Bonum Certa Men Certa

The EPO Not Only Abandoned the EPC But Also the Biotech Directive

Like outlaws still run the Office

Topić France



Topić letter



Summary: Last week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place

EUROPEAN Patents (EPs) which threaten lives and software patents that are EPs were mentioned in our last post. How far is António Campinos willing to go? How far will Iancu at the U.S. Patent and Trademark Office (USPTO) go?



How about patents on life itself?

It is widely known that this subject is 'controversial', by which we mean on one side we have large corporations like Monsanto and on the other side virtually everyone else, i.e. the public (those not striving to 'own' all lives using bizarre patents).

Last week there was some disturbing development/news which made one wonder if judges had been having dinners at Bayer or something like that. There has been no word on this decision from the EPO's Twitter account, which has been unusually quiet lately (the past few days). Those who covered the decision have been almost without exception patent maximalists; the same goes for comments. Apparently all that matters is how much they can profit from it, not how much sense it actually makes. Miquel Montañá wrote about this yesterday ("The Political Dimension of Tomatoes, Broccoli and Peppers"); it's about the incredible stance of the European Patent Office's (EPO) Board of Appeal (BoA), which decided that patents on seeds, pigs, plants etc. are acceptable as if people "invented" these. Does the EPC not matter anymore?

Here's a new comment on the connection between the EU and the EPO:

In response to 'EPO is not EU...', please see http://patentblog.kluweriplaw.com/2018/05/08/eu-bring-unitary-patent-system-control/

Already the economic and academic arguments are being made as can be seen in that article. The EPO is being entrusted with the Unitary Patent, but that will bring the responsibility of harmonising with EU. It does not make sense to have 2 different sets of appeal systems in Europe (The EPO Boards and the CJEU). A single system of control is sensible, and I am sure will come into being at some point.

"Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law."


Here's another comment of interest:

I would like to address a number of inaccuracies in (implied) statements in your comment from 7 December.

Firstly, it is the Member States that are bound by the Biotech Directive. The role of the courts is to interpret that legislation, ie to determine the meaning of rules that bind the Member States (and other individuals / entities towards which those rules are directed).

Secondly, only the CJEU is able to provide a binding interpretation of the Biotech Directive. Whilst the views of the Commission and of the Member States may be of interest, they are meaningless if they do not align with the CJEU's interpretation of that Directive.

Thirdly, there has already been national litigation (in the Netherlands) on relevant claims. Contrary to what you asserted would be the inevitable result, those claims were held by the Dutch court not to be excluded from patentability.

Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law. In this respect, a positive aspect of the Board of Appeal's decision is that it avoided an outcome that would have been a blatant example of non-compliance with EU law (specifically, with Article 267 TFEU, which is essential to preserving the autonomy and supremacy of EU law).


If the Biotech Directive does not matter and the EPC does not matter either, what does that make the EPO? An outlaw organisation? An organism? If it's an organism, maybe people can apply for a patent on it.

"There is a large uncertainty regarding patenting of plants and animals exclusively obtained by means of essentially biological processes in Europe," Valea AB's Joanna Applequist and Karolina Wiktorson wrote earlier this week. Over at Mondaq, J A Kemp (promoter of antibody patents) seemed rather happy to see this. "We understand that, at an oral hearing held on 5 December 2018 in relation to case T1063/18 concerning an application entitled "New pepper plants and fruits with improved nutritional value", EPO Technical Board of Appeal 3.3.04 held that Rule 28(2) EPC introduced in July 2017 is in conflict with Article 53(b) EPC. Once confirmed, this will have important implications for EPO practice regarding inventions in the field of plant (and animal) breeding as in principle the Rule can no longer stand or be used to reject patent applications if it does not conform to the Article it is supposed to implement," J A Kemp's Andrew Bentham wrote.

Patent propaganda site Managing IP chose a headline that says “Plants patentable in Europe”. How misleading. It's not actually over yet. Moreover, as we explained some days ago, the EPO is simply enraging farmers, who have already protested such moves. The ramifications remain to be seen, but for a patent office that just strives to increase so-called 'production' this may seem (artifiically, on the surface) like a positive development. At what cost?

Recent Techrights' Posts

Digital Sanitation Good Practices
leave behind Microsoftism
10 Days Ago Richard Stallman Gave a Long Interview in French (linuxfr.org)
English translation
Science, Not Fast Food/Junk Food
The commercial exploitation of users won't stop until users exercise full control over their software or - more broadly - their computing (including data)
[Video] Dr. Richard Stallman at Technické Univerzitě v Liberci
New/via libre-liberec.cz
 
The Term "AI" is Not New and What Today's Media Calls "AI" Isn't Even AI
Only the hype was new... and totally artificial
Gemini Links 18/10/2025: "Planetary Rings", Steam, and PSU Replacement
Links for the day
Defeating LLM Abuse (State-of-the-Art Plagiarism) in the Area of Linux and GNU, Free Software, BSD, Security and So On
The aim is to get them to stop using LLMs to rip off other people's work
Links 18/10/2025: Russell Vought in Charge, US Government Leans to Russia Again
Links for the day
Credit Where It's Due: LinuxConfig.org Quit Doing LLM Slop, Back to Original and Real Articles
We waited for a while to say this, now it seems conclusive
Of Note: UbuntuPIT Aware of Critics of Slop, Adds Disclosure of Use of LLMs
We appreciate the honesty
Links 18/10/2025: Madagascar's President Flees and ICE Arrests Protest Comedian Robby Roadsteamer
Links for the day
Richard Stallman Near the European Patent Office (EPO) in 3 Days From Now
It'll be a good opportunity for patent examiners to listen, ask questions, and maybe greet him in person
From Scholar to Booster of Slop (and Even Slop in His Own Blog)
We're going to keep an eye on future posts of his
End of Vista 10 Also Good News for the BSDs
There are many news sites that recommend trying GNU/Linux this month
What's Wrong With Liking Parrots or Birds as Pets?
They'd demonise people for speaking about freedom, no matter what they say or do
The Free Software Foundation, Which Has Appointed a 43-Year-Old President, is Looking to Add Another Board Member (or Treasurer)
expect the FSF to add more people
Richard Stallman Confirms Next Week's Talk at Technical University of Munich, We Urge EPO Staff to Attend
That's probably late enough for EPO staff to attend after work
Gemini Links 18/10/2025: Notifications and Geminaut
Links for the day
Many Red Hat People Are Leaving, But It'll Be Framed Publicly as Leaving IBM
Similarly, IBM layoffs (or "RAs" as they're called) include Red Hat layoffs
Expect More Waves of Microsoft Layoffs This Month (at Least Two Rounds Confirmed Already)
From what we can gather, assuming the recent rumours about XBox are true, there will be at least 3 waves of Microsoft layoffs this month alone
Security Issues in Cisco and Jenkins Passed Off as "Linux" Problems
Fear, Uncertainty, Doubt (FUD) tactics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 17, 2025
IRC logs for Friday, October 17, 2025
Slopwatch: LinuxSecurity, Linux Journal (Slashdot Media), UbuntuPIT, and Google News (Noise)
egregious plagiarism
Links 17/10/2025: Better Answers Sought After Air Crashes, "China Fans Patriotic Sentiment as Trade War With U.S. Heats Up"
Links for the day
Security is Desirable, But Not When the Term Security is Misused to Imply Centralisation of "Trust" (Whose?)
'Security' is not an excuse for vendor lock-in
Links 17/10/2025: Fentanylware (CheeTok) Causing Problems, Japanese Government Blasts Slop
Links for the day
The Linux Foundation Seems to Have Turned Linux.com Not Only Into a Spamfarm But Also LLM Slopfarm
it's polluting the Web, even important domains like Linux.com, with spam and LLM slop
Links 17/10/2025: UK’s Largest Breach Penalty and Windows TCO Examples
Links for the day
Go Watch Video About Librephone, Get Microsoft Ads
Very ethical company...
Campaign of Defamation Against the People Who Built NixOS (and Are Now Pushed Out From Their Own Project)
We've already grown familiar with - and resistant to - such tactics
Links 17/10/2025: Nestlé Crisis, Canada Post Versus 'Gig Economy' [sic] and Vista 11 Breaks Itself
Links for the day
Tux Machines Has Helped Separate Opinions/Analysis From News
In September 2023 we decided to split things apart and not repeat links in both sites
Tux Machines Has Improved Navigation of GNU/Linux and BSD News
Some more 'wiring' work
What a World Would Look Like If Everyone Used Free Software Only
Freedom is what matters, not "Open".
The Media Helps Microsoft, Amazon and Others (GAFAM and Beyond) Lie About Mass Layoffs Amid Valuation Bubble
The media, instead of saying that there's an "AI bubble" crashing the economy might instead choose the narrative of "jobs replaced by AI"
Bad Tempered? You Might Have Just Given Away That You're Losing the Argument
Brett Wilson LLP is fully aware that it is being investigated
Richard Stallman (RMS) is a Target of Defamation Campaigns Because of His Views on Software (But Politics Are the Excuse for Defaming Him)
Here in this site we try to refrain from politics, except in Daily Links
End of Vista 10 and Rise of GNU/Linux as Client Side Operating System
It seems certain GNU/Linux will grow in popularity over time
Taking Stock of a Week's Worth of EPO Leaks
We remain committed to exposing EPO corruption as long as it keeps happening
Mathieu Parreaux claims FINMA knew since day one
Reprinted with permission from Daniel Pocock
Calumny, Libel, Joerg Jaspert & debian-private untouchable cyberbullies
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 16, 2025
IRC logs for Thursday, October 16, 2025
Techrights Turns 19 in 3 Weeks
coverage of suppressed topics and protecting all sources/whistleblowers
International E-Waste Day Same Day as End of Vista 10
message from Akira Urushibata
The EPO's Central Staff Committee Presents Evidence That Staff Compensation Lowered While the Office Increases Income by Illegally Granting Invalid Patents
These people become millionaires by doing illegal things
Second or Third Wave of Microsoft Mass Layoffs in October 2025, This Time Portugal
Those are just the ones we know about, there may be several more
'Help Net Security' (helpnetsecurity.com) May Have Become a Slopfarm as Well
Zeljka Zorz, Editor-in-Chief at Help Net Security, was reported to us
Gemini Links 17/10/2025: Rant About Network Solutions, Strange Anomaly on Lagrange
Links for the day
EPO Staff Representation Lacks Social Dialogue With Relevant Management, Controversial and Sometimes Illegal Policies Implemented Without Necessary Input
"In this open letter, the CSC requests that the President submits an agenda item in the next available General Consultative Committee (GCC) meeting on setting up regular meetings between the CSC and the higher management of DG1."
Links 16/10/2025: Political Leftovers and Gemini Protocol Links
Links for the day
Lies Need to be Corrected
the Court never invited us
Slopwatch: Guardian Digital (linuxsecurity.com), Slashdot, Google News, and More
Maybe one day, once the bubble pops completely, Google News will just outright delist all slopfarms
Lufthansa Modern Slavery, Joerg Jaspert (ganneff) & Debian NSB Softwareentwicklung charade
Reprinted with permission from Daniel Pocock
Links 16/10/2025: US Starting More Trade Wars With China, CIA War on Venezuela
Links for the day
SUSE Blog is Still LLM Slop, Marketing Manager at SUSE Cannot Write
Would you buy from a company or seek support from a company that cannot even write (or fakes writing)?
Pretend You're Not Dead: Microsoft Spent Almost Two Decades Rebranding Things as "Cloud, Then "AI", Now "XBox" and "Quantum"
"AI" bubble pops, Microsoft harping about "quantum" already
IBM Allegedly Found New Tricks for Silent Layoffs: LPI, Then MIS (Not PIP)
Remember that "Red Hat layoffs" won't be reported after the bluewashing
Links 16/10/2025: Red Lines and Feeding of Microsoft Trolls
Links for the day
MIT as a Propaganda Mill of GAFAM, Paid by GAFAM
"the news" today
Links 16/10/2025: Lies Euphemised as ‘Dueling Versions of Reality’ and Microsoft "Open" "Hey Hi" Resorts to Porn as No Business Model Was Found
Links for the day
The Local Staff Committee Munich (Representation of the EPO's Staff) Explains When Cluster of Pregnancies May Result in Reduced Pay
"...even one week of part-time working is sufficient to reduce the salary you perceive during the entirety of your maternity leave."
Another Black Eye for 'Secure Boot', Microsoft Media Tries to Blame "Linux"
It enables Microsoft to remotely control computers, even computers that don't run Windows and never had any Microsoft software installed
Slopwatch: UbuntuPIT, linuxsecurity.com, and Various Slopfarms in Google News Attacking "Linux"
A new survey of the Web said that the majority of the Web is now slop (that's being said in the news this week)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 15, 2025
IRC logs for Wednesday, October 15, 2025
Links 16/10/2025: Increased Use of Social Control Media Surveillance in US, French Rage Over Pensions
Links for the day