Bonum Certa Men Certa

Forward Pharma an Example of the Devastating Effect of Granting Patents in Error -- A Problem Appeal Boards Must Correct

When examiners make errors someone will need to correct these, but at what (and whose) cost?

Forward PharmaSummary: When companies live or die based on their patents the quality of patent examination is ever more crucial; the US seems to be finally getting it, whereas the EPO (Europe) reaches for the bottom of the barrel

EARLIER THIS year Forward Pharma's shares crashed due to low patent quality at the EPO (as Battistelli had sabotaged examination), which means that patents get granted in error and then the Opposition Division corrects it. Sometimes.

Forward Pharma's value was nearly halved overnight; now they appeal to the Boards, the Technical Board of Appeal in this case, having just issued this press release:

Forward Pharma A/S (Nasdaq:FWP) ("We" or "Forward" or the "Company"), today announced the filing of a notice of appeal of the decision of the Opposition Division of the European Patent Office (the "EPO") that revoked EP2801355 (the "'355 patent"), written reasons for which were received on March 22, 2018. The notice was filed to the Technical Board of Appeal (the "TBA") of the EPO.

"With the notice of appeal filed, we officially initiate the process to get the decision of the Opposition Division overturned and have the ‘355 patent reinstated," said Dr. Claus Bo Svendsen, Chief Executive Officer of Forward.


"Over in the United States things have been improving. AIA and the Patent Trial and Appeal Board (PTAB) marked the end of the ‘David Kappos era’ at the USPTO."We're not against patents. We never were. We just think that quality of the patents is crucial and patents must never be granted in error. In doubt? Then do not grant. The burden of proof (for novelty, not prior art) should be on the applicant. As we shall show soon (probably later this week), the Inventor Award isn't just being offered to literal frauds but to people who were granted a patent they did not even deserve. That's the EPO anyway. This is the EPO under Battistelli.

Over in the United States things have been improving. AIA and the Patent Trial and Appeal Board (PTAB) marked the end of the 'David Kappos era' at the USPTO. Yesterday a site of patent maximalists noted that "the Board [PTAB] found GHC's claims corresponding to the count to be unpatentable for failure to satisfy the written description requirement."

This is about pharmaceuticals (General Hospital Corp. v Sienna Biopharmaceuticals) and Kevin Noonan explained the petition's basis:

The Board construed the word "about" in GHC's claims to mean "within 10%" of the value recited, equivalent to between 5.94 x 1011 and 7.26 x 1011 particles per mL of the composition, under which construction Sienna argued the claims failed to satisfy the written description requirement. The specification of GHC's '575 application defined nanoparticle concentration with regard to optical density rather than in particles per mL. Under the conversion coefficient proffered by Sienna's expert and accepted by the Board, there was no disclosure in GHC's '575 application of nanoparticle concentrations between 5.94 x 1011 and 7.26 x 1011 particles per mL of the composition. Hence, the Board found GHC's claims corresponding to the count to be unpatentable for failure to satisfy the written description requirement.


Robert Jain has, in the meantime, given another new example. Disarming another patent troll, Unified Patents wrote about Beacon Navigation. Owing to PTAB, the patent in question may soon be history. Quoting Jain:

On May 4, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 6,178,380 owned and asserted by Beacon Navigation, GmbH, a well-known NPE. The '380 patent claims a "vehicle location display of a navigation system" that provides a navigation display that includes a first map with a first scale and a second map with a different scale. This patent has been asserted in 33 district court litigations against various automotive companies such as Toyota, Suzuki, Volvo, Nissan, Daimler AG, Hyundai, and Honda.


The response from patent extremists was more or less the usual. Watchtroll has just released another anti-PTAB piece ("PTAB Reform: An Urgent Request on Behalf of Independent Inventors") and the patent trolls' lobby, IAM, goes a week back ("webinar last Monday") to distract from Oil States (quite frankly as usual). To quote the outline outside the paywall:

The Supreme Court’s decision in SAS Institute v Iancu and the subsequent guidance from the USPTO on how it will be applied has sent PTAB practitioners scrambling for their IPR playbooks. Oil States, the case before America’s highest court which challenged the constitutionality of inter partes reviews, left the controversial post-grant procedure intact, but the majority opinion in SAS promises to have a significant impact on how petitioners, patent owners and their advisers plot their post-grant strategies. On a webinar last Monday, Chief Judge of the Patent Trial and Appeal Board (PRAB) David Ruschke, along with vice-chief judges Tim Fink...


Remember that the above site, IAM, is the main source of Battistelli's lie that EPO patent quality remains high. The EPO lies about it so routinely that it has become truly comical.

Recent Techrights' Posts

Microsoft's Chatbot Strategy Resulted in Massive Losses, So Now It's Trying to Reinvent Itself as 'Hardware Company' (Once Again, Years After XBox, KIN, Windows Phone and Surface Failed Miserably)
revenues associated with Windows has fallen sharply
This Week's Letter to António Campinos About Mean-Spirited Line Managers at the European Patent Office (EPO)
Seems like a way to get rid of staff. Some will resign in anger.
 
Links 23/02/2024: 227 Microsoft Layoffs Noted in Santa Clara and Disaster in Rivian
Links for the day
IRC Proceedings: Thursday, February 22, 2024
IRC logs for Thursday, February 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] It's NOT Your PC
losing control of hardware
Gemini Links 22/02/2024: Removing Radio Ads and Being Seen on the Internet
Links for the day
Mark Shuttleworth and the Question of Liability (Debian Volunteers He Pressured Before the Suicides)
Humanity for me
Mark Shuttleworth's (MS) Canonical Running Microsoft (MS) Ads, Mischaracterising Mass Surveillance as 'Confidential' (the Usual Lie)
The money talks, so the facts are absent
Ads as 'Articles'
Money buys perception manipulation (or reputation laundering) campaigns
Abraham Raji & Debian, DebConf kayak death: search abandoned, evading liability
Reprinted with permission from Daniel Pocock
Links 22/02/2024: Chatbots Failing 'Big Time' and More Condemnations Appear of Bill Gates
Links for the day
There May be Close to 100,000,000 Laptops and Desktops Running GNU/Linux Around the World in 2024
hard to track the number
Search Engine Market Share Worldwide Shows How Badly Microsoft's Chatbot Strategy (Hopes) and Vapourware Have Failed
Bing, which was marketed as the forefront "product" for chatbots (Microsoft paid the media a lot of money for hype campaigns), gained nothing at Google's expense
[Meme] Demoralising and Putting Down Your Staff
unproductive and dangerous approach
Software in the Public Interest (SPI) & Debian obfuscated structure fooled suicide victim's family: the ultimate example of bad faith
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 21, 2024
IRC logs for Wednesday, February 21, 2024
Gemini Links 22/02/2024: What We Pass On and HTTP Header Viewer
Links for the day
Manuel Estrada Sainz (ranty), Andres Garcia (ErConde) & Debian Deaths overworking
Reprinted with permission from Daniel Pocock
GNU/Linux Rising to 8% of Desktops/Laptops in Jordan?
what statCounter shows
[Meme] If Iraq Launches an Investigation Into How Microsoft Bought OpenAI Without Paying for It
fake "money" from Microsoft
Windows Has Fallen to 13% Market Share in Iraq (It was 100% Just 15 Years Ago), GNU/Linux Rose Sharply in Recent Years
In recent years Iraq was developing its own GNU/Linux distro
Springtime is Next, Here's What We Plan for March and April
This month and next month we expect to publish something unique about EPO abuses every day
Studying the Freedom of firefox-123.0.tar.bz2
The "F" in Firefox
Abraham Raji, Jens Schmalzing & debian-private cover-ups after deaths, accidents, suicides
Reprinted with permission from Daniel Pocock
Microsoft Bribes, Keeping Regulators at Bay
crime and corruption
[Meme] The Quotas Came From Above
EPO targets
EPO Talent Planning & Architecture is Another Attack on EPO Staff and the Central Staff Committee (CSC) Explains Why
ignore the flowery words
[Meme] Just Following Orders From "The Fu**ing President" António Campinos
Salary? OBEY!
Links 21/02/2024: China Working on West-less Tech Future, More Bounties on Patent Troll Leigh M. Rothschild (Which IBM et al Failed to Dismantle at the Root)
Links for the day
Links 21/02/2024: Encryption Backdoors Deemed Not Legal, Decentralised Web Under Attack
Links for the day
Games:Steam Audio as Free Software, Hazard Pay, ChipWits, and More
7 stories for today
Julian Assange, Wikileaks & Debian-private
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 20, 2024
IRC logs for Tuesday, February 20, 2024
Links 21/02/2024: Microsoft Sued for Monopolistic Policies, More Layoffs Planned for Next Month
Links for the day