04.04.18

The European Patent Office (EPO) Will Need to Acknowledge It Has a Patent Quality Issue, Then Tackle It or Perish

Posted in Europe, Patents at 9:12 am by Dr. Roy Schestowitz

EPO examiners know there's a problem, but the management continues to deny it

EPO quality letter

Summary: António Campinos is coming within less than a quarter of a year and unless he’s willing to acknowledge a decline in patent quality and then do something about it, the Office is doomed and Europe will suffer

THE USPTO has already recognised the problem with its patent quality, which is why PTAB now corrects things, invalidating a great number of patents and setting an example which itself acts as a deterrent against trigger-happy lawyers. The EPO, on the other hand, keeps denying the problem (when we say EPO we mean the management; examiners repeatedly do highlight the problem).

“This merely devalues patents, making them impossible to navigate.”What will Campinos do in July? Will he too deny the problem, just like his predecessor (who set him up for the job)? Probably.

Kluwer Patent Blog has just published “China is to Establish Patent Linkage,” a long article by Hui Zhang, Xiang Li, Dani Min and Jiao Yuxin. China is basically granting some truly terrible (low-quality) patents just for the sake of numbers (we’ve always assumed as a bargaining chip in the face of sanctions, fines, trade wars); do we want to link them to Europe really? Do we want the likes of Battistelli to imitate the Chinese system? With well over a million patent filings per year? This merely devalues patents, making them impossible to navigate.

More invalid EPO-granted patents have just been mentioned by Brian Cordery and Rachel Mumby (Bristows) in the patent maximalists’ blog, Kluwer Patent Blog. Notice the fate of EP’766:

Wise readers will know that when it comes to matters of the heart, it is often best not to interfere. Indeed, the Court of Appeal in its recent judgment in Edwards Lifesciences v Boston Scientific [2018] EWCA Civ 673, decided not to interfere with HHJ Hacon’s judgment that of the two patents in suit relating to replacement heart valves, one was valid and infringed (EP’254) and the other invalid (EP’766).

One must ask why EP’766 was granted in the first place. It was then used in a lawsuit. If that lawsuit relied only on this one patent, it would be frivolous and expensive for both sides. Also mind yesterday’s press release regarding a patent on disposable sleep sensors. The company said:

Nox Medical, a leading sleep diagnostic medical device company and innovator has achieved a major success in EPO opposition proceedings initiated by Natus concerning one of Nox Medical’s key patents, EP 2 584 962 B1, covering the biometric connector on its disposable RIP belts. The European Patent Office (EPO) has concluded that Nox Medical’s European patent on the Nox RIP Belts is valid as amended in the opposition proceedings. Nox Medical is confident that its patent will also survive the appeal proceedings.

We typically focus on software patents in Europe. But it’s interesting to see that in some other domains such as replacement heart valves the patents (EPs) are found to be invalid.

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