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03.27.19

The European Patent Scope is a Lost Cause, Does Not Exist Anymore

Posted in Deception, Europe, Patents at 8:01 pm by Dr. Roy Schestowitz

What does exist is not being obeyed/honoured, so patent certainty evaporates

EPO white flag

Summary: The European system is mimicking China’s; it seems like the sole goal is just to grant as many patents as possible irrespective of the broader consequences (externalities)

IT TAKES neither a scientific genius nor a patents guru to see that Europe’s patent regime is defunct. The European Patent Office (EPO) is part of the problem — a problem it wishes to exacerbate with UPC. Justice isn’t the goal. Scientific advancement isn’t the goal either. An academic paper was published about it earlier this week (“Unconstitutional Supranational Arrangements for Patent Law: Leaving Out the Elected Legislators and the People’s Participatory Rights”).

Earlier today we saw Team UPC’s (Bristows LLP) Claire Phipps-Jones ‘covering’ “The Supreme Court decision in Actavis v ICOS”.

“And how much leverage does an SME get from a few patents compared to large corporations, which have dedicated legal departments and together account for the lion’s share of European Patents (the EPO keeps pushing the “results” spiel, even today, framing it like a corporate competition that measures quantity)?”The scare quotes are there because it’s not really covering. That’s not journalism. It was reposted/published again elsewhere (probably for a fee), pushing their financial agenda, as usual. Later on a colleague from Bristows published something similar in Kluwer Patent Blog, soon to be followed by this propaganda by “Kluwer Patent blogger” (likely Bristows). It’s promoting the EPO mantra. More monopolies on things just mean more restrictions on things one can do, let alone invent. But that’s not how patent maximalists choose to see it or publicly advertise it. Here is something the EPO wrote some hours ago (pretending it speaks “for SMEs”): “Strong patents aligned with a company’s products help secure exclusivity in core markets.”

Well, exclusivity or monopoly? And how much leverage does an SME get from a few patents compared to large corporations, which have dedicated legal departments and together account for the lion’s share of European Patents (the EPO keeps pushing the “results” spiel, even today, framing it like a corporate competition that measures quantity)?

What is the actual meaning of all this patent maximalism? What is the end goal/eventuality? Remember the Teff scandal? Headlines from 2020 may herald EPO-granted European Patents on embryos, European Patents on saliva, European Patents on stools…

“Headlines from 2020 may herald EPO-granted European Patents on embryos, European Patents on saliva, European Patents on stools…”As the EPO already grants patents on chewing gums, a hair salon, anything labeled “AI” (undefined) and so on, why not every single thing in nature? I mean, don’t more patents imply greater inventiveness? Won’t the act of putting all these Commons in “private hands” help stop the “piracy” of “orphaned” works? Some of these patents represent actual theft or ‘piracy’. They take away what’s public (or natural) and lock it away. The public domain gets ‘looted’. There are many other suitable metaphors and these sorts of arguments aren’t entirely new.

Ealier today Taylor Wessing’s Paul England wrote about the granting of patents on life and nature and IPPro Magazine, recalling the likes of those Carlsberg patents, wrote again about “No Patents on Seeds” (second time in about a week). To quote:

The European Patent Office (EPO) has been criticised for being “wholly structured” towards serving the interests of industry and patent attorneys.
On the same day as a protest against patents covering conventional plant breeding at the EPO, Joanna Eckhardt of No Patents on Seeds claimed that the EPO was ignoring the interests of the broader public.

Along with a three-metre inflatable melon, groups including No Patents on Seeds, Arbeitsgemeinschaft bäuerliche Landwirtschaft (AbL), Gen-ethisches Netzwerk, and WeMove Europe participated in the public demonstrations.

According to No Patents on Seeds, the protest is against the EPO has allegedly granting patents for melons, tomatoes, and even daisy flowers that are all produced without using methods of genetic engineering and was scheduled to coincide with a meeting of the EPO’s Administrative Council.

Such patent types are prohibited by rule 28(2) for the interpretation of the European Patent Convention (EPC).

A new comment has meanwhile shown up at IP Kat to say: “An amazing patent has been granted by the German Patent and Trademark Office on a hollowed out loaf of bread filled with cheese. Claim 18 serves as an example (English translation of the German original): “Ready-to-serve cheese dish (1) having a substantially terrine-shaped bread loaf lower part (3) which has an underside and which has a slicing surface (7) on the top opposite the underside and a cavity (6) which is filled with cheese (10) and is introduced from the slicing surface (7) to form a bread dough vessel (7).””

“A lot of people publicly voice their concerns; they recognise that the patent system has gone all wrong.”That’s Germany, where the EPO too is based. Another adjacent comment (almost the same time, but posted in a different thread) says: “It’s only an equivalent if it is obvious to the skilled person… this works backwards too. If the variant predates the patent the patent must be obvious over the variant. So any infringement by equivalence of a product predating the patent is impossible? Is that right?”

A lot of people publicly voice their concerns; they recognise that the patent system has gone all wrong. How about yesterday’s GlobeNewswire (press release) item about the EPO granting patents on nature again? To quote:

BrainStorm Cell Therapeutics Inc. (NASDAQ: BCLI), a leading developer of adult stem cell therapeutics for neurodegenerative diseases, today announced that the European Patent Office (“EPO”) has granted a European-wide patent titled ‘Mesenchymal Stem Cells for the treatment of CNS Diseases.’ The European Patent Application will be published in the European Patent Bulletin 19/13 on 27 March 2019, under Patent No. 2620493.

Yes, stem cells. What next? Sperm? Embryos? Sexual prose and sex positions? Where does it stop? Does patent scope even mean anything anymore? Days ago we mentioned patents on tastes and smells (“aroma”), never mind shapes.

It’s worth noting that cordial European patent examiners habitually tell us about those things. They’re not happy. Their job no longer feels rewarding or a source of personal/professional pride.

“It’s worth noting that cordial European patent examiners habitually tell us about those things. They’re not happy. Their job no longer feels rewarding or a source of personal/professional pride.”Barney Dixon has just explained that SUEPO can clearly see that new EPO President Campinos is all words, but no actions. Another Battistelli, sans the crudeness. As we’ve been pointing out for more than half a year, Campinos promotes software patents in Europe even more than Battistelli did. His attitude and failure to act? “SUEPO put this down to possible interference from the former president Benoît Battistelli’s administration officials,” says Dixon at IPPro Magazine. This article was mentioned the following day by SUEPO along with Kurioser Streit ums Europäische Patentamt entbrannt (“IPCom for a procedure for operating a mobile network,” Benjamin Henrion quoted and remarked on this, calling it “a well known patent troll”). Yes, earlier this week we mentioned that the EPO's new policies are well geared towards attracting patent trolls.

Here is the part where Dixon quotes part of SUEPO’s letter: (if any of our readers has the full letter, please pass a copy for us to publish)

Three such cases have already been declared unlawful by the International Labour Organization’s Administrative Tribunal.

However, the letter explained that “no clear action has been taken in this direction”.

It read: “It should not be forgotten that Mr Battistelli’s concerted actions against these staff representatives not only ruined their lives but also severely tarnished [the] EPO’s reputation in the public.”

“After nine months of a new presidency, it is not unreasonable to expect that now, more serious and effective actions will be taken to indicate a change in the administration’s attitude towards the staff representatives, including by rightfully restoring the rights of all our colleagues unfairly sanctioned.”

The letter concluded: “We hope that Mr Campinos will now act swiftly to once and for all close the darkest chapter in the EPO’s history.”

He won’t. Never. What has he actually done so far to “defy” Battistelli? Nothing. After nine months. He’s all lipstick on a pig.

We’ve meanwhile noticed that James Nurton (Battistelli’s ‘buddy’) is writing about the UPC again. This time in Watchtroll, not Managing IP (which helped Battistelli promote the UPC). He still maintains the misleading jingoism he’s paid for and here are relevant parts/the relevant paragraphs:

The UK is remaining part of the European Patent Organization, so there will be no change to registered or pending European patents (which are often referred to as a bundle of national rights). The EPO covers 38 countries, including all 28 (current) EU member states. UK patent attorneys will continue to act before the EPO and disputes involving European patents will continue to come before the UK courts.
The UK Government has said it still intends to take part in the proposed Unified Patent Court (including hosting one of the three branches of the central division) and unitary patent. The UK ratified the UPC Agreement on April 26, 2018. However, it is not clear whether this will be possible. In any case, the UPC and unitary patent are currently on hold pending a challenge before Germany’s constitutional court. Whatever the outcome of that, most patent practitioners expect that the proposed system will need to be re-negotiated for the UK to take part. Don’t expect any news soon.
There are some aspects of patent law that are affected by Brexit, the main one being Supplementary Protection Certificates (SPCs) for patented pharmaceutical and plant protection products. In the short term, the UK plans to maintain the current SPC framework including in the event of no deal (see the guidance here).

Lots of falsehoods above — ones that we debunked several dozens of times before. It’s titled “Brexit Q&A: What Now and What Next?” but it’s not an honest set of answers. There’s also this new article titled “Bracing for Brexit – pharmaceuticals and medical devices regulation if there is “no deal”” (which seems unlikely to many, but one cannot be sure these days; they keep delaying until the end of (Theresa) May).

“The UK Government has acknowledged that the Brexit process is in “crisis”” says law firm Taylor Wessing in an article that mostly promotes the firm and its interests.

“It’s just enriching a bunch of law firms and EPO administrators, such as Battistelli who stole money from it (while exploiting immunity to get away with such crimes).”As noted at the top (the article about “No Patents on Seeds”), the EPO is “criticised for being “wholly structured” towards serving the interests of industry and patent attorneys. On the same day as a protest against patents covering conventional plant breeding at the EPO, Joanna Eckhardt of No Patents on Seeds claimed that the EPO was ignoring the interests of the broader public.”

Of course it does; just like Team UPC. This is why, as we said at the very start, today’s European patent system has become really defunct. It does nothing to serve its original purposes. Nothing. It’s just enriching a bunch of law firms and EPO administrators, such as Battistelli who stole money from it (while exploiting immunity to get away with such crimes).

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