Breeding patents back on the agenda

Summary: A few recent developments and observations regarding the European Patent Office (EPO), which is in a volatile state and is making no public statement about the future of staff ('canteen talk' now revolves around alleged deep cuts to staffing)

THE EPO has made no announcements for quite a while. Low profile seem to have generally been kept so far this year. We've hypothesised about the reasons for this, but these are merely hypotheses. We can recall days (or months) when the EPO made plenty of controversial statements, but nowadays both the site and the accounts (of the EPO) say nothing of great importance. Yesterday the EPO spoke about “intellectual property & patents,” which is an odd way to frame things. "It’s misleading to say" that, I told them, "because the former is a propaganda term, the latter a law which is typically put under this umbrella that’s a propaganda term. It’s not a property."

Unlike the USPTO, the EPO does not deal with anything but patents (the "T" in USPTO stands for trademarks). It's important to separate all these things and not refer to them collectively using terms like "IP", which perpetuates old falsehoods. Speaking of which, there's that old canard about "innovation" in yesterday's news from the US. Real "invention" isn't to be measured in terms of patents, but the article "Washington state stakes its claim as a bastion for invention" would have us believe otherwise. To quote:

Washington was home to 2,220 inventors in 2017 (29.98 per capita), behind New York's 2,290, Texas' 3,007 and California's 10,009, according to U.S. Patent and Trademark Office data.

This has a lot to do with where large corporations are based, not with inherent spark for inventorship. We'll revisit this topic later in the weekend. We intend to write a lot about the US.

It has meanwhile been reported in news sites that, just as we noted the day before, a Battistelli proposal had been watered down. To quote:

A proposal to scrap permanent employment contracts at the European Patent Office (EPO) has been halted and a controversial article within it withdrawn, a source close to the Staff Union of the EPO (SUEPO) has confirmed.

The original proposals were aimed at the “modernisation of the employment framework of the EPO” and would ensure its “long-term sustainability” and allow for a more “flexible management of the EPO’s workforce”.

[...]

According to the CSC, it would apply to all staff, including current permanent employees of the EPO, and gives the office the power to terminate the service of staff without any safeguards.

The source said that the CSC’s letter was a driving force in the withdrawal of article 53(f).

Additionally, there's this new article about the ascent of patent trolls in Europe -- based on a study that the patent trolls' lobby immediately attacked (within hours of publication). To quote:

Furthermore, according to the study, patents being asserted or owned by NPEs in Europe are more often successfully invalidated than those patents being asserted or owned by non NPEs. The study also shows that Germany is oftentimes the battleground for such litigation. Here, a defendant in a patent infringement case cannot bring a counterclaim for invalidity but has to attack the validity of the asserted patent in a different forum. This usually means either starting an opposition procedure, most often before the European Patent Office, or filing a nullity action with the German Federal Patent Court. In the latter case, the infringement case will usually have already been decided on – and the decision potentially been enforced – before the validity case is ruled on.

Last but not least, another law firm (Moeller IP Advisors) wrote about Battesteli's latest INPI (Argentina) visit -- a subject we wrote about earlier this month. To quote:

On February 5, 2018, the European Patent Office (EPO) and the National Institute of Industrial Property of Argentina (INPI) signed a Memorandum of Understanding (MoU) on the introduction of the Cooperative Patent Classification (CPC) by INPI. The MoU was signed during a meeting held between EPO President Benoît Battistelli and Argentina's Commerce Secretary Miguel Braun in Buenos Aires to discuss recent developments in patents and innovation and the cooperation between the two regions in this field. According to the MoU, INPI will start classifying its publications with the CPC by January 2019.

The CPC, which was launched by the EPO and the USPTO in January 2013, is now considered the new global standard for refined patent classification. It is already in use, or will soon be used, by 26 patent offices around the world. Argentina has joined other Latin American countries, including Mexico, Brazil and Chile, in the adoption of the CPC.

These nations barely have any European patents (compared to Germany for instance), so it seems like another cheap publicity stunt for Battistelli, who is leaving the Office in 4 months.

Battistelli's legacy has been a very ruinous one not just for the EPO but for international bodies in general. Look no further than the latest comments at The Register. Here are some key ones (posted in the past day or so):

Given that Battistelli ignores all court judgements against him, seemingly with impunity, what will it matter how the court rules? He's taking advantage of the requirement for unanimous agreement by the EO's controlling bodies to ignore them, until he can change the rules to make himself an untouchable dictator for life.

This one he cannot ignore. If it goes against him it de-ratifies the convention which is the basis of him being in office. Additionally, if memory serves me right, one of the other cases is his (so far) successful claim that he is above German law including labour law. This once again goes against German constitution which states that the ultimate law of the land is the German law and no other law can claim supremacy. Even if the first case somehow (I do not see how) fails, the second will pretty much get him fired outright under German labour code. There and then.

I think at a certain stage, courts say "we disagree, and you've now got a prison sentance for contempt of court". And if he doesn't turn up for that, then a warrant for his arrest is issued, and he ends up with famously humourless german police arresting him and unceremouniously tossing him in the clink.

The European Patent Organisation is recognised in German law as an international organisation with immunity (like diplomatic immunity). So German labour law doesn't apply to their workers. Diplomatic immunities do not conflict with the German constitution.

Surely diplomatic immunity only works if the hosting country accept it. At any time Germany could expel him, deport him to his home country and end the diplomatic immunity formally. As an EU citizen he is probably free to re-enter the country, but with his immunity formally ended if he walked into the office and started acting as king again, there shouldn’t be anything stopping the humourless police doing their thing.

If the EPO is not subject to national laws, does that mean that employees are similarly not constrained by the law in their work? This surely means that it's legal for an EPO employee to provide lethal feedback to the management team? Maybe someone should ask Battistelli if he's sure he wants his organisation to have immunity from national laws.

Not implementing the ILO decision? I was just wondering if anyone knows whats the come back against Battesteli and the EPO for not implementing the IPO's [sic. ILO] decision? As far as I was aware when it came to labour disputes, the ILO is the be all and end all. So its not like the EPO are waiting to appeal the decision. So what is the punishment from the ILO? There has to be some stick involved otherwise firms/organisations finding themselves on the losing side of a case would just ignore the result.

Yes, ILO's reputation too is in peril now.

As one person succinctly put it:

Battistelli

The person who achieved something I would have thought impossible - giving megalomaniacs a bad name.

The repercussions of his power obsession seem to be endless.

There's also a comment on quality of patents:

*retain* confidence Europe's patent system? Get real ...

...that would imply there was such a feeling in the past ... The European patent system is broken. There are absolutely no guards left against patenting the most obvious bullshit. Patents on as-per-the-rules unpatentable things (like DNA or code) are granted without hesitation. Number of patents granted has replaced quality of examination as the number 1 requirement for examiners at the EPA. That way the EPA is effectively laying out a mine-field in the way of future innovation. Patent examiners critical of that development are pushed out of their jobs. Regaining control over the EPA is the necessary first step. Re-examining the patents granted in the last years and invalidating 90% of these would be a good second step.

It certainly seems like patents on nature are back at the EPO (even after the seeds/plant monopolies being voided along with CRISPR oppositions). From yesterday's news: "KeyGene Crop, Animal Breeding Patent Upheld in Europe"

It's mostly behind a paywall, but the publicly-available part says "KeyGene announced today the European Patent Office (EPO) has upheld one of its patents related to the improvement of phenotypic traits of plants or animals."

This kind of patent has already caused protests in Germany. Farmers aren't happy; it's akin to those Monsanto (now Bayer in Germany) patents that accomplish nothing but cementing the market for few giant corporations. ⬆