07.27.19

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IP Kat Used to Blast the EPO for Profound Lack of Justice. Now It’s Just Meowing With the EPO’s Management.

Posted in Courtroom, Europe, Law, Patents at 6:54 am by Dr. Roy Schestowitz

From watchdog to pussycat

Curious Cat

Summary: The European Patent Convention (EPC) has been turned into a Kleenex® tissue and all that the ‘Kats’ (what’s left of them) have to say amounts to a puff piece with some Battistelli photo op

THE largest patent office of Europe has been ruined by Benoît Battistelli. António Campinos is ‘finishing the job’…

Suffice to say, Campinos was wedged or shoehorned by Battistelli into this position. It’s all ‘fixed’. Nepotism and cover-up. The concept of independence or oversight exists only in theory but never in practice.

“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 two‑month 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.

This is hogwash and a stunning reminder of what a joke justice at the EPO became. Just before the weekend Rose Hughes (IP Kat) mentioned the above — an outcome we first mentioned several days ago. No other blog appears to have mentioned it (we checked) and the EPC’s demise apparently interests nobody who is in the ‘trade’ of litigation. The EPO’s management just doubles down on its unconstitutional behaviour and gross violation of the law; it refuses to even deal with the question, just as we expected/foresaw. Here is what Hughes wrote just before the weekend:

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.

Of course today’s ‘Kats’ won’t bother pointing out how monumental a disaster the EPO became. “We await publication of the Enlarged Board of Appeal opinion in full,” Hughes concluded. As do others, but we know who’s responsible for this farce and why. It was predictable given how the panel had been constructed. Watch this comment that says: “The full decision is available here:
https://www.epo.org/law-practice/case-law-appeals/eba/number.html” (warning: epo.org link)

Why did nobody among the ‘Kat’, who had written many articles about the exile to Haar, bother scrutinising this decision? IP Kat ‘staff’ (Jonathan Pratt) wrote this weekly roundup. Hughes is basically pushing Team UPC agenda like SPCs, FRAND and SEP. In Pratt’s words:

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).

The interests that nowadays drive these ‘Kats’ are disturbing. It used to be like a watchdog (or cat), but now it’s like a litigators’ lobby, very much like IAM (almost the same at times, with literal litigators as bloggers).

Hughes soon (less than two hours later) proceeded to CIPA ‘ads’ for “Rules of Procedure of the Board of Appeal” (which lack independence). It was entitled “Event Report: CIPA seminar on the revised Rules of Procedure of the Board of Appeal” (an ‘event’ mentioned here before it took place because of the sheer bias).

CIPA is a pack of patent maximalists, Battistelli allies (almost a 'collusion'), and Team UPC nuts who intentionally promote falsehoods and lie about businesses in Britain in order to extract money from these businesses (in the form of legal fees). Kluwer Patent Blog and other prominent blogs about patents have not yet said a thing about the Haar decision; why not? Are they embarrassed? Do they believe it’s not worthy of a report? Why has the EPO itself kept quiet about it?

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