Evolving and adapting to market needs

Summary: The general or the widely-held (popular) views are changing as expectations from patents, in light of ruinous symptoms such as patent trolls, compel judges to adapt; Europe's adaptation (or ability to adapt), however, has been slow compared to counterparts'

LOOKING at our reference page (or index) for the European Patent Office, we're fast approaching 3,000 posts (about this subject alone). Our writings on this topic have had impact and earlier this week we were contacted by German academia. These matters are being watched closely as there's a legal as well as technical angle to it all. There are also economic aspects and António Campinos, considering his professional background in banking, will no doubt be aware of the financial ramifications. Patent systems cannot be presumed benign just because they grant lots and lots of patents, amassing a bunch of money in the process. The costs associated with these patents are passed outwards. Scholars have long studied these relationships between patents, innovation, and economics. It's not a simple topic.

What compels me to set aside American patent cases and focus on European affairs isn't my European nationality, residency etc. As I've explained towards the end of last year and again at the start of this year, the United States came to grips with the harms of software patents after courts had repeatedly ruled against these, starting with SCOTUS (decisions like Alice and Mayo as formulated or incorporated into 35 U.S.C. ۤ 101) and then the Federal Circuit, the Patent Trial and Appeal Board (PTAB), examiners and petitions in the form of inter partes reviews (IPRs). Nowadays the U.S. Patent and Trademark Office (USPTO) and even the ITC cannot easily issue patents and sanctions. Presumption of infringement/guilt isn't quite there anymore as many patents and allegations are suspect by default; defendants rather than plaintiffs/accusers very often win cases, either for non-infringement or invalidity of the asserted patents. After writing nearly 10,000 articles and short posts about US patents I've decided to mostly monitor the situation and only return to it in case things take a turn for the worse (which is possible but not likely based on the past 2 months' court case outcomes).

"For Europe to have its own equivalents of Alice and Mayo the judiciary will need to enjoy independence from the Office, which measures its performance only in terms of money (or "products" to/from "customers")."It is, on the one hand, troubling to see how the EPO embraced patent maximalism. On the other hand, there's also growing opposition to it, even from insiders. This post from yesterday shows how patent maximalists such as Kevin E. Noonan (the lawsuits business) habitually advocate/promote patents on plants, life, genes/genetics. They fail to see just how irrational it is. They treat nature as though it was invented by (wo)man. That's false. It is a colonialist ideology that persists in the 21^st century and gets sold to the public using propaganda terms (euphemisms like "intellectual property rights" where every single word is a deliberate lie).

Patent maximalism may be waning, but only after decades of unstoppable gains. It was a bubble all along. We take note of the fact that many blogs about patents have become inactive or barely active. It's very easy to demonstrate this statistically, albeit it would require some amount of work (like counting blog items in one's RSS reader). Things have gotten so bad for the maximalists that some have had to change jobs. Blowhards like Gene Queen changed careers after a couple of decades only to be entertained, as per this new press release from Anaqua, in some events where keynotes involve Watchtroll and EPO ("Thomas Bereuter, Programme Area Manager of Innovation Support at the European Patent Academy, European Patent Office (EPO)"). Watchtroll, the Web site, is becoming more and more like a ghost town, with the large majority of the posts receiving no comments (there are no sign-up barriers), the overall number of posts declining, and the editor stepping down/aside. It's not difficult to see the writings on the wall. We dare predict that the next major turnaround will be the demise of software patents in Europe as well as patents on life -- a couple of subjects we shall cover next (in separate posts). For Europe to have its own equivalents of Alice and Mayo the judiciary will need to enjoy independence from the Office, which measures its performance only in terms of money (or "products" to/from "customers"). ⬆