07.03.19

The European Patent Office is Disconnected From the Rule of Law and European Media Could Not Care Less

Posted in Europe, Law, Patents at 6:15 am by Dr. Roy Schestowitz

Europe’s corporate media refuses to touch important subjects

Europe's corporate media news cycle

Summary: Public interests aren’t served but harmed by today’s European Patent Office, but somehow we’re supposed to think that EPO scandals are ‘old news’ (even when courts repeatedly highlight these problems)

THE lawlessness at the European Patent Office (EPO) prevails. It doesn’t matter who’s in charge, nobody really oversees the leadership. Nobody. Definitely not the European press, which deliberately ignores all the scandals (especially Campinos scandals, more so than Battistelli scandals).

It’s as if everything is now rosy and absolutely perfect. Nobody is complaining. Nobody in the media speaks to actual EPO staff and Battistelli’s corruption is treated as an already-addressed fiasco (‘addressed’ by virtue of his term coming to an end and the throne being passed to a friend).

“Nobody in the media speaks to actual EPO staff and Battistelli’s corruption is treated as an already-addressed fiasco (‘addressed’ by virtue of his term coming to an end and the throne being passed to a friend).”“Roufousse T. Fairfly” commented on this new article regarding EUIPO and CJEU (very high court). “For patent law, Art. 53a EPC as revised in 2000 specifically disconnects European patents from national law or practice,” s/he said (we assume it’s a pseudonym, hence gender uncertain), but as even EPO insiders are certainly aware, the EPO violates the EPC very routinely so nothing governs what it does, certainly not the ‘bought’ Council (which ‘represents’ members states’ interest in money, not justice). The full comment:

When I read dusty old GRUR bound in volumes I would occasionally come across reports on trade mark decisions. The outcome at German national courts generally seemed to hinge on whether the alleged profanity is in a foreign language (e.g., English), in which case it could be registered, as the average person wouldn’t necessarily understand it, IIRC.

Regarding the reference to “national bodies” in the opinion: There are two DE trade marks in the DPMA database, but these appear to be spurious applications made by squatters, and they have been withdrawn. I don’t believe that it’s possible to see whether any morality objection was raised, as, IIRC, third parties must demonstrate a “legitimate interest” (“berechtigtes Interesse”) to gain access to trade mark files, and these are usually destroyed some time after the extinction of rights.

For patent law, Art. 53a EPC as revised in 2000 specifically disconnects European patents from national law or practice:

European patents shall not be granted in respect of: inventions the commercial exploitation of which would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

Morals and patents are two different things anyway…

The way things stand, many “immoral” patents are being granted; maybe “unethical” would be a better term. We recently named some of these patents and law scholars from Europe have just published this paper entitled A European View on the Patent Eligibility of Biomedical Diagnostic Methods” (published less than a week ago). Their view of the US position as summarised in their abstract:

The Supreme Court’s decisions in Mayo, Myriad and Alice, as well as the CAFC’s in Roslin focused widespread attention on the formulation of patent-eligibility exclusions for specific biological material and diagnostic methods.

The debate recently intensified with the CAFC’s Sequenom decision and denial of a rehearing en banc. The claims at issue in U.S. Patent No. 6,258,540 (“US ’540 patent”) are directed to methods of genetic testing by detecting and amplifying paternally inherited fetal cell-free DNA (cffDNA) from maternal blood and plasma. Before the development of this non-invasive prenatal diagnostic test, patients were placed at higher risk and maternal plasma was routinely discarded as waste.

A reluctant CAFC formulaically interpreted the Supreme Court-devised bifurcated test to identify patent ineligible subject matter and invalidated the patent for this ground-breaking method. Notably, Judge Linn wrote that this innovation deserves patent protection, but that the “sweeping language of the test” established in Mayo requires a determination that the claims are patent ineligible. On March 21, 2016 Sequenom Inc. filed for certiorari and the issue may once again find itself at the Supreme Court. As framed by Sequenom, the question presented is:

Whether a novel method is patent-eligible where: (1) a researcher is the first to discover a natural phenomenon; (2) that unique knowledge motivates him to apply a new combination of known techniques to that discovery; and (3) he thereby achieves a previously impossible result without preempting other uses of the discovery?

Interestingly, in Europe the EPO upheld essentially the same claims. European equivalents of the patents considered in Myriad, Mayo, Alice and Roslin were also treated differently than in the US. Hence, these cases undermine the global integration of patent standards and provide fodder for discussing patentability requirements at an international level.

Referring to these developments, our paper discusses these issues from a comparative European perspective. Section 1 provides a very brief summary of the European patent framework and case law regarding medical diagnostic methods. Leaving aside national peculiarities that would exceed the limitations of this study we focus on the EPO’s patent eligibility approach vis-à-vis medical diagnostic methods similar to those in Sequenom v. Ariosa. Section 2 discusses our findings and the differences between the US and European approaches from a broader innovation and patent policy perspective providing the basis for concluding remarks in section 3.

Mayo and Myriad relate to patenting of life and nature, as per these SCOTUS decisions that gave rise to 35 U.S.C. § 101 as we know it (and USPTO chooses not to know it, unlike courts such as the Federal Circuit, referred to above as “CAFC”). It is rather worrying that the world moves in a direction such as this; should patents be granted on things that always existed or predate humans?

Ellie Purnell (HGF Ltd) has just published this piece aboutA Further Referral To The Enlarged Board Of Appeal On Plants Produced By Essentially Biological Processes” (by Campinos).

Patent extremists were upset that Campinos was entertaining this because in their minds every granted patent must never be questioned or doubted. But the way we see it, Campinos made a mistake by entertaining this because there was no need for it. No reason for this. Highest of all authorities in Europe, not to mention the EPC (yes, law notwithstanding, even if the EPO no longer obeys laws!), already told EPO management to stop granting these illegal patents (but of course the EPO won’t listen!). In Purnell’s words:

In decision T1063/18, a EPO Technical Board of Appeal created controversy in ruling that the jurisprudence of the Enlarged Board of Appeal took precedence over Rule 28(2) of the EPC. The Board held that decisions G2/12 and G2/13 should be followed in preference to the rule, thus allowing claims to plants produced by essentially biological processes.

T1063/18 created uncertainty as to how the EPO would deal with this conflict; were examiners to follow the rules or the Board’s precedent? Many expected that the EPO would have to take action to clarify the legal situation, and many hoped that there would be a referral to the Enlarged Board of Appeal. This has now happened.

To give a little more background, we first reported back in December 2018 on T1063/18 that the Board considered that controversial R.28(2) EPC is in conflict with A.53(b) EPC, as interpreted in both the Enlarged Board decisions G2/12 and G2/13 (“broccoli II” and “tomatoes II”), and was therefore improper. As a result of this, the Board held that R.28(2) EPC should be ignored, and that plants produced by essentially biological processes are indeed patentable. Our full article can be found here.

As we noted in our previous post, the Enlarged Board of Appeal and other appeal board still lack independence. This is chaotic because there’s not even a sense or appearance of powers being separated. So we can imagine what the outcome will be (or what severe consequences will follow if judges ‘defy’ the king, Mr. Campinos). Isobel Finnie (Haseltine Lake Kempner LLP) has meanwhile commented on patents of questionable legitimacy or patents which — in her words — “involv[e] additional or improved treatments using already known drugs.” (This is sometimes known as evergreening, perpetuating monopolies to deny emergence of generics — generic drugs or generic treatments)

Deciding when to file a patent application can be a difficult decision. If you file a patent application too early there may not be enough information in the application as filed to convincingly show that the invention will work as proposed. However, waiting too long can mean that more prior art is citable against the patent application and it can be harder to show novelty and inventiveness. This balancing act is particularly difficult for second medical use type patents.

Second medical use claims are used before the European Patent Office (EPO) for inventions involving additional or improved treatments using already known drugs. For example, using a known drug to treat a different disease or changing the dosage regimen of a known drug to provide a better effect or to treat a different patient group. In the context of second medical use claims the EPO has made it clear that the therapeutic effect must be made plausible (in the sense of being very credible to a skilled reader) from the information in the patent document. This can play a part in assessing whether the new treatment claimed as the invention is sufficiently disclosed, and for assessing whether the problem of providing the treatment as claimed has been solved. The patent specification needs to contain enough information, and this usually means data from experiments from some stage during the drug development process, to make the therapeutic effect plausible.

“Second Medical Use Patents” (as she put it) aren’t good for patients, only for patents. And they typically mean more deaths. It’s all about profits, or about pure greed. There’s both a moral and ethical dilemma at hand here.

Sandeep Basra, her (Finnie’s) colleague, has meanwhile taken note of European Patents which European courts are rejecting. Whose patent is the latest? An American company that became notorious for price-fixing cartels and price gouging. To quote:

The German Federal Patent Court found the German part of the Eli Lilly patent, EP 1 313 508 B in the first instance to be void. An appeal against this decision has now been filed at the German Federal Court of Justice.

It’s more of the same. European Patents quite so often turn out to be ‘fake’ these days (when courts actually assess these, not bullied examiners and scared judges on EPO premises… or in exile at Haar… one foot away from unemployment).

The EPO is in a very bad shape not for financial reasons (a lie basically); the problem is brain drain, which relates to reputation harm, declining prestige of European Patents, and sloppy examination euphemised as “Collaborative Quality Improvements” (CQI).

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