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07.16.19

EPO Looney Tunes – Part 1: Is D-Day Approaching for Battistelli’s “Difficult Legacy”?

Posted in Courtroom, Europe, Patents at 3:05 am by Dr. Roy Schestowitz

A four-part mini series about EBA referral G 2/19

EPO toons

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this. The exclusion of computer programs is a political question. [...] The core task of a computer is to process data. So at least the processing of data is not patentable.”

Ante Wessels, FFII

Summary: European patent justice isn’t working within the premises of EPOnia; a bunch of ‘show trials’ may in fact turn out to be just that — a show

THIS series about the European Patent Office (EPO) comes from someone who prefers to remain anonymous. It is a series by a guest author. This author has a lot of credibility based on a track record of high accuracy.

“EPO Looney Tunes,” the author explains, is “a four-part mini-series exploring Battistelli‘s “difficult legacy” and the Enlarged Board of Appeal referral case G 2/19 which is scheduled for a hearing in the main EPO Isar Building today (Tuesday, 16 July 2019).”

The Enlarged Board of Appeal (EBA) is very important (a decade ago it dealt with questions like software patentability in Europe and I sent it a letter about it). There are similar things in the United States (dealing with 35 U.S.C. § 101 at the Office) and elsewhere in Europe, e.g. in EUIPO (previous home of António Campinos). Yesterday the following comment was left in IP Kat: “I note that I am not permitted to post obscene or defamatory comments, or to post ad hominem (or, I presume, ad feminam) attacks on members of the blog team or other posters. Moreover, the IPKat team will moderate my comments before they are published. This seems perfectly reasonable to me. What I do not understand is that the USPTO should be less privileged in this respect than the IPKat. David T. Keeling (former EUIPO Board of Appeal member, rapporteur in the SCREW YOU case, not rapporteur in the FUCKING HELL case)…”

Assuming that’s really him, it’s funny that he takes note of IP Kat censorship — a subject we explored/revisited at least twice earlier this month. Notice how IP Kat quit covering the attacks on EBA a couple of years ago (after some people had left the blog and the EPO temporarily blocked the whole blog). EBA has since then complained, publicly even, about its lack of independence. Will any of that change any time soon (under Campinos)? Will the EPO change at all? Yesterday the EPO tweeted: “The EPO’s success is based on the expertise of its highly skilled staff.”

“The EPO already drove away all the best staff,” I responded. “So now it can grant loads of fake patents and underpay the staff.”

We also recently noted here that examiners are bound by the decisions (e.g. interpretations of the EPC) of the Boards of Appeal, including EBA. So it’s highly crucial that independence gets restored. Without it, quality of patents will continue to suffer if not fall even further. With that in mind, here comes part 1.


Back in March of this year, JUVE reported on a case which had been referred to the Enlarged Board of Appeal, the highest judicial instance at the EPO, in a move which was said to put Battistelli’s “difficult legacy” to the test.

The “difficult legacy” referred to here was the banishment of the Boards of Appeal to a new premises in Haar, an independent municipality on the outskirts of Munich.

The question as to whether oral proceedings could lawfully be held in Haar was raised by Aachen patent attorney Hans-Dieter Jostarndt, following objections raised by third parties during the granting procedure of EP 2 378 735.

The disputed patent relates to a technology for operating a mobile phone network and it belongs to IPCom, a well-known – some might say “notorious” – patent-holding company or “non-practicing entity”, which is a common euphemism for a patent troll.

One of the leading patent trolls in Germany, IPCom was established by the flamboyant Munich patent attorney, Bernhard Frohwitter, and it lays claim to a portfolio of over 1,200 patents, many of which were acquired from Bosch. It has been active in the business of trying to “shake-down” big telecom companies since 2008 or thereabouts.

In the course of the proceedings in the case of EP 2378 735, Jostarndt requested that an oral hearing scheduled for 25 January should be moved to the seat of the EPO in Munich because “Haar is obviously not intended in the EPC as a place for acts and negotiations.”

The Technical Board of Appeal dealing with the case decided to refer the matter to the Enlarged Board of Appeal.

Oral proceedings are scheduled to be held in the main EPO Isar building on Tuesday, 16 July 2019.

The hearing will be public so anybody who is interested can attend.

One of the questions on the agenda is whether an EPO Appeals Board can lawfully hold oral proceedings in Haar “if the appellant objects to this site as not being in conformity with the EPC and requests that the oral proceedings be held in Munich instead?”

Despite the excitement which the case has generated inside the EPO, observers are cautioning that it may all turn out to be a bit of an anti-climax because the question about Haar’s conformity with the EPC is preceded by two other questions which concern the admissibility of the legal action itself.

Should the Enlarged Board decide that the appeal is inadmissible, then it will not need to consider the “Haar question”.

In that case, the issue of Haar’s conformity with the EPC would remain unresolved and would be likely to fester on in the background until it resurfaces in a future proceedings.

While we are waiting for the Enlarged Board to make up its mind on referral G 2/19, it seems like a good time to take a peek behind the scenes and have a closer look at the background and some of the personalities involved in the case.

The next installment will follow shortly…

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