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09.12.18

Patents on Life at the EPO Are a Symptom of Declining Patent Quality

Posted in Europe, Patents at 2:53 am by Dr. Roy Schestowitz

Two dolphins

Summary: When even life and natural phenomena are deemed worthy of a private monopoly it seems clear that the sole goal has become patenting rather than advancement of science and technology; media that’s controlled by the patent ‘industry’, however, fails to acknowledge this and plays along with privateers of nature

THE legal certainty associated with US patents is very low. That’s because the USPTO spent decades granting truly dubious patents. The EPO‘s patent quality problems threaten to do the same to European Patents (EPs).

Earlier this year the EPO’s Opposition Division rejected a patent on life, causing Broad Institute to panic. Are patents on life itself still worth anything? Are EPs on CRISPR without merit? That opposition suggested so.

Yesterday Kluwer Patent Blog wrote about a test at a Danish court, i.e. outside the EPO itself, noting that a couple more EPs may be meritless:

In 2015, the EPO Opposition Division upheld EP 138 after the appellant withdrew its opposition. In that connection, EPO held that Howell et al. and McLeskey in combination did not take away inventive step.

In a subsequent decision, in 2017, the EPO Opposition Division held EP 573 invalid for lack of inventive step and the Opposition Division noted in that connection that it disagreed with the conclusion reached in relation to EP 138, now holding that in combination with the knowledge derived from the articles by Howell et al. and McLeskey there was no inventive step.

The Maritime and Commercial Court held that the EPO decision regarding EP 573 must result in a material weakening of the presumption in favour
of that patent being valid, and the fact that the decision had been appealed by AstraZeneca could not lead to a different assessment, even if the EPO appeal had suspensive effect.

Yesterday we also spotted a couple of announcements from Doctors Without Borders/Médecins Sans Frontières (MSF) International [1, 2], taking stock of an opposition with the following statement:

This week in Munich, the European Patent Office (EPO) will hear a legal challenge filed by groups in 17 countries against an unmerited patent that allows US-based pharmaceutical corporation Gilead Sciences to charge exorbitant prices in Europe for the key hepatitis C drug sofosbuvir. The organizations Médecins du Monde (MdM), Doctors Without Borders/Médecins Sans Frontières (MSF), and Just Treatment are among the patient and treatment provider organizations* that challenged the validity of a Gilead patent on sofosbuvir on the grounds that it does not fulfill the requirements to be a patentable invention from a legal or scientific perspective. The groups today, once again, urged the EPO to rethink its decision that gives Gilead this monopoly. The EPO will hold a public hearing on September 13-14 to make a decision on the case.

If the patent challenge is successful, it would be a major step toward allowing the production and importation of affordable generic versions of sofosbuvir in Europe, protecting health systems across Europe from illegitimate financial burden due to excessive corporate pricing of this drug. The extremely high prices in Europe of newer hepatitis C medicines—called direct-acting antivirals, or DAAs—has led civil society organizations to investigate and subsequently challenge the monopoly status and legitimacy of such patents.

Public interest or the Commons play a role here, irrespective of patents on nature/life/biology.

Going back to Broad, whose controversial EPs may be thrown out by the Boards of Appeal, Patent Docs wrote about it this week in relation to Regents of the University of California v Broad Institute, Inc. (Patent Docs is in general a loud proponent of patents on life, as this latest post by Bryan Helwig reminds us again). To quote:

Barring the unlikely event that the Federal Circuit rehears en banc today’s decision in Regents of the University of California v. Broad Institute, Inc. (or, even more unlikely, that the Supreme Court grants certiorari), the interference between the Broad Institute and the University of California/Berkeley is now concluded. The Court affirmed the Patent Trial and Appeal Board’s decision (see “PTAB Decides CRISPR Interference — No interference-in-fact”; “PTAB Decides CRISPR Interference in Favor of Broad Institute — Their Reasoning”) that there is no interference-in-fact between the Broad’s twelve patents (the Federal Circuit citing U.S. Patent No. 8,697,359 as being representative) and one application-in-interference patent and University of California’s pending application (Application No. 13/842,859).

[...]

The consequence of this decision (assuming it is the final word) is that the status quo will remain: the Broad will maintain its extensive CRISPR patent portfolio and the University’s patent application (reciting claims broader than the Broad’s and encompassing CRISPR without regard to the cells in which it is practiced) should grant as a patent in due course. Under these circumstances, a third party wishing to practice the technology in eukaryotic cells (encompassing everything from yeast to man) would need a license from both the University and the Broad (absent the parties coming to an agreement on how their overlapping technologies will be licensed). This circumstance cannot fail to retard commercial adoption of the techniques, providing further impetus for some sort of co-licensing agreement between the parties to be forged.

Broad Institute’s case was also mentioned by Managing IP yesterday. Michael Loney wrote about how CAFC is backing PTAB as usual:

In a closely-watched CRISPR patent case, the Federal Circuit says the PTAB did not err in concluding that Broad Institute’s claims would not have been obvious over the University of California’s claims

Our view is that all CRISPR patents need to be voided. Life is not an invention. Where does Managing IP stand on this matter? Ellie Mertens’ (Managing IP) summary says: “How can reproductive technologies be protected when they relate to natural processes? Is a human gamete or embryo a “human organism” in terms of patent law?”

Why is this even a question? Why entertain the patent ‘industry’ in trying to answer such questions? The utter insanity of trying to patent life itself — and after much lobbying succeeding at it — just comes to show the great influence of money. It’s no secret that large firms with patents in these domains buy politicians to shield their patents from PTAB.

Defending the World’s Most Notorious Patent Trolls in an Effort to Smear the Patent Trial and Appeal Board (PTAB) is an Utterly Poor Strategy

Posted in America, Deception, Patents at 2:02 am by Dr. Roy Schestowitz

Just comes to show that patent zealots have run out of legitimate arguments

Patent Lawyers' Tears

Summary: The ‘case’ for patent maximalism is very weak; those who spent years if not decades promoting patent maximalism have resorted to attacks on judges, to defense of trolls like Intellectual Ventures, defense of patent scams, and ridiculous attempts to call victims of patent trolls “trolls”

THE USPTO nowadays limits itself using the Patent Trial and Appeal Board (PTAB) with inter partes reviews (IPRs). The examiners can be stopped or their decisions overturned without the courts getting involved (someone filing an actual lawsuit). This whole process (as per AIA) has been good and it has thus far limited the scope/quantity of litigation i.e. the rates of frivolous lawsuits. Put another way, this has improved access to justice.

PTAB was until recently headed by David Ruschke, its chief judge. Ruschke's exit (from this role) has just been mentioned by a patent maximalists’ site, Managing IP, where Ellie Mertens wrote the following summary this week:

As of September 2, David Ruschke stepped down from his post as chief judge at the PTAB and moved into a role across the agency as senior advisor to patents.

We don’t know the motivation and cannot tell whose idea it was; did Iancu create a bogus new role through which to ‘decapitate’ PTAB? It’s hard to tell because there’s no transparency. Iancu mentioned this in passing when he spoke to Watchtroll, an aggressive site which is again sobbing for patent trolls, alluding to case we covered some days ago. “The Courts unfortunately seem content to allow the PTAB to continue unabated,” Watchtroll said yesterday as if PTAB is the enemy and scammers who misuse tribal/sovereign immunity are fine people. Yes, they actually defend them! Things have gotten so bad for patent maximalists that they advocate scams.

PTAB was also smeared the day prior to that. To quote:

Relying on internal USPTO policies and former PTAB judges’ personal experiences, a recent spate of commentary has provided different explanations regarding the rarity of dissents for ex parte appeals. We were still left wondering why some judges go out of their way to write dissents. In an effort to better understand this issue and what the dissents might reveal about the ex parte appeal process in general, we conducted a statistical analysis of dissents in recent ex parte appeal decisions.

“We” as in the patent microcosm. They try hard to defend bogus, invalid patents.

PTAB does not help trolls; it does the exact opposite and those who attack PTAB often turn out to be in the business of suing (or representing trolls).

Here’s a new example of PTAB being leveraged against a patent troll that attacks real companies. Sound View’s patent is “determined to be likely invalid,” Unified Patents wrote yesterday after it had filed an IPR:

On September 10, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 9,462,074 owned and asserted by Sound View Innovations, LLC, a well-known NPE. The ’074 patent, directed to “caching techniques to support streaming media storage and distribution in a network,” has been asserted in multiple cases against such companies as Facebook and Hulu.

Facebook is a supporter of PTAB through HTIA, which was very actively promoting PTAB lately. As we noted in the weekend, Watchtroll actually called Facebook a "troll" for trying to defend itself from one. It’s amazing just to what levels of distortion these people would resort.

Here is Mike Masnick saying — in his own words — that Blackberry “has always been more of a patent troll.”

Many others have been saying the same thing, even some patent maximalists.

From Masnick’s post at TechDirt, which he published yesterday afternoon:

Blackberry, the Canadian company that briefly made semi-popular devices for people at companies thanks to their physical keyboards, has always been more of a patent troll. While the company was on the losing end of one of the most famous pure patent troll cases in the past few decades, we have noted in the past that the very reason the trolling operation NTP sued Blackberry (then RIM) was RIM/Blackberry’s own ridiculously aggressive patent shakedowns of other companies, which caught the attention of NTP’s principles in the first place. Since the demand for actual devices from Blackberry has shrunk to “wait, those guys still exist?” levels, it’s focused again on patent shakedowns.

Back in March, the company sued Facebook claiming that Facebook was infringing with some fairly basic concepts related to mobile messaging. While there were a number of different patents and claims in the original 117-page complaint, many of them are clearly bonkers. There is no reason why this stuff should be patented at all. Take, for example, US Patent 8,209,634 for “Previewing a new event on a small screen device.” Believe it or not, Blackberry has patented adding a little dot showing you how many unread messages you have. Really.

To summarise, what we now have is a bunch of sites that represent the interests of the litigation ‘industry’. That primarily means patent trolls as they account for the lion’s share of lawsuits. They’re absolutely happy to call victims of trolling “trolls”, to constantly sob for patent trolls like Intellectual Ventures, and to defend scammers whose goal is to dodge PTAB by defrauding the system. The arguments of these people have become so weak and so fragile that some of them ceased their efforts, as we noted in our previous post. They’re basically giving up.

The Belated Demise of Propaganda Sites of the Litigation ‘Industry’

Posted in Deception, Patents at 12:47 am by Dr. Roy Schestowitz

Lex Machina Q4 2017 End of the Year Litigation Update
Source: January’s report

Summary: Sites that promote the interests of Big Litigation (patent trolls, patent law firms etc.) are ebbing away; in the process they still mothball the facts and push propaganda instead

THE USPTO may be claiming all sorts of records, but US patent courts actually saw 50% more 'action' half a decade ago. The legal certainty associated with US patents has simply nosedived since, partly owing to SCOTUS, whose decisions were taken into account by the Federal Circuit. The Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) also invalidated many US patents outside the courts.

“The legal certainty associated with US patents has simply nosedived since, partly owing to SCOTUS, whose decisions were taken into account by the Federal Circuit.”Bizarre and outright stupid patent applications continue to be filed (example from yesterday), but that does not mean that these patents — if/once granted — have any real value except perceived value, especially when assessed in bulk (companies that just amass lots of crap patents which they assume never get reassessed at any point in the future).

The one encouraging aspect of the collapse of the patent litigation ‘industry’ (it’s not really an industry but a parasite) is that its think tanks and propaganda outlets are rotting away. Good riddance. One such propaganda outlet is trying to tell us that there’s a patent litigation resurgence, but it’s based on distortions. And “according to data pulled from Docket Navigator on September 7 2018,” Managing IP says that “US district court patent litigation rises 20% in August” (that’s the headline). Rises compared to what? August needs to be compared to August last year, not July. Surely Sanjana Kapila knows that? From what’s outside the paywall:

Data pulled from Docket Navigator reveals US district court patent case filing increased in August over July, with PersonalWeb extending its lead as the year’s top plaintiff

August and July are quiet months (people are on holiday) and for any meaningful comparison one must assess the same months (in different years). See the very clear fluctuations in the above graph (same source/data, previous years).

But such is the nature of propaganda being crafted and it’s obvious who pays for it. Just check the sponsors of the publication and its events, subscribers, etc. They call themselves “media”, but this so-called ‘media’ organised UPC propaganda events, sometimes with the EPO involved. They’re propagating lots of false predictions (basically just pure lobbying and lots of lies about desirability of UPC) and now we know that UPC is already dead. Team UPC, however, is fantasising about trying it all over again, this time differently. Guess who promotes these talking points

Managing IP writes: “If the UPC agreement is amended for Brexit, it could open up the system to non-EU member states. Olivier Corticchiato at Nestle in Switzerland says that is an important possibility for his company.”

It cannot just be “amended”. Ratification in pertinent states then needs to be redone. UPCA is a mess.

“As the patent litigation ‘industry’ collapses funding for its propaganda outlets will dry up, too.”We expect Managing IP to continue with this nonsense, so we’ll monitor it closely and correct it. IAM is now hiding behind paywalls (made a lot more aggressive a fortnight ago) in order to dodge scrutiny (i.e. pointing out the lies it keeps repeating). Watchtroll too seems to be rotting away. In January the number articles there was 106. Last month it already dwindled down to 72 (gradually over the months). And now they’re looking for a writer, perhaps realising that the site is losing steam and even moving away from the subject of patents (to totally unrelated things, sometimes not even copyrights and trademarks). We reckon they just don’t get much traffic anymore and at the current pace, there will be no more than 60 article by month’s end (for September).

It is all pretty much expected. As the patent litigation ‘industry’ collapses funding for its propaganda outlets will dry up, too. Watchtroll has been reduced to little more than attacks on judges, on courts, and on politicians who aren’t pro-litigation. The whole thing has become so farcical that only a Trump 'stooge' can actually appreciate it.

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