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01.30.19

People Are Dying Because of Low Quality of (Wrongly-Granted) European Patents

Posted in Europe, Patents at 5:16 am by Dr. Roy Schestowitz

While the media and so-called ‘IP’ blogs look the other way

Science|BusinessSummary: EPO puff pieces and shallow coverage help distract from the crisis of patent quality in Europe — a crisis that now culminates in real threats to women with breast cancer

ASK anyone at the European Patent Office (EPO) and they’ll tell you that quality of patents isn’t what it used to be. Everyone knows it, even the management. Some people are in the job of publicly denying this (not privately) and many are afraid to openly speak about it. Stakeholders, notably law firms, have already complained although they too have something to lose (clients walking away from them, i.e. fewer patent applicants). SUEPO is being threatened if it dares bring up the subject (we’ve given examples). This is hardly surprising given the rushed pace of work and internal leaks from a couple of years ago.

“This is hardly surprising given the rushed pace of work and internal leaks from a couple of years ago.”Patents are not a game; economies and lives are at stake. It’s not a ‘sport’ and it’s not ‘showbiz’.

Yesterday the EPO retweeted this nonsense which says: “From 2011-2017, European #patent applications for #AutomatedDriving technologies increased fourfold, according to the latest data from the European Patent Office ( @EPOorg).”

They’re merely reclassifying old things for hype waves (e.g. calling algorithms “AI”, even retroactively) and granting fake patents (patent which courts would reject) that are abstract. Science Business, based on what it published earlier this week, is still in the business of writing propaganda/puff pieces for the EPO [1, 2] in order to help software patents agenda in Europe. This is what it has just published:

From 2011 to 2017, European patent applications for automated driving technologies increased fourfold, according to the latest data from the European Patent Office (EPO). This is by far the largest increase in the number of patents, with EPO reporting a 16 per cent increase across all technologies in the same period.

Half of the top 25 companies active in the field of automated driving at the EPO are not traditional automotive companies, including the top four applicants, Samsung, Intel, Qualcomm and LG.

These are patents on things like computer vision, my research discipline, which boils down to implementing mathematics (e.g. geometry) on a computer. Not many of these have anything physical to show. Nothing.

“These are patents on things like computer vision, my research discipline, which boils down to implementing mathematics (e.g. geometry) on a computer.”But wait. It gets worse.

Having previously covered the EPO’s threat to patients with cancer [1, 2], we were interested to see yesterday’s post from IP Kat. Embargoes are being initiated using patents — questionable patents that will kill poorer women with cancer. The mortal damage and great suffering (in the process) caused by dubious European Patents that should never have been granted in the first place isn’t a subject that IP Kat covers. Heck, today IP Kat never even mentions the patent quality problem and the EPO corruption that kills people, sometimes literally. IP Kat has at least given up on UPC jingoism, seeing that it was a lost cause anyway. Here is what IP Kat wrote yesterday:

The English Patents Court recently handed down a decision granting Novartis a preliminary injunction to prevent infringement of its second medical use patent protecting sales of its breast cancer drug everolimus (marketed as Afinitor) – Novartis Pharmaceuticals UK Limited v Dr Reddy’s Laboratories (UK) Limited [2019] EWHC 92 (Pat). Dr Reddy’s opposed the injunction on the basis that the patent in issue is invalid on the basis of added matter but did not otherwise dispute infringement.

What is interesting about the decision is that the High Court reached a “provisional but clear” view at the interim hearing that there is no added matter in claim 1 of the patent. This differs from the EPO’s decision of September 2018 in opposition proceedings, where the patent was found to be invalid for added matter under Art 123(2) EPC (see EPO decision here). The EPO decision is currently under appeal.

[...]

What happened in the EPO opposition proceedings? The EPO applied the principle that selecting items from two lists means that a claim may contravene Article 123(2). This is expressed in the European Patent Office’s case-law textbook in its current edition – see paragraph 1.4.2 of section II.E.1 Article 123(2) EPC). It reached the conclusion that there is no specific pointer to the specific combination therapy claimed (further detail can be found from paragraph 3.2 of the EPO’s decision).

[...]

The judge, Birss J., also proposed writing to the EPO to notify it of the UK infringement proceedings and to request expedition of the EPO appeal. He noted that Dr Reddys are not prevented from raising additional arguments on validity at the UK trial.

Are courts rushing to mob ‘justice’ here? Before the legitimacy of the patent/s in question is even known? That’s what the US ITC did after the Patent Trial and Appeal Board (PTAB) had rejected a Cisco patent, following an inter partes review (IPR). Do we want an embargo-centric trigger-happy system, such as what Team UPC envisions and lobbies for (on behalf of companies like Novartis, which make a killing out of cancer)?

“Miracles and justice are mutually exclusive. We need justice, not “miracles”.”At the moment, Team UPC hopes that its corruption will yield something, bypassing national courts and handing more power over to an EPO-connected bureaucracy. “Miracle needed,” Heuking Patent Law Team wrote on Twitter yesterday. To quote: “Only 2 months until #Brexit . Agreement regarding the European #UnifiedPatentCourt not in force yet. No decision of the German Constitutional Court on the related complaints yet. No brexit deal. Ongoing debate in the House of Commons. Miracle needed.”

Miracles and justice are mutually exclusive. We need justice, not “miracles”.

“As if there’s no other EPO scandal — a real one — to be covering. IP Kat has instead been covering up, e.g. by deleting all comments about António Campinos and not mentioning him since.”As we explained some weeks ago, the 'Kats' have become part of the problem; they’re not writing about the UPC’s demise and EPO corruption anyway (does not suit their agenda). These Kats’ blog deals with non-scandals, such as the EPO’s drawing requirements — a shallow post that attracted this IP Kat comment: “The Korean Patent Office accepts colour photographs. These could present problems in getting legible drawings for EP filings. In one case where the draftsmen we used had great difficulties, I got much better results using a basic image processing program that came with my ancient Windows 98 PC that could render continuous tone images as contours of different patterns.”

As if there’s no other EPO scandal — a real one — to be covering. IP Kat has instead been covering up, e.g. by deleting all comments about António Campinos and not mentioning him since. Censorship followed by self-censorship.

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