01.20.18

Patent Quality (Not Numbers) as an Asset: Oppositions, Appeals and Rejections at the EPO

Posted in Europe, Patents at 9:18 am by Dr. Roy Schestowitz

If patent information is the goal, then overload is a threat

Reference: Information overload

Summary: Benoît Battistelli wants a rubber-stamping operation (like INPI) rather than a functional patent office, but oppositions at the Office prove to be fruitful and many erroneously-granted patents are — by extrapolation — already being revoked (affecting, in retrospect, Battistelli’s so-called ‘results’)

THIS WEEK has been historic at the EPO not because of scandals or conflicts but because of a decision we covered here several times^*. It was a major blow to patent maximalists.

The patent microcosm never really cared about patent quality; the quality of patents has little to do with the business model. All they care about, based on this upcoming event (advertised yesterday), is how to double the number of patents by throwing the same texts at multiple piles of applications at multiple offices. “EPO and USPTO approaches to rejections” is one among the topics covered. As we pointed out here before, the USPTO barely tolerates patents on genetics. There are few ultra-wealthy companies aspiring to ‘own’ everything, including life itself (Monsanto/Bayer for example) and they crush ordinary people, such as farmers, in the process.

The EPO has lost touch; The discrimination against SMEs at the EPO is not accidental but a planned/intentional policy. According to this, the EPO keeps lying about — and supposedly ‘on behalf of’ — SMEs. Where does that end? Even EPO staff is being crushed nowadays. Nobody is being served but billionaires.

“Even EPO staff is being crushed nowadays. Nobody is being served but billionaires.”“Are you a #patent professional? Here’s an interesting opportunity,” the EPO wrote yesterday, linking to this promotion of internships (warning: epo.org link). The EPO “races to the bottom of salaries and assurance to staff,” I told them, “thus ensuring longterm brain drain. Interns are low-paid staff with no assurance of work. Is this the future of the EPO under Battistelli ‘reforms’? Remember that starting January 1st (2018) all EPO examiners lost their permanent contracts, reducing work security for docility. Terrible.”

The EPO’s official account “follows” me in Twitter. Sometimes I think some good people are behind it, but in order to pay the mortgage they need to obey the high-level management, knowing that they too can suffer (along with their families) if they don’t play along.

Watch what they posted yesterday: Distraction from real EPO news (about CRISPR). Instead they share Battistelli’s photo op in which there’s promotion of software patents in Europe. The EPO basically republished its ‘news’ about “computer implemented inventions”; pushing the unthinkable again? To quote the original (warning: epo.org link): “Other topics discussed during the meeting included procedural changes at the EPO and recent case law, standard essential patents, the EPO’s approach to computer implemented inventions, and IP activities in the Internet of Things era.”

The “CII” dodge aside (that’s what they call software patents in Europe), there’s also that buzzword, “Internet of Things”, once again; that too is a modern trick for sneaking software patents past examiners.

Battistelli’s EPO is stretching patent scope further and further, but the opposition to a CRISPR patent showed that some staff is managing to do the right thing and end this injustice. This is still circulating in technical media and European media. “The vast majority of the Broad Institute’s CRISPR patents in Europe are also affected by this same deficiency and we expect them to meet a similar fate,” ERS CEO Eric Rhodes said. It’s the likely end of CRISPR patents in Europe though the matter is likely to reach the Enlarged Board of Appeals. To quote:

CRISPR/Cas9 has been hailed as the ‘scientific discovery of the century’ due to its capacity to modify the genome for the treatment of genetic diseases. The Broad Institute, set up by MIT and Harvard in 2004 to use genomics to improve human health, successfully obtained a patent from the US Patent Office for its use in eukaryotes. However, the European Patent Office (EPO) has revoked the first of several patents obtained by the Broad Institute, citing a clear lack of novelty.

The editor of JUVE, linking to his article (in German), wrote: “The recent decision of @EPOorg could be a blueprint for the other 6 oppositions against Broad’s CRISPR patents. According to source the Marraffini problem is an issue in all 7 patents.”

Alexander Esslinger replied: “To my knowledge all these patents are based on the same PCT application and therefore share the priority problem […] Faint hope for Broad. In my view only a decision of the Enlarged BoA could help the patent proprieror” (the oppositions division did the right thing to deny patents on CRISPR).

The profound effect of this decision on those who attempt to monopolise life itself can be witnessed in this report from yesterday.

Battistelli has only 5 months left at the Office, so it’s likely that an appeal will occur/take place under the leadership of Campinos.

“Campinos, a Portuguese national, was elected in October as the new EPO president,” says this new article, but he is French actually (dual), just like Benoît Battistelli and Alain Pompidou (a reasonably OK EPO President, according to sources of ours).

Here is what IP Watch wrote yesterday:

Outgoing European Patent Office (EPO) President Benoît Battistelli was elected Chairman of the University of Strasbourg Center for International Intellectual Property Studies Administrative Board in November for a three-year term. He succeeds António Campinos, Executive Director of the European Union Intellectual Property Office.

Campinos, a Portuguese national, was elected in October as the new EPO president for a five-year term starting on 1 July 2018.

Things can only improve from there, or so hope EPO insiders. The goal of everyone — ours included — is to fix the EPO. Patent quality is a big part of that. █
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^* In 4 prior articles (on Wednesday [1, 2], Thursday and Friday) we got one important detail wrong; what we got wrong is that not BoA but the Oppositions (i.e. the Office) made the decision. We apologise for this error. We often assume that very few blogs are covering EPO from a technology perspective (unlike legal ‘industry’ perspective) because the structure of the Organisation is confusing (some units are just numbers and that too changes over the years/decades).

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