07.13.17

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Status and Potency of European Patents Compromised

Posted in Europe, Patents at 5:26 am by Dr. Roy Schestowitz

A seed
If even seeds are patentable, what else is?

Summary: The European Patents — once renowned for their high quality — see certainty lowered and the process associated with granting increasingly questioned

THE previous post spoke of the diminishing value of European Patents (granted by the EPO). The more patents get granted (with lowered quality bar), the lower their worth. Just see what the USPTO learned the hard way (about a decade ago).

According to the news (not some patent law firm), European Patents are already being successfully challenged. Apparently, “several European patents” (not just one) became toothless. To quote:

The German pharmaceutical and medical technology group B. Braun melsungen has lost a patent dispute with the Indian competitor Polymedicure since 2009.

This involves intravenous safety catheters, which had protected B. Braun with several European patents.

When a physician applies such a catheter to a patient, a needle guard automatically protrudes over the tip when the needle is withdrawn from the arm. This protects the doctor and nursing staff. Conventional catheters lack such a needle guard. Polymedicure also sells intravenous safety catheters, but their needle protection is somewhat different.

As any examiner can imagine, this reduces the likelihood that B. Braun (among other companies in its domain) will pursue more European Patents. Judging by last year’s statistics, the number of patent applications at the EPO is declining.

Yesterday, the following comment turned up in IP Kat (where comments tend to be more informative than shameless self-promotion in ‘article’ form). It’s about Eli Lilly, whose decision we included yesterday evening in daily links. To quote the comment (which relates to the EPO):

So, Lord Neuberger is “inclined to think that the examiner was wrong” in taking the view that the patent should be limited to pemetrexed disodium. However, the examiner does not specify the claims an applicant must file, either during drafting or prosecution. This was solely in the hands of the applicant. The examiner took the view that the claim to ‘pemetrexed’ was added matter, and rightly so. It is unfortunate that our Supreme court act in total disregard of established case law of the EPO. If the UK courts are so opposed to the strict law of added matter followed by the EPO, maybe they should not be so quick to follow the EPO’s position in respect of novelty.

Whether, and to what extent, the courts should protect a patentee from its own incompetent drafting is a separate point as clearly equivalence doctrines exist. However, the present case leads to significant uncertainty in an area where claims can be defined in absolute clarity down to the atomic level. ‘Sodium’ means one thing only, whereas ‘spring’ is a functional definition open to interpretation. Even ‘vertical’ has a degree of error.

The same subject was soon covered by Managing IP, which also spoke of the relevance to the EPO:

The UK Supreme Court has ruled that a patentee can argue that the scope of protection afforded by its patent extends beyond the ambit of the claims. In its ruling in Eli Lilly v Actavis, the Court also provided guidance on when reference to EPO prosecution file would be appropriate in interpreting a patent in infringement cases

It didn’t take long for Stephen Jones from CIPA (now writing at IP Kat) to write about it also, reminding us that this blog is written by a front group/lobbyists who also promoted the UPC.

Here is a comment on the blog: “It also rather puts a mocker on the EPO Examiners who expend such time and ink to pounce on any allegedly-impermissible intermediate generalisation. The Examiner insists that the Applicant write in the specific, not the general term – for the Applicant must not improve his position, must he? – and lo-and-behold, the Courts delete the specific and replace it again with the general term.”

Yes, how do examiners feel?

Read the next comment:

I’m also surprised, as a first reaction, Stephen. But, on thinking about it, not so surprised. I should say that I’ve read your write up, above, but the Decision itself, not yet.

If you (the Inventor or Applicant) have only got results for Na, and the Paris priority year is ending, what can you get out of the EPO other than a claim limited to Na? But does that mean you are entitled to no more scope than that? Is it “fair” to confine your scope to Na alone?

What is the law in Germany on Doctrine of Equivalents? I suspect the SC is bearing in mind that it has to i) lay down law compatible with the reality of prosecution at the EPO, and ii) give due deference to the jurisprudence of Germany. I guess it was fully briefed on what the BGH says about any DoI.

And, quite apart from BREXIT, it should bear those two things in mind, shouldn’t it?

Speaking of BGH, watch what the Kat Mark Schweizer wrote about a European Patent (EP) from Shionogi in relation to Merck (a competitor of Eli Lilly):

According to its media release of 11 July 2017, the German Federal Court of Justice confirmed the decision of the Federal Patent Court granting Merck a compulsory license to EP 1 422 218 owned by Shionogi. This allows Merck the continued distribution of its antiretroviral drug Isentress, an approved medication for treatment of HIV-patients, on the German market.

[...]

The Federal Patent Court held that the criteria developed under competition law for FRAND licenses were not applicable in the context of § 24(1) Patent Act. The media release of the BGH only states, somewhat cryptically, that in view of the specific facts of the case, “namely the uncertain outcome of the opposition proceeding”, Merck’s efforts had been sufficient.

I’m not feeling old, but I’m old enough to remember the days when EPs were the “gold standard” and hardly disputable. After Battistelli it seems like EPs are just riding the wave of their former reputation, which simply won’t last long.

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