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08.17.19

Patent Prosecution Highways and Examination Highways Are Dooming the EPO

Posted in Europe, Patents at 2:23 am by Dr. Roy Schestowitz

Chicago night traffic

Summary: Speed is not a measure of quality; but today’s EPO is just trying to get as much money as possible, as fast as possible (before the whole thing implodes)

QUALITY of patents granted by the European Patent Office (EPO) is very different from what it was a decade or more ago. Battistelli wasn’t the first to lower patent quality, but he certainly was the biggest blow to it. After he was done attacking judges and driving out talented examiners António Campinos came in, openly promoting software patents in Europe under the guise of “4IR” and other nonsensical buzzwords.

“We will address the quality & timeliness of the European #patent granting procedure an see a demonstration of our new Espacenet that is soon to be launched at this event in The Hague,” the EPO wrote in a new tweet.

“Lack of press coverage about systematic declines in EP quality is actually part of the problem.”So I asked: “What do you mean by “quality & timeliness”?

“Those are now the same thing at EPO (which conflates speed of grant with “quality”) …”

Many people, attorneys included, have already brought up this point. What good will European Patents (EPs) be if their assigned parties cannot use them in court? Sooner or later those parties may no longer bother with EPs at all.

Lack of press coverage about systematic declines in EP quality is actually part of the problem. Somehow the media does not seem to care about new pilots and controversial programmes designed to lower patent quality while misusing words like "Quality", "Collaborative" and "Improvement". Media in Europe clearly decided if not ‘conspired’ to turn a blind eye to further EPO leaks and whistleblowers (it wasn’t always this way). Instead it promotes lies, funded directly by the EPO. At least we know whose side such media is on.

“Somehow the media does not seem to care about new pilots and controversial programmes designed to lower patent quality while misusing words like “Quality”, “Collaborative” and “Improvement”.”We are still seeing all sorts of stories about EPs that perish in courts. It means that suing using EPs has a high associated risk; there’s a good chance nobody will benefit except the lawyers. Earlier in the week Hogan Lovells’ litigation team published a writeup about a Dutch lawsuit with an EP, copied onto here for extra exposure. To quote from JD Supra:

Celltrion claimed that the EP is invalid for lack of novelty, arguing that it is not entitled to invoke the priority of P1. According to Celltrion, the Inventor did not (timely) transfer the priority right to Biogen. The parties agreed that if the EP was not entitled to the priority right, a certain publication would destroy the patent’s novelty.

Biogen argued that the priority right was automatically transferred to Biogen at the time of its creation because the Inventor and Biogen had entered into an “Employee Proprietary Information and Inventions and Dispute Resolution Agreement” (“the Agreement“).

In 2017, the District Court ruled against Biogen and considered that Biogen was not entitled to the priority of P1 (and hence that the EP lacked novelty). Biogen appealed the decision and in its (interim) decision of 30 July, the Court of Appeal ruled on the formal entitlement to priority. However, it has not yet dealt with other validity arguments raised by Celltrion.

[...]

It makes sense that, any formal deficiency in such a transfer should not have a possible lethal consequence for the validity of a patent. Unfortunately, it is unclear whether the Dutch Court of Appeal agrees with the EPO’s joint applicants approach so, watch this space for further developments.

From the above, which may not be a closed case, it seems rather likely that the lawsuit will go nowhere. In our experience, having surveyed lots of lawsuits every day for about a decade, the likelihood of patent lawsuits being “successful” (for the plaintiff/claimant), has virtually collapsed. Many patents granted by patent offices are later rejected by judges and juries. For the lawyers this may not matter much; they bill by the hour irrespective of the outcome of cases. But deep inside they know that low legal certainty will eventually cause reluctance to sue and pursue (applications).

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