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04.22.19

USPTO and EPO Both Slammed for Abandoning Patent Quality and Violating the Law/Caselaw in Order to Grant Illegitimate Patents on Life/Nature and Mathematics

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

Man with a mission (against mission statements, Constitution, courts etc.)

Trump and Iancu

Summary: Mr. Iancu, the ‘American Battistelli’ (appointed owing to nepotism), mirrors the ‘Battistelli operandi’, which boils down to treating judges like they’re stooges and justices like an ignorable nuisance — all this in the name of litigation profits, which necessitate constant wars over illegitimate patents (it is expensive to prove their illegitimacy)

THE deplorable “2019 Revised Patent Subject Matter Eligibility Guidance” from Iancu is thankfully backfiring. The vast majority of comments received so far strongly oppose it and the judges at the Federal Circuit fire back at Trump's 'circus clown' Iancu, seeing that this attorney tries to overrule all of their decisions with a stroke of a pen. He also weakens Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — an issue not overlooked by anybody. Does he try to become an 'American Battistelli'? Certainly.

The Internet Association’s comments on the U.S. Patent and Trademark Office’s (USPTO) eligibility guidance, according to this new tweet, say: “The Guidance appears to stretch too far beyond the Alice safe harbors when it extends eligibility to the mere use of a judicial exception.”

We’ve decided to take a look at the full thing and it’s a really good — if not at times strongly-worded — response. It’s blasting Iancu for his bias and attack on PTAB’s independence. I have read the entire thing and rewrote it as HTML (manually):

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
________________________

2019 Revised Patent Subject Matter Eligibility Guidance
________________________

Docket No. PTO-P-2018-0053
________________________

COMMENTS OF THE INTERNET ASSOCIATION
________________________

William G. Jenks
Jenks IP Law PLLC
1629 K ST NW, Suite 300
Washington, DC 20006

March 8, 2019


TABLE OF CONTENTS

[...]


I. Commenter’s Interest And Initial Statement

The Internet Association is the unified voice of the Internet economy, representing the interests of America’s leading Internet companies and their global community of users.1 The Association is dedicated to advancing public policy solutions to strengthen and protect Internet freedom, foster innovation and economic growth, and empower users. The members of the Internet Association have extensive experience with the application of the abstract idea exception in patent examination, litigation, and post-grant review proceedings.

The Internet Association applauds the USPTO for its continued serious examination of the contours of patent eligibility. The Federal Circuit continues to develop caselaw that informs the eligibility inquiry. But the Office has “the primary responsibility for sifting out unpatentable material” through examination.2 It is fitting, therefore, that the Office periodically updates its guidance to better ensure that issued patents conform with the limits on eligibility set by the courts. The USPTO’s new Section 101 Guidance is a promising start that, with modification, will help the Office fulfill its role in the patent system.3

Structurally, the Guidance preserves the two-step test provided in Alice and Mayo. This structure is necessary if the Office is to maintain a strong correlation between the courts’ development of ineligibility law and the Office’s examination of patents under Section 101. But the Guidance also creates a structural bias against ineligibility rejections when the claims-at issue do not fit neatly into the categories provided. The Office should reconsider. There should not be any structural bias disfavoring (or favoring) a particular rejection. The merits of the individual case should singularly control any eligibility decision made by Office personnel.

Regarding substance, the Guidance incorporates lessons from some of the Federal Circuit’s leading cases but the Office should expand its approach to capture the full scope of eligibility law. In particular, the Guidance should (1) more fully explain how claims directed to data collection, manipulation, and display are to be treated and (2) better incorporate the caselaw’s reliance on improved technology in Step 2A. The Office should also reconsider its reliance on “hypothetical” examples. The Office would do better to build real caselaw into the Guidance.

_____
1 The Internet Association’s members include Airbnb, Amazon, Ancestry, Coinbase, DoorDash, Dropbox, eBay, Etsy, Eventbrite, Expedia, Facebook, Google, Groupon, Handy, HomeAway, IAC, Intuit, Letgo, LinkedIn, Lyft, Match Group, Microsoft, Pandora, PayPal, Pinterest, Postmates, Quicken Loans, Rackspace, Rakuten, Reddit, Snap Inc., Spotify, Stripe, SurveyMonkey, Thumbtack, TransferWise, TripAdvisor, Turo, Twilio, Twitter, Uber, Upwork, Vivid Seats, Yelp, Zenefits, and Zillow Group.

2 Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 18 (1966).

3 2019 Revised Patent Subject Matter Eligibility Guidance Dkt. No. PTO-P-2018-0053, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Section 101 Guidance” or “Guidance”).


II. The Section 101 Guidance Properly Relies On The Alice/Mayo Structure, But It Should Be Clarified To Better Show How The Substantive Caselaw Principles Are To Be Applied

The Guidance maintains the Office’s use of the Alice/Mayo two-step test.4 That is altogether fitting. The USPTO should resist any calls for changes to that basic structure. The Federal Circuit’s increased emphasis on what claims are “directed to” under Step 2A warrants the Office’s review and elucidation of that area. Commenters generally support the revised approach but suggest that the Office provide additional clarification in particular areas to reduce Examiner misunderstandings when applying the Guidance.

A. The Guidance should clarify and further elucidate the Office’s approach to claims reciting data collection, manipulation, and display under Step 2A

The Guidance limits the categories of “key concepts” that are “abstract ideas” to: (a) mathematical concepts, (b) certain methods of organizing human activity, which includes several subcategories, and (c) mental processes.5

The essential clarification needed is that data collection, manipulation, and display fall either within the mathematical concepts category or form a fourth abstract-ideas category. The “mathematical concepts” category, if interpreted in the strictest sense, may not capture the breadth of caselaw, which extends the abstract idea exception to “‘collecting information, analyzing it, and displaying certain results of the collection and analysis.’”6 These data claims appear in a large number of eligibility cases, and the Guidance should explicitly recognize that claims reciting data (or information) collection, manipulation, and display are also within the “groupings of subject matter” that have been “identified by the courts as abstract ideas.”7

In SAP America, for example, claims focused on “selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis” were “directed to abstract ideas.”8 The Court explained that each of these aspects, “[i]nformation as such,” “collecting information,” “analyzing information,” and “presenting the results” without more, was directed to an abstract idea.9 McRO was distinguished because the “claimed improvement [in the McRO claims] was to how the physical display operated (to

_____
4 Section 101 Guidance at 50, col.3.
5 Section 101 Guidance at 52, cols. 1-3.
6 SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). (quoting Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
7 Section 101 Guidance at 52, col. 1.
8 SAP America, 898 F.3d at 1167.
9 Id.


produce better quality images)” and not “to a mathematical technique with no improved display mechanism.”10

SAP America is not an isolated case. The principles therein have been invoked and followed in multiple, precedential, Federal Circuit decisions holding other data-manipulation claims to be directed to abstract ideas.11 These decisions include precedential cases not cited in the Guidance;12 and at least one precedential case issued after the Guidance.13 These principles should, therefore, be more fully explained in the Guidance—including identifying the appropriate category for such claims–to ensure that they are accounted for during examination.

B. The Section 101 Guidance should be modified to better reflect the caselaw’s emphasis on improved technology

The Supreme Court identified two potential categories of patent-eligible subject matter in its Alice decision: Claims that (1) “purport to improve the functioning of the computer itself” or (2) “effect an improvement in any other technology or technical field” could be more than a simple recitation of the abstract idea applied on a computer.14

The Guidance properly relies on the Supreme Court’s view to link eligible subject matter to improvement in the functioning of a computer or other technical field.15 But the Guidance appears to stretch too far beyond the Alice safe harbors when it extends eligibility to the mere use

_____
10 Id.
11 See, e.g., Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1346 (Fed. Cir. 2018) (“In sum, the recited claims are directed to an abstract idea because they consist of generic and conventional information acquisition and organization steps that are connected to, but do not convert, the abstract idea—displaying a second set of data without interfering with a first set of data—into a particular conception of how to carry out that concept.”).
12 See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (“We find that, under step one, the claims [at issue] are abstract. We conclude that the patent claims are, at their core, directed to the abstract idea of collecting, displaying, and manipulating data.”); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093 (Fed. Cir. 2016) (Explaining that “the ‘realm of abstract ideas’ includes ‘collecting information, including when limited to particular content,’ ‘analyzing information,’ and ‘presenting the results … of collecting and analyzing information.’”); see also Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1338 (Fed. Cir. 2017), cert. denied, 139 S. Ct. 378, 202 L. Ed. 2d 288 (2018); Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
13 Univ. of Fl. Research Foundation, Inc. v. General Electric Co., No. 2018-1284, slip op. at 10 (Fed. Cir. Feb. 26, 2019) (“[C]laim 1 is directed to the abstract idea of ‘collecting, analyzing, manipulating, and displaying data.’”).
14 Alice Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 225 (2014).
15 Section 101 Guidance at 55, col. 1.


of a judicial exception “in conjunction with a machine or manufacture” or in “a transformation or reduction of a particular article.”16

The Guidance should more closely tie “practical application”—the lynchpin of eligibility analysis in the Guidance—to technological improvement, which is present in all or nearly all the Federal Circuit’s Step-2A cases. The Guidance cites Eibel Process and Diehr to support its additional eligible categories. Eibel Process is linked to use in conjunction with a machine; Diehr to use in a transformation of an article.17 In both cases, the eligible invention claimed improved the technology at issue. In Eibel, the claimed Fourdrinier machine made paper at a pace much faster than prior machines, and the claims, the Court noted, were “for an improvement on a machine.”18 Similarly, the Supreme Court has made clear that “the claims in Diehr were patent eligible because they improved an existing technological process.”19 Thus, mere incorporation of a machine or transformation in the claim does not justify a rule requiring the claims be eligible under the cases cited.

C. The Section 101 Guidance should recognize the legal distinction between claims reciting a result or function without specifying the mechanism that achieves that result or function and claims that recite a technological advance

The Supreme Court has long distinguished claims that merely recite a result achieved from those that specify the method and mechanism for achieving that result. For example, Samuel Morse famously invented and patented the telegraph. But one of his claims failed because it merely recited “electro-magnetism, however developed, for making or printing intelligible characters, letters, or signs, at any distances, being a new application of that power.”20 The claim was “void” because it covered “an effect produced by the use of electromagnetism, distinct from the process or machinery necessary to produce it.”21 The Supreme Court has relied on this key principle while determining subject matter eligibility for centuries.22

The Federal Circuit has repeatedly relied on the same distinction in its post-Alice eligibility analysis. Claims that merely recite a desired result are more likely directed to an abstract idea. For example, in Internet Patents, which is not cited or discussed in the Guidance, the Federal Circuit held ineligible a claim that merely recited a desired “effect or result

_____
16 Id. (punctuation removed).
17 Id.
18 Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 55, 70 (1923). 19 Alice Corp., 573 U.S. at 223.
20 O’Reilly v. Morse, 56 U.S. 62, 86 (1853).
21 Id. at 120; see also The Telephone Cases, 126 U.S. 1, 534 (1888) (quoting Morse). 22 See, e.g., Bilski v. Kappos, 561 U.S. 593, 649 (2010); Mayo, 132 S. Ct. at 1301; Parker v. Flook, 437 U.S. 584, 592 (1978); Gottschalk v. Benson, 409 U.S. 63, 68-69 (1972); The Telephone Cases, 126 U.S. at 534.


dissociated from any method by which [the result] is accomplished.”23 The “character of the claimed invention [was] an abstract idea” because the claim-at-issue contained “no restriction on how the result is accomplished.”24 Thus, the claim was “not directed to patent-eligible subject matter.”25

Multiple precedential Federal Circuit cases rely on this principle to show that claims reciting a mere result or function are more likely directed to abstract ideas.26 On the other hand, claims that recite both a result or function and “an improvement of an existing technology” are typically “directed to” the technological improvement.27

III.The Guidance Should Incorporate And Explain Caselaw

The Section 101 Guidance sets forth the basic steps of examination under caselaw principles. But it fails to incorporate this caselaw directly. The cases are relegated to footnotes with brief parentheticals. This does little to help Examiners understand the distinctions between what is and is not an eligible “practical application.” It is primarily claims that recite the use of abstract ideas to improve the use of machines or to improve industrial processes that are patent eligible in the cases cited.

Given the complexity of the subject matter, the Office can increase the utility of the Guidance by testing the claims and facts of actual cases against each step set forth in the

_____
23 Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015).
24 Internet Patents, 790 F.3d at 1348.
25 Id.
26 Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1371 (Fed. Cir. 2017) (Under Alice step one, courts “‘look to whether the claims … focus on a specific means or method that improves the relevant technology or are instead directed to a result or effect that itself is the abstract idea.’”) (quoting McRO at 1313); Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1244 (Fed. Cir. 2016) (“Generally, a claim that merely describes an effect or result dissociated from any method by which it is accomplished is not directed to patent-eligible subject matter.”) (internal marks and brackets omitted); Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1265 (Fed. Cir. 2016) (Under “the principles emerging from the developing body of law on abstract ideas under section 101, this court has noted that claims that are so result-focused, so functional, as to effectively cover any solution to an identified problem are frequently held ineligible under section 101.”) (internal marks omitted); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316 (Fed. Cir. 2016).
27 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016) (“[C]laim 1 is directed to a patentable, technological improvement over the existing, manual 3–D animation techniques. The claim uses the limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice. Claim 1 of the ’576 patent, therefore, is not directed to an abstract idea.”) (citations omitted); see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016) (claims “directed to a specific improvement to the way computers operate” eligible).


Guidance. It would also be helpful to explain how the arguments were presented by the parties and either accepted or rejected by the Court. The resulting case studies can then be an integral part of the Guidance and used in place of the “hypothetical” examples the USPTO has provided on its website.28

IV.Examiners Should Retain The Authority To Reject Claims As Ineligible Under Section 101 Without Seeking Director Approval

The Internet Association believes that one structural change—unrelated to the test for eligibility itself—is needed in the new Section 101 Guidance.

The Section 101 Guidance places too high a burden on Examiners that believe a claim is ineligible even if it does not fit neatly into the subject matter categories provided. Presented with such claims, the Examiner must seek out and receive the approval of their Technology Center Director before issuing a rejection.29 This is in addition to the ordinary, proper requirement that the Examiner provide justification supporting the invocation of the abstract idea exception.

Directors are generally multiple levels above an Examiner in the chain of command—and they face numerous demands on their time—making it difficult and time consuming for the Examiner to seek and receive their approval. Fulfilling such a requirement is much harder than, for example, seeking approval from a Supervisory Patent Examiner. There is also no indication that the Examiner will receive the requisite time needed to seek and obtain this approval. Without extra time and under the USPTO’s current press of business, this would add pressure on the examining corps to issue claims that they deem ineligible.30 At a minimum, the Agency should allocate so-called “other time” to ameliorate this bias.

Requiring Director approval thus creates an artificial bias in the examination process that favors not testing the eligibility of patent claims. To the extent a bias should be built into the system, it should favor testing the contours of eligibility law in the USPTO—where applicants have appeal rights both within the Office and to the courts—over issuing categories of potentially ineligible claims unchallenged. Such claims may, if issued, eventually be found ineligible by the courts but only after causing enormous damage through years-long litigation. As between the patent owner and the public, the patent owner is best situated and incentivized to

_____
28 See Subject Matter Eligibility Examples: Abstract Ideas, available at

https://www.uspto.gov/sites/default/files/documents/101_examples_37to42_20190107.pdf.

29 Section 101 Guidance at 57, col. 1.
30 See, e.g., Michael D. Frakes & Melissa Wasserman, Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid Patents? Evidence from Micro-Level Application Data, Review of Economics and Statistics (forthcoming) 4, available at https://scholarship.law.duke.edu/faculty_scholarship/3646 (“Importantly, our findings demonstrate … that examiners appear to be operating at the point where time constraints indeed bind.”).


seek a definitive eligibility ruling in cases deemed ineligible through the ordinary examination process.

To be clear, the Internet Association is not suggesting a bias be added in either direction. But any structural bias—including the present bias against Examiner Section 101 rejections—should be removed. Finally, in a footnote, the Guidance suggests a similar burden heightening will be applied to the PTAB judges.31 Commenters likewise oppose the bias created by the process sketched out therein.

V. Conclusion

The Internet Association again applauds the USPTO for its continued serious examination of the contours of patent eligibility law. The Internet Association believes that the USPTO’s approach of considering all views will lead to clearer Guidance and thanks the USPTO for the opportunity to provide its views.

_____
31 Section 101 Guidance at 57 n.42.

It’s just pretty amazing how similar the situation is to the European Patent Office (EPO), where patents on life and nature are being granted in defiance of a directive (similar to Mayo in caselaw form) and António Campinos disguises European software patents using ludicrous buzzwords such as “AI” and “MedTech”. Just spectacular or astounding that he keeps getting away with it. Why is nobody holding him accountable? He does the equivalent of stomping on Alice, i.e. the highest court and 35 U.S.C. § 101.

Thankfully, EPO patent examiners know they’re being manipulated. Just cited by some Team UPC folks and also by SUEPO (even over the long weekend) was this thing we wrote about on Sunday — something on which several comments have been left including the following comment by “Nothing has changed at EPO since Battistelli’s departure” (the poster’s pseudonym on its own says a lot):

In the link below you will find a recent video (in French) about France Telecom scandalous HR practices and the soon to come prominent court case.

Many of the obnoxious HR techniques which were applied at FT – with the despicable effects on staff health reported upon broadly – were also applied at the EPO during Battistelli’s era.

With no surprise, the results of such policies at EPO were similar to those at France Telecom, see : https://www.politico.eu/article/labor-relations-turn-toxic-in-the-european-patent-office/

Obviously the issue of quality at EPO depends first and foremost on the kind of HR policies applied to staff, which presently continue to generate a very negative social atmosphere.

All HR top managers who were behind such despicable HR policies have been maintained in their positions since the arrival of Mr Campinos 10 months ago.

As long as management by pressure and fear goes on and put staff under undue pressure for more production vs. quality, nothing will change. The sweet story-telling of Mr Campinos is fooling no one since he takes no concrete actions to reverse the unhealthy work pressure.

Inevitably more social damages hence quality issues are thus in sight.

The prior comment speaks in length about erosion of patent quality — a subject long explored by SUEPO, which had warned about it for years and weeks ago said that tens of thousands of bunk European Patents are being granted each year.

04.21.19

The EPO’s Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are ‘Bygones’

Posted in Europe, Patents at 6:58 am by Dr. Roy Schestowitz

They are redefining “quality” in terms such as speed

Abacus
Abacus: Sole means for EPO to assess patent quality (mere quantity or numbers)

Summary: The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace

Yesterday we took a glance at this brand-new listing of “patents awarded” (in some local press in the US, as is typical). How many of these are bogus software patents and other abstract patents that the U.S. Patent and Trademark Office (USPTO) should never have granted (but did anyway, just to increase revenue)? Sadly, we nowadays must ask the same questions about the EPO because all it cares about is money and it externalises the costs to the European public (e.g. European businesses sued by patent trolls).

“Sadly, the EPO’s consultation is mostly with the likes of J A Kemp (proponents of patents on life and maths), Team UPC, CIPA etc. i.e. all those that seek to harm Europe for a quick buck (or euro).”The ‘new’ and ‘improved’ European Patent Office (EPO) pretends to be listening to the public. Questions such as software patentability in Europe aren’t even on the agenda because António Campinos does not give a damn about the EPC. Yesterday Kluwer Patent Blog wrote that the “EPO publishes draft Strategic Plan 2023 and holds a new consultation”; to quote:

The EPO published its draft Strategic Plan 2023 on 18 April 2019. It has invited all stakeholders to provide their views on the document. Those who want to provide input can do so here.

The new consultation will run until 10 May 2019 and the plan is to submit the final plan to the Administrative Council of the European Patent Organisation for adoption in June 2019. According to the EPO, the plan ‘will outline our vision for the Office and its implementation will ensure that we continue to provide high-quality patent services that encourage innovation and contribute to growth’.

Notice again the term/s “high-quality patent services”; not the same as actual patent quality and this is intentional because they’re aware that patent quality collapsed. Yesterday we also noticed this “European Biotech Patent Law Webinar” (patents on a lot of nature and life, never mind the directive from the EU) and another new ad for a webinar on software patents at the EPO. Lessons from lawyers on how to use buzzwords and lies to portray software as something else and get bogus European Patents:

J A Kemp will be offering a webinar entitled “Inventive Step for Computer Implemented Inventions at the EPO” on April 30, 2019 from 3:30 to 4:30 pm GMT (Greenwich Mean Time). John Leeming of J A Kemp will discuss the latest EPO case law on separating the technical from the non-technical and inventive step issues arising in specific areas of technology, such as machine learning and simulation.

Sadly, the EPO’s consultation is mostly with the likes of J A Kemp (proponents of patents on life and maths), Team UPC, CIPA etc. i.e. all those that seek to harm Europe for a quick buck (or euro).

04.20.19

The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don’t Represent Europe But Hurt Europe

Posted in Europe, Patents at 6:12 am by Dr. Roy Schestowitz

Whose European Patent Office If Not Europe’s?

Map of Europe

Summary: The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the ‘business’ of suing and printing lots of worthless patents

THE EPO under António Campinos is still a mess — a truly sordid mess that continues to lower patent quality and even grant software patents in Europe. SUEPO says that tens of thousands of fake European Patents get granted each year.

Yesterday the EPO spoke of ‘IP’ when it said: “Company scale-up must go hand in hand with IP portfolio-building.” They keep saying ‘IP’ instead of patents, so we assume that when they say “IP portfolio-building” they mean invalid patent (IP) portfolio-building. This is no laughing matter as the EPO keeps knowingly granting fake European Patents (which it knows courts would reject).

“This is no laughing matter as the EPO keeps knowingly granting fake European Patents (which it knows courts would reject).”The EPO is again pretending to be serving the public. It pretends to be listening to the public while doing whatever it wants anyway (granting lots of fake patents to increase income and harm Europe). Yesterday it tweeted a link to this page from Thursday (warning: epo.org link) that says “The EPO has published its draft Strategic Plan 2023 and is now inviting all stakeholders to provide their views on the document.”

“Your opinion matters to us,” they said in Twitter. “Take the opportunity to read the draft EPO #StrategicPlan and provide us with your view…”

“Today’s EPO cares about only one thing: granting as many patents as possible, as fast as possible.”When did they ever listen to the public? They barely even listen to stakeholders, except very large companies. Today’s EPO cares about only one thing: granting as many patents as possible, as fast as possible.

Meanwhile, liars from Bristows (Annsley Merelle Ward) are turning sore, more so after the highest British court slammed down fake European Patents. In her own words:

On appeal to the Supreme Court, Lilly argued that the Court of Appeal had not applied the test of obviousness correctly under the UK law or the EPO’s approach of finding invention where there was an unexpected technical effect (here, reduced side effects at a dose that worked). Actavis supported the CA’s view: as a matter of policy, routine work cannot be patentable.

[...]

To this guest Kat the outcome feels rather tough on the patentee.

This “guest Kat” is Team UPC and she wants to just abolish these courts and replace them with the joke known as Unified Patent Court (UPC), controlled by the very same people who grant these fake European Patents while promoting patents on life and SPCs. She does what her colleagues too have been doing for years (check their clients). It’s despicable.

“This “guest Kat” is Team UPC and she wants to just abolish these courts and replace them with the joke known as Unified Patent Court (UPC), controlled by the very same people who grant these fake European Patents while promoting patents on life and SPCs.”Speaking of SPCs (Team UPC’s favourite), check what a Team UPC blog, Kluwer Patent Blog, posted in recent days. Its posts from Wednesday and Thursday are revealing (e.g. this one from SPC people, another one from Bristows, and invalidity in China). China is being imitated by EPO for the lack of quality; it’s just quantity that counts. “Invalidity is not an available defense to patent infringement claims in China,” it says, “China currently adopts a bifurcated adjudication system that patent infringement and validity proceedings are decided by different authorities, similar to that in Germany. Courts have no authority to decide on patent validity during infringement proceedings, while patent validity is solely determined by the PRB under the CNIPA (previously the SIPO).” Think of EPO and UPC, except lack of separation (for BoA also). It’s a recipe for disaster. One more blog post from two days ago reveals that the Board of Appeal (BoA) has just thrown out an abstract patent:

Last week the Board of Appeal issued a decision holding that Google’s patent application 04784004.6 was unallowable on the ground of lack of inventive step. Amongst other things, the decision contains useful guidance relevant to applications containing a mixture of technical and non-technical subject matter.

Will it deem computer simulations (on a computer) to be lacking an inventive step too? Last but not least, also from this Team UPC blog, here we have the take on CIPA, which is upset that many European Patents (EPs) turn out to be invalid patents (IPs): [via]

The Chartered Institute of Patent Attorneys (CIPA) in the UK has harshly criticized the European Patent Office for its handling of the issue of patentability of plants. Last month it published a position paper in which it said measures proposed by the EPO to create clarity undermine legal certainty or are even unlawful. Kluwer IP Law interviewed Simon Wright, Chair of the CIPA Life Sciences Committee and partner at J.A. Kemp about what’s going on. Wright stressed these are his personal comments.

[...]

“The next stage in the procedure is likely for the EBA to invite comments from interested parties. That will see a considerable number of amicus curiae briefs, not only likely from legal representative bodies (likely CIPA and epi) but also industry bodies too.

No doubt the plant breeders will be continuing to push for a change in the law. They argue that it is just ‘a clarification’. This, however, is incorrect. Products of essentially biological processes have always been patentable, ever since the EPC was written in 1977, and indeed that was the intention when the EU Biotech Directive was drafted too (because it uses exactly the same wording as the EPC). In short, both the EPC and the Directive clearly state that while essentially biological processes are unpatentable, the products thereof are not excluded.

What we have here, though, is a blatant attempt by certain parts of the agricultural industry (via the European Commission, and now via the EPO) to change the law in an illegal, and improper manner, and to try and persuade law makers that they need to change the law (although I cannot see the logic for this) ‘by the back door’.”

So the patent law firms think they just ‘own’ the world and the law. This is why UPC has attracted a lot of criticism and ultimately failed. It will continue to happen time and time again until they stop taking photo ops with Battistelli and promoting/endorsing his crimes. CIPA has become a crime enabler and IP Kat recently discovered that its fake exams already attract endless scrutiny.

“So the patent law firms think they just ‘own’ the world and the law.”Speaking of IP Kat, Peter Ling has just mentioned Battistelli and the EPO’s Council violating the EPC to punish all the judges and ensure they don’t resist patent zealots (or speak out about Team Battistelli’s crimes). First article on this topic in a very long time (probably years):

If Munich was understood to refer to the city only, it is doubtful that Haar would be in compliance with the EPC, given that the Administrative Council does not have the power to enact a rule that deviates from the EPC (as recently underscored by the Boards of Appeal).
Art. 7 EPC grants the power to the Administrative Council to create other “sub-offices […] for the purpose of information and liaison”. The EPO actually operates sub-offices in Berlin, Vienna and Brussels. However, the Boards of Appeal are far more than a “sub-office” and they do not serve the purpose of “information and liaison”. As a result, the powers of the Administrative Council to move the Boards to Haar could hardly be derived from this provision.

“Anonymous” then wrote: “You don’t mention that the EPO summons parties to oral proceedings in the Berlin office. So Berlin is more than just a “sub-office”…”for the purpose of information and liaison”…”

That’s not the point. The judges who were actually relocated to Haar feel as though it was a warning and collective punishment. They have not (since 2014) felt any sense of independence. This means that later this year when they come to assess software patentability they won’t be able to do so without fear (in case they oppose such patents, as they should).

“We know who (or what) CIPA works for.”The EPO remains highly worrying because it’s rogue in the sense there’s zero accountability. Campinos is accountable to nobody; his former 'boss' is now his assistant. We’ve never seen anything quite like it, not even in China. In the US, owing to courageous judges (and based on another dozen key decisions on patents from this past month), there’s no comeback for software patents — in fact, it’s getting yet worse for them. It’s included in our daily links (no longer within our scope of coverage). Ideally the EPO will reach the sobering moment when all software patents are confirmed to be invalid, preferably some time later this year (as happened years ago to patents on seeds and plants). CIPA can shout and throw its toys all it wants. We know who (or what) CIPA works for.

CIPA meeting with Stephen Jones
CIPA and the ‘crime syndicate’ of Battistelli

Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

Posted in America, Europe, Law, Patents at 4:00 am by Dr. Roy Schestowitz

Nonsensical patent offices that put the litigation ‘industry’ ahead of the real industry. They’re not representative of the public at all.

French EPO

Summary: Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States

THE SUBJECT of software patents in Europe goes a long way back. I had written about it before this site even existed, before Brimelow ran the EPO and back in the days another French President (not Battistelli and Campinos) was in charge. He, unlike the latter two, was actually a scientist and one whom the staff generally respected. We wrote a lot about him over the years and showed staff generally respected him (not everyone but many).

The main issue today is that there’s no separation of powers; virtually none. Europe’s patent system became a monstrosity, only limited in part by a court system that is federated and untouched by the EPO’s (and EU’s) clout.

“EPO is also not following the rule of law,” as Benjamin Henrion put it a couple of days ago, and “it is an administration shielded by diplomatic immunity, and cannot be sued for maladministration. And the Commission is supporting this kind of institution for the Unitary Patent, while not even compatible with the treaties…”

“The main issue today is that there’s no separation of powers; virtually none.”The European Patent Office (and Organisation) is just some island inside Europe and it does whatever it pleases, irrespective of the interests and opinions of actual Europeans. Who benefits? Law firms. Not necessarily European ones, either.

Recently we’ve seen lots and lots of ‘articles’ (ads by law firms) about patents on maths, nature, and life. Here in Lexology one can see Bardehle Pagenberg’s Bastian Best continuing his promotion of illegal software patents (as he has done for a decade). Best wrote much more about it a fortnight ago. His employer is probably the loudest proponent of software patents (and has been for quite some time). They even tweeted this before the weekend: “Software patents: How are they examined at the @EPOorg? Here’s our patent attorney @bastianbest explaining the legal framework with simple examples.”

They just look for loopholes and then promote these.

“They just look for loopholes and then promote these.”Kilburn & Strode LLP’s Paul Briscoe and Kristina Cornish meanwhile drool over patents on nature and life — granted illegally or in defiance of the EPC. Kilburn & Strode has also just published this rather crude call to “File! File! File!” So say patent agents who profit from lots of fake patents that are actually worthless but lead to legal bills. File applications, file lawsuits etc. Lexology is full of this nonsense every single day and it says “[t]he clarion call comes from patent attorneys and inventors alike” even though what we have here is lawyers speaking ‘for’ inventors without naming any.

The EPO has meanwhile retweeted this French front group of patent law firms. This year, for the first time, the EPO has been calling for "MedTech" patents — an intentionally misleading term. The EPO pretends software patents are “life-saving” and “for SMEs”, soon to be parroted by this front group which said “Medtech CII event to raise awareness among SMEs…”

It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.

We’re meanwhile seeing similar moves in the US. Haynes and Boone LLP’s Chad Hammerlind, for example, has chosen a nonsensical and misleading headline by which to twist the reality surrounding the Federal Circuit. 35 U.S.C. § 101 continues to be followed by courts (see our daily links for the latest examples) and patent maximalists are desperate to find new ways to bypass the courts, in essence pursuing patents they know to be invalid (as per the law).

“It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.”Contrary to what these maximalists keep saying in recent days, none of that is changing. The US Congress isn’t bringing software patents back; some readers sent us headsups about it (for Techrights to cover). See the comments at the bottom of this post with a misleading headline from Kevin E. Noonan. These are just a handful of bribed politicians, the usual suspects (the same old ones), trying to push through software patents for their sponsors. They tried and failed. Trying again because it’s spring? There are several more articles like these, e.g. this from Ropes & Gray LLP’s Scott McKeown and several from Watchtroll. Eileen McDermott of Watchtroll says “Change May Be Coming: Members of Congress Release Framework to Fix Patent Eligibility Law,” but they have been saying it for years (around the same time). Each time it makes some headlines it only lasts a few days or weeks but nothing happens at the end; it never happens. It dies after summer recess every time. Each year. What we have here is just a handful of people with ties to the litigation industry who cannot quite tell US Congress what to do on software patents and Eileen McDermott is smart enough to know it. They have tried it for years and failed. As a journalist she should know this. She wrote: “Senators Thom Tillis (R-NC) and Chris Coons (D-DE)—respectively, Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property—and Representatives Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee; Hank Johnson (D-GA-4), Chair of the House Judiciary…”

She later wrote another piece titled “Reactions Roll in On Congress’s Proposed 101 Framework: ‘The Right Approach’ or ‘A Swing and a Miss’?”

As if the U.S. Patent and Trademark Office (USPTO) sets the rules for Congress or some people who profit from patent maximalism get to decide on the law which governs them.

Surely McDermott can see what’s happening here, partly in light of comments such as: “As is evident from these comments, reasonable people can differ. Unfortunately the Supreme Court will have the last word (absent amending the Constitution, which won’t happen over a patent question). The Court is not final because it is infallible but rather it is infallible because it is final. And I don’t ever see getting a bunch of patent lawyers on the Court, which may be the only way to bring sanity to this area of the law.”

Dennis Crouch joins the ‘fun’. Yesterday he was trying hard (yet again) to promote this software patents’ alleged ‘revival’ in the US. All these patent maximalists never in their entire life wrote a single line of code. And here they are lending a voice to the politicians who suit their agenda (while demonising the rest). To quote Crouch:

Basics of the framework are to create a defined, closed list of subject matter category exclusions: Fundamental scientific principles; Products that exist solely and exclusively in nature; Pure mathematical formulas; Economic or commercial principles; Mental activities. Under the framework, a patent would not be eligible based upon “simply reciting generic technical language or generic functional language.” At the same time, the framework suggests that “practical applications” should be patent eligible. Finally, the framework calls for a divide-and-conquer approach — making clear “that eligibility is determined by considering each and every element of the claim as a whole and without regard to considerations properly addressed by 102, 103 and 112.”

Surely these patent maximalists’ ‘blogs’ know that it isn’t “new” or “news” at all. Days ago Crouch’s site linked to this article from Malathi Nayak dated March 26th, 2019. It says “Sens. Thom Tillis and Chris Coons have outlined four principles for new patent eligibility legislation in a message to technology and pharmaceutical company representatives and others in advance of a fourth closed-door meeting on their effort.”

“They have been doing this for years (especially Coons) and it never got anywhere.”Their latest press release is dated April 17th, 2019. It involved nontechnical politicians, funded by corporations, working as fronts for law firms. But they call it “bipartisan” (misdirection).

Suffice to say, the patent trolls’ lobby (IAM) participated in this push, but kept it behind paywall (out of critics’ sight). To quote the tweet: “At a well-attended meeting in Washington DC on Wednesday attempts to frame legislation for the reform of the Section 101 patent eligibility regime in the US ran into familiar problems.”

They have been doing this for years (especially Coons) and it never got anywhere. We’ve meanwhile noticed that Gene Quinn came back the other day, only to attack PTAB i.e. the usual. Attacking judges. Watchtroll’s specialty. That there’s a USPTO revolving doors problem isn’t surprising and it’s a shame that Watchtroll does not disclose who it works for, either. That would kind of give away the hypocrisy (“A Story of Ethics and Optics: Former PTAB Judge Matt Clements Now Works for Apple”).

Speaking of nepotism, Iancu has come under fire again.

“Things work a lot better at present than they did before; unless you’re a patent lawyer…”United for Patent Reform wrote: “EFF states that @USPTO’s eligibility guidance “effectively instructs examiners on how to narrow the #Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” Read their full comments…”

The EFF has moved on since. In the latest “Stupid Patent of the Month” (titled “How Landmark Technology’s Terrible Patent Has Survived” and composed by Joe Mullin because Daniel Nazer left to join Mozilla) the EFF slams circus clown Iancu whom Donald Trump gave a job after his firm had worked for him. To quote Mullin:

There’s an increasing insistence from the highest echelons of the patent world that patent abuse just isn’t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls—a term for companies that do nothing but collect patents and sue others—mere “monster stories,” and suggested in a recent oversight hearing that it was simply name-calling.

But whatever you call them—trolls, non-practicing entities, or patent assertion entities—their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It’s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.

Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses—candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in “sales and distribution via electronic transactions,” or use an automated system “for processing business and financial transactions,” Landmark says they infringe one of its patents.

Those lawsuits don’t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood’s patents are made clear both by news accounts of Lockwood’s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood’s patents.

If the patent microcosm thinks that a handful of not-so-familiar politicians will miraculously change patent law, then the patent microcosm refused to learn from the past. Technical people will stand in their way and 2019 will be yet another year of failed ‘reform’ attempts. Things work a lot better at present than they did before; unless you’re a patent lawyer…

04.18.19

The European Patent Office Does Not Care About the Law, Today’s Management Constantly Attempts to Bypass the Law

Posted in Europe, Patents at 4:33 am by Dr. Roy Schestowitz

While paying everyone ‘in the loop’ to manufacture consent (e.g. paying publishers for ‘studies’ on “4IR” and spreading that around)

António Campinos FTI

Summary: Many EPs (European Patents) are actually “IPs” (invalid patents); the EPO doesn’t seem to care and it is again paying for corrupt scholars to toe the party line

We wrongly assumed that the very worst had been left behind. But Europe’s second-largest body is bribing academia still, under the new and ‘improved’ President. This isn’t about supporting science and/or education. We consider that to be a form of ‘soft’ bribery, kick-started yet again for bogus, biased ‘research’ that serves as ammo for corrupt EPO management that keeps violating the law. The EPO has tweeted about it again, framing it as some sort of ‘charitable’ endeavour. This is something Battistelli did a couple of years ago. He had done similar things beforehand and also paid EPO budget to universities in the UK and the US (yes, even outside Europe) to produce UPC lobbying material. It was so grotesque that we wrote many articles about that at the time. Such EPO-sponsored ‘studies’ help distract from independent and honest ones. Even the media is being bribed for ‘studies’, so can it cover EPO scandals anymore?

“Notice the growing number of buzzwords the EPO throws out there to justify granting patents in clear violation of the EPC.”The same thing happens in the US because of the private sector (meddling in the affairs of courts and the USPTO), but here we have the European Patent Office (EPO) under António Campinos pushing toxic and likely illegal agenda such as software patents in Europe. How much longer can this go on and should it be permitted to go on?

News wires show us all sorts of newly-granted EPs that may in fact be “IPs” (invalid patents) or fake patents. We don’t know for sure about every single domain, but software is our expertise and now we have another new article about "blockchain" patents that are actually just software patents. In “How Europe and China handle blockchain patents,” published just now, Kirwin Lee of Haseltine Lake admits (in her own words and the EPO’s own words that blockchain patents are just fake patents or IPs). Here are a few paragraphs, comparing the EPO’s policy to China’s (yes, China):

Blockchain inventions are regarded by the EPO as a type of computer implemented invention (CII). Mr Koen Lievens, Operational Director at the office, pointed out that in order to provide further legal certainty on the examination practice of CIIs, the Guidelines for Examination at the EPO have been revised thoroughly over the past three years on the basis of the case law of the Boards of Appeal.

The latest version of the Guidelines was published in November 2018, and its revisions include important improvements on guidance with regard to the eligibility of CII. The newest revisions are seen as the EPO’s attempt to establish a more harmonised and predictable approach across all computer implemented inventions.

[...]

In China, claims related to improved blockchain related algorithmic methods per se are not excluded from patentability, as long as they are defined as being carried out by a computer or a device (akin to EPO’s “first hurdle” as explained above). By contrast, pure algorithms, such as mining methods, would typically be refused under Article 25, which prohibits inventions for “rules and methods for intellectual activities”.

One of the major divergences between European and Chinese patent examination concerns the subject-matter that would be regarded as being “detrimental to public interests” (which is equivalent to “matter contrary to “ordre public” or morality as stipulated in Article 53(a) EPC).

This was demonstrated by way of a case study in the conference session, in which Ms Wang explained that inventions related to virtual currencies or cryptocurrencies (eg bitcoin) would be perceived as being detrimental to public interests for posing a potential threat to the stability of the nation’s financial and monetary system.

Since its crackdown on cryptocurrencies in 2017, the Chinese government has maintained a relatively strict stance on the financial use of blockchain technology. Accordingly, claims covering the application of blockchain technology in the financial domain would unlikely to be allowed under Article 5 of the Chinese Patent Law which stipulates that inventions that “harm public interests” are not to be allowed.

The EPO has also just tweeted: “Blockchain technology could benefit patenting and licensing processes on a global scale. You can read about that, and other interesting ideas that we discussed at our recent conference on #blockchain, here…”

“Today’s EPO is a very sordid mess that consciously grants IPs, invalid patents. Even the staff union admits so…”They also promoted patents on all things “blockchain”, which sometimes means just some program with a database (may be distributed, but nothing particularly innovative and unprecedented there). They also returned to that the "SDV" nonsense in this other tweet: “A study by @EPOorg shows a sharp rise in #patent applications for self-driving vehicles in Europe.”

A ‘study’; they keep paying publishers and academics for bogus ‘studies’ that accomplish nothing except serve lobbying material to the EPO. They have also just published this ‘news’ about a lobbying event dubbed “medtech” (openly promoting illegal software patents, calling them “medical” and “for SMEs”). In their own words, with “CII” in the headline: (warning: epo.org link)

The EPO and the Swedish Patent and Registration Office (PRV) jointly hosted the first in a series of events on computer-implemented inventions in medical technology last week in Lund, Sweden. The conference, which focused on the importance of patents for small and mid-sized companies, was attended by participants and speakers from SMEs and start-ups, industry, universities, public research institutes, patent offices and regulatory bodies from over a dozen countries.

Medical technology was the field with the highest number of European patent applications last year, according to the EPO Annual Report 2018. As with many other technical fields, the impact of computer-implemented inventions is being strongly felt in this area. With this event, the EPO and the PRV aimed to raise awareness among businesses of the value of patents and IP strategies, and highlight how patent offices can contribute by providing the necessary knowledge and tools. Similar events are planned in other cities in Sweden and across Europe.

We warned about this event about a dozen times before (when they advertised it). Notice the growing number of buzzwords the EPO throws out there to justify granting patents in clear violation of the EPC.

Meanwhile, Mark Scott (Dehns, Team UPC) writes about appeals, knowing that there’s a soaring number of oppositions (Haseltine Lake wrote about it last year) and subsequently appeals that the EPO Boards of Appeal are understaffed and badly equipped to deal with (they don’t even enjoy basic judicial independence):

Over the last few years, the EPO Boards of Appeal have become more strict regarding the late filing of new facts, evidence or requests. The Boards are expected to become even more strict when the new Rules of Procedure of the Board of Appeal enter into force (possibly in early 2020).

A recent decision by the Board in T47/18 confirms that even under the current Rules of Procedure, parties before the EPO should not expect late-filed facts, evidence or requests to be admitted in appeal proceedings.

In the case under consideration in T47/18, the opponent only raised inventive step objections in their grounds of appeal. After the parties had been summoned to oral proceedings, the opponent then raised new lack of clarity and added-matter objections against claims that had already been considered during the opposition proceedings.

The Board exercised their discretion not to admit the new grounds into the proceedings, on the basis that new objections which were not raised in the of grounds of appeal are considered to be an amendment to a party’s case.

In particular, the Board felt that the new submissions from the opponent went beyond the submissions serving to underpin the facts, evidence and grounds filed in good time, and were based on new legal grounds not previously addressed in the appeal proceedings.

Today’s EPO is a very sordid mess that consciously grants IPs, invalid patents. Even the staff union admits so (see below).

EPO delivery
Campinos Presidency, 9 months and no delivery. Published Tuesday by SUEPO, the staff union of the European Patent Office (EPO).

04.16.19

Corporate Media Will Never Cover the EPO’s Violations of the Law With Respect to Patent Scope

Posted in Deception, Europe, Patents at 4:56 am by Dr. Roy Schestowitz

EPO management is giving out patents it knows to be bunk, invalid

Special water
They would patent ‘special’ water and air too (if it wouldn’t have caused backlash)

Summary: The greed-driven gold rush for patents has resulted in a large pool of European Patents that have no legitimacy and are nowadays associated with low legal certainty; the media isn’t interested in covering such a monumental disaster that poses a threat to the whole of Europe

THE domain of patents rarely receives media coverage; it’s certainly uncommon in Europe. There are some ads (for law firms) disguised as ‘news’, but lawyers and attorneys aren’t journalists and their ‘coverage’ or ‘columns’ are just shameless self-promotion and lobbying. It’s all about money.

“They continue to spam Scottish media, marketing European Patents under the guise of Brexit ‘news’.”Here’s a new example from yesterday. HeraldScotland published this fake ‘article’ from “Graham Murnane [who] is a qualified UK and European Patent Attorney based in Murgitroyd’s Glasgow office.”

So a Scottish patent law firm is at it again. They continue to spam Scottish media, marketing European Patents under the guise of Brexit ‘news’. Remember last week’s example from Marks & Clerk, which used another Scottish paper to insult Scotland and urge people to pursue patents at Marks & Clerk? It was far from the first time. They had done it before in Scottish media — a fact that we documented in articles such as:

  1. Marks & Clerk is Still Pushing Patent Maximalism Agenda in Europe and Britain, Including UPC/UPCA/Unitary Patent (UP)
  2. Marks & Clerk Blames Battistelli’s Victims, the Boards of Appeal, Whose Job Guarded Patent Quality
  3. Software Patents Are a Dying Breed, So Marks & Clerk and Other Legal Monoliths Promote the EPO’s Buzzwords (Loopholes)
  4. UPC Puff Piece in the Scottish Media is Just an Advertisement by Marks & Clerk

The latest puff piece says this:

In these times of change in relation to many things European, one thing that won’t change is how businesses protect their innovations.

A lot of people are surprised when I tell them that the UK is, and will continue to be, part of the European Patent Office (EPO).

The EPO is not an EU institution, so whatever happens to our relationship with the EU, the UK will continue to be an EPO member state.

Well, duh. How is that even news? But how valid would the patents be in the UK? They aim for quantity now, not quality.

Yesterday the EPO wrote: “The Maltese and Moroccan #patent registers are now available via deep links from the European Patent Register.”

As if there’s much of value (in the patents sense) to be found there. The EPO just wants to add all countries to its group/syndication, much like NATO, rendering nobody safe from litigation with fake European Patents (or attacks from Russia in NATO’s case).

“They aim for quantity now, not quality.”When we speak of fake European Patents we mean European Patents that would not survive a court’s scrutiny and must therefore not be granted in the first place. Even SUEPO (Staff Union of the European Patent Office) recently complained about these.

The EPO is again boasting about software patents and applications (“Europe has witnessed a marked upturn in blockchain patent filing since 2015, with more than two thirds of applications being filed at the EPO,” the EPO wrote yesterday). European software patents called “blockchain” are not valid and that’s what these are; they’re just software patents, by the EPO's own admission. António Campinos promotes this nonsense in his “blog”, so he too is personally culpable. Will all these patents fall in an avalanche some time soon? Maybe.

“Will all these patents fall in an avalanche some time soon? Maybe.”A firm that mentioned it before (as we noted at the time regarding judges’ lack of impartiality) had posted about it in its own site, perhaps realising just how realistic the prospect is (that software patents would all be invalidated). Haven’t we learned from what happened a few weeks ago in the UK Supreme Court?

Mondaq has this fresh copy of an article by Gordon Harris and Paul Inman (Gowling WLG) on fake European Patents i.e. patents EPO granted only to be found invalid by British courts. In their own words:

On the other hand, Lord Hodge considered it well established that although not bound to do so, the courts in the UK “should normally follow the settled jurisprudence for the EPO (especially decisions of its Enlarged Board of Appeal) on the interpretation of the European Patent Convention in the interests of uniformity, especially when the question is one of principle”.

Today’s European Patents are very dubious and even EPO staff complains about these. SUEPO estimates that tens of thousands of fake European Patents are being granted every year (non-compliant w.r.t. EPC).

04.13.19

Patent Maximalists Are Enabling Injustices and Frauds

Posted in Europe, Fraud, Patents at 11:05 am by Dr. Roy Schestowitz

Last year: The Enemies of the Patent System Are Patent Maximalists, Not Those Pursuing Saner Patent Policy

Theranos and EPO

Summary: It’s time to come to grips with the simple fact that extreme patent lenience causes society to suffer and is mostly beneficial to bad actors; for the patent profession to maintain a level of credibility and legitimacy it must reject the deplorable, condemnable zealots

THE SITE TECHRIGHTS has long been a fan of patent quality. We’re not against patents; instead, we’d rather defend the integrity of patent law by ensuring that patents are only ever granted when it’s justified (for practical, economic and scientific reasons). Publication is often better than secrecy (trade secrets), so patents are a form of incentive to publish closely-guarded secrets. We’re OK with that.

António Campinos with his promotion of software patents in Europe is a stain on the European Patent Office’s (EPO) reputation or what’s left of its reputation. As we've just noted, even the US rapidly moved away from such patents over the past few years. It realised, owing to high courts, that patents must not cover natural phenomena and mathematics. Shouldn’t that be trivial? Nature is not an invention; neither are laws of nature. They were never invented, merely explained.

“They’re a radical bunch, incapable of grasping just how crazy they are because they surround themselves with other equally crazy people in events that are ‘echo chambers’ (no sceptics are allowed to even speak). It’s like a religion.”Patent maximalists will never have “enough” patents; for them (or to their business), the more the merrier! It’s totally insane. They’re a radical bunch, incapable of grasping just how crazy they are because they surround themselves with other equally crazy people in events that are ‘echo chambers’ (no sceptics are allowed to even speak). It’s like a religion. Bigger than a cult and better financed/coordinated than most cults.

Yesterday we wrote about how Team UPC's lies have even landed in magazines. These people completely distort facts and recklessly spread lies. Their gospel would be laughable if its impact wasn’t quite so corrosive to the rule of law in Europe. Bristows LLP’s Liz Cohen is now seemingly writing about herself as a third person: “If you’ve missed the fall issue of ABA’s International Law News, you may want to read up Liz Cohen’s view of the future of the Unified Patent Court…” (UPC)

Check out the headline; Liz Cohen writes an article titled Liz Cohen about an article by Liz Cohen. They’ve found their “God” in Bristows. God complex much? The verge of insanity?

“These people completely distort facts and recklessly spread lies.”It’s worth noting that Bristows staff at IP Kat no longer even mentions the UPC. It’s rather revealing. Maybe they got tired of comments that slam them for lying about the UPC. In fact, readers of the site are still (as recently as Friday) calling out CIPA for the PEB scam that IP Kat was promoting. CIPA is of course a major part of the Team UPC lobby, mostly but not only in the UK (where IP Kat is based). Not too long ago the chief of CIPA was editing IP Kat while meeting with Battistelli, which partly helps explain the ‘death’ of “Merpel” (i.e. of coverage about EPO abuses).

This CIPA/PEB scandal has already attracted about (maybe over) 200 comments in the past month alone; we’ve lost count because the comments are scattered or clustered around a few separate threads, having caused a major stir. The patent microcosm is now fighting even within itself, so get some popcorn and enjoy the show. We’ve noticed that some people in this profession sincerely pursue sanity (reasonable patent scope), whereas others are “true believers” in patent maximalism. Team UPC, for example, often gets slammed by more moderate voices, whom we appreciate. Not every patent attorney is as radical as the Watchtroll bunch or IAM bunch* and we’ve in fact noticed some ‘good cops’ in Kluwer Patent Blog (Bausch comes to mind).

“Lack of evidence that something being patented would actually work led to the granting of key European Patents that soon propped up a multi-billion-dollar fraud and epic scammer, who later on was honoured by crooked Battistelli.”Just before the weekend, Lexology published this self-promotional piece from Barker Brettell LLP’s Gurpreet Solanki. It’s about EPO patentability as per patent scope (not that the EPO obeys the law in that regard) and it says “plausibility originates in the EPO case law as a response to overly-broad claims and to prevent speculative claiming.”

Remember 'Teffgate'? It was all over the Dutch media earlier this year. This is what Solanki wrote:

Problems can also occur if a lack of plausibility is raised in cases where the specification filed lacks data demonstrating that a technical effect is plausibly solved. In such scenarios, the patentee can find themselves in a squeeze: relying on prior art or common general knowledge to demonstrate plausibility at the date of filing with the risk of the EPO finding a lack of inventive step based on the same prior art or common general knowledge. However, reference to prior art or common general knowledge in support of plausibility may not necessarily lead to a lack of inventive step objection. This is because plausibility is a threshold test which is not assessed in the same manner as whether an invention is considered obvious to try with a reasonable expectation of success. On the other hand if there is no prior art or common general knowledge to establish plausibility, the technical effect may not be considered to be plausibly solved.

It is therefore advisable when considering a patent filing strategy to provide as much information as possible with respect to technical advantages of the invention, which includes any experimental data at the date of filing. In the absence of adequate experimental results, additional effort should be put into the construction of a robust technical explanation for the purported technical effect which overcomes the plausibility threshold, thereby enabling the patentee to later rely on post-published evidence to demonstrate sufficiency.

Lack of evidence that something being patented would actually work led to the granting of key European Patents that soon propped up a multi-billion-dollar fraud and epic scammer, who later on was honoured by crooked Battistelli. Yes, we’re talking about Theranos.
____
* The latest from IAM policy lobbying (“blog”) says that “EPO presidency seems determined to exclude plants produced by biological processes from patent protection.” IAM calls this a “controversial” move and says the “intervention is unlikely to succeed,” which is unsurprising. It’s only controversial among the patent maximalists who fund IAM and the reason the intervention will likely be ineffective is that the appeal boards lack independence.

04.12.19

Caricature: EPO Standing Tall

Posted in Europe, Humour, Patents at 10:35 am by Dr. Roy Schestowitz

Earlier: New Building as Perfect Metaphor for the EPO Under the Frenchmen Battistelli and Campinos

Summary: A reader’s response to the EPO’s tall claims and fluff from yesterday

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