09.28.18

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In the EPO Under António Campinos and His Predecessor Battistelli Patents Can Almost be Presumed “Invalid” (in Courts)

Posted in Europe, Patents at 4:20 am by Dr. Roy Schestowitz

The EPO’s new “away” uniform?

EPO white flag
EPO logo with white background (whitewashing)

Summary: By lowering patent quality for the sake of faked ‘growth’ (in patent awards, not innovation) the patent offices merely harm the perception of patents as valid until/unless proven otherwise

THE EPO and the U.S. Patent and Trademark Office (USPTO) both have a patent quality problem. The new USPTO Director seems not to care if SCOTUS narrowed patent scope (recall Iancu's speech at an IPO event). Neither does the ITC, unlike the Federal Circuit, which typically affirms Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), citing 35 U.S.C. § 101. As for the EPO, it regularly promotes software patents in Europe, more so under António Campinos. They use all sorts of buzzwords and three-letter acronyms (sometimes two- and four-letter acronyms), but the net effect is the same. Abstract patents, which national courts would likely reject, get granted.

What good are patents if or when there’s no legal certainty associated with them? It almost defeats the very essence and purpose of patents.

Professor Dennis Crouch has just taken note of this utterly ridiculous patent which looks like something a child would draw on a chalkboard. The USPTO would become a laughing stock for patents like these. As Crouch put it: “Morgan Irons patented “Ecological System Model” is pretty cool — although deceptively simple. U.S. patent No. 9,970,208 — focusing on space agriculture.”

Crouch has also just noted a decline in the number of patents granted in the US (as projected earlier this year). The overall number is still far too high and many of these are bunk, bogus, worthless as courts would reject them anyway. “We’ve reached the end of FY2018,” Crouch wrote. “During the year, the USPTO has issued just over 300,000 patents. This is a small drop from FY2017, but the second highest year on record.”

Professor James Bessen has meanwhile noted (on Twitter) a new article titled “China Claims More Patents Than Any Country—Most Are Worthless”. This doesn’t surprise us at all as we have been saying this repeatedly for years. The trouble is, Europe and the US go down the same path now; desperate to ‘catch up’ with China, they too try to lower patent quality and grant a lot of dubious patents.

World Intellectual Property Review has just written about the EPO using China as somewhat of role model for patents (even though Chinese patents are regarded as somewhat of a joke). “EPO and CNIPA sign bilateral co-operation agreement,” IPPro Patents said in its headline.

IP Watch, which stopped covering EPO scandals (and its chief took selfies with Campinos, which may or may not say something), wrote some time yesterday about Korea’s patent office (KIPO) using buzzwords to help applicants bypass their own restrictions on software patenting. They even use the EPO’s favourite buzzword/term, “4IR”. To quote this new interview: “To this end, KIPO will strive to secure strong, high-quality patents to have competitiveness in key technical fields of the 4IR such as artificial intelligence (AI) and the Internet of Things (IoT).”

“They even use the EPO’s favourite buzzword/term, “4IR”.”So does KIPO too lower patent quality, in the name of facilitating/respecting buzzwords? The trouble is, affirmation rates in courts are rather low, which means that a lot of awarded patents can now be presumed invalid. So what good are these really? A paid press release (blocked in EU due to GDPR) was released this week and it’s titled “TFF Pharmaceuticals Receives Notice of Intention to Grant European Patent for Its Thin Film Freezing Process, Providing IP Protection in Europe until 2028″ (but is it valid?)

In the US, even patent maximalists are currently sceptical of the situation. They don’t believe that being more lenient in granting is the ‘solution’ but making the courts more lenient should the goal (i.e. lowering the patent bar). As one patent maximalist put it: “Likely example of what Iancu’s standard will stop: PTO INVENTING NEW categories of judicial exceptions: “claims are directed to the abstract idea of “using categories to organize, store and transmit information” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018001127-09-13-2018-1 …”

That would not, in any way whatsoever, change how courts view these patents. Director Iancu is like a ‘mole’ of lawyers (like himself); he or his firm had worked for Trump before he became Director and IPPro Patents belatedly covered his speech as follows: “The US must stop commingling the categories of invention with the conditions of patentability, according to US Patent and Trademark Office (USPTO) director, Andrei Iancu.” [via]

But again, that would not change what courts decide. “Iancu says guidance is needed on patentable subject matter eligibility to get out of a “rut”, particularly on the how Section 101 is different from Sections 102, 103 and 112,” Michael Loney wrote. Maybe what’s needed is higher patent bar, even if that means far fewer patents being granted. As Benjamin Henrion put it: “Iancu could have just copy/pasted the European Patent Convention art52, but he just wanted software patents back, and abolish Alice for its clients…”

Well, Iancu does not obey courts; like the President who appointed him, he just overrides the courts. He thinks he’s a lawmaker or something.

“Really,” said one reasonable observer, “it’s Iancu who needs to get on the same page as the courts — particularly the Supreme Court, which does get the final say in these matters until and unless Congress acts. Iancu doesn’t get to make the rules; that’s just how it goes.”

She was citing/quoting the maximalists as saying: “So its nice that Iancu is working on 101, but the courts also need to get on the same page. Whats the point of the PTO fixing their 101 issues only to have the courts kill patents on the same 101 issues a few years later when the patents are enforced?”

This maximalist later clarified to her: “I agree. Proposing all of these changes on 101 is a waste if the courts are going to kill on the same issues. What’s the point? IP still not enforceable. [] While issued patents are valid they aren’t worth the ink or the paper unless they can be enforced. So the pto stops rejecting on 101 and issues SW patents again at a higher rate. PO tries to enforce in court down the line and gets killed due to 101. Massive waste of time & money…”

She later added (lots more in there from her): “Issued patents are *presumed* valid; they are not conclusively valid as an evidentiary matter. If a defendant in an infringement case proves by clear and convincing evidence that the patent was erroneously issued, then the presumption is defeated.”

Therein lies the danger to the EPO. What good are European Patents that aren’t presumed valid or likely to be considered invalid by courts? Lawyers may benefit, but nobody else…

“That’s called the “Rule of Law”,” Henrion remarked on the above conversation. “US is lucky, in Europe we have the EPO that is not bound by any court, and don’t give a damn if for ex the French courts are saying their practice to grant swpat [software patents] don’t have a legal ground. So you are lucky.”

“That’s separation of powers and rule of law for you,” another person remarked.

We cannot have patent offices deciding the rules by which they’re governed. That would be even a laughable proposition in a country like China. We’ll say a lot more about it in the weekend (in relation to the US).

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