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12.09.18

Florian Müller’s Article About SEPs and the EPO

Posted in Europe, Patents at 9:51 pm by Dr. Roy Schestowitz

Summary: Report from the court in Munich, where the EPO is based

THE writings of Florian Müller have become more frequent lately. He used to write about the European Patent Office (EPO) after he had campaigned — quite famously in fact — against software patents in Europe.

His latest article, which deals with “standard-essential patents” (SEPs), may be of interest to EPO insiders. Here’s a portion:

While “standard-essential patents” (SEPs) is one of the most common terms in the tech sector, it would sometimes be more accurate and inclusive to refer to “standard-essential intellectual property rights” (SEIPRs). That collective term would include both SEPs and SEUMs: standard-essential utility models. Utility models are a German specialty, basically a second-class type of patent with a shorter term but instant registration (no substantive examination). This blog covered a utility model case years ago when Apple asserted a slide-to-unlock utility model against Samsung in Germany; that case got stayed over validity concerns and never went anywhere. Beyond German utility models, the collective term “SEIPRs” would cover any other IPRs that may exist in other jurisdictions and are like patents, but aren’t called patents.

Yesterday I went to the Munich I Regional Court to watch a standard-essential utility model case, Netlist v. SK Hynix and HP, over German utility model no. DE2020100185017, which was derived last year, in preparation of this lawsuit as counsel for Netlist explained, from a pending European patent application, EP2454735 on a “system and method utilizing distributed byte-wise buffers on a memory module.” From what I’ve been able to find out, this patent was declared essential to a JEDEC memory standard.

An EPO patent examiner rejected the application, though Netlist is still trying to persuade the EPO to grant a patent. But in parallel to that effort, they quickly took out a utility model, with claim language drafted specifically for the purposes of the lawsuit against SK Hynix and HP, and sued in Munich.

Wrong patent grants can have devastating effects not just for large companies but also individual engineers/developers. This is why we so aggressively campaign for patent quality at the EPO. Granting patents isn’t the equivalent of growing fruit because patents are essentially monopolies, not products.

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