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

01.06.18

The European Patent Office Suffers an Unprecedented Patent Quality Crisis Reminiscent of the World’s Worst Offices

Posted in America, Europe, Patents at 4:42 am by Dr. Roy Schestowitz

Messy office

Summary: The very fact that the European Patent Office (EPO) has, in some domains, become more lax/lenient in its granting practices than the US patent office should be a cause for alarm; this typically means an increase in litigation, from which law firms benefit at the expense of productive companies

THE EPO had spent decades building a superb reputation for quality of patents (until Battistelli and his ‘reforms’ came). It was about quality, not quantity. There weren’t many European Patents (EPs), but those which existed were rather good and difficult to challenge, which made them worth a lot and potentially scary to any defendants.

The USPTO, on the other hand, became rather notorious for quality (there’s a whole series called “Stupid Patent of the Month” about it). Now it’s China taking this ‘crown’ (more on that later this weekend).

“There weren’t many European Patents (EPs), but those which existed were rather good and difficult to challenge, which made them worth a lot and potentially scary to any defendants.”A patent office without quality control (or with insufficient quality control) might as well become a registration office like INPI. It’s not worth much, but at least people can safely assume that filed/granted patents are questionable at best. They’re as good as notes that an engineer files in his/her cabinet.

“The U.S. Patent and Trademark Office eventually reexamined the patents involved in the suit, 5,629,867 and 5,809,246,” says this new article. As it turns out, MAD’s patent crusade has ended. The press barely mentions any of this, but since broadcasters are affected the most, here’s one new article about it. It’s in Radio World and this makes it clear that the clear winners were lawyers on both sides (neither the plaintiff nor the defendants):

The official court document dismissing the suit is very brief and offered no out-of-court settlement specifics, if, indeed, any took place, stating only that all parties “hereby stipulate and agree to this dismissal of the above-captioned action with prejudice,” which means the suit cannot be brought forward again. Each party also agreed to “bear its own fees and costs.”

Several patents held by MAD were at the center of the infringement suit targeting CBS Radio, Greater Media, Beasley Broadcasting, Cumulus Media, Entercom Communications and Cox Radio. Beasley has since acquired Greater Media and Entercom merged with CBS Radio. The plaintiffs claimed their patents, involving hard-disk radio automation systems, were being infringed by the broadcasters. Townsquare Media, originally included in the infringement suit, was released from it in late 2011, a move that sparked industry debate about a possible settlement agreement.

The U.S. Patent and Trademark Office eventually reexamined the patents involved in the suit, 5,629,867 and 5,809,246, at the request of equipment maker and automation software developer Broadcast Electronics. As the result of two reexaminations “DigiMedia was forced to narrow their amendments and arguments,’ according to courtroom documents associated with the case.

Imagine what would happen if the patent examiner got it right the first time around

“A patent office without quality control (or with insufficient quality control) might as well become a registration office like INPI.”But you see, there’s a problem…

As TechDirt put it yesterday, “Shocked, Shocked To Learn The Patent Office Is Structurally Designed To Approve Shit Patents” (we mentioned this paper last weekend).

Here is how TechDirt frames it (with some background and unnecessarily obscene words):

The book Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, was first published in 2004. We’ve cited the book frequently around here, as it did a bang up job describing structural problems with our patent system (and the judicial review of patents). There were a few big points that it made about why our patent system was so fucked up, and a big one was the incentive structure that heavily incentivized approving patents rather than rejecting them.

Specifically, there were two big ideas mentioned in the book about the US Patent & Trademark Office: (1) that because Congress forced the USPTO to fund itself from fees, it had the direct financial incentive to encourage more patent applications, and a good way to do that is to approve a lot more patents and (2) individual examiners were rated and reviewed based on productivity scores on how many patent applications they completed — and it is much faster and less time consuming to approve a patent, rather than reject one. That’s because once you approve a patent it’s completed and gone from your desk (and into the productivity metrics as “completed”). But, if you “reject” a patent, it’s not done. Even though the USPTO issues what it calls “Final Rejections” there’s nothing final about it. The patent applicant can keep going back to the well over and over again, making minor tweaks on the application, requiring the examiner to go through it again. And each time they do, that hurts their productivity ratings. As an additional “bonus” — the USPTO actually makes significantly more money when it grants a patent, because in addition to application fees, there are also issuance fees and renewal fees.

This was pointed out here before. We even wrote about it a decade ago. If examiners have an incentive to grant (more so than to reject), then it’s a recipe for disaster. It’s a guarantee/symptom of declining patent quality.

Last year we warned that in some areas, patent quality at the EPO had gotten even worse than in the USPTO. Scope of patenting under Battistelli gradually broadens in order to fake ‘production’.

Yesterday, “Patentability of Diagnostic Methods in Europe” got published by Finnegan, Henderson, Farabow, Garrett & Dunner LLP’s Hazel Ford. Read it carefully:

Like the USPTO, the European Patent Office (EPO) considers that the discovery of a natural phenomenon is not patent eligible. However, unlike the USPTO, the EPO takes the view that a patentable invention can derive from a practical use of that discovery (EPO Guidelines for Examination G-II, 3.1), such as its use in a method of diagnosis. For example, the discovery of a naturally-occurring correlation between a biomarker and a disease can be put to a practical use in the form of a method for diagnosing the disease. A claim directed to a method of diagnosing the disease involving detecting the presence or amount of that biomarker may therefore be patentable at the EPO, even if the underlying naturally-occurring correlation is not patentable.

The main issue with diagnostic methods at the EPO is not their reliance on naturally-occurring products or effects, but instead is a general exclusion from patentability of diagnostic methods that are practiced on the human or animal body (Article 53(c) EPC).

[...]

The approach to patenting diagnostics is therefore very different in Europe to that in the United States, and many methods that may receive objections under 35 USC §101 in the United States may have no such patent eligibility problems at the EPO. Diagnostic methods that are carried out on in vitro samples can be patented in Europe, as can methods that do not reach a diagnostic conclusion. Where an invention does relate to a method of diagnosis that is performed on the human or animal body, some claim types may still be patentable in Europe, as long as they were described in the patent application as originally filed. We recommend considering global claiming strategies when the patent application is drafted, so that suitable language can be included in the application to allow for filing such alternative claim types at the EPO in due course.

It is worrying that the EPO now grants patents on things that the USPTO would not; it is even more worrying that Battistelli has gotten so close to China (more on that later this weekend). It’s like he’s trying to set up ‘SIPO Europe’, not IIB. Will anything change in July? We doubt it. Campinos is not a scientist (his background is banking, Battistelli’s background is politics) and he signaled no changes to core policies, only empty allusions to dialogue. The EPO’s (and Battistelli’s) friends say: “With Antonio Campinos off to @EPOorg, @EU_IPO needs a new executive director. Nice work if you can get it: “The current basic monthly salary … is EUR 15.944,36. There are additional salary elements reflecting marital status and dependent children” https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/contentPdfs/about_euipo/vacancies/VEXT-17-256-AD/VEXT-17-256-AD_en.pdf …”

“Campinos has been working with Archambeau for quite some time and considering his ‘musical chairs’ move at CEIPI it’s not hard to envision something similar at EU-IPO.”“Battistelli already ‘fixed’ it,” I told them, “[according to what] some say, and the Belgian guy from EPO will get it [the job] as part of the ‘exchange’…”

We were alluding to Christian Archambeau and alleged back room deal with Belgium [1, 2]. Campinos has been working with Archambeau for quite some time and considering his 'musical chairs' move at CEIPI it’s not hard to envision something similar at EU-IPO.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. Links 1610/2018: Linux 4.19 RC8, Xfce Screensaver 0.1.0 Released

    Links for the day



  2. Judge-Bashing Tactics, Undermining PTAB, and Iancu's Warpath for the Litigation and Insurance 'Industries'

    Many inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) leverage 35 U.S.C. § 101 against software patents; instead of putting an end to such patents Director Iancu decides to just serve the 'industry' he came from (a meta-industry where his firm had worked for Donald Trump)



  3. 'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

    With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. § 101 (Section 101); but courts would still see past such façade



  4. Corporate Media's Failure to Cover Patents Properly and Our New Hosting Woes

    A status update about EPO affairs and our Web host's plan to shut down (as a whole) very soon, leaving us orphaned or having to pay heavy bills



  5. Links 15/10/2018: Testing Ubuntu 18.10 Release Candidates, KaOS 2018.10 Released

    Links for the day



  6. USPTO FEES Act/SUCCESS Act Gives More Powers to Director Iancu, Supplying Patents for Litigation 'Business' and Embargo (ITC)

    Corruption of the US patent system contributes to various issues which rely on the extrajudicial nature of some elements in this system; companies can literally have their products confiscated or imports blocked, based on wrongly-granted patents



  7. Court of Appeals for the Federal Circuit Decides That USPTO Wrongly Granted Patents to Roche

    Patent quality issues at the U.S. Patent and Trademark Office (USPTO) — motivated by money rather than common sense — continue to be highlighted by courts; the USPTO needs to raise the bar to improve the legal certainty associated with US patents



  8. Even Judge Gilstrap From Texas is Starting to Accept That Software Patents Are Invalid

    Amid new lawsuits from Texas (e.g. against Citrix) we’re pleased to see that even “reprehensible” Rodney Gilstrap (that’s what US politicians call him) is learning to accept SCOTUS on 35 U.S.C. § 101



  9. Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

    Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it



  10. Let's Hope Apple Defeats All the Abstract Patents That Are Leveraged Against It

    Apple can be viewed as a strategic 'ally' against patents that threaten Android/Linux if one ignores all the patent battles the company started (and has since then settled) against Android OEMs



  11. EPO Insider/Märpel Says President Campinos Already Acts Like Battistelli

    Unitary Patent (UPC) is a step towards making the EPO an EU institution like the European Union Intellectual Property Office (EUIPO); but it's not making any progress and constitutional judges must realise that Campinos, chosen by Battistelli to succeed him, is just an empty mask



  12. Quality of Patents Granted by the EPO is Still Low and Nobody Will Benefit Except Lawyers, Jubilant Over Growing Lenience on Software Patents

    Deterioration of patent quality at the EPO — a serious problem which examiners themselves are complaining about — is becoming rather evident as new guidelines are very lenient on software patenting



  13. 100 Days Into the Term of Campinos There is Already an EPO Suicide

    A seventh known suicide at the EPO since the so-called 'reforms' began; the EPO continues to pretend that everything is changing for the better, but in reality it's yet more nepotism and despotism



  14. Links 13/10/2018: Ubuntu Touch OTA-5, MidnightBSD 1.0 Ready

    Links for the day



  15. Links 11/10/2018: PostgreSQL 11 RC1 Released, Librem 5 Loves GNOME 3.32

    Links for the day



  16. Friend Brings a Friend, Boss Becomes Subordinate: the EPO Under António Campinos is Starting to Look a Lot Like Team Battistelli 2.0

    The new President of the EPO contributes to the perception that the Office is a rogue institution. Governance is all in reverse at the Office because it still seems like the Office President bosses the Council rather than be bossed by it (as intended, as per the EPC)



  17. UPC Cowardice: Team UPC Uses Cloaks of Anonymity to Discredit Authors of Scholarly UPC Paper They Don't Like

    Team UPC has sunk to the bottom of the barrel; now it uses anonymous letters in an effort to discredit work of Max Planck Institute staff, in the same way (more or less) that ad hominem attacks were attempted against the filer of the constitutional complaint in Germany



  18. New EPO Guidelines: Granting European Patents on Business Methods, Algorithms, Mental Acts and Other Abstract Stuff

    Keeping so-called 'production' high and meeting so-called 'targets' (allegedly set by Battistelli), Campinos relaxes the rules for "computer-implemented inventions" (one among many misleading terms that mean software patents in Europe)



  19. Open Invention Network is a Proponent of Software Patents -- Just Like Microsoft -- and Microsoft Keeps Patents It Uses to Blackmail Linux Vendors

    OIN loves Microsoft; OIN loves software patents as well. So Microsoft's membership in OIN is hardly a surprise and it's not solving the main issue either, as Microsoft can indirectly sue and "Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact," according to Bradley M. Kuhn



  20. Links 10/10/2018: Unreal Engine 4.21 Preview, Red Hat Openshift Container Platform 3.11

    Links for the day



  21. Links 9/10/2018: Plasma 5.14, Flatpak 1.2 Plan

    Links for the day



  22. Greg Reilly Inadvertently Makes a Case for Replacing/Improving the Patent System With a Wiki, Editable by All as Society Moves Forward

    Editable patents make a lot more sense in the age of the Internet and the World Wide Web; companies that rode the wave of the Net are themselves changing their patents on the go, sometimes because they simply attempt to dodge an evolving patenting criterion which nowadays looks down on software patents



  23. The USPTO's Principal Issue is Abstract Patents (or Patent Scope), Not Prior Art Searches

    In spite of the fact that US courts prolifically reject patents for being abstract (citing 35 U.S.C. § 101) Cisco, Google, MIT, and the USPTO go chasing better search facilities, addressing the lesser if not the wrong problem



  24. António Campinos Makes Excuses for Granting European Patents on Software in Spite of the EPC

    Continuing the horrid tradition of Battistelli, António Campinos sends patent quality -- the one aspect which the EPO was once renowned for -- down the drain (or down the shredder, for lack of a better and more timely metaphor)



  25. Antibody Patents Should Not be Allowed (Nor Should CRISPR Patents)

    The patent extremists are still trying to patent life (and/or nature) and their arguments typically boil down to, "there's money in it, so why the heck not?"



  26. Links 8/10/2018: Linux 4.19 RC7, Mageia 6.1, Calculate Linux 18

    Links for the day



  27. The Federal Circuit Continues to 'Lecture' the Patent Office on Patent Scope and Limits, But Iancu Isn't Listening

    Sadly, the district court have not fully caught up (at least not yet) with SCOTUS; they're more USPTO-friendly.



  28. U.S. Patent and Trademark Office Under Andrei Iancu Subjected to an Assault on Patent Quality

    Donald Trump has let the litigation industry 'govern' itself at the USPTO; all it has accomplished so far is even greater divergence between USPTO determinations and those of actual courts (which means that the USPTO does not follow the law, there’s a state of lawlessness)



  29. When It Comes to Patent Quality António Campinos Might be Even Worse Than Benoît Battistelli

    The lack of genuine interest in the quality of European Patents is perhaps a greater threat to the whole of Europe — if not the whole world — than well-documented human rights abuses and corruption inside the Office; António Campinos has shown no interest in improving patent quality as he denies such a problem even exists and he reduces transparency



  30. In Spite of Campaigns Against It, the Patent Trial and Appeal Board (PTAB) Squashes Software Patents by the Hundreds Per Month, Patent Maximalists Still Try to Stop It

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) achieve exactly what they were set out to do; those who view patent quality as a foe, however, aren't happy and they still try to undermine PTAB IPRs by any means possible (or at least slow them down considerably)


CoPilotCo

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

CoPilotCo

Recent Posts