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02.22.19

The European Patent Office Goes Down a Very Slippery Slope by Promoting and Defending Patents on Life/Nature in Defiance of Parliament and the EPC

Posted in Europe, Patents at 7:15 am by Dr. Roy Schestowitz

Dangerous path that will cost many people their life

In the door

Summary: The reluctance to obey the law at the EPO is very much noteworthy; things have gotten so bad that nature and life itself become ‘corporate property’ or monopoly

EARLIER THIS month and last month we wrote many articles about the European Patent Office (EPO) granting patents on life — something that António Campinos has no qualms about (the same goes for software patents in Europe, as we've just explained). Quality and adherence to the rule of law do not count. Back in December the Office sort of overturned (snubbed) directions from the Council and the Parliament. So where are we now?

“Quality and adherence to the rule of law do not count.”Is the EPO finally recognising that if it keeps granting ridiculous patents on seeds, plants and animals (even people!), then people are going to be up in arms and call for this whole system’s abolishment?

Nope, not quite. Not yet anyway. Here is what the EPO wrote two days ago: (warning: epo.org link)

In the meeting of the Committee on Patent Law, the Office and the representatives of the 38 EPO Contracting States, together with the European Commission as observer, had a first exchange of views on possible next steps following the recent decision T 1063/18 of an EPO Board of Appeal on plant patentability. The Committee addressed different potential options for the way forward and particularly supported measures to obtain an opinion from the Enlarged Board of Appeal on the matter. The need for legal certainty in the interest of the users of the European patent system and the general public was strongly underlined in the debate. Discussions will continue with the intention to find a solution in the short term.

This came at around the same time Rose Hughes wrote about the subject. Are life and nature becoming monopolies of few corporations? Here’s what Hughes said:

The IPKat recently reported on the EPO board of appeal decision on the patentability of plant products produced by essentially biological processes, a decision mired in political controversy. The Board ruled that Rule 28(2) EPC, excluding plant products produced by essentially biological processes from patentability was void in view of the Enlarged Board of Appeal (EBA) decision in Broccoli/Tomatoes II (G2/12 and G2/13) (IPKat post here). Rule 28(2) EPC was introduced by the EPO Administrative Council (AC) following a Notice from the EU commission that plant products produced by essentially biological processes are not patentable under the Biotech Directive (Directive 98/44/EC) (IPKat post here).

The written decision of the technical board of appeal (TBA) has now been issued – here. Minutes of the oral proceedings – here.

The technical board of appeal (TBA)’s position is unequivocal: the AC does not have the power to amend the EPC using the Rules. The Enlarged Board of Appeal (EBA)’s interpretation of the Articles is binding on Board of Appeals (BA), unless the BA has reason to refer the issue again to the EBA. Here is a brief summary of some interesting points covered in the decision.

[...]

The TBA also considered the third party submissions to proceedings regarding the negative effects of plant patents on the interests of plant breeders. However, the TBA noted that such considerations are for the legislative body and “cannot play a role in the legal assessment of the issues raised in the present case”.

The Board set aside the appealed decision and remitted the case back to the Examining Division.

The TBA decision makes it clear that the Board did not feel it necessary to refer the question back to the EBA at this stage. It seems we can expect future boards to follow the TBAs approach in this case. How will the EPO now respond? The IPKat will keep you updated with developments.

It didn’t take long for Jim Robertson to comment on what it would take to stop the EPO violating the EPC by granting loads of patents on nature and life. To quote: “The BoA on this case was 3.3.04, and they are also hearing the appeal on EP2825024, so no prizes for guessing how that one will be decided. Yes, the AC are competent under Art. 33(1)(b) EPC to amend “Parts II to VIII and Part X of this Convention, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents;”, and Art 53 EPC is in Part II of the Convention. However, as the article notes, “The Board roundly dismissed the Notice from the EU Commission on the interpretation of the Biotech directive as providing any reason for referring the question to the EBA, given that it lacked any legal authority.” So there’s no basis under Art. 33(1)(b) EPC to amend the EPC itself. Also, Art 35(3) EPC states that amendment of the EPC under Art 33(1)(b) requires unanimity of the Contracting States, requires all of them to be represented, and Art 35(4) says (effectively) no abstentions. So as things currently stand, the AC has no way to re-introduce this. The only way that the AC will be able to try this again would seem to be if the CJEU makes a decision on the interpretation of the Biotech Directive in line with Rule 28(2) EPC.”

“Back in December the Office sort of overturned (snubbed) directions from the Council and the Parliament.”Someone called Peter then said: “Thanks for the clear explanation, also the connection with Art 35(3). The AC can amend Art. 53(b), with unanimity in the AC, and with the 12 month period for any Contracting State to protest (Art. 35(3) last sentence); furthermore provided that the amendment is to bring the EPC into line with EU legislation on patents (or an international treaty). However, without a need for ratification by the Contracting States, so no parliamentary procedures. However the EPO news item of today suggests that the plan is “measures to obtain an opinion from the Enlarged Board of Appeal on the matter”.”

“Is the EPO listening?”Public protests on this matter go a long way back (at least a decade). The author, Rose Hughes, later said in the comments: “News update from the EPO” (taking note of the followup, in a sense).

Is the EPO listening? Will it return to that overnight trashing of all patents on “plants obtained by essentially biological processes” (to use its own words)? It should. One day it should do the same to all software patents.

Meanwhile, however, retweeted by EPO was this nonsense yesterday: “@EPOorg International Cooperation Administrator Nicholas Koernig notes that the integration of quality #patent data provides greater access for industry and examiners, improving legal certainty for EU and Southeast Asian enterprises…”

“Days ago it was confirmed that the EPO too (even management!) understands that it abandoned patent quality (and wasted a quarter billion euros in the process, excepting the cost to the European public).”It also retweeted this: “@EPOorg IT Coordinator for International Cooperation Nikolaos Chardalias demonstrates new features on Espacenet, the premier online public #patent database used by industry, commercial providers, researchers and #IP offices worldwide…”

When they speak of “quality” they allude to the quality of data (Espacenet), not patents. When EPO management speaks of “quality” it also typically means quality of service (as measured in terms of speed), not patent quality. This is a problem. Days ago it was confirmed that the EPO too (even management!) understands that it abandoned patent quality (and wasted a quarter billion euros in the process, excepting the cost to the European public).

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