It’s in the Details: EPO High Court’s Final Fact Finding Shuts Down Universal Display’s Hype for good and for ever.

Monday, November 25, 2013.   Last Friday’s Highest Patent Appeal Court of the European Union Patent Office issues a  Final Decision against Universal Display Corporation (“UDC;” NASDAQ: OLED).  The Decision revoked UDC’s pioneering claim, which asensio.com referred to as “ludricious” in a reserch report dated September 27, 2013 titled Universal Display’s ludicrous claim of owning phosphorescence.

UDC can not appeal the Decision. The most significant part of the Decision is in the Fact Finding.  The Decision’s Fact Finding  deny UDC’s basic scientific claim based a review of all the data UDC has available worldwide.  The Decision’s Fact Finding can be applied in all jurisdictions, including the United States of America.  The patent at issue is equivalent to the only patent referred to in UDC’s OLED Patent License and Material Purchase Agreement with Samsung Mobile Display Co., Ltd.  The patent and Agreement are set to expire in 2017.  The EPO’s Decision eliminated the only known basis for UDC’s assertion that it “owns” the exclusive right to sell phosphorescent chemicals for use in OLEDs.

Not only are these appeals strictly limited by law, but legal experts found UDC’s appeal especially inconsequential.  For instance UDC requested permission return to the EPO’s lower court.  There is no legal basis for this request; the ruling Court has jurisdiction over the subject matter and authority to make findings of facts notwithstanding the opposition panel’s lower ruling.

In all cases for all of UDC’s claims the Court found that as a matter of fact UDC had made NO inventions whatsoever; plainly speaking that UDC’s claims were fictional.  In other words that UDC’s patent claims were so lacking in meaning, or senseless, that they were meaningless even to a skilled person expert in the material.

The EPO High Court’s  factual findings is that UDC’s claims were not supported by any data the UDC presented.  It could not find a single shred of evidence supporting UDC’s claims.  The Court has wide discretion to make its determination.  It could have ruled that UDC had disclosed some invention and proceeded to test the patentability of the invention.  It did not.  It found that UDC had made no invention.  As a result to UDC’s lack of invention the Court did not allow further argument and did not require further deliberations.

Shown below are the first level of review and their requirements. The Court found that the scientific evidence proved that UDC’s data presented to support is broadest claim failed to meet the standard for an “invention.”

There are four basic requirements for patentability: Art. 52(1)

(i)there must be an “invention”, belonging to any field of technology (see G-II);

(ii) the invention must be “susceptible of industrial application” (see G-III);

(iii) the invention must be “new” (see G-IV to VI); and

(iv) the invention must involve an “inventive step” (see G-VII).

http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_i_1.htm

Below is a EPO’s description of the decision’s fact finding:

“The EPC does not define what is meant by “invention”, but Art. 52(2) contains a non-exhaustive list of things which are not regarded as inventions. It will be noted that the items on this list are all either abstract (e.g. discoveries or scientific theories) and/or non-technical (e.g. aesthetic creations or presentations of information). In contrast to this, an “invention” within the meaning of Art. 52(1) must be of both a concrete and a technical character (see G-I, 2(ii)). It may be in any field of technology.” http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_ii_1.htm

The Board of Appeal is the European Union’s Highest Court. The Court has its own scientific investigation and Fact Finding authority.  As shown below appeals from this Court’s final decisions are extremely rare with only 90 appeals having been allowed in 28,000 cases.  Furthermore, allowance is not indicative of success.  “Over more than thirty years, the Boards of Appeal of the European Patent Office have developed a substantial body of case law on the European Patent Convention. Since the first decision handed down in March 1979, the Boards of Appeal have settled more than 28 000 cases. In addition more than 90 decisions or opinions of the Enlarged Board of Appeal.”

http://documents.epo.org/projects/babylon/eponet.nsf/0/1ae7315e321e933ec12577bd0024d650/$FILE/Case_law_of_the_boards_of_appeal_2010_en.pdf

Posted in Universal Display Corporation

Manuel Asensio doesn’t bet often. But when he does, it’s wise to pay attention.

Paul Kaihla
eCompany Now
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