01.23.20

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The Patent Microcosm is Really Panicking as European Patents on Life and Other Spurious Junk (Invalid Patents) Are Successfully Rejected

Posted in Europe, Patents at 8:04 am by Dr. Roy Schestowitz

The Boards of Appeal said the N word (“No”)

European Patents? No, Invalid Patents

Summary: European Patents (EPs) may be revoked en masse if what we’re seeing is the gradual emergence of ‘European Mayo’ (and maybe soon ‘European Alice’)

NOT A day goes by without the U.S. Patent and Trademark Office (USPTO) granting software patents. Not a day goes by (OK, maybe except Christmas) without US courts squashing such patents using 35 U.S.C. § 101/Alice; we’re citing some new examples in our Daily Links almost every day, sometimes several times per day.

When António Campinos came to the top floor in Munich Team Battistelli was ready to tell him that software patents were perfectly fine to grant. That’s a lie. It is the sort of lie Team UPC tells us. It’s also the same lie that Campinos told the Boards of Appeal some months ago.

“Some applications definitely need to be rejected. What’s the point having exams that everyone passes? Or everybody aces?”Watchtroll, which is like a peripheral propaganda arm of Team Battistelli (speaking to their staff to manufacture puff pieces), is at it again this week. Yesterday’s “Eight Tips to Get Your Patent Approved at the EPO” by Watchtroll’s Gene Quinn is the latest reminder that patent zealots — notable pushers of software patents in Europe — push the European Patent Office (EPO) to be a patents-granting machine rather than a decent examination center which values quality (or legal certainty). Quinn says: “Vague descriptions that leave open ambiguities will typically lead the EPO examiner to determine that your application is not satisfactory for grant regardless of the magnitude of the innovation.”

As if the sole problem is rejection. Some applications definitely need to be rejected. What’s the point having exams that everyone passes? Or everybody aces?

“There’s no “Loss of Patent Rights in EPO on CRISPR” because there were no such “rights” in the first place. It’s an error.”Anyway, the zealotry extends further this week. David Hricik should know better, for example that patents are not rights and nobody has a “right” to own the concept of life and nature. Yet watch the title he has just published. He then said: “The Board of Appeals at the EPO held on January 17, 2020 that the EPO patent on CRISPR gene editing technology was revoked for lack of novelty because it could not claim priority to a US provisional application.”

He actually cites Carl Oppedahl, not those who are patent rationalists. He should know better, he apparently used to work for the Federal Circuit in some clerical position (if memory serves correctly). Well, typically we’ve seen good posts from Hricik, who focuses on ethical issues. Get well soon, Hricik, and kind regards!

There’s no “Loss of Patent Rights in EPO on CRISPR” because there were no such “rights” in the first place. It’s an error.

“This will have ramifications worldwide. Expect this decision to be mentioned for weeks if not months to come.”The totally one-sided coverage by law firms and patent fanatics (about this decision regarding CRISPR patents — a subject we covered thrice before) can only contribute to the perception that media is nowadays dead, or a zombie of the PR industry.

Law360 has meanwhile published “European Appeal Board OKs Revoking Broad CRISPR Patent” and it is surprisingly balanced (albeit behind paywall). To quote:

The European Patent Office Board of Appeal has greenlighted a decision to revoke a Broad Institute patent covering the breakthrough gene-editing technology CRISPR.

The EPO's opposition division had revoked European Patent No. 2771468 two years ago saying it wasn't novel, and the appeal board on Thursday dismissed the Broad Institute's appeal of that ruling. The board said a decision with its reasoning will be issued "in due course."

In a statement, the research institute associated with Harvard and the Massachusetts Institute of Technology said the decision was based on a "technical formality" tied to its provisional patent application in the U.S…

This will have ramifications worldwide. Expect this decision to be mentioned for weeks if not months to come.

Hricik’s ‘boss’ at that blog meanwhile persists with the same old nonsense (“This week in Property: Efficient Infringement” is the headline, but it is not “Property”). Dennis Crouch’s latest post promotes the slur of patent extremists: “Efficient Infringement”

“Notice they’re citing Koch mouthpieces such as Adam Mossoff. What a horrible sight.”What does he hope to accomplish? No idea, but it makes Patently-O seem no more moderate than Watchtroll. Maybe Patently-O has jumped the shark as well..

To quote: “Steenburg Homes argued that this is a case of efficient infringement. Although it was trespass, the company should only have to pay for the harm it caused.”

Wow. It’s being compared to “trespassing”? Or sometimes “piracy”? Why not claim that patent infringement is the moral equivalent of murder and advocate for death penalty (for patent infringement)? Notice they’re citing Koch mouthpieces such as Adam Mossoff. What a horrible sight.

“When it comes to patents, sometimes less is more.”Speaking of bad media, another EPO mouthpiece, WIPR, is now speaking for patent zealots, amplifying their “global warming is a scam” moment (‘patent troll myth’ — same line of thing Iancu did about a year ago).

The summary is just megaphone for Mingorance, followed by: “The head of a corporate alliance that includes Nokia and Ericsson has urged the EU to beware the so-called ‘patent troll myth’, which he said has “little basis in fact”.”

“Mingorance, or goodbye to freedom of programming” is how Henrion put it.

“An idea,” he also joked would be to “flood the patent system with AI generated patents…”

When it comes to patents, sometimes less is more. More quality, more legal certainty and so on.

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