Bonum Certa Men Certa

Demand for European Patents Will Continue to Decrease If a Lot of European Patents Turn Out to be Invalid, Worthless



“No man is justified in doing evil on the ground of expediency.”

--Theodore Roosevelt



Theodore Roosevelt



Summary: The EPO's abandonment of patent justice and quality (in pursuit of so-called 'production' targets) is likely to doom the Office as the whole or render it vastly less relevant to the rest of the world

Patent quality has been severely compromised by the EPO -- to the point of being totally detached from the EPC and several other things. The Battistelli-appointed (de facto) António Campinos actively promotes software patents in Europe (using some buzzwords) and there's now this pilot (CQI) to further lower patent quality while the EPO publicly lies about its concerns on the matter.



"We know whose side the law is on, but the EPO quit obeying the law several years ago."The EPO cannot eternally rely on terrorising its judges and then covering it up. Sooner or later more and more European Patents will come under scrutiny outside EPOnia (or Haar, which is obviously outside EPOnia and thus unsuitable a venue, according to the EPC). What happens then? Can the EPO continue until eternity (or its end of life) to disregard judges' precedents (except internal judgments which are constitutionally invalid) and carry on granting fake patents? Applications will decrease in number as soon as applicants spot these trends. This is already happening.

Earlier on this week, or yesterday, Bart van Wezenbeek wrote about a District Court of The Hague case (this case's date is exactly one month ago, June 19th) in which dubious patents were assessed in European courts. To quote:

In the present case, it appeared from the prosecution file that the limitation had been introduced with a purpose, and the patentee had accepted the limiting examiner’s amendments. Taken together with the fact that the patentee could be considered a professional party with sufficient knowledge in the field of patents, this means that the scope of the claim was determined more by the literal interpretation of the claim than by the concept of the invention behind it.


In this particular case it's an American 'pharma vulture' doing the litigation against a Dutch company. Annsley Merelle Ward from a firm that boosts patent predators (Bristows LLP) wrote about it last month, whereupon we also wrote about it, noting that "European Patents are already being leveraged by foreign (US) giants, which claim to be worth hundreds of billions of dollars based on exploitative monopolies, to bully generics out of the market. Courts decide the lawsuits are baseless, frivolous."

It's not a sole example. According to this new report, "European Patent Office Revokes Second Pacific Biosciences Patent" (from GenomeWeb), the EPO has once again admitted that it granted a fake patent and it's only being 'actioned' because someone invested in correcting it:

NEW YORK – The European Patent Office this week revoked another patent held by Pacific Biosciences, according to Oxford Nanopore, the firm's main competitor.


Not even the first time!

Awful patent quality is the direct result of unprecedented pressure being put on examiners, who probably do the best they can under the unreasonable conditions/circumstances. But if this carries on, why would companies still apply for European Patents? Fewer of them would. Juve very recently took note of the decline in demand for European Patents. It's not hypothetical; it's already happening.

We've just spotted this new comment in IP Kat, published about a day ago after some IP Kat puff piece about EQEs (separate thread). To quote:

No-body serious considers the EQEs to be a gold-standard of practice. Since they are time-limited exams they will necessarily not award points in Paper C for novelty/inventive step arguments against claims that are already dealt with as added matter, but this is not real life.

In real life, added matter is included as an objection in probably the majority of oppositions, but the sensible attorney will also make arguments on novelty/inventive step and other grounds if these are viable. In real life only deciding that there is added matter, and not even considering novelty/inventive step in case your decision on added matter is incorrect, will simply waste time in the long run in the majority of cases.

One of the criticisms regularly levelled at both the PEB exams and the EQEs is that they ignore commercial realities. Typcially this is because they require you to do things that the client doesn't normally want. P6/FD4 is criticised for requiring integer-by-integer claim construction analysis that no sane client wants you to do, whilst Paper B requires you to cover-off points that no-one writing a response in real life would think worth the cost of responding to.

However, here we have an example of the exams requiring that you do not do something that the client actually typically wants - to make novelty/inventive step argument just in case your cleverly-drafted added matter arguments fail. Attorneys know that commercial reality demands this - it is only good when courts also realise this in making their decisions.


Courts should disregard this "commercial reality" and instead focus on what underlying laws (e.g. EPC, caselaw) say. The EPO likes to pretend that it is business-friendly, but the only business it's friendly to is the litigation 'industry'. To ordinary European SMEs the EPO became nothing but a liability and a menace. We know whose side the law is on, but the EPO quit obeying the law several years ago.

Recent Techrights' Posts

Software Freedom Conservancy (SFC), Inc. vs. Vizio, Inc. Is Costing the Free Software Foundation Money
FSF subpoena and deposition
They Try to Replace the Creators of GNU/Linux and Hijack Their Word, Work, and Reputation
gnu.org is down at the moment; now I'm told it's back but very slow. DDoS?
Links 05/05/2024: Political Cyberattacks From Russia and Google Getting a Lot Worse
Links for the day
 
Death of Michael Anthony Bordlee, New Orleans, Louisiana
Reprinted with permission from disguised.work
The Revolution Continues
Today we've published over 20 pages and tomorrow we expect more or less the same
Death of Dr Alex Blewitt, UK
Reprinted with permission from disguised.work
Following the Herd (or HURD)
Society advances owing to people who think differently and promote positive change, not corporate shills
Thiemo Seufer & Debian deaths: examining accidents and suicides
Reprinted with permission from disguised.work
Gemini Links 05/05/2024: Infobesity and Profectus Beta 1.0
Links for the day
Running This Site Mostly a Joyful Activity
The real problem or the thing that we need to cancel is this "Cancel Culture"
Australia Has Finally Joined the "4% Club" (ChromeOS+GNU/Linux)
statCounter stats
Debian as a Hazardous Workplace Where No Accountability Exists (Nor Salaries)
systematic exploitation of skilled developers by free 'riders' (or freeloaders) like Google, IBM, and Microsoft
Clownflare Isn't Free and Its CEO Openly Boasted They'd Start Charging Everyone to Offset the Considerable Losses (It's a Trap, It's Just Bait)
Clownflare has collapsed
Apple Delivered Very Disappointing Results, Said It Would Buy Its Own Shares (Nobody Will Check This), Company's Debt Now Exceeds Its Monetary Assets
US debt is now 99.98 trillion dollars
FSFE Still Boasts About Working Underage People for No Pay
without even paying them
IRC Proceedings: Saturday, May 04, 2024
IRC logs for Saturday, May 04, 2024
Over at Tux Machines...
GNU/Linux news for the past day
The Persecution of Richard Stallman
WebM version of a new video
Molly de Blanc has been terminated, Magdalen Berns' knockout punch and the Wizard of Oz
Reprinted with permission from disguised.work
[Meme] IBM's Idea of Sharing (to IBM)
the so-called founder of IBM worshiped and saluted Adolf Hitler himself
Neil McGovern & Debian: GNOME and Mollygate
Reprinted with permission from disguised.work
[Meme] People Who Don't Write Code Demanding the Removal of Those Who Do
She has blue hair and she sleeps with the Debian Project Leader
Jaminy Prabaharan & Debian: the GSoC admin who failed GSoC
Reprinted with permission from disguised.work
Jonathan Carter, Matthew Miller & Debian, Fedora: Community, Cult, Fraud
Reprinted with permission from disguised.work
Techrights This May
We strive to keep it lean and fast
Links 04/05/2024: Attacks on Workers and the Press
Links for the day
Gemini Links 04/05/2024: Abstractions in Development Considered Harmful
Links for the day
Links 04/05/2024: Tesla a "Tech-Bubble", YouTube Ads When Pausing
Links for the day
Free Software Community/Volunteers Aren't Circus Animals of GAFAM, IBM, Canonical and So On...
Playing with people's lives for capital gain or "entertainment" isn't acceptable
[Meme] The Cancer Culture
Mission accomplished?
Germany Transitioning to GNU/Linux
Why aren't more German federal states following the footsteps of Schleswig-Holstein?
IRC Proceedings: Friday, May 03, 2024
IRC logs for Friday, May 03, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Alexander Wirt, Bucha executions & Debian political prisoners
Reprinted with permission from disguised.work
Links 03/05/2024: Clownflare Collapses and China Deploys Homegrown Aircraft Carrier
Links for the day
IBM's Decision to Acquire HashiCorp is Bad News for Red Hat
IBM acquired functionality that it had already acquired before
Apparently Mass Layoffs at Microsoft Again (Late Friday), Meaning Mass Layoffs Every Month This Year Including May
not familiar with the source site though
Gemini Links 03/05/2024: Diaspora Still Alive and Fight Against Fake News
Links for the day
[Meme] Reserving Scorn for Those Who Expose the Misconduct
they like to frame truth-tellers as 'harassers'
Why the Articles From Daniel Pocock (FSFE, Fedora, Debian Etc. Insider) Still Matter a Lot
Revisionism will try to suggest that "it's not true" or "not true anymore" or "it's old anyway"...
Links 03/05/2024: Canada Euthanising Its Poor and Disabled, Call for Julian Assange's Freedom
Links for the day
Dashamir Hoxha & Debian harassment
Reprinted with permission from disguised.work
Maria Glukhova, Dmitry Bogatov & Debian Russia, Google, debian-private leaks
Reprinted with permission from disguised.work
Who really owns Debian: Ubuntu or Google?
Reprinted with permission from disguised.work
Keeping Computers at the Hands of Their Owners
There's a reason why this site's name (or introduction) does not obsess over trademarks and such
In May 2024 (So Far) statCounter's Measure of Linux 'Market Share' is Back at 7% (ChromeOS Included)
for several months in a row ChromeOS (that would be Chromebooks) is growing
Links 03/05/2024: Microsoft Shutting Down Xbox 360 Store and the 360 Marketplace
Links for the day
Evidence: Ireland, European Parliament 2024 election interference, fake news, Wikipedia, Google, WIPO, FSFE & Debian
Reprinted with permission from Daniel Pocock
Enforcing the Debian Social Contract with Uncensored.Deb.Ian.Community
Reprinted with permission from Daniel Pocock
Gemini Links 03/05/2024: Antenna Needs Your Gemlog, a Look at Gemini Get
Links for the day
IRC Proceedings: Thursday, May 02, 2024
IRC logs for Thursday, May 02, 2024
Over at Tux Machines...
GNU/Linux news for the past day