Summary: The trouble associated with declining patent quality at the European Patent Office and early warnings about it from the staff union

TWO days ago we responded to erroneous assertions that EPO staff representatives have not been warning about patent quality until recently. This is patently false. We'd like to revisit this in light of our previous post, which was about bogus patent grants in the US (in the late 90s).

In the latest comment, someone made a point by highlighting an article from almost a decade ago (when the EPO gave a green light/loophole to software patenting):

SUEPO has been busy sloganeering about declining patent quality since at least 2008 and Pompidou/Brimelow era.

http://www.iam-media.com/blog/detail.aspx?g=f440a64b-b45f-4af8-b02f-431db4f17c90

This was more or less an attack from Joff Wild, a mouthpiece of the EPO who habitually bashes the union (in this example he said "SUEPO needs to be completely transparent about its motivation" as if there's some malicious motivation).

The above comment, which comes from IP Kat, parallels a very long discussion thread about the British Supreme Court (SC) and EPO patent quality tests (e.g. Gold Standard). The latest comment says:

That last comment referencing AHP v Novartis is interesting for its suggestion that specialist patent judges are no nonsense types, who hold patent owners to the consequences of slips in their claim drafting. Perhaps SC judges are more generous?

Anon, you set me thinking that, in the litigation here, perhaps neither side fancied explaining to the SC the EPO habitual no nonsense brutal approach to claims to an undisclosed intermediate generalisation. That would explain Neuberger's observations on the EPO prosecution events.

But how might it be, that neither side educated the court? The patent owner would perhaps not want to alert the judges to its drafting slip lest the judge take the easy line, and punish him for it, as in the AHP case. The accused infringer would not want the unfortunate momentary drafting slip discussed lest it lead the SC to sympathise with the patent owner, conclude that a finding of no infringement would be disproportionately heavy punishment for a moment's carelessness, and serve justice by finding infringement.

Does any reader know how much education the SC got from the parties, on undisclosed intermediate generalisation practice at the EPO?

It is somewhat sad to see that while the US patent system tightens/restricts patent scope the opposite is true at the EPO. Under Battistelli the EPO surely accelerated toward the total dilution of value of European Patents. It spoils the work of decades' worth of applicants (even expired EPs which will suffer from bad reputation). ⬆