Bonum Certa Men Certa

Demand for European Patents Will Continue to Decrease If a Lot of European Patents Turn Out to be Invalid, Worthless



“No man is justified in doing evil on the ground of expediency.”

--Theodore Roosevelt



Theodore Roosevelt



Summary: The EPO's abandonment of patent justice and quality (in pursuit of so-called 'production' targets) is likely to doom the Office as the whole or render it vastly less relevant to the rest of the world

Patent quality has been severely compromised by the EPO -- to the point of being totally detached from the EPC and several other things. The Battistelli-appointed (de facto) António Campinos actively promotes software patents in Europe (using some buzzwords) and there's now this pilot (CQI) to further lower patent quality while the EPO publicly lies about its concerns on the matter.



"We know whose side the law is on, but the EPO quit obeying the law several years ago."The EPO cannot eternally rely on terrorising its judges and then covering it up. Sooner or later more and more European Patents will come under scrutiny outside EPOnia (or Haar, which is obviously outside EPOnia and thus unsuitable a venue, according to the EPC). What happens then? Can the EPO continue until eternity (or its end of life) to disregard judges' precedents (except internal judgments which are constitutionally invalid) and carry on granting fake patents? Applications will decrease in number as soon as applicants spot these trends. This is already happening.

Earlier on this week, or yesterday, Bart van Wezenbeek wrote about a District Court of The Hague case (this case's date is exactly one month ago, June 19th) in which dubious patents were assessed in European courts. To quote:

In the present case, it appeared from the prosecution file that the limitation had been introduced with a purpose, and the patentee had accepted the limiting examiner’s amendments. Taken together with the fact that the patentee could be considered a professional party with sufficient knowledge in the field of patents, this means that the scope of the claim was determined more by the literal interpretation of the claim than by the concept of the invention behind it.


In this particular case it's an American 'pharma vulture' doing the litigation against a Dutch company. Annsley Merelle Ward from a firm that boosts patent predators (Bristows LLP) wrote about it last month, whereupon we also wrote about it, noting that "European Patents are already being leveraged by foreign (US) giants, which claim to be worth hundreds of billions of dollars based on exploitative monopolies, to bully generics out of the market. Courts decide the lawsuits are baseless, frivolous."

It's not a sole example. According to this new report, "European Patent Office Revokes Second Pacific Biosciences Patent" (from GenomeWeb), the EPO has once again admitted that it granted a fake patent and it's only being 'actioned' because someone invested in correcting it:

NEW YORK – The European Patent Office this week revoked another patent held by Pacific Biosciences, according to Oxford Nanopore, the firm's main competitor.


Not even the first time!

Awful patent quality is the direct result of unprecedented pressure being put on examiners, who probably do the best they can under the unreasonable conditions/circumstances. But if this carries on, why would companies still apply for European Patents? Fewer of them would. Juve very recently took note of the decline in demand for European Patents. It's not hypothetical; it's already happening.

We've just spotted this new comment in IP Kat, published about a day ago after some IP Kat puff piece about EQEs (separate thread). To quote:

No-body serious considers the EQEs to be a gold-standard of practice. Since they are time-limited exams they will necessarily not award points in Paper C for novelty/inventive step arguments against claims that are already dealt with as added matter, but this is not real life.

In real life, added matter is included as an objection in probably the majority of oppositions, but the sensible attorney will also make arguments on novelty/inventive step and other grounds if these are viable. In real life only deciding that there is added matter, and not even considering novelty/inventive step in case your decision on added matter is incorrect, will simply waste time in the long run in the majority of cases.

One of the criticisms regularly levelled at both the PEB exams and the EQEs is that they ignore commercial realities. Typcially this is because they require you to do things that the client doesn't normally want. P6/FD4 is criticised for requiring integer-by-integer claim construction analysis that no sane client wants you to do, whilst Paper B requires you to cover-off points that no-one writing a response in real life would think worth the cost of responding to.

However, here we have an example of the exams requiring that you do not do something that the client actually typically wants - to make novelty/inventive step argument just in case your cleverly-drafted added matter arguments fail. Attorneys know that commercial reality demands this - it is only good when courts also realise this in making their decisions.


Courts should disregard this "commercial reality" and instead focus on what underlying laws (e.g. EPC, caselaw) say. The EPO likes to pretend that it is business-friendly, but the only business it's friendly to is the litigation 'industry'. To ordinary European SMEs the EPO became nothing but a liability and a menace. We know whose side the law is on, but the EPO quit obeying the law several years ago.

Recent Techrights' Posts

[Meme] Clergy of GNU/Linux (Corporations Like IBM)
Volunteers as powerless "followers" of companies that "harvest" their labour
 
Links 29/02/2024: Layoffs at Apple, Expedia, and Electronic Arts
Links for the day
Gemini Links 29/02/2024: Web Enshittification and Firefox user-agents
Links for the day
Spiked Piece/Censoreed Piece: 'Microsoft Copilot is a gimmick', says top CIO
Issues relate to connectivity and cost
Enrico Zini, Mattia Rizzolo, Plagiarism & Debian
Reprinted with permission from Daniel Pocock
There Will Be Lots More Apple Layoffs (Already Years in the Making)
The corporate media still tries to shape the narrative to prevent panic or delay market hysteria
Latest SUEPO (Staff Union of EPO) Report For The Hague Reveals EPO Does Not Obey Court Orders, Refuses to Allow Workers to Freely Talk to One Another
working in a place where communication itself is restricted
[Meme] The Oppression Will Continue Until EPO 'Quality' Improves
wonder why EPO morale is so low?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 28, 2024
IRC logs for Wednesday, February 28, 2024
Outreachy, GSoC-mentors & Debian-Private may soon become public records in federal court
Reprinted with permission from Daniel Pocock
Links 28/02/2024: Many War Updates and Censorship
Links for the day
Gemini Links 28/02/2024: Social Control Media Notifications and Gemini Protocol Extended
Links for the day
Links 28/02/2024: Microsoft the Plagiarist is Projecting, Food Sector Adopts Surge Pricing
Links for the day
Helping Microsoft 'Hijack' Developers (to Make Them Work for Microsoft, Not the Competition)
VS Code is proprietary spyware of Microsoft. Jack Wallen keeps promoting its use.
Gemini Links 28/02/2024: Groupthink and the 'Problem' With Linux
Links for the day
Android Rising (Windows Down to All-Time Lows, Internationally)
This month was a bloodbath for Microsoft
HexChat Looks for Successors to Keep IRC Growing
IRC is far from dead
[Meme] Just Make Him Happy
Y U no produce more monopolies?
End of a Long February
top 10 posts
[Meme] The EPO's Relationship With Patent Examiners
Nobody is "safe"
New Pension Scheme (NPS) at the European Patent Office Explained at the General Assembly
Investing in the future, or...
Donald Trump & FSFE Matthias Kirschner election denial
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 27, 2024
IRC logs for Tuesday, February 27, 2024
Links 27/02/2024: PlayStation Layoffs and More Oppressive New Laws for Hong Kong
Links for the day
Gemini Links 27/02/2024: Facebook as Containment Field and Depression Driven Development (DDD)
Links for the day
They're Adding Warnings Now: The Site "It's FOSS" is Not FOSS
It's better that they at least explicitly state this
Links 27/02/2024: Nevada Versus End-To-End Encryption, Birmingham Bankrupt
Links for the day
End of an Era
The Web isn't just filled with marketing spam but actual disinformation
[Meme] Onboarding New EPO Staff
You read the patent application and grant within hours
The Legacy Prolific Writers Leave Behind Them
"Free Software Credibility Index" after more than 15 years
The Ongoing Evolutionary Process of News-Reading (or News-Finding) on the World Wide Web
it gets worse
Phoronix in Google News
congratulating or welcoming Embrace, Extend, Extinguish (E.E.E.)
Google Fired Many Employees Working on Google News (Which Had Deteriorated and Became Gulag Noise, Littered and Gamed by Blogspam, Plagiarism, and Chatbot/Translator-Generated Spew), Now Comes the Likely 'Phase-out'
No wonder many yearn for the days of DMOZ and Web directories in general
IRC Proceedings: Monday, February 26, 2024
IRC logs for Monday, February 26, 2024
Over at Tux Machines...
GNU/Linux news for the past day
"It's Obvious There's No Future For Any of Us from Blizzard at Microsoft"
The rumours suggest that more Microsoft layoffs are on the way
[Meme] Who's the Boss?
"I thought EPC governed the Office"
Salary Adjustment Procedure (SAP) at the EPO and Why Workers' Salary is Actually Decreasing Each Year (Currency Loses Its Purchasing Power)
outline and update on a years-old blunder
Exposed: FSFE, Legal & Licensing Workshop (LLW), Legal Network & Modern Slavery
Reprinted with permission from Daniel Pocock