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07.17.18

What Patent Lawyers Aren’t Saying: Most Patent Litigation Has Become Too Risky to be Worth It

Posted in America, Patents at 6:54 pm by Dr. Roy Schestowitz

These people rely on a constant flow of lawsuits (for them to bill and profit from both sides)

Old key

Summary: The lawyers’ key to the castle is lost or misplaced; they can’t quite find/obtain leverage in courts, but they don’t want their clients to know that

THE SUMMERTIME/summer season generally brings out or yields fewer decisions, hence less news. The EPO and SUEPO have been quiet this past week and the USPTO says just about nothing. Iancu seemingly vanished (his name hasn’t been brought up in nearly a month). Court proceedings, however, still go on.

“Iancu seemingly vanished (his name hasn’t been brought up in nearly a month).”The real (and growing) risk of getting oneself fined — at times pretty badly — for frivolous patent litigation is becoming more profound (under 35 U.S.C. § 285).

Some days ago we said that “Cellspin Soft Will Likely Need to Pay the Accused Party’s Lawyers Too After Frivolous Litigation With Patents Eliminated Under 35 U.S.C. § 101” and Donald Zuhn caught up with a similar case shortly afterward when he wrote:

Last month, in Akeso Health Sciences, LLC v. Designs for Health, Inc., District Judge S. James Otero of the U.S. District Court for the Central District of California denied a Motion for Exceptional Case Determination and Award of Attorneys’ Fees filed by Defendant Designs for Health, Inc. (“DFH”). In its Motion, DFH argued that the case should be deemed “exceptional” within the meaning of 35 U.S.C. § 285, and that DFH should therefore be awarded attorneys’ fees.

Frivolous patent litigation going astray and punished again? We have seen not one but several such cases very recently. It’s becoming somewhat of a ‘trend’. 35 U.S.C. § 285 was also brought up in Eko Brands, LLC v Adrian Rivera Maynez Enterprises, Inc. et al, which Docket Navigator has just covered by saying that “[t]he court granted in part plaintiff’s requested fees under 35 U.S.C. § 285 because defendant maintained its invalidity defense solely to extend the time of an ITC preclusion order.”

“Frivolous patent litigation going astray and punished again?”That’s about ITC rather than the Federal Circuit. We have been highly critical of the ITC’s refusal to accept Patent Trial and Appeal Board (PTAB) judgments on patents after inter partes reviews (IPRs) had been filed.

The signifiance of 35 U.S.C. § 285 here is that it can act as a deterrent — an additional one on top of 35 U.S.C. § 101 — against unnecessary/abusive litigation.

“The worthy conclusion here is that reasons to refrain from filing patent lawsuits have only grown in number.”The Docket Navigator has since moved on to Olivia Garden, Inc. v Stance Beauty Labs, LLC et al, which hours ago it said involved a “motion to dismiss for improper venue because plaintiff provided no authority for the court to exercise pendant venue over defendant to further judicial economy in a two-defendant action.”

Another case which cites TC Heartland (TC Heartland LLC v Kraft Foods Grp. Brands LLC) in order to deal with unjust patent litigation venue? This too is a deterrent these days.

The worthy conclusion here is that reasons to refrain from filing patent lawsuits have only grown in number. Patent law firms don’t want to say this as it’s “bad for business” (their ‘business’).

Software Patents Royalty (Tax) Campaign by IBM, a Serial Patent Bully, and the EPO’s Participation in All This

Posted in America, Europe, IBM, Patents at 6:04 pm by Dr. Roy Schestowitz

The EPO continues to advocate software patents, even at the USPTO (post-Alice)

A typefiend

Summary: The agenda of US-based patent maximalists, including patent trolls and notorious bullies from the United States, is still being served by the ‘European’ Patent Office, which has already outsourced some of its work (e.g. translations, PR, surveillance) to the US

THE EPO has not changed under António Campinos. Only the face changed, not even the nationality. We generally try not to mix posts about the US with posts about Europe, but this one will be the exception because the EPO is going to the US again, as Battistelli used to do quite a lot (even hiring US-based PR firms, contracting US academics for preparation of his propaganda, setting up UPC propaganda events over there and so on).

“…the EPO is going to the US again, as Battistelli used to do quite a lot (even hiring US-based PR firms, contracting US academics for preparation of his propaganda, setting up UPC propaganda events over there and so on).”For those who don’t know, the patent maximalists in the US have been hyping up some case known as Berkheimer, which we have written over a dozen articles about. In a nutshell, it’s some old (almost half a year) Federal Circuit case that spoke about fact-finding or weight of evidence considered by the Patent Trial and Appeal Board (PTAB) when dealing with inter partes reviews (IPRs). As we explained right from the very start (publication of this decision), nothing but spin came out of it, courtesy of law firms with a selfish agenda. Yesterday even a European firm, Marks & Clerk (promoting software patents as usual) ‘pulled a Berkheimer‘ even though the US Supreme Court (SCOTUS) pretty much said no to software patents. Remember that Marks & Clerk also supported policies of corrupt Battistelli and lobbied pretty hard for the UPC (it still does this). An article by Julian Asquith and Tobias Eriksson (Trainee Patent Attorney at Marks & Clerk) was published yesterday in Mondaq to say:

In summary, an examiner at the USPTO is now obliged to factually prove that any “additional features” of a claim are well-understood, routine, and conventional in order to support an “abstract idea” rejection. Hence, if a claim is novel and inventive, it should now be easier to show that it is also patent eligible (i.e. that it relates to patentable subject-matter).

It is widely acknowledged that the patenting of software-related inventions became more difficult in the US following the decision in 2014 of the US Supreme Court in decision known as “Alice” (Alice Corp. v. CLS Bank International).

It is still very difficult and several months down the line we know that Berkheimer has not changed anything concrete. It’s barely even mentioned as a precedent; Berkheimer is just some “appeal to authority,” routinely used by law firms to lie to the public, urging firms to still pursue patent applications (or lawsuits) on software. Sadly, we’re seeing the ‘new’ EPO (of the new President) still doing what Battistelli used to do, basically aligning itself with the above liars. The EPO now works with software patents lobbyists like the Intellectual Property Owners Association (IPO) on an event in the US — an event in which to promote software patents.

“…Berkheimer is just some “appeal to authority,” routinely used by law firms to lie to the public, urging firms to still pursue patent applications (or lawsuits) on software.”Hours ago the EPO wrote: “You can now register for the EPO’s Automotive and Mobility Seminar in Chicago, Illinois, on 26-27 September.”

Yes, the EPO goes to Chicago to speak about “automotive innovations on CII and AI,” two buzzwords that basically mean software patents. Here it is in the EPO’s own words: (warning: epo.org link)

In plenary sessions you will learn about the latest developments at the EPO in areas including quality, timeliness and search. Patentability issues will be a key focus, particularly those arising from the increasing reliance of mobility and automotive innovations on CII and AI, as well as common difficulties for US applicants. Expert advice and hands-on claim drafting exercises will enable you to save time and money and increase first-time drafting success.

This high-level event is organised in close co-operation with the Intellectual Property Owners Association (IPO).

Got that? IPO and EPO work together now. For those who don’t know or don’t remember, IBM uses IPO to lobby against Alice (i.e. against the highest US court) while engaging in patent blackmail against many companies. Now there’s this new example of IBM’s blackmail campaign:

IBM is seeking $167m in compensation from Groupon, the e-commerce marketplace, over the alleged use of patented technology without authorisation.

The case is being heard at a federal court in Delaware where the jury is being asked to consider whether they agree with IBM’s contention that Groupon had employed IBM’s e-commerce technology without paying a license fee.

IBM contends that firms such as Amazon, Facebook and Alphabet are all said to make use of the same software, paying between $20 and $50m each for the right to do so but Groupon has challenged this analysis, arguing that the computer manufacturer is overreaching the scope of its patents.

This was covered in many other news sites today, e.g. [1, 2, 3, 4]. The real face of IBM isn’t what many are led to believe.

“The bottom line is, the EPO now works with a front group that works closely with IBM for software patenting. It is generally not a good sign and it’s happening weeks after Campinos took over the Office.”The reason PTAB receives many IPRs against IBM patents is that IBM does much of the blackmail behind closed doors, as does Microsoft. They rely mostly on software patents, which are bunk. PTAB almost always invalidates these. All software patents should be voided after Alice, but they can only do this one patent at a time, based on a detailed (re)assessment.

The bottom line is, the EPO now works with a front group that works closely with IBM for software patenting. It is generally not a good sign and it’s happening weeks after Campinos took over the Office.

The European Council Needs to Check Battistelli’s Back Room Deals/Back Door/Backchannel With Respect to Christian Archambeau

Posted in Europe, Patents at 5:24 pm by Dr. Roy Schestowitz

Archambeau and Casado (Team Battistelli) next to Belgium’s Jérôme Debrulle, the alleged special bridge/link/shim between the two

CASDAO with ARCHAMBEAU

Summary: Worries persist that Archambeau is about to become an unworthy beneficiary (nepotism) after a Battistelli setup that put Campinos in power, supported by the Belgian delegation which is connected to Archambeau, a national/citizen of Belgium

IT IS NO secret that Battistelli and António Campinos are close and have been close for many years, not just because they both speak French and are French nationals. Christian Archambeau too is rather close, having worked at the EPO, where he too could speak French (he’s Belgian).

“Practitioners in this domain don’t seem to know that Battistelli might have something to do with Christian Archambeau getting the seat of Battistelli’s successor of choice.”As we noted this morning, there are good reasons to investigate allegations that Archambeau will get his new (prospective) position as part of an elaborate exchange set up by Battistelli and maybe Campinos too. This isn’t how promotions and hirings are supposed to be done, certainly not in the EU. Practitioners in this domain don’t seem to know that Battistelli might have something to do with Christian Archambeau getting the seat of Battistelli’s successor of choice. Maybe they don’t care, either. World Intellectual Property Review (WIPR) has just published this article titled “Practitioners share hopes for Campinos’s replacement” and it talks about Brexit:

Christian Archambeau’s succession of António Campinos as executive director of the European Union Intellectual Property Office (EUIPO) has been well received by practitioners, who hope he will be a “safe pair of hands” amid Brexit turmoil.

The Permanent Representatives Committee, which is responsible for preparing the work of the European Council, voted to recommend Archambeau as executive director on Friday, July 13. His appointment is expected to be formalised in an upcoming meeting of the Council.

What is the aspiration here? Maybe a longterm EPO-(EU)IPO merger? Something with UPC? Who knows, but UPC is almost for certain going nowhere. It’s not progressing. Nevertheless, the pro-UPC IP Kat has just advertised this event which it described as follows: “Seminar programme features talks and discussions on international patent litigation, IP in chemistry, pharma & biotech, EU trade marks and litigation, EU and international designs, IPR enforcement in Europe, computer-implemented inventions, and of course – Unitary Patent and Unified Patent Court.”

“Seeing the EU-IPO getting a leader who is himself connected to the EPO and is believed to have been part of a Battistelli ‘setup’ may mean that EU-IPO will be compromised (like ILO-AT and anything else that touches today’s EPO).”The term “computer-implemented inventions” (or CII) just means software patents and the UPC is the fantasy of spreading these “computer-implemented inventions” to every nation in the EU, as we noted this morning.

Team UPC and the Unified Patent Court (UPC) in general have been plagued with abuses and mischief, just like Battistelli with his scandals that at times culminated in crimes (clear violations of the law) and corruption. Seeing the EU-IPO getting a leader who is himself connected to the EPO and is believed to have been part of a Battistelli ‘setup’ may mean that EU-IPO will be compromised (like ILO-AT and anything else that touches today’s EPO). Might Archambeau feel indebted to Battistelli for a promotion? Will he be submissive to his former boss, Campinos, who is now at the EPO owing to Battistelli’s lobbying? The whole thing is deeply problematic for many reasons. It’s like the “cancer” (as EPO insiders refer to it) from the EPO now spreads to another organisation.

PTAB and § 101 (Section 101) Have Locked the Patent Parasites Out of the Patent System

Posted in America, Patents at 7:00 am by Dr. Roy Schestowitz

They want to get back in, having put one of them (Iancu) inside the patent office

Locked out

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have contributed a great deal to patent quality and have reduced the number of frivolous patent lawsuits; this means that firms which profit from patent applications and litigation hate it with a passion and still lobby to weaken if not scuttle PTAB

DO NOT be alarmed by self-serving lawyers who claim that the US has collapsed in terms of “innovation” or that the patent system is in trouble. The USPTO simply improved its processes somewhat. In whose favour? Not law firms’. Then there’s the even greater contribution of patent courts, which have become stricter in lieu with SCOTUS and the Federal Circuit (the primary appeals court for patents).

“U.S. court denies Jazz Pharma bid to revive narcolepsy drug patents,” says this new report from Reuters. “A U.S. appeals court on Friday ruled invalid patents owned by Jazz Pharmaceuticals PLC covering its narcolepsy drug Xyrem, giving Amneal Pharmaceuticals Inc a boost in its effort to launch a generic version of the medicine.”

Well done. More generics!

This case (Jazz Pharms., Inc. v Amneal Pharms., Inc.) was mentioned some days ago here and elsewhere. It happened on a Friday (decision handed down), so a lot of the media overlooked/missed it. Patent maximalists said:

The patented invention at issue in Jazz Pharms is not a drug or drug treatment, but rather to a “drug distribution system for tracking prescriptions” for drugs with a risk of abuse[1] The PTAB found claims from all six patents to be invalid as obvious.

The core issue on appeal was whether a pre-filing disclosure by Jazz counted as a prior art “printed publication.”

So PTAB discards another bunch of bogus patents which should never have been granted in the first place. It’s good for the public (access to medicine), but we’re still going to see some front groups bashing PTAB over it. A few days ago we mentioned an anti-PTAB article from Thomas A. Hemphill, who does “Strategy, Innovation and Public Policy” in the School of Management at the University of Michigan-Flint. This has just been reposted by The Heartland Institute (rightwing think tank connected to the Kochs, who also bankroll other anti-PTAB think tanks); that says quite a lot about whose interests are served by him.

Michael Risch, another US professor, has just published “What do Generic Drug Patent Settlements Say about Patent Quality?”

This links to a study on which Professor Risch remarked as follows:

An interesting study about Orange Book patents challenged both under Hatch-Waxman and Inter Partes Review caught my eye this week, but perhaps not for the ordinary reasons. One of the hot topics in drug patent challenges today is reverse payments: when the patentee pays the generic to stop a challenge. The Supreme Court has ruled that these payments can constitute antitrust violations. Though the drug companies give reasons, I’ll admit that I’ve always been skeptical of these types of payments.

One of the key questions is whether the patent was going to survive. Most seem to assume that if a company pays to settle, then the patent was likely going to be invalidated. That’s where the draft, Maintaining the Balance: An Empirical Study on Inter Partes Review Outcomes of Orange Book-Listed Drug Patents and its Effect on Hatch-Waxman Litigation, by Tulip Mahaseth (a recent Northwestern Law grad) comes in.

[...]

Additionally, a split among outcomes implies that the settlements were not necessarily because the patentee believed the patent was at risk. If anti-competitive settlements were ruling the day, I would have predicted that most of the (recent) non-settlements would have resulted in patent invalidation. Then again, it is possible that a 50% chance was risky enough to merit a reverse payment settlement in the past. Regardless of how one comes out on this issue, this study provides some helpful details for the argument.

The net effect is reduction in litigation; the patents still exist, but the payouts to law firms may be orders of magnitude lower. Any Patent Trial and Appeal Board (PTAB) inter partes review (IPR) has the potential to either prevent a lawsuit or end a lawsuit, so it basically harms the business [sic] model of lawyers.

Here’s a new IPR example. It’s about MONKEYmedia, which we mentioned here before [1, 2]. To quote Unified Patents:

On July 13, 2018 the Board granted MONKEYmedia, Inc.’s request for adverse judgment and cancellation of all instituted claims in IPR2018-00059 filed by Unified Patents. This request comes shortly after the PTAB’s decision to institute trial for US 9,247,226 directed to a method for storing and playing multimedia so a user can interactively choose to expand or contract displayed content.

As one might expect, attacks on PTAB carry on. Almost every single day now. Even after Oil States, which cemented PTAB’s role in the system.

“The Supreme Crusade to Weaken Patent Rights in America” is the title of the latest rant from Gene Quinn (Watchtroll), who is still attacking the courts. These patent maximalists are totally losing their minds. Judge-bashing is now very common among them. Mind the laughable picture too, showing crusaders as if a religion is being spread (talk about hypocrisy here). Other anti-PTAB ‘activists’ nowadays send input to the USPTO, basically complaining about PTAB and AIA. There are now “over 350 submissions,” according to this.

Claim construction continues to hold focus as the centerpiece of contested patent cases — both in court and in administrative AIA trials (primarily, Inter Partes Review proceedings) before the Patent Trial and Appeal Board (PTAB).

[...]

One of PTO Director Iancu’s early initiatives has been to unify the standards. That process began with a notice of proposed rulemaking with finalized rules coming later this fall.

The USPTO has posted comments submitted on the proposed change — with over 350 submissions.

So the patent microcosm is telling someone from the patent microcosm (Iancu) what to do. It won’t change the courts’ position; it just has the potential to further erode the perceived legitimacy of newly-granted US patents. The above writer is a longtime PTAB basher who mostly celebrates the number of granted patents, not their quality. Going back to Watchtroll, yesterday it published not one but two anti-PTAB pieces, the latter being from the patent microcosm (“Jeremy Doerre is an associate at Tillman Wright, PLLC” and “David Boundy is a partner at Cambridge Technology Law”). They moan about Section 101 (trying to 'pull a Berkheimer') and make inane statements like this one:

We are hopeful that the PTO is using this forced stand-down on multiple appeals as a teachable moment. Will the PTO apply the lessons learned in a § 101 context to improve predictability and efficiency of the entire examination process? And maybe—not so coincidentally—will the PTO take this opportunity to enhance compliance with laws and failsafes that are designed to ensure agency predictability, efficiency, precision, and fairness, laws and failsafes that could have prevented this need to ask the Federal Circuit to vacate PTAB decisions?

They allude to “predictability and efficiency,” but for predictability the USPTO needs to reject all software patents (they’re predictably poor if not altogether bunk), in line with § 101. Notice how one sentence later they repeat “predictability, efficiency” (pointless repetition) and insinuate that the Federal Circuit is needed to “vacate PTAB decisions,” neglecting to say that in the vast majority of cases the Federal Circuit actually affirms PTAB decisions.

We don’t expect intellectual honesty from sites like Watchtroll; sadly, however, these people have connections at the patent office (revolving doors), they bully judges and officials whom they don’t like (e.g. Michelle Lee), and they have money for lobbying and/or think tanks with billionaires like the Kochs on their side. There’s a lot at stake for them, including their very occupation, which has become parasitic at best.

Patents on Computer Software and Plants in the United States Indicative of Systemic Error

Posted in America, Patents at 5:30 am by Dr. Roy Schestowitz

Even after Alice and Mayo?

Business hands

Summary: The never-ending expansion of patent scope has meant that patent law firms generally got their way at the patent office; can the courts react fast enough (before confidence in patents and/or public support for patents is altogether shattered)?

THE endless greed of the patent microcosm has left the USPTO granting millions of questionable patents. The EPO is heading in a similar direction (if it survives at all). Thoughts and nature have begun being patented; until no rock is left unturned patent law firms seek patents on everything. Everything!

“Thoughts and nature have begun being patented; until no rock is left unturned patent law firms seek patents on everything.”Earlier this week an article was published under the title “Patents in the US: Definition, Types, Pros and Cons”. By “cons” they don’t mean convictions but downsides. “Plant patent,” it says, “probably the least obvious one, is a patent granted to new distinct species of plants created in a way mother nature never intended.”

“How low will they sink/stoop in pursuit of patent monopolies? How broad a scope?”Well, “mother nature” intended nothing; it’s a case of evolution by natural selection or breeding. Humans intervening in the process does not make it “innovation”.

How low will they sink/stoop in pursuit of patent monopolies? How broad a scope?

Yesterday and this morning we also stumbled upon several examples of US software patents, starting with this Typerium story from The Blockchain:

Decentralized content creation and IP protection platform, Typerium, has filed two patents for its technology in order to keep competition at bay.

There’s nothing some “blockchain” hype won’t accomplish. There are many bogus software patents these days which are 'dressed up' as "blockchain" and here’s another article published about that to say: “US financial services company American Express, also referred to as Amex, was granted a blockchain-related patent by the US Patent and Trademark Office (USPTO) on July 12. Called “systems and methods for blockchain based proof of payment,” the patent application was initially filed on January 12, 2017. The invention was created by Amex’s travel unit – American Express Travel Related Services.”

Why did the USPTO grant this after Alice? These are utterly bogus software patents that should never have been granted in the first place and need to be rendered invalid, with or without Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs).

“These are utterly bogus software patents that should never have been granted in the first place and need to be rendered invalid, with or without Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs).”Another new example appeared at the end of last week at The Register, which spoke of a lawsuit “filed in a central California district court in May 2017, claimed the NFL was, without permission, borrowing on each of the patents when it developed a host of streaming services and websites that let football fans watch clips of beefy lycra-clad men inflicting violence on each other: NFL.com, Watch NFL Network/NFL Redzone, NFL Now, NFL Game Pass, NFL Mobile, the NFL App, and NFL Fantasy Football.”

Law 360 wrote about that also:

NFL Enterprises LLC has settled a multivenue infringement fight brought by software and systems developers over their patents for online video services only a few months after a judge invalidated one of the claims, according to filings in California federal court and the Patent Trial and Appeal Board.

So PTAB did get involved, but not to a sufficient extent; they settled, so there won’t be an appeal to the Federal Circuit (which is better at taking account of SCOTUS decisions such as Alice). Based on the above descriptions, those are software patents, which are a no-go zone after Alice.

Odd keyboard

Yesterday’s Misleading News From Team UPC and Its Aspiring Management of the Unified Patent Court (UPC)

Posted in Deception, Europe, Patents at 1:58 am by Dr. Roy Schestowitz

Alexander Ramsay, Bristows, and the UPC gold rush
Rumours said that Battistelli intended to pursue the top position in the UPC (reserved for a French person)

Summary: The Unified Patent Court (UPC) enthusiasts — i.e. those looking to financially gain from it — continue to wrestle with logic, manipulate words and misrepresent the law; yesterday we saw many law firms trying to make it sound as though the UPC is coming to the UK even though this isn’t possible and UPC as a whole is likely already dead

Team UPC and EPO management (notably Battistelli and his chosen colleagues at the top) have long spread lies about the Unitary Patent or Unified Patent Court (UPC). This isn’t entirely surprising because lying has become the norm in those circles. We’d like to take a moment to remark on belated coverage from patent law firms, which continue to twist words for the “greater good” which is their profits.

“…there’s nothing in the paper that suggests ‘unitary’ patent participation, only aspiration to “explore” the possibility/prospect.”Some UPC spin was posted yesterday by Life Sciences Intellectual Property Review, a site which champions the "Life Science" agenda (calling life itself a science to facilitate patents on life/nature); the British government admits the issue with UPC and then issues a paper which is instantaneously distorted by Team UPC, as one might expect. Well, there’s nothing in the paper that suggests ‘unitary’ patent participation, only aspiration to “explore” the possibility/prospect. Now watch what this site made of it, citing a legal expert/firm:

Truscott noted that while it’s a relief to see IP specifically mentioned, there remains significant uncertainty around the Unified Patent Court (UPC) and the unitary patent. The life sciences section of the UPC’s central division is planned to be based in London.

“The UK has ratified the UPC Agreement and intends to explore staying in the court and unitary patent system after the UK leaves the EU,” said the White Paper.

Whether this is possible will depend on the ability for the participants to agree to modify the existing agreement, said Truscott.

He added: “This could ultimately be beneficial if it were to allow for other non-EU countries to join, so that the UPC could perhaps ultimately act as the court for all contracting states to the European Patent Convention and provide a true one-stop shop for litigants.”

For Bacon, the UPC system would represent the most important change ever seen in the European patent landscape, and the continued involvement of the UK would be welcomed by the life sciences industry.

The “life sciences industry”? That’s just a euphemism for an ‘industry’ that’s pursuing patents on life — something which is currently not legal in pertinent European nations. Speaking of this “life science/s” label, mind Patent Docs pushing this envelope again yesterday (by Bryan Helwig) and the same in Managing IP yesterday. “In-house counsel, private practice lawyers and scientists discussed life sciences advancements such as the move towards personalised medicines, at the Hogan Lovells Life Sciences Summit,” Patrick Wingrove wrote.

“The “life sciences industry”? That’s just a euphemism for an ‘industry’ that’s pursuing patents on life — something which is currently not legal in pertinent European nations.”Team UPC hopes that UPC can miraculously expand patent scope overnight, enabling for example software patents and patents on life/nature in member states where these are currently illegal. They try to bypass national courts and national patent offices. It’s pretty obvious.

Herbert Smith Freehills LLP’s Mark Shillito, Laura Deacon and Peter FitzPatrick have also just written about the above. Quoting the relevant part:

Opinions vary on the likelihood of whether the UK could continue as part of the UPC and Unitary patent system post-Brexit. The Foreword to the White Paper by the Prime Minister states that the proposals in the White Paper would end the jurisdiction of the European Court of Justice in the UK. It is not clear whether the UK would nevertheless accept the role of the European Court of Justice in respect of references from the UPC on matters of European law.

They cannot. They said so just a couple of weeks back. Novagraaf (another legal firm) said this yesterday:

On the former, it announced plans to establish its own GI scheme after exit; on the latter, it simply states that it ‘intends to explore’ staying in the Unified Patent Court and UP system after the UK leaves the EU (click here for more on the unitary patent).

The key part is “explore” or “intends to explore”. This is not actually possible and the government knows it. But Bristows is now paying (we assume) that same site to push its lie that “UK confirms it will seek to remain in the unitary patent and Unified Patent Court after Brexit” (that word, “confirms” being the word of choice, has been common among UPC boosters).

“Team UPC hopes that UPC can miraculously expand patent scope overnight, enabling for example software patents and patents on life/nature in member states where these are currently illegal.”Here is another new analysis from yesterday (there were about half a dozen yesterday alone) and a new comment from IP Kat, citing Article 23 EPC:

I think that you are slightly missing the point that I was trying to make about possible actions of the President of the UPC (Court of Appeal). My point was not that legal mechanisms exist that a “malign” President could validly exploit. Rather, it was that the mechanisms to counter a “malign” President that has overstepped the mark (ie contravened the rules) are unreliable, toothless and/or non-existent.

Ten years ago, and based upon Article 23 EPC, one could have made the case that there was “legally no risk that a judge, how irksome he might be, be removed from office by the President of the EPO”. We all know how that worked out in practice.

It is meanwhile being reported that “UKIPO patent applications decline” (news headline) and this doesn’t sound like a negative thing if patents are more selectively applied for, e.g. based on better quality/higher bar. To quote:

Patent applications made directly to the UK Intellectual Property Office (UKIPO) have seen a decline between 1995 and 2017.

According to a report on trends from the UKIPO, there was a decline in patent applications at the office, but applications filed at the European Patent Office (EPO) are continuing to rise, especially those filed at the EPO designating the UK.

The report notes that Brexit is a possible reason why applicants are seeking alternate routes.

Also highlighted, is the increase of international applications filed using the Patent Cooperation Treaty (PCT).

Applicants of UK residency make up the greatest share of applications at UKIPO, although the share of applications from non-residents increased to 40 percent in 2017.

“UK trademark applications soar over 22-year period,” another new headline (WIPR) said yesterday, so it’s not as though UKIPO is running out of work. In fact, it claims to be hiring.

“It’s passing all the powers to patent maximalists in the same way copyright maximalists strive to take total, complete control over the EU.”Another article of interest was published yesterday by Allen & Overy LLP’s Marjan Noor and James Fox under the headline “English Court of Appeal rejects the EPO’s “serious contemplation” test for anticipation by prior disclosure overlapping with later patent. This makes one wonder what will happen to confidence in European Patents:

In the case of Jushi Group v OCV [2018] EWCA Civ 1416, the Court of Appeal has considered the question of the relevant test to apply when assessing whether a prior disclosure of numerical ranges will anticipate a later claim to overlapping numerical ranges.

The Patent at issue relates to the composition of a type of glass which is capable of being formed into fibres. Claim 1 of the Patent specifies a list of constituents for the claimed glass, along with a range of percentages by weight for each constituent as a proportion of the whole.

A prior art patent called “Neely”, referred to in the description of the Patent, disclosed a glass with the same constituents and similarly specified the percentage by weight as a proportion of the whole. It was common ground that the range of each of seven of the constituents in Neely fell entirely within the ranges specified in the Patent for that same constituent, and the ranges for a further six constituents overlapped with them.

UPC is all about taking low-quality European Patents to court, fast-tracking potential sanctions (like embargo, raids) without hearings in the accused party’s language, without proper chance of appeal in one’s national courts, without assurance of independence for judges and so on. It’s like DMCA takdowns. UPC is tarnishing the stated goals of the EU in the same sense that the “link tax” and “censorship machines” (copyright proposals) do. It’s passing all the powers to patent maximalists in the same way copyright maximalists strive to take total, complete control over the EU. The copyright maximalists have thus far failed (the first round at least); so will patent maximalists.

Time for the European Commission to Investigate EPO Corruption Because It May be Partly or Indirectly Connected to EU-IPO, an EU Agency

Posted in Europe, Patents at 1:01 am by Dr. Roy Schestowitz

Background: Fresh Allegations That the Belgian EPO Delegation is Compromised or in Cahoots With Benoît Battistelli

Wins the bid

Summary: The passage of the top role at the EU-IPO from António Campinos to Christian Archambeau would damage confidence in the moral integrity of the European Council; back room deals are alleged to have occurred, implicating corrupt Battistelli

IN THE UNITED STATES one office deals both with patents and trademarks. The USPTO also falls/rests under the wing of the government and isn’t enjoying diplomatic immunity. The EPO is an inherently different and rather bizarre creature. It’s the creation of an old treaty, which isn’t even being respected anymore (the EPC).

Then there’s the EU-IPO (or EUIPO), which deals with trademarks. It renamed itself a few years ago and it is now more apparent that it’s an EU body.

Based on yesterday’s sole tweet from the EPO (it’s very unusual for the EPO to post just one tweet in a whole day; the average is about 10), it looks like the EPO has begun doing ‘ads’ for the EU-IPO (where the new EPO President, António Campinos, came from just 2.5 weeks ago). To make matters even more awkward, patents and trademarks are advertised in tandem, for the first time in a very long time. We never saw this before. “Trade marks can add value to patents and extend protection beyond the life of the patent,” they wrote.

What a bizarre thing to say. Trademarks are very different from patents. Very different. The comparison is therefore rather bizarre, unless perhaps they allude to design patents alone.

“The EPO is an inherently different and rather bizarre creature. It’s the creation of an old treaty, which isn’t even being respected anymore (the EPC).”We are meanwhile trying to make sense of what Christian Archambeau at the EU-IPO would mean, knowing he used to work at the EPO and there seems to have been a rumour about him, which is only further substantiated by recent developments. Are people hired and appointed based on experience and merit or based on nepotism, connections and favours? It seems like a back room deal, not a proper appointment, and it therefore must be probed by EU officials. Do we want the culture of crooked appointments at the EPO to spread to the EU as well?

Archambeau’s appointment is not entirely confirmed yet (we relied on an automated translation from German initially), but it looks like it’s going that way. Yesterday one publication said that “EUIPO close to naming new executive director” (in the headline). “The Permanent Representatives Committee (COREPER) has voted to recommend that Christian Archambeau,” it said, “currently the acting general director of the EUIPO, be appointed on a permanent basis. While the recommendation needs to be formalised, this last step is expected to be a formality.”

“Do we want the culture of crooked appointments at the EPO to spread to the EU as well?”Does Battistelli play a role in it? How about Campinos? Rumours we heard last year suggested that they were making exchanges — a sort of “musical chairs”. That might be a form of corruption. As in, “you give you this position, I give this other position to your friend, your spouse, your colleague, then you give me this vote and I’ll give you one in return etc.”

Something isn’t right here. The news about Archambeau originally showed up in German media over the weekend. Yesterday the English media caught up (e.g. [1, 2] and said:

A European Council committee has proposed that the former deputy director of the European Union Intellectual Property Office (EUIPO), Christian Archambeau, should succeed António Campinos as head of the office.

On Friday, July 13, the Permanent Representatives Committee, which is responsible for preparing the work of the Council, voted to recommend Archambeau as executive director.

The appointment is expected to be formalised in an upcoming Council meeting.

One needs to ask what the Permanent Representatives Committee knows, what it was told by Campinos, and what Campinos was told by Battistelli while Battistelli was lobbying for Campinos to receive his seat. Things aren’t as simple as they seem.

“Investigative journalists ought to take a good look at the events leading up to that. The EU/EC could potentially be stained by this.”“Appointment [of Archambeau is] expected to be a formality after European Council permanent representatives committee votes for acting EUIPO executive director to take role permanently,” Michael Loney wrote last night.

So the European Council plays a role in this. Investigative journalists ought to take a good look at the events leading up to that. The EU/EC could potentially be stained by this. It would be a bad thing for Europe.

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