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08.17.19

Patent Prosecution Highways and Examination Highways Are Dooming the EPO

Posted in Europe, Patents at 2:23 am by Dr. Roy Schestowitz

Chicago night traffic

Summary: Speed is not a measure of quality; but today’s EPO is just trying to get as much money as possible, as fast as possible (before the whole thing implodes)

QUALITY of patents granted by the European Patent Office (EPO) is very different from what it was a decade or more ago. Battistelli wasn’t the first to lower patent quality, but he certainly was the biggest blow to it. After he was done attacking judges and driving out talented examiners António Campinos came in, openly promoting software patents in Europe under the guise of “4IR” and other nonsensical buzzwords.

“We will address the quality & timeliness of the European #patent granting procedure an see a demonstration of our new Espacenet that is soon to be launched at this event in The Hague,” the EPO wrote in a new tweet.

“Lack of press coverage about systematic declines in EP quality is actually part of the problem.”So I asked: “What do you mean by “quality & timeliness”?

“Those are now the same thing at EPO (which conflates speed of grant with “quality”) …”

Many people, attorneys included, have already brought up this point. What good will European Patents (EPs) be if their assigned parties cannot use them in court? Sooner or later those parties may no longer bother with EPs at all.

Lack of press coverage about systematic declines in EP quality is actually part of the problem. Somehow the media does not seem to care about new pilots and controversial programmes designed to lower patent quality while misusing words like "Quality", "Collaborative" and "Improvement". Media in Europe clearly decided if not ‘conspired’ to turn a blind eye to further EPO leaks and whistleblowers (it wasn’t always this way). Instead it promotes lies, funded directly by the EPO. At least we know whose side such media is on.

“Somehow the media does not seem to care about new pilots and controversial programmes designed to lower patent quality while misusing words like “Quality”, “Collaborative” and “Improvement”.”We are still seeing all sorts of stories about EPs that perish in courts. It means that suing using EPs has a high associated risk; there’s a good chance nobody will benefit except the lawyers. Earlier in the week Hogan Lovells’ litigation team published a writeup about a Dutch lawsuit with an EP, copied onto here for extra exposure. To quote from JD Supra:

Celltrion claimed that the EP is invalid for lack of novelty, arguing that it is not entitled to invoke the priority of P1. According to Celltrion, the Inventor did not (timely) transfer the priority right to Biogen. The parties agreed that if the EP was not entitled to the priority right, a certain publication would destroy the patent’s novelty.

Biogen argued that the priority right was automatically transferred to Biogen at the time of its creation because the Inventor and Biogen had entered into an “Employee Proprietary Information and Inventions and Dispute Resolution Agreement” (“the Agreement“).

In 2017, the District Court ruled against Biogen and considered that Biogen was not entitled to the priority of P1 (and hence that the EP lacked novelty). Biogen appealed the decision and in its (interim) decision of 30 July, the Court of Appeal ruled on the formal entitlement to priority. However, it has not yet dealt with other validity arguments raised by Celltrion.

[...]

It makes sense that, any formal deficiency in such a transfer should not have a possible lethal consequence for the validity of a patent. Unfortunately, it is unclear whether the Dutch Court of Appeal agrees with the EPO’s joint applicants approach so, watch this space for further developments.

From the above, which may not be a closed case, it seems rather likely that the lawsuit will go nowhere. In our experience, having surveyed lots of lawsuits every day for about a decade, the likelihood of patent lawsuits being “successful” (for the plaintiff/claimant), has virtually collapsed. Many patents granted by patent offices are later rejected by judges and juries. For the lawyers this may not matter much; they bill by the hour irrespective of the outcome of cases. But deep inside they know that low legal certainty will eventually cause reluctance to sue and pursue (applications).

Software Patents Won’t Come Back Just Because They’re (Re)Framed/Branded as “HEY HI” (AI)

Posted in America, Europe, Law, Patents at 12:38 am by Dr. Roy Schestowitz

Building another house of cards or patent bubble

AI hype at EPO

Summary: The pattern we’ve been observing in recent years is, patent applicants and law firms simply rewrite applications to make these seem patent-eligible on the surface (owing to deliberate deception) and patent offices facilitate these loopholes in order to fake ‘growth’

THIS site has changed a bit this year. Since springtime we’ve increased focus on GNU/Linux and since last winter we’ve been gradually reducing coverage of U.S. Patent and Trademark Office (USPTO) affairs, focusing instead on the European Patent Office (EPO) under António Campinos, Battistelli‘s friend. There’s still plenty of coverage about 35 U.S.C. § 101 cases in our daily links (which recently became bi-daily) and we habitually write about software patents. It’s just that in the world as a whole, notably in the US, such patents are waning. How does one ‘work around’ Mayo/Alice (SCOTUS)? It’s not simple, but at the examination phase it’s easier to manipulate the examiners into granting patents on algorithms. Days ago Watchtroll once again blasted the Patent Trial and Appeal Board (PTAB), equating its work with “harassment” of “patent owners” [sic], then urging Andrei Iancu to stop or at least curtail inter partes reviews (IPRs). This sort of blowhard nonsense from Watchtroll’s founder simply reveals just how desperate and foolish patent zealots have become.

“The writers at IAM constantly promote these buzzwords, as does the EPO.”Watchtroll, however, does not have a monopoly on such nonsense. And to think that the EPO’s management liaises with Watchtroll is a rather disturbing thought.

The desire to ‘dance’ around the law and grant bogus, abstract patents isn’t new. Methods appear to have increased in number and these typically boil down to semantics and buzzwords.

“It certainly seems like the world of patents is increasingly dominated by marketing phonies and imposters, not technical people. That’s a profound problem.”“Through strategic claim drafting, oil and gas companies can overcome Section 101 and obtain patents covering digital technologies and AI, say Charles Collins-Chase, Jennifer Roscetti and Paul Townsend of Finnegan,” wrote the patent maximalists in “Oil and gas digitalisation: overcoming §101 to obtain valuable patents“. They basically celebrate software patents that are fake patents using buzzwords like "HEY HI" and other nonsense put forth by the likes of Finnegan, a litigation giant that sponsors the likes of IAM. The writers at IAM constantly promote these buzzwords, as does the EPO. What would courts say? They’re not in the business of granting as many patents as possible, so a sober analysis would likely squash such patents. But it’s not cheap; court battles are very expensive.

Citing the EPO’s “Problem-Solution Approach”, patent attorney “MaxDrei” (frequent commenter on EPO matters at IP Kat) wrote about some of these ridiculous "HEY HI" patents that reach the EPO and other patent offices. To quote the comment:

Let us take the two examples and address them like the EPO does, using its Problem-Solution Approach. So, two part form of claim, characterized by…..fractal. Thus, the beverage container I take to be old except that its bumps and dimples are, well, fractal ones.

According to the application as filed, what is the technical problem (X) for which “fractal” is the solution? What is it that fractal bumps do that conventional bump patterns fail to do? We need to know that, so we can scour the prior art universe for hints or suggestions that, if X is your problem, it might be worth rendering your bumps as “fractal”.

Could it be that the only problem we can derive from the application as filed is the problem of finding an alternative? Could it be that the algorithm was also searching the prior art to find an alternative and found it in “fractal”?

As to the candle invention, I can see that random or pseudo-random flickering might command attention more strikingly than metronomic flickering. But again, what is the technical problem (Y) for which the solution is “fractal”?

The imaginary person skilled in the art is deemed dispassionately to scour all the prior art, looking for hints or suggestions. Is this not the same as what the machine “inventor” is doing? If it finds any such hint or suggestion, has it executed an act of invention? But then; what if it keeps quiet about where it found its hint or suggestion and instead holds out its feature combination as its own flash of inspiration? Who can deny it?

As we argued earlier this month, this whole “HEY HI” nonsense poses a risk to the very legitimacy of patent systems. There are several reasons for this. But the aspect most troubling to us is the degree to which “HEY HI” gets leveraged as a mere buzzword; just about any algorithm — never mind if machine learning-centric or not — is being cast or framed as “HEY HI” because it does something ‘clever’. It certainly seems like the world of patents is increasingly dominated by marketing phonies and imposters, not technical people. That’s a profound problem. Watchtroll blocked me in Twitter after it had lost an argument over software patents — an argument which incidentally revealed that Watchtroll’s founder doesn’t even know what software is and how it works!

08.16.19

IP Kat Pays the Price for Being a Megaphone of Team UPC

Posted in Deception, Europe, Patents at 11:58 pm by Dr. Roy Schestowitz

Some proponents of the Unified Patent Court (UPC) have taken a cloak of anonymity because they know they’re lying; they don’t want to take responsibility/face accountability for it.

UPC PR Kat

Summary: The typical or the usual suspects speak out about the so-called ‘prospects’ (with delusions of inevitability) of the Unified Patent Court Agreement, neglecting to account for their own longterm credibility

THE Campinos/Battistelli-led European Patent Office (EPO) no longer mentions the UPC. It’s hard to even recall the last time ‘unitary’ anything was mentioned by the EPO. Team UPC is another matter. These charlatans and frauds spent at least half a decade of their lives on this destructive legislation, wrongly assuming that in the name of “community” or “unity” or “EU” it’ll pass smoothly with whatever horrific clauses are contained in it (written by litigation firms and their lobbyists).

“These charlatans and frauds spent at least half a decade of their lives on this destructive legislation, wrongly assuming that in the name of “community” or “unity” or “EU” it’ll pass smoothly with whatever horrific clauses are contained in it (written by litigation firms and their lobbyists).”Years ago IP Kat was still quite credible and scholarly (with Jeremy as its editor, not just its founder); we’re sad to see what it has become, rotting like most media, turning to PR/marketing and lobbying. We know whose. Just check the writers’ professional affiliations. It’s rather gross. Might as well rebrand/rename to “Litigation Kat”.

“No rush for the UPC” responded to this recent post from IP Kat. He or she calls out this book and promotional puff piece for advancing Team UPC’s lies and the motivation for these lies:

The book might only become interesting should the UPC come into force, and nothing is less sure than this. With the present UK PM, one can have reasonable doubts that a reference to the CJEU will be tolerated after Brexit.

On the other hand, the RoP have not yet been adopted by the Commission. So the book appears a bit too early. On the other hand, the RoP contain procedures unknown in most Contracting States, like forced intervention. A decision of the UPC might be applicable to a third party not having taken part in the whole procedure! I doubt that this can be constitutional in a number of Contracting States.

The heavy reference to German decisions is not a surprise for those having witnessed the various mock trial conducted in different places.

One observation was that reliance on national traditions was very heavy, especially if the panel is composed with two judges of the same nationality. They can easily outvote the third judge, or ignore the technical judge, as the chairman has a casting vote.

The Court of Appeal of the UPC will have a lot of work and it is only after enough decisions of the Court of Appeal, that it will be possible to say that the UPC will be successful or not. Then a book might be justified, but not presently.

One could also consider that the book is a call to the German Constitutional Court to dismiss the objections of Mr Stjerna. One of the publishers of the present book has clearly taken position in this respect. Its interpretation of Opinion C 1/09 has also changed with time….

The German Constitutional Court does not even need to rule on it; UPC will die on its own. By the time there’s a decision it’ll no longer be relevant.

“Even if the German constitutional complaint against the Unified Patent Court Agreement is dismissed, the German government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear,” says Kluwer Patent Blog, whose latest UPC coverage is by “Kluwer Patent blogger” (anonymous), i.e. it is most likely by Bristows LLP again. They themselves said they're trying to give an illusion (i.e. lie) of UPC progress and here’s the latest:

Even if the German constitutional complaint against the Unified Patent Court Agreement is dismissed, the German government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear.

[...]

The Federal Constitutional Court in Germany is expected to decide about the Stjerna complaint later this year or possibly at the start of 2020, as is more likely according to a recent article of Fish & Richardson: ‘The Constitutional Court case is (…) now scheduled for decision in 2019, but that schedule is not binding. Announcement of the date for oral argument, perhaps within a few months from now, will be the best indication of the decision date, because it must be handed down within three months after the oral hearing. Given the August holidays, it seems most likely the decision will be in early 2020.’

The German parliamentary questions were aimed primarily at the costs of the UPC and Germany’s contribution to its funding. According to the letter of the Ministry of Justice, the most important contribution of Germany so far – 543 981 euro – went to the creation of the new IT system for the UPC, which has ‘almost been completed’.

Stjerna’s complaint is no longer the sole barrier then; outside the FCC (Federal Constitutional Court), even the government itself — i.e. a separate branch — speaks of Brexit. Whatever the outcome may be, software patents remain a big (and growing) problem in Europe because the EPO keeps granting them, even if European courts repeatedly reject these. The EPC too is being violated. That’s a subject we’ll deal with in our next couple of posts.

The EPO’s War on the Convention on the Grant of European Patents 2000 (EPC 2000), Not Just Brexit, Kills the Unitary Patent (UP/UPC) and Dooms Justice

Posted in Deception, Europe, Patents at 7:10 am by Dr. Roy Schestowitz

1600 Gamer @ Berne Switzerland

Summary: Team UPC continues to ignore the utter failures that have led to lawlessness at the EPO, attributing the demise of the Unified Patent Court (UPC) to Brexit alone and pretending that it’s not even a problem

EUROPE’S second-largest institution, especially under the Battistelli/Campinos autocracy, disobeys the EPC every single day. Many people — the “general public” as one might call them — don’t understand the severity of this. The EPC is like the ‘constitution’ of the European patent system. It’s what gave it its authority, so it’s like a founding document. How would people react if the nuclear safety agencies actively sought to undermine regulations?

“How would people react if the nuclear safety agencies actively sought to undermine regulations?”Fake patents are nowadays nonchalantly being granted by the European Patent Office (EPO); it’s causing chaos. Examiners too warn about this. Illegal patents are then followed by illegality and prevention of essential medicine reaching the market, essential software being written and so on.

Yesterday we saw this new press release about a bunch of patents that had been invalidated only owing to UK High Court intervention (legal fights at this level are very pricey). We wrote about this dispute before and here’s the latest:

Estar Technologies Ltd. (Estar Medical) announced today that Regenlab failed to pay legal costs resulting from two orders made by the UK High Court (Patent Court). The Patent Court awarded Estar Medical extensive legal costs after it revoked the Regenlab PRP patent in its entirety. Regenlab claims it is unable to pay the ordered costs because its access to cashflow is “very limited” and a “restricted amount of liquid funds available”. Regenlab originally asked the Patent Court, in a witness statement submitted by its legal counsel, Mr. Andreas Pigni, to defer the payment which “could have a ‘domino effect’ on the viability of [its] business” and “would impact on Regen’s business in a way that would be difficult to quantify financially but is likely to be substantial and would take significant time for Regen to recover its position”.

The Patent Court judgment is in line with the decision of the Opposition Division of the European Patent Office (EPO) which also revoked Regenlab PRP patent in its entirety for lack of novelty and added mater. The EPO and UK judgments add to Estar Medical’s winning the infringement claim in Germany last year and the venue judgment in Federal Court in New York in which Regenlab also lost against Estar Medical.

Why are such patents being granted in the first place? It’s only good for lawyers, not for anybody else.

The EPO’s management carries on walking ahead as if nothing is wrong. They don’t listen to anyone who blows the whistle, either internally and externally. To make matters worse, the EPO squashes all sources of possible dissent, including supposedly independent branches whose purpose (as envisioned by the EPC) was to regulate, criticise and offer oversight. The EPO just ceased functioning like it was supposed to. It’s uncontrolled and out of control.

“The EPO’s management carries on walking ahead as if nothing is wrong. They don’t listen to anyone who blows the whistle, either internally and externally.”“A Decision of the Supervisory Board amending Rule 25 of the Implementing provisions to the Regulation on the European qualifying examination for professional representatives has been published in the Official Journal,” Roel van Woudenberg notes. His blog is about ‘entry level’ stuff for the EPO, which disobeys the EPC. These people may enjoy plenty of frivolous litigation in years to come, but we know at whose expense.

Earlier this week HGF Limited weighed in on the EPO’s Enlarged Board of Appeal with its oftentimes ludicrous composition. Here is its decision, published originally in French:

The decision of case G01/18 has recently been published in French by the EPO’s Enlarged Board of Appeal (EBoA). The conclusion reached was that late payment of the appeal fee and/or late filing of the notice of appeal results in the appeal being deemed not filed.

[...]

Importantly, this decision provides clarity regarding the status of an appeal and the reimbursement of an appeal fee under the above-explained circumstances. Whilst a surprisingly large number of appeals boards (including one enlarged board in R02/10) had previously found that an appeal should be treated as inadmissible under one of the above-described scenarios, the consequence of these (now determined to be incorrect) rulings was that the appeal fee (€2,255 as of time of writing) was not reimbursed in those cases. Accordingly, the only damage to the prospective appellants in each of the ‘minority’ case law cases due to this misinterpretation of the EPC was financial, with no rights having actually been lost as a consequence. This decision should prevent boards of appeal from taking decisions in future which would deny a refund of the appeal fee under any of the above-described circumstances, whilst also drawing a line under the divergence that had developed in this area of (seemingly) straightforward case law.

Meanwhile, there does not appear to be any rhyme or reason as to why so many appeal boards previously decided that an appeal should be deemed inadmissible rather than not filed under one of the above-explained circumstances. For example, there is arguably a difference between the text of Article 108 EPC depending on the language in which it is read (with the English text more clearly connecting non-filing with failure to meet the two month deadline). However, most of the minority case law decisions were published in English and, therefore, it seems unlikely that the divergence on case law regarding interpretation of Article 108 EPC has been based on differences in translation. Furthermore, the minority case law spans nearly a quarter of a century, with little or no cross-over of Appeal Board members from one case to another.

Scheduled to look into software patents in Europe (or simulations on a computer), this Board is very unlikely to rule in a way that irks the Office. What good are appeal boards that are basically threatened by those whom they're supposed to disagree with?

“What good are appeal boards that are basically threatened by those whom they’re supposed to disagree with?”The above issues are very much visible to and are well understood by the German FCC, which has been stalling decision on UPC/A for about 2 years now. As was clarified recently, there should be no expectation of a decision being reached any time soon. Probably not this year, either…

One can expect Team UPC to twist what was said; it has been doing that for half a decade and it is still lying and making up ‘the facts’. Complete and utter distortion of what was actually said can be seen here: [via]

The federal government is currently suggesting that it will wait for Brexit before the Unified Patent Court (UPC) is allowed to start [sic]. This is the result of an answer to a question from the FDP parliamentary group. In our opinion, however, the Federal Government is firmly bound to the will of Parliament and must implement the Ratification Act with the signature of the Federal President without delay.

Complete nonsense. Lots of lies in that one single paragraph, but that’s the usual from Team UPC. There are many barriers facing the UPC, not only in Germany (several raised in the complaint, at least four!) but in other countries as well. Of course Team UPC pretends it’s as simple as “Brexit happens, then UPC!” and “everybody wants it!!!”

“All those law firms that lobby heavily for the UPC basically say (not out loud), “to hell with the law, to hell with constitutions. WE. WANT. MONEY!” Just like the EPO’s management.”The false perception and bogus narratives surrounding UPC are partly due to pro-UPC events, funded in part by the EPO and set up by think tanks. Managing IP did several of those, as did IAM. There are similar think tanks in the US, doing the same thing to influence the U.S. Patent and Trademark Office (USPTO). In the case of the EPO, it went as far as funding pro-UPC events in the US (another continent!).

Earlier this week we saw this latest nonsense called “IP STARS” — the paid-for/fake endorsement from a think tank of litigation firms and patent trolls. They’re sponsors of Managing IP, a publisher as well as lobbying front that does biased events with stacked panels.

What’s troubling about all this is that the UPC is unconstitutional and it’s also impeded by gross violations of the EPC. All those law firms that lobby heavily for the UPC basically say (not out loud), “to hell with the law, to hell with constitutions. WE. WANT. MONEY!” Just like the EPO’s management.

08.12.19

Spreading False Rumours or What’s Most Likely Lies (Falsehoods) Won’t Help Restore Justice at the EPO

Posted in Deception, Europe, Patents at 2:06 pm by Dr. Roy Schestowitz

This past weekend: The EPO is Still Violating the EPC Every Day

The hearsay
Not everything one hears is true; there ought to be a verification process. It otherwise helps the EPO’s censorship agenda.

Summary: EPO management lies to everyone routinely (to courts, to the press, to staff and so on); it’s not helping when lies or baseless hearsay are spread about EPO management as it helps Team Campinos censor/block/slander sites that expose EPO corruption (under he guise/pretext that these sites are disseminating lies; Campinos, by the way, has blocked Techrights for over a year without explanation, just like a truly insecure autocrat)

BASELESS hearsay in the European Patent Office (EPO) isn’t helpful. Take for instance this fourth anonymous comment about some rumour regarding Battistelli being Elodie Bergot‘s father. R.I.P. Kat is generally reliable, but the comment in “More scandals” lends credibility to claims of defamation being weaponised against Office management. Crime in the EPO is real and very much profound. The attack on the law itself is undeniable. We’re not even talking about patent quality and scope (a decade ago we worried only about software patents in Europe) but literal crimes committed by the management. These people are truly above the law. There’s no need to make up scandals about Bergot, who would exploit it to just abuse staff some more (as revenge). Battistelli already has two daughters; Bergot isn’t one of them.

“There’s no happiness, no justice, and no compliance with the most basic laws in today’s EPO.”Lies typically come from Office management and its corrupt media. Consider this new SPC framework ‘survey’; imagine another round of hogwash like everything they did for EPO management, Team UPC etc. How many lies have these people spread and who benefited from these lies? This patent zealots’ think tank (‘publisher’), Managing IP, will of course ask only lawyers and law (litigation) firms; nobody else will count or ‘matter’. It’s like EPO management limiting who’s being asked questions for its ‘studies’ (to give the false impression of happiness). Or constantly spreading a bunch of lies about independence of EPO judges. It’s all hogwash; see G 2/19 from last month. There’s no happiness, no justice, and no compliance with the most basic laws in today’s EPO. It might even get worse this winter. AA Thornton’s Stuart Greenwood refers to himself, the author, as a third person (in the headline!) right here, having just commented on Rules of Procedure of the Boards of Appeal in a site owned by IAM‘s owner. Of course it’s a bunch of shallow dross because the site exists only to serve law firms. Check their business model. It’s not pretty.

Let the EPO’s management and the likes of IAM keep their monopoly on lying, otherwise they might give the illusion of parity when it comes to dishonesty (stigmatising their critics).

08.11.19

Europe is Gradually Becoming a Hotspot for Patent Litigation and Trolls as Patent Quality Decreases

Posted in Europe, Patents at 7:31 am by Dr. Roy Schestowitz

Euro

Summary: European jurisdictions have become more attractive for players seeking to litigate rather than innovate; this is exactly what litigation firms have been drooling over all along, basically an opportunity to tax Europe with no benefits to the European economy

THE quality of European Patents has collapsed to the point where law firms sometimes say that it’s lower than that of US patents, granted by the USPTO after Alice/35 U.S.C. § 101. While the US took some important steps to elevate the quality of patents, at least in the courtrooms, Europe was pushed the other way — towards UPC (which thankfully failed) and disregard for quality at the EPO — to the point of routinely violating the EPC (this is one of the reasons the UPC is failing). The expectation was, all along, that such deterioration in patent quality would attract/invite patent trolls to European courts. Law firms that enlist trolls as their clients had been having wet dreams about it for decades.

“The expectation was, all along, that such deterioration in patent quality would attract/invite patent trolls to European courts. Law firms that enlist trolls as their clients had been having wet dreams about it for decades.”In recent years we saw some comprehensive surveys suggesting a sharp increase in troll litigation mostly around Germany. It is definitely measurable. This morning we saw much-needed patent reporting — again — from what little remains of active patent blogs, naming Avanci, Nokia, Sharp and Daimler. The gist of it:

Through a filing with Judge Lucy H. Koh’s court in the Northern District of California, I’ve become aware of the following patent infringement complaints (presumably but not necessarily involving one or more requests for injunctive relief) filed by Foxconn subsidiary Sharp Corporation against Daimler in Germany…

[...]

Like Nokia’s German patent infringement suits against Daimler, those Sharp cases involve, at least in part, cars that come with a telematics control unit (TCU) supplied by Continental, which alleges that “Sharp’s lawsuits are evidence of the immediate, substantial threat that Avanci will encourage or direct its members to engage in a concerted litigation campaign in an effort to force Continental’s OEM customers to take a non-FRAND license through Avanci.”

Filing “over five patents in two German courts” (to quote the headline) is no longer so uncommon because the European Patent Office (EPO) is granting dubious patents, including software patents in Europe. They’re added up, i.e. a bunch of law-quality patents, to sue or to threaten in bulk. It makes a defense more expensive, compelling the victim to simply settle (or ‘license’) instead. Nowadays Campinos and his colleagues — much like Battistelli — are meeting with patent trolls and their front groups. They even co-host events. Who does the EPO strive to serve and what goals? Whose goals?

“Sometimes one has to wonder if Team UPC and their friends in patent trolls’ circles joke about how they hijacked the EPO (with ‘moles’ who do whatever the trolls want) and nearly hijacked the court system too (with the UPC).”We have meanwhile noticed that the patent trolls’ lobby and the EPO’s favourite propaganda outlet (IAM) sort of promotes the lowering of the British Pound as “good for litigation”. Their sick logic goes like this:

For example, although patents are not directly affected by Brexit, it is pretty clear that whatever lingering chances there were the unitary patent system might include the UK will die with No Deal. However, against that, think of the falling value of the pound.

Currently hovering at the $1.20/€1.07 mark, the UK is becoming a much cheaper jurisdiction in which to litigate. If the Supreme Court upholds the Unwired Planet decision, that might make London’s courts even more compelling venues in which to enforce SEPs as a means to secure global settlements. With a G8 economy, expert judges, highly-skilled practitioners and lower costs than ever before, what could there be for rights owners to dislike about litigating in the UK?

They cite a patent trolls’ case as though it’s a desirable thing for the UK. Maybe some law firms based in London like it, but the British public stands to lose the most from such lawsuits. What’s at stake here is market embargo, i.e. reduction in choices offered on the British market and with it the potential of price hikes.

Sometimes one has to wonder if Team UPC and their friends in patent trolls’ circles joke about how they hijacked the EPO (with ‘moles’ who do whatever the trolls want) and nearly hijacked the court/legal system too (with the UPC).

08.10.19

The EPO is Still Violating the EPC Every Day

Posted in Europe, Law, Patents at 1:29 pm by Dr. Roy Schestowitz

It gets away with it because the dictatorship is situated outside the Rule of Law

A dictator

Summary: The dictators of the EPO are routinely violating the law without any consequences to their freedom (or even their careers) and it means that people are rewarded for illegality, not conformity w.r.t. the law

THIS press release, published just before weekend, shows RNA-related patent monopolies from the European Patent Office (EPO), which also grants illegal monopolies on mathematics (“as such”) because Benoît Battistelli and António Campinos measure nothing but quantity. To them, “quality” means “grant fast!”

It’s all about monopoly with patents first, patients... later (if ever). To quote this press release:

Evox Therapeutics Ltd (‘Evox’ or the ‘Company’), a leading exosome therapeutics company, is pleased to announce that the Company has been granted three key patents by the United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO). These three new grants are from one of several foundational patent families held by Evox and further reinforce the Company’s leading position within exosome-mediated RNA therapeutics and targeted exosome drug delivery.

We’re occasionally seeing similar press releases celebrating EPO grants even though many newly-granted European Patents turn out to be bogus. Courts toss them out. They’re not compatible with the EPC — a fast-growing problem which alarmed examiners. They’re aggressively pressured to grant patents against the law or wind up unemployed in a foreign country (which they relocated to just for an EPO job).

“…many newly-granted European Patents turn out to be bogus. Courts toss them out. They’re not compatible with the EPC — a fast-growing problem which alarmed examiners.”The EPO is clearly all in favour of these violations of the law. This new tweet is using hype waves to promote software patents and another new tweet uses lame acronyms. “The number of European patent applications related to autonomous driving has grown 20 times faster than that across all technologies,” it said. Those are mostly software patents or, in other words, fake patents that are illegal to grant.

“This is the kind of thing that harms the EU’s image and gets many people concerned.”Just before the weekend the EPO also retweeted (thus quoted) its “jobs” account as saying: “The EPO is proud to be located in such beautiful European cities as Munich, The Hague, Berlin, Vienna and Brussels (Liaison office). At the end of 2018, 95% of our employees were working in either Munich (3,734) or The Hague (2,643).”

EPO actually tarnished the names of these cities because workers are abused and management commits crimes. Some examiners commit suicide. Some have been driven out of Munich as punishment and one judge was sent to The Hague as punishment for doing nothing wrong (courts repeatedly acquitted him). His colleagues too were punished when Office management made a decision on illegally sending all judges to ‘exile’ and then refusing to even deal with the question of this illegality. What an astounding, large-scale violation of the law. If Europe’s second-largest institution is an outlaw institution, then where does it derive the moral authority from? Or the authority to judge innovation? It’s more like organised crime. Before the weekend one new ‘Kat’ recalled:

The EPLaw Patent Blog reports on a decision of the German Supreme Court on the sufficient disclosure requirement under Article 83 EPC. It finds that the EPO and German practice on the interpretation of this Article are different, and the consequence of this difference is that opposition proceedings before the EPO should be considered in case a revocation relies on the grounds of sufficient disclosure.

So the EPO’s and German practice on the interpretation of Article 83 EPC are different, finds Germany’s highest court! The EPO basically stopped following or obeying the EPC. This post (the new one above) cites an older post from EPLAW that said:

Art 83 EPC (= sufficiency of disclosure) before the German Courts and the EPO: (still) no harmonization, by Dr. Hans-Peter Felgenhauer (Former Technical Member of the Boards of Appeal) and Dr. Tobias Wuttke (Meissner Bolte)

In the recently published decision of the German Supreme Court dated 8 January 2019 (docket no. X ZR 58/17), it was decided that the European patent EP 1 070 223 (“patent in dispute”) discloses the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (= Art 138 (1) b) EPC). This finding might likely have been different if the patent in dispute had not been challenged with a nullity action but with opposition proceedings at the EPO.

[...]

However, under the EPO practice, it is necessary but not sufficient to meet this requirement in order to meet the requirements of Art 83 EPC (= Art 138 (1) b) EPC). According to governing EPO practice, it is further required that this one way to carry out the invention allows the invention to be performed in the whole range claimed, see CLBA II.C.4.4.

According to the decision T1223/15 “for assessing the second condition, that the above disclosure allows the invention to be performed in the whole range claimed, it must first be ascertained what the scope of the claimed range is. The latter involves in the present case an issue of claim interpretation.

“In particular, that pursuant to established case law, the skilled person,
when considering a claim, should rule out interpretations which do not make technical sense, and should try to arrive at an interpretation of the claim that takes into account the whole disclosure of the patent, see CLBA, II.A.6.1”.

The decisions above are reached not by independent jurors but ones who are terrorised, in violation of the EPC, by Office management (i.e. those who are accused of breaking the law/rules). It’s a classic constitutional crisis wherein one branch squashes all the others. There’s no oversight at all, only an illusion of it.

We continue to observe a large European institution which flagrantly ignores court rulings and routinely violates many of the laws that govern it. This is the kind of thing that harms the EU’s image and gets many people concerned.

The Tight Embrace of the ‘Hey Hi’ (AI) Hype is Strangling the Patent System

Posted in America, Europe, Patents at 1:18 pm by Dr. Roy Schestowitz

Do patents exist to ‘reward’ robots? Can logic itself be a monopoly?

Robot

Summary: The love-affair with the buzzword/acronym “AI” is doing enormous damage to the patent maximalists; they use it to confuse and obfuscate (covering up illegal patent grants) and at the same time they show that today’s patent system is grossly outdated and unsuitable (in its current form, steered by patent maximalists)

It’s very clear that software patents aren’t allowed in Europe, but the European Patent Office (EPO) grants them anyway, in direct violation and clear defiance of the EPC. The EPO — like the U.S. Patent and Trademark Office (USPTO) and WIPO — just uses a bunch of buzzwords. We’ve named some of these many times before. One of the latest in the hype waves helps the EPO pretend that patents on algorithms are OK if one calls them "hey hi!" (AI). In practice that rarely even conforms to strict definitions of the term. It’s a “junk food” of words.

In our previous post we mentioned a new Lexology/Mondaq piece [1, 2] from Matt Hervey (Gowling WLG), who piggybacks corrupt EPO officials to assert algorithms can be patented if you call these “hey hi”. He starts by citing WIPO:

A recent report by the World Intellectual Property Organization describes a current “AI patent boom”, finding that over half of the inventions identified in its research were published since 2013.25 This mirrors the fast-emerging importance of AI across most, if not all, industries. It also belies the complexities in obtaining and exploiting patent protection.

In the UK, patentability is governed by the Patents Act 1977, which was enacted to give effect to the European Patent Convention. In general, the UK Court seeks to follow decisions of the European Patent Office’s Boards of Appeal, and the EPO’s Guidelines for Examination and Case Law of the Boards of Appeal are sources of key principles. The EPO has recently added specific guidance on AI to its Guidelines. As in other key jurisdictions (e.g. China, Japan, Korea and the USA), algorithms per se face considerable challenges to patentability. The EPO takes the approach that AI computational models and algorithms are excluded from patentability, unless they amount to a computer program having a “further technical effect” going beyond the “normal” physical interactions between the program and the computer on which it is run.26 Examples given by the EPO of further technical effect include controlling anti-lock braking and restoring a distorted digital image.27 There is a healthy debate as to what jurisdictions are currently most favourable to AI patents, particularly following considerable challenges in US practice following Alice.28

Other areas of growing debate include best practice for the extent and substance of disclosure relating to the working of the AI, the patentability of inventions created by inventive AI and whether, in time, inventive AI will raise the hurdle for inventive step or even require new approaches to the protection of inventions. For now, both the EPO and the UK Intellectual Property Office, in practice, require human inventors to be named as part of the patent application process, but this requirement is not backed up by penalties for false statements (unlike in the US system), and there is no obligation to disclose the role of any inventive AI involved in the making of an invention.

Of more immediate practical concern are potential complexities of proving infringement of a patented AI where, for example, the alleged infringing activity may be performed partly in a “black box” and/or in “the cloud”. For this reason, AI patents are often targeted at infringements that can be readily identified from publicly available documents or simple inspection.

There’s no such thing as “AI patents” (the EPO’s new buzzword); these are just software patents. When they say AI patents they don’t mean patents generated by a computer — something that increasingly becomes a source of headaches to the EPO. Watch how, just before the weekend, lawyers (Finnie in this case) and patent maximalists rapidly turn patents and the patent system into a self-satirising farce where applications get automatically generated by computers rather than composed by human beings. To quote:

Judgement day is coming. Not in a Terminator-esque sense – not yet, at least – but at the hands of the European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO). The patent governing bodies have become embroiled in a contentious patent filing that, until now, had only been a source of debate.

A team of legal and academic experts in the field have formed a campaign called The Artificial Inventor Project which aims to seek “intellectual property rights for the autonomous output of artificial intelligence”. Their most recent efforts to press ahead with their revolutionary cause came to the fore in a case that sought to name DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) as the inventor on two patent filings.

At present, the USPTO and the EPO’s stances on this remain rock solid: that only “natural persons” can be named as inventors on patent filings. An AI entity is not a natural or a legal person and so can’t be named as an inventor in the traditional sense and can’t own intellectual property.

The patent systems worldwide already suffered credibility and reputation issues for a number of year because they had endlessly expanded patent scope and the public saw no societal benefit in millions of monopolies. Now that they grapple with all this “hey hi” hype things are bound to get yet worse because the supposition that patents exist to reward inventors of foster innovation/creativity won’t hold water when we speak of machines rather than people.

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