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12.13.18

The European Patent Troll Wants as Much Litigation as Possible

Posted in Europe, Patents at 1:58 pm by Dr. Roy Schestowitz

…And as many granted European Patents as it can get away with

António Campinos FTI

Summary: Patent quality is a concept no longer recognisable at the European Patent Office; all that the management understands is speed and PACE, which it conflates with quality in order to register as much cash as possible before the whole thing comes crashing down (bubbles always implode at the end)

THE European Patent Office (EPO) does not intend to improve patent quality. It does not even acknowledge such an issue. António Campinos is happy enough to personally promote software patents in Europe (even in his blog) and tell concerned stakeholders such as law firms that he just wants to remove the cause/source of criticism rather than properly tackle the issue. Kluwer Patent Blog wrote about it last month and commenters were understandably upset. Who does today’s EPO serve? As we put it some weeks ago, "António Campinos is Working for Patent Trolls at the Expense of Science and Technology" (the original purpose of the Office was to advance science).

Just more than a day ago the EPO was retweeting epi as saying: “Visit us at the EPO Vienna, 5 Feb 19 for the “Opposition & Appeal” seminar supported by the EPO. You get an intensive and practical overview of all relevant legal & practical issues concerning opposition and appeal proceedings before the @EPOorg. https://patentepi.com/r/Opposition_Appeal_seminar …”

As a reminder to our readers, epi very belatedly protested EPO abuses and the same goes for EPLAW [1, 2], whose latest think tank was boosted by IP Kat yesterday. Annsley Merelle Ward from Bristows was boosting this event of patent maximalists looking to sue anyone they can (for profit, for ‘sport’); she quotes colleagues, as usual, which makes the blog look like it has been reduced to ‘mouthpiece’ status of litigators (Team UPC and others). “EPLAW was formed in 2001 to strengthen the network of experienced patent litigators in Europe and to work towards a more harmonized European patent litigation system,” it says. This is what the bullies from Team UPC want. And watch what it says towards the end: “The afternoon concluded with a report from Kevin Mooney (Simmons & Simmons, UK) and Pierre Véron (FR) on the latest progress and recent developments for the UPC and a report from Daan de Lange (Brinkhof, NL) on the highlights of the Judges Conference in Venice.”

So it’s that ‘obligatory’ UPC promotion. Mooney keeps telling lies about the prospects of the UPC in the UK, so we have mentioned him a lot lately.

An article by Abhai Pandey and Joginder Singh (proponents of software patents at LexOrbis, India [1, 2]) has also just been published to promote PPH, a litigation ‘highway’. It mentions the EPO. Lawyers love it when patent quality gets abandoned for the sake of their biggest ‘product’: litigation. “Hurry up,” they say, “you lazy examiners need to issue us patents to sue with! To hell with prior art search and all that ‘nuisance’!”

We have also just noticed this new article by Shelston IP Pty Ltd’s Gareth Dixon. These people are aggressive proponents of software patents and they’re constantly attacking/discrediting anyone in NZ whom they don't like, irrespective of the underlying facts. This article too mentions the EPO. All they want is to sue, sue, sue… that’s where the “Big Money” is.

Speaking of litigation and the EPO, IAM (the patent trolls’ mouthpiece) has just published this piece about a “decision in Monsanto’s appeal against the revocation of a key patent” in India. An article that was supposed to be about India suddenly turned into this (all about EPO):

In view of the absence of any definition for the terms “parts of plants or animals” or “essentially biological process” in the Patents Act, there is no clear statutory guidance for the same. While the DHC relied on the decisions of the European Patent Office (EPO) Enlarged Board of Appeals striking down the so-called “Tomato” and the “Broccoli” patents, it failed to consider that the new varieties of tomato and broccoli were not transgenic and that there was no recombinant construct being introgressed to prepare these varieties with improved traits.

The European Patent Convention (EPC) and Directive 98/44/EC (the Biotech Directive) also exclude “essentially biological processes” from being patented. Article 2(2) of the Biotech Directive, as well as Rule 26(5) of the EPC, state that “a process for the production of plants or animals is essentially biological if it consists entirely of natural phenomenon such as crossing or selection”.

Further, Article 4(1)(b) of the Biotech Directive excludes from patentability essentially biological processes for the production of plants or animals. Article 4(3), however, clarifies that Article 4(1)(b) will be without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process. Article 53(b) of the EPC echoes the same.

Thus, methods of making transgenic plants using novel recombinant DNA constructs and even transgenic plants are patentable in Europe. Interestingly, the Board of Appeal of the EPO has just ruled that Rule 28(2) EPC as amended by the Administrative Council in July 2017 is void as it is in conflict with Art 53(b) EPC as interpreted by the Enlarged Board in G 2/12. Thus, as per this latest ruling, even the plants produced by essentially biological processes are now patentable in Europe. We hope that these new developments are brought to the attention of the Supreme Court for the European perspective.

Suffice to say, litigation firms love it. Managing Intellectual Property (another trolls-friendly blog) has just written about it (yet again, this time Patrick Wingrove) and said:

In-house counsel say the EPO Technical Board of Appeal’s conclusion that plants made from essentially biological processes are patentable could usher in another decade of protection uncertainty in the industry

In-house counsel reveal that uncertainty has grown in the agricultural industry after a controversial decision on plant patents from the European Patent Office (EPO) last week.

This tragedy at the EPO is actually a threat to the EPO's reputation (which is already severely damaged for many other reasons), but patent lawyers focused on litigation certainly like it; more lawsuits, more monopolies to feud over…

As some people are rightly point out (not the patent maximalists), one must wonder how much degree of freedom the judges really had. Ellie Purnell (HGF Ltd) echoes the patent maximalists’ line, whereas this insider’s blog (EPO) noted again that “dismissal of a DG3 member [Judge Crocoran] was also political in nature. President Battistelli simply could not accept that they were independent of him, as everybody understood from his later actions.”

Here’s the full post: (we’re assuming not many of our readers are subscribed to Märpel as well)

The December council meeting is upon us and Märpel heard that there was little progress on the disciplinary cases. Remember: Laurent Prunier, Elisabeth Hardon and Patrick Corcoran.

Laurent Prunier and Elisabeth Hardon were dismissed together with other prominent union representatives. Even if the official word is that the disciplinary measures were only grouped on prominent union representatives because of “mere coincidence”, everybody working in the office knows that President Battistelli wanted to bring staff representation to their knees. Apparently, this is what they teach in France at the ENA and the recent events show the results of that policy.

The dismissals were political in nature. It comes therefore at a surprise that President Campinos was able to stall the procedure concerning Mrs Hardon and convince the office internal “independent” disciplinary court to wait for him to negotiate. How convenient that he can tell the Council tomorrow that he is “negotiating”, with full powers to stall the proceedings for as long as he wishes. And is there anything to negotiate when your sole offense was that you were head of the staff union?

The dismissal of a DG3 member was also political in nature. President Battistelli simply could not accept that they were independent of him, as everybody understood from his later actions. Yet, Mr Corcoran was reintegrated to DG3 for a week and has not been seen in the office since that time. Rumour is that he is seriously ill. The council washed their collective hands, satisfied that “justice was done”. Whether the Federal constitutional court shall come to the same opinion remains to be seen.

It is already being suggested that the attack on Corcoran was a warning sign (to judges); so was the attack on staff representatives, which reminded everyone that purely political ‘cases’ can be made up (out of thin air) to punish anyone — especially a staff representative — who ‘rocks the boat’ a little, e.g. by pointing out corruption.

SUEPO has not spoken about patent quality for a long time. It’s not improving, but the gag on SUEPO seems to have improved. The Office sends threatening letters not only to SUEPO but also the CSC when publications get issued. As we noted at the very start, Campinos is working on gagging critical stakeholders as well. In just a couple of months Campinos became what took 2 years (or 3 years) for Battistelli to become. Not a good sign, right?

Here is the EPO promoting software patents in defiance of the EPC — its very founding document (de facto ‘constitution’). Yesterday it wrote: “If innovation is for the benefit of society, there should be as much incentive as possible for innovators to disclose AI innovations. That’s one conclusion from our recent conference on patenting #artificialintelligence: http://bit.ly/AIpatents” (“AIpatents” are just a kind of software patents). It was then followed by: “Steep rise in patent applications for self-driving vehicles at the EPO.” (many of these are computer vision, i.e. a kind of software patents).

Steven M. Shape, Malte Köllner and Cary Levitt (Dennemeyer Group) have also just published this buzzwords salad: “Examiners have to cope with the emergence of multidisciplinary, new and potentially disruptive technologies (eg, internet of things, artificial intelligence, connectivity, big data and blockchain technologies).”

These are just kinds of software patents, ‘dressed up’ in buzzwords. They said this in relation to the EPO.

We certainly hope that EPO examiners realise/understand the underlying concepts and who came up with them. In some cases marketing departments are responsible for these terms.

Addressing the subject of litigation system fragmentation (which UPC would only make worse, e.g. legal/court proceedings in a foreign language), Renate Rieder (Maiwald Patentanwalts und Rechtsanwalts GmbH) explains why, once the EPO granted false patents, it’s incredibly hard and expensive to show they’re void and invalid. In her own words:

In contrast to the numerous infringement proceedings, national court decisions regarding the validity of European patent EP 1 313 508 B1 – which was maintained as granted in the opposition proceedings before the European Patent Office – are rare. In the UK and Swiss proceedings mentioned above, validity was not challenged. Validity was challenged in Germany, but not in the above-mentioned proceedings. Due to the so-called bifurcated system, validity of a patent and patent infringement cannot be dealt with in the same proceedings in Germany. Lack of validity has to be raised in separate proceedings before the German Federal Patent Court (FPC). In July 2018, the FPC revoked the German part of EP 1 313 508 B1 (case no. 3 Ni 23/16 (EP), judgment of July 17 2018). The reasons for this decision were published in November 2018. According to the FPC, the combined use of pemetrexed disodium and vitamin B12 for inhibiting tumour growth is obvious in view of the prior art.

Just think what that means to granted software patents and how terrible things would get if litigation got ‘unified’ in the UPC sense, with an EPO-centric court where judges are pressured to accept abstract patents. There’s a discussion related to this. One person wrote some hours ago:

Proof of the Pudding, I completely agree with everything you have written, but I would also point out the broader set of events that happened. The Enlarged Board ruled that products of essentially biological processes were patentable. The EU Commission disagreed. The EPC rules were changed to comply with the Commission’s view. This is power politics at play, and a reflection of the hard reality. The EU is an ongoing project which is ever-expanding and patents are something it has an interest in. The EU will ultimately not allow the EPO to dissent in any substantial way. Whilst ‘legally’ speaking you are correct, I fear that ultimately the EPO will end up being an EU institution at some point because it does not have the power to resist. The EU has recently proposed changes to SPC rights (http://europa.eu/rapid/press-release_IP-18-3907_en.htm). At some point or other it is bound to review patent protection and perhaps how validity is determined, and that will inevitably require the EPO to comply with whatever the EU wants.

“I also agree that the EPO will continue to ensure that, as much as is possible, it acts in accordance with EU law,” said the next comments, but the EPO breaks many laws and then brags that it’s immune from prosecution. Here’s that comment in full:

If by “power politics” you mean a breach of democratic norms (including the separation of powers between the executive, legislative and judicial branches), then I agree that this is what is currently in play.

I also agree that the EPO will continue to ensure that, as much as is possible, it acts in accordance with EU law. However, I believe that their compliance on this point will be motivated by self-interest, namely avoiding a situation arising where the CJEU holds the EPC to contravene EU law.

From this perspective, I continue to believe that it is extremely unlikely that the EPO will be converted into an EU institution, as the circumstances are unlikely to arise where the pain caused by such a change (which would almost certainly include restricting membership of the EPO to EU states only) wold be seen as “worth it” by all stakeholders.

The comparison to SPCs is inappropriate. EU-wide SPC protection was created for the first time under EU law. The same is not true for (more or less “harmonised”) EU-wide patent protection. We have a well-established (and largely well-functioning) system that exists under international law. The consequences of the EU creating an entire patent system under EU law would therefore be far more profound and unsettling (as well as potentially unpleasant).

The above was said in relation to disagreements over patentability of plants/seeds; the same could be said about software patents. Even though the EU objects to such patents, to the EPO it’s only “as such” (so it keep granting such patents anyway, even when national courts repeatedly reject such patents).

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