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11.17.19

Unitary Patent is Dead Partly Because the EPO Demonstrated That EPC is Being Routinely Violated, Illegal Patents Granted

Posted in Deception, Europe, Patents at 12:40 am by Dr. Roy Schestowitz

The ‘brexit’ factor is just one among several key barriers, including grotesque EPC violations

One Does Not Simply give control over the courts... To people who demonstrated utter disregard for the Rule of Law

Summary: Some elements of Team UPC have given up, whereas others try to push the lie that Unitary Patent/Unified Patent Court (UPC) is not an EU thing and that therefore everything is fine

THE words “unified” and “unitary” are rarely uttered by António Campinos, current President of the European Patent Office (EPO), because the EPO understands that the UPC is most likely dead. Battistelli spent 8 years promoting this monster along with Barnier and others. Yes, even in the age of Alice/35 U.S.C. § 101 (circa 2014) these patent maximalists were still ruthlessly pushing this unconstitutional piece of legislation. Rumours say that Battistelli is still interested in becoming the UPC’s chief — a position which has been reserved for France. In a separate article we’ll deal with Macron and Breton (another article will deal with software patents in Europe). Exploring EPO corruption will inevitably lead to seeing closely-connected or remotely related misconduct in the EC/EU, WIPO/ILO/UN and sometimes even courts. This is so disappointing. Many of us thought that we in Europe did so much better than China, but Rule of Law is a mirage (to use a French word).

We were very disappointed to see the EC/EU playing along with Team UPC this month, emboldening the likes of EPLAW, eager to perpetuate lies about EU membership, Brexit and UPC. We’ve lost count of the number of such blog posts from Team UPC — an informal term we used to collectively refer to the people who crafted and now lobby for the UPC (for personal, corporate gain). Some Team UPC ‘tool’ from Bristows wrote to me to say that he had retired and that therefore I should not mention him anymore. Sorry, Alan Johnson, but I think you just don’t know/understand how these retirement and free speech things work…

“Many of us thought that we in Europe did so much better than China, but Rule of Law is a mirage (to use a French word).”2 days ago a British site published this article entitled “The implication of a ‘no deal’ Brexit on your company’s IP protection and policies” and it said that “it is highly likely that Brexit will impact on the implementation of the proposed (EU) unitary patent and the Unified Patent Court in London.”

It does not exist, so there’s a supposition there which is highly misleading, part of the two famous lies from Team UPC. The editor of JUVE has also tweeted: “This summer, rumours abound that the #UKIPO London office was relocating to Aldgate Tower – the proposed headquarters of the UPC’s UK division. The UKIPO is indeed relocating, but to Victoria Street near Westminster. Is the UK still in with a chance of #UPC participation?”

“You cannot participate in something that does not exist,” I responded to him, “so this question is intentionally loaded and unprofessional IMHO…”

“Team UPC has become almost synonymous with lies and mischief. These people lack morals.”UPC hopefuls have had a tough year (or two). A year ago Johnson and his colleagues at Bristows (well, former colleagues as he has just thrown in the towel) spread false rumours about FCC preparing to decide to case by Christmas. Media reposted these lies of theirs. Where are we 12 months later? Team UPC has become almost synonymous with lies and mischief. These people lack morals.

The demise of the UPC is good news to those of us who oppose software patents, i.e. virtually all software professionals. It might also help undermine the lobby for patents on life. Pressure is put by corrupt EPO management to allow patents on life and nature (seeds, plants, animals etc.) in violation of the law. AWA (litigation firm) has just written about this (it was also promoted in sites like Lexology, quite likely for a fee) to say: “Oral proceedings in the opposition against UC Berkeley’s (UC’s) main European patent EP2800811 are scheduled for all of three (!) days in February of 2020 at the European Patent Office (EPO). The opposition division’s (OD’s) preliminary and non-binding opinion, provided on the 30th of August 2019 in preparation for the hearing, is favorable to the patentee. In its opinion, the OD sides with UC Berkeley and dismisses the main arguments of the seven opponents. Arguments relating to minor issues of added subject matter have been accepted by the OD, however UC is likely to be able to overcome these. Thus, there is a chance that UC Berkeley will keep their strong hold on rights to general platform Crispr technology in Europe.

“Notice the lack of mention of the illegal composition/status (in violation of the EPC) of the tribunals which decide on this.”“UC Berkeley’s patent claims priority from four provisional US applications. The question of whether the priority from the first provisional application P1 is valid or not lies at heart of the case.

“According to European practice, G2/98, the requirements of claiming priority of “the same invention” in the meaning of Art 87(1) EPC mean that priority can only be acknowledged if the skilled person can derive the subject matter directly and unambiquously, using common general knowledge (CGK), from the previous application as a whole. In addition, the priority document must provide an enabling disclosure, in other words, all essential elements needed to carry out the invention must be disclosed in the priority document.”

Notice the lack of mention of the illegal composition/status (in violation of the EPC) of the tribunals which decide on this. There’s a profound corruption of justice at the EPO; this is in fact why UPC has been derailed (one among several factors).

“Thankfully it has been made a lot harder to patent nature in the US. As for Europe? Time will tell, but as long as the EPO does not allow independence for judges, the law itself will be violated, along with constitutions.”Recalling the case of Myriad Genetics (related to Mayo at SCOTUS), Kevin E. Noonan, another booster of patents on life, has just said: “As understood at the time patents on these genes were granted, certain mutations occurring in human populations were correlated with a higher risk of breast and ovarian cancer. Recently, a group of researchers found this gene seems to be involved with risk of non-Hodgkins lymphoma in children and adolescents. [...] One reality illustrated by this paper is that the claims that Myriad’s BRCA2 gene test would inhibit research and development of medical science were flatly false. This blog has discussed how the “gene” claims themselves would not be infringed by interrogating genomic DNA (see “The ACLU, Working for the Man”), and the detection method claims in the Myriad patents were limited to detecting BRCA2 gene mutations predictive of ovarian and breast cancer.”

The case generated a lot of press coverage at the time (more journalism also existed at the time; nowadays many articles are composed directly by lawyers). Thankfully it has been made a lot harder to patent nature in the US. As for Europe? Time will tell, but as long as the EPO does not allow independence for judges, the law itself will be violated, along with constitutions.

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