08.15.17

The Collapse of Patent Quality at the EPO is Inviting to Europe Some of the World’s Worst Patent Trolls

Posted in Europe, Patents at 1:36 pm by Dr. Roy Schestowitz

European Patents (EPs) too are now weapons of blackmail and extortion

Summary: As troll litigation soars in Europe we must take a careful look at the sorts of patents granted by the EPO these days and the policies that support such grants

THE utter disregard for patent quality should be a reason for concern if not panic. Patent trolls would benefit greatly from that as they cannot get sued; there’s nothing for them to get sued for/over. So the broader the scope of patents, the worst off society will be. There’s a reason why sites funded by and/or connected to trolls push so hard for patent maximalism; worth noting is also the correlation (in my experience) between blowhard Conservative Trump proponents and patent trolls; they want more and more deregulation; they want chaos. To them, from chaos comes income.

“To them, from chaos comes income.”Battistelli, a Conservative politician, is pushing towards patent chaos in Europe. It’s not just the UPC (the EPO was pushing for this lame duck earlier this week and also in this very recent tweet). Earlier today, for instance, the trolls-connected Rovi showed up in news from Belgium, wielding what seems like an EP on software:

The recent CJEU judgment and subsequent national interpretation in Rovi Guides v Telenet will have a significant impact on the predictability of legal costs and should be taken into account when setting up an IP litigation strategy in Belgium, as Steven Sarlet and Ben Brigou explain

Rovi Guides Inc (previously United Video Properties (UVP)) initiated an infringement action against Telenet NV on June 7 2011 based on European patent 1327209 (systems and methods for providing storage of data on servers in an on-demand media delivery system)….

We have written extensively about Rovi; it’s connected to the world’s largest patent troll, Intellectual Ventures. They’re reaching out for Europe already. Crossing the Atlantic bridge for litigation purposes…

“The farce of patent “quality” at the EPO under Battistelli has lowered the bar even below the USPTO’s and applicants are starting to notice.”As noted here earlier this year, the EPO openly promotes software patents even though they should all be disallowed. As of this week, moreover, the EPO is openly promoting such patents yet again, this time under the guise of “CII”. “Guidance on EPO procedures for US CII applicants at this event in Palo Alto,” it wrote, pointing to this seminar whose programme says “EPO CII approach – Christian Platzer, Director, Information & Communications Technology, EPO” and two sessions are titled “Guidance on EPO procedures for US CII applicants” (CII is just a synonym for software patents).

“By all means, unless the EPO manages to get patent quality under control again (this would also mean invalidating many patents granted under Battistelli), too few stakeholders would be willing to pay application and renewal fees.”Morever, based on this article from earlier this week, the EPO is granting a patent (monopoly) on life yet again. Are CRISPR patents next to be thrown away? Why are they being granted at all? The EU has been very clear in its opposition to such patents and Allen & Overy LLP has just published this analysis titled “EPO reverses its position on the patentability of products obtained by essentially biological processes” (can be viewed as applicable to the above too). “The firm,” says the article, “a subsidiary of pharmaceutical giant Merck KGaA, said the EPO has issued a ‘Notice of Intention to Grant’ a broad patent for the company’s CRISPR technology.”

Why are these patents being granted? The farce of patent “quality” at the EPO under Battistelli has lowered the bar even below the USPTO‘s and applicants are starting to notice. Even legal firms are noticing and saying so to audiences at public events.

There was this discussion yesterday regarding the “abstract idea” test in the US and the infamous “technical effect” test. Here are just two of the more relevant comments:

I agree with the notion of allowing the case law to evolve. Some of the arguments against having a specialist patent appeal court in the US are that it would allow other case law doctrines to evolve if more than one court was involved, and ultimately that makes case law richer and more dynamic, but also of increase uncertainty. There will be directions that are ultimately found to be unhelpful and so case law then has to change direction, etc.

However in terms of what a claim is, I don’t think it can be said to be the same as the ‘technical effect’. Sometimes applicants will want to voluntarily limit their claim scope (for example due to an agreement with another party), or to minimise the chance of an opposition happening (I have been in that situation). And so the literal scope is important as a sign of what the applicant chose to pursue at that time (and chose to limit to in examination). I therefore think that whilst the technical effect is an important component in determining claim scope it cannot be only one. And I agree that the system needs to be thrown into this new uncertainty to decide whether we want to think in terms of a ‘flag’, and whether a usable test based on that can emerge. [People of course do not like uncertainty and so this will be a painful journey]

I think the ‘abstract idea’ test in the US is interesting because the Supreme Court has chosen to say little about it, and it is being allowed evolve at the hands of the Federal Circuit, where it will I am sure end up being the same as a ‘technical effect’ test. You will be familiar with the level of criticism that that test has encountered, but I think it is a great experiment. The Supreme Court had the wisdom to be minimalist about it, and let it evolve, realising the test was too complex to be derived by simply thinking of one. A test will come into being which is found to be useful in the cases that the Federal Circuit has before it.

I agree with you on “abstract” and I agree that fixing the scope of protection is not the same as identifying the technical effect. I like the Neuberger evolved version of the Catnic Questions.

Courts need a residual degree of wiggle room to do justice. Neuberger gives them just enough, but no more than that. Like the EPO’s Problem and Solution for framing the obviousness debate, the Neuberger 3 Question rubric gives the parties a framework for efficient debate on scope of protection.

In my view, the evolved Three Question routine represents an optimal compromise between fair protection for the patent owner and reasonable legal certainty for those under threat from the patent.

By all means, unless the EPO manages to get patent quality under control again (this would also mean invalidating many patents granted under Battistelli), too few stakeholderx would be willing to pay application and renewal fees. Paying for something that’s already worthless (or can be rendered invalid overnight, without even a trial) is like falling for a scam.

The EPO was supposed to be a world leader in terms of solid, defensible patents. What it’s becoming more and more like over time is a facility which fuels patent trolling (already soaring in Germany). █

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