THE largest patent office of Europe has been ruined by Benoît Battistelli. António Campinos is 'finishing the job'...
"Today's EPO offers only a pretense of justice."When I was a lot younger I used to hear about the quality of examination at the European Patent Office (EPO) and how strong a background examiners came from (professors and scholars). That was before the lobby for software patents in Europe and back in the days when professors and judges such as Alain Pompidou and Ingo Kober 'ran the show'. They weren't perfect, but at least they had respect for science and the rule of law. Right about now there's a similar problem at the U.S. Patent and Trademark Office (USPTO), whose Director Andrei Iancu openly mocks the law, notably 35 U.S.C. ۤ 101. In our latest daily links we've included some new articles to that effect; thankfully the trends at the Federal Circuit carry on (invalidation of abstract patents) and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) continue unabated.
Today's EPO offers only a pretense of justice. It puts together a panel of judges for 'trials' which have become show trials and 'legal theatre'. We wrote about it earlier this month in relation to the Haar case or the "Haar question" (our coverage of this case was based on an informed source).
About a week ago the EPO quietly published (warning: epo.org
link) this page. The EPO did not say anything about it in "news" or in its Twitter account; instead it made lots of noise about "green" or "social" or "ethics" (three separate puff pieces coinciding with this case). To quote:
The Enlarged Board of Appeal today issued opinion G 1/18 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal, and on the consequences of this. The opinion is in response to a referral by the President of the European Patent Office (EPO). The Enlarged Board of Appeal is the highest judicial authority under the European Patent Convention (EPC).
The point of law referred by the President of the EPO was whether an appeal is to be treated as not filed or as inadmissible in cases of a failure to observe the twoââ¬âmonth time limit under Article 108 EPC owing to belated payment of the appeal fee and/or belated filing of notice of appeal. The appeal fee is not reimbursed if an appeal is inadmissible (Rule 103(1) EPC).
Under Article 112(1)(b) EPC, the President of the EPO may refer a point of law to the Enlarged Board of Appeal where two boards of appeal have given different decisions on it. With respect to the point of law in issue here, some boards had held that the appeal was inadmissible and that there were therefore no grounds for reimbursing the appeal fee. However, the prevailing view in the Boards' case law was rather that the appeal was deemed not to have been filed, and that - since no appeal existed - the appeal fee had been paid without a legal basis and therefore had to be refunded. The Enlarged Board was therefore called on to clarify this point of law and its consequences for the reimbursement of the appeal fee.
The referral related to the question of whether, where a notice of appeal is filed after expiry of the time limit for filing an appeal (Article 108 EPC), an appeal to the Boards of Appeal a) is inadmissible or b) should be deemed not to have been filed. The question was referred by outgoing EPO President Benoît Battistelli, just before the end of his term. For a full background to the case see IPKat post here.
epo.org
link)
Rose also commented on the question relating to SPCs for a second indication of a product that has been referred to the CJEU (C-354/19).
On the theme of SPCs, Rose further summarised the SPC manufacturing and stockpiling waiver (amending Regulation (EC) No 469/2009) that came into force on 1 July 2019. Controversially, the legislation provides a waiver not only for the manufacture of generics and biosimilars for export, but also provides a waiver for stockpiling for day-1 release following expiry of an SPC.
Finally, Rose updated us on the latest step in the FRAND/SEP saga with the UK High Court decision on the validity of Conversant's patent for 3G mobile phone technology. Mr Justice Arnold found that Conversant's patent is essential and infringed by Huawei and ZTE, but invalid for added matter: Conversant v Huawei [2019] EWHC 1687 (Pat).