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12.05.18

The Patent Litigation Bubble is Imploding in the US While the UPC Dies in Europe

Posted in America, Europe, Patents at 4:09 am by Dr. Roy Schestowitz

Scientists have the upper hand after all; the so-called ‘litigation industry’ loses grip

“The day that the software sector forms a clear front against software patents, as pharma does for a unitary patent system… will be the day our cause comes close to winning.”

Pieter Hintjens

Summary: The meta-industry which profits from feuds, disputes, threats and blackmail isn’t doing too well; even in Europe, where it worked hard for a number of years to institute a horrible litigation system which favours global plaintiffs (patent trolls, opportunists and monopolists), these things are going up in flames

THOSE who make a living out of science and technology may sometimes pursue patents. Readers of ours, including workers of the European Patent Office (EPO), already know too well that we’re not against patents, we’re against software patents. Some people make a living out of litigation alone, notably lawyers and patent trolls. They’re parasites that merely tax science and technology and it would be a shame if these parasites took over the patent system — a subject we’ll address in our next post.

In reality, however, the trend in the US is encouraging; litigation that involves patents — typically software patents — has nose-dived and patent maximalists’ front groups hope for salvation, bringing up news from as far back as October. “ICYMI,” (in case you missed it) they wrote this week, “Fmr. @USPTO Dir. Kappos and Judge Michel in @MorningConsult: #SupremeCourt decisions on #patent subject matter eligibility are undermining health care #innovation. https://morningconsult.com/opinions/supreme-court-patent-decisions-stifling-health-care-innovation/ …”

“In case you missed it,” I’ve told them, “David Kappos is now a lobbyist. USPTO encourages this kind of corruption.” (former officials becoming lobbyists)

Meanwhile, Dennis Crouch published for patent maximalists and then revealed just how patent maximalists react to the implosion of the patent litigation bubble in the United States Patent and Trademark Office (USPTO). “District Court Patent Litigation Way Down,” says the headline, which is based on data from LexMachina. To quote: “There are several ways to measure the relative amount of patent litigation — but the easiest way is to look at new case filings. The chart below comes from LexMachina data and includes a forecast for the remainder of 2018. Note the continued slide in patent infringement complaints — down about 45% from 2013.”

We took note of it earlier this year. It’s pretty remarkable. It’s also devastating to courts that gambled on attracting trolls.

Now, what about Europe? Data indicates that patent trolls are definitely on the rise in the EU, especially in Germany. This is exactly what Team UPC wants as many of the pertinent firms work for patent trolls, many of which aren’t even European.

Yesterday we stumbled upon not one but several misleading news articles and blog posts. Here’s a short roundup. “Guest contributor” (anonymous person who could just as well be a PR agent of the EPO) wrote this nonsense in a so-called ‘news’ site called “EU Reporter” (little but a marketing site). It’s like an EPO press release (almost). Who’s behind it?

Kluwer Patent blogger (probably Bristows) has meanwhile published “US Food Drug Administration will follow EMA and relocate in Amsterdam”. This may sound like a post about EMA, but it then goes on (pivots) to the completely unrelated lies about the UPC. This is what it said yesterday:

Whether the Brexit will lead to a relocation of the central division of the Unified Patent Court (UPC), specialized in life sciences and envisaged for London, is still an open question. Supporters of the Unitary Patent system hope the UK can stay in the system and London can keep its court branch. There has been a lot of debate whether this is possible – and even more about the question whether the UP system is likely survive the Brexit and the German constitutional challenge.

At a conference earlier this week however, Attilio Fontana, governor of the Italian region of Lombardy, made clear that he thinks the London based branch of the UPC central division should be assigned to the city of Milan.

According to the Italian press agency Ansa he said that after losing the EMA to Amsterdam: “Milan and Lombardy are the best place for the location of the patent court. (…) we must not make the same mistakes as happened with the assignment of the EMA. (…) The seat has to be reviewed immediately after the Brexit, and a joint effort is required of the Lombard government, region and municipality. The conditions for the assignment, I believe, are all there.”

Since the Brexit referendum of June 2016, organisations and government officials in Italy have claimed several times (see this post, for instance) the London division of the UPC should go to Milan.

Notice how they pack the two famous lies (that UPC is about to start and the UK can join with it only being a question/matter of time). It would not at all surprise us if Bristows wrote the above, exploiting the EMA news to interject these lies (repetition).

We’ve just noticed similar talking points from Morrison & Foerster LLP’s Alistair Maughan, Wolfgang Schoenig, Sana Ashcroft, Robert Grohmann and Jana Fuchs and this from Herbert Smith Freehills LLP’s Sebastian Moore, Sara Balice and Martina Maffei. They published something titled “Italy Moves the Unitary Patent a Step Closer” to give the completely false illusion (delusion) that UPC is coming. Never mind if ‘unitary’ patents were never enshrined/granted and whether Italy can at all do anything when Germany refuses to ratify (Germany is far more important to this than Italy).

As it stands, there’s no “agreement between the UK and EU27″, only a proposed one that will likely get rejected anyway, but watch what “Cambridge Network” published yesterday. It let a bunch of litigation firms lie about the UPC e.g. “retaining the UK in the Unitary Patent Court” (retaining something which does not exist and will never exist?).

Here’s the relevant part:

The document on the intended future economic relationship contains a single point on Intellectual Property: “Protection and enforcement of intellectual property rights beyond multilateral treaties to stimulate innovation, creativity and economic activity”. The meaning of this point is not clear, but could refer to retaining the UK in the Unitary Patent Court (‘enforcement beyond multilateral treaties’) and extending the reach of the EUIPO post-Brexit to the UK (‘protection beyond multilateral treaties’). This will be something to watch closely.

We understand that people who make a living from litigation want lots and lots of patent lawsuits. We totally get that. But at whose expense? Europe needs to find the balance between patents and innovation; overpatenting demonstrably harm innovation. UPC is all about overpatenting (so as to spur more lawsuits).

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