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07.13.17

As Expected, Benoît Battistelli Shaved off Billions of Euros Worth of ‘Value’ From European Patents and Thus Alienated Stakeholders

Posted in Europe, Patents at 4:49 am by Dr. Roy Schestowitz

“IPR-intensive industries” — as the EPO likes to call them — suffer profoundly as a result of Battistelli’s departure from a system of proper appeals, wide window for oppositions, and thorough examination

Patent valuation
Reference: Patent valuation

Summary: Overpatenting at the European Patent Office (EPO) means that a lot of patents granted by the EPO are of little or no value, rendering the whole pool of patents questionable until proven otherwise (e.g. in a court of law)

THE quality of European Patents (EPs) has suffered a profound decline. Battistelli will keep lying about it (that’s his specialty), but even patent examiners at the EPO admit that his policies made this decline almost imperative (unless they want to risk being sacked).

“…even patent examiners at the EPO admit that his policies made this decline almost imperative (unless they want to risk being sacked).”Battistelli’s bad policies not only caused the massive increase in grants etc. (which isn’t necessarily a good thing, especially as patent applications declined in the same period) and as recently as 7 months ago we saw the effects. This was formalised at the very end of last month when many law firms were in lower capacity due to holidays. CIPA, which is now occupying blogs, tried to oppose/veto this, but to no avail.

Now that more of these firms have had time to study the changes they sound anything but satisfied. Their clients may be feeling betrayed, having paid a fortune for patents that are no more.

Marks & Clerk’s George Lucas has just published this analysis of what happened:

The EPO has decided that products of essentially biological processes are to be excluded from patentability

[...]

It appears that this change means that the previous “Broccoli” and “Tomatoes” cases would be decided differently today and that neither patent would be upheld; although this may depend on whether they were held to be “exclusively obtained” by means of an essentially biological process – an issue on which we can hope for further guidance in due course.

Finnegan, another one of those large law firms, said this:

The EPO is expected to issue further guidance on the scope and meaning of this Rule in the next revision to its Guidelines for Examination later this year. If the EPO follows the reasoning of the EU Commission notice, then it is likely that transgenic plants and animals, and plants or animals obtained by technical mutagenesis (e.g. CRISPR, TALEN, ZFN) will still be patentable in Europe, but that plants or animals that are produced by natural crossing, and selected on the basis of particular markers, traits or characteristics, will no longer be patentable.

NLO, using IAM as a platform, says that “[t]he decisions caused some commotion; yet the story did not end there.”

Here is another new analysis from legal firms’ sites:

On 3 July, the European Patent Office (EPO) lifted its stays of proceedings on cases that had been held in abeyance pending new rules on the patent-eligibility of plant-related subject matter. Following an intervention by the European Commission in November 2016, as of December 2016 the EPO had stayed the prosecution of a number of plant-related applications pending a possible rule change. The EPO’s Administrative Council then decided at the end of June 2017 to enact some new EPC Rules in this area. These became effective almost immediately, as of 1 July 2017 and are applicable to both existing and newly filed applications.

“EPO director clarifies new plant patenting rules amid MEP concerns,” said a news headline that’s not from a law firm (for a change).

Breeders generally welcome this decisions, except the monopolists who strive to ‘own’ life. As Agranet put it yesterday:

Natural traits in plants are patentable when they can be isolated from their natural environment, but the onus of showing whether the trait is the outcome of a biological or a technical process lies with the breeder, European Patent Office (EPO) director Heli Pihlajamaa has told the European Parliament’s Committee on Agriculture and Rural Development (ComAgri).

Here is what Fruitnet said:

The move comes after the EC issued a notice in November which underlined that plants that are obtained by means of “essentially biological processes” are not patentable.

Notice the trend in all the above articles (there are certainly more on the way) and compare to reactions to patents on genome. As usual, law firms want patents on everything (it’s good or them), but actual innovators or practitioners prefer cooperation and peace.

Belatedly, we suppose, major companies start asking themselves, “what is going on at the EPO?”

“EPs are not what they used to be. If their collective ‘value’ was measured at many billions if not a trillion Euros, what are they worth now? How much damage has Battistelli caused?”But it’s too late now; they paid the price for their gagged press and lack of government interventions.

The negative impact of low patent quality at the EPO is starting to become clear to all. EPs are not what they used to be. If their collective ‘value’ was measured at many billions if not a trillion Euros, what are they worth now? How much damage has Battistelli caused?

There’s even worse news, in areas outside the domain of genetics. We will be writing about it later.

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