EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

01.30.18

A Danish Company Has Just Collapsed Due to Patent Quality Issues at the EPO

Posted in Europe, Patents at 2:52 am by Dr. Roy Schestowitz

Forward PharmaSummary: Rushed examination at the EPO is taking its toll on companies that need legal certainty and instead get just Early Certainty™ (which is no certainty at all, just an excuse to fake ‘production’ numbers for Battistelli)

THE EPO may have become worse than the USPTO when it comes to patent quality if it’s true that it’s now easier to get software patents at the EPO than at the USPTO (as some law firms publicly claim). Then there’s the aspect of patents on life.

This is alarming because the EPO used to be the best bar none when it comes to patent quality. A European Patent (EP) offered very high legal certainty, e.g. in case a lawsuit gets filed.

Yesterday, IAM’s editor was reposting for Haseltine Lake LLP. It’s about that latest study of theirs (first mentioned by us about 3 weeks ago). It is, however, preceded by his introduction, which goes as follows (after calling the Battistelli era “highly controversial” — a gross understatement).

As President Battistelli sees out his final months, the big question is how much of an impact the changes have had. Well, if research by James Ward and Frances Wilding, partners at Haseltine Lake LLP, is correct, the answer is a great deal. In the following overview of detailed number-crunching they have done, the pair explain that the amount of grants the office made in 2017 is likely to have exceeded 100,000 for the very first time, while the examination backlog could be on the way down; though the number of oppositions is on the rise. What the numbers cannot tell us is whether there has been any impact on the quality of the rights the EPO issues – that, of course, will always be subjective (IAM readers have always seen the office as being the leader of the pack among the IP5).

IAM cites IAM to maintain the illusion that patent quality is OK under Battistelli. This is also what Battistelli keeps citing. Circular logic?

Either way, there have been several high-profile mistakes lately. Thankfully, these were corrected upon opposition. The most famous example is the Broad Institute's CRISPR patent, which has just been mentioned again by Awapatent’s Sofia Willquist. Here is what she wrote: “The CRISPR systems are covered by several patents and patent applications filed by different applicants, and are currently owned by the Broad Institute at MIT, the Max-Planck Institute in Berlin, University of California and MilliporeSigma. Early last year, the Broad Institute won a first dispute, which concerned fundamental patent rights in the US, as previously reported here. However, last week on this side of the ocean, the pendulum swung the other way and Broad suffered a serious set-back when one of the core patents was revoked by the European Patent Office (EPO).”

Rightly so.

Mark Summerfield, an Australian patent maximalist, wrote that “Loss of CRISPR Priority in Europe is a Warning to All Patent Applicants” (more like “Loss of CRISPR Priority in Europe is Great News to People Who Object to Patents on Life”).

From his blog post:

On 17 January 2018, a panel of the European Patent Office (EPO) opposition division wholly revoked a patent co-owned by the Broad Institute (‘Broad’) relating to CRISPR/Cas9 ‘gene editing’ technology. The European patent in question, number EP2771468, is entitled ‘Engineering of systems, methods and optimized guide compositions for sequence manipulation’, and is a European equivalent to US patent no. 8,906,616, which is one of the key Broad patents involved in the US patent interference dispute with the University of California (UC) – which is currently on appeal to the US Court of Appeals for the Federal Circuit. As is usual with European opposition proceedings, the ruling was issued immediately at the hearing (which had originally been scheduled to continue for two further days). A full written decision providing detailed reasons is likely to be a few weeks away.

Technically, the basis for revocation in the final decision is likely to be lack of novelty and/or inventive step of all claims of the Broad patent. However, the underlying reason for Broad’s failure to defend its patent is a loss of priority. In particular, the EPO panel determined that Broad was not entitled to claim priority from four of its earlier US provisional applications, including the earliest filing, US provisional application no. 61/736,527, which was filed on 12 December 2012. This loss of priority was fatal to the patent, as a result of a number of publications – including Broad’s own – that occurred subsequently, but prior to the full application’s filing date of 12 December 2013.

The good news is, the Office managed to correct it. It’s now likely to be on its way to the EPO’s Enlarged Board (on appeal). It’s incredible that such a ludicrous patent can even get this far. It’s also incredible that the Enlarged Board can still get some things done in spite of Battistelli (they’re constantly under several attacks from him). Here’s yesterday’s coverage from Denmark regarding decision G 1/16:

The EPO’s Enlarged Board of Appeal (EBA) recently issued its long-awaited decision G 1/16 relating to undisclosed disclaimers. The decision lays down under which circumstances the introduction during prosecution of a patent application before the EPO of a disclaimer not disclosed in the application as filed may be allowable under Article 123(2) EPC. The decision essentially confirms the standard defined in decision G 1/03 of 2004.

The more interesting news from Denmark, however, started with this press release (“Forward Pharma Announces the Decision of the European Patent Office in the Opposition Proceedings for the EP2801355 Patent”) and then an article titled “Here’s Why Forward Pharma Lost 30% Today” (published only hours ago).

Based in Copenhagen (Denmark) on the face of it, Forward Pharma has collapsed. The EPO has just managed to correct itself after nearly granting a bogus patent. Watch the effect of the EPO rejecting a bogus patent after false hopes were given: “Shares of Forward Pharma A/S (NASDAQ: FWP), a Denmark-based clinical-stage biopharmaceutical company, lost around 30 percent Monday after the company announced a disappointing update related to its patent.”

From the press release:

Forward Pharma A/S (NASDAQ:FWP) (“Forward” or the “Company”) today announced that the European Patent Office (the “EPO”) has revoked the EP2801355 patent (the “’355 patent”) following the oral hearing in the Opposition Proceedings.

The EPO Opposition Division revoked the ’355 patent after considering third-party oppositions from several opponents. The Opposition Division will issue detailed reasons for the decision in written form in due course, and following receipt and review of these, Forward plans to appeal the Opposition Division’s decision to the Technical Board of Appeal, with an expected duration of the appeal process of an additional two to three years.

It probably serves to show how rushed examination, Early Certainty™ etc. can do more harm than good. These put a strain on the EPO Opposition Division (now dealing with about 4,000 oppositions per year) because examiners are pressured to work in a rush. How much of this work won’t be corrected by the Opposition Division or the Boards but by the courts? At a huge expense to both plaintiff and defendant/s…

The patent certainty surrounding EPs is gone. So much for Early Certainty™…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  2. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  3. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  4. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  5. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  6. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  7. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  8. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  9. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  10. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  11. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  12. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  13. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  14. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  15. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  16. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  17. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  18. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  19. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  20. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  21. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  22. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  23. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  24. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom



  25. CommunityBridge is a Cynical Microsoft-Funded Effort to Show Zemlin Works for 'Community', Not Microsoft

    After disbanding community participation in the Board (but there are Microsoft staff on the Board now) the "Linux Foundation" (or Zemlin PAC) continues to take Microsoft money and polishes or launders that as "community"



  26. Links 14/3/2019: GNOME 3.32 and Mesa 19.0.0 Released

    Links for the day



  27. EPO 'Results' Are, As Usual, Not Measured Correctly

    The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative



  28. Good News Everyone! UPC Ready to Go... in 2015!

    Benoît Battistelli is no longer in Office and his fantasy (patent lawyers' fantasy) is as elusive as ever; Team UPC is trying to associate opposition to UPC with the far right (AfD) once again



  29. Links 13/3/2019: Plasma 5.15.3,Chrome 73 and Many LF Press Releases

    Links for the day



  30. In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

    The nonchalance and carelessness seen in Iancu's decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a 'mole' of the litigation 'industry' (which he came from)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts