04.29.19

Haar is Where EPO Justice Came to Meet Euthanasia

Posted in Europe, Patents at 1:15 pm by Dr. Roy Schestowitz

The patents being granted due to that injustice also cause deaths

Killing angel

Summary: Justice remains absent in Munich (or Haar, which we’re supposed to believe is part of Munich); this means that invalid European Patents (which courts will deem invalid) may be granted for years to come and there’s a considerable human toll that large law firms are indifferent/apathetic towards

Earlier today IP Kat allowed (after moderation) this new comment. Occasional commenter The Convention (EPC) watchdog wrote about the European Patent Office (EPO) breaking the law or the EPC, noting that “nobody in and around Munich would agree that Haar is part of Munich, including the inhabitants of Haar.”

The comment in full:

As annonymous correctly states, comparisons are imperfect. This also applies to the City of London comparison. The City of London together with the 32 Boroughs is part of Greater London which is a common administrative unit and presumably it is the one competent for the essential local matters. There is no common unit for Munich and the Landkreis, the next higher level of administration is the district of Upper Bavaria, one of 7 districts building the Land Bavaria. More important may be the common understanding of the terms. No Londoner and no foreigner would think Westminster could be outside London. However, nobody in and around Munich would agree that Haar is part of Munich, including the inhabitants of Haar.

Further up in this thread they argue that the EPO’s corrupt President wasn’t allowed to send all the judges to Haar (after one of them had allegedly passed information about corruption — as a moral person should). This President’s ‘son’, António Campinos, has done absolutely nothing to fix this. Nothing. Hardly even lip service…

Why is this so major a problem? Well, the judges in question are being asked to deal with interpretation of the EPC (which was violated when they were sent to ‘exile’) as it relates to patents on algorithms (mathematics), nature and life. As long as they’re governed by wrath/fear of the Office, how can they do their job properly? There are empty rooms at the EPO’s main building in Munich while millions of euros get wasted each year renting space in Haar for these judges. This isn’t about independence but threats and collective punishment.

Patent maximalists, deep inside perhaps, couldn’t be happier. The last thing they want is a bunch of judges telling the EPO to its face, so to speak, that the EPC is being violated and many European Patents are bunk (as SUEPO claims).

Looking at the so-called ‘news’ over the weekend (all of this ‘news’ is composed by law firms, not journalists), we’re seeing Andrew Bentham of J A Kemp, a firm that aggressively promotes patents on nature. Bentham is moaning that the European Commission does something right, for a change, by banning patents on life and nature. This is what he wrote earlier this month (it has just resurfaced again): “Recent weeks have seen important developments in the debate on patent-eligibility of plants in Europe, with the EPO’s Boards of Appeal and its President, Administrative Council and member states pulling in opposite directions. The President has now referred questions, published today, to the Enlarged Board of Appeal, but the admissibility of the referral is uncertain, so it is unclear how or when the Enlarged Board will react. Applicants in this field will therefore face further delay and uncertainty. More generally, this is also a highly unusual, polarised situation that highlights the potential for conflict between different branches of the European patent system. Fortunately, however, this issue only directly affects some plant-related applications, not all that generally relate to plants in some way.”

Bentham also published today: “As reported recently, the President of the EPO has in the last few days referred questions to the Enlarged Board of Appeal on the controversial issue of patent-eligibility of plants obtained by essentially biological processes. The referral is now pending as case G3/19 but it is uncertain at present whether or not this referral will be admissible in the absence of any clear conflict in the case law on this point. The Enlarged Board could do anything from rejecting the referral entirely to accepting it and reversing its “Broccoli and Tomatoes II” (G2/13 and G2/12) decisions from 2015, in which it held that, although essentially biological processes for the production of plants are patent-ineligible according to Article 53(b) EPC, the products of such processes are not ineligible just because the processes could not be patented. As a reaction, Rule 28(2) EPC was introduced in 2017 and has since then been used to reject claims “in respect of plants or animals exclusively obtained by means of an essentially biological process”. In December 2018, EPO Technical Board of Appeal decision T1063/18 then held Rule 28(2) invalid as in conflict with Article 53(b) in light of Broccoli/Tomatoes II. This was then reinforced in case T2734/18. The President’s referral is held out as an attempt to clarify the law but in fact seeks to reverse this and demonstrate that Rule 28(2) is valid, such that plants obtained by breeding are not patent-eligible.”

Also mind Watchtroll’s Accelerating Generic Entry: A Proven Solution to the Problem of Prescription Drug Pricing (yesterday) and Amy Crouch’s (Simmons & Simmons, Team UPC) coverage of generics coming under attack from patents. We remind readers that almost each time this is done the net effect is very simple: poor ill people become casualties of corporate greed. Here’s the situation in Germany, as opposed to Britain (the UK Supreme Court recently threw out another European Patent):

Klaus Grabinski (Federal Court of Justice, Karlsruhe) started the discussion by outlining infringement of second medical use patents in German case law. An important difference from the approach taken by the UK Supreme Court in Warner Lambert v Generics is that in Germany second medical use claims (whether Swiss form or EPC 2000 form) are always purpose-bound product claims, rather than method claims.

Recent case law of the Düsseldorf Court of Appeal has extended the protection to forms of use beyond “manifest arrangements” when the use can be related to the protected purpose of the substance. This requires (i) that the substance is suitable for the protected second medical use, (ii) the use is of some significance and (iii) the implementer knows about it or “blinds himself” and in this way takes advantage of circumstances that allows the substance to be used for the protected purpose. In the recent Fulvestrant case it was found that there was no expectation of a future infringing use and therefore no injunctive relief was granted.

Unrestricted injunctive relief is not available when such an order would not only cover the second medical use but also use not protected by the patent. So how can the injunction be tailored to the second medical use alone? It is a controversial legal issue whether inclusion of a statement that the product must not be used for the second medical use in the patient information leaflet is compatible with EU law on the authorisation of medical products. Alternative injunctive relief that has been requested is only allowing marketing of a product after alleged the infringer has contacted professional associations of doctors or pharmacists, although at the moment there is no legal basis for requiring associations to comply and it entirely depends on their willingness to cooperate.

Amy Crouch (Simmons & Simmons), writing from this echo chamber of patent maximalists, in her next part talked about patents covering recipes of nature, as well as attempts to work around these ‘magic’ monopolies. It’s noteworthy that each and every one of these so-called ‘panels’ are stacked (patent maximalists only). To quote:

Moderator John Lee asked if life is simply much harder for a biosimilar? Brian thought that it is, yes, because so many of the relevant patents are process patents which makes the situation more complicated. After the dance is over, sometimes 30 different patents are listed – and that is in a normal situation rather than the even more extreme Humira patent thicket. The BPCIA is complicated, allowing patentees to assert so many patents and ultimately may be slowing down the uptake of biosimilars in the US as compared to Europe. A statutory fix may help but it is unclear what such a fix should be.

Biosimilar patents were covered here before; these aren’t necessarily patents on lifeforms but they are problematic as they cover things that can save lives (of lifeforms) and thus become a barrier to life itself.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part IV: Stories From the Depths of the Free Software Foundation (FSF)

    To reduce or alleviate suspicions and a potential of mistrust the FSF needs to become more transparent and liberate information (such as the real reason Bradley Kuhn left, as noted in the previous part)



  2. Links 18/1/2021: GNU Radio 3.9, Wikipedia at 20

    Links for the day



  3. InteLeaks – Part XIX: Intel's Web 'Experts' Seen as Microsoft Champions Dealing With the Platform Microsoft is Looking to Destroy

    Things aren't rosy at Intel because the hires aren't suitable for the job of documenting and/or presenting GNU/Linux-centric products (whose target audience is Free software developers)



  4. Adding Images as Characters to the Daily Bulletins of Techrights

    Our daily bulletins now have inside them coarse graphics, depicted using characters alone, and the tool used to generate them announced a new release earlier today; we showcase some of its features (in a new video)



  5. Links 18/1/2021: Weekly Summaries and Linux 5.11 RC4

    Links for the day



  6. IRC Proceedings: Sunday, January 17, 2021

    IRC logs for Sunday, January 17, 2021



  7. The Oligarchs' Parties Will Never Choose the Side of Software Freedom Because Free Software Cannot Bribe Officials

    The tough reality is that next week's (or this coming week's, depending on what Sunday counts as) inauguration ceremony is partly symbolic as all the same and important issues remain largely untouched, for corporations control almost everything of significance



  8. COVID-19 Has Actually Helped Software Freedom Due to Financial and 'Spare Time' Factors

    Developers and users are increasingly exploring what the Free software world has to offer; this is actually measurable and it contradicts claims to the contrary



  9. Future Plans and Using Videos to Complement Text

    Remarks on recent and impending site changes; We are not replacing text with video, we're just trying to enhance the presentation a bit, especially where visuals help make a point or where browsing through Web sites (or leaks) is more suitable than static, linear presentation



  10. InteLeaks – Part XVIII: Intel Does Not Know How to Properly Do Research and It Seems Apparent Unscientific Methods Are Used to Justify Poor Documentation

    There appears to be a severe crisis at Intel; they cannot recruit scientists (or those whom they recruited are walking away) and as a result the company produces bad products with poor documentation (or highly defective chipsets that top-notch marketing cannot compensate for); in this video we walk through some examples of how studies are being conducted (as already noted in Part XVII)



  11. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part III: The Free Software Foundation (FSF) Seems More Like a Victim of Destabilisation Campaigns

    The Free Software Foundation (FSF), which turns 36 later this year, is looking to raise money that helps support the GNU Project, soon 38 years old and likely the most important Free software project to exist (ever)



  12. Links 17/1/2021: EasyOS on Raspberry Pi and GNU libsigsegv 2.13

    Links for the day



  13. InteLeaks – Part XVII: The High Cost of Microsoft Windows Users in GNU/Linux Development Teams

    A look inside Intel explains what holds back the technical team, which bemoans the lesser technical people getting in the way and not even using the product that they are writing about



  14. IRC Proceedings: Saturday, January 16, 2021

    IRC logs for Saturday, January 16, 2021



  15. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part II: Why Bradley Kuhn Left the Free Software Foundation (FSF)

    The founder of the FSF is still at the FSF (albeit not publicly) and the person who lobbied to oust him has basically been 'banished' by the founder



  16. Links 16/1/2021: LibreOffice 7.1 Release Candidate, Zeroshell 3.9.5, FreeBSD Report, and GhostBSD 21.01.15

    Links for the day



  17. Free Speech on the Web Not Respected by Companies That Used to Support Software Freedom

    Mozilla does not have to make its Web browser about politics; it can just make an excellent piece of software that is neutral about the Web pages that it renders, based on the user's personal preferences



  18. Suppressed Facts of the Free Software Movement and Its Community of Volunteers – Part I: We Are Under Attack by Corporations and Their Salaried Facilitators

    The corporate takeover (taking over the Commons, produced by volunteers who are motivated by altruism) is a subject we must speak about and somehow tackle; this series will highlight uncomfortable or difficult truths



  19. InteLeaks – Part XVI: Intel Cannot Do Command Line, Even When It's Vastly Simpler and More Suitable for Development

    The Developer eXperience (DX) team at Intel seems to be full of Microsoft drones instead of developers and/or mildly technical people; this has not only harmed the quality of documentation but also upset staff, alienating people who actually understand what developers need (more than buzzwords like "DX")



  20. IRC Proceedings: Friday, January 15, 2021

    IRC logs for Friday, January 15, 2021



  21. Links 15/1/2021: KaOS 2021.01, Whisker Menu 2.5.2, Istio 1.8.2

    Links for the day



  22. InteLeaks – Part XV: Intel is Blind to Blind and Colour-Blind People

    Intel does not seem to grasp very basic concepts associated with accessibility; nevertheless, Intel shamelessly tries painting itself as "woke" and a "justice warrior" (policing speech while overlooking much-needed practical work)



  23. Links 15/1/2021: GStreamer 1.18.3 and Proton 5.13-5

    Links for the day



  24. IRC Proceedings: Thursday, January 14, 2021

    IRC logs for Thursday, January 14, 2021



  25. Links 14/1/2021: Wine 6.0, Debian 11 Freeze, and Alpine Linux 3.13

    Links for the day



  26. Patent Propaganda and UPC Jingoism Instead of Actual News

    Today's so-called 'news' about the EPO (Europe's second-largest institution) and the failed UPC is nothing short of shameless propaganda



  27. Links 14/1/2021: Season of KDE 2021 Selection, Mesa 21.0.0-RC1, Tor Browser 10.0.8

    Links for the day



  28. InteLeaks – Part XIV: Technical Incompetence and Incoherence Leading to Alienation and Brain Drain

    The idea that Intel "loves Linux" or "supports Linux" is somewhat of a sham; one needs only to consider what Intel insiders are saying about that, having witnessed it firsthand



  29. IRC Proceedings: Wednesday, January 13, 2021

    IRC logs for Wednesday, January 13, 2021



  30. Links 13/1/2021: $150 RISC-V Computer With GNU/Linux, Intel Replaces CEO Again, and New Fedora 34 Plans

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts