03.25.17

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Judge and Justice Bashing in the United States, EPC Bashing at the EPO

Posted in Europe, Patents at 12:30 pm by Dr. Roy Schestowitz

The EPO took it even further by illegally suspending a judge, putting him on a "house ban" with no foreseen redemption

Gorsuch on Trump
Reference: SCOTUS Nominee Gorsuch Calls Trump’s Judge-Bashing ‘Disheartening’ and ‘Demoralizing’

Summary: Enforcement of the law based on constitutional grounds and based on the European Patent Convention (EPC) in an age of retribution and insults — sometimes even libel — against judges

THE informal mouthpiece (still) of the EPO, IAM, published this article just before the weekend. It’s about a Supreme Court decision (impacting courts more than the USPTO) which can help patent trolls. IAM was of course jubilant and the article boils down to the typical IAM propaganda. It’s just a selection of quotes from just one side of the argument. It’s propaganda disguised as news.

Trolls’ and maximalists’ news [sic] sites quote only other trolls and maximalists, as might be expect. But what’s noteworthy is the following part in which a former USPTO Director says that the “so-called judge” (infamous phrase from Trump) is a hypocrite. IAM uses that to attack (mind the headline) a nonconformist (patent sceptic) Justice, Mr. Breyer, whom the patent microcosm likes to attack over Alice and the his remarks on the Lexmark case. Here is the relevant part:

One critic, former USPTO Director Todd Dickinson, now a partner at Polsinelli, pointed out what he sees as the hypocrisy in Breyer’s comments in SCA and Star Athletica, and the court’s recent mangling of the law around patent eligible subject matter.

Notice how IAM is quoting some of the worst trolls but not actual industry people (producers and productive firms, i.e. anything other than parasites). We have grown accustomed to this, particularly from IAM.

Patent maximalists want more patents, more lawsuits, and more money for themselves (the latter requires more of both). They couldn’t care any less about the raison d’être and core purpose of patents as originally envisioned. They’re like clueless Battistelli, who would have us believe that converting a fine patent examination office into a rubberstampting operation like INPI is a great thing, even if that entails decrease in applications and devaluation of EPs. He’s a hyperinflation politician, not a President; he’s a tyrant like Mugabe and his impact on the EPO is already devastating (brain drain, reputation issues and so on).

Facing the reality of the EPC, the EPO already acknowledged it had granted bogus patents on plants/seed and then decided to stop it (very belatedly and probably due to mounting public pressure). The EPC is like the constitution to examiners, but they are bossed and instructed by Battistelli loyalists, not a legal document. There is clearly a constitutional crisis here, hence the need for whistleblowers.

Tobias Cohen Jehoram, Tjibbe Douma, Gertjan Kuipers and Oscar Lamme from De Brauw Blackstone Westbroek N.V. have just published this article about it. They also take note of the EPC towards the end, along with the EU Biotech Directive:

The patentability of plant varieties has been a recurring topic of discussion over the years. Despite some pro-patentability decisions by the European Patent Office, the European Commission recently set out its restrictive views on this subject in a Notice. This led to the European Council stating its Conclusions on the Notice in February 2017. The outcome is clear: both EU bodies conclude that no patents should be allowed for plant products obtained through essentially biological processes, for example genetically modified plants.

[...]

Under the EU Biotech Directive and the European Patent Convention (EPC), plant varieties and essentially biological processes for the production of plants are not patentable. Plant varieties can be protected by “plant variety rights”, which grant exclusivity to the right holder while leaving room for others to use the protected material as a starting point for further breeding (the breeders’ exemption).

The EPC is a non-EU convention and the Biotech Directive was implemented in the EPC by the EPC Implementing Regulations. Those Regulations also provide that the examining and opposition divisions of the European Patent Organisation (EPO) use the Directive as a supplementary means of interpretation when examining European patents and patent applications for EPC compliance. In addition, the EPO Guidelines provide that judgments of the Court of Justice of the European Union on the interpretation of the Directive may be “considered as being persuasive”.

Also take note of this Turkish law firm writing about the EPC in relation to Turkey; this was published already in IAM and we took note of it the other day. We bemoaned the wrong assumption that the EPO was still following and obeying the EPC; the judges whose job it is to enforce this have already complained openly that they are unable to do it under Battistelli.

Battistelli’s men have already gloated that they would disregard court rulings, they pretty much ignore ILO rulings, and much like Recep Tayyip Erdoğan they oust or drive to exile judges whom they don’t agree with.

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