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01.24.18

CRISPR Patent Debacle Demonstrated That Opposition Divisions Do Their Job, But Also Highlighted Serious Deficiency in Patent-Granting Process

Posted in America, Europe, Patents at 1:38 am by Dr. Roy Schestowitz

Why was such a patent allowed in the first place? Could it be inane work pressure?

Intellectual Property and Genomics
Reference: genome.gov (US)

Summary: While it is reassuring that EPO staff managed to squash a very controversial patent, it remains to be explained why such patent applications/applicants were even notified of intention to grant (in spite of the EPC, common sense and so on)

THE US patent system, in spite of its flaws, has managed to improve patent quality. IPRs/PTAB/AIA might deserve the credit. At the EPO, the appeal boards and the Opposition Divisions were entrusted to ensure patent quality as well.

“Maybe that’s because the number of oppositions is soaring.”One week ago today (also Wednesday) an Opposition Division showed signs of life and demonstrated that in spite of Battistelli’s behaviour it was still able to do its work. This latest comment in IP Kat says: “The discussion seems to shift away from the facts of the case decided by the Opposition Division. Even the proprietor does not allege that there was a consent by all the co-applicants of the provisional to file the internatial application claiming priority from the provisional. As to the form of transfer it seems to be meanwhile uncontested EP practice that it is governed by national law, i.e. in the case of a US provisional US civil law.”

6 days later there was still new press coverage about this opposition. “Broad suffered a stunning blow at the European Patent Office (EPO) last week,” said this latest article.

So much for patent certainty…

“The [European] office also plans to create new specialised directorates to deal with opposition procedures,” said this recent article (translated into German and French by SUEPO last week). Maybe that’s because the number of oppositions is soaring. Yesterday the EPO once again promoted the lie. I told them “it will accomplish the very opposite” of what they claim. They obviously did not reply (they rarely respond to anyone at all).

“No wonder patents tentatively get issued on CRISPR — something that even the US does not allow.”An internal SUEPO memo, according to this article, said that Battistelli’s “division into small units creates obvious issues of unequally distributed expertise (individual patent administration staff cannot master perfectly the many necessary procedures). “Even the patent administration procedures that until now were centralised in a dedicated unit, like the receiving office for WIPO in the EPO, will be decentralised to the small units […] expertise will be much more diluted than before. […] To solve the problem they have created, management has decided to train intensively all patent administration staff in basically all procedures. This is taking place while patent administration staff is already struggling with the workload, further increasing work strain. In any event, one cannot reasonably expect that a hasty training will allow building up the necessary level of expertise in all the small teams.”

We have not yet seen this entire memo (if someone can send it to us, we would appreciate it), but it seems to suggest a further race to the bottom. Yesterday the EPO promoted internships again. “This is what you can expect from our Praktika Intern programme,” it said. Way to lower the quality of work. They reduce the barrier or lower the bar to entry. No wonder patents tentatively get issued on CRISPR — something that even the US does not allow.

It is quite alarming that the EPO lowers patent quality while denying the issue even exists!

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