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09.12.19

EPO: Give Us Low-Quality Patent Applications, Patent Trolls Have Use for Those

Posted in Europe, Patents at 9:18 am by Dr. Roy Schestowitz

The race to the bottom continues at the EPO, which is happy to grant loads of invalid (i.e. fake, bogus) patents in defiance of the law (EPC)

EPO delivery

Summary: What good is the EPC when the EPO feels free to ignore it and nobody holds the EPO accountable for it? At the moment we’re living in a post-EPC Europe where the only thing that counts is co-called ‘products’ (i.e. quantity, not quality).

THE number of applications for European Patents is decreasing. We took note of it earlier this year. Maybe there’s a growing number of businesses and individuals who realise that European Patents are nowadays overpriced and overvalued. A lot of them are bogus. They’re worse than worthless and it wasn’t always like that.

“It’s very clear that the EPO’s management is nowadays in bed with patent maximalists; it works for these parasitic firms and opportunists instead of for science and technology. It doesn’t even work for Europe!”Misleading and bad advice from the European Patent Office (EPO) said this earlier this week: “Even minor technical improvements can meet a market need and be worth patenting. That’s one conclusion of our SME case studies.”

They’re still googlebombing the term “SME” (or “SMEs”) every other day, on average. Also notice the use of the word “minor”. They just want lots of applications and grants (of fake patents). On the same day the EPO again advertised its partnership with patent trolls’ front groups. “How do you implement a sustainable IP management system? Our experts will tell you at this event,” it wrote about its event with LESI. Shameful. It’s very clear that the EPO’s management is nowadays in bed with patent maximalists; it works for these parasitic firms and opportunists instead of for science and technology. It doesn’t even work for Europe!

“This is sadly becoming rather common and it’s very expensive.”The abundance of fake European Patents is becoming a serious peril and a stain on Europe. IP Law Galli’s Cesare Galli had this article promoted/disseminated through Lexology the other day, under the headline “Supreme Court of Cassation reverses patent limitation decision,” and it said that “Supreme Court of Cassation [France, where António Campinos and Benoît Battistelli are from] recently reversed a Milan Court of Appeal ruling on patent limitation.” Wikipedia says it is “one of the four courts of last resort in France. It has jurisdiction over all civil and criminal matters triable in the judicial system, and is the supreme court of appeal in these cases. It has jurisdiction to review the law, and to certify questions of law, to determine miscarriages of justice. The Court is located in the Palace of Justice in Paris.”

Here’s what happened (added emphasis/highlight is ours):

On 14 August 2019 the Supreme Court of Cassation (Decision 21402) reversed a Milan Court of Appeal ruling on patent limitation. The Supreme Court of Cassation found that although the Milan Court of Appeal had held the patent at issue to be valid, it had not granted the patentee’s claims for infringement because the patent had been subject to a limitation procedure and the acts of infringement had been carried out before the application for limitation had been filed. As a result, the Supreme Court of Cassation granted the appeal and ruled as follows:

[...]

The same reasoning applies – as the Supreme Court of Cassation made clear in the grounds for its ruling – considering that the pronoun ‘it’ at the beginning of the last sentence refers unequivocally to the noun ‘decision’ in the previous sentence. This clarifies that only the European Patent Office’s (EPO’s) decision takes effect from the publication of a decision, whereas the subject matter of a decision (ie, the limitation) and, therefore, the text of the claim as amended in the limitation procedure under Article 105b of the European Patent Convention, produces its effects from the beginning of a patent’s life, which is logical, because it is a limitation (ie, a measure that reduces rather than extends the scope of a patent’s protection).

In view of these rules, it is therefore unquestionable that the Milan Court of Appeal’s ruling (which the Supreme Court of Cassation reversed) had not been decided in accordance with the law, as the court of appeal had held that, until the date of acceptance of the EPO’s proposed limitation, the patent in question was null and void in its entirety, even for the scope of protection confirmed by the limitation itself.

This is sadly becoming rather common and it’s very expensive. Law firms pocket a lot of money from these needless disputes. They just want patents on everything. Why? Not because it’s just or because it’s good for science; it’s just good for lawyers, it causes chaos and incurs legal bills. These crazy people have gone as far as actively promoting patents on thoughts, maths, life and nature. Chemical giants (poison/toxins such as pesticides and herbicides) nowadays claim to have a monopoly on plants and seeds!

Incidentally, replying to something said the other day and quoted here in the context of patents on nature/life, “Save the world” then commented to say he/she “agreed on the idea of not ‘banning’ CRISPR, but the relationship between regulations, science and allowing patents on something is a complex one, which to an extent has to be driven by restraint and caution, and not allowing huge agro companies doing whatever they want to. All the potential abuses and things that can go wrong need to be considered beforehand. All major technology has unforeseen consequences, and one great thing about the EU position on CRISPR is that it forces a debate on why it should be considered safe. The ‘certain scenarios’ you talk about could be wiping out indigenous species, changing the economics of local agriculture, and furthering the interests of Western companies in the developing world. How to balance these risks is complicated and must require caution…”

“Law firms pocket a lot of money from these needless disputes.”Debate about patents on life has become one about the harms of GMO — a subject we covered here regularly about a decade ago. “SlightlyDoubtful” then added: “Which confirms my initial thinking that the technology is not as precise as is made out by the article, to the extent that off-target nuclease mediated mutations are part and parcel of the technology, but then to what extent do these events occur in plants, and which known effects (beneficial or nefarious) of such off-target modifications have been described ? Whilst I agree that it seems highly unlikely that joe public will go around injecting itself with transformed plant DNA (although these days, one never knows), it is undeniable that the release of transformed regenerated plant lines into the wild using a genetic manipulation tool that has the capability to create unwanted genetic side effects is no different to the current issues with GMO plants in general, and the article glosses over this point. The question then, is whether the GM plant industry has shown itself to be better capable of explaining, and being transparent, to the public (including commissioners, MEPs and regulators) with regard to all of the potential downsides linked to the usage of this particular tool. When I worked in that industry, it simply wasn’t up to the job in general, with the result that no matter how good the molecular tool or production platform a given entity might have, if the industry can’t communicate correctly to the public and the authorities, then sentiment will turn against it and adoption will remain the preserve of academics.”

Patents on life have long motivated people to protest in front of the EPO. There are also protests against patents on life-saving medicine, which brings about ethical dilemmas. Yesterday we saw Auris Medical bragging about patents up your nose in a paid press release that said “a clinical-stage company dedicated to developing therapeutics that address important unmet medical needs in neurotology and central nervous system disorders, today announced that the United States Patent and Trademark Office (USPTO) has issued a notice of allowance for its patent application entitled “Pharmaceutical Composition Comprising Betahistine” (U.S. Patent Application No. 15/887,388). In addition, the Company received an “Intention to Grant” notice from the European Patent Office (EPO) for its related patent application entitled “Intranasal Composition Comprising Betahistine” (European Patent Application 18 703 749.4). Upon issuance, the patents are expected to expire no earlier than February 2038 and will provide key intellectual property protection for the Company’s intranasal betahistine program.”

“This is what happens when the EPO wrongly pursues the goals of patent maximalists.”SWNS Stories wrote about the EPO grappling with the “hey hi” hype (and computer/automatically-generated patent applications). To quote: “A team of academics from the University of Surrey has filed the first ever patent applications for AI-created inventions. That means no human inventor contributed to the development of the invention, and the patent applications are under the name of the AI inventor – DABUS. DABUS (Device for Autonomous Bootstrapping of Unified Sentience) is the creation of Stephen Thaler, a pioneering AI researcher based in Missouri. According to the Financial Times, Mr Thaler taught DABUS to produce ever more complex items using words and images. [...] Both the UKIPO and the European Patent Office (EPO) accept that the inventions made by DABUS are eligible to receive a patent. In simple terms, this means that the light device and the container are considered to be industrially applicable and brand-new inventions. However, the fact that the inventions are not the product of human development opens up a whole new world for patents. For example, it remains unclear who (or what) will be credited as the owner or holder of the patent, should it be granted. There are no laws in any country in the world to specify how cases like this should be dealt with. And while AI has been on the global radar for decades as the future of creativity, there is no precedence for an AI machine to be granted a patent or to be credited as an inventor.”

This is what happens when the EPO wrongly pursues the goals of patent maximalists. Maybe one day the number of these computer-generated patent applications will exceed that of legitimate (human-made) applications, whereupon the whole legitimacy of this system can collapse. Just like in the financial markets where algorithms nowadays account for the lion’s share of transaction volume. It’s gamed and rigged.

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