07.06.19

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Only a Matter of Time Before the European Patent Bubble Implodes

Posted in Europe, Patents at 5:45 am by Dr. Roy Schestowitz

Recent: The Staff Union of the European Patent Office (SUEPO) Warns About the Granting of Tens of Thousands of Invalid European Patents Every Year

Bubbling

Summary: The European Patent Office (EPO) must grapple and eventually deal with the fact that a lot of European Patents are proven to be toothless and it’s only a matter of time before the bubble implodes in Europe (like it did in the US some years ago)

THE Battistelli/Campinos EPO regime does not value patent quality. When it talks about “quality” it means speed, not quality — all this while granting patents on algorithms — patents that even the USPTO quit granting in the wake of Alice/35 U.S.C. § 101.

“Different countries have different patent laws; Team UPC was eager to violate many constitutions in tandem and impose a patent extremist’s view of the world on the whole of Europe.”It doesn’t take much effort to find evidence that European Patents see a massive collapse in quality (here’s a new example that’s circulating this month). “An explanation please” wrote this comment yesterday, noting that “[d]uring [patent] examination an application ought to be refused if the added subject-matter is not removed from the claim…”

The full comment (it’s about this European Patent being tossed out):

I have some difficulties in following the reasoning. How can a claim be novel and inventive and a the same time comprise added subject-matter?

It means that the judgement on novelty or inventive step is carried out out [sic] with the added subject-matter comprised in the claim. A claim can have either the priority or filing date as effective date. The part of the claim relating to added subject-matter should however not be there and no effective date can be attributed to it. Which is then the prior art to be taken into account?

At least the German federal court disregards the part relating to added subject-matter when assessing the claim on novelty and inventive step, see BGH X ZR 161/12 (Wound treatment device) once a patent has been granted. During examination an application ought to be refused if the added subject-matter is not removed from the claim, see BGH X ZB 5/16 (Phosphatidylcholine).

At the EPO, a claim comprising added subject-matter leads to a refusal in examination or to a revocation in opposition, cf. G 1/93. Such a claim is never compared to any prior art, as it does not have a raison d’être.

Why is English practice so different?

Different countries have different patent laws; Team UPC was eager to violate many constitutions in tandem and impose a patent extremist’s view of the world on the whole of Europe. Thankfully this never led to a ratification and meanwhile we’ve had countries’ courts agreeing that constitutional barriers exist (Hungary for example). No doubt the FCC in Germany is assessing some of these aspects and may defer judgment until next year if not later.

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