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08.30.18

Feeling Shut Out of the European Patent System, Team UPC Persists With Misleading Claims and Falsehoods

Posted in Deception, Europe, Patents at 6:05 pm by Dr. Roy Schestowitz

The litigation ‘industry’ wants to control everything, including the underlying rules/laws

Man with shadow

Summary: Just like the patent microcosm in the US (facing 35 U.S.C. § 101 and the Patent Trial and Appeal Board (PTAB)), Europe’s patent microcosm is looking to mislead clients, encouraging them to pursue patents which would be of no real value

THE EPO does not grant so-called ‘unitary’ patents. It probably never will. The USPTO grants patents that can theoretically be leveraged in any US state, but there too — after TC Heartland (SCOTUS) — there are serious limitations. We’ll say more about it in the weekend.

Europe needs unity. But that does not mean it needs the so-called ‘unitary’ patent court, sometimes known as UPC or Unitary Patent. Calling litigation, raids and embargoes “unity” or “unitary” is just laughable because these things divide, they do not unite. We have spent almost a decade writing about it — going back to the days it was euphemistically labeled “EU patent”, “community patent” etc. They keep shuffling euphemisms, hoping that some nonsensical term eventually sticks. Maybe they’ll rename again in the future.

In this post we’d like to draw attention to new misinformation. Earlier this week, over at the patent trolls’ lobby (IAM), Melanie Stevenson from Carpmaels & Ransford LLP (together with Roger Lush and David Holland) perpetuated the famous two lies about UPC. She said this: “Looking to the future, the government proposes that the “UK should continue to participate in the unitary patent system and the Unified Patent Court that underpins it”, confirming the United Kingdom’s long-held desire to participate in this new pan-European system. The arrival of the new patent and associated court continues to be delayed by the constitutional challenge in Germany, but once that is complete the new system could be ready to launch in 2019. Further news is anticipated regarding how the government and the European Union could work together in order to preserve the geographical breadth of the new system, which is one of its key selling points.”

A selling point to who? Patent trolls, sure. And their legal representatives, i.e. firms like hers.

AWA’s Sofia Willquist, whom we mentioned here before, also pretends that UPC is inevitable, but the so-called ‘unitary’ patent is dead except in the eyes of dyed-in-the-wool believers (because they stand to gain financially). Quoting Willquist’s new post: “With regards to patents, current validations of European patents in the UK will remain unaffected by the Brexit, and as set out by the UK IPO the UK thus intends to stay in the Unified Patent Court and unitary patent system after leaving the EU.”

How can you “stay” in something that does not even exist? These are loaded statements. They’re crafted to deceive.

Here is another new example, coming from a new interview with Kerry Flynn, vice president and chief IP counsel at Vertex Pharmaceuticals Incorporated. He said this: “In our industry we are now considering the impact of the unitary patent system and Brexit in Europe, and inter partes review proceedings in the United States.”

He’s alluding to UPC, which does not exist, then to PTAB inter partes reviews (IPRs), which are generally feared by companies like his. It’s similar to the Boards of Appeals which Battistelli attacked so viciously for at least 4 years.

The Boards of Appeals generally help ascertain patent quality (at least in theory if not in practice too, assuming they’re truly independent). The Boards of Appeals were recently brought up by Mitscherlich PartmbB's Christian Rupp and earlier this week he brought them up again:

Parameters, i.e. new medical values or ranges, are typical limiting features of claims. In the following guidance shall be given as how to avoid pitfalls in the context of parameters and claims and their associated measurement methods.

[...]

In the past, the EPO had taken the view (see e.g. T464/05 of May 14, 2007) that the absence of information in the application/patent regarding the method for measuring a crucial parameter implies substantial differences in the measured values obtainable when using one or the other of possible measuring methods known from the prior art. In the decision T464/05 this had been considered as being objectionable under Art. 83 EPC.

However, meanwhile the Boards of Appeal of the EPO have developed a more subtle approach (see e.g. T608/07 and T482/09 of 2009 and 2011, respectively). In T608/07 the Board had taken the view that an objection of insufficiency of disclosure (Art. 83 EPC) is only justified when the discrepancy in the measured values is of such magnitude that it “permeates the whole claim“ and „hence deprives the skilled person of the promise of the invention”.

As we said in response to Rupp’s writings last week, the Boards of Appeals no longer enjoy even the perception of independence and the EPC no longer applies/holds at the EPO, which repeatedly violated it. Rupp would be wiser to actually tackle EPO scandals, highlighting some of the issues presently under consideration at the German FCC.

Don’t expect the FCC to give the ‘green light’ to UPC Agreement (UPCA) ratification; besides, it can take another year if not a couple more years for the FCC to decide. By that stage, a lot will have changed; the EPO, for example, already rots. We are still deeply concerned about what Battistelli and Michel Barnier have done, knowing that France is reserved a special role in the imaginary (hypothetical) UPC. We suppose Battistelli still fantasises about making a ‘comeback’ as head of UPC, knowing the role is destined to be France’s. Battistelli is a profoundly corrupt person with a proven history of attacks on justice, on judges, and even fundamental laws, treaties (e.g. EPC) and so on. Only a crooked or highly misled FCC would allow the UPCA to move ahead.

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