Bonum Certa Men Certa

We've Already Entered the Era When Patents Should be Presumed Invalid

Only lawyers can benefit from patents that are without merit

Graph extrapolated from the EPO
Graph extrapolated from the EPO's own numbers



Summary: The abundance of low-quality patents may mean short-term profits for patent offices and law firms; but we know at whose expense they are profiting and the legitimacy of patent systems suffers as a result

THE European Patent Office (EPO) remains our prime topic of interest. It's about the EPO as an institution we are trying to save/salvage from predators like Battistelli and his chosen successor (and friend) António Campinos. They don't care about the EPO, they just care about the EPO's money, which they funnel into dubious coffers (their friends' and colleagues'). They're looting the EPO whilst likely defrauding the European public.



"We don't regret the EPO focus, seeing that it may gradually lead to results (where the desired outcome is of course truth and justice, not money)."Our focus on the EPO has come at the expense of U.S. Patent and Trademark Office (USPTO) coverage -- something we did in about 5,000 articles, most of which focusing on 35 U.S.C. €§ 101 in recent years. We don't regret the EPO focus, seeing that it may gradually lead to results (where the desired outcome is of course truth and justice, not money).

The US patent system moved in a positive direction in recent years (prior to Iancu's appointment by Donald Trump). Seeing Watchtroll's founder stepping down and resorting to attacks on courts and judges is all we need as evidence. Paula Murgia wrote at Watchtroll on Monday, moaning about the demise of software patents, i.e. the usual. The opening sentence: “It has been one year since my software patent was invalidated in the U.S. District Court for the Southern District of New York.”

"Thanks to the USPTO pursuing nothing but money she got a bad patent that would never withstand a trial/courts' scrutiny."Too bad, eh? All these patents are bogus, fake and worthless. Thanks to the USPTO pursuing nothing but money she got a bad patent that would never withstand a trial/courts' scrutiny. The lawyers alone profit (from the fruitless proceedings). During the weekend we put in our Daily Links many more examples like that. Rarely do such patents withstand a challenge. The above was mentioned by Benjamin Henrion, which is as close as we'll get to citing Watchtroll (we don't link to it anymore, as it's a combative site that attacks actual judges). On Monday we also saw Michael Borella commenting on Example 46 -- an example by which the USPTO hoped to be helping applicants cheat the law to get fake patents just so that USPTO administrators can make more money (and lawyers then have something to fight over). To quote:

Last month the U.S. Patent and Trademark Office published an update ("October Update") to its subject matter eligibility guidance. As we noted at that time, the October Update is more evolutionary than revolutionary, and primarily serves to provide clarifications to the more substantive January Guidance. Nonetheless, the USPTO did provide four additional examples applying its revised test for subject matter eligibility under 35 U.S.C. €§ 101 to hypothetical claims. Here, we discuss Example 46.

The background, of course, is 2014's Alice Corp. vs. CLS Bank Int'l Supreme Court holding. Therein, the Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under €§ 101. These parts are denoted by the USPTO as steps 2A and 2B, respectively (step 1 is to determine whether the claimed invention is one of the four statutory categories of subject matter set forth in €§ 101, and is rarely at issue in practice).


Why does the USPTO advise people to overcome Alice? Look no further than the leadership, notably Iancu and his deputy. Trump is putting the litigation 'industry' back in charge of the Office, but they cannot control the law (courts), can they?

"Courts outside the EPO would reject these sorts of patents."The issue prevails in Europe as well and it even exacerbates over time. The EPO simply does not have any concept of justice (neither inwards nor outwards). Well, software patents in Europe are not legal, for example, but litigation firms keep pushing them (citing the Office for 'support'). The latest software patents promotion is marketed as follows in Twitter: "The EPO acknowledged a number of technical aspects of a method of organizing a database for sequences of time-stamped records..."

Courts outside the EPO would reject these sorts of patents. "To assess patents you must look at the record peripheral to the EPO," I responded to them.

A comment has meanwhile been posted in IP Kat to say: "I doubt that the fathers of the EPO wanted it to merely grant patents being simply a kind of guideline and the rest to be fought out in national courts."

It also said: "The EPO should also publish a study to see how many patents are nullified or severely limited in front of national courts. The presumption of validity still applies, but it looks more and more like a giant with very fragile feet."

They've shut down a study on quality because they did not like the result.

Here's the full comment:

Dear Sing-A-Pore,

That the UK Supreme Court wanted to go away from the famous Improver decision is one thing. The pemetrexed case is however anything else than a model. On the one hand it is a premium for slapdash drafting and one the other hand, it has made a founded FTO study nearly impossible.

It is true that in the new protocol on Art 62 after EPC 2000, the notion of equivalents was introduced, but during the diplomatic conference, the member states refused to endorse the definition of equivalents proposed by the EPO. So it is very easy to talk about equivalents, when everybody can understand w2hat he wants under the topic.

That on top of it Lord Neuberger found it necessary to criticise the examiner for having raised an objection under Art 123(2)is neither fair nor correct. This attitude shows a clear lack of knowledge of EPO procedures and case law.

The applicant only had examples for pemetrexed disodium in his application, but wanted originally to claim the association of any antifolate with vitamin B12, then pemetrexed in general, without the faintest support for it. The examiner had no choice but to raise a problem of Art 123(2), what was claimed was not supported by the original disclosure.

By the way, the court of 1st instance in the Netherlands was not impressed by the behaviour of the applicant during examination and refused to consider that anything else than pemetrexed disodium was originally disclosed.

At the EPO, the applicant wanted a quick grant, and never tried to bring in any proof that any salt of pemetrexed could work. He could have filed further experimental data or even file a divisional application to try to argue for a broader scope of protection. Nothing of this kind was brought forward or even envisaged.

I doubt that the fathers of the EPO wanted it to merely grant patents being simply a kind of guideline and the rest to be fought out in national courts.

Patents should be granted for improvements over the prior art, and not merely for some kind of possible guideline. If the EPO would do this, then it would price itself out of the market, as it cannot ask the price of a Rolls and deliver a kind of Mini having merely 4 wheels and some doors, and that the actual finishing touch is debated in front of national courts.

The EPO should also publish a study to see how many patents are nullified or severely limited in front of national courts. The presumption of validity still applies, but it looks more and more like a giant with very fragile feet.

Even if only 5% of patents are opposed before the EPO, in 2/3 of the cases the patent comes out battered from an opposition procedure (roughly 1/3 revoked, 1/3 maintained in amended form, i.e. limited) and only in 1/3 of the cases the opposition is rejected. Also something to think about when discussing quality. A linear extrapolation is certainly inappropriate, but there is food for thoughts.


This is the kind of comment that we miss. Back in the old days IP Kat spoke about these issues and did not delete comments that did too. Today's 'Kats' are litigation fanatics and yesterday Frantzeska Papadopoulou worked to keep the "hey hi" hype going. In relation to patents Papadopoulou wrote: "Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus. Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices."

When did the 'Kats' last question the EPO's legitimacy and its courts' record on justice? When the team is led by people from AstraZeneca and firms that represents patent trolls (Bristows for example) are such viewpoints even permitted?

"When did the 'Kats' last question the EPO's legitimacy and its courts' record on justice? When the team is led by people from AstraZeneca and firms that represents patent trolls (Bristows for example) are such viewpoints even permitted?"The situation in Europe has gotten rather grim. Based on a recent presentation from Dolmans, whom Henrion cited and quoted/paraphrased yesterday [1, 2, 3, 4, 5] (the original is a PDF): "only 5% of times patent trolls the patent is found valid (Germany) … NPEs are still very well alive: Conversant, Unwired, Planet, Polaris, Avanci, HEVC, Intellectual Ventures, IPCom … patent trolls win more often in Germany … Patent trolls litigation is also growing in the EU … Germany's bifurcated patent system might be illegal under the 'proportionaly' principle of IPRED1 directive, also present in UPC https://www.scribd.com/document/435184574/19-11-12-Maurits-Dolmans-Proportionality-in-Patent-Injunctions …"

Matteo Pes, an attorney whom we respect for sincerity on some subjects (such as UPC realities), responded on Twitter [1, 2]: "In the long run the bifurcated system might attract more and more NPE (trolls). On the other side, I like the sensibility and the competence of the BpG in deciding on validity. [...] in my experience the bifurcated system really favors the #patent owner from the very beginning of the #litigation. The defendant must be ready to face loss of the first instance, because the #patent Federal Court BpG usually doens't deliver before the first instance ends"

"Does Germany's leadership strive to become EDTX and adopt the 'Gilstrap model'?"The emergence of patent trolls in Europe isn't exactly news. Germany's government looks the other way when the EPO (on German soil) grossly violates all laws, including German law. Battistelli should have been arrested for some of the things he did. But not even an arrest warrant was issued. The reluctance to arrest EPO officials for their crimes (committed in Munich, Bavaria) shows that the last thing this government cares about is the Rule of Law (just quick money). It gives a carte blanche for trolls and bullies whose patents they know to be worth nothing; more favourable to pre-settlement over meritless 'cases'. Does Germany's leadership strive to become EDTX and adopt the 'Gilstrap model'? Will Germany become to Europe what Eastern Texas is to the United States?

Recent Techrights' Posts

Gemini Links 07/09/2026: Music Composition, Free Stuff, and Self-hosting Git Repos
Links for the day
Silent Layoffs, Cool-down, and Cool-off: How GAFAM and IBM Operate (the Law Doesn't Apply to Them)
Laws? What laws?
 
Getting Better After 20 Years
Exactly two months from now this site is turning 20
EPO Hiding Cocainegate and Abandoning Transparency (Even Access to Very Basic Information is Denied)
The EPO isn't just becoming like a private for-profit corporation. It's also becoming more secretive.
Richard Stallman Has Resurrected Lost Updates
We didn't ask about it
SLAPP Censorship - Part 174 Out of 200: Cascading Scandals and a Path Towards Much-Needed, Long-Awaited Reform
Reform the UK's law, not "Reform UK"
EPO's Gema Requena Sempere (PD People) Contacted Regarding Children With Disabilities
In the coming week we may be in fruitful contact with some media regarding EPO scandals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 06, 2026
IRC logs for Sunday, September 06, 2026
People Who Enforce the GPL Banned From Linux Foundation Board (After Bribes From Prolific GPL Violators), Now They're Banned From Giving Talks at Events
about the "LF" ('Linux' Foundation)
Gemini Links 06/09/2026: The Slop Plagiarism 'Holy War' (Hype, Scam, Scheme), Burning CD-Rs, and Hardcopy Mono
Links for the day
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part IV - Insufficient Resources in the Face of Distributed Denial of Service (DDoS) by Lawyers
it's about 120KG
OpenStreetMap is the Future, Dictatorship is the Past
OpenStreetMap helped us check maps for transport, various overlays with addresses, and there was 0% reliance on GAFAM or "Google" anything
How Strikes at the European Patent Office Are Seen by Striking Staff in Berlin, Germany
We have some more EPO scandals to cover later this year and next year
Association for Computing Machinery Cites Techrights in Relation to GemText and Gemini Protocol
published yesterday, Open Access
Links 06/09/2026: More XBox Trouble (Microsoft Unrest, Many Silent Layoffs This Month), John Duffy as Next USPTO General Counsel
Links for the day
Gemini Links 06/09/2026: Avoiding 'Smart' 'Phones' and Setting up Gemini for the First Time
Links for the day
Links 06/09/2026: Sabotage by Slop and "What Happens If 'Open' 'AI' Dies?"
Links for the day
How Back Doors Became the 'Normal' or 'Norm'
"We also allowed a lethal monoculture to fester"
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part III - The SRA is Vastly Worse Than Brits Realise, We Have a "Wild West" in London
In the next part we'll begin looking at correspondence with the SRA
SRA and Manslaughter: How the SRA Contributed to Agony in Proprietary Software Scandals With Clear Misuse of "Without Prejudice"
Trying to prevent the public from finding out the criminal stuff that went on, resulting in many deaths
Canonical (or Ubuntu) Rejecting IRC Isn't the Widespread Trend
Internet Relay Chat (IRC) adoption still growing by some yardsticks
SLAPP Censorship - Part 173 Out of 200: Two Years
It was exactly 2 years ago that we filed lawsuits against Garrett
Linux of America
We could not help but notice GNU/Linux in North America yesterday
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 05, 2026
IRC logs for Saturday, September 05, 2026
Gemini Links 06/09/2026: Internet Limiting (Limited Time Allotted) and Solar MiniServer
Links for the day
Eight Months of Strikes in EPO, Organised by the Staff Union (SUEPO) Also in Berlin
In Berlin, only one member of staff voted against the action plan
Links 05/09/2026: "Let’s Stop Buying New Phone" and 'Open' 'AI' (Proprietary Slop) Drowning in Lawsuits
Links for the day
Gemini Links 05/09/2026: Polarization, Warped Maps, and Emacs rectangle-number-lines
Links for the day
Software Freedom, Even If Difficult to Attain Due to Outside Pressure, Does Make You Happier
Peer pressure and opinionated employers can make friends and staff more miserable if they dictate bad software
You Can Run GNU/Linux on a Desktop/Laptop for 1,000+ Days Nonstop
To me, the long uptime is a way of "marketing" GNU/Linux as robust and stable
Profiting From Global Warming (and Making More Money the More You Cause Warming)
Unregulated bank and pyramid scheme
SLAPP Censorship - Part 172 Out of 200: The Solicitors Regulation Authority (SRA) Complicit in the SLAPPs by Inaction (Didn't Even Study Any Evidence, Only Wasted Time and Budget)
"SRA placed into special measures due to 'disappointing standard of leadership'"
China Does Not Need American (US) Products Like GAFAM's
China has abundance of technical things it can leverage to preserve its autonomy
RMS Didn't Make Enough Backups
Making backups is important
Refresher: Why EPO Staff is on Strike This Year (Aside From the EPO Acting Like a Corrupt, Above-the-Law, For-Profit Corporation That Violates Its Own Charter)
One core issue at the EPO is erosion of purchasing power
Gemini Links 05/09/2026: Fireflies, Shore Pine, and ASCII Art
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 04, 2026
IRC logs for Friday, September 04, 2026