02.20.19

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How Long Can the EPO Bend the Rules Before the Avalanche of Invalid Software Patents?

Posted in America, Europe, Patents at 5:07 am by Dr. Roy Schestowitz

The epidemic of patent trolls in Germany is becoming ever more visible

German troll

Summary: A 35 U.S.C. § 101/SCOTUS moment in Europe will likely squash loads of abstract European Patents granted by the EPO; shouldn’t the EPO foresee this and immediately cease granting such obviously bogus patents, whose main beneficiary is a bunch of patent trolls?

THE European Patent Office (EPO) belatedly admits severe patent quality problems [1, 2, 3]. It has said nothing publicly, only internally, so surely António Campinos is aware (but chooses to keep silent, as usual).

We predict that in the coming days, maybe late on a Friday as usual, EPO management will push something into the media (or its site) to control/change the narrative; we also imagine, as we explained earlier this week, that one day a lot of abstract European Patents will perish in bulk (like many on biological processes a couple of years ago).

“We predict that in the coming days, maybe late on a Friday as usual, EPO management will push something into the media (or its site) to control/change the narrative…”Why has the EPO taken such a suicidal path? It’s devaluing hundreds of thousands of existing European Patents and stakeholders won’t be happy about it. Only lawyers benefit from this legal barbwire.

Charles Russell Speechlys LLP’s Mary Bagnall, in a new and paid Lexology ‘article’ (self-promotional ads is what these sites boil down to), has just put out something titled “Brexit: Implications for Intellectual Property” [sic] — an ‘article’ like many before it which covers UPC and other things lawyers want for litigation invoicing. They want as many lawsuits as possible and they worry that Brexit puts that at risk/peril.

“They want as many lawsuits as possible and they worry that Brexit puts that at risk/peril.”Another law firm, Withers & Rogers, has just hijacked a publication to promote illegal software patents in Europe (under the guise of “AI”). Harry Strange and Stuart Latham, partner and patent attorney at Withers & Rogers, put out something titled “A guide to protecting AI and machine learning inventions” in so-called ‘media’ (marketing) and it’s all about the EPO:

As well as there being evidence of more global patent filings, the AI and machine learning technologies featured in these applications have become increasingly sophisticated. To illustrate this, a recently published patent highlights technology capable of generating audio using a convolutional neural network. Preliminary examination of the patent carried out by the EPO indicates that the invention does indeed meet the described patentability criteria. The ‘technical effect’ produced by the patented invention is considered to be a reduction in the computational requirement to generate waveform data compared to existing methods. This should be reassuring for both innovators and practitioners, as it clearly shows that the guidelines are being followed by the examiners at the EPO.

These are all just algorithms. Why does the EPO still welcome patents on algorithms? Surely it knows that courts have repeatedly rejected this, citing the EPC. Surely it also knows what happened in 2005 in Parliament. Surely it can see that national patent policy have barred such patents. Why is the EPO actively promoting illegal patents under the guise of “CII” or “AI”? So frequently in fact, to the point of banality…

Yesterday the EPO wrote: “What are the best IP strategies when it comes to your computer-implemented inventions in #MedTech? Find out at this event…”

“Why is the EPO actively promoting illegal patents under the guise of “CII” or “AI”? So frequently in fact, to the point of banality…”This is the third such tweet in little over a week (the first one did not have the “CII” part, which was only included in the cited page).

These patents are definitely not benign; there’s plenty of trolling with software patents in Germany. Some of this has been measured and it’s a fast-growing trend. As recently as half a day ago we saw a report titled “Enforcement of German injunctions forces Huawei to take MPEG LA’s AVC Patent Portfolio License” (MPEG-LA is technically a troll) and it makes Germany resemble the worst districts in the US. It’s bad enough that the U.S. Patent and Trademark Office (USPTO) granted something like a million or two software patents. Thankfully, owing to Alice and expiries few of these are worth anything anymore. There are some caveats, sure, but trolls mostly rely on subjective courts in particular districts (litigation venue does matter).

“It’s understandable that people who make a living from litigation just want more and more and more patents.”A couple of days ago we saw David Lisch at Watchtroll with the title “The Newest Patent ‘Rocket-Docket’: Waco, Texas” (around the centre of Texas, if not a tad to the east albeit not Eastern Texas or notorious EDTX/TXED). So maybe the trolls can be their new Branch Davidians? That would not vibe well with about 120,000 locals. Being a litigation capital won’t do any good for the town’s reputation.

It’s understandable that people who make a living from litigation just want more and more and more patents. Consider Gene Quinn’s “Mitigating ‘Justified Paranoia’ via Provisional Patent Applications” (at Watchtroll, same day as above) and loads of similarly-misleading calls for patenting, such as the above from Withers & Rogers. But it’s malignant and corrosive to the real economy. Shouldn't Europe learn from the mistakes of the United States? Instead of repeating these? There’s no lack of cautionary tales. Last night, for example, Unified Patents spoke of a rather infamous patent troll, Leigh Rothschild, who suffers a blow in the Patent Trial and Appeal Board (PTAB) after an inter partes review (IPR). Josh Landau (CCIA) has also just brought up Blackbird (another notorious troll) in the context of the Federal Circuit‘s decision on Berkheimer.

“The EPO is mostly enabling trolls by granting such bogus patents, knowing that courts might never get around to scrutinising these.”“These changes represent serious threats to the tools that have been developed to combat low-quality, invalid patents,” he argued. “Those patents, as I wrote earlier this week, do more than threaten to take money out of the pockets of large companies. They also threaten the existence of small companies—the exact companies who most need the kind of quick, inexpensive processes for fighting a patent that Berkheimer deters.”

Thankfully, however, a lot of patent trolls who rely on software patents are worthless and penniless now; some get disbanded. If they target small companies there’s little chance of a day in court (to challenge the underlying patents or infringement thereof), so these patents must never exist in the first place. The EPO is mostly enabling trolls by granting such bogus patents, knowing that courts might never get around to scrutinising these. In the case of MPEG-LA, such patents get leveraged in bulk to make legal challenges extremely long and expensive.

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