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

06.07.18

Marks & Clerk Blames Battistelli’s Victims, the Boards of Appeal, Whose Job Guarded Patent Quality

Posted in Europe, Patents at 2:01 pm by Dr. Roy Schestowitz

What else can be expected from UPC and software patents proponents such as Marks & Clerk?

A shocked Battistelli
Reference: The Boards of Appeal Openly Complain (in the EPO’s Web Site) About Battistelli, But Don’t Tell Battistelli About It…

Summary: The assault on patent quality at the EPO is partly the fault of the patenting and litigation ‘industry’, which isn’t really interested in justice as opposed to perpetuation of patent disputes (which the lawyers profit from)

AT THE USPTO the Patent Trial and Appeal Board (PTAB) is under a constant attack from the patent microcosm. We write about it every week, even several times per week.

“BoA (sometimes through AMBA) repeatedly complains about it, but it doesn’t seem like the patent microcosm is genuinely interested in the Boards’ side of the story.”The EPO‘s management has basically joined the patent microcosm in attacking its equivalent (sort of) of PTAB, known as BoA (including TBA and EBoA). Their objective is pretty obvious: patent maximalism. The European Patent Convention (EPC) gave BoA complete independence from the Office, but this independence has been brutally shattered by crooked Benoît Battistelli. BoA (sometimes through AMBA) repeatedly complains about it, but it doesn’t seem like the patent microcosm is genuinely interested in the Boards’ side of the story.

Kate Appleby (Marks & Clerk) has just published this self-promotional puff piece about the Technical Board of Appeal, citing the EPC which Marks & Clerk would gladly ignore/override if that means more income. To quote:

According to Article 54 of the European Patent Convention, an invention is considered to be new if it does not form part of the state of the art. The state of the art comprises everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of a European patent application.

But at what point does a document leave the non-public domain and enter the public domain?

In case T 1050/12, an EPO Technical Board of Appeal was asked to decide on this point in an opposition by Innovacell Biotechnologie AG (IB) to a patent owned by the University of Pittsburgh (UP). The patent concerned skeletal muscle-derived muscle cells, compatible with the tissues of different individuals for use in the repair of smooth muscle. Such cells could be used to treat urinary stress incontinence.

UP’s granted patent was opposed by IB on the ground of lack of novelty over several prior art documents. The most relevant document was an abstract of a presentation at a meeting, referred to as D3, which had two authors, both of whom were inventors named on the patent. Every feature of the claims of the patent was held by the Board to be disclosed in D3.

This wasn’t actually the worst from Marks & Clerk. On almost the same day they also published an ‘article’ by Jennifer Bailey and Stephen Blake (Marks & Clerk) in which they’re blaming the Boards themselves for the outcome of them being victimised, titling it “Backlog at the boards” (a rather shallow analysis regarding an old report). It was first published in a patent maximalists’ site behind a paywall (under the headline “Backlog at the boards” with the following summary: “The proposed changes to the procedures of the BoA at the EPO will (hopefully) improve efficiency while maintaining quality”).

Don’t they realise what’s going on? Are they lying to themselves? Lying for Battistelli? Marks & Clerk — these shameless boosters of the UPC, software patents and the brutal regime at the EPO — fail to mention illegal acts by Battistelli against the Boards of Appeal (the reason for the named issues!) and we doubt it’s a coincidence. Here are some bits from the ‘report’ they’re nowadays cross-posting in lots of lawyers’ sites, e.g. [1, 2]:

The EPO’s Boards of Appeal underwent comprehensive reform in 2017, one of the aims of which was to enshrine their independence by delegating power to the President of the Boards of Appeal. Another aim of the reform –one that will be of particular interest to patentees and opponents – was to increase the efficiency of the Boards. A five-year objective has been set to settle 90% of cases within 30 months, and reduce the number of pending cases to below 7000. However, with almost 9000 appeals pending by the end of 2017, this is no small task.

One question is whether this is realistic; another is the effect that this drive to efficiency could have on the quality of decisions.

The number of new cases filed with the Technical Boards of Appeal in 2017 was 2798, an increase of 1.8% from 2016 and 11% compared to 2013, indicating an upward trend in the number of appeals being filed. Of those filed in 2017, 39% were examination appeals and 61% were opposition appeals. Notably, opposition appeals are slightly quicker to be settled, taking on average 35 months compared to 42 months for examination appeals. While the majority of cases have only been pending for two or three years, some appeals are yet to be decided which were filed as early as 2009. Given the significant length of time of appeal proceedings, it is unsurprising that by the end of 2017 the backlog had grown to over 5200 pending opposition appeals, and over 3600 examination appeals. Furthermore, with an apparent increase in the speed of examination of patent applications by the EPO, it seems likely that the number of appeals being filed will continue to rise.

So, how do the Boards plan to reduce the backlog?

Well, they clearly said hiring would be needed. We wrote about it at the time. Whose fault is this backlog? Battistelli wants patents to be granted fast and appeals to be thrown in some endless pile. That’s getting close to INPI where there’s no examination at all!

Yesterday. coming from another European law firm (NLO) was this article from Caroline Pallard, in which she wrote:

This analysis is based on an EPO Board of Appeal decision (T108/09).

Due to acquired resistance to a particular cancer treatment, it is common for cancer patients to first be treated with a given drug (eg, tamoxifen), then with a second drug (eg, an aromatase inhibitor) as soon as resistance to the first drug occurs, and possibly with a third drug (eg, fulvestrant) as soon as resistance to the second drug occurs. Using fulvestrant as a third line of treatment was considered a novel cancer therapy, although fulvestrant was already known as a first and second-line cancer treatment. Granted Claim 1 reads: “Use of fulvestrant in the preparation of a medicament for the treatment of a patient with breast cancer who previously has been treated with an aromatase inhibitor and tamoxifen and has failed with such previous treatment.”

Need we bring up the issues associated with patents on cancer treatments? These issues were brought before the EPO several times before and were arrogantly ignored [1, 2]. Patent quality and public interest (or ethics) don’t seem to matter. It’s just a rubber-stamping machine. If the Boards cannot keep up or do their job properly, nothing can stop the Office issuing lots of dangerous patents. Such patents would not only harm European businesses but also kill poor Europeans (for the enrichment of some large companies, usually overseas).

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. The Linux Foundation's Business Model

    The Linux Foundation's plan, illustrated



  2. Links 18/6/2019: i386 Abandoned by Canonical and a New osquery 'Community'

    Links for the day



  3. Indifference or Even Hostility Towards Patent Quality Results in Grave Injustice

    The patent extravaganza in Europe harms small businesses the most (they complain about it), but administrative staff at patent offices only cares about the views of prolific applicants rather than the interests of citizens in respective countries



  4. Links 18/6/2019: CentOS 8 Coming Soon, DragonFly BSD 5.6 Released

    Links for the day



  5. 'AI Taskforce' is Actually a Taskforce for Software Patents

    The mainstream media has been calling just about everything "HEY HI!" (AI), but what it typically refers to is a family of old algorithms being applied in possibly new areas; patent maximalists in eastern Asia and the West hope that this mainstream media's obsession can be leveraged to justify new kinds of patents on code



  6. Patent Maximalism is Dead in the United States

    Last-ditch efforts, or a desperate final attempt to water down 35 U.S.C. § 101, isn't succeeding; stacked panels are seen for what they really are and 35 U.S.C. § 101 isn't expected to change



  7. Links 18/6/2019: Linux 5.2 RC5 and OpenMandriva Lx 4

    Links for the day



  8. Weaponising Russophobia Against One's Critics

    Response to smears and various whispering campaigns whose sole purpose is to deplete the support base for particular causes and people; these sorts of things have gotten out of control in recent years



  9. When the EPO is Run by Politicians It's Expected to Be Aggressive and Corrupt Like Purely Political Establishments

    António 'Photo Op' Campinos will have marked his one-year anniversary in July; he has failed to demonstrate morality, respect for the law, understanding of the sciences, leadership by example and even the most basic honesty (he lies a lot)



  10. Links 16/6/2019: Tmax OS and New Features for KDE.org

    Links for the day



  11. Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

    Almost a week ago the 'world tour' of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)



  12. 2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

    With a fortnight left before the second half of the year it seems evident that software patents aren't coming back; the courts have not changed their position at all



  13. As European Patent Office Management Covers up Collapse in Patent Quality Don't Expect UPC to Ever Kick Off

    It would be madness to allow EPO-granted patents to become 'unitary' (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)



  14. António Campinos -- Unlike His Father -- Engages in Imperialism (Using Invalid Patents)

    Despite some similarities to his father (not positive similarities), António Campinos is actively engaged in imperialistic agenda that defies even European law; the EPO not only illegally grants patents but also urges other patent offices to do the same



  15. António Campinos Takes EPO Waste and Corruption to Unprecedented Levels and Scale

    The “B” word (billions) is thrown around at Europe’s second-largest institution because a mischievous former EUIPO chief (not Archambeau) is ‘partying’ with about half of the EPO’s all-time savings, which are supposed to be reserved for pensions and other vital programmes, not presidential palaces and gambling



  16. Links 15/6/2019: Astra Linux in Russia, FreeBSD 11.3 RC

    Links for the day



  17. Code of Conduct Explained: Partial Transcript - August 10th, 2018 - Episode 80, The Truth About Southeast Linuxfest

    "Ask Noah" and the debate on how a 'Code of Conduct' is forcibly imposed on events



  18. Links 14/6/2019: Xfce-Related Releases, PHP 7.4.0 Alpha

    Links for the day



  19. The EPO is a Patent Troll's Wet Dream

    The makers of software and games in Europe will have to spend a lot of money just keeping patent trolls off their backs — a fact that seems to never bother EPO management because it profits from it



  20. EPO Spreading Patent Extremists' Ideology to the Whole World, Now to South Korea

    The EPO’s footprint around the world's patent systems is an exceptionally dangerous one; The EPO amplifies the most zealous voices of the patents and litigation ‘industry’ while totally ignoring the views and interests of the European public, rendering the EPO an ‘agent of corporate occupation’



  21. Guest Post: Notes on Free Speech, and a Line in the Sand

    We received this anonymous letter and have published it as a follow-up to "Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF"



  22. Links 13/6/2019: CERN Dumps Microsoft, GIMP 2.10.12 Released

    Links for the day



  23. Links 12/6/2019: Mesa 19.1.0, KDE neon 5.16, Endless OS 3.6.0 and BackBox Linux 6

    Links for the day



  24. Leaked Financial 'Study' Document Shows EPO Management and Mercer Engaging in an Elaborate “Hoax”

    How the European Patent Office (EPO) lies to its own staff to harm that staff; thankfully, the staff isn't easily fooled and this whole affair will merely obliterate any remnants of "benefit of the doubt" the President thus far enjoyed



  25. Measuring Patent Quality and Employer Quality in Europe

    Comparing the once-famous and respected EPO to today's joke of an office, which grants loads of bogus patents on just about anything including fruit and mathematics



  26. Granting More Fundamentally Wrong Patents Will Mean Reduced Certainty, Not Increased Certainty

    Law firms that are accustomed to making money from low-quality and abstract patents try to overcome barriers by bribing politicians; this will backfire because they show sheer disregard for the patent system's integrity and merely lower the legal certainty associated with granted (by greedy offices) patents



  27. Links 11/6/2019: Wine 4.10, Plasma 5.16

    Links for the day



  28. Chapter 10: Moving Forward -- Getting the Best Results From Open Source With Your Monopoly

    “the gradual shift in public consciousness from their branding towards our own, is the next best thing to owning them outright.”



  29. Chapter 9: Ownership Through Branding -- Change the Names, and Change the World

    The goal for those fighting against Open source, against the true openness (let's call it the yet unexploited opportunities) of Open source, has to be first to figuratively own the Linux brand, then literally own or destroy the brand, then to move the public awareness of the Linux brand to something like Azure, or whatever IBM is going to do with Red Hat.



  30. Links 10/6/2019: VLC 3.0.7, KDE Future Plans

    Links for the day


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