tag:blogger.com,1999:blog-5574479.post6078715625191414523..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: "Keeping the patent system fit for purpose"Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-5574479.post-30243076718864857932010-03-06T12:02:29.587+00:002010-03-06T12:02:29.587+00:00This is in reply to Jeremy on
Friday, March 05, 20...This is in reply to Jeremy on<br />Friday, March 05, 2010 9:43:00 AM<br /><br />I agree that there will be a backbone of opposition cases filed against well-examined patents by organisations that can afford it and to ensure freedom to operate. If they are founded in prior art it strengthens claims that survive an appeal. And if they are upheld it is feedback on examination well done.<br /><br />However, I cannot agree that “badly examined patents ........ they're certainly less of a problem than mountains of unexamined patents.” The reason is that the granted claims can form the basis of quite legitimate infringement cases. A sensible proprietor of such a patent will wait for 9 months until such a suit is filed, and this means that the postponement (frequently against deposit of an amount of money) that you can obtain in court if an opposition is filed is no longer available. A European patent attorney filing an opposition is probably much less expensive than a barrister in an infringement case. My conclusion is that unexamined patents create a legal insecurity on the one hand, but time to collect evidence of e.g. prior use. But a badly examined patent creates a legal security that you are in danger of being attacked.<br /><br />As there are many more potential infringers (manufacturers) than patent proprietors, all manufacturers ought to be as vigilant towards what happens in the patent field as they are towards developments in local tax rules. This has become much more difficult, however, as the translation requirements for granted European patents have slackened: who in their senses really believe that SMEs in small countries are happy with descriptions written in English?<br /><br />Kind regards,<br /><br /><br />George Brock-NannestadAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-59550618872273180952010-03-05T13:49:23.086+00:002010-03-05T13:49:23.086+00:00Am I alone in thinking that Brimelow has been far ...Am I alone in thinking that Brimelow has been far and away the worst EPO president? She spends time pontificating on cost savings by work sharing between offices which apply different laws, but presides over an organisation which repeatedly introduces highly burdensome procedures to mis-address perceived problems (new divisional rules, refusing to search additional inventions, refusing to examine searched inventions unless they are at the front of a set of claims - to identify just a few). All of this forces applicants to spend much more money to get a patent than they should have to. And don't get me onto the subject of the size of their official fees.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82913668269657549722010-03-05T10:52:32.605+00:002010-03-05T10:52:32.605+00:00Jeremy, the EPO annual report, long ago, would pub...Jeremy, the EPO annual report, long ago, would publish the nationality of the Opponent. Every year, 70% would be German. Why that? Because it's their culture. Why that? Because of their bifurcation between infringement proceedings and validity attacks (the "nullity" suit). So, if you are nervous about a district court judge in Duesseldorf enjoining you on the basis of a patent, invalid but which the judge must treat as valid, better get your retaliation in first, and smartly oppose. <br /><br />Incidentally, for in house patent departments, setting juniors on opposition work is good low cost training.<br /><br />When my client gets opposed, I comfort him with the thought that the opposition proceedings, even if only a "coarse filter" in the eyes of the national judges, nevertheless represent an opportunity to put the patent into great shape for subsequent litigation, with a usefully high presumption of validity. Very handy for an SME needing to reassure its investors.<br /><br />So, where does that leave us? Tinker with one aspect of the system, I would suggest, and you get knock-on effects (mostly unforeseen) all over the shop.<br /><br />I suggest that the best way the EPO can help SME's is 1) continue to be strict about the admissibility of amendments, post-issue, and 2) travel the world reminding Applicants and their patent attorneys that leaving it till after issue to make a valid set of claims could have very expensive consequences so, in their own self-interest, they ought to take care to bring to issue in Europe only those claims which to the best of their knowledge are valid.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36335636065292401322010-03-05T09:43:41.019+00:002010-03-05T09:43:41.019+00:00From a business perspective, I don't think tha...From a business perspective, I don't think that badly examined patents are such a big problem -- and they're certainly less of a problem than mountains of unexamined patents.<br /><br />I maintain that the reason why granted patents are challenged in EPO oppositions and in subsequent court litigation is not that they're bad but that, regardless of their quality, they constitute a barrier to something that someone else wants to do. Look at how many good patents are expensively and extensively challenged, and upheld: this isn't going to change.Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12001913969570604922010-03-05T09:26:41.929+00:002010-03-05T09:26:41.929+00:00I am very unhappy with the concept of PPH (Patent ...I am very unhappy with the concept of PPH (Patent Prosecution Higway) and work-sharing between the 5 offices. It leads to worse examination overall. To those who really, really love registered rights SGDG (Sans Garantie de Gouvernement) and 'let's meet in court if you dare', obviously this is the way to go. But the much more numerous general public needs well-examined patents. Sadly, the industry lobby is all for avalanches of dubious patents, and the politicians dare not oppose that.<br /><br />But that is not the way to aid SMBs. If a fight has to take place to prove your freedom to operate instead of merely studying the granted claims, then society should compensate SMBs by giving grants to legal aid. I feel quite convinced that this would be much more expensive than assuring claims restricted according to merit.<br /><br />Alternatively, and I have said this before, SMBs must get together to file massive amounts of oppositions against non-deserving patents. Yes, it will cost something up-front, and if you duck, you may not be hit by these ridiculous patents, but a massive opposition campaign will be the best public demonstration of the swamp the patent systems are slowly gliding into. It will also act as a feedback on the examination, and it is the right time to attack. And the good thing is that this has been demonstrated before in history, and very successfully.<br /><br />Kind regards,<br /><br /><br />George Brock-NannestadAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67193652688300427642010-03-05T09:07:41.922+00:002010-03-05T09:07:41.922+00:00Sympathy from me, to EPO Examiners. My experience ...Sympathy from me, to EPO Examiners. My experience is also, that the earlier national search is "useless". I am the representative and will write the claims. What I expect from any Patent Office worth its salt is a top quality search report. Everything else is secondary. If EPO Examiners are being encouraged by management to ignore bad searching, I'm not happy.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12824837600091671232010-03-05T07:21:46.453+00:002010-03-05T07:21:46.453+00:00And who believes that when an EPO examiner, confro...And who believes that when an EPO examiner, confronted with a search of a national office, will conduct a further search for which he will get no extra points, as this is considered by management "duplication of work", even in cases when the national search was completely useless?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-18981854877269986672010-03-04T17:51:43.559+00:002010-03-04T17:51:43.559+00:00"Reducing unnecessary duplication of work&quo..."Reducing unnecessary duplication of work" sounds wonderful as a partial solution to the backlog problem. However, what is "unnecessary duplication" or even "duplication", beyond the pure formalities which PCT handles pretty well, when different countries have different tests for patentability? Some of these are evident, like grace periods, where laws differ; others less so, like enablement and inventive step, where laws look similar, but the results differ from country to country on the same facts - for example, see the Trilateral Project comparative study on inventive step at http://www.trilateral.net/projects/worksharing/study/cases2.pdf. We can all trade stories on how the same application got treated differently in different countries, perhaps less so if the application is mechanical, definitely more so if it's pharma or biotech, and *** if it's computer-related. So it's far more than just a matter of "do I trust examination by the xxxPO?", it's a matter also of "does examination by the xxxPO fairly assess patentability under my laws?". To change that will require the world equivalent of the proposed Community Patent, and maybe more.Dereknoreply@blogger.com