EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

12.23.16

“Whoever at the EPO Took This Action Clearly Never Heard About the Concept of Separation of Powers”

Posted in Europe, Patents at 7:45 am by Dr. Roy Schestowitz

Do pigs know they have been patented at the EPO?

Pigs

Summary: The EPO comes under fire from yet more stakeholders, after the EPO belatedly realises that patents on life are utterly absurd

AMONG many EPO scandals we have patent scope and specifically the patenting of living organisms. The EPO should never have extended the scope of patents to the point where seeds, plants and animals become subjected to patents. This led to a public relations disaster and now to a sort of retraction that harms the EPO’s reputation even more. As the law firm Marks & Clerk put it this week:

The European Patent Office (EPO) has stayed all examination and opposition proceedings relating to plants and animals obtained by essentially biological processes. This pause will give the EPO time to consider a Notice of the European Commission relating to the relevant provisions of Biotech Directive (98/44/EC). Search proceedings are not affected.

The Enlarged Board of Appeal (EBA) has previously held in the Broccoli II (G2/13) and Tomatoes II (G2/12) decisions of March 2015 that Article 53(b) EPC excludes from patentability essentially biological processes for the production of a plant or animal but that the plant or animal produced by this process may be patentable. It was decided, in effect, that the exclusion was directed to the process, not the products of that process as exclusions under the EPC must be interpreted narrowly. Our previous article discusses this in more detail.

“So, let me get this right,” one person wrote about this scenario yesterday, noting that “whoever at the EPO took this action clearly never heard about the concept of separation of powers?”

Here is the full comment:

Step 1: some “concerned” groups with political clout apply pressure upon the European Commission.
Step 2: the Commission bows to that pressure and issues a note (based upon questionable legal analysis) interpreting certain legislation.
Step 3: solely upon the basis of the Commission’s note, one of the bodies tasked with “enforcing” that legislation stops following a ruling from the judiciary upon the very point covered by the Commission’s note.

Forgive me, but would I be right in thinking that whoever at the EPO took this action clearly never heard about the concept of separation of powers?

Of course, this is also another instance in which a decision of the Enlarged Board of Appeal is effectively ignored by the EPO management. How long can this continue? And what will the judges in Karlsruhe make of it?

Another person wrote: “Shouldn’t it be Art 52(3) EPC (patentability) instead of Art 54(3) EPC (novelty)?”

Yet another person added: “There may be some serious Treaty impacts to deny patents in this field of technology (“reproducible” or not)”

If the EPO, led by a crazed yet totally unaccountable non-scientific autocrat like Battistelli, was left to decide on patent scope on its own, then obviously it would totally lose control, just like SIPO did (in the name of “production”).

Marks & Clerk has just published another article about the EPO, this one about Directorate Quality Support (DQS) — not to be confused with patent quality.

Complaints to the European Patent Office (EPO) are dealt with by a central EPO department known as Directorate Quality Support (DQS), which is also solely responsible for drafting and sending the official EPO response to the complainant. The default position is that both the original complaint and the reply thereto issued by DQS on behalf of the EPO are not made public, but rather are kept in the non-public part of the file to which the complaint pertains. This default position was apparently established by a decision of the President of the EPO in 2007. On the face of it, this would not appear to be a particularly contentious position, and is possibly justified given that complaints could be prejudicial to the legitimate personal or economic interests of third parties. Presumably the EPO would rather not place itself in a position of being a public outlet for any such potentially prejudicial remarks.

However, when it comes to oppositions before the EPO, a potential conflict with the above position arises owing to the conditions set out in Article 101 EPC in conjunction with Rules 79 and 83 EPC which, in summary, mandate the EPO to notify all exchanges to all parties during opposition proceedings. This would appear to include the notification by the EPO to the patent proprietor, for example, of any exchanges between the EPO, including the DQS as part of the EPO, and the opponent.

Some time in the future, potentially next year, we are going to show some letters from dissatisfied EPO costumers [sic] (that’s the term Team Battistelli likes to use, along with “production” and other business-oriented terms). We generally intend to take it up a notch next year, as salvage from Battistelli’s harm seems attainable now that most of Europe's largest economies antagonise Battistelli. The EPO as it stands at the moment is a doomed project; saving it requires major ‘reforms’ (like permanent removal of Team Battistelli).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The 'Linux' Foundation is Acting Like a Microsoft ISV Now, Commitment to Linux and FOSS Deteriorates Even Further

    The Linux Foundation has just announced a new Microsoft-funded initiative that's pushing GitHub and CLAs (passing copyrights on code to corporations)



  2. Links 18/7/2019: OPNsense 19.7, Krita 4.2.3 and KDevelop 5.3.3 Released

    Links for the day



  3. Index: G 2/19 (Enlarged Board of Appeal, EPO)

    G 2/19 (Enlarged Board of Appeal, EPO)



  4. EPO Looney Tunes – Part 4: G 2/19 - Faites Vos Jeux…

    "Josefsson needs to bring in the “desired result” for his political masters in the Administrative Council if he wants to be in with a chance of reappointment."



  5. Media Not Interested in G 2/19, Which Demonstrates Patent Justice is Nowadays Impossible at the EPO

    The EPO spreads patent injustices to other countries and courts; the media is miraculously enough not interested, almost as though there's a coordinated blackout



  6. Librethreat Database Updated

    Database which keeps track of variants of attack vectors on Free/libre software now includes two more forms of threat



  7. A Look Back (and Forward) at Friendly Programming

    Historical perspective on computer languages and how to do better



  8. Red Hat's Freedom Reduced to Just Online Partner Enablement Network (OPEN) and Microsoft as a Close Partner; Canonical's Ubuntu Just an 'App' for Windows?

    Free software is being snapped up by proprietary software giants and patent bullies that treat it as little more than an 'add-on' for their proprietary offerings



  9. Linux Foundation Apparently Celebrates Sysadmin Day With a Microsoft Windows Site!

    The Linux Foundation shows ‘love’ to actual GNU/Linux (the real thing) by apparently rejecting it and badmouthing it



  10. EPO Looney Tunes – Part 3: The Legal Line-up for G 2/19

    The deck appears to have already been stacked for G 2/19, a decision on EPO judges' exile to Haar (veiled disciplinary action/collective punishment by those whom the judges are supposed to 'oversee')



  11. Links 17/7/2019: VirtualBox 6.0.10 and Mageia 7.1 Releases, Mint Betas

    Links for the day



  12. Links 16/7/2019: Btrfs Gets 'Cleaned Up', Clonezilla Live 2.6.2-15

    Links for the day



  13. EPO Looney Tunes - Part 2: The “Difficult Legacy” and Its Dark Historical Shadow

    Assuming that he was informed, then it seems fair to say that Battistell’s little “joke” at the expense of the Boards was in very bad taste



  14. EPO Noise Machine Turned On as Haar Hearing Kicks Off, Patrick Corcoran Defamed Again

    The EPO does not want people to hear about Haar; it just wants people to hear about how wonderful the EPO is and there are some who have just decided to slander Patrick Corcoran again



  15. Microsoft is 'Doing Kamikaze' (神風) on Linux

    An analogy for what the Linux (only in name!) Foundation and Microsoft mean to Linux — or by extension to GNU/Linux and Free software whose largest repository Microsoft took control of



  16. The 'New' Linux.com Sometimes Feels Like a Microsoft Promotion Site

    Anything that the ‘Linux’ Foundation touches seems to turn into its proprietors’ agenda; one of those proprietors is Microsoft, which has a "Jihad" against Linux



  17. IBM is a Threat to the Internet, Not Just to Software Development (Due to Software Patents Aggression)

    IBM continues its aggression against technology — a fact that’s even more distressing now that IBM calls the shots at Red Hat



  18. EPO Looney Tunes - Part 1: Is D-Day Approaching for Battistelli’s “Difficult Legacy”?

    European patent justice isn’t working within the premises of EPOnia; a bunch of ‘show trials’ may in fact turn out to be just that — a show



  19. Links 16/7/2019: LXD 3.15, Q4OS 3.8 and D9VK 0.13f

    Links for the day



  20. Links 15/7/2019: Vulkan 1.1.115 and Facebook Openwashing

    Links for the day



  21. Microsoft Office 360 Banned

    OpenDocument Format (ODF, a real standard everyone can implement) and Free/libre software should be taught in schools; it's not supposed to be just a matter of privacy



  22. Microsoft, in Its Own Words...

    Sociopathy, incompetence and intolerance of the rule of law, as demonstrated by Microsoft's top managers



  23. Microsoft's WSL is Designed to Weaken GNU/Linux (on the Desktop/Laptop) and Strengthen Vista 10

    What Microsoft does to GNU/Linux on the desktop (and/or laptop) bears much resemblance to what Microsoft did to Java a couple of decades ago



  24. Links 14/7/2019: Linux 5.2.1, Unreal Engine 4.23 Preview, Linux Mint 19.2 Beta

    Links for the day



  25. 25,500 Blog Posts and Pages

    With our thirteenth anniversary just a few months away we're at a pace of about 2,000 posts per year



  26. With WSL Microsoft is Doing to GNU/Linux What It Did to Netscape

    Embrace, extend, extinguish. Some things never really change even if they become an old and repetitive accusation.



  27. Allowing Bad Guests to Become the Hosts

    Why the so-called 'Linux Foundation', a nonprofit that acts more like a PAC controlled by proprietary software companies and people who don't even use Linux, is increasingly becoming a Linux-hostile front group



  28. Honesty and Collaboration Make Free Software Stronger, Microsoft is Inherently a Misfit

    In spite of all the lies Microsoft and its Web sites spew out on a daily basis, nothing has really changed and Microsoft is still attacking Software Freedom (mostly from the inside nowadays, helped by FUD proxies such as WhiteSource and Snyk)



  29. Patent Certainty Waning, But That's Still OK for Patent Trolls

    Patent maximalism remains a threat to everyone but patent lawyers (and patent office chiefs who measure their own performance only by the number of patents granted); best served are the patent trolls who extrajudicially attack already-impoverished parties behind closed doors



  30. GitHub is Microsoft's Proprietary Software and Centralised (Monopoly) Platform, But When Canonical's Account There Gets Compromised Suddenly It's Ubuntu's Fault?

    Typical media distortions and signs that Microsoft already uses GitHub for censorship of Free/Open Source software that does not fit Microsoft's interests


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts