EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.03.19

The EPO Continues Granting Bogus Patents on Mathematics and Nature, But There’s Hope Over the Horizon

Posted in Europe, Patents at 3:19 am by Dr. Roy Schestowitz

Summary: Pressure is growing for the EPO to actually comply with the law and obey the European Patent Convention (EPC); the judges who look into these matters, however, lack the independence which the EPC sought to guarantee

THE European Patent Office (EPO) may hopefully invalidate European software patents some time soon. This will have to come from a court rather than the Office itself. As Jan Wildeboer (Red Hat, soon IBM) put it in this tweet yesterday: “The EUCJ never pulled an ALICE AFAICS. I hope they do soon.”

We remain concerned that António Campinos is friends with Iancu, whose attitude towards the law has just come under scrutiny from a high court. Will Campinos even allow judges to deal with the relevant issues? Judges that exercise true independence? We think not.

“Will Campinos even allow judges to deal with the relevant issues? Judges that exercise true independence? We think not.”On Tuesday the EPO wrote about opposition procedures as follows: “Patent administrators in Helsinki are invited to this event to learn about fee payment, opposition procedures and other related matters…”

But the EPO is still a very unjust place where people responsible for oppositions can be arbitrarily ‘disciplined’ and dismissed under false pretexts/fabricated circumstances. This apparently happens also under Campinos, not just Battistelli. SUEPO wrote about it.

“Our hope is that the Boards will rediscover or recover their independence; then and only then do we expect them to rule out software patents and patents on life, in lieu (shall we say “harmonisation”?) with Alice and Mayo, respectively, in the US.”What if the EPO’s staff says “no!” to a big “client”/”customer” (what EPO management calls applicants)? Or to a partner of the EPO (like Judge Corcoran did Baxter)? Can the examiners in Oppositions be fired? Demoted? Reprimanded? We have mentioned this the other day, maybe before the press release even came out.

Here is the official press release and Globes coverage from yesterday:

Teva Pharmaceutical Industries Ltd. (NYSE and TASE: TEVA) today announced that a three-member panel of the European Patent Office’s (EPO) Opposition Division upheld patent EP 2 949 335 covering Teva’s COPAXONE® 40mg product in Europe. The Opposition Division will issue its written underlying rationale on the decision within a few months.

And the financial media in Teva’s home country:

While in the US, Teva Pharmaceutical Industries Ltd.’s (NYSE: TEVA; TASE: TEVA) original multiple sclerosis treatment Copaxone is already battling it out with generic competitors with its main dosage (40mg), in Europe there is still no generic competition, and a decision by the European Patent Office (EPO) should delay it further. Teva announce today that a three-member panel of the EPO Opposition Division upheld the patent (EP 2 949 335) covering its Copaxone 40mg product in Europe. The Opposition Division will issue its written underlying rationale on the decision within a few months.

Should this take months? Longer than the decision took to be reached perhaps?

An advocacy site of patents on life, Life Sciences Intellectual Property Review, has meanwhile written about the EPO merely considering obeying a law — another subject we last touched yesterday. To quote:

European Patent Office (EPO) president António Campinos will refer a recent decision on the patentability of plants exclusively obtained by essentially biological processes to the office’s Enlarged Board of Appeal (EBA).

The news follows long-running legal confusion over whether plant products produced by essential biological processes are patentable.

Last December, the EPO’s Technical Board of Appeal 3.3.04 issued decision T 1063/18, which ruled that rule 28(2) of the European Patent Convention (EPC) is incompatible with Article 53(b) of the same convention.

This neglects to take account of the European authorities’ position and the fact that in defiance of the European Patent Convention (EPC) these Boards no longer enjoy freedom and independence to rule as they see fit.

As European Patents now exceed 3 million in number we’re seeing yet more press releases about them, such as this one from yesterday:

Also, SANUWAVE received European Patent EP 3,117,784 on December 26, 2018 entitled “Usage of Intracorporeal Pressure Shock Waves in Medicine”, which has an expiration date in July 2030 from the European Patent Office (EPO). This patent is validated in designated countries including Denmark, Finland, France, Germany, Great Britain, Holland, Ireland, Italy, Norway, Spain, and Sweden. The European patent includes fifteen (15) claims related to the special construction of the intracorporeal shockwave devices/systems comprising of a catheter size fit within at least one of a blood vessel, graft, or artificial blood vessel, with at least one balloon, and at least one or multiple shockwave generation sources coupled to the catheter. The intracorporeal shockwave device/system can be used to treat plaques and obstructions together with distal protection devices, to protect the flowing of dislodged plaque particles to the heart or brain. The shockwave generation sources can be electrohydraulic, laser-based, electromagnetic, or piezoelectric.

This isn’t my field and the above is a promotional press release, but this one too seemingly relates to health. The EPO used the term “medtech” yesterday — a term it nowadays uses to refer to algorithms (i.e. software) in a medical context.

We continue to worry that nobody seems to care — let alone intervene — in EPO affairs. Commenting on the patent troll Unwired Planet as recently as yesterday (it operates in Europe, even in London), Florian Müller wrote that “[s]tatistics show that most patents are invalid as granted, and even those that are valid rarely involve an inventive step of the impressive kind…”

Here’s the part about EPO and then some more about FRAND/SEP:

The patent system is prone to abuse because, contrary to widespread misconception, the commercial value of patents lies in legal uncertainty, and patent offices around the globe prioritize quantity over quality (institutionalized excess and race to the bottom, especially with leaders such as USPTO Director Andrew Iancu or the current president of the EPO and his predecessor). Statistics show that most patents are invalid as granted, and even those that are valid rarely involve an inventive step of the impressive kind–and reasonable people can disagree on claim construction, which is why a fairly high percentage of all claim constructions are reversed on appeal.

Patent judges are increasingly aware of the issues, and it depends on each judge’s style how they try to address the problem (such as by being ever more inclined to stay cases when the validity of a patent-in-suit is doubtful)–but the root cause (the aforementioned institutionalized excess) can’t be addressed by them, so it all comes down to purely symptomatic treatment.

One form of abuse that constitutes a systemic threat is privateering: the practice of transferring patents to patent assertion entities whose business is to bring extortionate litigation. A few years ago I made a public call to “name and shame companies that feed patent trolls,” and I’d like to refer you to such previous statements (you can find far better explanations of the privateering problem from others to be honest) rather than elaborate on this again.

[...]

To give you an idea of how novel and unorthodox that approach is, it may help to remind you of the fact that Germany is a jurisdiction that doesn’t even enable third-party beneficiaries (such as companies that are entitled to a FRAND license because of a FRAND promise made by a participant in a standard-setting process to a standard-setting organization) to enforce their rights like a direct contract. So even if Ericsson had never sold those patents to anyone, Huawei couldn’t simply enforce third-party beneficiary rights to a FRAND license from Ericsson. But Judge Dr. Kuehnen’s decision comes down to restricting Unwired Planet’s rights vis-à-vis Huawei. So we’re not talking about a third-party, but partically fourth-party, beneficiary rights.

It’s not just about the FRAND commitment at an abstract level. It’s that specific licensing terms could be deemed discriminatory based on what the previous patent holder did. (It would, of course, make sense to consider a previous patent holder’s licensing terms in a FRAND analysis, but just an indication of what terms might have been agreed upon by parties.)

Our hope is that the Boards will rediscover or recover their independence; then and only then do we expect them to rule out software patents and patents on life, in lieu (shall we say “harmonisation”?) with Alice and Mayo, respectively, in the US.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 24/4/2019: Chrome 74, QEMU 4.0 Released

    Links for the day



  2. Supreme Court of the UK, Which Habitually Throws Out European Patents, May Overturn Troublesome Unwired Planet v Huawei Decision

    A lot of European Patents are facing growing scrutiny from courts (Team UPC, including Bristows, publicly complains about it this month) and "greenwashing" of the Office won't be enough to paint/frame these patents as "ethical"



  3. German Federal Patent Court Curbs the Patent Maximalism of the EPO, Which Promotes Patents on Nature and/or Maths Every Single Day

    European courts are restraining the EPO, which has been trying to bypass or replace such courts (with the UPC); it certainly seems as though European Patents rapidly lose their legitimacy or much-needed presumption of validity



  4. Any 'Linux' Foundation Needs to Be Managed by Geeks, Not Politicians and PR People

    Linux bureaucracy has put profits way ahead of technical merits and this poses a growing threat or constitutes risk to the direction of the project, not to mention its ownership



  5. Links 23/4/2019: Kodi 'Leia' 18.2 and DeX Everywhere

    Links for the day



  6. Code of Coercion

    Entryism is visible for all to see, but pointing it out is becoming a risky gambit because of the "be nice!" (or "be polite!") crowd, which shields the perpetrators of a slow and gradual corporate takeover



  7. António Campinos Would Not Refer to the EPO's Enlarged Board of Appeal If He Did Not Control the Outcomes

    António Campinos and his ilk aren’t interested in patent quality because his former ‘boss’, who publicly denied there were issues and vainly rejected patent quality concerns as illegitimate, is now controlled by him (reversal of roles) and many new appointees at the top are "yes men" (or women) of Campinos, former colleagues whom he bossed at EUIPO (as expected)



  8. Links 22/4/2019: Linux 5.1 RC6, New Release of Netrunner and End of Scientific Linux

    Links for the day



  9. USPTO and EPO Both Slammed for Abandoning Patent Quality and Violating the Law/Caselaw in Order to Grant Illegitimate Patents on Life/Nature and Mathematics

    Mr. Iancu, the ‘American Battistelli’ (appointed owing to nepotism), mirrors the ‘Battistelli operandi’, which boils down to treating judges like they’re stooges and justices like an ignorable nuisance — all this in the name of litigation profits, which necessitate constant wars over illegitimate patents (it is expensive to prove their illegitimacy)



  10. IRC Proceedings: January 27th, 2019 – March 24th, 2019

    Many IRC logs



  11. IRC Proceedings: December 2nd, 2018 – January 26th, 2019

    Many IRC logs



  12. Links 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  13. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  14. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  15. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  16. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  17. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  18. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  19. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  20. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  21. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  22. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  23. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  24. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line



  25. The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

    Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don't interest the highest court, which already deemed them invalid half a decade ago



  26. Links 17/4/2019: Qt 5.12.3 Released, Ola Bini Arrested (Political Stunts)

    Links for the day



  27. Links 16/4/2019: CentOS Turns 15, Qt Creator 4.9.0 Released

    Links for the day



  28. GNU/Linux is Being Eaten Alive by Large Corporations With Their Agenda

    A sort of corporate takeover, or moneyed interests at the expense of our freedom, can be seen as a 'soft coup' whose eventual outcome would involve all or most servers in 'the cloud' (surveillance with patent tax as part of the rental fees) and almost no laptops/desktops which aren't remotely controlled (and limit what's run on them, using something like UEFI 'secure boot')



  29. Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF

    Restrictions on speech are said to have been spread and reached some of the most liberal circles, according to a credible veteran who opposes illiberal censorship



  30. Corporate Media Will Never Cover the EPO's Violations of the Law With Respect to Patent Scope

    The greed-driven gold rush for patents has resulted in a large pool of European Patents that have no legitimacy and are nowadays associated with low legal certainty; the media isn't interested in covering such a monumental disaster that poses a threat to the whole of Europe


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts