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02.19.19

What Happened in the United States Now Happens in Europe: Lots of Patents Turn Out to Be Bunk, Fake, Bogus, Invalid and Thus Worthless

Posted in America, Courtroom, Europe, Law, Patents at 5:09 am by Dr. Roy Schestowitz

Low patent quality has done incredible harm/damage to confidence in the system

Cardboard recycling

Summary: Worthless patents — not opposition to such patents — are the greatest threat to the legitimacy of the patent system, yet bureaucrats fail to heed the warning in the name of short-term profits

HERE AT TECHRIGHTS we’ve been following the U.S. Patent and Trademark Office (USPTO) for more than a decade and a half (I wrote about it long before the site even existed). When I was about 20 I was upset to see Graffiti input on Palm being destroyed by patents. I wrote about it in my personal blog. Such ridiculous US patents could possibly be used by a relic like Xerox to embargo — e.g. via ITC — devices I so often used (I still own and use a Palm PDA). The workaround was known as Graffiti 2, which is vastly inferior. The PDA I use was manufactured in 2003 — the same year Graffiti 2 was introduced, so I’m lucky to have dodged this sabotage by patents. For those who wonder what got me upset at such patents (software patents), that was it. Richard Stallman often attributes the creation of GNU and then the FSF to Xerox printers that upset him. So I share more than my initials with him and we’ve been good friends. We share our views on patents and the European patent system.

Things have changed a lot since, especially in 2014 when SCOTUS ruled on Alice, giving rise to 35 U.S.C. § 101 as we now know it.

“We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents.”Seeing what happens in the US this year, we’re not even tempted to resume coverage of it. Virtually all cases are concluded the way we’d like them to. Janal Kalis (“Patent Buddy”) is still obsessing over mere patent applications, as PTAB and district courts have nothing for these patent maximalists to celebrate. This week he wrote: “The PTAB Reversed an Examiner’s 101 Rejection of Claims for a Method of Detecting Similar Objects” (the exception).

Usually it’s the other way around. We also note that patent extremists blame “big tech” for the demise of software patents, never mind if “small tech” (firms) too pushed towards that. “They ‘happen’ to be those who also produce a lot of software,” I replied to him, “unlike patent trolls and law firms, so…”

“It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.”Readers can probably agree that what happened in the US after Alice, more so in recent years as caselaw shaped up, was overwhelmingly positive. Developers were able to focus on actual work rather than hire lawyers.

We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents. The European Patent Office (EPO) under the leadership of António Campinos is a very vocal booster of software patents in Europe. The managers at the Office, preoccupied and obsessed with so-called ‘production’, are still trying very hard to break the rules (e.g. misinterpret the EPC) and grant bogus patents — European Patents courts would reject such as "blockchain" patents.

The EPO has already admitted these are software patents as so does Bastian Best on Twitter, soon to be retweeted by EPO (official). The EPO reposted this yesterday: “For the blockchain enthusiasts in my network: Koen Lievens does a great job in this video explaining how #blockchain inventions can be #patent’ed at the @EPOorg. Hint: It’s the exact same standard as for any other type of CII.”

What are these people thinking? Bearing in mind the EPO's own admission of quality problems (albeit internally only, for now), shouldn’t they quit this madness? Sooner or later all these patents will fall in an avalanche like Alice in the US.

Meanwhile, judging by yesterday’s long post from IP Kat, the non-impartial and not-so-independent (i.e. partially dependent) EPO appeal boards are hard to rely on as long as Battistelli and Campinos, two crooked patent maximalists, control them. Watch this latest situation:

A recent decision by the EPO Technical Boards of Appeal (TBA) departed from previous boards on how the novelty of the increased purity of a known compound is to be assessed. In T 1085/13, the TBA diverged from previous decisions that established special criteria for determining the novelty of a claim directed to a known compound of increased purity. The decision also ignores the criteria set out in the EPO Guidelines for Examination. These state that to be novel a selection invention must be “purposive”. The decision therefore confirms that the EPO is prepared to depart from its previous positions on the criteria for assessing the novelty of selection inventions. It seems that, for the purpose of assessing novelty, the TBA are now in favour of applying the same novelty criteria to these inventions as to any other type of invention, and nothing further.

[...]

As far as this Kat is aware, T 1085/13 is the first decision by the TBA to depart from the “special criteria” for purity inventions provided in T 0990/96 (although she is happy to be corrected on this if readers are aware of any earlier decisions).

T 1085/13 also appears to have ignored the criteria for selection inventions established by earlier TBA (and outlined in the EPO guidelines for examination) that a claimed selection must constitute a “purposive selection”. This is in line with other recent decisions of the TBA. It therefore appears that the third criteria for the novelty of selection inventions is being phased out, although this is still not reflected in the most recent EPO Guidelines for Examination. If this really is to be the new position of the EPO, is it not time for these changes to be reflected in the guidelines? This Kat also awaits with interest to see whether this latest decision on purity inventions will be followed by subsequent boards and the Examiners.

Guidelines should be based on law, not so-called ‘production’ aspirations. This is akin to what Iancu does at the USPTO, in effect mimicking Battistelli. Judges are being pressured and condemned.

As further evidence of the decline of quality of patents (EPO and USPTO in this case), watch these two new reports (from yesterday) [1, 2] as they cover something we wrote about some days ago (based on the original press release). The gist of it is, the EPO admits it granted false patents… yet again (not just the USPTO, where such invalidation is a lot more common with Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs)).

To quote the first report:

The European Patent Office (EPO) and the US Patent and Trademark Office (USPTO) have both invalidated patents owned by Immunex Corporation.
The patents cover antibodies that target human interleukin-4 receptors.

Regeneron Pharmaceuticals had opposed the patents, arguing that European patent 2,990,420 and US patent 8,679,487 were invalid due to the insufficiency of disclosure.

The EPO invalidated Immunex’s European patent a day after the USPTO’s Patent Trial and Appeal Board invalidated all 17 claims of the US patent due to obviousness.

Joseph LaRosa, executive vice president of Regeneron, commented: “We applaud decisions by the US and European patent offices this week, which invalidate Immunex’s functional patent claims to antibodies that target human IL-4 receptors.”

The second such report says:

Regeneron Pharmaceuticals (Nasdaq: REGN) has announced two important legal developments invalidating Immunex patents with functional claims to antibodies that target human interleukin-4 receptors (IL-4R).

On Friday, the Opposition Division of the European Patent Office (EPO) revoked wholly-owned by Amgen (Nasdaq: AMGN) subsidiary Immunex’ European Patent No 2,990,420 in its entirety because the claims were invalid for insufficiency of disclosure. This follows a decision by the Patent Trial and Appeal Board (PTAB) of the US Patent & Trademark Office (USPTO) to invalidate all 17 claims of Immunex’ US Patent No 8,679,487 as obvious. These decisions are subject to appeal by Immunex.

Regeneron’s shares closed up 2.17% at $423.79 on Friday, while Amgen dipped 1.51% to $185.50 in after-hours trading.

“We applaud decisions by the US and European patent offices this week, which invalidate Immunex’ functional patent claims to antibodies that target human IL-4 receptors,” said Joseph LaRosa, executive vice president, general counsel and secretary, at Regeneron. “It is our position that Immunex’ functional claims unfairly attempt to claim ownership far beyond the molecules developed, and stifle innovation within the broader scientific community,” he added.

It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.

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