10.28.17
Gemini version available ♊︎Patent Scope in Europe Should Not be Decided by the Self-Serving Patent Law Firms, But They Totally Dominate the Media
The screenshot below (taken moments ago) shows how Lexology and the likes of it (law firms lobbying and/or advertising themselves) totally dominate channels of information
Summary: Coverage regarding patents in Europe is still (nearly) monopolised by the patent microcosm, i.e. the ‘industry’ that profits when many patents are granted and a lot of lawsuits get filed
LAST month we wrote about Switzerland in relation to Patent Boxes (means for dodging tax). Yesterday, Philipp Groz and Teresa Rudolph from Schellenberg Wittmer wrote two ‘articles’ about patents in Switzerland, noting that “[c]omputer programs as such are not patentable.” (the term “as such” became infamous within the EPO and caused great controversy)
When we say “two articles” we use scare quotes because actually these are two identical self-promotional posts, possibly intended to help occupy more search results pages (SEO). One is titled “Patents in Switzerland” and the other “An overview of patentability in Switzerland”. It’s all the same. Here is the part we’re interested in:
To what extent can inventions covering software be patented?
Computer programs as such are not patentable. However, computer-implemented inventions are patentable (eg, inventions involving the use of a computer, computer network or other programmable apparatus, where one or more features are realised by means of a computer program).
To what extent can inventions covering business methods be patented?
Business methods as such are not patentable. However, business methods may be patentable if they are combined with technical features.
Yesterday we wrote about a similar self-promotional piece from Keltie LLP (UK) and this morning a pseudonym which seems to be associated with the firm confronted us over it. They promote loopholes by which to mislead examiners and when people criticise them for it they just walk away, as usual…
Also published yesterday was this article from Potter Clarkson LLP (Richard Wells and David Carling to be specific).
It speaks about “inventive step”/”technical effect” at the European Patent Office (EPO) and bemoans the appeal boards “[r]aising the plausibility bar,” which is the very thing these boards exist to ensure. To quote:
In T 0488/16, the board reiterated that it is not essential that the application contains experimental data or results, provided the nature of the invention is such that it relies on a technical effect which is either self-evident or predictable or based on a conclusive theoretical concept.
Nevertheless, it is clear that it is not sufficient merely to assert that the technical problem the application purports to solve is solved. Some form of verifiable evidence is required in the application as filed.
When drafting new European patent applications, applicants should minimise the extent to which they may need to rely on post-published evidence during pre- and post-grant proceedings, bearing in mind that reliance on what is made plausible from the common general knowledge opens up questions of obviousness.
In the absence of adequate experimental results, additional effort should be put into the construction of a strong technical explanation for the purported effect which overcomes the plausibility threshold, thereby enabling the applicant later to rely on post-published evidence.
It is clear from T 0488/16 that it will not always be possible to address this issue even by severely narrowing the scope of the claims.
Great care should, therefore, be taken when considering withholding experimental evidence simply to maintain a commercial advantage.
This decision may also provide useful ammunition for opponents during oppositions. In most cases, the threat of the plausibility issue may result in the delaying of filing new applications until sufficient data become available.
As the EPO’s recent decision brings its approach closer in line with that adopted by other patent offices, most notably those in China and Japan, these choices will be familiar to practitioners handling worldwide patent portfolios.
The authors ought to know that the boards have already been marginalised and oppositions made more difficult (for various reasons). It’s all intended to ensure quick grants and many low-quality patents, which Battistelli is perpetually prepared to lie about (his greatest power is that he’s willing to lie without qualm or guilt).
One last article of interest is this one from Kevin Kabler and Andrew Whitehead. They both work for patent maximalists and software patents lobbyists, Fenwick & West LLP, who can’t help pushing towards patents on life just like they push hard for patents on abstract ideas. Here they are lobbying alongside the EPO (Georg Wimmer) and USPTO (Marjorie Moran):
At the September 21, 2017 symposium, Fenwick’s Kevin Kabler moderated the panel. Sharing insights* into patent eligibility and obviousness considerations in the U.S. were speakers Marjorie Moran (USPTO) and Andrew Whitehead (Fenwick). On the European side, our guests were Georg Wimmer (EPO) and Frances Salisbury (Partner, Mewburn Ellis, UK).
[...]
A: In Europe, make sure you’ve got some intermediates in the application and make sure your technical case is clearly stated. In the U.S., talk to your examiners. At the USPTO, you’ll find that going back and forth in writing, especially with the constantly changing landscape of patent eligibility, causes more confusion sometimes than it solves; so if your case has been picked up for examination, call your examiner at any point in time, it will help shorten your prosecution path considerably in the vast majority of cases.
Yes, the EPO has long advised people not to submit anything without a middle(wo)man which can cost up to $500 per hour. Such is the inane state of affairs and the reason people have reported abuse/sent complaints (some of which we covered here before).
Suffice to say, any financial gain for patent law firms happens at the expense of actual scientists/technologists (like patent examiners). █
ᶃ Gemini Space
This post is also available in 
Content is available under CC-BY-SA