EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

08.15.17

The Collapse of Patent Quality at the EPO is Inviting to Europe Some of the World’s Worst Patent Trolls

Posted in Europe, Patents at 1:36 pm by Dr. Roy Schestowitz

European Patents (EPs) too are now weapons of blackmail and extortion

EPO trolls

Summary: As troll litigation soars in Europe we must take a careful look at the sorts of patents granted by the EPO these days and the policies that support such grants

THE utter disregard for patent quality should be a reason for concern if not panic. Patent trolls would benefit greatly from that as they cannot get sued; there’s nothing for them to get sued for/over. So the broader the scope of patents, the worst off society will be. There’s a reason why sites funded by and/or connected to trolls push so hard for patent maximalism; worth noting is also the correlation (in my experience) between blowhard Conservative Trump proponents and patent trolls; they want more and more deregulation; they want chaos. To them, from chaos comes income.

“To them, from chaos comes income.”Battistelli, a Conservative politician, is pushing towards patent chaos in Europe. It’s not just the UPC (the EPO was pushing for this lame duck earlier this week and also in this very recent tweet). Earlier today, for instance, the trolls-connected Rovi showed up in news from Belgium, wielding what seems like an EP on software:

The recent CJEU judgment and subsequent national interpretation in Rovi Guides v Telenet will have a significant impact on the predictability of legal costs and should be taken into account when setting up an IP litigation strategy in Belgium, as Steven Sarlet and Ben Brigou explain

Rovi Guides Inc (previously United Video Properties (UVP)) initiated an infringement action against Telenet NV on June 7 2011 based on European patent 1327209 (systems and methods for providing storage of data on servers in an on-demand media delivery system)….

We have written extensively about Rovi; it’s connected to the world’s largest patent troll, Intellectual Ventures. They’re reaching out for Europe already. Crossing the Atlantic bridge for litigation purposes…

“The farce of patent “quality” at the EPO under Battistelli has lowered the bar even below the USPTO’s and applicants are starting to notice.”As noted here earlier this year, the EPO openly promotes software patents even though they should all be disallowed. As of this week, moreover, the EPO is openly promoting such patents yet again, this time under the guise of “CII”. “Guidance on EPO procedures for US CII applicants at this event in Palo Alto,” it wrote, pointing to this seminar whose programme says “EPO CII approach – Christian Platzer, Director, Information & Communications Technology, EPO” and two sessions are titled “Guidance on EPO procedures for US CII applicants” (CII is just a synonym for software patents).

“By all means, unless the EPO manages to get patent quality under control again (this would also mean invalidating many patents granted under Battistelli), too few stakeholders would be willing to pay application and renewal fees.”Morever, based on this article from earlier this week, the EPO is granting a patent (monopoly) on life yet again. Are CRISPR patents next to be thrown away? Why are they being granted at all? The EU has been very clear in its opposition to such patents and Allen & Overy LLP has just published this analysis titled “EPO reverses its position on the patentability of products obtained by essentially biological processes” (can be viewed as applicable to the above too). “The firm,” says the article, “a subsidiary of pharmaceutical giant Merck KGaA, said the EPO has issued a ‘Notice of Intention to Grant’ a broad patent for the company’s CRISPR technology.”

Why are these patents being granted? The farce of patent “quality” at the EPO under Battistelli has lowered the bar even below the USPTO‘s and applicants are starting to notice. Even legal firms are noticing and saying so to audiences at public events.

There was this discussion yesterday regarding the “abstract idea” test in the US and the infamous “technical effect” test. Here are just two of the more relevant comments:

I agree with the notion of allowing the case law to evolve. Some of the arguments against having a specialist patent appeal court in the US are that it would allow other case law doctrines to evolve if more than one court was involved, and ultimately that makes case law richer and more dynamic, but also of increase uncertainty. There will be directions that are ultimately found to be unhelpful and so case law then has to change direction, etc.

However in terms of what a claim is, I don’t think it can be said to be the same as the ‘technical effect’. Sometimes applicants will want to voluntarily limit their claim scope (for example due to an agreement with another party), or to minimise the chance of an opposition happening (I have been in that situation). And so the literal scope is important as a sign of what the applicant chose to pursue at that time (and chose to limit to in examination). I therefore think that whilst the technical effect is an important component in determining claim scope it cannot be only one. And I agree that the system needs to be thrown into this new uncertainty to decide whether we want to think in terms of a ‘flag’, and whether a usable test based on that can emerge. [People of course do not like uncertainty and so this will be a painful journey]

I think the ‘abstract idea’ test in the US is interesting because the Supreme Court has chosen to say little about it, and it is being allowed evolve at the hands of the Federal Circuit, where it will I am sure end up being the same as a ‘technical effect’ test. You will be familiar with the level of criticism that that test has encountered, but I think it is a great experiment. The Supreme Court had the wisdom to be minimalist about it, and let it evolve, realising the test was too complex to be derived by simply thinking of one. A test will come into being which is found to be useful in the cases that the Federal Circuit has before it.

I agree with you on “abstract” and I agree that fixing the scope of protection is not the same as identifying the technical effect. I like the Neuberger evolved version of the Catnic Questions.

Courts need a residual degree of wiggle room to do justice. Neuberger gives them just enough, but no more than that. Like the EPO’s Problem and Solution for framing the obviousness debate, the Neuberger 3 Question rubric gives the parties a framework for efficient debate on scope of protection.

In my view, the evolved Three Question routine represents an optimal compromise between fair protection for the patent owner and reasonable legal certainty for those under threat from the patent.

By all means, unless the EPO manages to get patent quality under control again (this would also mean invalidating many patents granted under Battistelli), too few stakeholderx would be willing to pay application and renewal fees. Paying for something that’s already worthless (or can be rendered invalid overnight, without even a trial) is like falling for a scam.

The EPO was supposed to be a world leader in terms of solid, defensible patents. What it’s becoming more and more like over time is a facility which fuels patent trolling (already soaring in Germany).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Celebrating Code of Conduct Violations

    Reprinted with permission from Daniel Pocock



  2. The Militarised Elephant in the Room Still Commands a Lot of Free Software Development

    We take a difficult (albeit in-depth and perfectly factual) look at IBM's past and present; considering this is the company that controls Red Hat (which in turn controls many key projects in GNU/Linux) we need a better understanding of the real context, not PR fluff and marketing



  3. Juve Patent's Love of Patent Trolls and Their Misinformation

    The press 'gutter' known as Juve (basically propaganda disguised as 'news' since years ago) has gotten to the point where the publisher is just an extension of lawyers and liars



  4. IRC Proceedings: Friday, October 23, 2020

    IRC logs for Friday, October 23, 2020



  5. Look How Many Tux I Give!

    "Long live rms, long live (Hyperbola) GNU/BSD, and happy hacking."



  6. Embrace, Extend, and Extensions: Two New Reasons to Delete GitHub, Which Microsoft Ruined for Everyone (Except the Copyright Cartel and Other Censors)

    GitHub is being turned into a garbage dump with malicious masters (or monsters, or mobsters); many people are denied access for using the 'wrong' browser and developers/projects are being censored (not for doing anything wrong or illegal, either)



  7. [Meme] When EPO Staff Claims to be 'Ill' or 'Sick'... During a Pandemic's European Peak

    Gotta check and verify that those 'lazy' EPO examiners aren't just faking being ill (in order to not meet "production" targets)



  8. The EPO Has Relegated or Lowered Itself to Extremely Poor Standards

    Today's EPO continues to reaffirm the image of global weakness; having failed to improve the working conditions and quality of the work (its actions did the exact opposite), it's nowadays begging China to send over lots of workload irrespective of quality or merit and it is outsourcing the functions of the Office to the United States



  9. Links 23/10/2020: Turing Pi 2, GNU Parallel 20201022

    Links for the day



  10. IRC Proceedings: Thursday, October 22, 2020

    IRC logs for Thursday, October 22, 2020



  11. Links 23/10/2020: 'Groovy Gorilla' Everywhere in the News

    Links for the day



  12. For Better 'Tech Rights' in the United States (and the World at Large) the 'Orange Man' Needs to Go

    With less than a fortnight before election day we explain our stance from a purely tech-related rationale



  13. [Meme] Microsoft Never 'Brought' Skype to GNU/Linux (It Just Bought Skype) and It Never 'Brought' Edge to GNU/Linux Either (Google Did)

    Foolish media or gullible 'journalists' are giving Microsoft credit for other people's work; this isn't the first time either, but it helps perpetuate lies such as "Microsoft loves Linux" (so who cares about facts anyway?)



  14. It's Going to be a Long, Long Winter

    Today we revert back to lock-down mode; we're reflecting and pondering what comes next



  15. TechRadar is an Irresponsible Clickbait and Misinformation Site Disguised as 'News'

    TechRadar is no tech and no radar, either. It's just an opportunistic click-harvesting machine, disguised as a source of "news"; today we deal with the latest example (among many).



  16. Links 22/10/2020: LibreOffice 6.4.7, Septor 2020.5, Ubuntu 20.10 Released, FreeBSD Quarterly Status Report

    Links for the day



  17. IRC Proceedings: Wednesday, October 21, 2020

    IRC logs for Wednesday, October 21, 2020



  18. Living Humbly (With Older Technology or None) is More Compatible With Privacy- and Freedom-Respecting Technological Lifestyle

    Simplicity sometimes trumps so-called 'novelty', especially when it comes to human rights and users' freedom



  19. Reasons Why You (and Everybody Else) Should Join the Fight for Software Freedom

    Society is being closely watched and controlled (more so during/after the latest pandemic) and people must carefully consider the true importance of resisting proprietary technology (controlled remotely by state actors)



  20. Ways and Means to Reduce One's Dependency on Google's Various Monopolies and Near-Monopolies

    Getting rid of Google means a lot more than embracing DumbDumbGo (DDG) or some other sites that spy just like Google; we're taking stock of some options



  21. The European Commission is Still M.I.A. Regarding EPO Corruption (and the EPO's Management Plays Dirty, as Always)

    There's no change in the EU; the EUIPO and EPO enjoy complete and total immunity/impunity, with the Commission being manned by those who are deeply complicit



  22. 10 Reasons Why All This 'Edge for Linux' Coverage is a Total Farce

    The fake hype surrounding "Edge" is an inauthentic hype/buzz campaign made to coincide with anti-Google sentiments spread by Microsoft front/pressure groups



  23. Microsoft's IIS Has Collapsed Again This Past Month (and IIS Will Not and Cannot Survive This Way)

    Netcraft shows that Microsoft's decline further accelerates in the Web servers space; IIS is becoming financially unviable



  24. Links 21/10/2020: Alpine 3.12.1, Tor Browser 10.0.2

    Links for the day



  25. [Meme] US Department of Justice Should Have Taken on Microsoft Again, Not Google

    When lobbying, connections and political sway determine the actions of the American government it's hardly surprising that Bill Gates gets the Trump administration to fight for him (to make him even richer)



  26. [Meme] Banning Words, Gaslighting Volunteers

    What happens when institutions are themselves in violation of a CoC (institutional violation) and massive corporations that fund such institutional violations are defending demonisation of the individual (squashing ‘uncomfortable’ voices, even volunteers’)



  27. IRC Proceedings: Tuesday, October 20, 2020

    IRC logs for Tuesday, October 20, 2020



  28. Links 21/10/2020: $8000 GNU/Linux Desktop, Tails 4.12, Open Infrastructure Foundation and Firefox Release

    Links for the day



  29. Never Feed the Internet Trolls, No Matter How Tempting It Becomes

    The tactics for removing critics of abuse (by framing them as "abusive") have evolved a lot in recent years; the best course of action is to never entertain provocateurs in any way whatsoever (just ignore them, give them no attention which they crave and feed on)



  30. Bill Gates: “I'm Not a Lawyer” (He Dropped Out of College, Where He Studied Law Before and After Breaking the Law Chronically)

    How Microsoft blackmailed other companies into supporting nothing but Microsoft and Windows; Bill Gates repeatedly lied to the interrogators about it, then said "I'm not a lawyer" (IANAL) even though he went to college to become one, just like his father who died last month


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts