11.29.19

Many European Patents Lack Validity and Blogs/Press Won’t Talk About That

Posted in Europe, Patents at 4:47 am by Dr. Roy Schestowitz

Many European Patents Lack Validity. But reporting on such facts won't be good for my readers. So I look the other way while taking payments from patent maximalists.

Summary: The persistent denials from the EPO and inability of the media to cover the news (as opposed to EPO puff pieces) may mean that the avalanche of European Patents will carry on as long as the Office survives

THE USPTO can no longer grant patents on life as hastily and as easily as before. We’ve been including several links to news reports about it (in Daily Links). Mayo and Myriad (in 35 U.S.C. § 101 it’s mostly the former) contributed to this after SCOTUS overturned decisions made by the Federal Circuit. Here in Europe the European Patent Office (EPO) typically ignores justice, laws, courts, and judges. How can it? It can! It’s above the law! Look what Battistelli got away with; António Campinos covers it all up and continues promoting software patents in Europe, even by intervening (one might say “meddling”) in legal cases of BoA regarding software patents. Isn’t it astounding that here in Europe we haven’t the Rule of Law? Nontechnical career-climbing alcoholics can push around judges and punish entire courts by sending them to Haar just to ‘make a point’…

Where’s European media? Sorry, it’s dead. It’s composed by law firms, as we’ve just noted again. It’s like regulatory capture.

“Where’s European media? Sorry, it’s dead. It’s composed by law firms, as we’ve just noted again.”What about blogs? Sorry, they’re also captured by the litigation giants, more so after threats from the EPO. Rose Hughes (AstraZeneca) still leads IP Kat‘s way when it comes to EPO coverage, never touching any of the ongoing scandals, occasionally promoting UPC lies, and intentionally failing to note that the EPC is being violated. IP Kat is the opposite of what it used to be. Yesterday she wrote

Notably, Dirk Visser is not a supporter of the Board’s reasoning in T 1933/12, describing their justification of the co-applicant approach as “poor” (The Annotated European Patent Convention, Article 87(1)). Mr Visser further argues that the co-applicant approach of T 1933/12 is inconsistent with the EPO’s reasoning that all applicants (X and Y) of the priority application (or their successor(s) in title) are named on the subsequent application claiming priority (as in the CRISPR case). The latter is based on the understanding that X and Y are a legal unity that cannot be divided, whilst the co-applicant approach permits a change of the legal unity of X+Y into X+Y+Z.

[...]

The GSK patent was revoked on grounds other than invalid priority. GSK has appealed the decision. In reply to the appeal, Eli Lilly has argued that it was incorrect for the EPO to apply the co-applicant to the patent. Lilly particularly cites T 205/14 and T 517/14 in which the Board (3.3.01) required, in a situation analogous to that in the case in EP 1965823 (GSK), evidence of a transfer of the right to priority to the additional applicant (Z) of the PCT application from the applicants (X+Y) of the priority applications. None-the-less, the position of the Opposition Board in EP 1965823 is broadly in line with a number of opposition division decisions, e.g. EP2940044, and the Guidelines for Examination.

There is another pending appeal challenging the co-applicant approach. The case relates to one of AbbVie’s Humria patents (T 1837/19). In this case, Abbott Laboratories was listed as the applicant for the PCT application for all designated states apart from the US. The applicant-inventors of the US provisional applications from which priority was claimed were listed as the applicants for the US designation. The opponent has argued in their Statement of Grounds of appeal that the EP application is just one of the bundle of applications making up the PCT application, and that the EP application is different from and therefore does not include the applicants of the US provisional.

Unlike the issue at stake in the CRISPR appeal, the case law supporting the co-applicant approach is flaky at best. However, it seems likely that we will soon receive clarity on the legality of the co-applicants approach from the Boards of Appeal. Will the Boards of Appeal follow the more lenient approach to priority represented by the co-applicant approach followed by the opposition division, or will we see a tightening up of the requirements?

Well, these Boards of Appeal lack independence (the Office breaks the law). Should not that be mentioned? Notice that many of the above companies are partners and rivals of AstraZeneca, the writer’s paymasters. But the affiliation with AstraZeneca isn’t entirely concealed (to be fair to her). It’s not properly disclosed, so still…

“The lack of actual journalism in the area of patents is a very major crisis and even blogs have been hijacked by patent zealots. They’re a multi-billion-dollar ‘industry’ which produces nothing at all. Except agony.”The quality of European Patents continues to collapse and as we mentioned earlier in the week, many of them perish in courts. No wonder the number of European Patent applications is decreasing. The EPO granted a bunch of fake patents and only lawyers have benefited; it doesn’t matter to them who wins disputes, only that the disputes go on and on (more legal bills).

PR Newswire UK (press release site) has just published this press release about a high-profile dispute over a European Patent:

On November 19, 2019, the Mannheim Regional Court heard two cases brought by SolarEdge, an Israeli provider of power optimizers and solar inverters, claiming that Huawei’s PV optimizers infringed on its patents. The court concluded that Huawei did not infringe on SolarEdge’s patent for one case, and deferred the hearing for the other case due to insufficient evidence. On November 21, 2019, the European Patent Office (EPO) heard a patent opposition case brought by Huawei against SolarEdge. The EPO decided to revoke SolarEdge’s patent relating to the inverter multi-level topology.

A Huawei spokesperson welcomed the court’s decision. As one of the world’s largest holders of intellectual property rights, Huawei actively protects its own intellectual property rights and fully respects the rights of others. Huawei advocates the use of legal means to resolve disputes over intellectual property rights, and insists on taking legal action to protect its rights and interests.

Robin Whitlock of Renewable Energy Magazine has also just mentioned this fake European Patent:

The court heard the two cases on 19th November 2019, in which Israeli provider of power optimisers and solar inverters SolarEdge claimed that Huawei’s PV optimisers infringed on its patents. On 21st November 2019, the European Patent Office (EPO) heard a patent opposition case brought by Huawei against SolarEdge. The EPO decided to revoke SolarEdge’s patent relating to the inverter multi-level topology.

A Huawei spokesperson welcomed the decision by the court that the company did not infringe on SolarEdge’s patents along with the court’s decision to defer the second case on grounds of insufficient evidence.

The Huawei spokesperson said that as one of the world’s largest holders of intellectual property rights, Huawei actively protects its own intellectual property rights and fully respects the rights of others. The spokesperson added that Huawei advocates the use of legal means to resolve disputes over intellectual property rights, and insists on taking legal action to protect its rights and interests.

We derive no pleasure from such news; we feel somewhat vindicated, sure, but what we have here is a couple of companies wasting a lot of money (potential salaries for more workers) on a baseless dispute due to a fake European Patent. Who profits from all this? Lawyers. In-house or otherwise (for smaller companies it’s even more expensive as they lack the staff to deal with this).

Kilburn & Strode LLP and Freddy Thiel have meanwhile published and promoted this self-serving puff piece about the firm’s own lawyers who look to exploit the EPO for endless litigation. In their own words:

The quality of a patent can be directly linked to the relationship between in-house attorney and inventor (and outside counsel, if involved). It is quite possible that, without a good rapport, an attorney may find it hard to get the required attention from the inventor. They may miss much of the detail needed to produce a patent application that stands up in front of the EPO, where flexibility post filing is much more limited.

[...]

Keep asking questions, even ones that may seem obvious. Sometimes obvious questions elicit the best answers.

“I’ve never been afraid of telling an inventor that I know nothing about the tech. Simple questions often lead to finding a key ingredient to the recipe for the perfect invention capture. Sometimes popping a simple question or a remark can lead the inventor to think about the fundamental aspects of the invention, which they may otherwise have been overlooked. Inventors are generally much smarter than the EPO’s “Skilled Person” and often disregard what could end up being patentable inventions.The risk with a simple question is that it could cause the inventors to roll their eyes. You can back up a simple question by pointing out an inconsistency or gap in their discussion of the invention to show your true level of understanding and bring them back on board.”

Imagine that this is what counts as ‘journalism’ (and shows up in Google News as EPO and patent “news”). The lack of actual journalism in the area of patents is a very major crisis and even blogs have been hijacked by patent zealots. They’re a multi-billion-dollar ‘industry’ which produces nothing at all. Except agony.

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