Wednesday, 16 November 2016

The EPO issues invalid patents too

The European Patent Office makes a big thing about quality. There is even a section of the EPO website about it, with several entries illustrating how well they are doing on various measures. The EPO President remarked recently that the EPO scrutinizes applications more closely than the USPTO, resulting in patents that were more legally sound. In general, based on my own experience, I would tend to agree. Sometimes, however, even the best organised systems can fail. An example I have just found out about (hat-tip to @JeremyNicholls) is European patent EP2700769B1, granted with effect from 31 August 2016. Claim 1 of this patent reads:
1. A hairdressing salon (1) comprising at least one styling station (3), which is embodied in a room (5), wherein the room (5) is arranged in a mobile structure (7), which can be displaced by means of a lifting tool, characterized in that the mobile structure (7) has at least one window (13).
The sole drawing of the patent is shown here on the right. Basically, the patent claims a hairdressing salon in a shipping container (or some other kind of mobile structure) with a window cut into it. This is not, however, even the broadest claim. Claim 9 defines "A mobile structure for a hairdressing salon according to one of claims 1 to 7". According to the usual EPO interpretation of the word "for", this would cover any shipping container (although, as a commenter notes below, it might have to have at least a window).

How this application got through the EPO system is at the moment quite beyond me. From a quick review of the prosecution file though, it seems that the examiner was persuaded that adding a window made the invention allowable over US 2006/137188 A1. Just in case anyone has any doubt about whether the invention is novel, let alone inventive, there is prior art in the form of shipping containers repurposed as hair salons such as this article from 11 June 2011 (before the 23 August 2012 priority date of the patent), which describes the popular practice of converting shipping containers to new uses in South Africa. For further avoidance of doubt, the internet archive wayback machine (which is normally accepted by the EPO as evidence of publication date) confirms that the article was available on 16 June 2011. One of the photographs in the article, shown below, seems to have everything required according to claim 1. Incidentally, the search that led me to this took about five minutes.

The EPO will certainly not be able to do anything about this particular patent, at least not unless someone bothers to make the effort of opposing the patent (which they have until the end of May next year to do). The EPO might, however, like to take a look at how such an obviously invalid claim could get through a system that is considered to be the highest quality in the world.

UPDATE 22/11/16: Thank you to the anonymous commenter who has done a bit more research and come up with the following additional pieces of prior art, which at least demonstrate that the claimed invention can be considered to cover more than just shipping containers.

The first piece of prior art is Elizabeth Taylor's trailer for the 1963 film "Cleopatra". A report on this from 21 November 2011 is available here, from which the picture below is taken. The trailer obviously had a hairdressing salon, and windows. It was sold in 2012 for over $50k, according to this report, although it cost a lot more when it was made.

The second piece of prior art is a ship, specifically the "Radiance of the Seas", as shown in the video below being brought into drydock in the Bahamas. According to this article, the ship has a salon for "hair styling, facials and other beauty treatments". 


19 comments:

  1. Tufty,please explain why 'according to one of claims 1-7'has no limiting effect.

    ReplyDelete
    Replies
    1. I think normally it would, but the use of the word "for" makes the claim broader than the independent claim.

      Delete
  2. twr57,
    At the EPO, a product for a purpose is interpreted as being a product suitable for that purpose. Thus the mobile structure of claim 9 must be suitable for use as a mobile hairdressing salon add per claim 1. In practice this would only mean that the structure would have a window and be movable. Any such structure could be used as a hairdressing salon and thus would satisfy claim 9.

    ReplyDelete
    Replies
    1. I think it is at least arguable as to whether the structure would need to have a window, since it would still be suitable for the purpose given that a window could be made. I see your point though.

      Delete
    2. Any cruise ship having a hair saloon and a window in that saloon falls under claim 1.

      Furthermore, in this specific patent, compare the three different languages of claim 3. Claim 3 [FR] is something else than claim 3 [EN],which itself has again nothing to do than the procedural language claim 3 [DE].

      Furthermore, claim 10claims any public space where such a container has been placed, despite the public space being already know and present..... And far outside the scope of,the disclosure.. .
      Put such a container next to the Eigfel tower, and the public space around the Eiffel tower is now commercially your monopoly...

      I wonder if the applicant wanted to have a fun patent, because the whole idea of this thing being new and inventive is ridiculous (the 1963 film set of Cleopatra, and Liz Taylor's make up trailer.
      Have some links:
      http://luxurylaunches.com/auctions/elizabeth_taylors_make_up_room_trailer_from_cleopatra_and_movie_poster_up_for_auction.php (Article of 2011 - therefore also prior art); or
      http://vogeltalksrving.com/2012/07/liz-taylors-cleopatra-trailer-sells-for-51660/, which is July 2012, but also talks about this thing being from 1963.

      Delete
    3. I agree. I like your examples!

      Delete
    4. So, found time to expand on that a bit:
      video of 2007, cruise ship in a drydock : https://youtube.com/watch?v=4cOgD9tupa8 , the drydock being the "lifting tool" required by claim 1.
      Cruise ship name: "Radiance of the Seas"
      -> http://www.beyondships.com/RCI-ROS-Tour-2.html , last image is the hair salon. Having windows.
      Total search time, including writing this reply on an annoying mobile computer: 12 Minutes
      I grant, that the images of the salon are undated, and may be from after priority date of the application. Archive.org has the first snapshot of this page on 12 Oktober 2011 ( https://web.archive.org/web/20111012063033/http://beyondships.com/RCI-ROS-Tour-2.html ), which is well before priority date...

      Delete
  3. Two may not make a trend. But the Patents Court recently revoked the UK designation of a European patent (no. 2022349) for added matter (see [2016] EWHC 2161 (Pat)). The feature concerned was a "liquid storage component". The original application provided a “cigarette bottle assembly” comprising a hollow shell and a porous component for liquid storage. Claim 1 simply required a "liquid storage component".

    The isolation of the "liquid storage component" from the "cigarette bottle assembly" and the omission of the "porous" aspect were found to add matter.

    How that slipped by the EPO is baffling, especially when they pride themselves so much on their strict approach to added matter.

    ReplyDelete
  4. I saw this too and found the same photographic prior art. Its pretty abysmal.

    I take my hat off to the drafting attorney in respect of claim 10, however:

    "A public cultural space comprising the structure of...".

    Notwithstanding the lack of clarity over the metes and bounds of what is a "public cultural space" it is a lovely example of drafting claims to ensure as many entities as possible could be liable for infringement. Own land used for a festival? Got a mobile hairdresser on it? Served.

    ReplyDelete
  5. I would like to argue that claim 1 is as broad as claim 9. A "hairdressing salon" is nothing more than a space suitable for hairdressing (i.e., the space inside any shipping container), and "styling station" means nothing more than a location at which hair can be styled (i.e., any location inside said space, as long as you bring scissors, hair gel, or whatever is necessary for doing what is considered to be "hair styling").

    ReplyDelete
    Replies
    1. I think you are right, but I am sure that any attorney representing the patentee would argue otherwise.

      Delete
  6. Your posting has been perceived in the office and those directly and indirectly involved are being given a truly hard time.

    ReplyDelete
    Replies
    1. I did notice there were an unusually large number of page views originating from Germany.

      Delete
    2. Previously we made jokes about the USPTO quality. Now we have to make some about ourselves.
      There were 4 persons who chose to look away, and sign the grant and the quality checks...

      Thing is, that if no OPPO gets filed, the higher production pressure proves that a lower quality is okay, especially in economically rather irrelevant fields....

      Delete
    3. Not sure why anyone would go to the expense and bother of opposing this patent. The applicant would be extremely unwise if he/she tried to enforce it, and an EPO opposition could only be in the applicant's interest, as there would be at least a finite chance of obtaining a validly amended patent.

      Delete
  7. You just picked up one case which can be understood by anyone. It's surely a quality statistic outlier. Nonethless you did a good job, because it's all to do with the patent system and examiners tend to forget that: their job is to be published and publicly scrutinized.

    ReplyDelete
    Replies
    1. It also illustrates that EPO examination is just a first approximation. Courts should never start from a presumption of validity.

      Delete
  8. The proprietor can always start a limitation procedure, they do not need an opposition. If I was the hairdresser of a circus I would not file an opposition with the same institution that made fun of themselves this way.

    It would be very useful, if the reasoning of Grants were published instead of being kept in the cupboard like skeletons. If not legally useful, at least hilarious

    ReplyDelete
    Replies
    1. I don't think there's much point going for limitation. It's expensive, and I don't see anything valid they could limit the patent to. I agree with your point about reasons for grant being published. The USPTO does this, and I don't understand why the EPO does not.

      Delete