01.31.19

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Fake Software Patents, Patent Trolls and Assault on Generic Medicine in Europe

Posted in Europe, Patents at 7:55 am by Dr. Roy Schestowitz

Now that the European Patent Convention is effectively abolished (EPO President António Campinos does not obey it) the future is grim

EPO escalation

Summary: The state of the European patent system is starting to resemble that of the United States about a decade ago; the status quo is seriously detrimental to all except lawyers and aggressors (at the expense of public health, science and technology)

THE escalation or the escalating severity of EPO problems isn’t too hard to see; without any sense of shame, for instance, the patent microcosm is promoting illegal software patents (not allowed in Europe) in private (echo chamber event where no dissenting views are permitted/invited). As revealed in their tweets (with photos): “Huge thank you to @Copytwilight, Ana Andrijevic, @MichelJaccard, @bastianbest and @PHeckeler for sharing their views this afternoon at the “AI & Intellectual Property” track @appliedmldays.”

Watchtroll, similarly, promotes software patents ‘dressed up’ as “AI” and even as "Blockchain". “Techniques for Patenting Blockchain in Europe, the United States, China and Japan” is the latest output from this site, which acts more or less as a front for patent trolls.

“This system is systematically discriminatory (against the small).”Europe has attracted quite an influx of such trolls, as measured by the number of cases filed, especially in Germany.

“Trolls in Dusseldorf, the Eastern District of Europe. At least VW is a large company, they can afford litigation, which is not the case for most of us, small companies,” Benjamin Henrion wrote, citing a report from Mathieu Klos about the patent trolls infestation in Europe. The gist of it:

Germany’s largest carmaker Volkswagen faces the next lawsuit from an non-practicing [troll] entity. Dutch company Innovative Foundry Technologies filed an infringement suit against VW, Ford and Texas Instuments at the Regional Court Düsseldorf before Christmas. The patent covers a special chip manufactured by Texas Instruments that VW and Ford install in the infotainment modules of their cars.

There probably would be out-of-court settlements if the targeted companies were smaller. This system is systematically discriminatory (against the small). As we noted earlier this month (see “The EPO’s Low Patent Quality Can Kill the European Software Industry and Kill People Too” and what we wrote yesterday about cancer patients), poor people literally die because of patents like these. Yesterday Selin Sinem Erciyas (Gün + Partners) wrote in IAM (blog of patent trolls) about a Turkish generic company coming under attack from likely bogus European Patents granted by examiners under pressure and in a rush. Now they’re reassessing (belatedly). In her own words:

A Turkish generic company filed an invalidation action against a leading US pharmaceutical originator company in Turkey and requested the invalidation of its patent – a Turkish validation of a European patent granted by the EPO. The opposition proceedings were still pending before the EPO at the filing date of the invalidation action in Turkey. The patent owner subsequently requested a delay of the national proceedings, stating that the patent claims could still be amended during the opposition and appeal proceedings before the EPO.

Well, opposition and appeal proceedings can be slow and overburdened. The number of pending appeals, for example, is said to have skyrocketed to around 10,000. This is insane. Team Battistelli planned to just get rid of these appeal proceedings, replacing the Boards of Appeal (BoA) with the UPC. Tom Lorkin of Dehns (Team UPC) has just remarked on the dependent and afraid BoA trying to determine patent scope while illicitly ruled and intimidated by abusive EPO management, even in gross defiance of the EPC that governs this entire framework. Lorkin mentions T990/96 and T1085/13, which can in turn relate to medicine, too. To quote:

In what may come as a welcome departure from existing practice, an EPO board of appeal in decision T1085/13 has clarified the conditions under which patents can be granted for known compounds at higher grades of purity.

A leading case concerning purity of materials has been T990/96 where it was held that a document disclosing a compound for the first time ordinarily makes the compound available in all desired grades of purity. EPO practice has been to view the earlier disclosure as novelty destroying to a later claim in which the same compound is claimed at a higher purity. To take an example, a document discloses a new dye, which is manufactured in 90% purity. The position based on T990/96 is to assume that that dye can be purified to all levels of purity by conventional methods and so is made available to the public in all desired grades of purity. Consequently, a later application claiming that dye in 95+% purity would lack novelty over the earlier disclosure.

This EPO board of appeal is certainly aware that it enjoys no independence from the rogue management of the Office; so what can be made of its decisions? The EPO boards of appeal generally complain about this repeatedly.

“Who benefit from this? Certainly not Europe.”What we’re seeing more evidence of, over time, is the impact of the Battistelli era; patent trolls, software patents, invalidation of European Patents in courts and lack of access to life-saving medicine. Who benefit from this? Certainly not Europe.

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