back to article Patent trolls, innovation and Brexit: What the FT won't tell you

In 2017, the EU is going to open the Unified Patent Court. This court will make it much easier for patent trolls and corporations in the US – armed with dodgy patent applications and IP attorneys – to reach into the UK and strangle your startup at birth. Think about it. Last week the Financial Times reported that two-thirds of …

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Facepalm

' Last week the Financial Times reported )that two-thirds of patent cases in the US are now brought by "patent trolls". '

Now who'd a dun thunk it?!

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Trollface

Sorry, lawyers seem to be a protected species and their breeding is out of control. Maybe we need (here in the States) to have an "open season" on lawyers. At least some people will find a use for all the ammo they've stockpiling.

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I predicted this in 2014

Nooooo !!

1) Herd all the European Patent Law into one stadium

2) Make it drink the cool-aid

3) Bring the EU and US systems "into line"

4) Increase the patent lifetime to 75 years

Makes 30 Trillion look like chickenshit.

- basically, in the new lawyer-driven world, IP rights are a good means to tax the rest of the planet, or at least all those with a trading relationship with the USA. They prefer their patents to be granted freely, more IP to threaten others with, they don't even need to be original FFS, whereas ours do.

They spent countless money and lives on securing the last of the oil, what do you do when the oil runs out? - increase the patent lifetime and draw royalties from everyone and everything.

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Context

"According to the EPO's statistics for 2015, they grant the highest number of patents to the US (22 per cent), with the UK trailing in a distant seventh place with only 3 per cent of the total (this is disturbingly small for a so-called "knowledge economy".

"So what," you may be thinking, "

I'm thinking without knowing how whether these are all 'tech' patents or how many patents are applied for by relevant nations, or reasons for rejection, I cannot discern anything about these values.

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Unhappy

Hmmm. What to do.

Start getting the EU to look at all those BS US patents?

Delay the EU wide patent court?

Get a strike down in the EU Court to be accepted in the US, ending the BS flow at source (and opening the flood gates to counter litigation in the US from victims of the trolls) ?

Oh no that's all too much like hard work, let's leave the EU instead.

No, I think not.

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Re: Hmmm. What to do.

Surely the point is that the larger the democracy, the less responsive it is to the people and the more prone to corruption it is, with a single leverage point and vast influence.

Dealing with lots of smaller nations makes it much harder to pull off a fait accompli, more likely that someone will throw a patent out and that may lead to the patent being over-turned, even where it has already been granted.

That's before we go anywhere near the point that the EU is not a sovereign country and there is no particular reason to have one law. If we mess up our patent system, at least we don't have to try to convince the whole of Europe that we need to fix it - we can do it ourselves, and we can do so more easily on our own than if we have to drag the the rest of the EU with us.

You may like the patent laws, but what happens when you've given sovereignty away and you have to deal with French-style labour laws? "Ever closer union," remember? Unfortunately, democracy scales badly. We don't have it for its own sake, we have it to allow self-determination, but law is mostly about quashing differences. The more differences you have with the fewer differences in laws, the more quashing is taking place.

When people feel persistently thwarted they do things like electing Donald Trump, or Le Pen, or support Robespierre.

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You are also making the very dubious assumption that the UK post-Brexit would not just roll over and do what the US wanted on IP law giving us just as much, if not more, trouble.

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Not to mention that the UK itself with or without the EU hasn't been the best place to come up with new ideas over recent years.

http://paulwallbank.com/2014/01/11/dangerous-liaisons-the-risks-in-government-support/

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It's possible certain that the UK government will pass all sorts of rubbish laws in the future. As will the EU. The difference is that we can get rid of UK governments at regular intervals, and replace them with ones that will fix some of those laws. It is admittedly true that democracy is a blunt instrument, unless you go for the Swiss referenda-on-everything model, so only a few bad laws are going to get enough public focus to be changed.

But that's still better than the EU model. Where once the hugely complex rigmarole of passing EU laws has happened, there's not only no political will to fix the problem, but there's active resistaance from teh system to go back and look at stuff again. And there's no democratic pressure that reaches that level. Youth unemployment in Portugal, Italy, Greece and Spain has been over 40% for more than 5 years now, and there's still no serious moves underway to solve the Eurozone crisis. And that's despite massive political turmoil in those countries. What chance anything like patent law problems getting any political attention?

Not that there aren't many good reasons to stay in the EU, and shape policy. But if you can't at least see the huge democratic deficit then you're just not looking properly.

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"we can get rid of UK governments at regular intervals"

Pedantry strikes again! The intervals are not fixed. They are capped at five years, but they can be shorter. They are usually only a bit shorter than five years, but in 1974 we had two general elections in one year.

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@I ain't Spartacus

Interesting you should mention Switzerland: you recall that referendum they had a while back on limiting immigration? The EU refused to so much as discuss it after those wanting more stringent limits won, and made it clear to the Swiss that any such curb would result in loss of access to the single market.

That's essentially where we would end up: passing meaningless votes that have zero impact on the end result. Our parliament would be 'sovereign' of course but in reality it would mean next to nothing.

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@ Paul Crawford

Literally my thoughts when reading P.Lees comments.

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@Steve the Cynic

Incorrect.

The Fixed-term Parliaments Act 2011 provides for general elections to be held on the first Thursday in May every five years.

http://www.parliament.uk/about/how/elections-and-voting/general/

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Re: @Steve the Cynic

unless the Government loses a supply bill or a fails to survive a vote of confidence... sadly, there's too many Blairites who will scupper that...

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Re: @Steve the Cynic

"unless the Government loses a supply bill or a fails to survive a vote of confidence... sadly, there's too many Blairites who will scupper that..."

In fact, because of Parliamentary Sovereignty -- the idea that Parliament cannot bind future parliaments -- all they need is a simple majority to repeal the act.

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Re: @I ain't Spartacus

Vines,

That depends on the area of policy. Short of armed force or economic pressure, no government can enforce its voters' demands on another. The difference with being in the EU is that it interferes with our legal system as well. Something we're quite vulnerable to, having no written constitution and a different legal system to the rest of the continent. Also Norway has to comply with "only" about 1,700 pieces of EU primary and secondary legislation. For us it's over 11,000. They're only involved in trade and free movement matters - we also have CAP, fisheries, foreign policy, energy, environment, justice, economic, tax etc.

Now the Swiss have democracy. They told their government to negotiate, it's tried, and looks to have failed. So the voters know what's on offer, and can choose the policy they want, knowing the cost.

If our government fails in EU negotiations, we have to lump it. Except in this one specific case. You can only do the referendum once a generation. Even there, we got the bare minimum it was thought might work, rather than a sensible discussion on desperately needed reform. That contempt for the voters may have destroyed the EU. Just like telling the Swiss voters to fuck off may destroy that trade deal. And ignoring the Italian, Greek and Spanish voters may eventually destroy the Euro. Actually and the German voters. They were also lied to when they joined the Euro - and their government are still lying now. Claiming Greece can pay them back. It can't. They could have bailed Greece out in 2010 for €10 billion. The cost now is at least 10 times that, plus much German and EU credibility, and also shame. They claim to be the moral ones now, but history will not be kind to Merkel.

I was a reluctant in voter until the day last year the ECB broke all treaty law and common sense to deliberately destroy the Greek banking system and democracy. Under heavy pressure from Germany. They also brought down the Greek government in 2012, destroying the Pasok party, and forced Spain and Italy to change policies under threat of destroying the credibility of their government bonds. Which also brought down the Italian government. Not a sad loss admittedly, it was Berlusconi's last. But democracy is important - and those actions crossed a line. Hubris may soon meet Nemesis. I'd have preferred reform though, it's safer.

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Anonymous Coward

"we can get rid of UK governments at regular intervals"

Absolutely. And with extreme prejudice - time to bring out the pitch-forks and burning brands again!

Guy Fawkes - the last man to enter parliment with honest intentions.

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Few problems with this....

There are a few flaws in your piece:

You say:

"This activity is primarily enabled by the US's massively dysfunctional patent system, a system that will rubber-stamp patent applications often with minimal vetting - resulting in a system choked with applications ranging from the spurious to the wildly ludicrous"

The US Patent office does not "rubber stamp" patent applications with minimal vetting. In my experience as a patent attorney, they examine them and throw them out based upon bad understanding of the technology, and you have to fight pretty hard to convince the examiner they are wrong. They are not great at their job, but they tend to go the opposite way to what you are suggesting.

You go on to say:

"Some time later we were alerted that an American company had been granted a patent in the US for a similar technology and that they were trying to register the patent in Europe. We contacted the European Patent Office and provided links to our prior art in the public domain, and the US patent application was duly dismissed by the EPO as illegitimate."

This makes no sense. The EPO cannot influence a US patent application, and same goes vice versa. I presume you mean that the company applied at the EPO for a patent similar to their US one, and you alerted the EPO to the existence of your case. In such a circumstance it's pretty likely that the EPO would have found your case anyway, and used that against the application. It does help however to submit prior art to the EPO that you are aware of (which is free to do, and very straightforward - look up the filing of observations at the EPO if you wish to do it)

You say:

" In other words, Europe wasn't vetting US patents, and neither was the wider tech community – consequently dodgy patents from the US were pouring into Europe unchecked."

The EPO don't vet US patents as I said earlier. They have no standing there. And the EPO will provide a very rigorous examination of any applications made to it by US companies, as they will to all other applicants.

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Re: Few problems with this....

2015

629647 applications

325979 grants

(source, USPTO website)

USPTO Employees: 10000 (source, USPTO website)

10000 =2600000 person days

2600000 / 629647 = average 4.1 person days per patent application.

Assuming all employees are patent attorneys (unlikely).

Is 4 days enough for a vigorous appraisal?

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Re: Few problems with this....

"the US patent application was duly dismissed by the EPO as illegitimate"

I read this as meaning "The application in the EU by the US firm was duly dismissed by the EPO".

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Re: Is 4 days enough....

To play the devil's advocate, it seems the examiners do an automated search for prior art and send the top ten results to the applicant’s attorney. Three or four iterations of this procedure will have most of the work done by the applicant's attorney at the applicant's expense.

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Re: Few problems with this....

By itself, 325979 patent grants in 2015 is sufficient evidence that the US patent system is a barrier to innovation.

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Re: Is 4 days enough....

"Three or four iterations of this procedure will have most of the work done by the applicant's attorney at the applicant's expense."

This just results in the applicant making sure that the patent is described in very "technical" (and co-incidentally textually unique) ways, so automated searches don't bring up anything.

Thus explaining why most patents sound like gibberish but translate into "something you already knew about but on a mobile device/social network/cloud"

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Re: Few problems with this....

@patt attn

I'd argue it's just needing to get more than one rubber stamp, which is even worse for innovation.

1. Note that you say "based upon bad understanding of the technology" which means the result has little to do with a accurate assessment of the technology.

2. The patent attorneys I've always worked with said that if you get accepted immediately, you weren't nearly aggressive enough with the claims. A few rounds almost always got a patent passed, independent of examiner grumpyness.

So, in all, the process is a matter of getting several rubber stamps, and the expense only affect those who can't afford the billable hours (small businesses).

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So why is Brexit the answer?

Ok, the problem is legitimate, but why is Brexit the answer? Let's say we leave the EU and you have your startup here - patent trolls will still be able to prevent you selling in EU or US markets under the scenario you paint. Furthermore, they will be able to licence the technology to another company which could then sell your innovation around the world.

Surely, as with so many problems the Brexit campaign likes to dump at the EU's door, the best option for Britain is to remain in the EU fighting for our interests, not to leave and hope we can succeed with the North Korea model.

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Re: So why is Brexit the answer?

Its just one of many many areas where the EU acts against the UKs interest.

The main thrust of the article is that the FT article said that this lax and expensive patent regime was beneficial to the UK quoting only IP lawyers -- all of whom stand to gain from a flawed and dysfunctional patent system.

If you really want to look at how the EU "benefits" the UK -- take a look at the fishing industry. British waters are over fished while British fishing ports are in economic ruin.

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Re: So why is Brexit the answer?

> The main thrust of the article is that the FT article

> said that this lax and expensive patent regime was

> beneficial to the UK quoting only IP lawyers -- all

> of whom stand to gain from a flawed and

> dysfunctional patent system.

I'm an inventor, with patents in a variety of territories, and it's the current system that is flawed, dysfunctional and expensive (particularly the last). It's bad enough that I have to revisit office actions over and over again on an international basis as the patents proceed through various countries patent offices, racking up agent and lawyer fees, and multiple maintenance fees, but why on earth should I have to pay for filings and maintenance on a per country basis within europe with the application processed through a single organization but the (significant) cost differentiated by the EU countries I want cover in.

If patent trolling is a problem then deal with it directly, rather than by keeping the currently horrendously complicated system as is.

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Re: So why is Brexit the answer?

Its just one of many many areas where the EU acts against the UKs interest.

ITYM:

Its just one of many many areas where the EU acts against Europe's interests.

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Re: So why is Brexit the answer?

BarryUK nailed it.

Leaving the EU becuase you don't like the new patent laws is a childish, 'toy out of the pram' response that would massively backfire. It leaves UK companies having to patent in the UK but still having to deal with EU and US patent laws (and courts) unless they only want to do business in the UK.

What's worse though is that the above is the best case scenario where any trade deals with the EU and US don't include the UK changing its patent laws to be more in line with those larger, more powerful and influential trading partners.

The whole Brexit campaign (on both sides) is descending into farce. VoteLeave have a 'leave the EU hammer' and now all of the UK's problems have started to look like nails, while Remain is stuck with a negative campaign because they can't articulate the benefits that are already part of everyday life. I fear where this is going...

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Re: So why is Brexit the answer?

It didn't help that British fishermen crashed the fishing stocks long before the CFP (otherwise why would British boats be just off Icelandic beaches?) and then sold their quotas to Spanish fishermen.

The problem with fishing is nothing to do with the EU and everything to do with fishermen refusing to stop fishing until they have emptied the seas.

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@apr004

I think one of the problems with patents in Europe is that they are not nearly expensive enough. Having to repeat the same actions in every country in Europe is one of the few benefits of the current system. Perhaps you would like to post a few of your patent numbers so the rest of us commentards can tell you how much we think you should have paid to get them granted.

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Got fishing wrong

The European Parliament changed the common fisheries policy to allow countries to set up protected marine reserves, in which the fish can recover from overfishing. The UK government have refused to set up more than a small portion of the reserves recommended by scientists (and often local fishermen).

The fishing ports are suffering because of previous overfishing by really large boats their industrial overlords lobbied for.

Yes it was crazy for politicians representing fishing ports to increase quotas above what is scientifically sustainable. A European Parliament committee, led by a Swedish Green MEP changed that, co-ordinated with external protests led by Hugh Fearnley-Witttingstall.

So it is possible to change from within, as long as we reduce the powers of the national governments who seem to always push the lines from lobbyists. MEPs have constituencies with voters to take care of.

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Re: Got fishing wrong

If patent trolling is a problem then deal with it directly, rather than by keeping the currently horrendously complicated system as is.

And that's the heart of Brexit: all problems are solved by running away and sticking your head in the sand. Quite how that avoids a global issue like patent abuse is a mystery but it's just got to be easier than fixing the real problem. Hasn't it?

as long as we reduce the powers of the national governments

I see this as the biggest problem with Europe, govs that talk big about reform but sit on their hands if there's the slightest chance it might steal any of their power.

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Re: So why is Brexit the answer?

"the best option for Britain is to remain in the EU fighting for our interests"

That would involve a whole lot of politicians and civil servants having to learn some foreign languages, an area where the UK education system has been disinvesting for years. During the 1980s and 1990s we had some very high quality civil servants working in the EU and it showed.

Our problems with the EU are entirely due to its neglect by our political class, and we should be holding them to account for this. Instead we have allowed people like Farage to make the climate because the British public can't be bothered to think, so the voters have themselves to blame as well.

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Re: So why is Brexit the answer?

"British waters are over fished while British fishing ports are in economic ruin."

People with short memories. Fishing was in decline from before when we joined the EU. Again, as I post above, the failure of our politicians and civil servants to work well in the Commission has been our biggest problem.

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Re: So why is Brexit the answer?

"Its just one of many many areas where the EU acts against the UKs interest."

I'm not a lawyer, but as far as I'm aware the EU has nothing to do with the European patent system - as far as I'm aware that is governed by the European Patent Convention

https://en.wikipedia.org/wiki/European_Patent_Convention

That would not be affected by Brexit.

So why are even discussing that here? (And you know what, Brexit isn't going to magically dissolve all those other international conventions and treaties the UK is party to either.)

"If you really want to look at how the EU "benefits" the UK -- take a look at the fishing industry. "

Excellent example, thank you for mentioning that. As it happens fish aren't aware of the international borders across the North Sea, etc. So if you want to prevent overfishing (us oldies remember that) you have to set quotas internationally. Not something a country can do in isolation (and since you ask, I live about a mile away from a fishing port and read about the issues in the local paper and, occasionally, in a fishing industry publication). It's quite possible that without the EU we might not have any fishing industry left.

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Re: So why is Brexit the answer?

"Its just one of many many areas where the EU acts against Europe's interests."

Very funny, I'm sure.

But as far as I'm aware the European patent system has nothing to do with the EU, it's covered by a different treaty:

https://en.wikipedia.org/wiki/European_Patent_Convention

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Re: So why is Brexit the answer?

If anyone cares to get a neutral "reality-check" on their voting decision, the Bar Council has released four non-partisan papers on all things Brexit and non-Brexit. http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/june/barristers-publish-non-partisan,-fact-based-report-on-european-union-membership/

I think many, perhaps all, of the contributors on both sides of this discussion could benefit from checking out the parts that interest them.

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Re: So why is Brexit the answer?

@Voyna: indeed. And Britain used to punch well above its weight in the EU bureaucracy. However, during the last decade we've gone from "winning" over 97% of the council votes all the way down to a disastrous 86%. No wonder our politicians are upset, we're now beating even Germany in our dissatisfaction. On the bright side, I suppose it's good we can still beat the Germans at something...

Note about half of that 14% shortfall are abstentions - if our politicians remembered to vote on proposals for European legislation we'd have some clarity on the final figure. A bit like the way we often don't bother exercising our right as a Member State to make submissions in European Court of Justice cases, and then whinge about the result after the fact... How convenient.

And so in fairness much of the reason for the colossal public ignorance in Britain of all things EU (including both sides of the Brexit "sham debate") is the fault of our politicians, media, and chattering classes.

(At least our business sector isn't so bad - for example, in respect of the recently enacted General Data Protection Regulation, British business is only the second most ignorant in Europe)

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Coat

Re: So why is Brexit the answer?

@ Voyna i Mor

"That would involve a whole lot of politicians and civil servants having to learn some foreign languages".

Do you actually understand that the British are the ones who have the highest chance of being understood in they native language in the EU. No other country/language in the EU has that advantage, no even close. As for education, it should and could always be better but I am not all that worried about the British.

Not related to your comment at all, but I have been wondering about the Brexit people who for some reason seem to claim the UK is the fifth biggest economy in the world.

Still what I find is this list. Not that it should matter but when claims are dubious it starts to sound a bit Trumpish to say the least.

COUNTRY COMPARISON :: GDP (PURCHASING POWER PARITY)

Rank Country GDP (PURCHASING POWER PARITY) Date of Information

1 China $19,390,000,000,000 2015 est.

2 European Union $19,180,000,000,000 2015 est.

3 United States $17,950,000,000,000 2015 est.

4 India $7,965,000,000,000 2015 est.

5 Japan $4,830,000,000,000 2015 est.

6 Germany $3,841,000,000,000 2015 est.

7 Russia $3,718,000,000,000 2015 est.

8 Brazil $3,192,000,000,000 2015 est.

9 Indonesia $2,842,000,000,000 2015 est.

10 United Kingdom $2,679,000,000,000 2015 est.

11 France $2,647,000,000,000 2015 est.

12 Mexico $2,227,000,000,000 2015 est.

13 Italy $2,171,000,000,000 2015 est.

.........

https://www.cia.gov/library/publications/the-world-factbook/rankorder/2001rank.html

(the CIA collects official data)

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Re: So why is Brexit the answer?

"The problem with fishing is nothing to do with the EU and everything to do with fishermen refusing to stop fishing until they have emptied the seas."

Yes, but their refusal is understandable. Fishing is more than a job, it's a way of life. Those stubborn fishermen learned the trade from their fathers, who learned it from their fathers, who learned it from their fathers. Whole towns have been supported by fishing and the associated support industries. It's not that they refuse to stop fishing: It's that they can't stop, not without giving up their local identity.

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Re: So why is Brexit the answer?

Why not move to Singapore which believes in open honest government? You will then be close to where most world future economic growth will take place - a better prospect than the EU whose falling share of world GDP is predicted to fall from 15% today to around 10% or less by 2050.

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You should have put

#voteleave at the bottom of your post.

Well, I'll put:

#voteremain

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Re: You should have put

I'm surprised somebody who appears to have had so many problems with UK bureaucracy would actually want to give them more influence not less.

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I never knew we had so many astrologers

"This imaginary future that I want you to agree with is better than this other imaginary future that I don't want you to agree with."

Could we get a breakdown of the author's previous predictions and accuracy so we can properly gauge the author's ability for any future articles like this, please El Reg?

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Anonymous Coward

Re: I never knew we had so many astrologers

Ah, but the imaginary friends and imaginary trade partners I'll have in my imaginary future are much better than the imaginary friends you'll have in yours. And anyway my imaginary friends are bigger than yours.

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And if we depart, our sold products will surely have problems abroad anyway if they infringe upon a patent...

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Trollface

Scaremongering

Now where have I heard that word before recently?

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Trollface

Re: Scaremongering

After Gideon's star performance today, May's going to go onto Breakfast with a puppy tomorrow. If the polls don't improve, the puppy will get it on live TV.

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This is a story I was aware of, but the reactions in the comments certainly isn't.

Its as if the readers have never had to actually deal with the EU and just believe that political systems work as advertised - bit like a fridge, only bigger and more expensive!

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