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12.05.16

Quality of Patents at the EPO Dependent on the Appeal Boards When Battistelli Assesses Performance Using the Wrong ‘Production’ Yardstick

Posted in America, Europe, Patents at 3:07 am by Dr. Roy Schestowitz

Summary: A look at some recent articles regarding patent quality in the US and in Europe, in particular because of growing trouble at today’s EPO, which marginalises the appeal boards

THE QUALITY of patents determines the likelihood of winning court battles, or the certainty of sustained validity of patents once scrutinised closely enough (e.g. subjected to evidence/witness testimony in a court). Good examination with comprehensive prior art searches is what applicants ought to pay for; patents that are granted in haste are possibly worthless. Sometimes they can be worse than nothing at all. In fact, going to court with such patents can prove very costly to the plaintiff, which sometimes gets forced to pay the legal fees of the defendant/s (we covered some examples like that earlier this year).

With Alice and Mayo in a couple of domains (among many) the USPTO shows some encouraging signs of improvement. According to this new blog post, increase in prices may soon follow, however not yet for the following reasons:

Under the terms of the America Invents Act (AIA) fee increases cannot come into effect until 45 days after they are approved. That led to speculation by some that the agency might find itself in a showdown with Congressional Republicans if it tried to rush through the changes before the President-elect takes power. But, according to a source at the PTO, any final rule implementing the increase in fees will not be published until after the inauguration thereby averting a possible confrontation.

At the EPO, by contrast, we expect fees to suffer a decrease due to lack of demand in the coming years. Quality of EPs has definitely declined (EPO insiders always say so) and price hikes would only discourage pursuit/filing of new applications. Some very prolific applicants have not overlooked the EPO scandals. Without quality control we expect not just the social climate to tarnish the reputation of the EPO; there are technical concerns too.

According to this new blog post from IP Kat, an anti-HIV therapy patent has been partly thrown away by the EPO. “The patent was opposed by Merck at the EPO,” says the author, “but maintained in an amended form. That decision is under appeal, and the central amendment has therefore been suspended. In the meantime, Shionogi made an unconditional application to amend the UK designation of the patent in accordance with the claims maintained at the EPO. It also made two conditional applications to the Patents Court to amend. There are parallel proceedings in Germany and the Netherlands which are ongoing.”

This may mean that some structures for ensuring quality (control of scope) at the EPO are not entirely dead, but for how long? Opposition has become more expensive and window for opposition narrowed. This is a Battistelli (current administration) policy.

IAM, which says that the EPO is doing great on patent quality (because IAM is an EPO mouthpiece), has a new article in its ‘magazine’ in which it compares patent quality in Europe to patent quality in the US (probably not so different anymore, especially if one compares new EPO patents to new USPTO patents because they move in opposite directions and head for collusion).

A few days ago we mentioned the "poisonous priority" decision from the EPO's Enlarged Board of Appeal. Now, imagine what would happen if Battistelli was already crushing the EPO’s appeal boards (he can’t because of the EPC, but he certainly tries to crush them in other ways).

Some patent lawyers wrote about this decision [1, 2] and the latter article noted the meaning of it: “The uncertainty related to situations where an inventor devises a particular invention, and then subsequently realizes that the particular invention may be extended to a broader scope that encompasses their first invention. Provided that a second patent application for the broader subject matter is filed within 12 months of a first patent application directed to the narrower invention, the second application may claim priority from the first application.”

There was also a little ode about this, posted in the form of a comment on an article at IP Kat the other day:

The jilted generation: One’s love is but only for the kittens’ kittens, and so on forward forever to the end of cat-dom – for the rest it is poison.

Hello, yea, hold a sec. Battistelli there’s someone on the phone for you. Oh, f**k sake, trying to write this: jam (is only for tomorrow), man.

We have the poison,
Who has the remedy?
Who has priority’s practical remedy?

We have OR claims,
Ooh, split priorities
Which have alternatives defined countably

May be generic,
We can view sensibly
To have discrete theoretical identities?

We have the poison,
We have the referral,
For the Enlarged Board’s pontifical remedy.

We have the poison?
Who has the remedy?
We have the pressure, the pressure,

No doubt the EPO needs these boards, it needs them to be independent, well staffed etc. but instead they are being crushed by Battistelli. Quality control isn’t on this man’s agenda because all he is pursuing is “production” (as measured by the number of patents). The technical discussion about this case (over 20 comments and counting) alludes to pertinent parts of the patent in question, so we won’t delve into it. However, let this be a reminder of the importance of guarding the appeal boards, especially in the face of a megalomaniac like Battistelli who defames judges in the media, much like Donald Trump does.

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