08.11.18
Gemini version available ♊︎EPO-Style Problem-Solution: Tackling Backlog by Granting Lots of Low-Quality (Bogus) European Patents, Causing a Surge in Troll/Frivolous Litigation
Summary: The EPO’s lack of interest in genuine patent quality (measuring “quality” in terms of speed, not actual quality) may mean nothing but a litigation epidemic; many of these lawsuits would be abusive, baseless; those harmed the most would be small businesses that cannot afford a legal defense and would rather settle with those who exploit questionable patents, notably patent trolls
THE decline/demise of patent quality at the Munich-based patent office isn’t just an hypothesis; firms and examiners speak about it. They’re concerned. They even pen open letters with many signatures. Sometimes petitions. They rightly worry and they understand the long-term ramifications, knowing that the Munich-based patent office (other locations too) relies on its reputation and the high legal certainty once associated with patents assessed to be awarded/granted. Those who understand how the patent system works (either as examiners or law firms’ staff) want what’s best not only for themselves but also for their country/ies. As we last stressed a few days ago, patent maximalism is generally a threat to the entire patent system. Greed can cause the entire thing to collapse.
“…patent maximalism is generally a threat to the entire patent system. Greed can cause the entire thing to collapse.”Frivolous litigation is nowadays being reported in Europe; we privately hear some stories and the EPO is to blame. “Opposition proceedings in the EPO are currently under appeal to the Technical Bureau of Appeal (“TBA”),” say Matheson’s Michael Finn and Deirdre Kilroy. It’s about Ireland. Yesterday they wrote:
The Irish Commercial Court has departed from a long standing precedent and refused to suspend national patent revocation proceedings whilst parallel opposition proceedings are ongoing in the European Patents Office (the “EPO”). This has the potential to result in an increase in litigating national patents devolved from European patents in Ireland. In this article, IP litigator Michael Finn highlights some of the key aspects of the decision.
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On 31 July 2018, the Court refused to suspend the entire proceedings. The Court suspended the trial until late 2019. However, in a departure from previous Irish case law, the Court directed that all pre-trial steps in the proceedings should go ahead.
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In deciding to suspend the trial until November 2019, the Court was influenced by the prospect that the EPO proceedings could potentially be resolved completely within 12 months, and the potential waste of court resources would outweigh other considerations.
Some of these European Patents should never have been granted in the first place. Once granted, they can form the basis for frivolous lawsuits, causing a lot of trouble and costing a fortune.
We have always been particularly concerned about software patents. The USPTO moves away from software patents, whereas the EPO is actively promoting software patents in Europe (several times per day lately; it got worse after António Campinos had taken over).
“They’re “politely” if not “silently” destroying what used to be the world’s best patent office.”FB Rice’s Eddie Walker, Jeremy Dobbin, Madeleine Kelly, Steve Gledhill, Andrea Ruhrmann, Will Morgan and Toby Thompson now have this new article. It is about Australia, which disallows software patents, imitating Europe’s loopholes rather than be inspired by Alice (SCOTUS). Does Australia not know that the EPO does not follow European law, EPC etc.? They’re alluding to what’s often used as a ‘trick’ by which to patent algorithms.
To quote:
A new consultation regarding legislation that will change the way inventive step is considered for Australian patents has been announced, with the intention being to raise the threshold by aligning with European standards. In future, the EPO “problem-solution” test will usually be adopted when assessing inventive step in Australia, which is a different assessment from the lower level problem-solution assessment currently used here.
It remains to be seen whether other aspects of the European inventive step assessment will also be imported into Australian practice. A principal reason for the current difference in standards is that the circumstances under which two prior art documents can validly be mosaicked to sustain an obviousness attack are much broader in Europe. Unless this aspect of Australian practice also changes, the legislative amendments may not have as significant an effect as desired.
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Whilst an EPO-style problem-solution approach may become the norm for assessing inventive step in Australia, the Draft Explanatory Memorandum sets out that there will be flexibility to adopt other tests in some circumstances.[ix] This is also welcome, since although the rigid approach of the EPO in following problem-solution provides relative legal certainty, it is not necessarily the best approach for all situations.
The approach of “problem-solution” is, in our humble assessment, unhelpful. It dodges underlying tests like Section 101 in the US — a subject which we’ll explore again later this weekend. The most distressing thing is Campinos and his silence on these matters; there’s zero transparency, zero accountability and almost zero words from Campinos. They’re “politely” if not “silently” destroying what used to be the world’s best patent office. In the process they harm European firms. █
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