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01.18.18

Patent Prosecution Highway: Low-Quality Patents for High-Frequency Patent Aggressors

Posted in Europe, Patents at 6:34 am by Dr. Roy Schestowitz

Patent Prosecution Highway
Reference: Patent Prosecution Highway

Summary: The EPO’s race to the bottom of patent quality, combined with a “need for speed”, is a recipe for disaster (except for litigation firms, patent bullies, and patent trolls)

Patent Prosecution Highway (PPH) is not an EPO thing but an international thing (WIPO et al). The USPTO, for example, has that too. Nevertheless, the EPO’s blind embrace of PPH — more so in the midst of rushed patent examination — gives room for concern, especially with UPC being on the agenda. It’s like litigation, not justice, is on the priority list. Patent trolls must absolutely love that.

“…the EPO’s blind embrace of PPH — more so in the midst of rushed patent examination — gives room for concern, especially with UPC being on the agenda.”IAM has just published a sponsored piece* for the patent microcosm in Brazil (Battistelli has some cooperative deals with Brazil, e.g. PPH/validation). What good are patents from Brazil? This has become a subject of great concern because Brazil is possibly copying INPI (France/Battistelli but also the Brazilian Patent and Trademark Office) and may soon grant a patent for every single application. Quality control? Naaaaa… who needs that? Just call an “emergency” and grant everything.

Battistelli’s EPO is becoming more like INPI (France) over time. Yesterday we saw a whole class of patents getting invalidated (again, just like last year) and lack of proper examination will certainly destroy the value of Brazilian patents/European Patents. A few days ago IAM published this so-called ‘report’ titled “Pulling the plug on INPI’s patent backlog” and to quote:

The government is expected to launch an emergency measure to eliminate the Brazilian Patent and Trademark Office’s (INPI’s) patent backlog by automatically granting 231,000 pending non-pharmaceutical applications. The proposed rules for implementing the new measure were made available for public comment in early 2017 – the deadline to provide comments was August 31 2017.

INPI officials recently held that certain proposals made by local associations could complicate the process.

While it is difficult to know the precise details and timing for this measure, companies may soon need to deploy a short-term strategy – as short as 90 days – to mitigate potential risks and take full advantage of the new system (eg, using the proposed opt-out system for selected applications and filing pre-grant oppositions against competitors). Companies should also consider entering the national phase of Patent Cooperation Treaty applications before the 30-month deadline; likewise, Paris Convention filings should be made whenever possible.

The INPI implied that no other viable option could solve the backlog in the short term. All pending non-pharmaceutical applications filed before the emergency measure is published and becomes effective should be covered.

Too great an abundance of patents would defeat the whole purpose of a patent system, which is merit-based. It would also help frivolous litigation skyrocket. And speaking of litigation, look who gets priority; it’s those who litigate. That’s what PPH is all about.

A few days ago Lexology carried this article which acted as a sort of EPO puff piece. To quote:

The Canadian Intellectual Property Office (“CIPO”) recently announced a three-year extension to its pilot Patent Prosecution Highway (“PPH”) agreement with the European Patent Office (“EPO”). Notably, the previous requirement for an application to have entered the Canadian national phase on or after January 5, 2015 has been lifted. Applicants with applications that were previously considered ineligible for CIPO-EPO PPH due to this date restriction may wish to consider if their applications could now qualify for expedited treatment, bearing in mind that examination must not yet have commenced for an application to be PPH-eligible.

A CIPO-EPO PPH agreement that would speed up examination is not necessarily a good thing or a selling point. It overburdens examiners, potentially making examination a lot more error-prone. Who wants a bogus patent that would never survive in court? Instead of focusing on patent quality, accelerated examination is intended to facilitate patent aggressors (let’s face it, SMEs are more likely to settle outside the courts, so they would suffer the most). Combine PPH with already-declining patent quality at the EPO and what we have is a surge in oppositions (i.e. more burden for EPO staff) and a decision like yesterday's (which devastated Broad).
____
* IAM appears to have just renamed “international reports”; now it’s called “industry reports” (paid, self-promotional placements) and in addition IAM’s placements get reposted elsewhere. Here’s a new example. “This article first appeared in IAM” it says at the very bottom.

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