Intramurals: The European Patent Divide

European IP Attorney Severin de Wit writes one of the best patent focused blogs on the European continent: IPEG. With his permission, I am reposting his article on European Patent No. 0455 750 B1 owned by the US company Document Security Systems, Inc. (DSS).

PatentLawPic253You are a European institution, the European Central Bank (ECB), and you seek the invalidation of what has been granted as a valid right by another European institution, the European Patent Office (EPO). The last weeks we got a taste of how The Great Patent Divide, the most un-European experience in patent law, has turned into Europe’s Patent Demise.

Threatened by a patent infringement claim of a US company, Document Security Systems, Inc. (DSS) the ECB seeks invalidation in several European countries. The UK patents court (in first instance) invalidates the patent, EP 0455 750 B1 for a ‘Method of making a nonreplicable document’ on March 26, 2007. A day later the German Federal Patent Court (“BundesPatentGericht”) disagrees with the UK court and finds the patent valid. By judgment of March 12, 2008 the District Court in The Hague, Netherlands, upheld the patent as valid and follows Germany. Just a few weeks earlier, on 9th January 2008, the French court (“Tribunal de Grande Instance de Paris”) agreed with the UK court in first instance and distances itself from the German court and found the patent invalid.

On March 19, 2008, the UK Appeal Court affirmed the invalidity findings of its first instance colleagues. Patent dead, in the UK and France (so far, appeal in France still pending).

You still with me?

What a disgrace. What a sorry state European patent law is in. We know that Europe is lacking a European view on validity (and infringement for that matter), but how can this be explained? The view, generally held, is that UK courts are (very) critical on what comes out of the European Patent Office. [According to the UK,] Patent 0455750 should not have been granted. France, not yet known as “patent-unfriendly” has chosen the side of the UK in this case. Is this a scary sign of what is there to come? Maybe (just) an incident and no forbode of what is next (France as the next patent basher)? One begins to wonder, are the Germans more fond of what comes out of their (“own”) EPO, located in Munich? Is Holland more inclined to accept what comes out of Munich as well? Or is this all “coincidence”? We think not. We have seen this divide before (on stents: Angiotech’s patent for Taxus stent revoked by UK Court of Appeal, (partially) upheld by the Dutch District Court, but then it was only for Germany & Holland versus the UK. Is France now joining the chorus of “we-know-it-all-better-than-the-EPO” ?

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

93 thoughts on “Intramurals: The European Patent Divide

  1. This article on DMC (however biased) does touch on some of the infringement issues in the case when the DSS vs ECB case is discussed about halfway though. Any thoughts on the infringement interpretation?

    link to seekingalpha.com

  2. What a disgrace ? What a sorry state European patent law is in ? Not at all !

    There is no reason to criticize the EPC system as it is, since its purpose it NOT to harmonize European patent law, but rather to offer a centralized procedure for the grant of patents in Europe based on common rules and standards agreed upon the EPC member states. And do not forget that the EPO system is not a EU institution !

    There is furthermore no reason to be astonished by the fact that national courts in Europe may take different views about a same European patent granted by the EPO. The situation would be no different had DSSI filed several patents directly with the relevant national patent authorities.

    So where is the problem if any ?…

    I would rather say the whole situation is absurd because of DSSI’s approach to the whole matter.

    What were DSSI thinking when they initiated proceedings against the ECB before the European Court of First Instance in the first place ? They should have known that it was a no-go and that proceedings had to be initiated on a country-by-country basis.

    Isn’t it furthermore a strange strategy from DSSI to initiate legal proceedings against the ECB, while simultaneously trying to convince the ECB that it should make use of DSSI’s “patented” technology ?

    Have you had a look at DSSI’s patent portfolio and at the whole EP 0 455 750 patent family ? It might be interesting to note that the claims of the US correspondents of EP 0 455 750 have been held to be invalidated over prior art, while the corresponding patent application in Japan was refused…

    Is DSSI’s claim of patent infringment founded ? The national Courts have so far merely addressed the patent validity issue, but not the alleged infringement.

    Have a look at the current financial situation of DSSI and you will probably understand that DSSI’s future hangs in the balance and will probably be determined by the outcome of this case. And I do not personnally see a very bright future for DSSI…

  3. Unfortunately Max, we don’t like systems that have to be “nurtured” because nurturing implies human intervention and interpretation, which gives rise to caprice and whimsy. A system should be established to operate objectively and independent of intervention, even if to “nurture” wait, especially if to “nurture.” “Why” you ask? Because what might be “nurturing” to one is gratuitous and corrupt intermeddling to another.

  4. Cave, perhaps we can agree, that the legislature, the judicature and the public administration, all have a duty to nurture a system, like the patent system, so that it serves its users and pragmatically delivers justice and fairness, efficiently, speedily, at a price society can afford, and with as much legal certainty as can be achieved. Good practice must be nurtured by the PTO, and abuses squeezed out. You do things your way, and we in Europe will do things our way. I don’t think we’re petty or bureaucratic but then I’m biassed. Wonder what the Asian users think.

  5. Lisa Simpson: Oh, only one person in a million would find Mooney’s obscure references funny.

    Yes, we call that the, “Dennis Miller Ratio.”

  6. Its kind of funny Max watching you try to be a tough guy. I admitted that maybe I mistook typical procedure for typical laziness. However, its still typical that the EPO doesn’t treat dependent claims based on the alleged lack of novelty of the base claim, that’s the reality of the situation. I’m far from lazy, I’d be more than happy to listen to a rationale or reasonable justification for it. I handle several or more of these kind of actions a week. If EU is claim centric as you suggest, it doesn’t make sense not to treat the dependent claims as early as possible since there may be an allowable feature contained therein. To us it looks like laziness, although I do have some sense of appreciation for the idea of rejecting the application as a whole. However, such an approach smacks of petty bureaucratism.

  7. Gobhicks, pithy, as ever. A pleasure to read. BTW, wasn’t it still a single inventor as owner, when the Board of Appeal re-worked the claim? Wasn’t it subsequently that ownership of the allowed app passed to the DSS company? Will the EPO TBA ever again feel so obliged to an inventor/Applicant as to let him through to issue with such laxity? And wasn’t the Rapporteur an Englishman?

  8. I find the whole tenor of this post to be quite extraordinary.

    Yes, European patent laws are supposed to have been harmonised by the EPC. Of course, we all know that some differences in practice still exist between national patent offices and the EPO, and between national courts and the boards of appeal of the EPO. Cases that end up with final court judgements are usually cases in which difficult issues need to be decided, and it should be no surprise to anyone that differences of opinion will exist between different jusrisdictions. On this general front the quite hysterical tone of the post seems to me to be completely misjudged and inappropriate.

    What is even more disturbing is the implication of statements like

    >>UK courts are (very) critical on what comes out of the European Patent Office

    >>France, not yet known as “patent-unfriendly” has chosen the side of the UK in this case

    >>what is next (France as the next patent basher)?

    >>Is France now joining the chorus of “we-know-it-all-better-than-the-EPO” ?

    Since when has the EPO been omniscient? Have you looked at the EPO prosecution history of this patent? The claims were substantially re-written several times before refusal by the examining division. The claims as granted were presented for the first time at the oral proceedings of the appeal, and were again a substantial re-write of the previous claims. This amendment introduced, for the first time, the idea of “overlaying the grid pattern on the original image to produce on the document a printed image which comprises the original image having a superimposed transmitted or obstructed print pattern conforming to the grid pattern and in which the print pattern normally is not discernible by the naked eye, such that the original image and the printed image appear to the naked eye to be generally the same”

    The appeal decision devotes a single paragraph to the admissibility of the amendments, and does not even discuss the point above, which was the basis on which the UK courts found the patent to be invalid for added subject matter.

    Go to Epoline. Look at the seven different versions of the claims that preceded the oral proceedings and the claims as presented and accepted at the oral proceedings. I defy any practicing European Patent Attorney not to be amazed at (a) how little analysis was applied by the Board of Appeal to such an extensive amendment and (b) that the claim was ever granted in the first place.

    If there is any “disgrace” in this case it lies with the BOA for its shoddy analysis of admissibility. Whatever conclusion they reached, an amendment of that nature demands integer-by-integer deconstruction to determine Art. 123(2) compliance. In fact, it is amazing that the BOA even entertained the introduction of such an amendment at oral proceedings.

    If anyone can explain the position taken by the German and Dutch courts on the decisive point of the UK judgements then I’d be fascinated to hear it.

  9. Cave Man,

    the EPO is just as “claim-centric” as anyone else, it’s just that the procedural rules are different than those at the USPTO. And, don’t get me mistaken, I *do* regard issuing as complete a first communication as possible a good thing for both applicant and examiner. In fact, when I still was an examiner, I once wrote an “Examiner’s Decalogue”, and that was my very first commandment.

  10. There you go again Cave. More “drivel”. On your own definition. Cos you went and used “typical” again. You choose not to “get” EPO because you can’t be bothered. Strikes me as “lazy”. As to those quickest to find a particular fault in others, we say in UK that “it takes one to know one”. Remember Simon & Garfunkel “A man hears what he wants to hear……and disregards the rest”. Before you vent more spleen about patent law in Europe, I would suggest you take S&G to heart, and start to “regard” the “rest” of that system of law called civil law. It might be worth your while because, apart from the former British Empire countries, it’s used everywhere in the world. Meanwhile, are you going to give us that EPO file number, where the Examiner was “lazy”? Just one I want. Just one.

  11. “it pretty much confirms my thesis on this thread that the U.S. is still the best place to incubate entrepreneurship.”

    Nobody ever said it wasn’t. Iirc that is.

    “Such practice would not play in the U.S. not because the Examiners care, lord knows its clear that you don’t care much about your job, but because its required by the principles of equity that are by and large delay averse.”

    Hardly, I believe in searching what the applicant believes to be his invention, i.e. what he thinks he can get a patent on.

    Carry on your trashin of EPO. I’m here working on an application that got chucked to me at beg. of last biweek, it’s an app that was a date case one and a half years ago, and it hasn’t gone out yet because it has over 500 IDS citations and nobody would do it. Carry on about the need for unlimited IDSs in other threads as well. Really, we need to see all the “A” cited references in foreign actions. No, really, we do. Best thing about this case? First IDS reference is a 102 on the first claim according to a foreign agency. Now it’s all about just looking through the rest of the crp.

  12. As for the link #6K, it pretty much confirms my thesis on this thread that the U.S. is still the best place to incubate entrepreneurship.

  13. Sorry #6K can’t understand your jibberish or would that be jbbrsh. Incidentally, vowels were invented for a reason.

    Quite contrary to the tone of your posts, I am interested in the most rapid disposition possible with as few bites of the apple as possible. In the typical Euro practice, which still seems rather bass-ackwards to me, the dependent claims are typically not treated if the independent claims are rejected. Such practice would not play in the U.S. not because the Examiners care, lord knows its clear that you don’t care much about your job, but because its required by the principles of equity that are by and large delay averse.

    Clearly you haven’t grasped this rather subtle, but still accessible concept. I understand its hard for someone like you to do the equivalent of brain surgery, when all you are equipped with intellectually is a chainsaw.

  14. Ahh, I guess you made amends, I hadn’t refreshed the page in awhile. Even so, the problem you’re having isn’t being an american prosecutor, it’s being a self-entitled little bia. Of course, if you’d like to consider those two descriptive phrases synonymous then so be it because you might be hitting remarkably close to the mark.

    And to think, they’re calling the young generation that:

    link to boston.com

    Maybe Cave isn’t an old timer. You were born after 1970 weren’t you Cave? Grew up in private school and probably hit ivy after that? Don’t get me wrong Cave, this isn’t pure flame if you read the article you’ll see we’re exactly what we may need in the coming years.

    Make no mistake, the up and comers have quite a different world view about themselves. It’s hard to see what this will do to patents, on the one hand you have people like Cave who think they’re entitled to as many shots as it takes to get the perfect patent while others wait patiently in line behind him, while we have other more reasonable people saying, get your sht claimed and get out others are waiting. This isn’t even getting into people who are taking reasonableness to a whole new level saying the whole system needs to changed somehow a little more drastically, and that might even include nixing a few of the larger amounts of deps. Don’t let me seem to be derailing, continue your riviting discussion of how bad the EPO is at some things and how the US shines like a beacon of hope for others.

  15. “typical lazy European examiner who simply says claim 1 is not novel in view of D1 and claims 2-12 are not allowable because they depend from claim 1. Yes, lazy.”

    I’m deleting most of my counter flame, but you may as well stfu Cave, spouting off like this isn’t accomplishing anything. You know their rules, and you’re crying because they sometimes play by them? Give me a break. I suppose all the practicioners I’ve been hitting with valid first action finals (on the same art) after RCE are just plain lazy, stupd, etc. etc. amirite?

  16. “There are some enlightened EPO examiners who understand that while the main claim may be rejected for some reason, there may be something patentable in the dependent claims.”

    If by “enlightened” you mean “dumb as f” then yes, I’m sure there are. US examiners do it because we have to, rtard we couldn’t give two crps about your deps, nor whatever it is in the spec that actually is your invention, we care about YOU CLAIMING whatever it was that is your invention (contribution) but that’s completely YOUR JOB, and completely up to you if you’d like to do it. Just because we’re made to do your job for you by virtue of some stupd and outdated method of doing things makes 0 difference. The fact that the method we’re working under no doubt resulted because of a huge amount of caving in to lawyer qq back in the day and our mgmt is finally wanting to correct its past mistakes I guess goes way over your protruding forehead.

  17. My sincerest apologies to all EPO Examiners who do not examine dependent claims; not because of laziness but because a rather strange focus of European applications on, not the claims (only the most important part) but on the application as a whole. I guess its just difficult for me, a simple U.S.-style claim oriented guy to grasp such a concept. It seems a little arbitrary right out of the gate since, if the claims themselves are not the key portion of the application, then what is?

  18. Oops I just found typical. Okay (let me get my foot out of my mouth). I apologize. With the explanation that Rodrigo has provided about EU applications being not claim-centric as they are in the U.S., then I stand corrected.

  19. Cave Man,

    In my time in the EPO, I’ve known very good, good, and less good examiners. I however doubt that even the less good ones would say that the dependent claims are not allowable, just because they are dependent.

    This may be a philosophical distinction anyway, but, for the EPO, there aren’t allowable and non-allowable claims. There are allowable or non-allowable *patent applications*. As long as the whole patent application (claims, descriptions and drawings) is not in order, the examining division can’t grant. The examiner may hint possible amendments to respond to his objections, but he isn’t even required to do so. It’s *your* application and *your* responsability to get it in order. The EPO points system, which rewards finishing files, does indeed encourage examiners, even lazy ones, to help the applicant along, but nothing more.

    As for Kamprad, I’d be indeed surprised if he founded IKEA (at 17) with “old Dutch Kamprad family money”, considering that he’s Swedish. Forbes lists his fortune as “self-made”, and every biography of his I can find says that he grew up in a farm. Now, I won’t rule out his family being wealthier than generally represented: I don’t regard European Horatio Alger stories as any more reliable than the US version, but can you substantiate it. Amancio Ortega is certainly a self-made man, and, while Grünberg’s patents are owned by his research institute rather than him, German law prescribes that employee inventors should be rewarded proportionately to the income from the patents (and with very favourable tax treatment), which certainly must have made him a nice nest egg.

  20. Cave, EPO Exrs are not all perfect. I concede. But you are over the top. I rise to your challenge that I write “drivel”. Mindful of your slur that EPO Exrs are “typically” lazy, here’s a challenge. Never mind “typical”. Quote me one case in the EPO, just one, where it is as you write, namely “claims 2 to 12 fall BECAUSE they depend from claim 1”. Just give me an A publn or app number, and all readers can read the whole EPO file on http://www.epoline.org. Let’s see if you can find one, just ONE, EPO Exr who has ONE case where he was “lazy”, shall we? I will wager that the only cases you can find are cases where the Exr writes …”because they depend AND add nothing other than routine..” or some such substantive reason. After that, go back again and read what I wrote above about office actions in a civil law jurisdiction. You can write that the whole of ROW civil law is “drivel” if you must, but I would rather you didn’t categorize what I write as “drivel”. Over to you.

  21. Rodrigo,

    Julich is 90% owned by the German Federal Goverment. Though Peter Grünberg’s achievments are admirable, I never said that no great work came from Europe, only that the incentives for private entrepreneurship were far less than in the U.S. So, strike one. As for IKEA it was founded in 1943 based on old Dutch Kamprad family money (some of the oldest money in the word – Dutch that is), hardly a fresh start up like Microsoft (founded in 1975) and hardly a rags to riches story. Strike two.

    Dyson may be your only real story. Ball one.

  22. Rodrigo,

    At least you gave me a plausible answer, but Max, sorry, your answer was drivel. You made some odd point about searches, which I have already more than amply given credit to the EPO for many times over. I will say it again to get it through the thickness of whatever input device you are using. THE EPO DOES A GREAT JOB OF SEARCHING. But the
    Examination leaves something to be desired particularly with regard to dependent claims. There are some enlightened EPO examiners who understand that while the main claim may be rejected for some reason, there may be something patentable in the dependent claims. U.S. Examiners understand this and examine EVERY CLAIM to determine whether there is allowable subject matter. Some European examiners have grasped this concept and even though they indicate that the applicaiton is not allowable because of a problem with the main claim, they indicate that there is a possibility that, for example, claim 5 in combination with claim 1 may be allowable. That is a breath of fresh air compared to the typical lazy European examiner who simply says claim 1 is not novel in view of D1 and claims 2-12 are not allowable because they depend from claim 1. Yes, lazy.

  23. Dear Lowly Prosecutor,

    Since the 60’s, whenever it was practical, I have practiced several my own inventions. Even Universities don’t practice all their inventions.

    If you care to review a few of my comments with an open mind, you will feel differently about me and about Cisco, I guarantee it, or your money back (you only pay shipping )

    link to patentlyo.com
    the last endnote in particular

    link to patentlyo.com

  24. Oops,sorry Rodrigo, not Ricardo.
    For explaining myself: I always wonder how Attorneys or applicants value the average quality coming out of the office:. What struck me from the inside is how broad is the variation among colleagues about inventive step requirements, dealing with dependents claims or substance of the communication for instance, at less relatively to my prior expectations starting here.
    But maybe we just come in different colors, like judges from country to country inside Europe, and it is just the nature of Patent law 😉

    To other readers: I wonders if you perceive the same, more or less consistency inside all major patent offices you know.

  25. “Will you ever learn to give it a rest?”
    JAOI, not a second later than you do, maybe?

    Ricardo:
    Your account fit nicely with my own day-to-day of an European Examiner. With a caveat: in my field, I gave up on the US classification (too cumbersome to learn, considering it has not the value added of the Japanese classification).
    And the value of the EPO classification over the Japanese one is a great deal depending of the involvement of the “gérant” – the person in charge of a field, for you outsiders. In my field, I reckon the Japanes is much more detailed and fine grained.

    Connecting to the critics of Caveman about European examiners dealing quickly with the claims, I would say it is a matter of lack of harmonization by the management between the quantity they want, and the quality standard with which the EPO started. Some examiners go along with the “produce, produce” attitude, others dissent and maintain high standard, and a small minority doesn’t make me proud to be their colleagues either way.
    Could it be that the lack of coherent enforcement by the management comes from the fact that they have some intellectual difficulties to defend the point of view “gouvernement burocrats are superfluous and doesn’t work enough anyway” we got from the US and liberals politics in the European sense?

  26. JAOI,

    I love how you call the troll tracker’s blog “blasphemous.” I used to get somewhat annoyed of your rhetoric and We The People proclamations everywhere, but now I’m just entertained.

    People on this board have shown you multiple times that the TT blog did NOT violate the lobbying disclosure act because it merely published information and views and didn’t actively seek out officials, yet it’s still “blasphemous” to you.

    While I disagree with the TT’s message as much as you do, I believe he had every right to keep that blog, whether or not he worked for cisco. I’m a patent attorney and my job definately affects my view of us patent law. were i to start an anonymous blog that became widely read, would my firm be considered to be “lobbying” in your mind? it certainly is in my firm’s interest for us patent law to remain strong, and it is certainly in my own financial interest as well.

    You’re just so upset by his message because you’re probably a “patent troll” under TT’s definition of the word that you can’t see through your anger to understand you’re advocating limiting free speech, something that has contributed to this country’s greatness more than any patent laws ever did.

  27. JAOI,

    I love how you call the troll tracker’s blog “blasphemous.” I used to get somewhat annoyed of your rhetoric and We The People proclamations everywhere, but now I’m just entertained.

    People on this board have shown you multiple times that the TT blog did NOT violate the lobbying disclosure act because it merely published information and views and didn’t actively seek out officials, yet it’s still “blasphemous” to you.

    While I disagree with the TT’s message as much as you do, I believe he had every right to keep that blog, whether or not he worked for cisco. I’m a patent attorney and my job definately affects my view of us patent law. were i to start an anonymous blog that became widely read, would my firm be considered to be “lobbying” in your mind? it certainly is in my firm’s interest for us patent law to remain strong, and it is certainly in my own financial interest as well.

    You’re just so upset by his message because you’re probably a “patent troll” under TT’s definition of the word that you can’t see through your anger to understand you’re advocating limiting free speech, something that has contributed to this country’s greatness more than any patent laws ever did.

  28. Herr Max,

    Hopelessly incorrigible!, yes you are. Will you ever learn to give it a rest?

  29. Rodrigo, EP, Exr 6k, thank you for your refreshing contributions to this thread. Just about wraps it up, I would say. PDS, you started it with “Max, tell us again how great the European patent system is”. We just did. Not perfect, but not bad either. Satisfied now? Maybe you could divert your energies to commenting on the IPEG blog. Mr de Wit would love to hear from you, as his thread really does need refreshment.

  30. Also, while the European classification is rather good, it’s beaten hands-down by the Japanese dual classification system (with a hierarchical extended IPC, much like the European classification, coupled with a “matrix” index system called F-terms). It is laser-sharp, even if it must be ridiculously time-intensive to maintain (mind you, the JPO outsources classification).
    When I searched in the EPO, I usually combined European, US and Japanese classification with keywords (yes, the EPO database supports all of them)…

  31. Examiner 6K:

    The document viewer used by the EPO is highly customisable, but the default set-up is a split screen showing the bibliographic data including the abstract (with highlighted search words) on the left, and four scanned figure pages (EPO screens are BIG) on the right. It can be used to view patent families as well as non-patent literature within the EPO document collection. If you want to have an idea of how it looks like, the EPO’s suppliers have put a commercial version on the market called PatAnalyst that looks and feels very much the same. You can find it in http://www.patanalyst.com.

    (A few years back, an examiner cobbled together a wonderful alternative viewer called Gromit using OCR to highlight the reference numbers in each figure page and hyperlink them to the text. Very nifty, but, although other Gromit features made it to the official viewer, that one was not followed through, much to the dismay of the examiners in the know)

  32. Cave Man,

    if you so dearly wish European “rags to riches” stories, I can give you at least two pretty big ones: Ingvar Kamprad, the Swedish founder of IKEA, and Amancio Ortega, the Spanish founder of the Zara clothes retail chain. They both once were of considerably more modest means than Mr. Gates, neither got the benefit of a university education (unlike Mr. Gates), and they both are quite close to him in current “rich lists”. If you want examples of individual inventors having made their fortune with patents (not that that was the case of Mr. Gates), I can give you James Dyson, of Dyson vacuum cleaner fame, and Peter Grünberg, last year’s physics Nobel laureate, and one of the discoverers of the Giant Magnetoresistive Effect, whose applications in the field of hard drives he was wise enough to patent.

    With respect to your observations with respect to patent prosecution before the EPO, I think I have a good perspective on that, considering that I once was an EPO examiner, and now work on the other side of the fence. As MaxDrei points out, EPO examiners will normally examine the dependent claims from the start *as long as the whole claim set is clear and well-defined*. However, if the independent claims are insanely wide and clearly not novel to start with, EPO examiners will not waste their time going through a thicket of dependent claims trying to find an actual invention buried among them (something which they rightly consider to be the applicant’s job), but tell you instead that the current set of claims is not allowable and ask you to come back with something more to the point. In fact, that is the *nice* way. The not-so-nice way is to declare a massive lack of unity, since, if the subject-matter is not new, the dependent claims will usually not be linked by any single inventive concept, and ask you to pay X additional search fees to deal with them.

    The lesson of this: Since there are different constraints on claim drafting in the US and Europe, you’ll be *very* wise to ask a European patent attorney to review your patent application before filing in Europe. It may save you a great deal of time, money, and unnecessary aggravation.

    BTW, while not getting all the dependent claims reviewed from the start may be annoying, it is far less annoying than to be confronted with new prior art years into the prosecution, as it has happened to me before the USPTO before…

  33. For other readers: civil law Europe treats Applicants as grown ups, who must take responsibility for their own property. They get a first class search, they get the opportunity to amend. Theirs is the decision what claims to take to issue. If they take unsustainable ones through to issue they will get burned after issue, when an ugly competitor puts validity in issue. Prudent Applicants at the EPO take care to go to issue with claims that are good to resist post-issue validity attacks from experts in the field, which of course are likely to be more penetrating than anything the Exr can put together. The EPO Exr is your friend, not your adversary.

    But we’ve been through all this before, in earlier threads. It’s just another way, different from adversarial USA. Yawn.

  34. “So Cave, in the EPO, the files get up and search themselves, do they?”

    My theory on this is that their classification system wasn’t abandoned during the 90’s and was instead vastly upgraded in terms of specificity. Do you know how much easier it is to look down a list of things and then, when you find the first description that is applicable to your application just search there and find stuff than it is to search sht that’s off the wall as crp in the subs, and then have to do an exhaustive word search? Let me just say this much, when I first started using the European search guide for a case awhile back it was like cutting butter with a knife rather than cutting through thrice hardened steel with a toothpick. Still, I don’t know how they search their files quickly, what with all the pics at the end, same with the japanese patents (or maybe that’s just how our search tools here portray them?)

    “(as opposed to the boilerplate non-limiting tosh most US attorneys write, for claim differentiation purposes, to widen claim 1)”

    Lol, allowance?

  35. Here we go again. So boring. Cave, unfamiliar with the ROW civil law way of doing things, says ignorantly that the EPO is “ridiculous”. EPO Exrs are all bone lazy, he asserts, even while they deliver a much better search report than he can get out of the USPTO. So Cave, in the EPO, the files get up and search themselves, do they?

    Here’s an idea. Let’s have a competition. Give me a day with an inventor to go through the EESR Opinion from the EPO. Meanwhile Cave you get a day to go through the equivalent USPTO FAOM, with the same inventor. Afterwards, a researcher asks the inventor to rate the two office actions, on a scale of “ridiculousness”. Anybody care to hazard a guess at the result?

    And, Cave, do you know what happens when the EPO Exr sees a properly functioning “real” dependent claims (as opposed to the boilerplate non-limiting tosh most US attorneys write, for claim differentiation purposes, to widen claim 1)? Thought not.

  36. I mean for at least the last decade it has been easier for someone to go from rags to riches in the EC than in the US. The statistics bear this out.

    We have a stronger economic class system than most European countries. I believe this is because of the corporate hegemony that has grown over the last 40 years. Although some on this board may doubt me.

  37. Lionel; when you say “economic mobility” do you mean a rise in personal wealth? Do you mean an expansion of the middle class? Do you mean movement from middle class to upper middle class or beyond? I’m sure if there is increased economic mobility at the present time it may be due to the present strength of the Euro – and possibly not much more. I’d appreciate an example.

    Robber Baron; citing stories of Robber Barons and Gangsters is interesting and all, but its a little outside the scope of the discussion, in other words its irrelevant. Sorry. And you still didn’t give me an example of a European Bill Gates.

    The EPO has a better system for searching. That is about it. The subsequent process is not very sophisticated. For example, in Examination in the EPO, I routinely see treatment of the independent claims but no treatment of the dependent claims based on reasoning such as: since the independent claim is rejected, the dependent claims are also automatically rejected.

    Obviously, this is just pure laziness on the part of the European examiners. Otherwise, its a way to extend prosecution – why they would want to do that, I don’t know. But in any case, it would NEVER fly in the U.S., since principles of equity dictate that substantive matters be given treatment as early as possible during process so as not to effect a delay.

    Therefore, U.S. Examiners treat ALL claims in the initial examination. The applicant, of course, is free to argue or amend to treat only the independent claims with the idea that the allowability of dependent claims will follow automatically.

    But for Examiners to do it, which again I see routinely in the EPO, is a ridiculous practice.

  38. CaveMan,

    Ignoring that Horation Alger stories were BS in the first place, there is currently more economic mobility in most European countries than there is in the states.

  39. “Last I checked, Europe wasn’t a single country… I fail to see what the problem is here. Shouldn’t each country have the right to have its own courts determine the validity of the patents it enforces?”

    I totally agree with this statement. The EPO offers a cheaper route for prosecution to grant. There is always the alternative option to file separatly in each country. The client has the choice. The EPO never garanteed that a granted patent would be treated similarly in each contracting state. So what is the problem? Also, as already pointed out in one of the posts above, losing in the UK does not invalidate the patent granted elsewhere which can be both positive and negative.

    “What a sorry state European patent law is in” reads the article. This issue is nothing new. There have been conflicting decisions coming out of the UK and German Courts for years. It’s hard to see how countries deciding their own national matters is a “sorry state”.

    EPA/US patent agent

  40. Hello EP,

    My limited experience does not bear out “minimises the cost of prosecution.”
    Translations drove up the price (but maybe there is a cheaper way to do it now?).

    In any case, how about this simplified proposal: Every body adopt one system, the USA system circa early 90s, and one language, English of course, and litigate all patent matters in one language in one place, Arlington VA.

    This way, “International Patents” will have more value to the inventors, and world wide competition, and competition’s blessed by-products, variety and choice, will be enhanced for We, All the World’s People, and IBOB’s Orwellian world will pass (drop dead).

  41. Personally, I’m not sure what the fuss is all about. Once you realise that Europe is not actually a country but a continent, the situation is NOT very different to a family of patents where the patent is upheld in the US and found invalid in the UK (Kirin-Amgen anyone?). One might as well say “What a disgrace. What a sorry state WORLD patent law is in (especially if we can’t even agree on FTF or FTI)”

    The whole point is that the EPO offers a route to obtain a BUNDLE of national patents, viz, it is a centralised procedure that minimises the cost of prosecution. This works in everyone’s favour, including US applicants, by ensuring that the prosecution of the application is only done once.

    Instead of criticising the system, we should be grateful that it exists to help reduce costs. We would be in a no better situation without the EPO, e.g. the patent held invalid in the UK would never have been granted.

  42. Dear Mr. Feudal king,

    Please note European IP Attorney Severin de Wit article above which says:

    “What a disgrace. What a sorry state European patent law is in.”

    I think the point of this thread is the wild disarray the “EU” is in, especially in regard to its many individually governed patent systems.

    In these United States of America, we have but one government and but one patent system, and even that one government and single system is difficult enough to manage.

  43. Dear anon,

    I do agree with your other comment:
    “You can find CAFC cases all over the board, its not like their is uniformity.”

    I tried to explain why this is so in my comment on this thread:
    link to patentlyo.com

    Here is the gist in large part:
    And why didn’t en banc Phillips fulfill its destiny? I believe the Breaking News story of Cisco’s treachery points toward the answer. Pejorative Troll talk propaganda perpetrated by, for example, Cisco and other members of the “Coalition for Patent Fairness,” has poisoned our government’s view of our patent system thorough and through, at the Congressional level, the executive level, in our District Courts and at the Federal Circuit.

    Bowing to the public, legislative, executive and judicial and other distorted-by-propaganda pressures regarding politically-correct patents, the Federal Circuit Panels opine every which way rendering result-oriented Opinions while ignoring en banc Phillips, other precedential case law and the merits of certain patent infringement law suits where one litigant doesn’t practice the invention.

    Thus, the number of result-oriented decisions from District Courts and from the Federal Circuit has been steadily increasing.

    Under The United States Constitution, even one result-orientated decision influenced by anonymous propaganda is one too many, and we all know there have been at least some untold sum, who really knows how many?, for example, how many result-orientated decisions have there been since May 2007 when Cisco Systems, Inc. admitted to first perpetrating its wholesale public deception v. the American patent system on its blasphemous Patent Troll Tracker blog?

  44. robber barron — you can call the industrialists what you wish but they had *pure* market exclusionary power … the us govt needed jp morgan for a bail out in 1907 because the barrons would listen to their banker … is there an assertion that patents hurt robber barrons? or that patent holders are bankers? not sure but do you work in any of those industrial verticals? what is the relevance to american economics today? except high oil prices and overleveraged fundamentals in the banks?

    max, interesting art … the comment still stands, why is this emblematic of any alleged advantage of the “harmonized” EPO? would the SCOTUS rule against harmonization if this were a case involving US currency in the EPO? As with the Jesse Helms-like decision this past week?

    canon copiers (what percentage of European manufacture?) … yes, we have arrangements between the us govt and xerox, for instance … moire … same issue between the screens that sony use[d] in trinitrons versus the masks that are used by its competitors … is this a new problem? — counterfeiting and artistic rendering on currency … i was hoping for refernce to work by jsg boggs esecpially with reference to the 10 quid note

  45. Dear anon,

    What does “clearly more modern” mean when applied to a patent system?

    Everyone who is well-informed knows that the “old” American system was vastly superior to any other.

    Moreover, due to the deception and unlawful propaganda of certain greed-at-all-cost international companies comprising Cisco International, Inc. “conspiring” in an anti-patent coalition, our use-to-be working-just-fine American patent system is in the process of being corrupted.

  46. I like how the underlying assumption here is that the US patent litigation is anything less than a shambles. You can find CAFC cases all over the board, its not like their is uniformity.

  47. Caveman wrote:

    What we are seeing is the natural manifestation of a strong proclivity for government fiat emanating from vestigial monarchies. Its called the “rule of man” (naturally arbitrary and capricious) as opposed to say, the rule of law, that we enjoy in the U.S. unlike anywhere else.

    Then he wrote:

    If you’re coming from a vestigial monarchy, then, by definition, you’re coming from a place that has a rich history of not recognizing private rights.

    But someone higher up the thread said:

    Isn’t the underlying problem here the unusual fact that this small Rochester NY company is suing for patent infringement what is now the common currency (Euro banknotes) of most of Europe?
    If this were in the U.S., sovereign immmunity would presumably apply, and thus they would be restricted to seeking a reasonable recovery [no injunction] and a validity determination solely in the specialized U.S. Court of Claims. Why didn’t Europe think of that?

    So, would the US be protecting the private rights in this type of situation?

    In fact, if it was in the US someone might even try to introduce a retrospective law (c.f. the bank checking process post) to make sure the ‘private rights’ were well and truly vitiated..

  48. Herr MaxDrei,

    Your animus is on the rise, eh!

    The lady doth protest too much, methinks.
    And me thinks you are too tightly wound.

    You’d do well to heed Winston Churchill’s suggestion:
    Attitude is a little thing that makes a big difference.

    Maybe you should cut back on the lemon aid and have some Schnapps, and be mindful not to slip on the pips.

  49. Robber, good points. Cave, I agree, it’s national sovereignty that’s the difficulty in Europe. The EPO (in English, French and German) decide hundreds of cases each year, at Technical Board of Appeal level, and by now very consistently. Those TBA’s could effortlessly do the work of deciding, for all Europe, the core tasks of i)scope of a claim, and ii)whether an accused embodiment lies within it. After that, non-specialist judges out in the field could sort out the rest (relief, costs etc). But then a lot of national litigators would be “coming looking for work” and “getting no offers”, whatever the level of their fees.

  50. You can’t change history. I agree Cave. You say that’s “A problem”. i disagree. On “recognising private rights” the USA has “history” too, doesn’t it? Or were native Americans never entitled to any private rights? Isn’t this argument all a sterile futile waste of your time and mine?

  51. CaveMan, did Frick or J.P. Morgan or John Rockefeller make their money through patents? Mike Royko (RIP) published a column many years ago in which he made fun of someone had called a mobster a shrewd businessman. Royko said that the mobster owed his success to four words, “I will kill you”, and that everyone could be a good businessman if he was willing to use those four words. I doubt that the railroad barons or the oil barons were quite as explicit, but I think their success owed little if anything to patents. But I’d be happy to be proven wrong about that.

    As to Europe, I’m glad there’s disharmony in the European patent system. I chafe every time I think of a bunch of faceless, nameless, unaccountable bureaucrats in Brussels setting policy for everyone. True, in DC there are also a bunch of bureaucrats setting policy, but not all of them are faceless or nameless – can you say Jon Dudas? – and at least at some level they are accountable to the people. Patent jurisprudence seems to be an area in which the individual countries can still show some independence.

    Clearly, what the Europeans need is their own version of Irving Kayton to devise and preach a “low-profile, lowest common denominator” approach for practice before the EPO, with an eye toward getting a European patent that will be valid and infringed in all EPO member countries. But will he teach it in German, English or French?

  52. CaveMan, did Frick or J.P. Morgan or John Rockefeller make their money through patents? Mike Royko (RIP) published a column many years ago in which he made fun of someone had called a mobster a shrewd businessman. Royko said that the mobster owed his success to four words, “I will kill you”, and that everyone could be a good businessman if he was willing to use those four words. I doubt that the railroad barons or the oil barons were quite as explicit, but I think their success owed little if anything to patents. But I’d be happy to be proven wrong about that.

    As to Europe, I’m glad there’s disharmony in the European patent system. I chafe every time I think of a bunch of faceless, nameless, unaccountable bureaucrats in Brussels setting policy for everyone. True, in DC there are also a bunch of bureaucrats setting policy, but not all of them are faceless or nameless – can you say Jon Dudas? – and at least at some level they are accountable to the people. Patent jurisprudence seems to be an area in which the individual countries can still show some independence.

    Clearly, what the Europeans need is their own version of Irving Kayton to devise and preach a “low-profile, lowest common denominator” approach for practice before the EPO, with an eye toward getting a European patent that will be valid and infringed in all EPO member countries. But will he teach it in German, English or French?

  53. Please Max tell me all the stories of entrepreneurship in Europe – aside from the brother of the Queen or something.

  54. my post immediately above is, of course, with reference to “asking only workman’s wages … get no offers”

  55. Cave, I wrote my last before I saw your last. It’s mid-morning in Europe. I guess you are West Coast time. Sorry, I don’t know “those kind of stories” you write about. Rags to riches, and only in the USA, and only because of FTI. Can we agree on something: such stories play well in USA, so are peddled non-stop, but European jurymen just don’t buy them.

  56. “We” is anyone who cares to take even a superficial look. And as soon as you resolve the question of whether the Queen Mum’s picture will be on the Euro, we’ll start to talk about how Europe is starting to move away from its undeniable history as a collection of vestigial monarchies. The problem is you cant change history – its where you come from. If you’re coming from a vestigial monarchy, then, by definition, you’re coming from a place that has a rich history of not recognizing private rights.

  57. More verification of JAOI(TM)’s excellent quote from that old German, Herr W.Goethe. Simon & Garfunkel had something succinct to say about the factor that prevents dialogue (here, I’m thinking that between USA and Euroland) from getting to a win-win result. In The Boxer, from Bridge over Troubled Water “A man hears what he wants to hear…..and disregards the rest”. This in the context of a song set in NYC that begins “Asking only workmen’s wages I come looking for a job…..But I get no offers”

  58. Wake up Max, you can’t deny your history, which is NOT rife with stories of small time operators with big dreams that made it big by risking private wealth. In fact, those kind of stories are all about the same: small time operator with big dreams immigrates to America and strikes it rich through hard work and entrepreneurship provided in part by asserting rights to patented discoveries. Period.

  59. CaveMan, either you have slipped into ironic mode, or you are in JAOI(TM)’s Goethe mode (seeing in the thread only what you want to see). Still teaching you in schools that tired old stuff about the continuing feudal life we lead in Europe, eh? BTW, who’s this “we” you speak on behalf of, please? You’re as bad as JAOI(TM) in that respect. Anyway, in Europe recent events have made us well aware of what’s meant by the American “Rule of Law” thank you. Please continue to “enjoy” it, within your homeland. I’m sure we all noticed that graceful dispensation of “your” when you write “your side of the pond”.

    Ironic, this is a patent directed to a way of making a banknote resistant to copying on a Canon color photocopier (which at one time, long ago, was a problem). Include a grid in the design of the King of Europe’s (ha ha ha) head, that is just off the pitch of the copier raster, and you get Moire fringes in the copy. Brilliant, eh?

  60. zzzzz, Max, Rodrigo, you’re wasting your time with analysis. Common law, civil law, evidence, its all pish-posh on your side of the pond. I don’t care which way the lemon pip falls.

    What we are seeing is the natural manifestation of a strong proclivity for government fiat emanating from vestigial monarchies. Its called the “rule of man” (naturally arbitrary and capricious) as opposed to say, the rule of law, that we enjoy in the U.S. unlike anywhere else.

    Suddenly, the U.S. courts and patent system seem VERY stable and predictable.

  61. MONEY … skin in the game? probably not … fruity images today, i see

    is this a business model patent? patentable signal for each note manufactured?
    the note being readily tendered as tangible *consideration* … (even 500 EURO bills to reduce the weight of those Benjamins in the wash … a sanctioned business model for carrying value in smaller manufactured notes & in time for dollar meltdown!)

    … software to uniquely attribute value to each tangibly tendered manufacture … digital artifacts nonlinear detail uv spectrum inks and nanotubes … the real measure of a business method, is what again? cant this security be achieved by other means?

    … and software patents are not applicable here, please explain? … if you look too closely you’ll see some of your alleged specialty in biotech amply represented as bio-informatics (signals) …

    they could just reduce it all to digital credentials and eliminate the paper, right? or is that a business model that still belongs to a government?

    (hundreds of private currencies in the US — even Disney dollars have unique and significant equity value to ABC — they rarely get spent — debt that need not be repaid!)

  62. Actually Max, I read the decision, and I quite understand Lord Jacob’s point. To point out so bluntly that in his opinion the BoA made a rather basic Art. 123(2) mistake, especially considering the testy exchanges around Aerotel/Macrossan…well, that made me smile.
    BTW, it also does not escape my attention that Jacob LJ himself has repeatedly come forward *in favour* of a unified European patent jurisdiction.

  63. Another bite of the cherry? Unpredictable jumping lemon pips?

    You learn something new here every darn day, I tell you.

  64. oh … that king solomon …

    could it be that the uk did/does not want to adopt the euro that plays into this, max?

    the decision to go 500 EURO denominations certainly raised a lot of ire with the US …

    or does it also raise the issue mentioned above with regards to sovereign immunity?

    how about, say, the swiss who allegedly keep several swiss franc security features secret as do many other governments? (and there age old suppliers)

    still sounds like any other patent fight … (perhaps akin to bt’s hyperlink suit against prodigy? – did they sue in europe at that time?)

    harmonization in another 20 years?

  65. animus:
    2 : a usually prejudiced and often spiteful or malevolent ill will
    I have been following this closely. Max Drei without animus is liken to scheisse without stink

  66. Rodrigo, if you would take the trouble to read ECB v DSS in the English courts, then look at the EPO file wrapper, you will see why Lord Justice of Appeal Robin Jacob (and before him Judge David Kitchen) wrote what they did, after cross-examination of the DSS technical expert, about overlaying a grid. The members of the TBA would have come to the same conclusion, if they had been there for that cross-examination. Sigh.

    On CII, both views are viable. The intellectual debate makes both TBA and UK Decisions increasingly rigorous.

    Epilady was a straightforward 50:50 on a claim construction issue. Is “helical spring” a synechdoche, or is it not? Room for two respectable opposite views on that one. As I say.

    Try Mabuchi Motor. London says “Infringement” while Munich says “No direct infringement, and no infringement by equivalent either”. But we’ve moved on, from Epilady, Spannschraube, Mabuchi. The biennial meetings of the patents judges of Europe bring us ever closer, on substantive law. ECB v DSS will help too. So will TAXOL. It’s the procedural stuff that’s still a work in progress. But we’ll fix that too, in another 20 years. Meanwhile, litigants do alright, and ever better (evidence-gathering under the Enforcement Protocol, reform of German civil law procedure under pressure from outside Germany, etc, etc)

  67. Max,

    I wholeheartedly agree with almost anything you write, but no animus?

    I certainly would hope so, but let’s look at some quotes from recent decisions, decisions involving a certain Lord J. on the English side, and a Herr S. on the EPO side:

    Lord J.: “The decisions of the EPO Boards of Appeal are mutually contradictory. To say that is not to criticise anyone. On the contrary the Boards of Appeal have each done what they think is right in law – as befits tribunals exercising a judicial function. But surely the time has come for matters to be clarified by an Enlarged Board of Appeal.” and
    “Everyone would agree that the claims must be bad – yet in each case as a whole they are novel, non-obvious and enabling. To deem the new music or story part of the prior art (the device of [two previous decisions of the EPO BoA]) is simply not intellectually honest.”
    Herr S.: “The ‘technical effect approach (with the rider)’ applied in [Lord J.’s] judgement is irreconcilable with the European Patent Convention also for the further reason that it presupposes that “novel and inventive purely excluded matter does not count as a ‘technical contribution'”. This has no basis in the Convention and contravenes conventional patentability criteria”
    Lord J.: “Whether the EPO Board of Appeal misread the document when it suggested the amendment to introduce feature D no one knows. But it is entirely possible – perhaps likely – that is what happened.”

  68. Reminds me of the Epilady cases with UK and Germany reaching opposite conclusions as to the scope of equivalents, and ultimately infringement.

  69. Dear MaxDrei

    As usual, you are one of the most sensible and balanced voices on this board.

    Thank-you.

  70. Herr MaxDrei,

    With all due respect, you’ve got one thing going for you big time in addition to your anti-everything America bias and your offense style—no one posting here is as incorrigible as are you (I mean that in the most strenuous way it may be taken ;-).

    And you had been doing so well there for a while – – –

  71. …..and, maybe you want to factor into your reflections that the estimable Mr de Wit is a very talented member of a very heavyweight multi-national law firm. The sort of firm that might do even better, financially, following the creation of a supra-national European Patents Court.

  72. Listen up, especially any ignorant loud-mouths out there. The world has two legal systems: common law and civil law. The first has rules of evidence, equity, discovery, cross-examination, binding precedent, and the latter has none of these. England is in the common law camp, and mainland Europe is in the civil law camp. Substantive law we have pretty well harmonised. Procedural law in Europe is still national. Can anybody doubt that, with such a riot of possibilites for fact-finding, the 50:50 cases that go to trial (when both sides are convinced they are going to win despite “Loser Pays”) in both England and on “the Continent” will quite often yield contradictory results.

    Rodrigo, there is no animus by the way.

    The DSS case is characterized by a squeeze between Art 56 EPC and Art 123(2) EPC. Which way the lemon pip jumps out is ever likely to vary, jurisdiction by jurisdiction.

    Do any of you have any idea how difficult it is to judge a case when the patent is in a foreign language and, being drafted in the USA, deliberately shy of disclosing what exactly the contribution to the state of the art was.

  73. “since neither is bound by the decisions of the other”

    And the EPO Boards of Appeal aren’t even bound by their prior opinions. I’ve had a lot of fun working through that one.

  74. I don’t think that MaxDrei or anybody else has ever pretended that patent *litigation* (as opposed to prosecution) in Europe is anything but a huge shambles.

    The lack of a centralised jurisdiction appears to be compounded by what seems a personal animus between certain English judges and the EPO Boards of Appeal…since neither is bound by the decisions of the other, this results in an entertaining, though highly costly, judicial catfight.

  75. The situation in Europe is ridiculous and has been for a number of years. However, European policy makers are currently discussing the establishment of a single patent jurisdiction in Europe, under which EPO granted patents will be litigated in special courts at first and second level with, in certain cirumstances, a final appeal possible to the European Court of Justice. There are strong indicatins that something concrete will emerge from these discussion by the end of this year.

    However, there is another side to the story. In Europe now, if you lose a case in, say, Germany, that does not wipe out your entire European strategy. It could be that you end up winning a case based on exactly the same facts in, say, the UK. In other words as a patent owner in Europe you get more than one bite of the cherry. It costs more, but overall you may still have a business at the end of it. I guess that quite a lot of patent owners in sectors such as the life sciences quite like that. It could well be that if we do see a single court system for EPO patents, a number of patent owners may choose to forget the EPO and instead will pay a little more to file patents individually through national patent offices, which will man tey will still have the freedom to litigate in individual countries.

    This is a story IAM has ben covering for a whle now. Most recently here:

    link to iam-magazine.com

  76. Isn’t the underlying problem here the unusual fact that this small Rochester NY company is suing for patent infringement what is now the common currency (Euro banknotes) of most of Europe?
    If this were in the U.S., sovereign immmunity would presumably apply, and thus they would be restricted to seeking a reasonable recovery [no injunction] and a validity determination solely in the specialized U.S. Court of Claims. Why didn’t Europe think of that?
    And BTW this is not the first time the UK and Germany have come to complely opposite decisions on the same patent. E.g., the vibrating coil hair remover patent.
    [If different CAFC panels delt with the same patent we would undoubtedly have that situation here, with our CAFC inter-panel variations in views of claim interpretation.]

  77. Dear pds,

    I think Herr MaxDrei only knows how to criticize the good old USA.
    No doubt he’ll pose some inane argument to defend the EU disarray.

    Come on Herr Max, squeak up, you have our attention, we are waiting. We all know you are there.

  78. “Last I checked, Europe wasn’t a single country… I fail to see what the problem is here. Shouldn’t each country have the right to have its own courts determine the validity of the patents it enforces?”

    Because this then means that the EPO is not standardized and provides significantly less value, and will wither away. People will just direct file into every country, so that their patent has a better chance of being upheld by that country when they go to enforce, and so that the patent can meet the varying criteria each country then has for patentability.

  79. Last I checked, Europe wasn’t a single country… I fail to see what the problem is here. Shouldn’t each country have the right to have its own courts determine the validity of the patents it enforces?

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