Bonum Certa Men Certa

The UK Supreme Court's Latest Decision is Ammunition for the FCC to Scuttle the Unified Patent Court Agreement (UPCA)

Team UPC is, understandably, going bonkers (feeling unlucky in the face of justice)

A black cat



Summary: The quality of European Patents is appalling enough that no courts would entrust EPO people with something like the Unified Patent Court (UPC); The UK Supreme Court has proven this point yet again and we suppose that the German Constitutional Court (FCC) pays close attention not only to dirty tactics from Team UPC (trying to trick the court into premature decisions, based on fabrications)

THE European Patent Office (EPO) suffered a blow some days ago because its impotent patent on impotence treatment was smashed to pieces at one of Europe's most respected courts, the UK Supreme Court.

"They're both spoiled brats of UPC, who on behalf of large (and international/foreign) pharmaceutical giants try to pass the UPC (ratify UPCA)."Marks & Clerk's Mike Gilbert and Jonathan Stafford wrote about it before the weekend, as did the liars and crooks from Bristows LLP. They're both spoiled brats of UPC, who on behalf of large (and international/foreign) pharmaceutical giants try to pass the UPC (ratify UPCA). We'll say more about that in a moment.

Here is what patent maximalists at Managing IP [sic] wrote about it:

The UK’s highest court yesterday affirmed that a patent licensed from former biotech company Icos to Eli Lilly for the erectile dysfunction (ED) drug Cialis (tadalafil) is invalid.


A couple of new comments have also just appeared at IP Kat [1, 2], another site of patent maximalists. It's about the highest British court finding that EPO granted this bogus patent. "Here is how there is a "reasonable expectation of success"," said the first of those two comments. "When you follow the reasoning, the court decided that when carrying out trials of the drug the skilled person would have investigated the effect of 25mg, 50mg, and 100mg doses. Doing this they would have inevitably found the dosage plateau. They don't need to have expected to find the plateau or have a reasonable expectation they would find it, it was an inevitability that they would find it just by carrying out the routine trials of the drug. Having found the dosage plateau that extends over the 25mg to 100mg range there is then a reasonable expectation that the lower end of the dosage plateau might extend down to 5mg."

Notice that the so-called 'innovation' is to do with dosages. The comment continued: "There is no hindsight in this assessment just a reasonable assessment of how the trials of this, or any other, new drug would have been carried out at the priority date of the patent. Essentially, the dosing patent is just the Applicant applying to protect the inevitable outcome of the clinical trials of the drug because it is different from what was envisaged in the original patent. There is no inventive step.

Why was it even considered patent-eligible? Imagine if something like UPC was tasked or assigned to rule on this...

The second comment said: "I perfectly understand this line of reasoning, but I still can hardly adhere to it. The criterion of "reasonable expectation of success" says what it says: was it expectable for the skilled person to find the identified effect at the time of filing ?"

Why is this even considered an invention? It's more like a recipe? Are cooking recipes next in line? We gave examples to that effect a few days ago.

“Importing the research process into that reasoning is no longer inventive step, because otherwise only new research processes could remain patentable, any finding based on known research processes would simply be obvious to try, whatever the efforts.”
      --Anonymous
"Research," the comment continued, "even being made in clinical trials, remains research, i.e. exploration of the yet unidentified (and unsuggested for inventive step). If the prior art would have suggested that this drug would be active at low doses, I would then have agreed that a motivation would exist to specifically look for the lower dosages. However, even though this exploration was made in standardized clinical trials, this remained research and exploration. Moreover, the inventors have no choice but to carry out this research in clinical trials because it is performed on humans. If the product would not have been a drug, hence would not have required clinical trials, the same dose-effect experiments would have been performed to find out what doses are the most efficient. And, if I follow properly the court's reasoning (and yours), it could then have been considered inventive because there would have been no clue how the inventors had come to this finding in theri research process. For all types of inventions, the more so for inventions in the life science field in which the "resonable expectation of success" principle has been developped, my view is always the same, inventive step does not have to be assessed based on the process how to come to a certain finding, i.e. the invention, but only on the facts available, in particular what the prior art is teaching and what level of skill does the skilled person have. Importing the research process into that reasoning is no longer inventive step, because otherwise only new research processes could remain patentable, any finding based on known research processes would simply be obvious to try, whatever the efforts."

This is similar to the 'Teffgate', where some arbitrary numbers were used to attribute "innovative" aspects to what's in nature (and has been in nature since before humans even existed).

It was very much expected that Team UPC firms (like the above) would condemn or spin or just moan about this decision. Team UPC is a very dishonest bunch which only cares about litigation, not science. Wait and watch their next stunts. They lie a lot.

As an example of their lies, consider this UPC 'book' spin. It's amazing and it's only days old. The FFII's President has already responded to it with: "The complaint is secret, on which basis they gonna discuss?" (the complaint)

"It was very much expected that Team UPC firms (like the above) would condemn or spin or just moan about this decision. Team UPC is a very dishonest bunch which only cares about litigation, not science."Basically, the longtime UPC booster (going by the Twitter handle "UPCtracker") wrote: "Oxford University press and CH Beck have published the legal commentary on the UPC (Tilmann/Plassmann ed.), an event which the German constitutional complainant saw as a bad omen or indicator his UPC complaint could be denied shortly. Case still pending, however."

So we're supposed to think, yet again, that there's a decision coming soon (dismissal). How many times before have they lied along those lines? We've lost count. The tweet (reply) from the FFII's President had us investigating the merit of the statement. It's basically a lie.

In fact, the book in question, namely its German version, has still not been published. Its publisher, C. H. Beck, currently announce it for "approximately May 2019" (see their German Web page). The book mentioned in the said tweet is the English version which is sold by a different publisher (Oxford University Press) and has been on the market since late summer of 2018 (see the same Web site but a different page). Although it has a higher price, it is commercially not as interesting as the German version which will sell in much higher numbers should the UPC become a reality. Either the said UPC advocate does not understand the difference between the two books, which we doubt, or he is acting against his better judgment, trying to spin a story suiting his own interests. Stay classy, Team UPC. Stay vigilant, FCC.

Recent Techrights' Posts

Taking a Moral Stand Against Strategic Lawsuits Against Public Participation (SLAPPs) and the Worst Offenders/Facilitators
Any other stance would sidle with moral depravity or moral hazard
France: Apple and Microsoft Down, GNU/Linux Up to New Record Levels
How will tariffs against France impact things in the coming months?
Open Source Initiative (OSI) Privacy Fiasco in Detail: What Was Reported to the California Privacy Protection Agency (CPPA)
We hope to finish this whole lot within a week, then move on to election, lobbying etc.
 
Links 06/04/2025: Fake Reviews, Privatisation Heists, and "AI" as Smokescreen for Impoverishing Humans
Links for the day
Links 06/04/2025: Many New Acts of Repression and Elements of Financial Depression
Links for the day
In Qatar GNU/Linux Rose From Under 1% to Over 4% in Two Years (or Over 5% If Counting ChromeOS)
It's a big improvement compared to what we saw last year
LLM Scrapers Are a Nuisance, But They're Also a Reminder It's Time to Make Your Site Static
Perhaps the best protection is the ability to endure surges
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 05, 2025
IRC logs for Saturday, April 05, 2025
Links 06/04/2025: Attacks on Education, Fake Patents, and Fake (Illegal) Patent Courts
Links for the day
Links 05/04/2025: Tariffs Backfiring, YouTuber Arrested, X/Twitter Set to be Fined
Links for the day
Gemini Links 05/04/2025: Offline is For Everyone, Copyright Colonialism, and More
Links for the day
Links 05/04/2025: TikTok Unsold (Still), Royal Society is Dead
Links for the day
Techrights Will Spend the Next Few Years Writing a Lot About Strategic Lawsuits Against Public Participation (SLAPPs)
It's a growing problem
The State of EPO Staff's Health in Rijswijk or The Hague
We're going to cover the EPO some more later in the month
NVIDIA Corp Lost 36% of Its "Value" Since Cheeto Inauguration, But "Gen Hey Hi" (GenAI) is Totally Not a Bubble
Selling loads of unneeded hardware based on hysterical hype; like selling shovels during a Gold Rush
GNU/Linux Growing in East Asia, Windows by Default No More?
GNU/Linux is now on the shelf
Slopwatch: Anti-Linux 'Articles' From Linux-Hostile LLMs
It is almost always negative things and nobody can be held responsible for it except the charlatans prompting the LLMs
Links 05/04/2025: Fentanylware (TikTok) "Sale Looks Highly Imminent" (US), Stock Market Drowning in Panic
Links for the day
Gemini Links 05/04/2025: Moving Plants, No to Smartwatches, RAID Hygiene
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 04, 2025
IRC logs for Friday, April 04, 2025
Techrights Has Dealt With More Potent SLAPPs Than Violent Microsofters Begging to Hide What They Did to Women
I became accustomed to SLAPPs
Links 04/04/2025: Fury in South Korea, Flight MH370 Remains Mystery
Links for the day
Gemini Links 04/04/2025: Anger and Raspberry Pi CM4
Links for the day
Links 04/04/2025: LLM Slop Bubble Bursting and Korea Music Copyright Association Bans Slop 'Music'
Links for the day
Traf-O-Data, the Company That Jeffrey Epstein's BFF (Bill Gates) (Co)Founded 53 Years and Went Out of Business Due to Heavy Losses
Who will die first, Bill or Microsoft?
Why Microsoft's Shares Sank Almost 20% in Recent Months (the Bubble is Imploding)
verified press reports from the past 24 hours
A Note on SimilarWeb
Or why SimilarWeb is meaningless for more than 99% of the sites on the Web
GNU/Linux Rises to Almost 5% in Algeria While Windows Sinks to All-Time Low
GNU/Linux grew tenfold
Where to Get More Gags
A valued reader recommended that to us
Links 04/04/2025: Tech Stock (Inc. GAFAM) Fall, Google Pretends to Do End-to-End Encrypted Emails (With Google in Control)
Links for the day
IBM Said to be Shutting Down Offices or Sites in the United States
the press can no longer avoid admitting that IBM moves many jobs to India
To Participate in Fedora Diversity You Must Use Proprietary Software
Not for the first time either
LLM Slop as Attack Vector on the Reputation of Linux
The attacks on Linux have escalated to information warfare
Yandex About to Be Three Times Bigger Than Microsoft (Bing) in Asia
That's about 60% of the world's population
Gemini Links 04/04/2025: Decoupling Updates, Elaho as Gemini Client
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 03, 2025
IRC logs for Thursday, April 03, 2025