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11.24.16

Patent Quality at the EPO Depends on the Future of the Boards of Appeal (Which Battistelli is Killing Not So Softly)

Posted in Europe, Patents at 2:04 pm by Dr. Roy Schestowitz

One of the few singles I happen to have the CD of…

Killing Me Softly

Summary: The decline in patent quality at the EPO is bad news not just for applicants but for all Europeans, and there’s no sign of it improving any time soon (under Battistelli to whom quality is an impediment)

THE EPO was a world-leading patent office for decades; it did not have many patents and this was actually a good thing because it meant that each single EP was of very high quality and there was certainty about it inside and outside the court (less risk, less litigation). Unlike the USPTO, the EPO did strive to maintain quality, which resulted in high fees. The EPO basically did what every patent office should do, but a lot of that changed when it got greedy and in defiance of Parliamentary instructions started granting software patents (covertly, using excuses and loopholes it had created) and patents on life, e.g. seeds, plants, animals. Patent maximalism further accelerated under Battistelli, a person so anti-scientific (crudely speaking, a chickenhawk politician) that he would never manage to come up with a valid patent of his own.

Nowadays, the EPO ignores the European Commission on everything including patent scope, so the rules don’t seem to matter to it. The notion of “rules” hardly even exists at the EPO; what exists can be described as Presidential decrees. Here is a new “international report” from Bart W Swinkels of NLO (European Union). It says the following:

European Commission notice against patentability of plants does not affect European plant patents

On November 3 2016 the European Commission issued a notice regarding the patentability of plants and animals obtained by means of essentially biological processes.

In the view of the commission, the EU legislature’s intention when adopting EU Directive 98/44/EC “was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes”.

However, the commission’s notice is not legally binding; it is up to the courts and boards – not the commission – to interpret the law.

In other words, as usual, the EPO does whatever the Hell it wants, no matter if it makes it look arrogant, foolish, even corrupt. See this tweet posted today by the EPO. Very vague (but familiar to us) language is being used to masquerade/blur the inclusion of software patents in an upcoming event (yet again! Warning: epo.org link). Based on what EPO examiners say, they no longer have much time to properly search prior art and they actually grant patents on software. They are under too much pressure under their management to “produce” (where production usually gets measured in teams of “products”, not actual work). Watch what the EPO wrote today. It’s totally out of touch!

“In other words, as usual, the EPO does whatever the Hell it wants, no matter if it makes it look arrogant, foolish, even corrupt.”One of our remaining hopes is that the appeal boards will shake things up a bit. The supposedly independent judges need to remind the Office that it cannot just pursue greater quantity of patents by disregarding quality, thereby essentially spitting in the well (or muddying the water) of EPs’ value.

According to this new announcement, quality control is not entirely dead at the EPO. To quote a press releases about it, “BMO Capital analyst, Matthew Luchini, reiterated his Outperform rating on shares of Alder Biopharm (NASDAQ: ALDR) despite shares being under pressure following the European Patent Office’s (EPO) oral decision, which revoked Teva’s patent claims related to CGRP antagonist antibodies for the treatment of migraine but maintained and narrowed method of use claims.”

Here is another new bit of coverage that says “Aegis Capital affirms Alder Biopharmaceuticals (Nasdaq: ALDR) at Buy with a price target of $41 after the EPO maintained claims related to CGRP use in Migraines.

“The supposedly independent judges need to remind the Office that it cannot just pursue greater quantity of patents by disregarding quality, thereby essentially spitting in the well (or muddying the water) of EPs’ value.”“Analyst Difei Yang sees the recent pullback in ALDR shares as a buying opportunity. The analyst commented, “The EPO’s ruling is certainly a setback in the intellectual property legal proceedings of Alder and Eli Lilly, however it is also, in our view, a buying opportunity as the valuation impact to Alder is minimal; an approximate $2 per share decrease from our estimated price target. This reasoning stems from our opinion that there will be limited, if any, carry over to the US, where the large bulk of the future value of ALD-403 is based.””

Here, in this particular example, we’re dealing with patents on drugs, not software, but the principles of patent scope still apply. Consider this new “international report” published yesterday by IAM. It says “Yeda Research and Development Company owned a patent directed to a monoclonal antibody that selectively binds and purifies the human cytotoxin, tumor necrosis factor (TNF).”

“To Battistelli, patent quality control is just some nuisance that stands in the way of his terrible goal of “production” (as measured by the ‘SIPO yardstick’).”As we noted here before, restrictive patent scope is needed in the area of cancer as well, otherwise patients will be killed for the sake of corporate profits. Societal cost analysis suggests that patents should be few but solid. We are not at all against patents (never were!); we’re in favour of high quality patents whose grant can be justified by taking into account externalities like human life.

Battistelli, as this new tweet serves to remind us, is ensuring there’s not much left to preserve patent quality at the EPO (appeals are becoming too expensive, the boards understaffed, no independence). To Battistelli, patent quality control is just some nuisance that stands in the way of his terrible goal of “production” (as measured by the 'SIPO yardstick').

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