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02.12.19

Gross Violations of the EPC at the European Patent Office as Principal Priority Turns Against Science and Technology

Posted in Europe, Law, Patents at 2:05 am by Dr. Roy Schestowitz

Defining oneself using the very opposite of the truth

EPO mission

Summary: What good is the law if violation of the European Patent Convention (EPC) is so routine at today’s European Patent Office (EPO), which exploits its immunity to operate outside the rule of law and pursue nothing but cash (selling patents/monopolies that are invalid in courts)?

OUR next post will deal with the U.S. Patent and Trademark Office (USPTO) under Iancu following the 'Battistelli model', i.e. attacking/ignoring judges. But before we get to that, shall we take a look at the latest EPO madness? We shall.

First of all, there are overt violations of the EPC when the EPO grants patents on life. Those were never meant to be granted or even considered for a grant. Miraculously enough, however, nature and life are now regarded as “inventions” (whose?) and Kilburn & Strode LLP’s Nick Bassil has just published this piece about the EPC allowing patents on "essentially biological process". What has the patent world sunk to?

“Remember when the EPO actually did a better job pretending it existed to advance science and technology rather than law firms?”As Kluwer Patent blogger noted only a few hours ago, “Teff patents declared invalid [means] ‘great news’ for Ethiopia” — a subject we covered last week. To quote Kluwer: “A court in the Netherlands has ruled that two Dutch patents for processing teff, a kind of grain which has been used for thousands of years to make injera, the fermented pancake that Ethiopians eat with their meals, are null and void. The Ethiopian government has welcomed the verdict. The patents had led to outrage in Ethiopia, where teff is widely considered to be a part of the national cultural heritage. They were also in the way of Ethiopian exports to the European market, where this so-called ‘ancient grain’ or ‘superfood’, just like quinoa for example, enjoys a growing popularity. But the conflict about the Dutch patents has now ended with the verdict of the District Court in The Hague, where an infringement case had been filed in 2014 by the holder of the teff patents, the company Ancientgrain, against a rival, bakery giant Bakels. The court ruled that both patents are invalid due to lack of inventive step. The method to bake bread from the flour ‘is a very common baking method that belongs to the general professional knowledge’ and the mixing of different grains ‘can be considered to be part of general professional knowledge’ and therefore not be considered inventive.”

Notice that a legal battle was needed here. A government needed to spend a lot of money in court to show that the EPO was out of touch. How many people are able to do this? Also, is this good use of the limited budget of Ethiopia?

This, basically, is the outcome of gross violation of the EPC. This is what the EPO does to its reputation worldwide, including in Africa.

The European Patent Convention is being so routinely violated by the EPO these days, so any book on the matter (“Visser’s Annotated European Patent Convention” has just been advertised by Kluwer Patent Blog’s Andrea Sommer) may already be obsolete. The EPO is a rogue institution led by corrupt people. They just don’t care what the law says. Funny how Kluwer Patent Blog is selling books for Kluwer, eh? Many of their recent blog posts are nothing but links that advertise buying services from Kluwer (with paywalls). This blog is a mess. The ad from Sommer speaks of references to “CEIPI courses” (Battistelli) and it would have us believe that we need some book to understand the EPC, which the EPO no longer obeys anyway. “In summary,” Sommer writes, “also in 2019, the “Visser’s Annotated European Patent Convention” is a must!”

Well, it’s “a must” for Kluwer (the employer) because at a rate of £86.00 for just one copy, it would be paying Kluwer quite a lot of money.

Kluwer Patent Blog isn’t always ads and lobbying (e.g. for the UPC). Thorsten Bausch, for a fact, is the exception. He has a sobering bunch of views on the UPC and the EPO and he has just published this blog post regarding an important ethical aspect of European Patents (EPs). As we recently explained, some wrong EPs can end up killing women with breast cancer (monopoly pricing) and these EPs are sometimes granted in violation of the EPC (judges lacking independence means it will slip through them anyway; can they oppose patent maximalism when they’re controlled by bankers and politicians like António Campinos and his master?).

It doesn’t seem to matter that the Technical Board of Appeal lacks independence. It admits this. Now it throws aside oppositions to likely invalid patents that are enshrined as EPs to benefit only very rich people. Or, as Bausch put it yesterday:

Two members of the formulation patent family stand out: EP 1 250 138 and its divisional EP 2 266 573. Both patents refer to a specific formulation of the antiestrogen drug fulvestrant and its use in the treatment of breast cancer via intramuscular injection. The ‘138 patent was granted based on claims directed to the formulation as such. A subsequently filed opposition was rejected and the patent maintained as granted. On appeal, however, a third party introduced a new reference (“McLeskey”) that was said to disclose a formulation falling under the claims of EP’138 and thus appeared to be highly relevant in regard to these claims. However, this formulation was only used in the quite different context of an exploratory mechanistic study looking at a different (estrogen-independent) type of breast cancer, against which this formulation showed no efficacy even at extremely high doses, when given to transfected mice via weekly subcutaneous injections. McLeskey also contained no data about the physical properties of the formulation, its pharmacokinetics and, in particular, its safety, its efficacy against estrogen-dependent breast cancer and the duration of its effect.

Following the introduction of “McLeskey”, the Board of Appeal remitted the case back to the first instance where AstraZeneca amended the claims of EP‘138 into “formulation for use” claims, arguing that the use of McLeskey’s formulation for the treatment of breast cancer was neither disclosed in McLeskey nor obvious therefrom. The Opposition Division agreed and maintained EP‘138 in the thus-amended form. As the sole opposition had been withdrawn before the OD’s decision and no appeal was filed, this decision became final.

[...]

But the story continues. AstraZeneca appealed the first instance EPO decision relating to EP’573, and oral proceedings took place before the Technical Board of Appeal 3.3.01 on 23.1. and 24.1.2019. These proceedings ended with a significant success for AstraZeneca: The Board of Appeal ruled that the decision by the opposition division is set aside and that the oppositions are rejected. That is, the EP‘573 patent was maintained as granted.

Whose interests are served by today’s EPO? Remember that these boards’ lack of independence is, in its own right, a violation of the EPC. The granting authority seems to be in charge of everything, even justice itself. It’s like putting the “executive” in charge of “legislature”.

IPPro Magazine has just remarked on the EPO working for the litigation 'industry' in another continent — a disturbing development we covered some days ago. To quote:

The European Patent Office has signed a bilateral cooperation agreement with the Licensing Executives Society International (LESI).

The agreement was signed by EPO president António Campinos and LESI president François Painchaud during LESI’s Winter Planning Meeting in Miami, Florida.

The agreement is aimed at helping innovators make better use of the European patent system and will remain in effect for a period of five years.

Campinos said the agreement “will help innovators see the business opportunities that IP can create”.

He added: “The main goal of our agreement is to enable current and future innovators to make better use of the patent system by overcoming barriers such as lack of knowledge about IP and commercialisation options.”

So one French president (François Painchaud) meets another (Campinos), appointed by another (Battistelli). But whose interests are served? Licensing Executives Society International (LESI). Great. Remember when the EPO actually did a better job pretending it existed to advance science and technology rather than law firms?

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