EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

01.16.20

The European Patent Organisation Continues to ‘Piss All Over’ Separation of Powers

Posted in Europe, Law, Patents at 10:15 am by Dr. Roy Schestowitz

Nobody speaks for judges’ loss of independence anymore (the European Patent Office controls them instead of the other way around)

AYE PEE everywhere AYE PEE? Does it mean invalid patents (IP)?

Summary: The EPO continues to scatter invalid patents (IPs) that are European Patents (EPs) all over Europe and nobody can stop this, not even the judges of the EPO because they lack independence (by their very own admission)

THE U.S. Patent and Trademark Office (USPTO) deals with both patents and trademarks, so sometimes it wants a “collective” term for both. “AYE PEE” (“IP”) is a misnomer though; “IPR” is even worse because it adds one more lie, falsely implying that patents aren’t just “property” but also “rights” (they’re neither).

António Campinos — like Battistelli — has no excuse for (mis)using legal terms. He runs a patent office, not a “patents and trademarks” office (though he was in EUIPO before) and so far this week we saw the EPO ‘tweeting’ terms like “IP” several times per day. More than the usual…

Remember that any time they push software patents in Europe in defiance of the EPC (or 35 U.S.C. § 101 in the US) they basically try to tell us that code doesn’t need copyrights but patents. That’s baloney. Ask actual developers and coders…

“The law firms want us to view nature and life as “sciences” which are therefore “inventions” that merit patents. Sounds ridiculous? Of course! Because it is.”The EPO’s misleading terminology is contagious and it originally comes from litigation firms/lawyers. In the copyright domain they’ve dubbed infringers “pirates” — same word as used to describe people who raid boats, murdering ship crews (or turning them into hostages if they’re ‘lucky’).

Conflating patents with “AYE PEE” (“IP”) — and that’s how patents are described in this new and typical press release about the EPO [1, 2, 3] — is no laughing matter. It has significant harms.

How about the term “life science”? We wrote several articles about that back in 2018. The law firms want us to view nature and life as “sciences” which are therefore “inventions” that merit patents. Sounds ridiculous? Of course! Because it is.

Nowadays, as the EPO violates all the laws, it can’t seem to see how ridiculous it is. Life Sciences [sic] Intellectual Property [sic] Review has just published:

The European Patent Office (EPO) will refer several questions in the Broad Institute’s ongoing CRISPR patent case to the enlarged board of appeal, meaning the case is set to drag out further.

The appeals board hearing the case made the announcement at the start of proceedings in Munich this morning, January 15.

Under the European Patent Convention (EPC), the enlarged board of appeal is a higher panel which reviews questions of “fundamental importance” that have been referred to it by a lower appeals board or the EPO president.

Speaking in Munich this morning, the appeals board hearing the Broad’s case also clarified that making the referral would mean the current proceedings would be adjourned.

The Broad Institute gave “emphatic objections” to the decision to refer the issues in question, LSIPR understands.

AstraZeneca at IP Kat (guess who’s side is taken on CRISPR) has insinuated judges are cowards even though we see Campinos already meddling in their cases, partly in the open (pushing them to allow software patents). To quote AstraZeneca Kat:

A week before Christmas, the Court of Justice of the EU handed down its judgment in IT Development SAS v. Free Mobile SAS (case C-666/18). The question, referred to the CJEU by the Paris Court of Appeal was, in short, whether the Enforcement Directive (2004/47) and the Software Directive (2009/24) are applicable to those cases in which the infringement of IP rights (the unauthorized alteration of a computer program) also constitutes a breach of contract (typically a licence agreement) between the parties.

In the case, the plaintiff, IT Development, granted a licence to the respondent, Free Mobile, for use of a software package. The plaintiff alleged that the respondent had modified the software in breach of the licence agreement and, accordingly, it sued for “contrefaçon” (a non-contractual type of IP infringement action under French law). The Tribunal de Grande Instance dismissed the suit, arguing that there was no case of liability in tort, given that the respondent “was clearly alleged to have failed to perform its contractual obligations, providing a basis for an action for contractual liability, and not for the tortious act of infringement of software copyright”.

On appeal by the plaintiff, the Paris Court of Appeal asked the CJEU–
whether Directives 2004/48 [Enforcement Directive] and 2009/24 [Software Directive] must be interpreted as meaning that the breach of a clause in a licence agreement for a computer program relating to the intellectual property rights of the owner of the copyright of that program falls within the concept of ‘infringement of intellectual property rights’, within the meaning of Directive 2004/48, and that, therefore, that owner must be able to benefit from the guarantees provided for by that directive, regardless of the liability regime applicable under national law.

As usual, the comments at today’s IP Kat are vastly better than posts. The second comment said: “The world is not so simple as expressed above. Let’s say the priority application contained a rechargeable battery and a charger developed for that battery. These two aspects were developed by two companies and they file a joint application. It turns out that only the charger is novel so the company which developed the charger files an application on it own for the charger claiming priority. Should it be denied the right to priority simply because the EPO has interpreted “any” in a manner contrary to its normal meaning?”

“MaxDrei” took issue with the term “chickening out”:

I sympathise with the Board and think it true but a bit harsh, to characterize a reference as “chickening out”. If ever there was a case deserving of analysis by the EBA, this is it.

I disagree that the crux of the dilemma is special treatment for Americans. I see it, rather, as the burden which the EPO Boards of Appeal carry, to craft a body of law which the rest of the world is unable to disparage, which the RoW can accept as a template for development of its own national jurisprudence.

For example, the existing “Gold Standard” at the EPO is, to my mind, more or less unassailable. But, on matters of ownership of rights, the EPO has less experience, less case law. Further, the way the EPC sets it up, the EPO is not tasked to be the final arbiter of ownership of rights. The EPC envisages this to be a job for the courts.

Then there is the important universal issue of “proportionality”. As Robin Jacob has said: who wants to be a patent attorney, when one moment of inattention to one formality or another can blow away for ever all possibility of any patent rights whatsoever. My view is that one should refrain from punishing excessively something in the nature of a simple oversight. Rather, one should strive to find a remedy that is proportionate and which balances the interests of the parties in dispute.

Sometimes it takes an extreme set of circumstances to expose a defect in the intellectual foundation of the established case law. And once such a shift in perceptions has occurred, one can never again be satisfied with the established case law. So when a TBA is faced with such an extreme example, and inclined to find fault with the established case law, it should put aside any considerations of discourtesy towards esteemed colleagues. Rather, it should work out why the established law is wrong, and then write a Decision so well-reasoned that all those esteemed colleagues reading it with a mind willing to understand will grudgingly accept the force of the argumentation.

Only the next comment mentioned the independence issues:

I concur with MaxDrei, in particular, because

1) the priority issues at stake ARE a point of law of fundamental importance,
2) Art. 112(1)(a) EPC (in contrast to Art. 112(1)(b) EPC) does not require diverging case law,
3) Art. 112(1)(a) EPC does not explicitly require that the questions is decisive for the acutal case (see German version: “hierzu” instead of “hierfür”, i.e., the referral is to be required for a uniform application of the law or for answering a point of law of fundamental importance (and not for the actual proceedings),
4) the external members of the EBoA have to be involved for anwering points of law of fundamental importance, because
a) they are truly independent (e.g., their main income does not come from the EPO),
b) they are less biased from an established (sometimes very questionable) practice of the EPO and/or case law of the BoA.

Like we said earlier this week, we wish “MaxDrei” and others still remembered the outcry of the judges. They aren’t happy being stuck there in Haar with the Office meddling in their affairs. Why is nobody mentioning that anymore?

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. IRC Proceedings: Wednesday, October 21, 2020

    IRC logs for Wednesday, October 21, 2020



  2. Living Humbly (With Older Technology or None) is More Compatible With Privacy- and Freedom-Respecting Technological Lifestyle

    Simplicity sometimes trumps so-called 'novelty', especially when it comes to human rights and users' freedom



  3. Reasons Why You (and Everybody Else) Should Join the Fight for Software Freedom

    Society is being closely watched and controlled (more so during/after the latest pandemic) and people must carefully consider the true importance of resisting proprietary technology (controlled remotely by state actors)



  4. Ways and Means to Reduce One's Dependency on Google's Various Monopolies and Near-Monopolies

    Getting rid of Google means a lot more than embracing DumbDumbGo (DDG) or some other sites that spy just like Google; we're taking stock of some options



  5. The European Commission is Still M.I.A. Regarding EPO Corruption (and the EPO's Management Plays Dirty, as Always)

    There's no change in the EU; the EUIPO and EPO enjoy complete and total immunity/impunity, with the Commission being manned by those who are deeply complicit



  6. 10 Reasons Why All This 'Edge for Linux' Coverage is a Total Farce

    The fake hype surrounding "Edge" is an inauthentic hype/buzz campaign made to coincide with anti-Google sentiments spread by Microsoft front/pressure groups



  7. Microsoft's IIS Has Collapsed Again This Past Month (and IIS Will Not and Cannot Survive This Way)

    Netcraft shows that Microsoft's decline further accelerates in the Web servers space; IIS is becoming financially unviable



  8. Links 21/10/2020: Alpine 3.12.1, Tor Browser 10.0.2

    Links for the day



  9. [Meme] US Department of Justice Should Have Taken on Microsoft Again, Not Google

    When lobbying, connections and political sway determine the actions of the American government it's hardly surprising that Bill Gates gets the Trump administration to fight for him (to make him even richer)



  10. [Meme] Banning Words, Gaslighting Volunteers

    What happens when institutions are themselves in violation of a CoC (institutional violation) and massive corporations that fund such institutional violations are defending demonisation of the individual (squashing ‘uncomfortable’ voices, even volunteers’)



  11. IRC Proceedings: Tuesday, October 20, 2020

    IRC logs for Tuesday, October 20, 2020



  12. Links 21/10/2020: $8000 GNU/Linux Desktop, Tails 4.12, Open Infrastructure Foundation and Firefox Release

    Links for the day



  13. Never Feed the Internet Trolls, No Matter How Tempting It Becomes

    The tactics for removing critics of abuse (by framing them as "abusive") have evolved a lot in recent years; the best course of action is to never entertain provocateurs in any way whatsoever (just ignore them, give them no attention which they crave and feed on)



  14. Bill Gates: “I'm Not a Lawyer” (He Dropped Out of College, Where He Studied Law Before and After Breaking the Law Chronically)

    How Microsoft blackmailed other companies into supporting nothing but Microsoft and Windows; Bill Gates repeatedly lied to the interrogators about it, then said "I'm not a lawyer" (IANAL) even though he went to college to become one, just like his father who died last month



  15. Microsoft Has Not Changed Since Being Investigated (and Prosecuted) for Crimes at a Federal Level

    The media keeps telling us a bunch of worthless junk about Gates "saving the world" and Microsoft becoming a "nice" and "gentle" (or "soft") company, but nothing could be further from the truth



  16. Stick a Fork in the Open Source Initiative (OSI). OSI is Dead. Microsoft Bought OSI.

    OSI leadership proudly showing early signs of 'prognosis negative'; the OSI can never and will never recover from this; Microsoft killed it



  17. Links 20/10/2020: OpenZFS 2.0 RC4 and Trisquel GNU/Linux 9.0

    Links for the day



  18. People With God Complex Must Never be Allowed in Positions of Power

    The attack on Linus Torvalds — an attack which at his own expense/peril he fails to recognise/acknowledge — seeks to put both projects that he founded right in Microsoft’s palm



  19. IRC Proceedings: Monday, October 19, 2020

    IRC logs for Monday, October 19, 2020



  20. Corporate Media: GNU/Linux Can Only Succeed If/When Microsoft Dominates Everything Inside It

    The corporate takeover (or handover) of GNU/Linux would not have been possible without complicity of corruptible (bribed) media



  21. Bill Gates Explains How Microsoft and Apple Leverage Software Patents in Their Cross-Licensing Deals (to Perpetuate Duopoly/Shared Monopoly)

    A look back at Apple's and Microsoft's use or misuse of bogus software patents in bargaining (in effect excluding those who have not amassed tens of thousands of patents)



  22. Standards and Choices

    GNU/Linux is a very standards-based platform; having lots of choices (e.g. distros to choose from) isn’t the principal problem — or nowhere near the extent sabotage and illegal tactics by Microsoft have been



  23. IBM's “Emb(RACE)” Campaign is an Insult to History and Historians

    IBM wishes to be seen as some heroic saviour and warrior for black girls; this requires serious if not torturous revisionism to be believed



  24. There Are Too Many Types of Cars...

    "Choice is malicious," say the antagonists



  25. Reversal of Narratives by Internet Trolls (Spinning Reaction to Their Trolling as 'Abuse')

    Organisations that engage in demonisation of people (typically those who expose the abuses of such organisations) somehow evade the standards of Codes of Conduct, as if Codes of Conduct are covertly designed not to protect individuals but to empower those who already have all the powers (or front for powerful people/corporations)



  26. Ongoing (Albeit Secret) Campaign of Patent Extortion Against GNU/Linux Distributions Using Software Patents, Even Expired Ones in Europe

    GNU/Linux distros attacked by software patents, even in Europe where no such patents are supposed to exist (or have any legal bearing)



  27. Links 19/10/2020: Linux 5.9-ck1/MuQSS, Linux Kodachi 7.3

    Links for the day



  28. Java's James Gosling is Wrong. Free Software Advocates Never Suggested or Insinuated That Money-Making Was Ethically Wrong.

    The honorable James Gosling mischaracterises the stance of Free software advocacy, portraying it like it is an issue of money rather than respect for users



  29. Maybe This is What Codes of Conduct Were Made for? Or to Prevent? (Updated)

    When people bemoan the abuse they receive from a so-called 'anti-harassment' team (covering up corporate corruption in a project by ousting people) this is the kind of thing they receive from colleagues or former colleagues



  30. Media Contradicts Itself, Redefines Proprietary Software as 'Open'... for Microsoft

    Proprietary GitHub is being spun as Microsoft going "open" (nothing could be further from the truth) in another EEE-type move with diffusion and confusion


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts