05.22.19
Gemini version available ♊︎Quality of Patents is Going Down the Drain and Courts Have Certainly Noticed
Judges don’t participate in this toxic agenda
Summary: Uncertainty or lack of confidence in the patent system has reached appalling levels because heads of patent offices are just striving to grant as many patents as possible, irrespective of the underlying law
TECHRIGHTS was never against patents. It was for patent quality — something that slipped at the European Patent Office (EPO) over the past decade or so (we wrote about software patents in Europe as early as the Brimelow days) and at the U.S. Patent and Trademark Office (USPTO) as well. 35 U.S.C. § 101/Alice has meant that many granted US patents got thrown out by courts and sometimes by PTAB.
“It’s about legal firms, not about advancing science and technology.”Director Iancu in the US and António Campinos in Europe are both patent maximalists. They devalue patents by granting far too many of them, but what else should be expected considering their professional background? It’s about legal firms, not about advancing science and technology. It’s about litigation, not improvement of living standards.
The collapse of software patents in the US leads to their collapse elsewhere; as noted by Daniel Law’s Rana Gosain in this article (under software patents in Brazil):
The aftermath of the decision in the aftermath of the US Supreme Court decision in Alice v CLS Bank has brought about uncertainty and at the moment it appears difficult to propose substantial changes to the Brazilian IP law.
Good. What else is good? Even Donald Trump supporters recognise that Trump just put a patent trolls and litigation ‘mole’ inside the USPTO. As one supporter of Trump put it on Monday:
The previous director of the United States Patent & Trademark Office, Michelle Lee, had previously worked at Google and was well respected by all major product- and service-focused tech companies for her understanding of the need for a balance in the patent system: a balance between the interests of right holders in valid and enforceable intellectual property rights as well as the interest of the general public in preventing overbroad patents and, particularly, the enforcement of patents that should never have been granted in the first place.
Mrs. Lee’s predecessor, David Kappos, came from IBM, a company that has for some time been known for rather aggressive patent monetization (though they rarely litigate) and has, since leaving the USPTO, been lobbying hard for broad and strong patents. That said, he respected legislative and judicial decisions without a doubt, and compared to the current USPTO director Andrei Iancu his actual decisions at the helm of the USPTO were the ones of a centrist, and clearly not those of an extremist. He had his views and beliefs, but a reasonable agenda.
Director Iancu used to be the managing partner of Irell & Manella, a renowned L.A. law firm with a particular focus on patent enforcement. Presuambly they also represent defendants, but interestingly, I’ve always heard of them only when they were counsel for plaintiffs.
There are various respects in which Director Iancu is trying hard to turn the legislative and judicial tide–which is an agenda that the executive branch of government shouldn’t have, but sometimes that’s unfortunately the way it is.
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This is the mission statement of a patent radical and of someone who doesn’t appear to understand that he has a responsibility not only for patentees and for litigation firms like the one he used to chair, but also–in fact, even more so–for the economy and society at large.
The unspecified reference to “the public alike” doesn’t counterbalance his focus on “rights owners” and their interests.
The way Director Iancu modified the claim construction standard for post-grant reviews (by instructing PTAB judges to apply the narrower standard used in infringement proceedings) has nothing to do with greater predictability: decisions were equally predictable before, but it used to be harder to defend weak patents.
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Those of us promoting a balanced patent system must keep a close eye on what’s going on at the USPTO under Director Iancu. I anticipate more posts on the USPTO, and especially on inter partes reviews, going forward.
There’s growing disdain and resistance against this. Earlier this month we wrote about the EPO using European Inventor Award to promote software patents and earlier this week Benjamin Henrion said: “The EPO’s spending on the “European Inventor Award” has no legal basis in the EPC. The EPO should better spend this money on something more useful. Furthermore, patents on computer programs are forbidden by art52.2 EPC.”
“Even Donald Trump supporters recognise that Trump just put a patent trolls and litigation ‘mole’ inside the USPTO.”These are, in effect, illegal patents. Why offer rewards for these?
Meanwhile, as it turns out based on a new press release, the EPO admits, yet again, that it granted (or nearly granted) a fake European Patent; why the change of heart? The UK High Court:
Estar Medical has been successful in revoking Regenlab’s original PRP patent in the European Patent Office (EPO) opposition proceedings. This ruling follows a recent judgment by the UK High Court which also found the Regenlab PRP patent invalid…
Courts are again stepping in, applying law unlike the Office. These courts do not measure their “success” in terms of revenue.
We’re disturbed to see the EPO granting patents on life, on nature, on maths…
These patents are not legal. Granting these patents would be a violation of the EPC. But the EPO’s management gives staff quite a dilemma: break the law or get fired.
“These patents are not legal. Granting these patents would be a violation of the EPC.”The management of the EPO is trying to trick examiners into thinking that what they do is compliant, but it’s not. They keep using all sorts of buzzwords and misleading semantics (which courts reject). Here’s a report from yesterday in which “Kazuhiko Ishimaru, general manager of licensing at the multinational electronics company [Panasonic, feeder of patent trolls], shares insights on IP strategies in an age of AI, IoT and big data” (to quote the summary).
Panasonic is a patent parasite and it promotes abstract patents under guise of buzzwords, “AI, IoT and big data…”
Why not add “4IR”, “blockchain” and “Industry 4.0″?
We’ve meanwhile noticed that Bardehle Pagenberg continues pushing the software patents agenda at the EPO (for profit regardless of the law). It’s doing that in paid-for ‘articles’ and many tweets like this one. It’s no secret that nowadays the EPO grants all sorts of dodgy patents (over 100,000 of them a year), so what is this company bragging about in this new press release? Presumption of invalidity is becoming reasonable as rates of validity have fallen sharply.
“The way things stand, European courts will continue to reject a lot of European Patents, putting in doubt just about all the work done by the EPO since the Battistelli years (fake ‘production’).”The only way for the EPO to survive a ‘bloodbath’ is to change the law or get rid of courts. Complicit media like IAM has been paid to help with that agenda. Watch what IAM has just paid to promote (lawyers put patent monopoly/greed ahead of public safety) and this other IAM piece about patents on plants at the EPO. These malicious people are hoping to just bypass courts, expanding the scope of patents and miraculously rendering fake patents “valid”. Mind this latest UPC jingoism from Joff Wild and his paid-for (to promote UPC) colleagues. There’s another new example from IP Law Galli’s Cesare Galli, presumably what qualifies as “Team UPC”. There’s this new ‘article’ (actually lobbying by a law firm) titled “Unitary patent and UPC – Italy moves forward” [1, 2] and it’s about as laughable as this year’s necrophilia from Bristows. Italy Moves forward with a dead thing? Like Sam Gyimah did one year ago (just before resigning)? The UPC spin has taken new forms. Here’s the opening sentence:
The government recently adopted provisions to coordinate national legislation with the EU Unitary Patent Regulation and the Unified Patent Court (UPC)…
That’s the equivalent of marrying a dead partner posthumously because there’s no UPC and barriers to it have only piled up. The way things stand, European courts will continue to reject a lot of European Patents, putting in doubt just about all the work done by the EPO since the Battistelli years (fake ‘production’). █
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