tag:blogger.com,1999:blog-5574479.post301353687378663486..comments2024-03-18T17:10:35.838+00:00Comments on The IPKat: EPO Enlarged Board tells Chairman: "disobey President when necessary"Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger81125tag:blogger.com,1999:blog-5574479.post-62072755688170630142015-03-06T10:49:50.149+00:002015-03-06T10:49:50.149+00:00Well somebody who puts a paper on the internet not...Well somebody who puts a paper on the internet not wanting it to be circulated? The URL does bot point to some professional patent haters. Neither greenpeace nor mr. Stallman<br /><br />Partially invalid is still invalid. Partial invalidity speaks possibly for the patent attorney drawing it up and adding something somewhere deep in the description which is weird enough not to be considered obvious. From the patent examiners point of view this makes no difference. He or she granted invalid claims. This on the first level is a personal inadequacy when the number approach or exceed 80% it is an institutional inadequacy.<br /><br />The paper suggesst using logic that robust patents are attacked more often and provides empircal data from interviews. The paper is not alone. Bardehle's Papertigers go in the same direction and quote even higher numbers on more recent data. Patent offices are not only inadequate, they have become more so over time. Due respect for your opinion but your experience is only a single data point, and possibly an interested one.<br /><br />The article explains that and why unsettled patents are even weaker, the free beer approach.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-57748341855798260112015-03-06T10:19:54.389+00:002015-03-06T10:19:54.389+00:00Your latest Berkeley paper is marked "Early d...Your latest Berkeley paper is marked "Early draft, please do not circulate. Comments welcome". Here are a few comments.<br /><br />The paper reveals just how unreliable the data is.<br /><br />Only 35% of the patents were found "fully invalid". The way you get to 75% is by adding in another 40% which were found "partially valid".<br /><br />This 40% covers a complete range of possibilities: <br /><br />At one end, the court will have only required a minor amendment, and the patent emerges unscathed. The attacker has lost, and the patent remains effective against infringers.<br /><br />At the other end, maybe only sub-claim 6 remains valid, covering a feature that no-one is interested in.<br /><br />And every possibility in between.<br /><br />You simply cannot form reliable conclusions on such poor data. You especially cannot apply the results from a tiny minority of litigated patents to the vast majority which are not litigated, on the basis of a handful of interviews and a small survey of opinions.<br /><br />Note also that the data only covers cases where the court reached a decision. 55% of cases settled instead. Again, that will cover a huge range. In some cases the infringer might have given an undertaking to stop selling his product. In others, the patentee might have granted a licence. That might or might not have been what the patentee wanted all along. <br /><br />The paper just gives a few anecdotal opinions to suggest that licences were granted. And then concludes - with no evidence - that therefore the patent was invalid. My own equally valid opinion - based on direct experience - is that this is only one of a number of possible reasons.<br /><br />It also suggests - again with no evidence, and contrary to my direct experience - that only robust patents are attacked.<br /><br />The paper asks for comments. Here's one. Rubbish.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-79495417013086827582015-03-06T08:28:29.030+00:002015-03-06T08:28:29.030+00:00Sometimes because the point has gone. If the infri...<i>Sometimes because the point has gone. If the infringement court finds against you the quickest way back to market is to take a licence.</i><br /><br />Sometimes but most of the time not, claims above interesting article.<br /><i><br />So jointly conspiring to affect trade in an anti-competitive manner by keeping the other suckers off the market. Actionably?<br /></i><br />Is not this what patents are about? Monopolies such as patent are hardly a means to enforce competition. First you try alone and you share if you have to,<br /><br /><i><br />In short, the German litigation system is so loaded in favour of the patentee, it is not surprising a lot of money is spent obtaining and attacking rights.<br /></i><br />80 % invalidation is hardly an incentive to assert invalid rights and not a sign of patentee friendliness.<br /><br />The high litigation rate is only the result of very low procedural cost in Germany. This appears a strength, you can actually afford to defend yourselves from mostly unjustified claims. A court unlike a patent office does not have to care about selffinancing. If it were like that tribunals would only hand out acquittals and dearh sentences as they are arguably cheaper than feeding someone in jailAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70444535919367477102015-03-06T07:36:47.680+00:002015-03-06T07:36:47.680+00:00"Nobody right in his mind ever tries to enfor..."<i>Nobody right in his mind ever tries to enforce a weak patent before a court in the first place.</i>"<br /><br />There are plenty of patent holders who are in their right minds asserting weak patents, particularly in Germany. Separation of infringement and validity proceedings means that an infringer of an invalid right can be impeded for a significant time before the right is found invalid. Often, small companies just cannot take the risk.<br /><br /><i>In Germany more than half of revocation proceedings are settled out of court.</i><br /><br />Sometimes because the point has gone. If the infringement court finds against you the quickest way back to market is to take a licence.<br /><br /><i>According to reliable source (see above) the proprietor offers the alleged infringer a free beer, so he does not loose the strong but nevertheless invalid patent all together</i><br /><br />So jointly conspiring to affect trade in an anti-competitive manner by keeping the other suckers off the market. Actionably?<br /><br />The amount of patent litigation in Germany is seen by some as a strength. It is certainly good for litigators, and probably prosecutors, as the system is certainly an encouragement to get and maintain even invalid and weak patents. This also encourages opposition to clear the path (more work for attorneys) - that is why <a href="http://ipnoncredere.blogspot.co.uk/2012/07/bifurcation-opposition-representation.html" rel="nofollow">most opponents at the EPO are German.</a><br /><br />In short, the German litigation system is so loaded in favour of the patentee, it is not surprising a lot of money is spent obtaining and attacking rights.Meldrewhttps://www.blogger.com/profile/09841440718012449720noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38210062553674576602015-03-06T06:35:02.653+00:002015-03-06T06:35:02.653+00:00The terms weak and strong patents as opposed to va...The terms weak and strong patents as opposed to valid and invalid patents is a giveaway.<br /><br />Weak patents are those which can be invalidated easily strong patents which need some effort to invalidate, in the end they are both -> invalid.<br /><br />Nobody right in his mind ever tries to enforce a weak patent before a court in the first place. The proprietor of such an invalid weak patent risks to loose not only the cheap revocation proceedings, but also the expensive litigation proceedings and most of all the expensive overvalued patent itself.<br /><br />The alleged infringer has no reason not to try cheap revocation.<br /><br />It is the proprietor who selects what he tries to enforce, Non-enforcement is a sure sign of a weak patent.<br /><br />In Germany more than half of revocation proceedings are settled out of court. According to reliable source (see above) the proprietor offers the alleged infringer a free beer, so he does not loose the strong but nevertheless invalid patent alltogether.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32956267130294628212015-03-06T05:58:14.864+00:002015-03-06T05:58:14.864+00:00Hard evidence that it is the strong patents that g...Hard evidence that it is the strong patents that get invalidated <br /><br />http://www.law.berkeley.edu/files/Henkel_Joachim_IPSC_paper_2014.pdf<br /><br />The 80% invalid granted patents is actually only a lower limit.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-24702304065828380432015-03-05T23:19:58.646+00:002015-03-05T23:19:58.646+00:00It's not just that only a tiny minority of pat...It's not just that only a tiny minority of patents are subject to litigation after grant. People usually only launch nullity actions against weak patents, where they believe they have a good chance of winning. So the majority of strong patents do not appear in your statistics. It was pointed out previously that your figures are invalid because of selection bias. You have not addressed this.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72409179068751463412015-03-05T22:01:43.933+00:002015-03-05T22:01:43.933+00:00It it statistical nonsense to say that 80% of gran...It it statistical nonsense to say that 80% of granted patents are invalid, for the simple reasons that only a minority of patents granted are subject to litigation during their life time.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78044546261930194422015-03-05T21:41:16.452+00:002015-03-05T21:41:16.452+00:00It it statistical nonsense to say that 80% of gran...It it statistical nonsense to say that 80% of granted patents are invalid, for the simple reasons that only a minority of patents granted are subject to litigation during their life time.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-16404791661377518872015-03-05T21:25:58.352+00:002015-03-05T21:25:58.352+00:00Some of what the last post says just confirms the ...Some of what the last post says just confirms the previous one; some is slightly inexact,<br />In most countries you have no examination whatsoever and hence no cost.<br /><br />In Germany you have deferred examination but any third party can trigger examination of any application at a low cost.<br /><br />That is half way to a registration office which would be a reasonable approach. I.e, only examine patents somebody is interested in i.e. Far less than 1% of the cases.<br /><br />The examination as practiced by the European but also the German office resulting in 80 % invalid patents does not produce the added value it was intended for, legal certainty. Neither for the proprietor and less so for the public which is more deplorable.<br /><br />There are rumors that the EPO is about to introduce indefinitely deferred examination under the ironic header or "early certainity". You get a first opinion you don't have to answer to but you are not bothered by any further logorrheic communications unless you expressly ask for it.<br />Given the poor quality of both examination and appeal this just acknowledges the sad reality.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-18764789002864405142015-03-05T20:19:12.994+00:002015-03-05T20:19:12.994+00:00"The Epo drains money from the national offic...<i>"The Epo drains money from the national offices to finance itself. Before a patent is validated, the national offices see no money whatsover. All cash flows to the EPO."</i><br /><br />Whereas if the applicant filed national applications instead, the national patent offices would actually <b>lose</b> money. The fees they receive during the application phase do not usually cover the cost of examination.<br /><br /><i>"Most patents are not validated in most member states."</i><br /><br />But that would also be true - probably more so - if the applicant had to file individual national applications instead.<br /><br /><i>"Applicant's actively keep the application pending before the EPO for financial and legal reasons. They save on national fees, national attorney costs and translations"</i><br /><br />Have you seen the size of the EPO's annual renewal fees? Since most patents are not validated in most member states, the national renewal fees payable after grant are usually much lower.<br /><br /><i>"and during pendency before the EPO patents cannot be legally challenged before a proper national court."</i><br /><br />Nor can national applications be legally challenged during pendency. It's true that the pendency times in the EPO are far too long, but they may also be long in some national offices. For example, in Germany the applicant can wait seven years before he even requests examination.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2847490415631704362015-03-05T19:35:38.152+00:002015-03-05T19:35:38.152+00:00Oh, that is why they are now training divorce lawy...Oh, that is why they are now training divorce lawyers to become patent judges!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50684717767718338932015-03-05T19:05:18.614+00:002015-03-05T19:05:18.614+00:00The Epo drains money from the national offices to ...The Epo drains money from the national offices to finance itself. Before a patent is validated, the national offices see no money whatsover. All cash flows to the EPO. Most patents are not validated in most member states. Applicant's actively keep the application pending before the EPO for financial and legal reasons. They save on national fees, national attorney costs and translations and during pendency before the EPO patents cannot be legally challenged before a proper national court. Its a win-win-loose situation. The winners are applicants and the office, the looser is the national public without a voice loosing both legitimate national fees for national rights and more so legal certainty. The Boas with their absurd pendencies further delay national fees and legal certainty. Many patents leave the office after a decade and more and still 80% of them are invalid.<br />You may or may not agree with British or German or French Courts but comparing their verdicts with that of the BoAs on a merely formal level, is like comparing Shakespeare with a cartoon.<br /><br />It would be an extremely dangerous experiment to man the European Patent Courts with the personnel coming from the BoA or let the BoAs do some of this job. With the establishment of European Patent courts there is no more need or room for paralegal judges.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75010102885296107582015-03-05T11:37:33.066+00:002015-03-05T11:37:33.066+00:00George,
Your comment is in my opinion spot-on, exc...George,<br />Your comment is in my opinion spot-on, except you forgot to mention that most of the rants are also displying woeful ignorance.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21681196357659593092015-03-05T01:57:34.251+00:002015-03-05T01:57:34.251+00:00We now have in the same comment an allegation that...We now have in the same comment an allegation that the EPO is draining money from the national offices (first line) and another allegation that "selffinancing" is the reason for poor quality (last line). <br />So, which financial model is it to be, draining money from others or self financing? It can't be both!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45705720131050062562015-03-04T23:47:03.758+00:002015-03-04T23:47:03.758+00:00Wow, this thread has become negative as can be. So...Wow, this thread has become negative as can be. Somebody unleashed the death squad? Whining has been replaced by ranting. Not sure that we are better off though.Georgenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66852407498193540922015-03-04T21:35:23.012+00:002015-03-04T21:35:23.012+00:00The EPO does nothing but drain money from the nati...The EPO does nothing but drain money from the national offices. As long as the application is pendent before the office they get absolutely nothing. Once a patent is validated the EPO gets half of the national annual fees. This is free money but for the EPO. Most patents with the exception of pharmancy only get validated in a fraction of the member states. All others see no money whatsoever from the office.<br />Many EPO insiders project their own revenue and profit driven approach on the national offices which is actually absurd for most member states other than Germany, Britain and the NL. Actually selffinancing is the inherent reason for the poor quality of the office.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70004479975575118052015-03-04T21:25:28.041+00:002015-03-04T21:25:28.041+00:00The Boas are reviewing the granting processes when...The Boas are reviewing the granting processes when they review refusals, as a refusal is a possible outcome of the granting process evn though some first instance departments may have forgotten.<br /><br />It is them the Boas who set the threshold for the examination inside the EPO. And somebody else herein above has provided the evidence how totally inadequte the examination process is when reviewed by proper courts.<br />They act as an appeal instance also in oppostions, opposition being a petty revocation and their results are much mire leniant and infinitely slower. Their pendencies being a lot longer than that of proper courts they do nothing but pronlongue legal uncertainty.<br /><br />Their remission rate to the previous instance for further prosecution is abolutely scandalous.<br /><br />Oppositions over the years have dropped in numbers because for a relatively modest cost you can get a professional ruling in Germany by a proper court as opposed to one of interested amateurs with a proper procedure and timeliness and a desirable outcome for the party asking for revocation. While this has no immediate effect on all member states, a negative ruling in either Britain or Germany practically kills the patent Europewide.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50419494893433947232015-03-04T19:12:43.423+00:002015-03-04T19:12:43.423+00:00MaxDrei, you are right. The member states get so m...MaxDrei, you are right. The member states get so much out of this System: not only enormous amounts of renewal fees ("Money for Nothing"), but cooperation programmes or the European Patent Academy (created solely for Training purposes for the national Offices) etc. There are so many ways Money is flowing from the EPO towards the member states. It would be an illusion to expect them to vote against the President.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68460950723359581732015-03-04T18:53:11.023+00:002015-03-04T18:53:11.023+00:00Is all this ranting about the lenience oft he BoA ...Is all this ranting about the lenience oft he BoA backed up by any evidence? The data concerning the validity of the EPO patents are irrelevant because the BoA are not reviewing the granting process but only the refusal and opposition decisions.<br />I could only find the statistics in the EPO official Journal dedicated to the case law (issue 5 of 2014) and by looking at the inter partes cases in order to make a meaningful comparison with national courts the data do not seem to support the thesis of the lenient boards.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73312461861033384072015-03-04T16:05:45.622+00:002015-03-04T16:05:45.622+00:00"Grab" as in the world famous (in the UK..."Grab" as in the world famous (in the UK) inventor <a href="http://worldwide.espacenet.com/publicationDetails/biblio?DB=EPODOC&II=2&ND=3&adjacent=true&locale=en_ep&FT=D&date=18930715&CC=GB&NR=189311604A&KC=A" rel="nofollow">Thomas Grapper</a>?<br /><br />Or like Goody Allub scribbled, <a href="https://www.facebook.com/video.php?v=1076998935168" rel="nofollow">Abt natural, I'm pointing a gub at you</a>.<br /><br />(Why did he run the risk, he could have filed a patent instead).<br /><br />I know, I know, the topic is dead serious, but: SCNR.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72074605543842775912015-03-04T15:52:05.077+00:002015-03-04T15:52:05.077+00:00MaxDrei,
I believe you've hit the proverbial n...MaxDrei,<br />I believe you've hit the proverbial nail on the head!<br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56445906795121000802015-03-04T13:53:23.962+00:002015-03-04T13:53:23.962+00:00Why the acqzuiescence in the AC? Because its memb...Why the acqzuiescence in the AC? Because its members are the national governments. They drink a stream of cash, which is dispensed to them by the EPO President (who seems to divide up the EPO profit cake as he pleases, in his absolute discretion, in a way known only to his closest cronies).<br /><br />The Boards of Appeal are expensive for the EPO to run. So, for as long as they are part of the EPO, they suck off some of the cash, before it can flow to the Member States.<br /><br />Does that explain it?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82113079586462818722015-03-04T12:48:06.183+00:002015-03-04T12:48:06.183+00:00Anonymous 11:32 "A system so broken that it g...Anonymous 11:32 <i>"A system so broken that it gets more and more applications per year?"</i><br> <br>It appears you believe the PR talking about <i>"filings"</i> and read into this <i>"applications"</i>.<br><br />This shows that advertising works!<br><br />See my blog for a <a href="http://ipnoncredere.blogspot.co.uk/2015/03/a-fair-assessment.html" rel="nofollow">fair assessment</a> of the 2014 results.<br><br />In summary:-<br />- application numbers at the EPO are relatively stagnant but show signs of recovery; <br />- numbers could recover strongly if the European economy recovers strongly;<br />-the unitary patent may be an additional driver to increasing application numbers;<br />-as yet the EPO appears not to have positively repelled applicants.Meldrewhttps://www.blogger.com/profile/09841440718012449720noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-43196433117754764012015-03-04T12:46:18.767+00:002015-03-04T12:46:18.767+00:00The post by Anonymous @ 11:03 sounds in the old sa...The post by Anonymous @ 11:03 sounds in the old saw that patents are not <i>really</i> needed anyway.<br /><br />Be it cause or correlation, I care not, nor does it matter much, but the identity remains: there are NO modern advanced societies without a patent system.<br /><br />Until such a time that the "advocates" for a opposite view come forward with an example of a nation so willing to drink their koolaid and abandon IP protection as the alleged masses so demand, well, I will just dismiss those messages as being the same old propaganda as it ever was.Anonymousnoreply@blogger.com