09.20.16
Posted in Deception, Europe, Patents at 1:47 pm by Dr. Roy Schestowitz
Thank you for smoking! It’s good for your health. Honest.
Summary: Benoît Battistelli and Team UPC continue to meddle in politics and mislead the public (through the press) about patent quality as well the UPC, which is now in effect sunk inside the ashtray of history
PATENT law firms from Europe and abroad are conspiring against democracy using echo chambers that discuss the UPC. They set up private events, they pressure politicians behind closed doors, and they’re stuffing panels so as to ensure no dissent is publicly visible. This mirrors a lot of what we find in CETA, TISA, TTIP, TPP and so on. Watch what EPO and Battistelli have been doing regarding the UPC as of late. It’s the same thing European politicians now do for so-called trade deals. It’s truly appalling and it has got to be stopped. It makes EPO management look as crooked as can be. It harms the image of the Office and tarnishes the reputation it so heavily relies on. Battistelli is truly destructive and delusional (by his own choice); insiders know it and it’s hardly shocking that he has a 0% approval rating among staff.
At the EPO, particularly under Battistelli, open tenders are a joke. We wrote several articles which help illustrate it. According to this tweet (we don’t wish to link directly to the EPO’s Web site as it can facilitate spying/tracking), “[c]ivil maintenance suppliers interested in bidding for tenders on the new EPO building should join us for this event” (as if they will get a fair tender under Battistelli!).
“Battistelli is truly destructive and delusional (by his own choice); insiders know it and it’s hardly shocking that he has a 0% approval rating among staff.”Meanwhile, judging by what we see from Andrew Chung (who offered a platform for the liar last week), Battistelli continues to meddle in everything. He thinks he’s the God of Europe, which helps explain the vanity with which he responds to European politicians who inquire about his abuses. “Q&A: Benoît Battistelli, top European patent official, on patent eligibility and Brexit” is the title of the latest piece from Chung and as one can expect, no fact-checking or plurality of views is permitted. The liar just keeps lying about everything.
Expect the EPO to have already sunk to USPTO levels of patent ‘quality’ (we have new material on the way with which to demonstrate this) and expect Brexit to have already killed UPC. It’s the consensus, unless one asks Team UPC, which is another bunch of chronic liars. They lie for a reason as they still have some hope and projecting this hope, they believe, can hand them a miracle. Watch this new press release about integration of USPTO and EPO data. Is this the future? “Wellspring,” it says about itself, “the global leader in software solutions for tech transfer, intellectual property, and tech scouting, today launched the Advanced Patent Utility (APU) for Wellspring’s software products. The APU feature brings together several automated features for updating intellectual property data, including new functionality to synchronize patent records with critical information and changes in status in patent offices’ databases.”
“It seems evident that Battistelli is meddling in Italian politics for the UPC, which is a dead project (don’t believe the hype).”One does not require such a service because the data is already available online (or up for sale in bulk) from the patent offices. Regardless, the EPO no longer has quality control, so many of the registered patents are questionable, especially recent ones (from the Battistelli era of hasty rubberstamping). It has gotten so bad, say insiders, that sooner or later there might be no examination at all. So don’t believe the hype/myth spread yesterday by the EPO; they try to maintain the illusion of quality because they know it’s a problem, which means that the lie needs to be repeated again, and again, and again[citation needed]…
The liar spoke the other day at a public event, AIPPI. The EPO posted a photograph of the naked emperor and said: “President Battistelli spoke @ #AIPPI2016 on how EPO is keeping quality high while speeding up the process for users” (total nonsense, except the speed, which obviously compromised quality).
According to several insiders (like this one) and also alerts we have received, the media in Italy helped Battistelli lie about the UPC and also about Brexit (we expect to have English translations soon). It seems evident that Battistelli is meddling in Italian politics for the UPC, which is a dead project (don’t believe the hype). What a bunch of chronic liars the media is quoting, probably without even realising it (because it sounds flattering to Italy’s theoretical role).
The UPC has “prerequisites that represent the final nail in the coffin for the UK’s participation,” wrote even what we believe to be a patent attorney/practitioner. To quote a new comment in full:
I find the legal opinion mentioned by Meldrew to be very interesting indeed.
The legal arguments are certainly well considered, as are the various points that the authors of the opinion believe are essential prerequisites to the UK’s participation in the UPC. However, in my view, it is the nature and number of those prerequisites that represent the final nail in the coffin for the UK’s participation.
Not only would multiple (national and international) new legal instruments be necessary, but the EU would need to agree to various amendments to the legislation governing the jurisdiction of the CJEU. If that were not a tall enough task on its own, then the final pieces of the puzzle make the task virtually impossible.
Firstly, the UK would (with regard to cases before the UPC) need to submit to the supremacy of Union law in its entirety. It is very difficult indeed to see how this could be done when the UK is not an EU Member State, particularly as cases involving IP rights before the UPC could touch upon issues covered by a wide range of different EU laws (eg competition law, the Biotech Directive, other EU legislation containing provisions affecting patents or SPCs, and general principles of EU law). Is it really possible that the UK government would accept being bound, post-Brexit, by such a range of EU laws (including potential future EU legislation) just to ensure that the UPC goes ahead?
Secondly, the UPCA would need to be amended. Whilst that is clearly possible, there is the question of when the relevant amendments would be made. Whilst those amendments could be made in anticipation of all of the other conditions for the UK’s participation being met at a later stage, are the other Contracting Member States to the Agreement really going to agree to this instead of pursuing alternative amendments that would eliminate the need to rely upon the UK’s participation? Perhaps this will happen, but the evidence suggests otherwise (particularly the various attempts that have already been made to argue for new homes for the divisions of the UPC allocated to the UK).
Perhaps it is time to stop flogging this particular horse and instead focus efforts upon finding an alternative way of reaching the desired destination.
“The UK’s continued participation would require it to submit to EU law regarding proceedings before the Court,” said elements of Team UPC, such as CIPA (see the latest). For those who don’t know, CIPA is a parasite that merely advocates for the profit of the patent microcosm. We wrote about it in the past. As for the UPC, it is totally antidemocratic, it is an injustice, and it is thankfully dead by now.
“…in my view, it is the nature and number of those prerequisites that represent the final nail in the coffin for the UK’s [UPC] participation.”
–AnonymousMathieu Klos from Juve wrote that “CIPA has a strong preference for UK to participate, if a solid legal basis can be agreed http://www.cipa.org.uk” (obviously CIPA wants it, but it should hardly be a dot org, it’s just a front group of the patent microcosm).
Here is what WIPR, a London-based site, wrote about it [1, 2]. AIPPI is the second UPC propaganda event in less than a month (the first one was set up by the London-based Managing IP (MIP) [1, 2, 3, 4]). Team UPC’s lobbying is now on overdrive, several months after Brexit and about a year away from the end of Battistelli. “At the Managing IP European Patent Forum in Munich on September 6,” one attendee told us, “a senior partner from Marks & Clerk, after [the EPO's] Margot Fröhlinger’s talk, asked the audience how many people thought that the UK would ratify the UPC. Not one single person raised their hand. That never made it into the MIP write up!”
“…a senior partner from Marks & Clerk, after [the EPO's] Margot Fröhlinger’s talk, asked the audience how many people thought that the UK would ratify the UPC. Not one single person raised their hand. That never made it into the MIP write up!”
–AnonymousWonderful, isn’t it? Agenda masqueraded as reporting. We advise readers — whether they’re connected to the EPO or not — to ignore all the UPC noise in ‘IP’ media. A lot of it is paid-for nonsense. There’s a lot of PR money coming out of Battistelli's palm at the expense of the EPO and it is just the EPO and Team UPC (and their large clients) who are trying to bamboozle us again. Self-fulfilling prophecy tactics would have us believe that UPC isn’t dead even when it is.
“I’d like to see politicians working to shoot down the UPC,” I told this person today (Walter van Holst speaking about the secretive CETA), “but the patent cartel hides it from them, then misleads them and pleading for ratification.”
Not only European firms are doing this. Here is Fish & Richardson PC from the US sticking its nose with “Legal Alert: A Path to the UPC” (alarming and misleading headline).
“Unless Milan renames itself “London” the UPC in its present form is dead and buried.”To quote their conclusion: “In other UPC and UP news, the lower house of Italy’s parliament approved legislation this past week, which would permit Italy’s ratification of the UPC Agreement. Milan is a leading candidate to replace London as the site of the UPC central division that will deal with life sciences patent litigation, if the UK no longer participates in the UPC.”
This will never work. Unless Milan renames itself “London” the UPC in its present form is dead and buried. “A UPC post-Brexit will take years to build and not just because of the UK,” one person remarked, “keep an eye on Germany too.”
“At best,” said IAM’s editor (typically one of the most vocal proponents of the UPC), “UPC likely to be significantly delayed by Brexit. At worst? Well, current system suits Germany fine :-)”
“Why would anyone listen to these people whose track record when it comes to truth is so poor?”One might think that this sobering take from IAM would be enough to quiet down/silence Team UPC, but firms like Bristows invested so much in the UPC that they’ll cling onto anything within reach. Bristows are, as expected, at it again with UPC promotion, showing their utter disregard for democracy both in the UK and in the EU. Judging by this report from IAM (mentioned here with sneaky remarks ensuing), Bristows still leads the charge. To quote a written account from AIPPI: “Testament to the interest – and concern – of the IP community in what the future holds for the UPC and unitary patent was that the first of two sessions on the subject was packed out despite being held at 8:30 on a Sunday morning. The second session will be held tomorrow morning and is split into two parts. The first will look specifically at what Brexit means for the UPC, while the second will be a UPC mock trial. I caught up with the moderator of the trial, Alan Johnson, partner at London based law firm Bristows and chair of the AIPPI’s unitary patent/UPC committee, to discuss where we go from here.”
Kluwer UPC ‘News’, another prominent element of Team UPC, also pressed the UK to ratify two days ago [via Bastian Best]. This nonsense from Team UPC would have us believe that UPC can become a reality without the UK (to begin with). It cannot. Look at how it’s written.
“Team UPC actually advertised UPC jobs that did not exist and probably will never exist.”“Team UPC is inherently antidemocratic, as it has repeatedly proven,” I told Benjamin Henrion after he had called it “the sign of an undemocratic system.” It is so similar to what is happening when it comes to trade deals, as Henrion noted separately.
Why would anyone listen to these people whose track record when it comes to truth is so poor? Team UPC actually advertised UPC jobs that did not exist and probably will never exist. They allocated and set up a court in London before there was even ratification. What a nerve they have. Is there a penalty for bogus job advertisements? █
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Posted in Europe, Patents at 12:30 pm by Dr. Roy Schestowitz
Like his political ilk in France, Battistelli is a “big government” proponent who does not mind even torturing people (as if his personal ends justify the means)
Summary: An update on the situation which still causes great unrest at the European Patent Office (EPO), namely abuse of staff by the so-called Investigative Unit (Eponia’s equivalent of unaccountable secret services)
An article about the EPO’s Investigative Unit has been long overdue. It’s like the goons or thugs of the Office, or the militant guards of Team Battistelli, which are complemented by a fleet of bodyguards in spite of low threat levels. Staff is subjected to scans as though it is boarding a plane and sometimes subjected to psychological torture. Almost everyone we hear from says that working for the EPO is a nightmare if not torture; some seriously think about leaving. They can’t take it anymore. It wasn’t always the case; Battistelli made it so. Over the past couple of years the EPO has been acting like a frightened state with secret services and armed bodyguards, not like a public service or institution. We already published a series of articles about it last year [1, 2, 3, 4, 5, 6, 7]. Nothing at all has changed for the better; in fact, things have gotten even worse. Things continue to exacerbate and lying has become so chronic that next month there will be a whole “report” and “conference” to tell the world that EPO staff is happy. Even North Korea has not yet stooped this low…
“External quality review of the EPO investigative function” was not too long ago sought by particular EPO workers. “The administration has started an “external quality review of the EPO investigative function”,” they wrote, and one “can find an in-depth analysis of the investigation guidelines and the functioning of the Unit…”
We have made a local copy of it [PDF]. The document is 14 pages long so we haven’t converted it to HTML. Instead, “short observations on the review process” can be found below:
Investigating the EPO Investigative Unit – a peer review?
Introduction
When the Investigation Guidelines were adopted, a review was foreseen after three years, i.e. early 2015. At the time Mr Battistelli did not seem interested. That has changed: in its December meeting the Administrative Council insisted on a review, not only of the Guidelines but also of the Unit itself. Ms Bergot has now informed the CSC that an external review of the EPO quality function will soon take place. That could be good news, or it could be a white-washing exercise.
External review of the WIPO Investigation Function
Interestingly, a very similar review has taken place in WIPO only half a year ago. The external reviewers were a “senior investigation officer” from an UN organization, Mr Sébastien Godefroid and Mr Claudio Zanghi, head of the EPO Investigative Unit. The EPO Investigative Unit is hardly a best practice example. Maybe not surprisingly the report recommends strengthening the WIPO Investigative Unit by hiring staff, providing less information to the accused, and making access to electronic data easier. Data protection issues are not even mentioned in the report.
External review of the EPO Investigation Function
The two external reviewers selected by the EPO are Mr James Finniss, who is currently Deputy Director of the Investigation Division of the UN Office of Internal Oversight Services (OIOS), and Ms Olivia Graham who is Ethics Officer at the International Monetary Fund, i.e. both are working for international governmental organisations. This almost certainly means that the standards applied will be those common in such organisations. Almost all international organisations show a lack of transparency (excess demands of confidentiality), a lack of accountability (no truly independent overview, immunity of suit) and a lack of respect for staff rights (fundamental rights, labour rights, data protection e.a.). The circle of investigators working in international organisations is furthermore rather small. They form a rather tight-knitted community: they regularly visit each other, meet at conferences etc. To have this relatively small group of people assessing each other in turn would not seem the best way to guarantee independence.
To quote from the corresponding PDF:
The application of Circular No. 342 in practice has confirmed fears expressed by staff representatives prior to its introduction. The Circular has been used to transform the EPO into a “police state”. The most relevant issues in this regard are summarised in the present document. In particular, it is noted that investigators are immune from any independent external control or oversight and there is no effective means for holding them to account for any irregular or otherwise disproportionate actions involving breaches of internal EPO regulations or national law.
Regarding so-called investigators — the ones whose jobs were advertised almost a year ago — a couple more got hired and “the general reaction is,” according to a source of ours is: “Hell, another bunch of parasites we have to feed” (people who produce nothing).
Big government, eh?
“The boards of appeal,” our source added, “will lose some relatively young members due to retiring.” We guess they know what’s coming. We don’t think there are any job openings advertised at present for the boards. This, perhaps, is just what Battistelli prefers. As the UPC won’t happen (at least not any time soon), Battistelli is now stuck between a rock and a hard place. The Office is collapsing and there’s no remedy. They’re scaring away all the skilled people and are unable to recruit equally-skilled replacements. Europe will suffer. █
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Posted in America, Microsoft, Patents at 11:54 am by Dr. Roy Schestowitz
Although not centrally orchestrated (top-down/peer coordination), the patent microcosm in the US knows what it is trying to accomplish
Summary: Microsoft is pursuing more Linux ‘patent tax’ (using software patents) and patent law firms are preoccupied flooding the media with their shameless self-promotion which is also software patents promotion
OVER the past week we repeatedly wrote about our expectation which turned out to be true. McRO has truly become the latest go-to case when a patent law firm tries to fool software developers into pursuing patents on algorithms, even in a climate that is so hostile towards them. One aspect of it which we mentioned here twice before was Microsoft’s role. Here is a direct link to what Microsoft said in its lobbying blog (later cited by numerous Microsoft advocacy sites, in order to give it the veneer of “news” or “report”). From the company that brought us patent lawsuits against Linux, e.g. Microsoft v TomTom comes yet more advocacy of software patents. And they tell us that they “love Linux”? This may mean that Microsoft would be happy also with the CAFC case that it lost to Enfish, as this outcome was desirable for software patents in general. In other related news, this new report from the Microsoft-friendly IAM, citing another report from Korea, reminds us that Microsoft wants more money from patents, now in terms of a refund of tax. This probably alludes to taxation on money from LG and Samsung, which both surrendered to Microsoft nearly a decade ago. Microsoft signed patent deals specifically covering their use of Linux (we covered this in 2007) and Microsoft now wants more money from this extortion (using software patents which are probably not even valid) and is suing the Korean authorities for it. What a bunch of thugs. ‘New’ Microsoft they say? Loves Linux? What a load of nonsense. To quote IAM: “Korean newswire Pulse recently reported that Microsoft had filed a claim with the country’s internal revenue services requesting the return of 600 billion won ($533.1 million) in corporate taxes it had been charged on patent licence fees and royalties paid to it by Korean businesses. The US company argued that it had been taxed on licences relating to patents covering jurisdictions other than South Korea, when the government of that country should only be able to collect revenue on patents applied for and issued domestically.”
Put in very simple terms, Microsoft, which is openly calling for more software patents, continues to use these to tax Linux and wants even a higher share of the money squeezed out of successful companies. Microsoft has attacked Linux users with software patents for about a decade (raising the costs of everything) and now it sues the Korean tax authorities to get additional extortion money. Coming from one of the world’s biggest tax evaders, which also got caught engaging in financial fraud, surely this takes some nerve and audacity. One can only hope Microsoft layoffs will accelerate fast enough to remove it from the planet (there have been Microsoft layoffs for a while and this month there are Microsoft layoffs in the UK). Recall that Microsoft also pays David Kappos to help resurrect software patents, in his capacity as former Director of the USPTO. It may not be classic bribery but lobbying. He is one of the fiends responsible for the biggest software patents push right now; he is a malicious, greedy man. Software patents remain a key issue that determines success/failure of FOSS; Section 101 is a possible solution and they try to put an end to it. We need to work against a huge patent microcosm which plays dirty behind closed doors. Unpatent is “fighting the smoke rather than the base of the flames,” told me one person yesterday and the President of the FFII thinks so too. Unpatent has good intentions, no doubt (I spoke to its founder several times), but it won’t ever work towards resolving big issues like this massive lobbying push which targets or strives for purely legislative changes (system-wide).
So who else is promoting McRO this week? Pretty much everyone who would be profiting from an upswing in software patents. Here is Watchtroll promoting software patents again (in the form of a “Free Webinar”) and here are some so-called ‘analyses’ or articles from today and yesterday. To quote just the headlines, “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”, “McRo v. Bandai: Evidence related to claimed improvement is key to whether claims are directed to an abstract idea”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis”, “What the Federal Circuit’s Decision in McRO v. Bandai Could Mean for Computer-Based Inventions and Other Innovations”, “McRO v. Bandai: Latest Federal Circuit § 101 Decision Breathes New Life into Software Patents”, “McRO v. Namco – Fed. Cir. Reverses s. 101 Invalidation of Animation Method Patents”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit is In Sync with Patent’s Validity Under Section 101″, “Gone Enfishing: Software Patentees Reel in Another Huge Win at the Federal Circuit”, and “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”. Every single one of these was published by a patent law firm and they effectively flood news feeds with these (the signal, or actual journalism covering this case, has been washed away by now). These people are just trying to attract clients and we are still seeing lots of these patent law firms piggybacking McRO to promote software patents and make their sales pitch. Judging by what happened after Enfish, this can carry on for weeks to come. Utterly misleading and self-serving — that’s what it all about. This perturbs public understanding of the case. There is hardly even any pretense of balance when it comes to software patents whenever patent law firms just try to sell us more lawsuits.
The patent laws we have typically get written by politicians who are lawyers and lobbyists, not scientists like software developers, hence the sordid state of affairs. Watch how Bilski Blog is attempting to discredit courts for not understanding science, as if patent law firms are that much better at it. From the latest part of “Bad Science Makes Bad Patent Law”:
The Supreme Court in Mayo acknowledged that “Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature.” Indeed. And it is precisely because the courts cannot make such distinctions, that the Supreme Court needs to correct the problem it created by adopting a more scientifically coherent approach to laws of nature.
It’s been argued that it’s too soon for the Court to take up another patent eligibility case, having only recently decided Alice. But it’s been just over four years since the Mayo decision. The Supreme Court “corrected” Parker v. Flook (1978) only three years later in Diamond v. Diehr (1981). And fixing this problem is necessary before more patents (and patent applications) are improperly invalidated for important inventions in diagnostics and treatments.
The Court had that opportunity in Ariosa but it denied Sequenom’s cert. petition. Now the Court has the opportunity again. Genetic Technologies has filed for certiorari. The Court should take up the case for the reasons I’ve articulated in these posts.
More specifically, the Court can address two issues. First, the Court can articulate a more complete and “patently” useful definition of a law of nature. In the past, the Court has expressed a particular distaste for bright line rules in the patent law, preferring instead flexible standards. Consider the Court’s rejection of the “machine-or-transformation” test in Bilski, and the rejection of the “teaching-suggestion-motivation” test in KSR. However, the Court’s current definition is such a bright-line rule, by making any natural relationship a de jure law of nature. A revised definition need not be perfect, only more in concert with current scientific theory and practice.
Australia, which still has issues with software patenting (developers of software oppose these, but they have little or no impact on the law), inherits a lot of the ills of the US patent system. One patent law firm from Australia asks, “Does Australia Have a (US-Style) Two-Step Test for Patent-Eligibility?” These systems are inherently different, but proponents of software patents (like the author in this case) try to assimilate them. To quote:
In its Mayo/Myriad/Alice series of cases, the US Supreme Court has established a two-step test in order to determine whether a claimed invention defines patent-eligible subject matter or not. In the first step, the claims are examined to determine whether they are ‘directed to’ a patent-ineligible concept, i.e. an abstract idea, law of nature or natural phenomenon. If not, then the subject matter of the invention is eligible for patenting. Otherwise, the analysis proceeds to step two, in which the claims are further analysed to determine whether or not they comprise some additional element, or combination of elements, that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’
That latter part alludes to the loophole often used inside the EPO or even in New Zealand. it often seems as though the USPTO gets more similar to what used to be the EPO while the EPO becomes more like the USPTO pre-Alice. In fact, some people theorise that Battistelli is trying to attract the bottom of the barrel by welcoming all the worst patent applications which even the USPTO would reject. This is a recipe for disaster.
As an aside, there is pressure to impose software patents on countries that don’t formally have them. For instance, the media in Taiwan says that the ITC “launches probe into alleged patent infringement by Advantech,” noting that based on “the complaint filed by Rockwell in August, the three accused firms violated the U.S. law by importing into the U.S. market and selling industrial control system software, systems using the same, and components that infringe upon patents…”
These are software patents by the sound of it. These threaten to embargo physical products from Taiwan, where some of the best products are made (in several sectors). So much for innovation… █
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Posted in America, Patents at 10:45 am by Dr. Roy Schestowitz
When all that seemingly matters is money, not innovation and society’s wellbeing…
Summary: Low patent quality, abusive litigation (e.g. by patent trolls) and various other elements that globally discredit the USPTO are only symptoms of a wider problem, which is a greedy system motivated by neo-liberal values rather than professionalism and servitude
YESTERDAY we wrote about patent lawyers that had engaged in plagiarism during the preparation of documents like briefs. It put patent lawyers in a not-so-flattering light and today we have this article about an outcome that says plagiarism of this kind of definitely not Fair Use, which means that some patent lawyers, who insist on respect for patent law, do not respect copyright law. To quote:
We’ve talked about online electronics retailer Newegg quite a few times here on Techdirt, usually in the context of its noble fight against patent trolls. I, personally, have a lot of respect for Newegg’s Chief Legal Officer, Lee Cheng. So it surprised me a bit to see that Newegg is suing another lawyer for copyright infringement on one of its briefs. And, so far Newegg is winning, as the judge has ruled that using the brief is not fair use.
The details here do matter. The defendant, lawyer Ezra Sutton, had worked alongside Newegg in one of the many patent troll lawsuits. Sutton was representing another company sued in the same lawsuit as Newegg by a patent troll, Adjustacam. They had won the case against the troll, and both Newegg and the company Sutton represented, Sakar International, filed motions seeking attorneys’ fees.
It was Patently-O that earlier on wrote about this topic and it now has this new article about patent malpractice in which it’s said:
The malpractice claim arose out of an interference proceeding and has an interesting twist. The lawyer needed to claim priority to an earlier-filed Japanese patent application that had been domesticated through a PCT. The Japanese application and the PCT were in Japanese. Regulations required that a motion to claim benefit had to include English translations of the earlier applications in the claim. The lawyer filed a US translation of the (first-filed, obviously) Japanese application, but not the PCT.
The Board awarded the earlier Japanese filing date. Seed won.
The Federal Circuit reversed. It held that without the English translation of the PCT, the Board erred in awarding giving the application the filing date of the Japanese application, and, as a result, Seed lost the interference.
Hence the malpractice case.
This article speaks of a Japanese application, i.e. application from the new hotbed of patent trolling (we wrote about this earlier this month). It seems clear that some of the abusive elements which the USPTO became infamous for are now penetrating east Asia, not just Europe (because of Battistelli with the direction he chose for the EPO). China’s patent bubble, for example, is truly a problem — an observation that even a new survey seems to support.
We often write about the EPO and frequently complain about the decline of patent quality there, not just alleged fraud. Expect us to write a lot more about it in the days or weeks to come. The EPO is gradually becoming another USPTO (and it’s not a compliment). █
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