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01.11.19

The EPO’s Low Patent Quality Can Kill the European Software Industry and Kill People Too

Posted in Europe, Patents at 5:43 am by Dr. Roy Schestowitz

This isn’t just some game or competition between brands (as human rights and lives are at stake)

Office Life

Summary: The patents granted by the EPO are often invalid as per courts’ decisions, which means that fake/illegitimate European Patents saturate the market and discourage development (e.g. of software and life-saving drugs)

Yesterday, for whatever reason, the European Patent Office (EPO) tweeted almost nothing, but it then — later on — it retweeted the following:

The @EPOorg has opened its consultation on a postponed examination system. The consultation can be found at https://www.epo.org/law-practice/consultation/ongoing.html …, and will remain open until tomorrow, 11 January 2019

That’s today. This does nothing for patent quality, reinforcing the false impression that speed is the same as quality (by that definition, optimal quality would mean all decisions are made on the spot within one minute of application/submission). António Campinos follows Battistelli’s yardstick for “quality”. They conflate that with timeliness. It’s really that laughable and nowadays they pretend that giving applicants more control over timeliness (e.g. imposed delays/procrastination) is giving them “quality”. What about public interests?

“…they pretend that giving applicants more control over timeliness (e.g. imposed delays/procrastination) is giving them “quality”.”How about European software patents disguised as “AI”? Or as the headline from Paweł Kocańda (JWP Patent & Trademark Attorneys) has just put it, “Artificial Intelligence Patent?”

“EPO Gives The Green Light!”

To quote an example put forth by Kocańda (just algorithms, obviously, based on maths/statistics):

An example of an artificial-intelligence and machine-learning solution that would be patented by the EPO is the use of a neural network in a heart-monitoring apparatus designed to identify irregular heartbeats. Examples of technical character may also include classification of speech signals, digital audio or video, or digital images. It is important that patent applications directly or indirectly indicate a close link between the technical objective and the stages of a given method. A general objective, such as “control of the technical system”, will not be sufficient.

The next step after establishing the technical nature of the solution is to verify whether the solution is new and has an inventive step. If all the necessary conditions for considering the solution as an invention are met, we can start the patenting procedure.

So “technical effect” became (above) “technical character”, “technical system” and “technical nature” (in just the above two paragraphs), conjoined with “inventive step”. It’s that typical semantic nonsense to get around common sense.

Sandeep Basra (Haseltine Lake LLP) has also just posted this article about a case where the “first instance decision went in favour of the generic companies.” Generics save lives. Everyone knows that. Watch what had happened at the EPO though:

After surviving opposition proceedings at the EPO, the validity of the patent in Germany has been challenged, and the first instance decision went in favour of the generic companies. The EPO found that the skilled person would have no motivation to use pemetrexed in combination with vitamin B12 to reduce the toxic effects of pemetrexed. The judges at the German Federal Patent Court saw things differently and concluded that there are ample pointers in the prior art to arrive at the claimed combination. In particular, the skilled person would have known that homocysteine elevation is a sign of folic acid deficiency that can inter alia be caused by a vitamin B12 deficiency. As such, the claims were found to be obvious to the skilled person.

The judges emphasised that the conclusion reached is not in direct contradiction to the EPO decision due to the extensive prior art filed by the parties during the proceedings in Germany. Based on these documents, the first instance decision was reached without the use of expert witnesses.

This is why there are protests outside the EPO (not just staff’s). People’s lives are at risk when patents get granted in error. Policy can kill. The policymakers are then culpable. Sure, those who manage the EPO enjoy both immunity and impunity, but that’s another matter…

“UPC was an attempt to get around national courts and national patent law (scope), but that didn’t work out.”At the U.S. Patent and Trademark Office (USPTO), which we don’t cover much anymore (by choice), there’s a widening gap between examiners’ decisions and courts’ decisions. This reduces confidence in US patents and discourages legal action. Is the same happening to European Patents now? If so, it’s unlikely that law firms will publicly talk about it because their biggest ‘product’ is lawsuits and they don’t wish to discourage that. The same goes for patent applications at the EPO. They worry that applicants will find out what’s going on. UPC was an attempt to get around national courts and national patent law (scope), but that didn’t work out. Nor should it.

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