07.09.19

Anonymous Comments Are the Only Thing of Value Left at IP Kat

Posted in Deception, Europe, Patents at 5:09 am by Dr. Roy Schestowitz

What’s left of them anyway because they censor some 'inconvenient' (to EPO management) comments

Summary: Control of the narrative surrounding the EPO goes far and wide; it’s still possible, however, to occasionally see what people really think

THE European Patent Office (EPO) of Campinos and Battistelli is a master of media manipulation, if not by bribery (as we've just noted) then by threats. They’ve send several English law firms after me. They’re bullies. They’re thugs. They not only abuse their staff but also the media.

The media is nowadays toothless to say the least when it comes to EPO coverage. The Register quit covering the subject for unknown reasons, the BBC apparently spiked a story about it, and this morning we’ve seen several puff pieces from the Financial Times of London, one of the biggest English papers (high circulation). When it comes to blogs (or less organised news media), things aren’t any better. The EPO found allies with some of the very worst blogs. There were two attacks on Monday on 35 U.S.C. § 101. By Watchtroll of course (“Athena v. Mayo: A Splintered Federal Circuit Invites Supreme Court or Congress to Step Up On 101 Chaos” and “Beyond 101: An Inventor’s Plea for Comprehensive Reform of the U.S. Patent System”). They’re basically attacking judges and courts again; the law firms lie about what technical people want and need. The patent zealots know no bounds. Now they bribe politicians, too… this judge-bashing site, Watchtroll, is the favourite “blog partner” of the EPO nowadays; they share their disdain for judges. They both promote software patents in Europe and Watchtroll repeatedly attacked the USPTO‘s Director when she wasn’t its ‘cup of tea’ (she spoke about the problems associated with patent trolls).

“…the EPO decided not to change its behaviour but to change how the media covers it (if at all!).”Readers of ours are likely to see more and more articles bemoaning the media; I’ve sent some E-mails around and it seems growingly evident that there’s an operation of ‘cover up’; the EPO decided not to change its behaviour but to change how the media covers it (if at all!).

After the EPO temporarily banned IP Kat (in all sites) the blog chose to quit covering what people evidently cared about (the EPO’s corruption), censoring comments on the matter too (in bulk even, in one fell swoop, not for violating any terms/conditions). Some of the key people, who used the pseudonym “Merpel” (it’s not a single person, as one insider clarified to us), gradually left and yesterday the blog advertised “Openings for GuestKats and InternKats!”

“One needs to look at comments to actually catch a glimpse of what remotely looks like honest opinions from insiders.”They’re looking for writers as the blog collapsed (sharp decline in relevance) after refusing to cover EPO corruption — the subject that attracted over 90% of comments if not visits. Earlier this summer one of their best writers left too; she had been there for years. So who’s left there? People like Bristows staff/Team UPC (recall “Bristows/IP Kat Still Promoting UPC and Patent Trolls, Also Accused of Deleting Comments and “Brown-nosing” Judges to Help Patent Trolls“) and various novices who may contribute one article per month. Team UPC totally controls the narrative around UPC; those inside the blog who criticised the UPC have already left.

As we’ve been arguing for a number of years, blog posts at IP Kat are usually less informative than comments (of which there aren’t many anymore). Since Friday we’ve seen a number of comments being posted in IP Kat in reply to Justice Arnold throwing out European Patents. After millions of euros were wasted (passed to law firms) an actual court reached the conclusion that the underlying patents lacked merit. We generally trust independent judges a lot more than officials because, as we explained before, judges are to be judged based on the accuracy of their decisions (e.g. how many decisions get overturned), so it’s more about laws than about money. Concepts like ‘production’ are rather meaningless to them. We still wonder, why are some judges mingling with think tanks of patent zealots, trolls, Battistelli, Team UPC etc.? The latest one to speak to Managing IP is Henry Carr and “[t]his is the second in our series of judge interviews. You can read the first, with Mr Justice Arnold, here.”

Justice Arnold is generally OK and his court has, over the past few months, thrown out quite a few European Patents. His latest decision has gotten much attention and attracted much discussion in the comments section; these comments are as close as one can get to ‘proper’ coverage of EPO issues at IP Kat.

“Anonymous” wrote:

I see examination reports from the EPO on a weekly basis that both find a claim contains added subject-matter and then assess the novelty and inventive step of that self-same claim. It is good procedural examination practice that reduces the number of examination reports required. This is because if you successfully overcome the Art 123(2) objection you can have already dealt with the inventive step objection in the same response, rather than requiring the Examiner to then issue an additional report on inventive step.

The English court approach follows the same logic. They assess added subject-matter and inventive step separately so that if the Patentee successfully appeals on one issue the other issue is also dealt with at the appeal stage, rather than requiring a remittance back to the first instance.

In contrast, there is a real procedural issue with EPO Oppositions when a borderline decisions on added subject-matter are regularly issued without any subsequent assessment of novelty and inventive step. This means the Patentee has to appeal and, if successful, the opposition is simply remitted back to the Opposition Division for a further (appealable) decision on novelty and inventive step. As appeals can take 5 years or more, this piecemeal approach can mean the opposition process takes significantly longer than the remaining lifespan of a patent.

There is nothing legally incorrect in what you are saying about the assessment of novelty and inventive step on a claim with added subject-matter. But there is also nothing procedurally wrong in carrying out an assessment of novelty and inventive step of a claim on a conditional basis (i.e. on the basis that the decision on added subject-matter might subsequently be found to be wrong).

Another person said:

I may be being overly simplistic. Is it not just a matter of which rules apply?

In the event that an application is amended during prosecution it is Art 123(2), or I suppose Art 76(1) that apply.

This is of itself a ground of revocation or opposition as the case may be. If there is added matter, the patent or application is invalid. Loss of priority need not be decided (until the matter is rectified should that be necessary). If on the other hand there is no added matter, even if there were to be some link to priority entitlement (which I personally fail to see), then there is nothing to decide.

Loss of priority is a different question, which applies when a priority claiming application introduces new matter as compared to the priority founding case, or when there is a defect in the priority claim. This is not, of itself, a ground of revocation, but depends on the prior art which will become relevant if priority is lost. It is against that prior art which validity or otherwise must be judged.

I don’t see that much is to be gained by muddying the waters.

MaxDrei said: “They know that justice (the over-riding objective of civil litigation in the UK) demands swift revocation of bad patents and equally swift enforcement of patents not found bad.”

Full comment:

I’m both amused and shocked by the postings of “Explanation Please”.

Courts (at least in England) perceive their role as a last resort in a dispute between A, a patent owner arguing infringement and B, a party seeking revocation of the patent and/or a declaration of non-infringement. They know that justice (the over-riding objective of civil litigation in the UK) demands swift revocation of bad patents and equally swift enforcement of patents not found bad. A and B demand nothing less. In the courts, in a real world dispute, with parties going out of business, there is no time for endless ping-pong betwewen the courts of the first instance and those of the second instance. Hence the decisions of the first instance take the issues in sequence, like at the EPO but, unlike at the EPO, they work their way through the issues, using wording equivalent to “But if I am wrong on Art 123(2) then I will go on to consider patentability over the art.” That this could somehow be ultra vires is news to me.

The question arises, in a world where industry, stuck in a costly and time-wasting patent dispute, asks for “early certainty” why don’t all first instance jurisdictions do it this way?

And as for the EPO, the best way I can think of, for Examiners to lose the sympathy of the outside world, is to reveal their ignorance of how business is done, and how patent disputes are resolved, in the real world outside the Ivory Towers in Munich and Den Haag.

Come now, Explanation Please. Explain yourself further please.

This is part of an ongoing discussion about blame being put on examiners rather than the people who bully them or bully the judges (whose decisions are followed by examiners). To quote:

“A claim has for effective date either the priority or the filing date, or in other words the date of the youngest feature in the claim, see Art 54 and Art 89. This is the only point on which I can agree with you.”

We do not agree at all on your “in other words …” insertion. The effective date for a claim is either the filing date of the application or the priority date, whether it complies with Article 123(2) EPC or not. This is clear from Articles 54 and 89.

“due to plain logic a claim infringing Art 123(2) cannot be at the same time new and inventive.”

The EPC does not agree with you. According to Article 56 EPC, a claimed invention involves an inventive step if it is not obvious over the state of the art according to Article 54(2) EPC (read in combination with Article 89 EPC).

The requirement of Article 123(2) EPC is a separate one.

Your position seems to be that a claim that infringes Article 123(2) EPC cannot involve an inventive step. That would mean that a claim that infringes Article 123(2) EPC automatically infringes Article 56 EPC. That is a strange position to take.

“Please give one decision of the Boards of Appeal in which the Board has decided to discuss novelty or inventive step after having considered that the claim infringes Art 123(2).”

One example is T 488/02: claim 1 infringes Article 123(2), is new and is not inventive. Another example is T 1537/07.

I note that you were not able to cite any passage from the Guidelines or Case Law book that supports your position.

Please do not suggest that I am complaining about “all examiners”. I complain about the very few examiners that share your very peculiar view, unsupported by Guidelines or case law. I don’t know how many there are, but they tend to pop up in blog comments.

“The applicant/proprietor will always have an arguable case, but should then divisions refrain from raising objections at all, with the risk of being considered arrogant?”

That is not what I wrote.

My point is that the following is perfectly reasonable in a judgment by an English court as well as in a decision by an opposition division:
(1) decide that claim 1 contains added subject-matter
(2) (since the appeal court/board might disagree with the added-matter objection,) decide that claim 1 is not inventive. Or even that claim 1 is inventive, in which case the request clearly still has to be rejected because it infringes 123(2).

For an English court or for an opposition division of the EPO, there is no shame in acknowledging that reasonable minds may differ. That should not stop the court or the division from taking the decision it considers correct. It just means that it is neither shameful nor illogical to also take a decision on inventive step where that makes sense (= where the extra effort is outweighed by the advantage of possibly avoiding a remittal).

I suppose you have no problem with parallel clarity and added-matter objections. All I am saying is that a parallel objection on inventive step is no different. They are all separate objections. One objection is enough to reject the request, but it is fine to raise two or more objections against the same request or even decide that a request infringes one requirement but complies with certain other requirements. There is no obligation to do more than the minimum, but a division is free to use common sense.

“If a patent is dead as dead can be, for any another reason, it looks at least pointless to me to decide whether the subject-matter claimed was new and inventive.”

Why would it be pointless? If there is an appeal and the board of appeal disagrees with that “another reason”, a remittal has been avoided.

On it goes:

“By the way, there is another case in which it is not possible to compare an invention with the prior art, that is in case the invention is not enabled.”

Also here I do not agree. The claim “1. A composition that help against headaches” is too broad to be sufficiently disclosed and lacks novelty over aspirin.

It is also possible for a claim to a specific embodiment to be insufficiently disclosed (because the application and common general knowledge do not allow the skilled person to carry it out) and to lack novelty or inventive step over a document that does contain all the missing information.

So be careful with general statements about how substantive requirements of the EPC relate to each other.

The sad thing is, such assessments aren’t posted anywhere anymore; not in corporate media, not even in patent-centric blogs. One needs to look at comments to actually catch a glimpse of what remotely looks like honest opinions from insiders. Remember that comments sections are nowadays being ‘sanitised’ (censored) by Team UPC-friendly people, e.g. in Kluwer Patent Blog and other blogs. They even say so upfront, thereby discouraging some efforts to bother commenting (at risk of being muzzled and wasting one’s time). █

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