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02.06.19

EPO Boards of Appeal Still Need Independence

Posted in Europe, Patents at 1:20 am by Dr. Roy Schestowitz

Mafia Battistelli

Summary: The ‘gangsters’ who are running the EPO prevent judges from daring to rule against patent maximalism (knowing their work contract might not be renewed as a result)

THE European Patent Office (EPO) issued (warning: epo.org link) this announcement yesterday: “The Technical Board of Appeal set the EPO’s decision aside and remitted the case back to the patent examiners for further consideration. The Technical Board of Appeal stated inter alia that Rule 28(2) EPC “could not be interpreted in such a way that it was not in conflict in conflict” with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13.”

“Imagine what would happen if Iancu controlled US judges.”The problem is, the EPO is granting patents on life and nature (seeds, plants, animals), contrary to orders from Europe and the EPC. Who’s going to stop this madness? A remittance does not tackle the issue and the matter is seen by a Board subservient to the Banker in Chief (old French friend of corrupt Battistelli) as a matter of abstinence (they abstain from making a decision). What the heck is going on? This should be a “slam-dunk” case. Thorsten Bausch has just weighed in as well. He wrote this: “The much awaited decision T 1063/18 by Technical Board of Appeal 3.3.04 in a five-member composition has been published today. The patent application under appeal related to new pepper plants and fruits with improved nutritional value, and the decision did indeed turn out to be quite peppery, at least in regard to the EPO Administrative Council’s attempt to prohibit the patenting of plants by way of the addition of the “interpretative” Rule 28(2) EPC.

“To begin with, the Board reminded itself of the existing case law of the Enlarged Board of Appeal (EBA) on Art. 53(b) EPC, which stipulates that European Patents are not to be granted for plant or animal varieties or essentially biological processes for the production of plants or animals. The question then put before the EBA was whether this exclusion also extends to plants or plant material or part of plants other than a plant variety”

Why is this even a question? This should be trivial, based on common sense, let aside the law. Meanwhile, as we pointed out in recent weeks, Syngenta’s highly controversial patent has been challenged and, as we've already noted, the patent is now gone; the EPO should never have gone this far with such patent applications and they only grant these because they’re driven by patent maximalism. Alessandro Mancosu (IEG Policy) wrote this text a couple of days ago:

The European Patent Office (EPO) has officially revoked a patent granted to Syngenta on a tomato variety, after the company’s decision to withdraw it, which anti-GM campaigners claim is due to a public outcry over the patent.

This is a case of escape/retreat rather than defeat. Do they hope to dodge a precedence they would not like? Either way, the EPO continues to mumble on this critical issue of patents on natural phenomena and the EPO Boards of Appeal need real independence; they have none of that, seeing that even under António Campinos their colleague is having his whole life (not just his career) destroyed. Imagine what would happen if Iancu controlled US judges.

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