11.19.19

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We’ve Already Entered the Era When Patents Should be Presumed Invalid

Posted in America, Europe, Patents at 7:35 am by Dr. Roy Schestowitz

Only lawyers can benefit from patents that are without merit

Graph extrapolated from the EPO
Graph extrapolated from the EPO’s own numbers

Summary: The abundance of low-quality patents may mean short-term profits for patent offices and law firms; but we know at whose expense they are profiting and the legitimacy of patent systems suffers as a result

THE European Patent Office (EPO) remains our prime topic of interest. It’s about the EPO as an institution we are trying to save/salvage from predators like Battistelli and his chosen successor (and friend) António Campinos. They don’t care about the EPO, they just care about the EPO’s money, which they funnel into dubious coffers (their friends’ and colleagues’). They’re looting the EPO whilst likely defrauding the European public.

“We don’t regret the EPO focus, seeing that it may gradually lead to results (where the desired outcome is of course truth and justice, not money).”Our focus on the EPO has come at the expense of U.S. Patent and Trademark Office (USPTO) coverage — something we did in about 5,000 articles, most of which focusing on 35 U.S.C. § 101 in recent years. We don’t regret the EPO focus, seeing that it may gradually lead to results (where the desired outcome is of course truth and justice, not money).

The US patent system moved in a positive direction in recent years (prior to Iancu’s appointment by Donald Trump). Seeing Watchtroll‘s founder stepping down and resorting to attacks on courts and judges is all we need as evidence. Paula Murgia wrote at Watchtroll on Monday, moaning about the demise of software patents, i.e. the usual. The opening sentence: “It has been one year since my software patent was invalidated in the U.S. District Court for the Southern District of New York.”

“Thanks to the USPTO pursuing nothing but money she got a bad patent that would never withstand a trial/courts’ scrutiny.”Too bad, eh? All these patents are bogus, fake and worthless. Thanks to the USPTO pursuing nothing but money she got a bad patent that would never withstand a trial/courts’ scrutiny. The lawyers alone profit (from the fruitless proceedings). During the weekend we put in our Daily Links many more examples like that. Rarely do such patents withstand a challenge. The above was mentioned by Benjamin Henrion, which is as close as we’ll get to citing Watchtroll (we don’t link to it anymore, as it’s a combative site that attacks actual judges). On Monday we also saw Michael Borella commenting on Example 46 — an example by which the USPTO hoped to be helping applicants cheat the law to get fake patents just so that USPTO administrators can make more money (and lawyers then have something to fight over). To quote:

Last month the U.S. Patent and Trademark Office published an update (“October Update”) to its subject matter eligibility guidance. As we noted at that time, the October Update is more evolutionary than revolutionary, and primarily serves to provide clarifications to the more substantive January Guidance. Nonetheless, the USPTO did provide four additional examples applying its revised test for subject matter eligibility under 35 U.S.C. § 101 to hypothetical claims. Here, we discuss Example 46.

The background, of course, is 2014′s Alice Corp. vs. CLS Bank Int’l Supreme Court holding. Therein, the Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under § 101. These parts are denoted by the USPTO as steps 2A and 2B, respectively (step 1 is to determine whether the claimed invention is one of the four statutory categories of subject matter set forth in § 101, and is rarely at issue in practice).

Why does the USPTO advise people to overcome Alice? Look no further than the leadership, notably Iancu and his deputy. Trump is putting the litigation ‘industry’ back in charge of the Office, but they cannot control the law (courts), can they?

“Courts outside the EPO would reject these sorts of patents.”The issue prevails in Europe as well and it even exacerbates over time. The EPO simply does not have any concept of justice (neither inwards nor outwards). Well, software patents in Europe are not legal, for example, but litigation firms keep pushing them (citing the Office for ‘support’). The latest software patents promotion is marketed as follows in Twitter: “The EPO acknowledged a number of technical aspects of a method of organizing a database for sequences of time-stamped records…”

Courts outside the EPO would reject these sorts of patents. “To assess patents you must look at the record peripheral to the EPO,” I responded to them.

A comment has meanwhile been posted in IP Kat to say: “I doubt that the fathers of the EPO wanted it to merely grant patents being simply a kind of guideline and the rest to be fought out in national courts.”

It also said: “The EPO should also publish a study to see how many patents are nullified or severely limited in front of national courts. The presumption of validity still applies, but it looks more and more like a giant with very fragile feet.”

They’ve shut down a study on quality because they did not like the result.

Here’s the full comment:

Dear Sing-A-Pore,

That the UK Supreme Court wanted to go away from the famous Improver decision is one thing. The pemetrexed case is however anything else than a model. On the one hand it is a premium for slapdash drafting and one the other hand, it has made a founded FTO study nearly impossible.

It is true that in the new protocol on Art 62 after EPC 2000, the notion of equivalents was introduced, but during the diplomatic conference, the member states refused to endorse the definition of equivalents proposed by the EPO. So it is very easy to talk about equivalents, when everybody can understand w2hat he wants under the topic.

That on top of it Lord Neuberger found it necessary to criticise the examiner for having raised an objection under Art 123(2)is neither fair nor correct. This attitude shows a clear lack of knowledge of EPO procedures and case law.

The applicant only had examples for pemetrexed disodium in his application, but wanted originally to claim the association of any antifolate with vitamin B12, then pemetrexed in general, without the faintest support for it. The examiner had no choice but to raise a problem of Art 123(2), what was claimed was not supported by the original disclosure.

By the way, the court of 1st instance in the Netherlands was not impressed by the behaviour of the applicant during examination and refused to consider that anything else than pemetrexed disodium was originally disclosed.

At the EPO, the applicant wanted a quick grant, and never tried to bring in any proof that any salt of pemetrexed could work. He could have filed further experimental data or even file a divisional application to try to argue for a broader scope of protection. Nothing of this kind was brought forward or even envisaged.

I doubt that the fathers of the EPO wanted it to merely grant patents being simply a kind of guideline and the rest to be fought out in national courts.

Patents should be granted for improvements over the prior art, and not merely for some kind of possible guideline. If the EPO would do this, then it would price itself out of the market, as it cannot ask the price of a Rolls and deliver a kind of Mini having merely 4 wheels and some doors, and that the actual finishing touch is debated in front of national courts.

The EPO should also publish a study to see how many patents are nullified or severely limited in front of national courts. The presumption of validity still applies, but it looks more and more like a giant with very fragile feet.

Even if only 5% of patents are opposed before the EPO, in 2/3 of the cases the patent comes out battered from an opposition procedure (roughly 1/3 revoked, 1/3 maintained in amended form, i.e. limited) and only in 1/3 of the cases the opposition is rejected. Also something to think about when discussing quality. A linear extrapolation is certainly inappropriate, but there is food for thoughts.

This is the kind of comment that we miss. Back in the old days IP Kat spoke about these issues and did not delete comments that did too. Today’s ‘Kats’ are litigation fanatics and yesterday Frantzeska Papadopoulou worked to keep the “hey hi” hype going. In relation to patents Papadopoulou wrote: “Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus. Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices.”

When did the ‘Kats’ last question the EPO’s legitimacy and its courts’ record on justice? When the team is led by people from AstraZeneca and firms that represents patent trolls (Bristows for example) are such viewpoints even permitted?

“When did the ‘Kats’ last question the EPO’s legitimacy and its courts’ record on justice? When the team is led by people from AstraZeneca and firms that represents patent trolls (Bristows for example) are such viewpoints even permitted?”The situation in Europe has gotten rather grim. Based on a recent presentation from Dolmans, whom Henrion cited and quoted/paraphrased yesterday [1, 2, 3, 4, 5] (the original is a PDF): “only 5% of times patent trolls the patent is found valid (Germany) … NPEs are still very well alive: Conversant, Unwired, Planet, Polaris, Avanci, HEVC, Intellectual Ventures, IPCom … patent trolls win more often in Germany … Patent trolls litigation is also growing in the EU … Germany’s bifurcated patent system might be illegal under the ‘proportionaly’ principle of IPRED1 directive, also present in UPC https://www.scribd.com/document/435184574/19-11-12-Maurits-Dolmans-Proportionality-in-Patent-Injunctions …”

Matteo Pes, an attorney whom we respect for sincerity on some subjects (such as UPC realities), responded on Twitter [1, 2]: “In the long run the bifurcated system might attract more and more NPE (trolls). On the other side, I like the sensibility and the competence of the BpG in deciding on validity. [...] in my experience the bifurcated system really favors the #patent owner from the very beginning of the #litigation. The defendant must be ready to face loss of the first instance, because the #patent Federal Court BpG usually doens’t deliver before the first instance ends”

“Does Germany’s leadership strive to become EDTX and adopt the ‘Gilstrap model’?”The emergence of patent trolls in Europe isn’t exactly news. Germany’s government looks the other way when the EPO (on German soil) grossly violates all laws, including German law. Battistelli should have been arrested for some of the things he did. But not even an arrest warrant was issued. The reluctance to arrest EPO officials for their crimes (committed in Munich, Bavaria) shows that the last thing this government cares about is the Rule of Law (just quick money). It gives a carte blanche for trolls and bullies whose patents they know to be worth nothing; more favourable to pre-settlement over meritless ‘cases’. Does Germany’s leadership strive to become EDTX and adopt the ‘Gilstrap model’? Will Germany become to Europe what Eastern Texas is to the United States?

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