Bonum Certa Men Certa

PACE of Prosecution Prioritised Over Quality of Patents and Examination

Patents are not just for lawsuits unless you're an aggressive firm

Inviting patent aggression



Summary: Patent Prosecution Highway (PPH) puff pieces neglect to highlight the danger of the concept, which promotes litigation at the expense of thorough examination (including proper opportunity for oppositions)

THERE IS a real danger that one day there will be a UPC-like regime in Europe. It won't happen any time soon and if we combat this threat, it will almost certainly fail to materialise. Firms that profit from litigation (whether successful or not) are egging on the Battistellis of the world, urging them to put the burden on defendants, not plaintiffs (accusers). Very dangerous! Lethal in the case of Goliath v David situations.



The UPC, at its core, is about broadening and speeding up litigation. Very bad idea. Applicants sometimes prefer a slower process which properly assesses all the facts, otherwise it's only the lawyers who profit. Various parties need to get involved in order for patents to be correctly assigned and verified.

"It does not improve quality, it probably reduces quality and just like the notorious PACE program it gives some actors disproportional power over others (typically small and vulnerable businesses are affected badly/worst)."Yesterday we found a new marketing/puff piece from Phillips Ormonde Fitzpatrick. It's about PPH. It's an old global system, but it focuses on large, wealthy nations or works in their favour (giving advantage to their national patent offices). The firm focuses on the EPO in southeast Asia rather than the USPTO. Battistelli did some publicity stunts in small countries with barely any European Patents, waving PPH documents as some kind of 'trophy' (or a sign of accomplishment). We covered that earlier this year.

Like ITC, which we wrote about yesterday, PPH presents all sorts of issues, including lack of neutrality and lack of appeals/oppositions window. Putting quick prosecution and potentially embargo before quality control of patents is rather dangerous, but the puff piece titled "The Patent Prosecution Highway gets more traffic" says this: "The PPH framework promotes work sharing and accelerated processing where patent examiners can make use of work carried out by other offices. The framework allows leveraging of an eligible application whose claims have been determined to be patentable in the Office of First Filing (OFF) to go through an accelerated examination in the Office of Second Filing (OSF) with a simple procedure upon an applicant’s request. The intention is to secure more uniform patent rights, improve quality and reduce the search and examination burden on the participating offices."

"They are obviously becoming more and more concerned that antitrust (competition abuse) issues are being raised in relation to patents."That's not what happens in practice. It does not improve quality, it probably reduces quality and just like the notorious PACE program it gives some actors disproportional power over others (typically small and vulnerable businesses are affected badly/worst).

The article (or ad) from Mary Munroe contains a lot of statements we could easily challenge if not successfully rebut, but there's even more eyebrow-raising material out there, including this latest IAM piece about SEPs and patent pools in China. They are obviously becoming more and more concerned that antitrust (competition abuse) issues are being raised in relation to patents. When massive corporations amass patents and merely use these as a tool to bar competition, what good are these patents on a societal basis? We'll give an example in our next post.

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