08.24.19
Gemini version available ♊︎Patent Maximalists Refuse to Accept That Their War on Patent Quality Also Dooms a Pan-European Patent Court System
How can one expect a Unified Patent Court (UPC) when the law is grossly violated along with constitutions?
Summary: The EPO‘s embrace of patent maximalists’ agenda, which necessarily means significant decreases in patent quality (and deviation/departure from the EPC), dooms patent certainty; it also, however, dooms the Unitary Patent (UPC) because an extension of this rogue regime to the court system won’t be tolerated
PRESIDENT António Campinos — like Battistelli before him — welcomes software patents into Europe in defiance of the law. Brimelow had welcomed them “as such”, but that didn’t go so far. Europe’s Office — like the American Office (USPTO) — can grant all the patents it wants; but if courts say “no!” to granted patents, what will these patents be worth? Legal certainty suffers profoundly. We can’t say that often enough. They’re digging their own graves. They must choose between quality and quantity.
Found the other day here in Lexology was this article about patent systems becoming almost satirical (or self-satirising). What happens when people craft computer programs to automatically submit patent applications? Are these actual inventions? More importantly, how are examiners supposed to process such applications? In the authors’ own words, the EPO, USPTO and even UKIPO now wrestle with such a dilemma:
Three patent offices face questions stemming from the growing implications of artificial intelligence (AI) disrupting the intellectual property legal framework. The United States Patent Office (USPTO), European Patent Office (EPO), and United Kingdom Intellectual Property Office (UKIPO) recently received two patent application filings directed to a beverage container and a flashing device used for attracting enhanced attention. While these patent applications may have initially gone unnoticed, the applications have attracted vast attention for primarily one reason—they name DABUS, an AI machine, as an inventor.
DABUS is a type of “Creativity Machine” which can generate ideas without human intervention and was developed by Stephen Thaler. While DABUS may have been “trained” to develop new ideas by a human, the two pending patent inventions were created autonomously by DABUS, resulting in DABUS named as an inventor.
Our advice on this has long been that quality and societal impact must be assessed; do patent offices exist merely to grant as many patents as possible as long as examiners can tick “all the right boxes”? Should examination too be automated? If so, what would actually be achieved? Hence it’s satirical (or self-satirising). It’s a waste of energy, too.
This seems not to matter to patent maximalists. To them, unlike the rest of us, the above waste is personal gain.
We recently wrote about using the "MedTech" buzzword to get patents at the EPO (the US has a similar buzzword or acronym which is leveraged to bypass 35 U.S.C. § 101, at least at the Office). Well, a site called “Med-Tech Innovation” or “med-technews” has just published this piece about a surveillance device and associated patents at the EPO where surveillance on everyone is notoriously rampant:
Aseptika and Renfrew Group International (RGi) worked together on the design and prototyping of the Activ8rlives BuddyWotch. This solution will provide “expert” pathways for use by patient, carers and the healthcare team to inform, manage and report the success of self-care plans. It aims to help patients remain independent at home, with a better quality and more sustainable model of care.
BuddyWotch will continuously monitor, record and transmit the patient’s physiological signs of blood oxygen, heart rate, breathing rate and temperature for 24-hours-a-day, seven-days-a-week. With its integrated nine-axis accelerometer, BuddyWotch tracks the patient’s physiological signs and how these change over time as the patient goes about daily life.
As well as acting as an alert in case of medical emergencies, this information is used to continuously calculate the patient’s overall health and to detect whether the wearer’s health is getting better or is declining rapidly. It can be used to test the patient in a GP clinic using the six-minute walk test.
The BuddyWotch platform connects directly to the Company’s Activ8rlives Cloud (or can be pointed to a partner’s cloud system). Activ8rlives has portals for the patient, for family members caring for them and for clinicians, providing continuous monitoring and alerts as well as the index of tolerance to exercise, itself perhaps a better indication of overall health than simple alerts usually associated with remote monitoring systems.
The BuddyWotch transmits information to-and-from the wearer using an integrated 4G modem and WiFi, so that no separate home hub or smartphone is required by the user.
“The European Patent Office has granted Aseptika a patent for its medical-grade wearable,” Digital Health Age wrote. This site too is focused on so-called “MedTech” — somewhat of a hype wave (like FinTech or AdTech).
We’ve meanwhile also noticed Patrick Wingrove (Team UPC megaphone) crafting this ‘FinTech’-like puff piece that name-drops “blockchain” and other hype waves. He refers to extortion and patent lawsuits as “monetisation” (this is the kind of thinking greedy and sociopathic firms have adopted).
Vultures at work:
The general counsel at a financial services company in New York adds that his business thinks about patent monetisation a great deal. As one of the largest patent filers for blockchain technologies, his firm is considering how it can generate returns by using decentralised-ledger solutions in new and interesting ways.
Patrick Wingrove’s article is outside the paywall, for a change. So they’re looking for extra audience (not just the choir of subscribers).
His previous article, which was boosted by Team UPC, caused him to get all flustered in Twitter and the same people who boosted his Team UPC puff piece are now boosting (e.g. this one) an article from Mathieu Klos in which he refers to litigation zealots as “Experts”. They’re people who look to profit from it; not exactly objective.
Here are some portions and our response:
Austria is ready for the Unified Patent Court and business at Vienna’s patent firms is stable. However, the JUVE Patent ranking analysis 2019 shows the country’s leading patent litigation firms are on the cusp of a generational change. Whether today’s young litigators have what it takes to follow in the footsteps of veterans such as Lothar Wiltschek and Christian Gassauer-Fleissner remains to be seen.
[...]
Most Austrian patent attorneys continue to work among themselves. Most are organised in very small outfits with one to three fee earners. For the first time this year, JUVE Patent has compiled a list of the best-known Austrian patent attorneys. In this list, our readers will also find information on the practices’ most frequently-recommended technical areas, as well as their locations and size.
That’s just marketing. But OK, we get it… JUVE Patent exists to serve them. Just like Patrick Wingrove’s employer or even IAM with its bogus ‘rankings’, the marketing department.
On goes Klos about the UPC:
The amendment was part of a legislative pact. The aim of the amendment to the professional law for patent attorneys is to prepare them for the requirements of the Unified Patent Court.
[...]
According to the bill, this would enable Austrian patent attorneys to obtain the European Patent Litigation Certificate. It is the prerequisite for patent attorneys to be able to conduct proceedings before the UPC.
[...]
There are still some question marks surrounding the launch of the UPC and the planned local chamber in Vienna. A complaint to the German Federal Constitutional Court is still blocking ratification in Germany. Since 2017, the European patent community has been eagerly awaiting the court’s decision.
Klos plays along with Team UPC here; he perpetuates the falsehood that it’s “only a matter of time” and “everything is ready” and “everybody wants it”.
This kind of slant from Klos and JUVE as a whole was noted here earlier this year and last year when they set up this English site. JUVE has moved from covering EPO scandals, including gross violations of the EPC, to what nowadays resembles lobbying of litigation giants. The final paragraph:
The Austrian patent community is relatively relaxed about the delay [sic]. Experts are in favour of the court, but do not expect the UPC to boost their own business. The current situation is satisfactory to most Austrian patent firms.
Notice how he says “delay”…
As if it’s merely a temporary issue; then he speaks again of “Experts”. That’s like speaking of military generals in the context of peace.
To us, the demise of JUVE is all over this article and this time it comes from Klos rather than from his junior colleagues. Earlier on we asserted that the USPTO and EPO are engaged in self-harm if they don’t guard patent quality; “they’re digging their own graves,” we said. The same goes for publishers that choose to become megaphones of Team UPC and Team Campinos. To us, JUVE is already in that category. It’s a shame because it used to be good and the same goes for IP Kat. █
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