Bonum Certa Men Certa

The EPO's 'Early Certainty From Google' Approach (“Closest Prior Art”) Means Loads of Fake European Patents and Frivolous Litigation/Shakedowns

Good for wealthy monopolists and their law firms; bad for everybody else

Loads of money



Summary: Yet again, quite frankly as usual, the UK Supreme Court tosses European Patents right in the wastebasket; it's clear that the only winner is a bunch of law firms which bicker over patents that should never have been granted in the first place

SEEING that Kluwer Patent Blog's best author has just dealt with the EPO's controversial "Closest Prior Art" approach ([1] below; we wrote about this in [1, 2, 3, 4]), and moreover seeing that the UK Supreme Court [2,3] threw out European Patents that "sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice," we're witnessing yet more evidence of the comprehensive failure of the EPO under Benoît Battistelli and António Campinos, whose rush to grant as many patents as possible by rushing searches (aka Early Certainty From Google) led not only to grants of software patents in Europe but also grants/awards of monopolies that courts everywhere would reject (if one can afford the legal challenge; it's expensive to appeal all the way up to the UK Supreme Court). AstraZeneca Kat wrote about it yesterday [2], calling it "a majority judgment"; why were these patents granted in the first place? And how many European Patents, if scrutinised properly, would suffer the same fate? SUEPO showed (about a year ago) how legal validity associated with European Patents had collapsed. One can guess how the EPO's management responded.



Related/contextual items from the news:


  1. The Problem of the “Closest Prior Art”

    As readers of this blog will be aware, the EPO applies a quite peculiar and unique method to the analysis of inventive step, the “problem-solution approach”. This approach breaks the statutory question of Art 56 whether the invention was, having regard to the state of the art, obvious to a person skilled in the art, down into a 3-step test. This involves (1) the determination of the “closest prior art”, (2) the formulation of the “objective technical problem”, and (3) the assessment whether or not the claimed invention would have been obvious to the skilled person. One might quip that this approach has replaced a single problem (the determination of obviousness/inventive step) with three problems. This is because parties nowadays frequently argue about (i) what the closest prior art was, (ii) what the objective problem was, and of course (iii) whether the invention, expressed as the solution to the objective technical problem, was obvious or not at the priority or filing date. This contribution will focus on question (i), i.e. the question of what is (or should be) the closest prior art, and whether the EPO’s approach towards the closest prior art has changed in the last couple of years.

    [...]

    The concept of the closest prior art within the problem solution approach has been invented to facilitate and objectivize the examination of inventive step. The facilitation resides in the presumption that if the invention is not obvious starting from the closest prior art document, then it will a fortiori also be non-obvious starting from further remote prior art. Thus, if and when one document can be identified clearly as being closest prior art, the examination of inventive step can be focused and limited on this one document (in combination with any further document from the state of the art). The question is what happens in cases where (a) several documents are (arguably) about equally close to the invention and (b) if no document qualifies as a sensible starting point. In scenario (a), an Opponent was, at least in the past, usually allowed to present multiple attacks for lack of inventive step even if they start from different “closest” prior art documents.

    [...

    At present, T 320/15 seems to not have been used by other Boards to prevent an Opponent from presenting more than one inventive step attack. Therefore, one should not overestimate the practical relevance of this decision, in particular for the appeal stage. This is even more so because several recent decisions rather point in the opposite direction, supporting a more liberal approach for the choice of the starting point for the assessment of inventive step.

    Albeit in a somewhat unusual context, the criteria for the determination of the closest prior art were put to a test in T 405/14. In this case, the Appellant argued that the skilled person would never start from document D2 when document D1 was available. This argument relied on the view that document D1, in addition to sharing many features with the claimed invention, also addressed the same problem as the invention, which was (arguably) not the case for D2.

    [...]

    This would then no longer be so different from the inventive step approaches taken by at least some national courts in EPC member states. In Germany, for example, the concept that there is a preference of a “closest” prior art and that the examination of inventive step can be stopped once it has been shown that the invention is not obvious starting from the “closest prior art”, has long been dismissed and criticized. The prevailing opinion in Germany is that inventive step must be present vis à vis the entire prior art and should not depend on the choice of the starting point in an individual case.

  2. BREAKING: Kymab caught the mouse as sufficiency strengthened by UK Supreme Court in Regeneron battle ([2020] UKSC 27)

    The UK Supreme Court today found Regeneron's valuable antibody platform technology patents invalid for insufficiency. In doing so, the UK Supreme Court overturned the Court of Appeal decision and confirms the strong sufficiency requirement in the UK. The Supreme Court decision places emphasis on the principle of sufficiency that a patent claim should be enabled across its whole scope. As summarised by the UK Supreme Court itself, the Court of Appeal reasoning was seen as increasing the rewards obtainable by inventors in a complex, rapidly developing field like genetic engineering. The Supreme Court found in a majority ruling that the Court of Appeal swayed the balance too much in favour of patentees in a way that was not warranted by UK or EPO law. The full UK Supreme Court judgment can be read here.

    [...]

    In a majority judgment, the UK Supreme Court found the Court of Appeal's reasoning logically sound, but ultimately considered it to be inconsistent with the UK and EPO law on insufficiency. In particular, the UK Supreme Court understood the principle that a patent should enable substantially all products within the scope of a claim at the priority date to be part of the bedrock of both UK and EPO law. In the words of Lord Briggs, who led the majority judgment, "[t]o water down that requirement would tilt the careful balance thereby established in favour of patentees and against the public in a way which is not warranted by the EPC, and which would exceed by a wide margin the scope for the development of the law by judicial decision-making in a particular Convention state".

    The Supreme Court thus did not think the patent bargain was satisfied if the benefits of an invention could only be realised after the priority date, if and when all embodiments within the range could be made. Kymab's appeal was therefore upheld, and the Regeneron patents found invalid for insufficiency.

    In a dissenting view, Lady Black first noted agreement between the Court of Appeal and Supreme Court on the legal principles. For Lady Black, the two courts disagreed in the application of these principles to the case in question. Contrary to the Supreme Court majority, Lady Black agreed with the Court of Appeal that the invention related to a broad general principle, that this principle was employed in all mice across the range of the claim, and that the patent should be rewarded by a commensurate broad scope of protection.

    A key part of the UK Supreme Court judgment are the "principles of sufficiency" provided on paragraph 56. According to principle vi)

    "the patentee has to demonstrate in the disclosure that every embodiment within the scope of the claim has been tried, tested and proved to have been enabled to be made. Patentees may rely, if they can, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made. But they take the risk, if challenged, that the supposed general principle will be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date" (emphasis added).



  3. Kymab holds off Regeneron in patent fight on home turf

    Chalk one up for antibody maker Kymab. The U.K. Supreme Court invalidated a pair of Regeneron patents around antibody-producing mice, putting to rest a lawsuit Regeneron filed against Kymab seven years ago.

    Known as patents ‘287 and ‘163, or the “Murphy patents,” they sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice. Regeneron sued Kymab in U.K. High Court in 2013 alleging that its Kymouse technology infringed patents covering its Velocimmune platform.

    The Supreme Court upheld 4-1 the decision of a High Court from 2016 to revoke Regeneron’s claims, reversing an Appeals Court’s verdict that the patents were valid.

    [...]

    The U.K. verdict is just the latest in a string of decisions that have come down on Kymab’s side. In April, the U.S. Patent and Trademark Office’s Trial and Appeal Board shut down a request from Regeneron to invalidate four Kymab patents. And that decision followed similar ones from patent offices in Japan and Australia—the Japanese Patent Office upheld Kymab’s patents in unappealable decisions, while IP Australia rejected Regeneron’s opposition to a Kymab patent on all grounds. Regeneron has appealed the latter decision.

    For its part, Regeneron emphasized that the Supreme Court decision applies only within the U.K.

    "The decision renders the two patents invalid and revoked in the UK only. Regeneron’s rights concerning these patents in other European jurisdictions remain in full force and effect," the company said in a statement. "The 287 patent validity was upheld at the Europe-wide level by the Technical Board of Appeal of the European Patent Office (“EPO”) in 2015, and the 163 patent validity was upheld by EPO Opposition Division in 2018. Proceedings before the EPO’s Technical Board of Appeal on the 163 patent are ongoing.



Recent Techrights' Posts

Someone Should Remind Microsoft Lunduke That Microsoft Hires Many Sexual Criminals and Pedophiles as Well
Microsoft Lunduke on an "expedition" to find one or more perverts, then generalise to everyone in the "community"
Cash Machines (ATMs) Make Mistakes and They're Proprietary Software
Correcting mistakes is a colossal challenge
Yes, Microsoft is the Problem
"I am no MS shill."
Another Failed Use Case for Chatbots (LLM): Legal Advice and Analysis
They're just some self-discrediting toy that costs way too much to operate
Nonfree Software in My Bank, by Richard Stallman
Updated 8 hours ago
 
Links 29/07/2025: Bad Climate and "Fair Software Licensing" Blasts Microsoft
Links for the day
Links 29/07/2025: Data Brokers Gone Wrong/Rogue and "Copyright Thicket"
Links for the day
Slopwatch: Linuxconfig.org, Linuxsecurity.com, Fagioli, The Register
Today's "Slopwatch" isn't the first article about LLM slop
We Cover Topics Other Sites Are Too Afraid to Cover (Even When They Know the Facts)
It's not that they doubt the truth, they just realise there may be consequences for talking about it
They Try to Tell Us the Free Software Foundation Inc is Dying, But Its Revenue Doubled Since the Dot-Com Bubble Burst
Being in "Activism" is never easy; but it does positive things for society
It's About the Cost of Workers, Not the Fictional Skills Shortage (That Does Not Exist, the Media Spreads False and Sometimes Self-Fulfilling Narratives)
This issue isn't limited to computing, some dub it "globalism"
Links 29/07/2025: More Pushbacks Against Slop and More Praises of Tom Lehrer
Links for the day
Gemini Links 29/07/2025: Purple Yarrow and Understanding Op Amps
Links for the day
This Monday WebProNews Absolutely Flooded the Web With Fake (LLM Slop) 'Articles' About "Linux", Google News Promoted Them as Legitimate
All of the following are fake articles attributed to pseudonyms or authors that don't exist; the images are also slop. Why does Google promote these?
Linuxiac is Not a Slopfarm, But at Least Some of Its Articles Are Machine-Generated Fakes
what we said about it was correct
Expect More Microsoft Layoffs
"Are more job cuts coming?"
Microsoft Behaving Like It's Running Out of Money to Pay Salaries
Does that seem like the behaviour expected from a company which claims it is "worth" trillions?
LWN Downtime Due to Linode, Not LLM Bots
"I’ve received an email letting me know that there is a potential for data loss."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 28, 2025
IRC logs for Monday, July 28, 2025
Links 28/07/2025: Science, Health, and Conflicts
Links for the day
Gemini Links 28/07/2025: Healthy Self-Image With Autism and a "New Life"
Links for the day
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles