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06.24.20

The EPO’s ‘Early Certainty From Google’ Approach (“Closest Prior Art”) Means Loads of Fake European Patents and Frivolous Litigation/Shakedowns

Posted in Courtroom, Europe, Patents at 11:07 pm by Dr. Roy Schestowitz

Good for wealthy monopolists and their law firms; bad for everybody else

Loads of money

Summary: Yet again, quite frankly as usual, the UK Supreme Court tosses European Patents right in the wastebasket; it’s clear that the only winner is a bunch of law firms which bicker over patents that should never have been granted in the first place

SEEING that Kluwer Patent Blog’s best author has just dealt with the EPO‘s controversial “Closest Prior Art” approach ([1] below; we wrote about this in [1, 2, 3, 4]), and moreover seeing that the UK Supreme Court [2,3] threw out European Patents that “sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice,” we’re witnessing yet more evidence of the comprehensive failure of the EPO under Benoît Battistelli and António Campinos, whose rush to grant as many patents as possible by rushing searches (aka Early Certainty From Google) led not only to grants of software patents in Europe but also grants/awards of monopolies that courts everywhere would reject (if one can afford the legal challenge; it’s expensive to appeal all the way up to the UK Supreme Court). AstraZeneca Kat wrote about it yesterday [2], calling it “a majority judgment”; why were these patents granted in the first place? And how many European Patents, if scrutinised properly, would suffer the same fate? SUEPO showed (about a year ago) how legal validity associated with European Patents had collapsed. One can guess how the EPO's management responded.

Related/contextual items from the news:

  1. The Problem of the “Closest Prior Art”

    As readers of this blog will be aware, the EPO applies a quite peculiar and unique method to the analysis of inventive step, the “problem-solution approach”. This approach breaks the statutory question of Art 56 whether the invention was, having regard to the state of the art, obvious to a person skilled in the art, down into a 3-step test. This involves (1) the determination of the “closest prior art”, (2) the formulation of the “objective technical problem”, and (3) the assessment whether or not the claimed invention would have been obvious to the skilled person. One might quip that this approach has replaced a single problem (the determination of obviousness/inventive step) with three problems. This is because parties nowadays frequently argue about (i) what the closest prior art was, (ii) what the objective problem was, and of course (iii) whether the invention, expressed as the solution to the objective technical problem, was obvious or not at the priority or filing date. This contribution will focus on question (i), i.e. the question of what is (or should be) the closest prior art, and whether the EPO’s approach towards the closest prior art has changed in the last couple of years.

    [...]

    The concept of the closest prior art within the problem solution approach has been invented to facilitate and objectivize the examination of inventive step. The facilitation resides in the presumption that if the invention is not obvious starting from the closest prior art document, then it will a fortiori also be non-obvious starting from further remote prior art. Thus, if and when one document can be identified clearly as being closest prior art, the examination of inventive step can be focused and limited on this one document (in combination with any further document from the state of the art). The question is what happens in cases where (a) several documents are (arguably) about equally close to the invention and (b) if no document qualifies as a sensible starting point. In scenario (a), an Opponent was, at least in the past, usually allowed to present multiple attacks for lack of inventive step even if they start from different “closest” prior art documents.

    […

    At present, T 320/15 seems to not have been used by other Boards to prevent an Opponent from presenting more than one inventive step attack. Therefore, one should not overestimate the practical relevance of this decision, in particular for the appeal stage. This is even more so because several recent decisions rather point in the opposite direction, supporting a more liberal approach for the choice of the starting point for the assessment of inventive step.

    Albeit in a somewhat unusual context, the criteria for the determination of the closest prior art were put to a test in T 405/14. In this case, the Appellant argued that the skilled person would never start from document D2 when document D1 was available. This argument relied on the view that document D1, in addition to sharing many features with the claimed invention, also addressed the same problem as the invention, which was (arguably) not the case for D2.

    [...]

    This would then no longer be so different from the inventive step approaches taken by at least some national courts in EPC member states. In Germany, for example, the concept that there is a preference of a “closest” prior art and that the examination of inventive step can be stopped once it has been shown that the invention is not obvious starting from the “closest prior art”, has long been dismissed and criticized. The prevailing opinion in Germany is that inventive step must be present vis à vis the entire prior art and should not depend on the choice of the starting point in an individual case.

  2. BREAKING: Kymab caught the mouse as sufficiency strengthened by UK Supreme Court in Regeneron battle ([2020] UKSC 27)

    The UK Supreme Court today found Regeneron’s valuable antibody platform technology patents invalid for insufficiency. In doing so, the UK Supreme Court overturned the Court of Appeal decision and confirms the strong sufficiency requirement in the UK. The Supreme Court decision places emphasis on the principle of sufficiency that a patent claim should be enabled across its whole scope. As summarised by the UK Supreme Court itself, the Court of Appeal reasoning was seen as increasing the rewards obtainable by inventors in a complex, rapidly developing field like genetic engineering. The Supreme Court found in a majority ruling that the Court of Appeal swayed the balance too much in favour of patentees in a way that was not warranted by UK or EPO law. The full UK Supreme Court judgment can be read here.

    [...]

    In a majority judgment, the UK Supreme Court found the Court of Appeal’s reasoning logically sound, but ultimately considered it to be inconsistent with the UK and EPO law on insufficiency. In particular, the UK Supreme Court understood the principle that a patent should enable substantially all products within the scope of a claim at the priority date to be part of the bedrock of both UK and EPO law. In the words of Lord Briggs, who led the majority judgment, “[t]o water down that requirement would tilt the careful balance thereby established in favour of patentees and against the public in a way which is not warranted by the EPC, and which would exceed by a wide margin the scope for the development of the law by judicial decision-making in a particular Convention state”.

    The Supreme Court thus did not think the patent bargain was satisfied if the benefits of an invention could only be realised after the priority date, if and when all embodiments within the range could be made. Kymab’s appeal was therefore upheld, and the Regeneron patents found invalid for insufficiency.

    In a dissenting view, Lady Black first noted agreement between the Court of Appeal and Supreme Court on the legal principles. For Lady Black, the two courts disagreed in the application of these principles to the case in question. Contrary to the Supreme Court majority, Lady Black agreed with the Court of Appeal that the invention related to a broad general principle, that this principle was employed in all mice across the range of the claim, and that the patent should be rewarded by a commensurate broad scope of protection.

    A key part of the UK Supreme Court judgment are the “principles of sufficiency” provided on paragraph 56. According to principle vi)

    “the patentee has to demonstrate in the disclosure that every embodiment within the scope of the claim has been tried, tested and proved to have been enabled to be made. Patentees may rely, if they can, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made. But they take the risk, if challenged, that the supposed general principle will be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date” (emphasis added).

  3. Kymab holds off Regeneron in patent fight on home turf

    Chalk one up for antibody maker Kymab. The U.K. Supreme Court invalidated a pair of Regeneron patents around antibody-producing mice, putting to rest a lawsuit Regeneron filed against Kymab seven years ago.

    Known as patents ‘287 and ‘163, or the “Murphy patents,” they sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice. Regeneron sued Kymab in U.K. High Court in 2013 alleging that its Kymouse technology infringed patents covering its Velocimmune platform.

    The Supreme Court upheld 4-1 the decision of a High Court from 2016 to revoke Regeneron’s claims, reversing an Appeals Court’s verdict that the patents were valid.

    [...]

    The U.K. verdict is just the latest in a string of decisions that have come down on Kymab’s side. In April, the U.S. Patent and Trademark Office’s Trial and Appeal Board shut down a request from Regeneron to invalidate four Kymab patents. And that decision followed similar ones from patent offices in Japan and Australia—the Japanese Patent Office upheld Kymab’s patents in unappealable decisions, while IP Australia rejected Regeneron’s opposition to a Kymab patent on all grounds. Regeneron has appealed the latter decision.

    For its part, Regeneron emphasized that the Supreme Court decision applies only within the U.K.

    “The decision renders the two patents invalid and revoked in the UK only. Regeneron’s rights concerning these patents in other European jurisdictions remain in full force and effect,” the company said in a statement. “The 287 patent validity was upheld at the Europe-wide level by the Technical Board of Appeal of the European Patent Office (“EPO”) in 2015, and the 163 patent validity was upheld by EPO Opposition Division in 2018. Proceedings before the EPO’s Technical Board of Appeal on the 163 patent are ongoing.

06.17.20

Germany Has a Major Constitutional and Reputational Crisis Due to Team UPC

Posted in Courtroom, Deception, Europe, Law, Patents at 9:22 pm by Dr. Roy Schestowitz

All the ‘lobbyism’ has revealed the German republic to be little better than some ‘third-world’ countries or ‘Trumpland’

The drill team

Summary: When BMJV is willing to go ahead with something which is unconstitutional (UPCA was already intercepted by Germany’s constitutional court) it says more about BMJV than about the true prospects of the UPC, which for a variety of reasons remains dead in the water

THE MEDIA may not be saying much about it, but comments in this post (likely fluff from Bristows) include: “Why is the ministry not doing a public consultation? A public consultation was apparently denied in the past by some CDU or CSU member of the Bundestag who then became a judge on the Stjerna complaint. What a coincidence.”

We wrote about this several times before.

The same person later added: “The legal arguments raised there [in Belgium] were that the EPO cannot be sued for maladministration (rule of law, art2 TFEU), the discrimination of languages (difference of treatment between french and dutch speaking companies) and equality before the law (legally binding for french speakers vs non-legally binding for dutch speakers). The language of the defendent under the UPC can also be forced, which seems to be contrary to some international treaties. Any ideas which treaties are covering this problem?”

Another person said: “If the German Government – as a major driver behind the reform – wants to stand the slightest chance of bringing the UPCA in force in unamended form, it must happen before the UK finally leaves the EU, currently envisaged for the end of this year. After this has taken place, amendment becomes plainly inevitable. They know that any UPCA revision will require highly unwelcome concessions from their side, causing them to beat this dead horse as if there was no tomorrow.

“Part of the problem is that many of the individuals involved have a personal stake in the fate of the UPCA as it stands, be it of a merely financial nature, be it career prospects, be it both. As long as the major decisions are made by the always same people, who also bear the responsibility for what has happened so far and are thus strongly biased towards the one particular outcome serving their needs, unlikely as it may be to achieve it, reason will have no place in this.”

“Concerned observer” then wrote: “So let me summarise. The German government passes a law that the BVerfG voids the grounds of unconstitutionality. Subsequently, a written question is submitted to the European Commission, asking them to confirm whether CJEU case law precludes Germany from ratifying the UPC Agreement. The German government responds to all of this by presenting a draft law that the BVerfG has very clearly warned would also be unconstitutional. In other words, the German government has decided to press on despite very clear reasons to believe that the end goal would be unlawful. And all of this carried out in public, where an informed (and, in parts, highly sceptical) profession can clearly see what is going on. You have got to hand it to the persuasive powers of those pro-UPC lobbyists!”

The same person later added: “To quote the BMJV’s statement: “Es kann aber nicht so verstanden werden, dass es einen Kammerstandort in einem Nicht-Vertragsmitgliedstaat errichten beziehungsweise belassen möchte”. (“It cannot, however, be understood to mean that it wishes to establish or maintain a chamber in a non-contracting Member State”)

“This statement is clearly contrary to the position adopted by the BMJV between the Brexit vote and issuance of the UK government’s statement regarding non-participation in the UPC. However, it also makes no sense.”

“Each participant to the UPC Agreement is designated as “Contracting Member State”. Thus, a NON-“Contracting Member State” is simply a State that is not party to the UPCA. The BMJV’s statement is therefore based upon the false premise that the UK is no longer a “Contracting Member State” to the UPC Agreement.”

“It is so unbelievably disappointing to see such misdirection and misrepresentation emanating from a body that is supposed to be tasked with upholding the rule of law in Germany. Frankly, this has all of the makings of a major scandal.”

The reply said: “Why overlook the wording “Member State”? The UK cannot be a Contracting Member State any longer for the simple reason that it is not a Member State.”

MaxDrei said: “You only realise how precious was The Rule of Law after you have dumped it.”

He later also said: “The irony is that the UPC as presently constituted will help non-European corporations to dominate the European market, more than ever. Just look at what has happened with the EU Registered Designs regime.”

There’s lots more in those 27 comments. “Comments are closed.” The final comment said: “In case you hadn’t realised, most freedom of information legislation includes exemptions for information relating to … wait for it … international organisations …

“And the EPO is an international organisation.

“So the BMJV has a perfect get-out-of-jail card to prevent any embarrassing disclosures on that front.”

Benjamin Henrion dumped in this meme, having written a couple of FFII pages about a looming complaint, which hours ago he told me he was seriously pursuing. He says “we will launch a crowdfunding campaign to sack the UPC in Germany” and at this moment “I am looking at which “platform” to use…” (asking for recommendations)

A meme by Benjamin Henrion
A meme by Benjamin Henrion

Myles Jelf (Bristows) has just mentioned this. Why does Bristows mention something like that? One wonders….

The FFII (Foundation for a Free Information Infrastructure) has published a press release commenting on the German government’s consultation on a new draft bill to enable Germany to ratify the Unified Patent Court (UPC) Agreement (reported here). The FFII lists problems that it considers arise with the unitary patent and UPC system, and maintains that if Germany ignores those problems “there will be a second constitutional complaint filed immediately”.

Our understanding is that Stjerna would follow up as well. So the whole thing would end up being a stain on the name of BMJV. No, we don’t expect BMJV to succeed, except in soiling or spoiling what's left of its reputation.

05.18.20

Constitutional Court’s Justice Huber Reaffirms Substantial Concerns About Viability of the Unitary Patent/UPC

Posted in Courtroom, Europe, Law, Patents at 7:03 pm by Dr. Roy Schestowitz

Before JoJo's, after JoJo's: Rejection based on formality, Rejection based on substance

Summary: If UPC wasn’t already dead in the water, now we have another blow to push it down under because, as per a new interview, the “Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement.” (To quote Dr. Simon Klopschinski)

WHEN THE European Patent Office (EPO) spoke of the outcome of the FCC complaint back in March it merely quoted António Campinos cherry-picking a ludicrous political statement, in effect parroting an outrageous lie. It took the EPO more than a week to come up with that spin — something we had become accustomed to in the Benoît Battistelli days.

“Not a single blog posts in almost 2 months…”Almost nobody talks about the UPC anymore. The Daily Links from yesterday included an article we had missed from about a month ago — basically more lies from core Team UPC people. In May the UPC is hardly even named. It’s presumed dead except when they come up with ridiculous spin — distortion of facts designed to make it seem like the UPC still stands a chance. We’ve seen it all before. Bristows did that every week. Now? Not a single blog posts in almost 2 months…

Radio silence.

Hours ago, published via Thomas Musmann (Rospatt Osten Pross) was this relatively short post by Dr. Simon Klopschinski. In it there’s an English translation of relevant German text and it says:

On February 13, 2020 the German Federal Constitutional Court decided that the German law ratifying the Agreement on a Unified Patent Court is void (see here). In the meantime the Constitutional Court has issued another sentence which deals with the European Central Bank’s bond-buying programme (see here). On May 13, 2020 the daily newspaper Frankfurter Allgemeine Zeitung (FAZ) published an interview with Judge Huber, who was involved in both proceedings as judge rapporteur, on the ECB decision, in which Judge Huber also commented on the court’s UPC verdict.

In its ECB decision the Constitutional Court decided that it was not bound by a previous CJEU ruling. Therefore, the European Commission is currently thinking about initiating infringement proceedings against Germany under Article 258 TFEU. When asked by FAZ on this issue Judge Huber made the following comment on the primacy of EU law and the court’s UPC verdict…

[...]

In its decision of February 13, 2020 the Constitutional Court had left open the question whether the unconditional primacy of EU law, as stipulated in Article 20 of the UPC Agreement, violates the German constitution, even though the court held that there may be indications for such a finding (see para. 166 of the decision).

Judge Huber’s comment in the FAZ reaffirms that the Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement. Thus, if the second attempt to ratify the UPC Agreement is confined to organizing the required two-thirds majority in parliament (and some formal rectifications due to Brexit), the fate of the UPC Agreement in another constitutional complaint before the Federal Constitutional Court will remain uncertain.

“Concerned observer” soon added a comment to say: “It will be interesting to see how the question regarding the unconditional supremacy of EU (case) law is resolved with regard to Germany. One option might be to amend the Basic Law … but that might not help in all cases as it is hard to see how such an amendment could apply retroactively. However, perhaps of more immediate interest will be whether, despite the clear views expressed by the FCC, any of the UPC’s supporters will continue to lobby the German government to pass legislation enabling ratification of the UPC Agreement. The answer to this is likely to depend upon whether those supporters are prepared to actively encourage the German government to pass a law that would almost certainly be unconstitutional.”

“Justice Huber’s words can be interpreted as another nail on the UPC coffin.”Benjamin “NO Software Patents” Henrion (FFII) repeatedly told me something to that effect, citing nothing but unsourced rumours. “I have the impression that the German Government will mull the UPC through the Bundestag, ignoring Brexit, in order to get the UPC into force. And “fix it” afterwards,” he eventually wrote in Twitter. “Rumour that UPC will be back for a vote in front of the Bundestag soon #upc #Germany despite a clear violation of AETR and the UK being in,” he had said earlier. However, there’s no actual evidence of that and the above article from Dr. Klopschinski makes it more apparent that even if the Bundestag pulled a fast one it would not suffice.

Unfortunately, to us at least, the EPO still grants illegal software patents in Europe. Today’s patent courts reject those, but how many can afford the legal battle/s? Ideally we can put an end to all these ludicrous patents. As for the UPC? It’s a dead end. Justice Huber’s words can be interpreted as another nail on the UPC coffin.

05.10.20

EPO ‘Courts’ Outsourced to Microsoft

Posted in Courtroom, Europe, Microsoft at 8:06 pm by Guest Editorial Team

“In the case of the Julian Assange extradition hearing the last court prelim was held with phone-in by lawyers, monitors and journalist. Not much was audible, especially the defence. These virtual methods can be used to pervert justice by using bad audio equipment.”Anonymous new comment about the European Patent Office (EPO) outsourcing court processes to Microsoft

Gandalf: When private companies control your speech (e.g. packets) and they call it 'modernisation'

Summary: The EPO’s unlawful “legal” processes put into context using a recent example from the UK (those involved spoke about it publicly several times)

05.09.20

EFF Should Also Speak About the EPO Granting Software Patents Against the Law

Posted in America, Courtroom, EFF, Europe, Law, Patents at 5:47 am by Dr. Roy Schestowitz

Related: USPTO and EPO Openly Brag About Breaking the (Case)Law to Grant Software Patents That Courts Would Reject, Even the Very Highest Courts

Software patents and AI patents

Summary: While it’s commendable and very much appreciated that the EFF opposes software patents in the US, it has truly missed the boat, which is the crossing of the Atlantic by EPO practices, reframing software patents as something they’re not (or mindless buzzwords)

THE ABOVE-MENTIONED article already took note of similiarities if not overlaps in the way the main system in Europe and in the sole one in the US generally bypass the law itself. We continue to worry that the EFF ignores European Patent Office (EPO) abuse by António Campinos and Benoît Battistelli — abuse which includes illegal granting of software patents in Europe. They only care about copyright policy in Europe while pocketing Google money. That money comes from surveillance — something the EFF proclaims to be against and which emboldens EFF critics. Inquisitive readers can find more rants about this in yesterday’s IRC logs.

“They only care about copyright policy in Europe while pocketing Google money.”We’re generally thankful for the EFF; it has just published, if not weeks belatedly, this blog post about misguided 35 U.S.C. § 101 guidance, designed to overcome Alice (SCOTUS) rather than integrate it into common practice. In the EFF’s own words: (it was included in Daily Links already)

In 2014, the Supreme Court decided the landmark Alice v. CLS Bank case. The Court held generic computers, performing generic computer functions, can’t make something eligible for patent protection. That shouldn’t be controversial, but it took Alice to make this important limitation on patent-eligibility crystal clear.

Last year, the Patent Office decided to work around that decision, so that the door to bogus software patents could swing open once again. The office issued new guidance telling its examiners how to avoid applying Alice. In response to that proposal, more than 1,500 of you told the Patent Office to re-consider its guidance to make sure that granted patents are limited to those that are eligible for protection under Alice. Unfortunately, the Patent Office wouldn’t do it. The office and its director, Andre Iancu, refused to adapt its guidance to match the law, even when so many members of the public demanded it.

As we said at the start of last year, this won’t change how courts deal with such patents, but how many people and companies can afford a legal battle? This especially harms individuals and small businesses. To them, spending millions of dollars on one single lawsuit makes no sense at all. So they might instead settle over patent threats which they know to be bogus, baseless, and outright frivolous.

“They redefined “certainty” in the same way EPO redefined “quality” (to mean the opposite of it).”We’ve thankfully seen some supportive feedback about the EFF’s post. The CCIA said: “The Patent Office is promoting certainty in getting patents at the expense of making issued patents far less certain, with negative impacts on manufacturers and patent owners alike.”

There’s also a blog post about it (among several others) in our Daily Links.

The EFF tweeted that USPTO “should follow Supreme Court rulings, but the office’s own data show that it’s avoiding them to issue more patents.”

They redefined “certainty” in the same way EPO redefined “quality” (to mean the opposite of it).

Why does the USPTO do this?

“The EFF does get involved in European politics and even Latin-American politics when the EFF’s paymasters request that. How many times did it write about copyright law in Europe? Like a hundred times? Yet nothing (ever) about patents…”“Because it can,” said Jan Wildeboer from Red Hat/IBM (he was a campaigner against software patents in Europe before Red Hat hired him). “The USPTO and other patent offices around the world have granted patents on a lot of things that shouldn’t deserve a 20 year monopoly.”

“USPTO is ignoring Alice, Iancu has reopened the floodgates of software patents,” Benjamin Henrion said before shaming Wildeboer into leaving IBM in protest, noting that IBM played a big if not the biggest role in lobbying for what Iancu did. Our general position is that Wildeboer can perhaps persuade the former Red Hat CEO, now a President at IBM, to change IBM’s patent policy. Time will tell if that can happen…

From what we’ve heard from Wildeboer, he is at least trying.

It would be counterproductive to shame the EFF and Wildeboer, knowing that they’re generally on our side. But we shall continue asking — as we have politely done for a long time — why the EFF refuses to comment on EPO matters. The EFF does get involved in European politics and even Latin-American politics when the EFF’s paymasters request that. How many times did it write about copyright law in Europe? Like a hundred times? Yet nothing (ever) about patents…

04.07.20

Software Patents Remain Junk Patents in the United States (Not Enforceable), Whereas the EPO Keeps Granting Them and Promoting Them

Posted in America, Courtroom, Europe, Patents at 2:37 am by Dr. Roy Schestowitz

When it comes to abstract patents, the EPO has become worse than its American counterpart because there’s no oversight

A demolition sign

Summary: We take note of the positive outcomes in the US, where courts continue to reject software patents, but in Europe the largest patent office, which sought to replace all the courts, still acts as if patent law does not exist and patents can be endlessly printed irrespective of their merit (or validity as judged by actual courts)

THE latest Daily Links (published yesterday with more to come later today) contain yet more new examples of 35 U.S.C. § 101 ‘taking out’ bad (invalid) patents granted by the U.S. Patent and Trademark Office (USPTO). Courts at all levels are rejecting such patents. District courts, the Federal Circuit, even the USPTO’s own Patent Trial and Appeal Board (PTAB), which processes inter partes reviews (IPRs) without interference from SCOTUS (this highest of all courts defended IPRs).

Alice, which soon turns 6, isn’t being challenged by SCOTUS. Yesterday someone also wrote that “SCOTUS denies cert. in INO Therapeutics v. Praxair Distribution, 19-1103, re whether a method of treatment is patent eligible.”

Alice, which soon turns 6, isn’t being challenged by SCOTUS.”“SCOTUS is not controlled by patent maximalists,” I’ve told him, “and the same goes for the Federal Circuit under Judge Sharon Prost, so there’s not much to correct…”

This kind of trend is why we almost stopped covering US patent cases around December of 2018. It was a conscious decision to focus more on the EPO, instead.

Yesterday the EPO wrote about “Videogaming” again. This is how the EPO is recklessly and shamelessly promoting illegal software patents in Europe these days [1, 2]. The EPO tweeted: “#Videogaming and IP: what are the challenges and how can you overcome them? The recording of our expert #webinar on just that is now available.”

“Next month we turn 13.5 years (we started in November 2006) and it’s clear that we have not prevented the EPO from granting illegal patents on software.”The webinar very clearly spoke about software patents, with the EU too in the mix.

The EPO then tweeted: “Which countries are innovating the most in the field of computer technology? Find out in this analysis of our latest patent statistics: https://bit.ly/DigitalisationIndex … #EPOPatentIndex”

Terms like “computer technology” or “digital technology” — in the context of patents at least — nowadays mean illegal monopolies on algorithms (more often than not or just typically). Also see this additional EPO tweet (from yesterday as well). The categories are misleading by design. Many of these are just bogus software patents that courts would toss out. This is how the EPO fakes ‘growth’; it even admits that this is the main or sole ‘growth’ area.

Next month we turn 13.5 years (we started in November 2006) and it’s clear that we have not prevented the EPO from granting illegal patents on software. They just keep changing the language they use, but the practice remains the same. So in case anyone still wonders why we focus so much on the EPO, this is why. The EPO keeps gloating about exporting these practices to other continents as well.

03.23.20

The Fall of the UPC – Part III: Pure Comedy From Watchtroll and Its UPC Lobbyists From Managing IP

Posted in Courtroom, Deception, Europe, Law, Patents at 5:39 am by Dr. Roy Schestowitz

How much longer can one defend corruption?

UPC Preparatory Committee has things under control!!!
UPC Preparatory Committee has things totally under control!!!

Summary: Two megaphones of European Patent Office (EPO) management and boosters of Team Battistelli, namely Managing IP and Watchtroll, want us to think that UPC is merely “delayed” and that acts of overt corruption can be described as “passed unanimously by the Second Chamber of the Bundestag”

THE site Managing IP isn’t doing particularly well right now. All its lobbying campaigns for the UPC fell on deaf ears and failed. They know it. We know it. They also lost lots of writers in recent years (we won’t name all of them, but it’s a lot) and they hardly publish anything. Not much of substance.

They recently broke their RSS feed (with a redesign) and their main writer nowadays (Max Walters) was taken from another site. Their (and his) latest article cannot quite deny the facts. Their paywall became a lot more stubborn than before (desperation for income perhaps).

“It has actually been rather amusing to see Team UPC lying about the decision of the FCC, as we noted in Parts I and II.”One of their main writers was once upon a time doing puff pieces with and for Battistelli. But he left. Almost all the decent writers left, including those whom we used to cite a lot.

It has actually been rather amusing to see Team UPC lying about the decision of the FCC, as we noted in Parts I and II. These liars are disjoint from and disconnected from reality. Uncaring for facts…

Team UPC is also losing its mind at the moment. Patent zealots have long relied on hijacking (or already-hijacked) patent offices. But they cannot seem to undermine the courts too. Corrupt Rader is out, UPC is dead…

Now what?

Well, James Nurton (Watchtroll and formerly Managing IP) has published an article with the headline “German Decision Puts Unified Patent Court Agreement in Jeopardy”

It’s “in Jeopardy”?

“Maybe lying and corruption pay off in the short term.”It’s dead. Talk about spin. They were paid to promote UPC (he personally did this in Managing IP). Mr. Nurton is just trying to save face and salvage what’s left of his reputation. His track record speaks for itself and he cannot deny what he wrote (which we repeatedly challenged). How about all those UPC “progress reports”, which suddenly and abruptly stopped when they ran out of material as opposed to fabrication and sheer lunacy?

This is what we alluded to in Part II. These people will suffer for a long, long time to come for what they wrote. They were like lobbyists or PR agents disguised as “reporters” and “journalists”.

They know it, we know it.

Maybe lying and corruption pay off in the short term.

Watch what’s happening to the economy right now.

Nurton says the latest outcome is “what may be a fatal blow to the project” (UPC), but why did he keep cheering for it? Why did he fail to predict such an obvious outcome, which we’ve correctly predicted for about half a decade, based on underlying facts?

“The Act of Approval,” he wrote, “was passed unanimously by the Second Chamber of the Bundestag but only about 35 members were present.”

“Nurton says the latest outcome is “what may be a fatal blow to the project” (UPC), but why did he keep cheering for it? Why did he fail to predict such an obvious outcome, which we’ve correctly predicted for about half a decade, based on underlying facts?”At what time at night, Mr. Nurton?

Around 1:30AM. This was an act of corruption — the kind of thing that helps associate Germany with crimes.

Not good. Embarrassing even. The Justices saw that. They made the right decision. On that basis alone the UPCA ought to be thrown out immediately. This act of corruption was very much characteristic of other things we saw in the process, EU-wide.

Don’t expect to get any real facts from Watchtroll and its ‘European’ writers, part of the exodus (away from Managing IP). Check out this Nurton tweet: “”Despite the fact that the judgement will result in further delay the preparatory work will continue, while the judgement and the way forward is further analysed” – #UPC Preparatory Committee responding to German FCC decision today https://www.unified-patent-court.org/news/federal-constitutional-court-decision …”

“If this is where Nurton gets his ‘facts’, then he would be a perfect fit for covering Donald Trump news for Fox “News”.” Oh, we see…

There’s a “further delay”…

The Ministry of Truth protects… the “Truth” (Preparatory Committee, whose every statement turns out to be a lie, including this latest one). If this is where Nurton gets his ‘facts’, then he would be a perfect fit for covering Donald Trump news for Fox “News”.

03.19.20

Germany’s FCC and Its Decision on UPC May Not Matter Much Anymore (and the Government in Berlin Knows That) (Updated)

Posted in Courtroom, Europe, Patents at 3:22 pm by Dr. Roy Schestowitz

Update (20/3/2020): The decision is now online in German and in English. Thank you, Justice Huber, for doing the right thing in the face of great pressure if not harassment from the litigation ‘industry’.

Tomorrow morning we’ll know the (in some sense) irrelevant outcome

UPC lobbying budget:
UPC lobbying budget - Can't say if dead or dead - It's dead, Jim - I need to change profession

Summary: Tomorrow morning the Federal Constitutional Court in Germany (Bundesverfassungsgericht) will publish a decision that leaves UPC as dead as it already is, based on last month’s declaration from the British government (among other key factors)

THREE years ago the corruption in EPOnia was still making headlines across Europe. It was only a year or two after the corruption had been culminating in all sorts of ways. We can count the ways, enumerating literally dozens of examples. We’ve written and published over 3,500 articles about the EPO alone.

“Anyway, legal issues aside, the EPO also fails on technical merits.”The EPO has not changed since; but it made use of some new PR strategy and put aside budget and lawyers for intimidation and bribery of the press. At one point it even sanctioned IP Kat (back when it was still run by decent people — sadly no longer the case due to staffing/editorial changes). IP Kat nowadays participates in the EPO’s abuses by means of censorship of EPO critics. It’s really that bad and rather blatant. They hope nobody will notice that, but people do notice…

Anyway, legal issues aside, the EPO also fails on technical merits. The official European Patent Office/Organisation’s (EPO) Web site suffered downtime issues this week (the U.S. Patent and Trademark Office (USPTO) had similar issues last year and two years ago — issues that some blamed on corruption, nepotism and incompetence. This week one USPTO whistleblower wrote: “Rec 100s complaints about the new CIO leadership. The CIO seems to be every where but at work. I guess the contractors are running the place. The Dep CIO is still failing as a leader, transferring old staff over to CIO to achieve even greater failure that got her trasferred”).

“Will they be OK with the EPO trying to seize control of the legal system too? Not likely. Not if they do their job properly.”We don’t wish to focus too much on the USPTO and every pertinent EPO abuse, including the corruption of the media, the bribery, the fake job ads and so on. Let’s just say that the Justices at the FCC are certainly aware of many of these things. They’ve had years to familiarise themselves, as they’re dealing with numerous (perhaps half a dozen) complaints about the Office. They’ve been observing the abuses against EPO judges, not to mention all sorts of corruption such as nepotism (the legal system is extremely sensitive to such bad publicity).

Will they be OK with the EPO trying to seize control of the legal system too? Not likely. Not if they do their job properly.

One can count on the overzealous among Team UPC to act as though the UPC is about to start. Bristows’ Gregory Bacon (some of his UPC boosting colleagues left the firm) said some nonsense and around the same time “Kluwer Patent blogger” (probably the same firm hiding itself and suppressing its opposition, as usual) wrote: “”We await to see what the significance might be that the decision will be issued by the Senate rather than Chambers”, Bristows writes in an article published earlier today.”

Citing oneself, Bristows?

Anyway, one big blow was served last Friday but was "lost in Corona" (“Dutch Court Rules That Seat Agreement Signed Between the EPO and the Dutch Government Violates Article 45 TFEU”), so will this Friday bring another blow?

“This UPC decision may be already moot,” I told Henrion (FFII) some hours ago, “because the UK is not participating in the process, which means UPCA cannot go on (as Berlin confirmed months ago)” (this is a matter of public record in newspapers as well).

“I personally do not share this kind of enthusiasm because the UPC is already dead anyway.”The court says: “Generally, this information will be announced three days prior to publication. On the day of their respective publication, the decisions will normally be available on the website of the Federal Constitutional Court as of 9:30 a.m. and are sent via newsletter simultaneously.”

That’s 8:30 AM British time.

Citing Stjerna's latest paper, Henrion noted that “Nokia and BASF [are] writing UPC court fees so that SMEs cannot participate” and added that: “If the FCC dismiss the complaint on Friday, FFII eV will file a second one. [] If the German Constitutional Court kills the Unitary Patent on Friday, I will do a virtual party on Jitsi. Bring something to drink!”

I personally do not share this kind of enthusiasm because the UPC is already dead anyway. “There are strong grounds to throw out the UPCA, not the complaints, for good,” I told him. “It’s the product of a litigation ‘industry’ coup, designed to corrupt the system and break the underlying laws for profit. Unitary Patent already died last month here in the UK. Another German nail in the French coffin would help thwart future attempts by ‘Team UPC’.”

“They look to discredit the decision in case it doesn’t go their way.”Henrion took note of “UPCtracker” Thomas Adam, who insults the court and the Justice. He wrote: “#UPC re: decision of DE Constitutional Ct to be published on Fr., March 20, 2020. Not an expert in constitutional procedural law, so following observations should be taken w a grain of salt. The form of announcement indicates that the decision will be one by the full Senate (8 judges) as compared to a 3-judges/chamber decision (the latter being competent to deny acceptance of the complaint, sec. 93b of the Act on the Fed. Constitutional Ct., but – of relevance here – not competent to declare an Act of parliament as unconstitutional; sec. 93c(1) 3rd sentence); a chamber decision wd have been surprising this late in the game but it appears that the case was never formally admitted by the Senate; having said that, a Verfassungsbeschwerde must be admitted in order to be decided, sec. 93a but can happen implicitly). In case of a draw (4:4), complaint is denied. Dispensing with oral hearing would be due to parties involved waiving such right, sec. 25(1). So form of decision (by way of “Beschluss”) not prejudicial for outcome. Dissenting opinions are possible.”

So they proactively moan about the decision. They look to discredit the decision in case it doesn’t go their way.

“In case the case is not refered [sic] to the CJEU,” Henrion told him, “FCC will breach its obligations.”

Separately he had said “UPC FCC decision to be published this Friday [...] If the court does not refer the matter to the CJEU, this will be a big fault by the FCC.”

“We understand that the decision is already written and ready to be published, but regardless of its conclusion the outcome will be the same.”My gut feeling tells me nobody will really pay attention tomorrow, due to the pandemic. We recently exposed profound EPO corruption and German journalists said they would not be covering it because of coronavirus. They actually said that.

The Team UPC troll/sockpuppet in Twitter (intended to lobby and ‘harass’ the FCC) said: “No. But heralded for tomorrow, Fr., at 9:30 am CET (though Court runs on limited capacity due to COVID-19).”

Well, the decision won’t matter for UPC’s fate or even for software patents in Europe. It is in many ways moot before its arrival.

We understand that the decision is already written and ready to be published, but regardless of its conclusion the outcome will be the same. No doubt Team UPC will shout from rooftops tomorrow morning, either in ‘damage limitation’ attempts (distorting the meaning of the outcome) or celebrations over nothing of real substance, merely resulting in yet more complaints and inaction from the German government.

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