Bonum Certa Men Certa

Journalism in the Area of Patents and the Domain of Patent Litigation is Dead

Media coverage is incomplete by design. It's dominated by litigation firms.

Echo chamber (media)
Reference: Echo chamber (media)



Summary: Here in Europe and in the world at large decent and balanced coverage about patents and their true (full) ramifications is almost completely absent, partly due to lack of funding for actual journalism, with the vacuum being gleefully exploited by agenda peddlers

TEN or eleven days are left for this year (well, about ten and a half, depending on one's timezone). Team Campinos/Battistelli is still promoting software patents in Europe, in clear and direct defiance of the EPC (like 35 U.S.C. ۤ 101 gets bypassed by USPTO management), but we're making progress when it comes to raising awareness. We shall continue doing so next year. The fight will undoubtedly carry on for years to come. On one side we have geeks (coders/programmers) and on the other patent lawyers/attorneys. We know what motivates the latter group (money) unlike the former.



"Remember how, perhaps 2-5 years ago, media across Europe still wrote about EPO scandals? That was before the EPO intimidated and bribed major publishers. Don't expect thugs and criminals to "play nice"; they have money, they lack ethics and putting those two things together means trouble. It spells censorship."Yesterday we noticed that IP Kat is advertising EPO events once again. As readers may recall, once upon a time they wrote about EPO corruption, but then came threats and sanctions. The 'Kat' is still dead to us... the people who run it today aren't the people who ran it 3-5 years ago (people we used to amicably correspond with). It's sad in a way; we loved the old IP Kat. People with true integrity ran it in a top-down fashion, loyal to truth more than to agenda of litigation zealots.

Remember how, perhaps 2-5 years ago, media across Europe still wrote about EPO scandals? That was before the EPO intimidated and bribed major publishers. Don't expect thugs and criminals to "play nice"; they have money, they lack ethics and putting those two things together means trouble. It spells censorship.

We've also just noticed that Managing IP is once again announcing its silly IP [sic] STARS "2019 firm rankings for IP [sic] transactions"; Way to give something back to your sponsors. Those are fake "awards" they can -- and constantly do -- use as marketing ammunition. IAM does the same thing. It's their business model. The legal 'industry' is so rigged that it sponsors media, which in turn gives it fake badges and endorsements. It's like a form of marketing 'tax' and we recently took note of Managing IP showering a particular judge with praise, almost as though they want a particular outcome (regarding UPC) 'in return'...

"People who insist we should all obey the law turn out to be some of the biggest criminals out there, but they got themselves covered with diplomatic immunity (isn't it nice to control the law, shielding oneself from it?)."Deep inside the lawyers and law firms involved know that we're right about it; maybe they don't want to admit it, but that's just how their modus operandi goes. Don't look up to them for law and ethics; just because they're called "law firms" doesn't mean they respect the law (as much as look to bypass, work around or shrewdly violate it without consequences). Look what WIPO has been doing in recent years. Quite astounding, isn't it? People who insist we should all obey the law turn out to be some of the biggest criminals out there, but they got themselves covered with diplomatic immunity (isn't it nice to control the law, shielding oneself from it?).

Anyway, there's this this new article by Adam Lacy and Thorsten Bausch. It's about the EPO's Boards of Appeal. We don't share Dr. Bausch's optimism, seeing how a bunch of dubious appointments thwarted a key case regarding the exile of all judges. To quote some bits from their article ("Entry into force of the new Rules of Procedure of the Boards of Appeal"):

As the clock strikes midnight on 31 December 2019, we hope that the new Rules of Procedure of the Boards of Appeal (RPBA) will not be the first thing on our minds. Nevertheless, the beginning of this new decade will mark the entry into force of these new rules, which look set to have a significant impact on appeal proceedings.

When first announced, the new RPBA were presented as part of the plan to increase the efficiency of the Boards without reducing the quality of the decisions issued. Several of the amendments will contribute towards these goals by changing the internal organization of the Boards. However, there is a growing realization that several of the other amendments concerning the appeal procedure as it is experienced by EPO users are unlikely to improve efficiency, and may even be detrimental to overall quality if they are not applied prudently.

In the following, we will discuss the most important changes to the appeal proceedings for EPO users, and will provide our analysis on whether they are likely to help achieve these twin goals of the EPO of increased efficiency while maintaining quality.

[...]

When the new RPBA enter into force next year, the changes discussed above will apply to all cases, including those which are currently pending, with only a few minor exceptions. As described above, we remain sceptical that the changes will achieve the goals set by the EPO of reducing the pendency times without reducing the quality of the decisions issued. Instead, there is a risk that the increased focus on formal issues will actually increase the workload of BOA members due to longer submissions being filed by the parties to the appeal in an attempt to address the various new found requirements discussed above. This may also distract from substantive issues, which risks reducing the quality of decisions. Our expectations are not without basis: research by Anetsberger et al published in EPI Information 2/2015 suggests that the stricter approach to formal issues is correlated with an increase in the number of auxiliary requests filed, the length of BOA decisions, and also the fraction of patents revoked on formal grounds.

When challenged on this point at a conference in 2018 concerning these rule changes, some of the authors of the new RPBA acknowledged that there may be a short period in which more time needs to be devoted to formal issues, until EPO users become familiar with the new strict standards. However, the hope is that once the new rules have been accepted such that parties to appeal do not try to change their case relative to the first instance, then the formal issues will no longer need to be discussed to the same extent and efficiency will increase. Only time will tell whether this will indeed prove to be the case.

So if you are an EPO user, it should be clear what your New Year’s resolution should be: Frontload your case! More emphasis needs to be placed on filing a complete case during the first instance since it will become even more difficult to introduce new requests, facts, objections, arguments and evidence when filing an appeal and also during the appeal proceedings. And when making changes to your case on appeal, it will now be even more important to identify these changes and explain why they are a suitable response to the development of the case. As the transitional provisions are fairly restricted, many of the new rules apply also to pending cases. So in addition to these New Year’s resolutions, perhaps it would not be a bad idea to wish for a time machine for Christmas.


Notice that nothing has been done to restore autonomy and independence of judges. They're therefore expected to just do what the Office presidency wants. This is so wrong on many levels; like the Trumpian situation unfolding right now in the United States amid impeachment. When there's no separation of powers there cannot be accountability.

"This is so wrong on many levels; like the Trumpian situation unfolding right now in the United States amid impeachment. When there's no separation of powers there cannot be accountability."In 2020 expect the quality of European Patents to continue to slide. The appeal boards cannot stop this (fear of consequences to one's career).

Earlier this week we saw an article in Renewables Now. It's about a new European Patent which covers energy production; some such patents were recently invalidated by a court after a lot of money had been spend on litigation (several sites like Renewables Now covered it). Here's the latest:

The European Patent Office (EPO) has granted new patents to Finnish wave energy developer AW-Energy Oy for its WaveRoller device, the company informed on Tuesday.

AW-Energy has secured patent protection for the wave energy converter in 38 countries across Europe. The use of the device in wave energy applications is protected until 2034.

The patents, EP3175111 (B1) and EP3175110 (B1), cover the energy system and power transfer application of the WaveRoller device, including several operating improvements, AW-Energy said.


How do we know that these patents are actually valid? Patents similar to these (e.g. solar panels) were recently tossed out by a relatively high court. We wrote about that several times several weeks ago.

Here's another new article, this one entitled "EU Grants Patent to TNX-102 SL, Oral Muscle Relaxant for Fibromyalgia in New Phase 3 Trial" (they can't even tell the difference between EU and EPO -- not the same thing at all!)

The European Patent Office (EPO) has issued a patent covering the intellectual rights to the composition and formulation of TNX-102 SL, Tonix Pharmaceuticals’ investigational under-the-tongue muscle relaxant now in pivotal clinical trials to treat fibromyalgia and other disorders.

The company is currently enrolling adults with fibromyalgia into the Phase 3 RELIEF (NCT04172831) study, testing TNX-102 SL as a sublingual tablet taken at bedtime. Criteria for eligible patients are available here; U.S. trial locations and contacts are here.


Again, are these sorts of patents valid? Considering the lack of compliance with the EPC -- a growing problem the EPO admits internally -- it's becoming a round of Russian roulette. Many European Patents turn out to be bunk, bogus, invalid. Invalid Patents (IPs)? Or European Patents (EPs)? Those two things might become synonymous one day...

Yesterday we saw new EPO puff pieces that totally miss the point. Illicit Trade published this laughable article about Africa. We all know that copy-pasting press releases is not journalism but dissemination (usually of PR and marketing, i.e. self-serving lies crafted by salaried propagandists) and this is what we have here:

The European Patent Office (EPO) has agreed to help the African Regional Intellectual Property Organisation (ARIPO) build capacity to examine patent applications validated in its member states.

On Monday, EPO President António Campinos and ARIPO Director General Fernando dos Santos signed a memorandum of understanding in Zimbabwe.

[...]

Last month, the EPO signed a reinforced partnership agreement with Intellectual Property of Indonesia, which was the second intellectual property office in Southeast Asia to enter into such a deal with its European counterpart.


Where's the actual investigation? Nothing. They just parrot whatever EPO management claims. Is this what so-called 'journalism' has been reduced to? It's not too hard to just copy-paste a bunch of self-serving nonsense, making use of one's English skills (sometimes degree) to rephrase things a little. But that's not journalism! They're not fact-checking anything here, they relay falsehoods instead!

"They just parrot whatever EPO management claims. Is this what so-called 'journalism' has been reduced to? It's not too hard to just copy-paste a bunch of self-serving nonsense, making use of one's English skills (sometimes degree) to rephrase things a little."Sadly, as we've been saying for years, the death of journalism means that law firms now directly "write" 'the news'...

Here's Daniel Law's Ricardo Dutra Nunes. Having promoted in Lexology his corporate article (marketing), we're made to think that "Patent Prosecution Highway" (PPH) is desirable to all. It's not. Ricardo Dutra Nunes just celebrates litigation, his bread and butter, even across continents. Of course the patent maximalists love lawsuits and hurried examination; the most expensive 'product' to sell are lawsuits, even frivolous ones! To quote Ricardo Dutra Nunes (calling it "good news"):

We are writing to report good news: in addition to recent measures implemented by the Brazilian PTO towards fixing the patent backlog in the course of the next 18 months, the Brazilian PTO decided to make all Patent Prosecution Highway Programs tech-neutral as of December 1, 2019 (Rule 252/2019). Basically, the PPH Programs are no longer limited to certain areas of technology, so applicants are now able to both expedite examination and increase chances of allowance no matter the application’s area of technology.


Who is this "good news" to? Lawyers. What does that mean for Brazilians? It just makes them more vulnerable to litigation. Let's face it, Brazilian companies rarely sue rivals overseas.

"What's troubling is the degree to which they control 'the news'; they use their money to distort the message the general public is exposed to."We've also just noticed this Lexology promotion of marketing by Tilleke & Gibbins's Chanraksmey Sokun, Sokmean Chea and Sovanrotha Sok. "Between 2010 and 2018," they say, "around 30 Korean patent applications were filed with the MIH, but none have been granted. According to the MIH, Cambodia has so far granted 160 patents out of an estimated 930 applications. It is important to note that a majority of the granted patents were registered under the current facilitation programs the MIH offers in cooperation with the Intellectual Property Office of Singapore (IPOS), the Japan Patent Office (JPO), the European Patent Office (EPO), and the China National Intellectual Property Administration (CNIPA)."

Who is this good for? Certainly not Cambodians. Or even Koreans. It's all about law/litigation firms. What's troubling is the degree to which they control 'the news'; they use their money to distort the message the general public is exposed to. Nobody bothers refuting them, so there's an echo chamber effect.

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