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01.27.19

January Closes as Another Month (Among Many Months) of No Turnarounds on Software Patents

Posted in America, Law, Patents at 12:46 pm by Dr. Roy Schestowitz

Drink to that!

Three beers

Summary: Positive outlook for the year as nothing is really changing in favour of the patent microcosm that’s preying on companies in the United States

AT the dawn of the new year (and end of last year) we said we would focus on the European Patent Office (EPO) and no longer focus on USPTO matters unless or until there’s a threat of software patents rebound. A month later there’s no change at all. 35 U.S.C. § 101 remains in tact albeit Iancu hopes to water it down [1, 2], SCOTUS issues decisions on totally unrelated questions (one more a week ago), a former Federal Circuit chief judge expresses only a desire for a rebound in 2019 (wishful thinking over at Watchtroll), and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) continue unabated. Patent maximalists just cherry-pick exceptional cases where PTAB overturns examiners’ decisions to reject (those are still very few, less than a handful per week). That being the case, we’ll continue to observe developments and outcomes of cases in US patent courts. But we probably won’t cover them here. Hopefully we’ll never need to because assuming nothing changes (for the worse), we can focus on other topics.

01.22.19

Software Patents Are a Dying Breed, So Marks & Clerk and Other Legal Monoliths Promote the EPO’s Buzzwords (Loopholes)

Posted in Europe, Law, Patents at 7:07 am by Dr. Roy Schestowitz

Anything to promote bunk/junk patents

Marks & Clerk

Summary: Patents that courts would almost certainly reject (and invalidate) are routinely promoted as “AI”, “SDV” and similar acronyms and buzzwords, either misleading or intentionally misplaced (nowadays “AI” is often just a synonym for “machine” or “algorithm”)

THE atmosphere of buzzwords worries us. Everywhere one looks in the media, especially technology media, it’s all buzzwords. Maybe that’s because real journalism is dying and reporters get replaced by the marketing/PR industry and by extension law firms looking to market their services in the respective domains. Readers who are technical quite likely know what those buzzwords are and some of these were covered here before.

“This patent litigation giant, Marks & Clerk, is helping the EPO promote software patents on computer vision (my area)…”Here in Techrights we no longer keep track of all the software patents tweets (they don’t say “software patents” explicitly but instead use buzzwords) that have been far more abundant and frequent since António Campinos took over as President. Yesterday we saw this new article from Marks & Clerk’s Philip Cupitt (the patent maximalists if not extremists*). Weeks ago we explained how the European Patent Office’s (EPO) corruption — and avoidance of the law in general — nowadays helps the U.S. Patent and Trademark Office (USPTO) similarly dismiss the courts/caselaw, proceeding to grant software patents that aren’t legally solid (courts would almost certainly can these).

Then, also as recently as yesterday, we saw another Marks & Clerk article, this one with the “self-driving vehicle (SDV)” buzzword that the EPO has been promoting.

This patent litigation giant, Marks & Clerk, is helping the EPO promote software patents on computer vision (my area), never mind if that’s in clear defiance of the EPC, violating the fundamentals of patent scope; buzzwords to bypass the law basically…

With investment announcements coming thick and fast, and testing taking place on ever more roads, might 2019 be the year of the self-driving vehicle (SDV)?

A recent statistical release from the European Patent Office (EPO) might suggest so, or at the very least suggest that momentum is building in this important sector. In 2017, the last year in which figures are available, the EPO saw nearly 4000 patent applications related to self-driving vehicles – up from 922 applications in 2011.

This is a staggering 330% increase in just 6 years! To put it into context, filing in this area has grown more than 20 times as fast as patent applications generally at the EPO.

They are just reclassifying patents. We recently saw a similar article in the US — one in which they basically classified many patents on algorithms as “AI”, then crafted headlines claiming that in recent years there were hundreds of thousands of patents on “AI”; the EPO and the USPTO both use this trick — a subject covered here several times towards the end of last year.
_____
* Among the articles we previously wrote about Marks & Clerk (loud proponents of patent maximalism in Europe, including the UPC):

  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. UPC Puff Piece in the Scottish Media is Just an Advertisement by Marks & Clerk

01.06.19

As Expected, Director Iancu Tries to Water Down the Examiners’ Guidance in Revised Patent Subject Matter Eligibility Document

Posted in America, Law, Patents at 2:59 am by Dr. Roy Schestowitz

…And patent maximalists are delirious, never mind if this merely widens the gap between caselaw (courts) and examination practice

Blind Leading the Blind
Blind Leading the Blind

Summary: In defiance of courts’ rejection of software patents, the Trump-appointed Director (whose firm had worked for Trump before the appointment) metaphorically sticks up his middle finger and ignores judges; the main casualty, however, will be legal certainty and the perception of patent justice

THIS year we are reducing our volume/frequency of coverage regarding the United States Patent and Trademark Office (USPTO). As we explained before, software patents are more or less dying in the US not because of the Office but because of the courts. The signs are everywhere and not even patent maximalists are denying it (not anymore; they did in past years). Nutter McClennen & Fish LLP’s Todd Gerety, for example, has just published this article that says: “Over the years, patents have issued on numerous games, including iconic favorites such as Monopoly® (1935), Battleship® (1935), Rubik’s Cube® (1983), Rock’em Sock’em Robots® (1966), Twister® (1969), and Simon® (1979). Although there is no per se rule under current U.S. patent law against the patenting of games, it may be more challenging today to obtain patents on certain games due to the patent eligibility requirements of 35 U.S.C. § 101.

“For example, the Federal Circuit recently affirmed a final decision of the Patent Trial and Appeal Board (“Board”) holding a claimed method of playing a dice game using dice having non-conventional markings to be patent ineligible under 35 U.S.C. § 101. See In Re: Marco Guldenaar Holding B.V. (Fed. Cir. 2018). Specifically, the court agreed with the Board that the claimed method recites the abstract idea of “rules for playing a game” and lacked an inventive concept sufficient to transform the claim into patent eligible subject matter.”

Obviously, as anyone can tell, patents on computer games are just software patents that should never have been granted in the first place. Games are a kind of software.

“So the Trump “swamp” is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”.”The Office, however, not to be mistaken for actual courts, doesn’t seem to care. The number of new patents declined last year (but it’s still far too high) and judging by Patently-O‘s assessment of the government shutdown, we might expect that number to decline further this year. “Once funds run out, the PTO is looking for ways to keep the doors open enough to continue to accept new application filings — while shutting down examination and PTAB activities,” Dennis Crouch wrote. “It is likely that a special PTO funding bill would receive bipartisan support — keeping the patent office rolling while other government services are shut-down.”

But no such bill exists yet. In another new post Crouch alluded to the new guidelines or a set of rules that does not impact courts, only examiners. Watchtroll wrote about it too, as did various patent maximalists in Twitter. “The USPTO has finally released the Revised Patent Subject Matter Eligibility Guidance (Section 101 Guidance),” one wrote. “USPTO 2019 Revised Patent Subject Matter Eligibility Guidance” makes two primary changes to how patent examiners apply the first step of the U.S. Supreme Court’s Alice/Mayo test, which determines whether a claim is “directed to” a judicial exception,” said another.

So the Trump "swamp" is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”. So what? The courts won’t care; they’ll keep rejecting such patents, only to reduce confidence in US patents (lowering legal certainty). So what is being achieve here? The United States Patent and Trademark Office has just issued a fake/dubious patent again. Why does it issue patents on abstract ideas? We still see plenty of new examples every day, but we won’t mention them all because we want to reduce focus on this subject (so as to save time).

Michael Loney, another patent maximalist, wrote about what he called “2019 Revised Patent Subject Matter Eligibility Guidance” as follows:

The guidance makes two primary changes to how patent examiners apply the Section 101 test, while the USPTO also announced guidance for the applying Section 112 to computer-implemented inventions

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Loney soon proceeded to promoting software patents agenda in a site of patent extremists and predators:

New USPTO guidance makes two primary changes to how patent examiners apply the Section 101 test, while guidance for applying Section 112 to computer-implemented inventions was also announced

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Patent Docs has not yet commented on this; it did, however, post 5 adverts last night, including this one which includes: “What steps should patent counsel take to minimize the likelihood of § 101 rejections?”

At the Office or the courts? The matter of fact is, one can still get software patents from the Office (maybe more easily now than before, thanks to the biases of Iancu), but courts are tougher than ever on such patents. In fact, they now deal with some of the ‘better’ software patents (because litigation rates have collapsed), yet the success/failure ratio remains steady.

Keep on promoting software patents, Mr. Iancu, at the expense of the credibility of the Office Donald Trump put you in charge of.

01.02.19

The Real Harm of Really Bad European Patent Grants

Posted in America, Apple, Asia, Europe, Law, Patents at 5:51 pm by Dr. Roy Schestowitz

The EPO is measuring speed rather than quality of work

Measuring

Summary: Patents that are of questionable validity/legitimacy do incredible harm/damage to the market; the EPO, however, is willing to look the other way while its rogue policies break the economy and remove products from the market

LAST MONTH Qualcomm dominated the news about patents. As Taro Yaguchi (Keisen Associates) put it, “Qualcomm And Apple Fighting In China Over Software Patents” and they fought elsewhere too, including in Europe (there was a widely-publiced ban on older models of iPhone). This was so widely reported/covered that we saw no urgent need to mention it (I was actually in Germany at the time, hence offline). Currently, only China is (still) a large economy that allows (explicitly) software patents. As we showed before, Qualcomm actively advocates software patents, which it then uses to embargo rivals’ products (or products of those unwilling to pay for questionable patents).

This brings us to the António Campinos-led European Patent Office (EPO), where software patents are being granted, not to mention all sorts of questionable patents on life and nature. As an insider noted earlier today, Team UPC publicly admits that European Patents granted by the EPO are of poor quality — a subject that Campinos won’t tackle. He just met the people in question and sought to remove the causes of criticism — whatever that means. He specified no actual plan. In the words of a Team UPC firm:

Furthermore, the remarkably high fees for a patent application and the EPO’s large reserves are rightly criticised. It cannot be that the EPO tends to want to make profits. Especially if you end up paying for mistakes with heavy fees.

And not only attorneys and lawyers, but also patent experts from the industry express criticism. According to the JUVE Patent Survey 2018, they want more professionalism. Only a few are behind the idea of the fastest possible registration process.

The EPO nowadays acts like a money-printing machine; it prints out monopolies, so what’s not to like? It’s just minting lots of rubbish, causing a gross hyperinflation of patents in Europe. Who will suffer? Certainly European companies on the receiving end of frivolous lawsuits.

12.28.18

The Demise of the UPC ‘Legislative Coup’ Continued in 2018

Posted in Deception, Europe, Law, Patents at 2:24 am by Dr. Roy Schestowitz

Where’s your long-promised UPC, Team UPC?

Berlin
Yours truly last week in Berlin

Summary: Another year ends with UPC lies; the main challenge remains to improve patent quality however, including complete elimination of software patents, no matter what the Office calls these (e.g. “AI”)

THINGS have been quiet. Not a word from the European Patent Office (EPO) in about a week (because of Christmas). Not a word (not even a link) from SUEPO in a month now (last update November 29th). Not a word regarding the UPC, either. No ratification. Nothing.

“Not a word regarding the UPC, either.”This means that we can now add yet another lie or false prediction among so many to Team UPC’s long list. That boy keeps crying “wolf!”

Parroting the two lies, one article titled “Which major EU trends will affect international markets in 2019?” has just mentioned the UPC in passing. The last paragraph in there uses the propaganda term “Intellectual Property” and is exceedingly optimistic about UPC (which is already dead). To quote:

As Brexit uncertainty continues, Intellectual Property matters seems to be far from clear regarding the future direction of the Unitary Patent Court. All eyes will be on Germany and whether it will ratify the UPC and, if so, whether the UK will be allowed to stay.

We already know it cannot. The word “stay” is a loaded one; it alludes not to the EU but the UPC, which does not even exist. How can one stay in something that does not even exist?

“How can one stay in something that does not even exist?”With António Campinos refusing to say very much on the subject, unlike his predecessor, we suppose he too understands that to prop up the UPC fantasy is detrimental to one’s credibility.

In 2019 we intend to continue our focus on software patents in Europe, which oughtn’t be granted in the first place. The problem is apparently deepening rather than going away. José Santacroce (Moeller IP Advisors), for example, mentioned those infamous computer vision patents (disguised as “cars” something) the other day. It’s from Argentina, but it’s modeled after the EPO’s ‘studies’ or ‘brochures’:

On November 6th 2018, the European Patent Office (EPO) in cooperation with the European Council for Automotive Research and Development (EUCAR) released the study “Patents and self-driving vehicles”.

Over the past year we have identified several buzzwords other than the above — buzzwords and sometimes hype waves that the EPO piggybacks in an effort to justify software patent grants. European courts have rejected these, but very few patents will be subjected to a court’s scrutiny in their decades-long lifetime.

12.22.18

UPC Died in 2016 or 2017; But the EPO Continues to Issue Fake Software Patents That European Courts Reject

Posted in Europe, Law, Patents at 3:44 pm by Dr. Roy Schestowitz

The war on the EPC carries on

Alexander Ramsay, Bristows, and the UPC gold rush

Summary: Why the “UPC Preparatory Committee Update for 2018″ is laughable and it’s time for Team UPC to accept that it has been stopped in its tracks; the main problem is, the EPO continues defying the law as if courts do not exist (or don’t matter)

TO still herald an upcoming/imminent arrival of UPC is delusional and downright dishonest. Even the dishonest European Patent Office (EPO) no longer does this. SUEPO says absolutely nothing on the matter. So why is the subject still being brought up? Only Team UPC. These people are insane.

Gemma Barratt from Bristows, for example, has just repeated more or less what they probably wrote anonymously in the blog that's not theirs a few days ago, taking note of Alexander Ramsay (another dishonest person) and promoting it without even a link (how unprofessional). They are desperately trying to distract from the downfall and their disappointment when they write this:

In other ratification news this year, France, Italy, Luxembourg and the UK deposited their instruments of ratification for the Protocol on Privileges and Immunities (PPI) of the Unified Patent Court (UPC) and Bulgaria deposited its instrument for ratification of the Unified Patent Court (UPC) Agreement’s Protocol on Provisional Application (PPA) with the Secretariat.

That does not matter because there are constitutional challenges (several of them, even successful ones). Moreover, Brexit voids it all (UPCA) and the ratifier quit his job about a month ago. Here we are at the end of 2018; ‘unitary’ patents do not exist and UPC is by far the biggest political crime in Europe — a crime which nobody in the mainstream talks about (because they use cryptic language and spread lies to effectively keep critics out, repelling truth-tellers whom they anonymously demonise and slander).

“Team UPC hopes that dubious new courts will bypass national laws and allow software patents like the patent office does.”As it turns out, FFII “Will give a session on the Unitary Software Patents Urgency next week 28 dec at #35C3 #swpat #ffii #swpatv3 …”

To quote the abstract: “We will discuss the third attempt to install software patents in Europe, via the Unitary Patent Court (UPC). The thousands software patents of the EPO will be made enforceable. Litigation will be more expensive. We will have a dependent and uncontrollable European Patent Court. We will see patent trolls and US style litigation in Europe.”

Team UPC hopes that dubious new courts will bypass national laws and allow software patents like the patent office does. This is their plan (among others).

This is a very big deal because as the quality of European Patents (EPs) goes down there’s a growing danger that patent trolls equipped with software EPs will ruin Europe’s software industry.

“The biggest prize went to (or was stolen by) Battistelli.”Just before the weekend the EPO wrote: “Congrats again to European #InventorAward winners Agnès Poulbot and Jacques Barraud†!”

The biggest prize went to (or was stolen by) Battistelli. He must be counting his millions of Euros (even aside from his very fat bonuses and departure gift) somewhere in France. He passed millions in EPO budget to his threatre (at his other employer). How was he never punished for such blatant corruption? Well, welcome to the EPO and the UPC. Justice exists no more. The EPC doesn’t matter, ILO-AT is a joke, national laws don’t exist, and even international law is routinely violated.

Regarding patent scope, it continues to get yet worse over time. Over at JD Supra, McDonnell Boehnen Hulbert & Berghoff LLP’s Aaron Gin and Margot Wilson (yes, it’s Aaron Gin again, always with that same agenda) have just published “Global Artificial Intelligence Patent Survey”, presenting “AI” as “CII” at the EPO, which increasingly allows software patents in Europe under the guise of “AI” (more so under António Campinos). To quote the most relevant portion:

While Europe may not be a leader in terms of number of AI-related patent filings, patent applications in Europe that relate to IoT and 4IR technologies grew at a 54% annualized rate from 2014 to 2017.[32] Germany, France, and Great Britain, in particular, have significantly increased the number of AI-related patent filings in recent years.[33]

The EPO has expressed a dedication to developing examination practices which are friendlier to computer implemented inventions (CII), which include AI-related subject matter. For example, recently the EPO adopted a new approach to interdisciplinary software patent applications. Specifically, such applications can now be examined by a team of three examiners with diverse technical backgrounds. Additionally, recognizing the urgency and fast-pace of the industry, the EPO has indicated it aims to speed up examination according to a 12-18 month timeline from filing to either allowance or final rejection.

Furthermore, in May 2018, the European Patent Office (EPO) held a conference entitled “Patenting Artificial Intelligence.”[34] The conference centered on the challenges and opportunities of patenting AI-related innovations. Speakers shared lessons learned and strategies for approaching AI related patents.

European examination of all computer related inventions includes a two-prong approach. First, examination includes an eligibility determination of whether the invention is directed towards, for example, a mathematical process or an abstract concept. Second, the invention must be directed towards a technical solution to a technical problem.[35] While the first prong traditionally represents a relatively low bar,[36] European practitioners can encounter more issues with regard to the second prong. During the EPO conference, a heavy emphasis was placed on claiming as specifically as possible. In particular, AI-related innovations should be described and claimed as being developed for a specific implementation. Furthermore, the AI-related idea should be shown to be motivated by technical considerations of the internal functioning of a computer, such as speed and/or computation load.[37]

Sam Jones (GJE Intellectual Property) was also promoting software patents in Team UPC’s favourite blog. It’s that same trick (“AI”) and it was published yesterday:

The European Patent Office (EPO) is receiving ever increasing numbers of patent applications that include a ‘programmed computer’ as a key part of the described invention. Moreover, this growth in filings is being seen in technical fields that are not traditionally considered to be computer-centric. For example, according to EPO statistics, 40% of new patent applications filed in the healthcare space have an AI or machine learning aspect to them.

[...]

This has always been the position of the EPO when handling the exclusions to patentability, and so it is not surprising that the AI and machine learning section of the new Guidelines is largely business as usual. Inventions involving AI and machine learning will be patentable so long as they are described and claimed in the context of operation in a technical system or control of a technical process. Careful drafting will be sufficient to ensure that this requirement is met – describe and claim the AI or machine learning component in the context of the technical system in which it operates, not as an abstract entity, to obtain a granted European patent. AI or machine learning algorithms that are put to work in the context of non-technical systems, such as business processes, are not likely to be patentable.

Misuse of buzzwords like “AI” or “AIpatents” to push software patents into Europe isn’t a novel idea. In clear defiance of 35 U.S.C. § 101 the U.S. Patent and Trademark Office (USPTO) does something similar. Yesterday the EPO wrote: “For the #patent system, the Fourth Industrial Revolution has opened up a new era. For more from our Chief Economist’s recent speech on the topic, click here: http://bit.ly/AIpatents”

“Short of murdering critics (don’t laugh) and bribing constitutional judges there appears to be nothing left for them to do.”This is the person who is speaking at a patent trolls' event (from the US). Having recently embraced the “SDV” buzzword (mostly computer vision) on the same day they wrote: “Self-driving vehicle applications at the EPO come from hundreds of different applicants operating in a wide variety of industries. The top 500 were responsible for 80% of all self-driving vehicle applications at the EPO between 2011 & 2017.”

All these computer vision (algorithm) patents would likely be voided in Europe like they do — routinely in fact — in US courts. Team UPC was hoping to swap the courts with something farcical (presumably managed by corrupt Battistelli), but thankfully that hasn’t succeeded. In recent months they defamed and libeled UPC critics; they also spread fabricated (baseless and refuted) rumours to no avail. Short of murdering critics (don't laugh) and bribing constitutional judges there appears to be nothing left for them to do.

12.19.18

UPC Would Mean Patent Scope Gone Out of Control and Beyond/Above the Law

Posted in Europe, Law, Patents at 10:04 pm by Dr. Roy Schestowitz

Plants, algorithms and other patent-ineligible things should never become monopolies

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this.”

Ante Wessels, FFII

Summary: Debates about the EPO’s inability to respect the law and to maintain modest/reasonable patent quality are a reminder of why the UPC is, in effect, a dead end

THE staff of the European Patent Office (EPO), especially staff which deals with examination, can’t be very proud of the devaluation of European Patents. People whose job performance is assessed by a bunch of numbers/figures like patent grants or “products” may feel victorious, but to turn the EPO into another USPTO would be a low goal; it would even be an own goal.

“The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.”The perils associated with quality of European Patents were brought up again early in December. A surprising new decision represented a threat to farmers and to the EPO's own reputation. Barbara Rigby from Dehns (Team UPC) more recently wrote about that awful decision to grant patents against the EU and against the EPC as if the EPO is above the law and can just make up the rules.

“In a surprising turn of events,” she said, “on 5 December 2018 a Technical Board of Appeal of the European Patent Office (EPO) decided that plants which are the products of essentially biological processes are not excluded from patentability. The decision (T 1063/18) is a twist in a long-running saga, but may well not be the final word on the matter.”

The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.

“It is interesting,” Rigby added, “that the Technical Board of Appeal did not consider it necessary to refer this matter to the Enlarged Board of Appeal. However, the patentability of plants is a controversial topic and many stakeholders on both sides of the debate hold strong views. It would therefore perhaps be premature to think that decision T1063/18 signals the end of this saga. A future referral to the Enlarged Board of Appeal (in connection with a separate appeal) is not inconceivable, so for now, legal uncertainty remains. It remains to be seen if and when the EPO amends Rule 28(2) EPC. We will provide updates as and when new developments arise.”

This may very well become a new/latest major scandal, maybe not among patent law firms. David Brown (Haseltine Lake LLP) wrote about this awful decision: “It is reported that, at a hearing on Wednesday 5 December 2018, the EPO Technical Board of Appeal 3.3.04 in the case T1063/18 (Syngenta’s Pepper Plant Application No. EP-A-2753168) decided that Rule 28(2) of the European Patent Convention (EPC) is incompatible…”

We have already started to see coverage not from law firms. The Courier, for example, writing under the “Farming” section, went with the headline “Patent ruling puts plant variety breeding at risk” and then explained further:

EU farming leaders have warned that plant breeders could lose vital access to natural genetic resources as a result of a highly contentious ruling by the European Patent Office (EPO).

Copa-Cogeca, who represent Europe’s farmers and farm cooperatives, have expressed “shock” over a recent EPO ruling relating to new pepper plants, which they say could make the breeding of new plant varieties from ”natural traits” subject to patents.

This is in contrast to the current exclusion of “natural traits” from the patent process, an approach which has left the protection of new plant varieties to be governed by a licensing system, which Copa-Cogeca argues is working perfectly well.

Thor Kofoed, chairman of Copa-Cogeca’s Working Party on Seeds said: “We don’t need a patent system for plant breeding in Europe as we already have Community Plant Variety Rights, which has been the most efficient system worldwide for the past 50 years.”

Staying with plant variety licensing is also the preferred choice of Professor Colin Campbell, chief executive of the James Hutton Institute, home of countless plant variety developments over the years.

“The institute has produced many successful new crop varieties via conventional breeding methods and are famous for their Glen raspberry and Ben blackcurrant varieties,” said Prof. Campbell.

This is the kind of thing that harms condfidence in the EPO’s ability to decide on patent scope or patent validity; it’s not even complying with the EU’s own rules. They’re not even in agreement on this very fundamental question which is patents on seeds.

Just before the weekend a comment was posted in IP Kat to say:

You consider that “The EPO is being entrusted with the Unitary Patent”. This is not completely correct. It is entrusted with keeping a register of UP and to collect the annual fees for UP. It is difficult to see in those two points the full responsibility of the EPO for UP.

Getting to decide which are and which aren’t valid patents is a very big deal, including opposition proceedings. That gives the EPO enormous power over patent scope — a power it has repeatedly and patently misused.

On the other hand, you put the finger on one of the big drawbacks when it comes to the UPC.

What if, in matter of validity, the case law of the UPC will differ with the case law of the BA and more with that of the EBA. This is a fundamental uncertainty, and I would say flaw of the UPC system. At least between the EFTA court and the CJEU there has been an agreement to exchange information. Between the UPC and the EBA/BA nope. This must have a reason. May be the aim behind this is the end of the EBA/BA?

On the other hand, why should 10 states, some of them having also a strong economic holding, but outside the EU, accept judgements of a court only acting within the EU?

These courts aren’t even discussing the case in the defendants’ language/s. But there are even greater and more blatant infringements — more of which were discussed here before.

There would have been one solution that is for the UPC only to deal with infringement, and let the EBA/BA decide on validity. A kind of general bifurcation to use a naughty word.

Given the abuse of power by the Office, which attacked the appeal boards time after time, and considering the Office’s violation of the EPC (e.g. on patent scope), this is just unacceptable. If the Office President gets to decide what is and isn’t valid, even when national courts do not agree, that’s an incredible amount of leverage to exercise over the decisions of the court.

This would mean that the opposition period would have to be extended to the life time of the patent, and not merely limited to 9 months. After all, a proprietor may amend its EP during its whole life, thus why limit the possibility to challenge the patent centrally only for 9 months after grant?

This could have been good for unification of law within Europe, and would have avoided any clash of case law. This solution would certainly not be to the liking of all the lobbies who absolutely wanted the UPC, for whatever reason.

In this system, validity could be assessed in a consistent way by a court systematically composed of technical judges, and not just by technical judges which are all in a pool, and can be called or not at the discretion of the judges sitting in the local or regional courts of first instance of the UPC.

When it comes to infringement, then the UPC could act, but only on this point.

By deciding both on infringement and validity, clashes are necessarily programmed. Just look at the way added subject-matter is dealt with at the EPO. It is not a secret that the way added matter is looked at by the BA/EBA, is very strict, and for good reasons, but to the dislike of plenty of users. By doing so, they actually forget that the added-matter and novelty are the two sides of the same coin: what you lose on on side you gain on the other.

The way things stand at present, validity decisions are improperly dealt with, e.g. with growing burden on challengers because the Office tries to mask the decline in patent quality. Having the EPO at any phase/part of the legal process is therefore a problem.

Let’s take the example of the German Federal Court (BGH): if an independent claim comprises a feature extending over the original disclosure, the unallowable feature is merely to be disregarded when assessing patentability, cf. X ZR 161/12 (Wundbehandlungsvorrichtung=Wound treatment device). This means that the application is refused and the patent revoked.

Before the EPO G 1/93 (the inescapable trap) is valid. When it comes to added subject-matter during examination, then the position of the BGH is the same as the BA/EBA. See BGH X ZB 5/16 (Phosphatidylcholine).

Imagine we end up with a similar situation when it comes to the UPC. Is such a difference in legal approach, on actually the same legal text (Art 100-Art 138 EPC) in the interest of European Industry, and especially SMEs? I have some doubts.

The whole UPC system has been rushed into place following an intense lobbying whereby the apparent interests for SMEs has been used as a fig leaf. Politicians have not been aware of what was coming on. A last point: filings at the EPO stemming from EU member states count for at most for a third. That means that two thirds come from outside the EU. As the number of grants more or less follow the same distribution, I have not yet met anybody capable of explaining, how this can be profitable for European Industry and especially the SMEs.

These are some rhetorical statements. Of course the UPC would be bad for Europe, bad for SMEs, and mostly the result of intense lobbying by patent trolls and firms that represent them. All they want is lots of patents — questionable ones included — and more leeway for litigation. Businesses are expected to just supply mountains of money to Team UPC or the litigation ‘industry’; it is unequivocally a tax on innovation.

The bottom line is, the discrepancies between EU law and what the EPO does is a real problem; it shows that an international institution positioned above the law (and routinely exploiting that) cannot be trusted with something like the UPC.

Concerns associated with European patent law, especially scope, are nothing too new. These concerns are some among several that exist.

12.11.18

The EPO Not Only Abandoned the EPC But Also the Biotech Directive

Posted in Europe, Law, Patents at 10:38 am by Dr. Roy Schestowitz

Like outlaws still run the Office

Topić France

Topić letter

Summary: Last week’s decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there’s still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place

EUROPEAN Patents (EPs) which threaten lives and software patents that are EPs were mentioned in our last post. How far is António Campinos willing to go? How far will Iancu at the U.S. Patent and Trademark Office (USPTO) go?

How about patents on life itself?

It is widely known that this subject is ‘controversial’, by which we mean on one side we have large corporations like Monsanto and on the other side virtually everyone else, i.e. the public (those not striving to ‘own’ all lives using bizarre patents).

Last week there was some disturbing development/news which made one wonder if judges had been having dinners at Bayer or something like that. There has been no word on this decision from the EPO’s Twitter account, which has been unusually quiet lately (the past few days). Those who covered the decision have been almost without exception patent maximalists; the same goes for comments. Apparently all that matters is how much they can profit from it, not how much sense it actually makes. Miquel Montañá wrote about this yesterday (“The Political Dimension of Tomatoes, Broccoli and Peppers”); it’s about the incredible stance of the European Patent Office’s (EPO) Board of Appeal (BoA), which decided that patents on seeds, pigs, plants etc. are acceptable as if people “invented” these. Does the EPC not matter anymore?

Here’s a new comment on the connection between the EU and the EPO:

In response to ‘EPO is not EU…’, please see http://patentblog.kluweriplaw.com/2018/05/08/eu-bring-unitary-patent-system-control/

Already the economic and academic arguments are being made as can be seen in that article. The EPO is being entrusted with the Unitary Patent, but that will bring the responsibility of harmonising with EU. It does not make sense to have 2 different sets of appeal systems in Europe (The EPO Boards and the CJEU). A single system of control is sensible, and I am sure will come into being at some point.

“Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law.”

Here’s another comment of interest:

I would like to address a number of inaccuracies in (implied) statements in your comment from 7 December.

Firstly, it is the Member States that are bound by the Biotech Directive. The role of the courts is to interpret that legislation, ie to determine the meaning of rules that bind the Member States (and other individuals / entities towards which those rules are directed).

Secondly, only the CJEU is able to provide a binding interpretation of the Biotech Directive. Whilst the views of the Commission and of the Member States may be of interest, they are meaningless if they do not align with the CJEU’s interpretation of that Directive.

Thirdly, there has already been national litigation (in the Netherlands) on relevant claims. Contrary to what you asserted would be the inevitable result, those claims were held by the Dutch court not to be excluded from patentability.

Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law. In this respect, a positive aspect of the Board of Appeal’s decision is that it avoided an outcome that would have been a blatant example of non-compliance with EU law (specifically, with Article 267 TFEU, which is essential to preserving the autonomy and supremacy of EU law).

If the Biotech Directive does not matter and the EPC does not matter either, what does that make the EPO? An outlaw organisation? An organism? If it’s an organism, maybe people can apply for a patent on it.

“There is a large uncertainty regarding patenting of plants and animals exclusively obtained by means of essentially biological processes in Europe,” Valea AB’s Joanna Applequist and Karolina Wiktorson wrote earlier this week. Over at Mondaq, J A Kemp (promoter of antibody patents) seemed rather happy to see this. “We understand that, at an oral hearing held on 5 December 2018 in relation to case T1063/18 concerning an application entitled “New pepper plants and fruits with improved nutritional value”, EPO Technical Board of Appeal 3.3.04 held that Rule 28(2) EPC introduced in July 2017 is in conflict with Article 53(b) EPC. Once confirmed, this will have important implications for EPO practice regarding inventions in the field of plant (and animal) breeding as in principle the Rule can no longer stand or be used to reject patent applications if it does not conform to the Article it is supposed to implement,” J A Kemp’s Andrew Bentham wrote.

Patent propaganda site Managing IP chose a headline that says “Plants patentable in Europe”. How misleading. It’s not actually over yet. Moreover, as we explained some days ago, the EPO is simply enraging farmers, who have already protested such moves. The ramifications remain to be seen, but for a patent office that just strives to increase so-called ‘production’ this may seem (artifiically, on the surface) like a positive development. At what cost?

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