Summary: Monday is another depressing day to be seeing EPO media coverage and tweets; truth has been inverted and the narrative hijacked by patent maximalists like Team UPC, who profit more when lots of patents are granted (irrespective of their underlying illegality)

TODAY's patent system here in Europe isn't "working for the many" (but "for the few," as one British politician used to put it). Those "many" are ordinary European people and the "few" aren't even necessarily European. Some of them, seeing the power of 35 U.S.C. ۤ 101 in American courts (there are new relevant case outcomes in our daily links), don't even bother suing in the US anymore; some won't pursue low-quality patents at the USPTO either; arguably, as some law firms say so publicly and explicitly, in several areas patent quality in Europe fell below its American counterparts. It's sometimes modeled after China's (the EPO's Web site has ample evidence of that). I've no issues with China in general (human rights issues notwithstanding), but it's flooding the global system with low-quality patents (not PCT); WIPO couldn't care any less because it measures its performance and relevance solely by the number of granted patents, trademarks etc. (worldwide, based on mindless aggregation and no quality yardsticks).

"The EPO is aiming very, very low. It is also being dishonest about that. The PR people don't seem to care about the truth.""Our colleagues from Patent Information have put together this update on Asia," the EPO wrote earlier today, having linked to this new/latest newsletter (warning: epo.org link) that includes: "This section focuses on European patent law, including the case law of the EPO boards of appeals. It also covers legislative initiatives such as the unitary patent."

The EPO is aiming very, very low. It is also being dishonest about that. The PR people don't seem to care about the truth. "Our fortnightly email newsletter brings you all the latest news and information from the EPO," they said half a day ago. They then wrote another tweet (among nearly a thousand about "SMEs"). "IP strategy and management skills can help overcome the challenges presented by business model changes. That's one conclusion of our SME case studies," they said.

This is complete nonsense, but the EPO is still trying to come across or at least be perceived as SME-friendly. The very opposite is true. The lawyers also know that the opposite is true, but in order to push schemes like the UPC (named above, oddly enough) they hijack the voice of SMEs and pretend to be speaking 'for' them. The Irish Independent, for instance, has just published this self-promotional spam for "Joe Doyle [who is] is Enterprise Ireland’s intellectual property manager" (patent microcosm). So the media is run or at least composed by people who tell lies to make sales (in their law firms), citing the EPO (which routinely lies and breaks the law).

On the same day (Monday) as the above EPO tweet about SMEs they published "Patents and trademarks key to high growth" and said this about their own (sponsored by them) event:

Small and medium-sized enterprises (SMEs) also create and use IP to fuel their growth strategies. A new joint study from the European Patent Office (EPO) and the European Union Intellectual Property Office (EUIPO) found that SMEs that applied for patents, trademarks or designs early on were more likely to experience high growth compared with those that did not.

The study showed that SMEs with at least one IP right are 21pc more likely to experience a growth period and 10pc more likely to become a high-growth firm (HGF), compared to those without IP rights.

Furthermore, firms with EU-level IP rights, as opposed to national level, are even more likely (17pc) to become an HGF.

EPO and EUIPO chief economists will discuss the study findings at the Dublin IP and R&D Summit on July 11.

The summit, sponsored by Enterprise Ireland, will highlight that, in every sector, firms taking steps to identify, protect and manage IP stand a better chance of growing in global markets.

The European media is not covering EPO scandals; doesn't fit its business model...

It does, however, hand over the platform to law firms and the EPO. What a sordid state of journalism...

The FFII's President has just recalled that "Alcatel-Lucent claims a patent on the dual-queue algorithm. The company has generously offered to licence it on FRAND; such terms are highly discriminatory against free software implementations, impossible to merge the affected code into a GPL kernel..."

"They would not mind causing the destruction of all FOSS/Free software using software patents or limiting it to "Open Source", exercised only by large corporations like IBM/OIN," I responded.

Remember that OIN is a frequent guest of the EPO, claiming to be speaking for "Open Source" when its core members are actually proprietary giants.

This new article from JUVE was cited (again) by SUEPO earlier today. JUVE has been very disappointing lately. It's mostly repeating what EPO management has to say and rarely listens to actual staff, which outnumbers that management by three orders of magnitude. The latest headline is "EPO customers [sic] want Michelin-star service" (wait, what? Did you say customers?!?!) and that's why our Wiki page (days old) says "Juve (or JUVE) is a German publisher that covers patent law, especially in Europe." Sadly, the authors who have been more active recently aren't those who covered EPO scandals, notably C.S.). From the summary:

There is a new strategy at the European Patent Office. Last week António Campinos delivered what many had expected in his ambitious plan for the future. But the discontented at the EPO and in the wider European patent world are not so easily placated. A new vision would require the new president to take specific measures - and the speedy resolution of internal conflicts is a good place to start.

They're not covering any of the latest leaks and scandals. Nothing! In a sense they're also stonewalling, on and off the scene, but they're far from the sole culprit in that regard.

Another new article has just been published by Bastian Best (Bardehle Pagenberg). He is relentlessly pushing their software patents agenda. They promote what's against the law, the EPC. They boast about examiners put in a position where they have to grant patents in clear defiance of the EPC:

The field of computer simulations continues to be an exciting area in terms of patentability, last but not least because of the pending referral G1/19 in which the EPO Enlarged Board of Appeal will have to make a stance concerning the patentability of computer-implemented simulation methods.

In the meantime, the European Patent Office granted a software patent on a method for designing an optical system that satisfies a certain algebraic condition. The board took the view that the criteria for technical character presupposes that the claimed subject-matter relates to a physical entity or a physical activity.

By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the "two hurdle" approach with lots of examples.

A fellow German has just caught up with the latest news about a Microsoft-armed patent troll called Conversant (MOSAID). Its European Patents turn out to be invalid. To quote:

Justice Richard Arnold of the England & Wales High Court (EWHC)--see this post on a panel speech he gave in Munich a few months ago--has ruled that EP1797659 on a "slow Mac-E for autonomous transmission in High Speed Uplink Packet Access (HSUPA) along with service[-]specific transmission time control" is invalid due to added matter. HSUPA is a 3G protocol. Huawei's primary invalidity contention was that the claims of the '659 patent were amended pre-grant so as to read onto a particular technology in HSUPA called Uplink DRX (DRX = discontinuous reception) by adding matter into the claim beyond the content of the application as filed. Under Art. 123(2) of the European Patent Convention, such additions are not allowed, and patent claims containing such added matter are invalid.

According to the judgment, Huawei "dispute[d] essentiality, and hence infringement, and counterclaim[ed] for revocation on the grounds of added matter, obviousness and insufficiency." With the added-matter allegation having been found to be meritorious, it's game over for this Conversant patent in this UK court.

In an attempt to piggyback on that terrible Unwired Planet precedent (which Justice Birss, not the far more balanced Justice Arnold, is responsible for), which the Supreme Court of the UK agreed to hear, Conversant is seeking a global FRAND rate determination against Huawei in the UK. But apart from whether the related appeal (which Justice Arnold was well aware of, but which did not prevent him from holding a purely technical trial last month anyway) will succeed (I hope and believe it will), Conversant needs to prevail on the merits of at least one patent claim in order to have a basis for claiming anything, be the regional scope global, multinational, national, regional, or local.

According to the following comment, European Patent Office (EPO) "examiners are simply following the case law of the Enlarged Board and of the Technical Boards of Appeal which is very clear to them, but apparently not to you." Boards such as these are not autonomous though. The Campinos/Battistelli regime is pressuring judges to support a nutty agenda and also, accordingly, examiners are pushed/compelled to grant software patents in Europe in defiance of courts, the EPC and so on.

Here's a new comment about the above outcome:

Dear “Explanation given”,

That I disagree with you will not be a surprise, as due to plain logic a claim infringing Art 123(2) cannot be at the same time new and inventive. 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.

An offence under Art 123(2) occurs during prosecution, that is after filing, so that such a feature has as effective date the date at which the offence occurs, which is thus way beyond the priority and/or the filing date.

A claim which comprises matter infringing Art 123(2), i.e. which comprises features not directly and unambiguously derivable from the original disclosure can thus not have the priority or the filing date as effective date.

There is thus everything, rather than “nothing, in those provisions that prevents the EPO from establishing the relevant state of the art if a claim happens to infringe Article 123(2)”.

There is no “myth that unfortunately has taken root in the minds of a few EPO examiners”. The examiners are simply following the case law of the Enlarged Board and of the Technical Boards of Appeal which is very clear to them, but apparently not to you.

If there is an arrogance it stems from your side, not on the side of the examiners. By consider examiners as being arrogant, you merely project you own arrogance towards them. There is no doubt that examiners can take a wrong decision, and that is why there are the Boards of Appeal, to correct any wrong decision. But stating that all examiners arrogantly assume that their decision is correct is simply untrue and incorrect.

Talking about arrogance, I would like to remind you that people in glass houses should not throw stones. When pointing the finger at examiners you seem to forget that three fingers are pointing towards you!

The second part of this comment noted that "[t]he Enlarged Board has said a long time ago, cf. G 1/93, that the solutions provided in national courts are not applicable to the EPO. And it is therefore a disgrace to claim that examiners are arrogant..."

Here's the full comment:

There could be one big exception that is when the added subject-matter consists of an intermediate generalisation. In such a situation, with the intermediate generalisation removed, a division could well decide upon novelty and inventive step. On the other hand the EPO only decides upon requests which have been positively filed, cf. Art 113(2). Why should then a division take position a hypothetical request. There are also decisions of the Boards in which they took the stance that a division is under no obligation to do so.

Avoiding remittals is an aim worth to be pursued, but not at the price you claim. 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?

The role of a division is to verify whether the claims it has to examine fulfil the requirements of the EPC, no more, no less. In doing this their role is to protect society from undue monopolies, and it is in this respect irrelevant whether the proprietor thinks or not that it has an arguable case.

I understand the position taken by UK courts, but this is, with due respect to the courts, no less than a fiction which is not supported by the EPC, whether you like it or not. This does however not mean that the way UK courts deal with such topics should be shared by other jurisdictions.

In this respect, the position of the German Federal Court is much more logical. In order to assess novelty and inventive step, they simply ignore the parts offending Art 123(2). The remaining part has then a well-established effective date. As very often added subject-matter is introduced in order to get away objections of novelty or inventive step, the end is easy to foresee.

The Enlarged Board has said a long time ago, cf. G 1/93, that the solutions provided in national courts are not applicable to the EPO. And it is therefore a disgrace to claim that examiners are arrogant when they apply Art 123(2). They might wrong, but this is something different.

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.

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. For the same token, it is useless in such a situation to decide upon novelty and inventive step. There might be prior art, but it cannot be compared with the invention as the invention cannot be enabled. Are examiners then also arrogant when they apply Art 83 in this way?

It might be a long reply, but the violence of the statement justifies a detailed response.

We have sadly come to the point where in Europe judges are bullied, examiners are treated as "spoiled" and/or "overrated" and patents of any kind are treated like gold even when courts and the law (e.g. EPC) rule them out. This state of lawlessness is a considerable threat not only to every SME but to Europe's population in general. We're an "SME economy..." ⬆