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04.04.19

EPO Management is Knowingly and Consciously Granting Invalid European Patents, Including Patents on Life and Nature

Posted in Europe, Patents at 7:23 am by Dr. Roy Schestowitz

Anything to fake so-called ‘production’

3 pears

Summary: A “patents on everything, just apply today at the EPO!” attitude has tarnished the reputation of the EPO; it’s abundantly clear that the EPC is being routinely violated because all that matters to the EPO is money from applications and renewals (milking cows)

IT IS everything but amusing to see the attitude of Iancu at the U.S. Patent and Trademark Office (USPTO) and António Campinos at the European Patent Office (EPO). They disregard the law, they mock judges. They grant software patents which they know would not be upheld in courts. As a patent maximalist put it yesterday in relation to the USPTO: “the agency was refusing to issue patents that it saw as crossing-the-eligibility-line. However, the new statements by Dir. Iancu go the other-way, with the USPTO creating a policy of issuing patents that the courts would find invalid (if given the opportunity). The statement from the court here is important although buried in a non-precedential opinion. One reason for its importance is its clear tension with the Federal Circuit’s recent decision in Natural Alternatives that called for Skidmore deference to be given to the PTO statement on eligibility.”

The subject is important enough that, even though we refuse to cover pertinent US patent cases, we wrote about it yesterday. The same thing is going to happen in Europe. To a certain degree, it is already happening. We wrote about it last week and the week before that after the UK Supreme Court had dealt with such a matter (after they had thrown out yet another European Patent). At Lexology, Gowling WLG’s Gordon Harris and Paul Inman wrote about the UK Supreme Court in relation to the EPO as recently as yesterday (“The UK Supreme Court review of the law of obviousness”), so people aren’t forgetting just yet. There’s a growing sense of tension between courts/judges and the EPO — similar to what we see in the Federal Circuit and SCOTUS (US).

“There’s a growing sense of tension between courts/judges and the EPO — similar to what we see in the Federal Circuit and SCOTUS (US).”We keep exploring various new decisions and grants, only to find a rather consistent pattern. Those who are inside the EPO are inclined to do what Campinos wants (maybe fearing for their livelihood), whereas outside the EPO we keep seeing European Patents invalided aplenty. Is the Opposition Division free to rule as it sees fit? Without fear from management, which is a pack of patent maximalists? Is the Opposition Division any more independent than the Boards of Appeal? No, neither is independent. So here’s one newly-announced outcome which pertains to mass litigation in Düsseldorf:

Visual technology market leader RealD Inc. announced today that the European Patent Office’s (EPO) Opposition Division has upheld the validity of another one of the Company’s key patents for light-doubling 3D cinema projection systems. As a result, RealD’s European patent that covers triple-beam 3D cinema projection systems (EP2846180) remains in full force.

RealD announced on December 18, 2017 the filing of a complaint with the District Court in Düsseldorf, Germany, alleging that Volfoni SAS, Volfoni GmbH and CinemaNext Deutschland Gmbh have infringed three of RealD’s European patents by the importation, sale, or offer for sale of the Volfoni SmartCrystal Diamond cinema systems in Germany. In the complaint, RealD requested an injunction banning the sale of the infringing devices and sought financial damages.

By the sound of it, the patents might still not be valid, but it remains to be decided by someone outside the EPO, which is managed by patent maximalists. Watch what they wrote yesterday about “medtech” (their new buzzword and hashtag for algorithms that are used in a medical context). They also used the hashtag “biotech” and the term "life sciences" (bogus nonsense, used more often than not to describe life and nature as patent-worthy man-made 'inventions'). To quote yesterday’s tweet: “Do you work in life sciences? Eight of the EPO’s top ten applicants for #biotech #patents came from Europe.”

Like what, patents on genetics? Vegetables? Seeds? Pigs?

The EPO is granting patents on life. Patents on nature, too. When do we get to see patents on religions and superstition too? Is “God” patented yet? All the “Gods”?

Global Banking And Finance Review has this new press release about genetics being patented in spite of the CRISPR controversy (Opposition Division). In their own words:

ERS Genomics Limited announced today that the European Patent Office (EPO) has issued a new patent to Dr. Emmanuelle Charpentier, The Regents of the University of California and University of Vienna. EPO Patent No. 3,401,400 claims methods and compositions of using CRISPR/Cas9 to modify DNA and regulate gene activity in eukaryotic cells, including kits to carry out such work. ERS Genomics provides broad access to these and other foundational CRISPR/Cas9 patents co-owned by Dr. Emmanuelle Charpentier.

Great! European Patents on genetics! Yet again.

EPO management keeps pretending that it’ll tackle the legality of it with respect to the EPC, but watch what Jim Robertson has just said:

The only legally “clean” way for this to be resolved is for the Biotech Directive 98/44/EC to be amended – at that point the AC could use Art 33(1)(b) EPC to amend Art 53(b) EPC to bring it into line with the amended Biotech Directive. That does, however, requires unanimity of all EPC contracting states.

This is a political issue, and the big question is: why it is happening this way? If *all* EPC contracting states (therefore also implying all EU member states) wanted the EPC to be amended then it would be relatively simple and easy to make the necessary changes to the Biotech Directive and the EPC.

Do the events at the EPO imply some kind of political problem? A lack of unanimity? As ever, it would be fascinating to find out exactly what is actually going on behind the scenes…

“Do the events at the EPO imply some kind of political problem? A lack of unanimity? As ever, it would be fascinating to find out exactly what is actually going on behind the scenes…”
      –Jim Robertson
Robertson was responding to Mike Snodin, who on Tuesday quoted from CIPA’s position paper (we had made a local copy [PDF] and remarked on it earlier this week). His quote from CIPA’s publication : “Our position is that there are presently are no valid grounds upon which the EBA could accept a referral the President under Article 112(1)(b) EPC with respect to the interpretation of Article 53(b) EPC. The EBA has already provided a binding interpretation of Article 53(b) EPC, meaning that there are no “different” (i.e. conflicting) decisions of Boards of Appeal that might form the basis of a referral under Article 112(1)(b) EPC”; and

“in our view, there are no valid grounds for disputing the Board of Appeal’s conclusion that the above-mentioned EC Notice (i.e. the Notice upon which Rule 28(2) EPC was based) has no legal authority under the EPC”.

The EPO is clearly and unreluctantly still granting patents in defiance of the EPC. SUEPO estimated, as per its two-days-old publication, that 30,000 such invalid European Patents were granted last year alone. It is extremely expensive (legal fees) to clean up such a mess. It’s almost impractical.

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