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03.18.17

European Directives and Boards of Appeal Desperately Needed to Keep EPO Patent Scope in Check

Posted in Europe, Patents at 4:35 pm by Dr. Roy Schestowitz

Also see: The Boards of Appeal Openly Complain (in the EPO’s Web Site) About Battistelli, But Don’t Tell Battistelli About It…

A shocked Battistelli

Summary: Battistelli’s notorious reign of terror has caused patents to be granted that are bogus and no longer valid (if/once challenged); moreover, it prevents legal firms from lashing out at him publicly while bogus patents continue to pile up, diminishing confidence in European patents (EPs)

AT THE EPO, patent scope has gone awry based on the management's own admission. But depending on the target audience, they might attempt to tell a different story (diversionary tactics). The USPTO, by contrast, has acknowledged similar problems and is actively working to correct them, much to the pain of the patent microcosm in the US. Patents are a man-made concept and they need to be limited based on various factors such as speed of innovation, production costs, cost of research (e.g. drug discovery and facilities), and public interests (e.g. mortality versus luxury). All this is beyond the scope of this post and was covered here hundreds of times before.

“Patents are a man-made concept and they need to be limited based on various factors such as speed of innovation, production costs, cost of research (e.g. drug discovery and facilities), and public interests (e.g. mortality versus luxury).”A few days ago we saw the lawyers’ media publishing “EPO Stay Of Proceedings In Biotech Cases” — in itself not news but more of an analysis and déjà vu. We already wrote several articles about it; EPO management consciously took a swipe at the law by granting such patents in the first place. Patent lawyers and their clients are now understandably concerned that their patents may be worthless, as a result of belated political intervention (which Team Battistelli belatedly decided to obey, for a change). To quote:

Following a Notice of the European Commission related to certain parts of the EU Biotech Directive (98/44/EC), the EPO has decided to stay all examination and opposition proceedings in which the invention is a plant or animal obtained by an essentially biological process.

The Commission Notice appears to be in direct response to decisions of the EPO’s Enlarged Board of Appeal in the “Tomato II” and “Broccoli II” cases (G 2/12 and G 2/13). These decisions related to the patentability of products which could be obtained by an essentially biological process. Such essentially biological processes are excluded from patentability by Article 53(b) EPC. However, the Enlarged Board decided that the exclusion of essentially biological processes for the production of plants by Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material. Therefore, such product claims are potentially allowable under the EPC.

Following these decisions, the European Parliament adopted a Resolution which asked the Commission to look at the patentability of plants and animals obtained by means of essentially biological processes. Surprisingly, we understand that the Commission undertook this review without consulting its own expert working group on biotech patents. The resulting notice sets out the Commission’s view of the intention of the legislator when adopting the EU Biotech Directive 98/44/EC, Article 4(1) of which contains an exclusion drafted in identical terms to Article 53(b) EPC. Their conclusion is that such plants and animals are not patentable under the Directive.

This is a good example of erosion when it comes to confidence in EPs and it is the fault of an Office that decided to disregard directives and common sense.

“See the ramification of Battistelli disregarding the Boards of Appeal?”As for the the Boards of Appeal of the European Patent Office, they cannot function independently anymore (Battistelli lied about them last week in a lame video) as the following new article serves to remind us. Published (as above) by lawyers’ media, it is titled “Antidote to Toxic Divisionals—European Patent Office Rules on Partial Priorities” and it says: “Beginning in 2009, the Boards of Appeal of the European Patent Office (“EPO”) issued a series of decisions that essentially created a new priority law in Europe that allowed members of the same patent family to negate each other’s novelty. Notions such as “poisonous priorities” and “poisonous or toxic divisionals” emerged, threatening patent holders and raising concerns among patent practitioners and scholars. Confirming principles established for priority rights by the Paris Convention, the recent decision G1/15 of the Enlarged Board of Appeal of the EPO (“EBA” or “Board”) has put an end to this jurisprudence.”

See the ramification of Battistelli disregarding the Boards of Appeal? Or put another way, this is the impact of him choosing to attack/marginalise the Boards of Appeal rather than listen to them. Now there’s a pile of trash granted and enshrined as “EPs”, where the assignees themselves are no longer sure if such EPs are valid at all. Confidence (or certainty) in EPs is the very thing that gives them value, at both ends of negotiation and/or litigation (defendant or licensee included). Look what Battistelli has done!

Confidence (or certainty) in EPs is the very thing that gives them value, at both ends of negotiation and/or litigation (defendant or licensee included). Look what Battistelli has done!”Battistelli has been so drunk on power and so eager to pursue just so-called ‘production’ that he forgot what a patent office actually is and what it is for (maybe he never knew at all, considering the awkward way INPI handles patents).

With Battistelli in charge, the Office makes enemies out of stakeholders (they want Battistelli out) and out of the public. The public interest groups now openly call, yet again, for the EPO to stop patents on beer, so to speak. Two days ago “No Patents on Seeds” circulated the announcement “Call to stop patents on beer” (see original and copies thereof). To quote just a portion of the text:

The protest is targeted at patents granted by the European Patent Office (EPO) in 2016 (EP2384110, EP2373154 and EP2575433) to the brewing companies Carlsberg and Heineken. The patents claim barley derived from conventional breeding, its usage in brewing beer and the beer produced thereof. However, the patents are simply based on random mutations in the plant’s genome. Just recently, the EU Commission and the EU Member States made it very clear that patents on plants and animals derived from conventional breeding are not allowed. Nevertheless, the EPO wants to continue to grant patents in future on random mutations. Currently, the civil society organisations are demanding that politicians ensure the loopholes in the law are closed.

The patented barley is said to simplify brewing and make it cheaper, the beer will also supposedly keep fresh for longer. The two brewing companies can profit twice over – by selling the beer and from the cultivation of the barley. At the same time, they can prevent other breeders from breeding better barley and also extend their market dominance – to the detriment of farmers, breeders, other breweries and consumers.

See our recent article titled Boards of Appeal Still Under Attack From Team Battistelli While the EPO Proceeds to Granting Patents on Carlsberg BEER!"

“It just comes to show how Battistelli’s notorious reign of terror extends beyond the Office and even silences critical blogs (they tried to silence us too, using several legal threats).”Also bear in mind, as we shall show later tonight, that many in patent law firms are deeply concerned about the above granting of dubious patents, which they never thought merited a grant in the first place (there are analogous stories about the USPTO in the 1990s). These firms, i.e. individual employees, are afraid to speak out against the UPC and the EPO (or Battistelli himself), especially using real names (of firms or staff). Fear of retribution, we suppose, against or from an employer (fear that Battistelli will punish the firm and that the firm will then punish staff) is what keeps them separate and isolated. It just comes to show how Battistelli’s notorious reign of terror extends beyond the Office and even silences critical blogs (they tried to silence us too, using several legal threats). We are dealing not with public servants here but with psychopaths.

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