06.28.19

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UPC Was the EPO’s (and Patent Maximalists’) Attempt to Abolish Patent Justice

Posted in Europe, Patents at 2:05 am by Dr. Roy Schestowitz

With people like these in charge…

UIMP event 2014

Summary: If the EPO is an examination office for patents, then it’s failing quite badly; the sole priority at the moment is prosecution, even if unsuccessful, resulting in extraordinary legal costs and not any innovation whatsoever (i.e. what the US patent system suffered from until AIA)

PATENT scope is being narrowed by the courts, but it’s being broadened by patent offices, which knowingly reduce legal certainty. They know that many patents will never be tested in courts, only outside courts (pre-settlements and cross-licensing). There’s lots more about US cases and laws in our latest daily links and it’s more of the same, i.e. courts throwing out lawsuits that involve US patents. Sometimes these patents don’t even reach the courts because they’re invalidated before a lawsuit can even be filed. Sometimes the plaintiff is forced to compensate the defendant. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are still being targeted by patent extremists, who habitually try to impede patent justice, i.e. invalidation of bogus ones. “On Monday, the U.S. Supreme Court granted a petition for writ of certiorari to take up Dex Media Inc. v. Click-to-Call Technologies,” Steve Brachmann (Watchtroll) wrote, “on appeal from the Court of Appeals for the Federal Circuit. The case will ask the nation’s highest court to determine whether 35 U.S.C. § 314(d), which states that decisions to institute inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) are final and non-appealable…” (e.g. to the Federal Circuit or even SCOTUS)

“Germany’s constitutional considerations are being assessed by the FCC, which is heckled and manipulated, as usual, by Team UPC.”Europe is a different story although similarities exist, e.g. appeals coming under attack by sending judges to Haar and limiting their authority. Can they put an end to European Patents being granted in defiance of the EPC? The EPO has already tried to replace them all with the UPC, but it isn’t happening. Germany’s constitutional considerations are being assessed by the FCC, which is heckled and manipulated, as usual, by Team UPC. Lies are being told about it every month. It has become rather sick.

The EPO is meanwhile proceeding with its suicide plan. Decline in patent quality (and more fake patents granted based on algorithms) is covered up while veteran examiners leave or get pushed out. The EPO has tweeted a link to this (warning: epo.org link) “vision of sustainability,” adding: “The EPO Strategic Plan 2023 has been unanimously adopted! Have a look at what we, together with the EPO’s stakeholders, envisage for the coming years…”

It’s “unanimously adopted” by patent maximalists; as we noted before, the EPO disregarded input in most European languages and from most stakeholders that include the public. The EPO only listens to the patenting and litigation ‘industry’, including the foreign one.

Microsoft and IBM, as expected, have decided to basically reclassify a lot of things to bypass 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO). Team Campinos/Battistelli at the European Patent Office (EPO) actively encourages violating the EPC and their media ally, the patent trolls’ front group IAM, helps promote software patents in Europe using the “HEY HI” magic wand as recently as this week. To quote:

The UK’s IPO recently released a report on worldwide AI patenting activity, which it combined with a deep dive into the local landscape and how it compares to other countries. The study complements WIPO’s Technology Trends paper which we analysed to produce a top 10 takeaways piece earlier in the year.

The data analysed for the UKIPO report was pulled from the EPO’s PATSTAT product. The dataset consists of over 160,000 patent applications and 85,000 patent families.

[...]

IBM has the largest AI portfolio, trailed by Microsoft

Globally, IBM has the largest AI portfolio (by patent families). Although American companies take the top two spots, Asian businesses are highly represented in this list.

Those are just software patents. They’re still stockpiling these utterly invalid patents (would not withstand a court’s scrutiny) and patent offices profit from it.

Nutter McClennen & Fish LLP’s Alex Nagorniy [1, 2] recalled Supernus again — a subject revisited quite a few times recently. To quote the relevant part: “Supernus, the owner and assignee of the patent-at-issue, filed a Request for Continued Examination (“RCE”) on February 22, 2011 to remove the finality of a rejection during prosecution of U.S. Patent Application No 11/412,100 (“the ‘100 application”) and for consideration of additional information. On August 21, 2012, the EPO notified Supernus’ European Counsel that a Notice of Opposition was filed by Sandoz in an international application that claimed priority to the ‘100 application, and Supernus’ European Counsel informed Supernus of the EPO notification on September 11, 2012. On November 29, 2012—seventy-nine days after being informed or 100 days after the EPO notification of the Sandoz Opposition—Supernus submitted a supplemental IDS to the USPTO to inform them of the opposition and the documents submitted therein. After another round of prosecution, the USPTO issued a Notice of Allowance on February 4, 2014, and the ‘100 application issued as U.S. Patent No. 8,747,897 (“the ‘897 patent”) with a Patent Term Adjustment of 1,260 days.”

So they start the prosecution before the patents are even available.

Kristina Cornish and James Beal make money from litigation (at Kilburn & Strode LLP), so they won’t mind if EPO grants lots of fake patents, leading to frivolous lawsuits against innocent poor people. In the midst of this push for patents on buzzwords (from IAM’s party) there’s also advocacy of PACE (“accelerated prosecution of European patent applications” as they put it). Their opening presumption:

Accelerating the prosecution of a patent application can be useful.

To who?

Do we actually care about justice? It cannot be rushed.

James Ward and David Lewin (Haseltine Lake Kempner LLP) are meanwhile amplifying the EPO’s bundle of lies, which overlooks the fact that the Office grants lots of fake patents in order to fake ‘production’ figures. “According to the EPO Annual Report & Statistics for 2018, and earlier reports,” they wrote, “the median duration of first instance opposition procedures (months from expiry of the nine-month opposition term to the issue of the first instance decision) has fallen, particularly from 2016 to 2018.”

The EPO has been trying hard to discourage and suppress oppositions, as we’ve been showing for years. We’ve heard stories wherein Apple received European Patents despite examiners finding prior art. The EPO is in trouble because it won’t even listen to its own examiners. Here’s World Intellectual Property Review reporting on an obviously bogus Apple patent getting thrown out, for a change:

The European Patent Office (EPO) has dismissed an appeal from Apple, ruling that one of its applied-for patents is unpatentable…

Shades of that infamous patent on progress bars. We wrote about it several times (albeit many years ago).

It’s saddening to see the demise of science at the EPO. It’s like a bunch of clueless, nonscientific politicians and under-qualified career-climbing sociopaths have taken over. All they strive to do is to silence their critics; they’ve blocked Techrights since 2014. They later tried to do the same to IP Kat (until it stopped writing about the EPO’s abuses). The gag was a success.

All those CNIPA and SIPO (same thing, low patent quality) pieces in today’s IP Kat reveal the low levels and standards this kitten sank to. They/the blog used to actually care about quality and justice, but nowadays it’s run by extremists foaming at the mouth for lawsuits (their business model). The likes of Bristows (Annsley Merelle Ward) have been dominating the ‘Kat’, IP Kat , in this case reposting Alexander de Leeuw (Brinkhof). Well, as noted the other day European Patents are already being leveraged by foreign (US) giants, which claim to be worth hundreds of billions of dollars based on exploitative monopolies, to bully generics out of the market. Courts decide the lawsuits are baseless, frivolous. To quote:

“On 19 June 2019 the Dutch District Court of The Hague – the Court with exclusive jurisdiction over patent matters in the Netherlands – issued a decision in merits proceedings between Eli Lilly & Company and Fresenius Kabi regarding Fresenius’ pemetrexed product (a machine translation as published by Mattie de Koning of Simmons is found here).

The product ‘Pemetrexed Fresenius Kabi’ is practically identical to Lilly’s pemetrexed product Alimta, apart from the fact that it contains the tromethamine salt instead of the disodium salt of pemetrexed. The question in many of the pemetrexed proceedings has been whether a pemetrexed product with a different salt falls within the scope of Lilly’s patent, which specifically claims disodium as the salt to be used in a combination therapy with vitamin B12 or a derivative thereof.

Other than in almost all preceding decisions, the Dutch Court ruled that there is no infringement of Lilly’s patent because tromethamine cannot be considered equivalent to disodium. A copy of the Dutch decision can be found here.

Patents that are granted in Europe based on guesswork just to meet “targets” (or “production”) are doing great harm. Judges are not amused (another new case). It’s hardly surprising that Bristows tries hard to just replace the courts with kangaroo ones. Alan Johnson has just said [1, 2] that:

The BVerfG has today announced here that its Second Senate will hold an oral hearing in that first case (“ECB bond purchase program”) on 30 and 31 July 2019.

Nothing to do with the UPC; the title remains misleading, but it’s intended to make it seem as though a decision is imminent — a lie they have been telling for years.

Rose Hughes keeps writing about the EPO but never about scandals, corruption and crimes. IP Kat will never say anything negative about the EPO (as writers who did so have left; the pseudonym “Merpel” is hardly even used anymore). Never do they mention that this Board of Appeal lacks autonomy:

What do European patent attorneys have nightmares about? Trying to achieve re-establishment of rights at the EPO must be among the list. A decision of the Legal Board of Appeal (J 05/18), published this week, is a reminder that even with the best systems in place, an isolated error by any representative involved in the case may be catastrophic.

In some jurisdictions, the test for reinstating an application following refusal due to a missed deadline can be relatively low. At the UK IPO, for example, it is merely necessary to demonstrate that the failure to meet the deadline was “unintentional” (UKPA Section 20A). At the EPO, the test is considerably higher. The applicant must show that the deadline was missed despite “all due care” having been taken.

[...]

The board of appeal (BA) identified the misreading of the email regarding the applicants “interest in further processing” as the critical mistake leading to the missed deadline. The BA was of the view that the presence of a “well-functioning system” was therefore not decisive in this case. In the BA’s view, the letter checked by the US representative, did not give “the slightest indication that the EP representative had already been instructed to request further processing. Quite the contrary, this document clearly demonstrated that no action had been taken at that stage” (r.1.2.3). Furthermore, whilst such an obvious mistake by an assistant may have been excusable, the BA could not excuse a representative for making such a mistake (r.1.2.5).

Therefore, the isolated mistake on behalf of the US attorney in misreading the letter was considered to demonstrate lack of all due care, regardless of any systems that may have been in place. The appeal was dismissed.

Those who wonder why the above blog is full of UPC promotion and void of criticism (of union-busting, attacks on the Boards of Appeal etc.) are urged to see who left the blog and who joined it. This isn’t the same blog that it used to be.

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