new coverage about the uniquely US patent troll problem in the Washington Post, which is read by many US politicians. It was composed by James Bessen and Michael J. Meurer, whose work in this area has been influential. Bessen is a Lecturer in Law at the Boston University School of Law, but he's not a maximalist of litigation, unlike many law professors. In fact, he studies the economics of innovation and patents and he works quite closely with Meurer (they co-authored Patent Failure).

"Bessen is a Lecturer in Law at the Boston University School of Law, but he's not a maximalist of litigation, unlike many law professors."They begin their coverage by stating that a "third of the economy is at stake — and patent trolls are to blame". They say that "[p]atent lawsuits have become a big business. Over six times as many patent lawsuits are filed today as in 1980, and businesses of all sorts have become vocal about the burden of undeserved lawsuits, many over vague or overreaching software patents."

They then ask about a reform: "Is this necessary? The evidence suggests that it is, but even more should be done."

Well, patent lawyers fight back in social media. They deny there is even a problem and the echo chambers of patent lawyers (patent profiteers inviting patent profiteers speak to other patent profiteers) are a big part of this problem.

"They feel empowered by Battistelli's controversial practices because he actively lobbies on scope rather than focus on examining patents based on rules handed down to him."The biggest proponents of software patents, including Patent Watchtroll (or Watchdog, although they're watchers in the opposite/inverted sense), still try to influence the EPO by pushing for the UPC, citing the maximalist Benoît Battistelli for support. They feel empowered by Battistelli's controversial practices because he actively lobbies on scope rather than focus on examining patents based on rules handed down to him. To quote the patent maximalists (and lawyers):

In October, Italy, one of the last holdouts to the European Unitary Patent, joined the party, leaving Spain and Croatia as the only members of the 28-member European Union (EU) opting out. As the fourth largest market in Europe in terms of population, gross domestic product (GDP) and patent validation, Italy’s reversal is a huge step forward. According to Benoît Battistelli, president of the European Patent Office (EPO), “Italy’s accession will … render the Unitary Patent more attractive to companies from other European countries and from across the globe.”

However, there are still many more hurdles to cross before companies or individuals can expect to use the unitary patent to protect their intellectual property throughout the EU, although Battistelli is confident it can be completed by the end of 2016.

So what is it exactly, and what hurdles is it still facing?

Under the new system, one patent will be in effect across all of the participating EU member states, including at least Germany, the United Kingdom, France and 10 others, without having to further validate the patent in each of the individual countries. Infringement, invalidity determinations and injunctions on the unitary patents will be enforceable across the participating states as well. The unitary patent will not only reduce the complexity of protecting IP in Europe, but will significantly reduce the strain on IP budgets, as it currently costs around 36,000.00 EUR (approximately $48,000 USD) today to acquire patent protection in all 27 EU member states.

But at whose expense? What UPC practically means is that more business in more countries shall become instantaneously exposed to more patent lawsuits. Who pays the price? Everyone. Who benefits? Patent lawyers and their largest clients, who wield massive patent portfolios in a lot of countries. To these large multinational this can mean cost savings and easier/broader injunctions/royalty-gathering.

We occasionally hear from critics of the European patent system and they too worry about the UPC.

"I haven't gone over to the dark side of the force [i.e. patent attorneys]," told us one reader, "but have nevertheless been reading volumes and volumes on patent law. My feeling is that there is a gulf between those who write laws, and those like me who have [or had] to apply them, sitting down and staring at the documents wondering where to begin, to eventually reach a solid decision. The former talk about "flexibility" and not presuming about the direction where innovation will head into, and the latter must figure out what the former actually meant. I banged my head on the wall over with expressions like "technical" or "as such", and the US approach [e.g. Alice] isn't a whole lot better."

It is clear that even patent examiners don't quite know how to deal with patent scope and boundaries, especially as patent lawyers try to blur gaps and mislead by lobbying. Non-technical managers contribute to this and pressure examiners (calling it "production" or "efficiency" rather than maximalism).

"What would be needed from critics of the patent system [such as Greenpeace]," our reader said, "is clear thinking. If there is to be a patent system, then one should strive for a fool proof litmus test for deciding what is allowable and what's not, and not something of the "I know it when I see it" kind. I know, it's hard, if not impossible.

"The people attempting to draft implementing regulations and reflect about the way in which these may be applied on real-life applications by real-life examiners, and how these would interact to obtain a patent law framework consistent across all fields, e.g., from chemistry to computer science.

"Industry lobbies know how to be at the right place at the right time to slip in their favoured wording, or drafting sweeping treaties bypassing national parliaments [e.g. TRIPS]."

We are seeing much of the same in UPC right now. We previously wrote about how can usher in a lot more software patents.

"A case in point is the biotech directive of the 1990s," our reader said, "where the EU eventually adopted an outwardly impressive, but in practice rather useless biotech directive, which found its way in EPC Regulations. The tale of how it came into existence was told in German in at least two different books, and is impressive in its illustration of the shabby PR tactics employed by industrial interests.

"Farmers, software people, generic manufacturers, third world countries, patients and the NHS, etc. should heed this example, and aim upstream [the legislator], rather than downstream [the patent offices]."

What we are close to getting right now in Europe is a lot more patent trolls (this is already becoming a serious problem), having repeated the mistakes of the US with low examination standards (for the sake of artificially elevating numbers), little in terms of borders (cross-state separation), and expansion of patent scope to software (empirical evidence shows that most patent trolls use these). ⬆