10.19.19

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The EPO Cannot Guard Fake European Patents From Scrutiny (in the Long Run)

Posted in Europe, Patents at 11:26 pm by Dr. Roy Schestowitz

Put It Somewhere Else Patrick: You take all these fake patents. Then make sure independent counts don't touch them.

Summary: Legal certainty associated with newly-granted European Patents is already pretty low and as long as the EPO refuses to acknowledge that its courts (or boards) lack autonomy the EPO merely brushes a growing problem under the rug

ANY TIME European Patent Office (EPO) presidents promote software patents and demote/punish judges who can put an end to these illegal patents they merely reinforce the idea or the “perception” — a word they habitually use — of institutional lawlessness. President António Campinos is happy to crush perfectly legitimate challenges to President Battistelli‘s illegal attacks on judges, which likely render years of rulings legally invalid (remember what ILO-AT said about hundreds of cases involving disciplinary actions against EPO staff as well).

Jane Evenson and Ella Wells (CMS Cameron McKenna Nabarro Olswang LLP) have put in Lexology their new article about the “Revised Rules of Procedure of the European Patent Office Boards of Appeal, which are due to come into effect from 1 January 2020.”

It’s quite long, there’s nothing new or exciting in there (we wrote about that countless/dozens of times before, stressing that nothing was done to restore independence), and it says:

The Rules of Procedure of the Boards of Appeal are the rules that govern the way appeals are conducted at the European Patent Office (EPO). The EPO has recently approved changes to these rules, which are due to come into effect from 1 January 2020. The new rules (known as “RPBA 2020″) can be found here. The EPO has said that the aims of the revisions are to increase (i) efficiency, by reducing the number of issues to be treated, (ii) predictability for the parties, and (iii) harmonisation.

[...]

In addition to the changes listed below, a list of appeal hearings expected to be heard by each Board will now be published at the beginning of every working year, allowing parties to more effectively budget and plan for hearings.

How many hearings? With a backlog of 10,000+ cases (appeals) justice itself is clearly not a priority at the EPO, only mass-granting operations. And speaking of such operations, Bart van Wezenbeek has just highlighted this case of Bayer, highlighting the limits of oppositions as well (under pressure to hurriedly decide):

Bayer was not granted an injunction in preliminary proceedings because the Court found that there was a serious chance that Bayer’s patent would be held invalid. The fact that the patent had survived opposition before the EPO was of no influence since new, closer prior art had subsequently been found.

So an actual court found a patent that even EPO oppositions had upheld to be likely invalid. Regardless of it, embargoes were attempted by Monsanto’s owner with its notorious past. This is the kind of problem caused by EPO injustice — a problem that isn’t at all being addressed by EPO management. The avalanche will come one day.

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