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05.18.19

The War on Patent Quality

Posted in Europe, Patents at 12:17 pm by Dr. Roy Schestowitz

Poppies

Summary: A look at the EPO’s reluctance to admit errors and resistance to the EPC, which is its very founding document

THE companies that make weapons want war. Firms that provide representation in lawsuits want a lot of lawsuits. That’s just common sense. But the profit motive is orthogonal to morality. Patent law should adhere to morality or to science, not the profit motive. Can it withstand lobbying and subversion?

“Firms that provide representation in lawsuits want a lot of lawsuits.”Gün + Partners, who habitually write at the site of the patent trolls’ lobby (IAM), maintain the illusions associated with patents because over in Turkey they profit from patent applications (even if futile, worthless). “First published by IAM – Patents in Europe, 11.04.2019,” as it says at the bottom, days ago the following got (re)published in Mondaq, mentioning the EPC and the EPO as follows:

Yes, there are specialised civil and criminal IP courts in Turkey. The specialised IP courts are located in Ankara, Istanbul and Izmir. For other cities, the first-instance civil court deals with IP-related disputes. The judge of the first-instance civil court has a basic knowledge of intellectual property; however, most cases are referred to a court-appointed expert panel due to the expertise and technical knowledge required for the dispute.

[...]

As Turkey is a party to the European Patent Convention (EPC), and the decisions of the EPO on European patents are valid and binding for a Turkish validation of that European patent under the European Patent Convention 1973, the decisions rendered by the EPO Opposition Division or its board of appeal are usually submitted to the court by the parties as persuasive evidence if the Turkish validation of an EPC patent is the subject of the dispute.

The problem at the moment is, the EPO departed from the EPC (in many respects). The EPO is now a lawless, out-of-control institution. Nobody likes this institution except top-level management, which is robbing it in the absence of oversight.

Even managers at the European Patent Office are utterly sick of the situation (even nearly a year after António Campinos took over). Just see the image in this new blog post likely composed by an insider; it’s mostly red, which is rather revealing, accompanied/conjoined with the following succinct text:

A single picture from the survey summarizes the present situation at the EPO. In red, people are unhappy about the situation, in green people find the situation to their advantage. G13 is the highest grade an examiner can have, the people in G14, G15 and G16 are managers. They are also the people whose remuneration was considerably increased under Battistelli leadership.

Line managers and Directors are said to have attended EPO protests. Battistelli managed to make it a tyranny of very few; only Team Battistelli and patent trolls’ representatives are happy. The Team UPC types…

“The EPO is very much ‘in bed’ with patent trolls, not just with European software patents that these trolls leverage.”One German patent attorney has just quoted [1, 2] or paraphrased a judge: “At a seminar at the Munich-based Max-Planck Institute for Innovation and Competition judge Fabian Hoffmann of the patent senate of the @BGH_Bund (FCJ) considers not granting injunctions against patent infringers if the patentee is not a competitor, i.e. NPE [troll ...] He concludes the presentation with his belief that patent law – the purpose of which is to protect innovation – should be open to innovation itself.”

Not a bad idea actually. However, over the past week the EPO promoted LESI almost every day (in Twitter). The EPO is very much ‘in bed’ with patent trolls, not just with European software patents that these trolls leverage.

That same German patent attorney has just noted that: “The EPO will stay all pending examination and opposition cases in which the decision depends entirely on the outcome of the referral G1/19 (“Patentability of computer-implemented simulations”). https://www.epo.org/law-practice/legal-texts/official-journal/2019/04/a35.html … https://patentlygerman.com/2019/03/01/epo-enlarged-board-of-appeal-to-decide-on-the-patentability-of-computer-simulations/ …”

Other patent maximalists in Germany also note that the EPO now acts as though software patents might soon be flushed down the toilet (which we strongly doubt, but one can always hope for ‘European Alice‘). Here’s this new article:

EPO Stays Examination Of Applications Relating To Technical Simulations In Light Of Enlarged Board Referral

As reported recently, an EPO Board of Appeal has referred questions to the Enlarged Board of Appeal seeking clarification on the extent to which a computer-implemented simulation of a technical system or process can solve a technical problem by producing a technical effect and thus contribute to an inventive step. The referral is pending as case G1/19.

In the underlying case (T 0489/14), the Board was minded to disagree with the existing case law in this area and so the Enlarged Board’s answers to the questions referred could potentially overturn this well-established case law.

The EPO has now issued a notice in which it immediately stays all cases currently in examination or opposition whose outcome “depends entirely on the outcome of the Enlarged Board of Appeal’s decision”. This is a standard practice that allows time for the law to be reviewed without risking depriving applicants of their rights either via refusal of their application or the grant of an invalid patent. However, as Enlarged Board referrals typically require one or two years to resolve, it also introduces a significant delay.

The notice makes it clear that the stay will only be applied where the assessment of inventive step requires deciding whether or not a computer-implemented simulation can be considered to produce a technical effect which goes beyond the simulation’s implementation on a computer. If cases can be examined without consideration of this issue (for example because there are other inventive technical features in the claims), then the stay will not apply. The notice also indicates that, solely for the purposes of considering whether or not to stay proceedings, “the term ‘simulation’ is to be interpreted as meaning an approximate imitation of the operation of a system based on a model of that system”, based on point 21 of the Reasons in the referring decision.

The EPO actually needn’t rely on a referral to know that software patents aren’t compatible with the EPC (and never mind the judges’ lack of independence herein). Yesterday the EPO once again spoke of “AI-based inventions”; the EPO just means software patents which are illegal/invalid. To quote the tweet in question: “Our next study visit will introduce attendees to the complex field of AI-based inventions and the new problems they pose for our patent examiners.”

And on Friday morning (same day) World Intellectual Property Review published this typical EPO puff piece. Where’s the scrutiny over patent quality? These publishers have so much interest in puff pieces, not scandals or newsworthy stuff, instead just PR.

Another German patent attorney, Dr. Thorsten Bausch, has characteristically (for him at least) blasted the EPO for chaos. He split his post into several different sections.

Here’s the part about quality being conflated with speed (a subject we covered here dozens of times in the past):

Evidently, the fundamental wisdom provided by Erich Kästner also applies to the subject of quality. While the new President displays much more openness to input from stakeholders on this subject than his predecessor, actions would speak louder than words. On the whole, I wish I had something more substantial and tangible to report here.

I and many others have extensively argued that quality of EPO products (e.g. searches and decisions to grant or refuse an application) must and will suffer if unrealistic production targets are set and are made the key parameter against which staff performance is measured. The VPP (the German Association of Intellectual Property Experts) discussed quality in its recent Spring Meeting in Bamberg and invited me to elaborate a bit further on this topic. My slides are available here (in German). They may give readers some insights into where I see a particular risk of quality erosion and which counter-measures I would suggest the EPO take. As always, I will welcome any comments and critique.

There was a lively discussion at the end of my lecture, during which a former EPO examiner stood up and explained to the audience how lengthy and cumbersome the process towards a decision of refusal is, compared to allowing the application to proceed to grant. Not only that, but you also make yourself unpopular by drawing two more of your colleagues into this struggle. I agree, but would add that a lack of adequate time may occasionally also lead to errors or misjudgments to the detriment of the applicant, e.g. if Art 123(2) is applied too photographically, or if the examiner introduces errors in the Druckexemplar at the Rule 71(3) stage.

Mr. Niclas Morey, the EPO’s Principal Director of Quality, held the next lecture after mine. Contrary to my view, he was very adamant that speed is part of quality. While I appreciate that stakeholders expect the EPO to act timely and that even a very good official action is not particularly useful if the first one only comes after 10 or more years, I do not see the point in mixing the categories of quality (in content) and speed. For sake of intellectual precision and for very practical reasons, I think that a narrower understanding of quality would be more appropriate. Quality essentially describes the properties of a product and measures it against expectations in categories of good-bad, rather than in quantitative categories (fast-slow or high-low speed or turnover). A distinction between the two also helps to better understand and accept the inevitable trade-off between quality and speed: the more you produce within a certain period of time (with the same resources, as the EPO has done for the last 5 years), the more errors will occur and the more quality will suffer, unless something specific or magic is done to lower the error rate. It is true, though, that (good) quality is only one element of customer satisfaction, the others being timeliness, adequate pricing, and achievement of the desired result (grant vs. rejection).

Notice the comment from MaxDrei, a patent attorney who used to comment in IP Kat and is nowadays commenting a little more in Kluwer Patent Blog:

As to “quality”, I will assess my new car for its “quality” in terms of its fitness for purpose, in use. How long it took to advance down the production line in its assembly plant is not within my definition of “quality” of the “product”.

As an investor in society, I would see speed of the production line as something relevant to the “quality” of the management of the production plant.

As a patent attorney, I think that the pendency of the patent application has nothing at all to do with the “quality” of the respective issued patent.

“Experienced Examiner” also weighed in on quality:

QUALITY
One of our last official meetings touched on “quality”. In line with what Thorsten reports, the official stance really is that “quality” as defined by EPO management has three pillars: EPC compliance, timeliness and user satisfaction. It seems that each pillar has equal weight. In concrete terms, EPC compliance can at most define 33% of “quality”.

The numbers of internal audit – compliance rate around 75%, meaning 1 out of 4 patents should not have been granted the way it was – are therefore not an issue, as long as timeliness and user satisfaction are high enough. Our director, consequently, did not speak about “quality” but about “perception of quality”. Any resemblence to “perception of independence” is of course just coincidence.

Concerning the numbers of patents/searches, be informed that the average examiner has additional tasks. One of those tasks is classification of published patent documents. In spite of all efforts, even the newest search engines provide decent (not very good) results only when relying on intellectual, human classification. Machine classification and machine search without human input are definitely not good enough. They will likely not be in the foreseeable future, because technology develops too fast to provide enough data of similar nature for training of the algorithms. This is a huge difference to medical diagnosis: the human body does not change that fast.

Classification does not generate patents or income. It has been neglected under Batistelli, with a corresponding impact on search quality. Also, the classification schemes (like CPC or IPC) need to be updated over time. This has also been neglected. Briefly, the number of not classified documents is high and the schemes are outdated. There is now massive pressure to reduce the classification backlog, while the number of patents to be granted has dropped only slightly. In concrete terms, the average examiner does not have more time than the last years for dealing with files.

How much time the EPO foresees is laid down in “corridors”, depending on grade (aka salary) and technical area. These “corridors” are used for target setting, reporting, step advancement and I do not know what else. They have never been discussed with staff and never been officially published. I believe the patent community should know how much time the EPO foresees. Thorsten, that could be a point for you: ask VP1 to put those corridors (for search, examination and opposition) on the EPO website. The Boards of Appeal should do the same.

SOCIAL DIALOGUE
The staff survey results were a disaster for higher management, starting on director level. The concrete actions I hear and see: the team managers (one level below director) are now tasked with getting their teams together and identify areas of improvement. We have been assured that “work goes on on all levels”. Whatever that work might be (I personally doubt there is any work going on), it does definitely not include to meet with staff on the working level to get first hand impressions and provide direct replies.

All things considered, I have the impression that the staff survey was done to have some glossy paper. It was and it is not intended to change anything. I’d love to be proven wrong here.

FINANCIAL SUSTAINABILITY
The latest financial study is out. In a nutshell, the consultants managed to show that the EPO will be broke once again in 2038. Looks like all Battistelli measures – sacking staff representation, breaking the law, interfering with the Boards of Appeal, drop in quality (EPC compliance) – have been useless. Take a look at the details, if you get your hands on the study.

The consultants, maybe based on EPO suggestions, assumed an increase of expenses, mostly salary, a bit above inflation every year, while the fees shall be increased only in 2020 and then remain stable. Expenses increase exponentially, while income is stagnant. Clearly, with these assumptions, everybody will be broke in 20 years. I wonder why the EPO bothered doing the study in the first place.

The EPO will not disappear because someone did a shady financial study. But it may help to understand why staff has no respect and trust at all in management. It also shows the responsibility of the Administrative Council. They simply cannot trust anything even the new President, Campinos, puts on the table.

Someone by the name “Martin” (maybe a pseudonym) wrote:

The EPO may have a lower production target as a whole, but also a reduction in headcount of Examiners is foreseen (due to workforce moving into pension age).

Therefore the average number of products expected from individual examiners has risen again, and is expected by management to continue to rise according to similar levels as realized the last few years (see financial study).

Which means for many Examiners who did achieve a higher production, the evaluation in the “reporting excercise” nevertheless degraded, as they did not achieve a rise in the production as expected.

Here’s what Bausch said about SUEPO:

Whatever the merits of SUEPO’s position may be, this letter somehow prompted me to check Wikipedia for the keyword „amnesty“. This proved to be a very interesting and educational reading, providing a lot of food for thought. For example, I learned (from the German version) that there was a time when it was customary for incoming French presidents to proclaim an amnesty for certain kinds of prisoners, mostly those who had been found guilty of lesser offenses, or political prisoners. The same tradition existed in England upon coronation festivities and other solemn occasions. I also learned that an amnesty may generally be extended when the authority decides that bringing citizens into compliance with a law or policy is more important than punishing them for past offenses. The general purpose of amnesty is to help end a conflict.

I do not really know what exactly the SUEPO leaders are accused of and whether they did anything wrong. Considering the EPO’s history during the Battistelli era, I have my doubts (based on verifiable facts, as the Corcoran story shows) that the severe sanctions against the SUEPO leaders were justified. But even if they were, would it not now be an excellent time for the new president to make peace with the staff union and settle the sanctions against its leaders? At least I would interpret this as a sign of prudence. It would help to foster the important objective of regaining the trust of the staff, enhance their motivation and ultimately promote quality. I would argue that quality can only be sustainably kept or increased, if those who are to deliver it feel motivated, rather than threatened and placed under pressure.

Mr Campinos has now been in power for almost one year. He has proclaimed that he is interested in restoring the social dialogue in the EPO. Now would be a good time to put actions to words.

Laurent Prunier shows up in the third comment (scroll down a little), noting that the punishment imposed on him by EPO management was based on a fabricated allegation or ‘violation’ — brought forth from Team Battistelli, the thugs who now head (or hide in) CEIPI.

Here is Prunier’s official response (reproduced again):

As the person directly concerned, I am responding to Mr Battistelli’s letter to you and would appreciate if you could publish this answer so that your readers can be fully informed.

I deny having ever harassed or defamed anyone (nor have I seen any of my fellow colleagues, staff reps and/or SUEPO officials harassing or defaming anyone).

The alleged “victim” did NOT file a complaint against me. The person who filed it was a very close associate of Mr. Battistelli.

The staff representatives in the disciplinary committee have not found that I was guilty of harassment. That finding was 3:2, only by management side.

The easiest solution for the public to assess the truth vs. story-telling is for Mr Battistelli to lift the confidentiality he imposes on me and I will gladly publish all the documents.

Bien cordialement – Best regards

Laurent Prunier

Thankfully, Dr. Bausch has also taken note of the 'heist' I told him about the other day, as per an anonymous blog pointing to the EPO’s own documents — documents that it apparently censored quickly afterwards. Here’s a comment about this ‘heist’:

EPOTIF is not related to pensions. Pensions are covered by the RFPSS – which too saw short term losses. Short term losses are normal for any pension fund.

What was not normal in the past, was the way such losses used to be hidden in EPO accounts by using a “corridor” approach which only required reporting gains and losses if they fell outside a range of outcomes. The yearly gains and losses are now visible, which is good for transparency, but apparently bad for the nerves.

How much money is the EPO willing to lose for likely Battistelli gains? A billion euros? When will anyone — let alone Campinos — hold Battistelli accountable? He destroyed an excellent patent office so quickly and he personally gained enormously from that.

Watchtroll, Composed by Patent Trolls, Calls the American Patent System “Corrupt”

Posted in America, Deception, Patents at 10:51 am by Dr. Roy Schestowitz

Watchtroll

Summary: Another very fine piece from Watchtroll comes from very fine patent trolls who cheer for Donald Trump as if he’s the one who tackles corruption rather than spreading it

VoIP-Pal (or VoIP-Pal.com because it could afford an Internet domain), which we’ve mentioned here before, e.g. in [1, 2, 3, 4, 5], is back. As someone put it not too long ago: “A patent troll play is still a patent troll play. Regardless of the exchange it is on. And VPLM is very clearly a patent troll play. The fact the CEO spends money on fees to keep this POS current, when there are no revenues, just adds to millions more shares need to be diluted. And with the anti-dilution clause also means more shares for himself.”

It’s similar to Finjan.

“Malak, a troll, has called the whole American patent system “corrupt” because it calls him out for his trolling.”Well, Emil Malak, the CEO of VoIP-Pal.com, a notorious patent aggressor/troll, has gotten lots of puff pieces from Watchtroll, a site sympathetic to all patent trolls (it does not even call them that). Malak was cheering for corrupt Donald Trump and against patent sanity in yesterday’s article, whose title was about as trollish as him: “President Donald Trump Should Investigate the Corrupt Patent System and Passage of the AIA” (no kidding).

The site has gone MENTAL. They actually publish things like these, irrespective of the consequences. They also habitually engage in judge-bashing and science-bashing antics (and yes, they did it once again this past week). We don’t wish to entertain or even link to this piece but only to point out that the new editor of Watchtroll failed to (fore)see the ramifications of publishing such crap for really crappy people.

Meanwhile, contrariwise, “Judge Alsup Slams Patent Troll For Basically Everything,” as this headline put it. It’s actually a copy of an article from Mike Masnick.

“Glad to see someone taking time to understand,” AntiSoftwarePat wrote. Mike Masnick didn’t even focus on his personal views but the views of a very famous judge (high-profile cases).

Mike Masnick covered the outbursts of Judge Alsup against Uniloc — outbursts that we mentioned in passing earlier this month. Putting aside the fact that 35 U.S.C. § 101 likely extinguishes most of this patent troll’s USPTO-granted patents, there are many other things to be criticised:

That brings us to a more recent case, involving notorious patent troll Uniloc — a company we’ve written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game “Mindcraft” (the trolls were in such a rush to sue, they didn’t notice it was actually “Minecraft”), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn’t given up any of this. The company keeps buying up more patents and suing lots of companies — including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn’t actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was “confidential.”

[...]

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a “boilerplate assertion of competitive harm fails to provide a compelling reason to seal.”

And that’s not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide “reasonable royalties” from being used in damage calculations, and calls out “vastly bloated figures.”

The realisation that patent trolls lack credibility and morality is very widespread. SCOTUS mentions the term “patent troll”, as do the Federal Circuit and Patent Trial and Appeal Board (PTAB). We’re not sure about the ITC, but the former Director of the U.S. Patent and Trademark Office (USPTO) spoke of patent trolls all the time after she had come from Google (commonly a target of such trolls). The above from Alsup is a nice addition to a long series of rants from all levels of the system. Malak, a troll, has called the whole American patent system “corrupt” because it calls him out for his trolling.

Unified Patent Court Won’t Happen Just Because the Litigation Microcosm Wants It

Posted in Deception, Europe, Patents at 9:58 am by Dr. Roy Schestowitz

UPC boat sinks

Summary: Unified Patent Court (UPC) hopefuls are quote-mining and cherry-picking to manufacture the false impression that the UPC is just around the corner when in reality the UPC is pretty much dead (but not buried yet)

THERE are some topics that refuse to go away; Rather than focus on EPO abuses and USPTO reforms we’re often dragged back to the UPC, which died about 2 years ago (summer of 2017). António Campinos never mentions it anymore. The EPO very rarely uses that acronym (or even speaks of “unitary” anything) because deep inside they know it’s doomed. The litigation ‘industry’ hoped it would usher in a plaintiff-friendly system that bypasses national laws, encompassing raids, embargoes and even software patents in Europe (those are typically rejected by European courts, as per national laws). Even the United States, the ‘home of software patents’, barely tolerates such patents anymore (courts almost always cite 35 U.S.C. § 101 after defendants leverage it).

Let’s be frank. We never liked the UPC, even when it was called “EU” or “Community” (way before “unified” and “unitary”). One need not be against the EU or against communities or against unity to openly oppose the UPC. I’m personally very pro-EU (it’s no secret), but at the same time I’m strongly against the UPC, which is inherently an EU project. Similarly, myself and many others oppose the Copyright Directive not because we oppose the EU but because it serves to discredit the EU.

As usual, as with most things (like copyright law), someone stands to benefit from changes. Law firms, especially those that have many litigators (offensive), want as many lawsuits as possible. That’s understandable. Right now there are arms manufacturers drooling (maybe even literally) over wars in Iran and in Venezuela.

Just before the weekend JUVE’s editor (M.K.) spoke of a new puff piece from their English site. Recall "JUVE Creates English Site, Promotes Unified Patent Court (UPC)" (01.20.19). It’s a puff piece in “interview” form — similar to those Kluwer Patent Blog used to issue aplenty with Team UPC minions. This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.

As I put it last night, “JUVE continues to lobby for UPC on behalf of its subscribers base. They want lots of litigation with patents. A selective quote as a headline in JUVE shows the sheer bias of the site. It’s not news, it’s lobbying thinly disguised as ‘news’, as usual from Amy Sandys, amplifier of Team UPC liars.” (alluding to her previous work in that site)

“JUVE Patent interviews UK Supreme Court judge, David Kitchin,” the editor said. “We cover FRAND, injunctions, and why Kitchin thinks the UPC project is still likely.”

Those three things are connected because they’re weapons of patent aggressors and trolls — those who stand to benefit most from the UPC, along with their legal representatives.

“This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.”The headline says, in quotes, “The UPC has the support of UK judges,” but here what he actually said:

Do you still believe in the UPC?

The UK is fully committed to the UPC. The government believes that the UPC and Unitary Patent project are an important way to simplify the protection of innovative products and processes across the Union. It has the support of the UK judges in this field too.

He was talking for jurists, not Brits in general. British businesses are not “fully committed to the UPC” and many speak out against it. Funny how he then speaks for the government too (he knows its beliefs, maybe alluding to IPO’s actually) and then speaks for all judges. Kitchin is one of several judges in the UK Supreme Court; so his words are akin to those of one single player in a football team, alleging to be speaking for the FA, for his team, and maybe for a whole city/country. We saw something similar in a Bristows post at IP Kat earlier this month (one German judge).

Suffice to say, Team UPC is all jubilant about this interview and is citing it, e.g. in Twitter; the article speaks of mere will (of one person), no actual news, no progress.

And whose will? Obviously, those looking to profit from it, those who share corridors at events that are echo chambers. This judge’s argument boils down to, “I want it, so it’ll happen” — how so typical of UPC boosters. What about other judges? They weren’t even asked for their views on this. Maybe ask the Boards at the EPO about it, only to realise that virtually all judges there oppose the UPC (it makes them redundant and obsolete).

Facts and desires are often mutually-contradicting; such is the case when it comes to almost every article about the UPC. Just look who’s writing these articles! Law firms, directly or by proxy. Nobody else gets given a voice or a platform whilst apathy (or misunderstanding of the underlying issues) gets exploited by Team UPC. This morning we saw this new press release from a very large American law firm. To quote from it:

Pegram is a leading expert on patent reform and the EU Unitary Patent & Unified Patent Court. He served as a staff member and then editor-in-chief of The Trademark Reporter, where he worked with members of the Trademark Trial & Appeal Board to establish the basis for the Board’s Manual of Procedure. After the Copyright Law was rewritten in 1976, he advised the president of the Special Libraries Association and clients regarding compliance with the copying and fair use provisions.

So he keeps changing occupations, including a media career. A lot of people who cover patents in the media even admit to me (as recently as a week ago) that they write for lawyers. What kind of journalism is that? Admission of bias upfront?

Earlier today we saw this new article from Alex Woolgar. Can one ‘borrow’ foreign patent law to sue a company in its own country using these ‘imported’ laws? That’s what UPC strives to achieve, but here’s what happens in practice (here in the UK):

Another judgment, another instance of the English court seizing jurisdiction in a patent dispute. In Ablynx NV and Anor v VHsquared Limited and Ors [2019] EWHC 792 (Pat), His Honour Justice Hacon (sitting as a High Court judge) has provided a useful judgment concerning the application of the Brussels Regulation to patent disputes where there is also a purported choice of jurisdiction by contract. Even in circumstances where the parties have made such a choice, a forum shopping defendant might well find the shelves to be bare.

Ablynx is the exclusive sub-licensee of certain fields of use for three patents (now expired) protecting an invention relating to immunoglobulins derived from camelid antibodies [“camelid” refers to several even-toed ungulates, not just camels, so we can leave puns involving humps and deserts at the door, please]. Broadly speaking, the Defendants were licensees in relation to other fields of use. The Defendants are alleged to have infringed the UK designations of the patents during their term by encroaching on Ablynx’s field of use. This allegedly provided an illegitimate springboard for work completed following the expiry of the patents. There is ongoing litigation relating to the same subject matter in the Netherlands and Belgium, and there was earlier litigation in the Netherlands.

[...]

Therefore, the question of jurisdiction turned simply on the meaning of “concerned with…the validity of patents”.

Different countries have different patent laws; this may actually be a feature rather than a fault/defect because different nations have different specialty and so their patent priorities/strategies should vary; a country that exports a lot of fruit, for example, might rightly oppose patents on seeds, plants and all that malarkey. The UPC mindset wants to blur everything for the sole purpose of expanding the scope of litigation (geographically) and scope of patents (bypassing national laws). It’s not hard to see to whose advantage.

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