Bonum Certa Men Certa

Judges Reject EPO Patents on Life as Constitutional Complaints Against the EPO Pile Up in Germany

5 challenges and counting...

Pile of old books



Summary: EPO judges throw out patents on life (CRISPR at least); there's now growing hope that they'll have the courage to do the same to patents on software

THERE HAS been mostly good news coming from the European Patent Office (EPO) in recent days. We hope there will be positive impact and perhaps an end to software patents in Europe.



"As fewer readers may know, there are currently quite a few constitutional challenges against the EPO."As most readers know/are aware of, Team Campinos/Battistelli is unscientific and perhaps anti-scientific. The sole goal is granting as many patents as possible, irrespective of what the science says and what scientists need. It's not in vain that examiners are protesting and it is not without reason.

As fewer readers may know, there are currently quite a few constitutional challenges against the EPO. Richard Gillespie wrote about "Constitutional complaints against the EPO in Germany" just under a day ago. There's a decent roundup right there, naming 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16, and, 2 BvR 561/18:

Patent Attorneys like myself are not known for their love of excitement. For example, I like reading lists. One regrettably exciting item that appears to have slipped off the ‘things to look out for in 2020’ lists that I have seen is the outcome of the constitutional complaints against the EPO in Germany. The outcome of these complaints could have potentially explosive implications for patent practice in Europe and they have not received enough attention.

At present there, are five constitutional complaints relating to the European Patent Office (EPO) before the German Federal Constitutional Court (BVerfG), namely, 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16, and, 2 BvR 561/18. At issues is the lack of sufficient legal remedies at the EPO against negative decisions of the Boards of Appeal. I believe there is a clear risk that the BVerfG will uphold at least some of the constitutional complaints relating to the EPO. Such an outcome would likely mean that the European Patent Convention (EPC) in its present form is incompatible with the German constitution.

My reasoning is as follows: according to these complaints there is a question (amongst others) on whether or not Articles 19(4) and 103(1) of the German constitution (i.e. the Basic Law of the Federal Republic of Germany) have been violated. Article 19(4) states that if any person’s rights are violated by a public authority, they have recourse to the courts. Article 103 deals with the right to a fair trial.

[...]

As noted in by Vissel (GRUR Int. 2019, 25) it is instructive to note the submissions of the Federal Republic of Germany during the Travaux Préparatoires of the EPC (emphasis added):

“The delegation of the Federal Republic of Germany opposed this request [to delete para. (b) of Art. 135]. It pointed out that the application of a national procedure should be possible not only in cases in which the applicant suffered a loss of rights as a result of the omission of an act but also where the European Patent Office had given a negative decision. It was in precisely these cases that there was a constitutional problem in the Federal Republic of Germany. The Basic Law required that every administrative act should be capable of being examined by a court. The Boards of Appeal of the European Patent Office, although similar to courts of law, were not in fact courts proper so that the possibility of recourse to a German Court had to be maintained. It should, however, be borne in mind that the Federal Republic did not at present intend to avail itself of the option available under para. 1(b). However, even if this option were applied, there would be little danger of any delay in the procedure since it was unlikely that proceedings would be initiated before the German patent authorities and the German Court after the European procedure had been concluded.”

Hence, the provision of Article 135(1)(b) EPC was drafted for a situation in which the Boards of Appeal of the EPO could no longer be seen as independent courts.

This was a situation that had occurred within the German Patent Office when appeals against decisions of the Office were conducted internally. There was a constitutional complaint against the internal appeals of the German Patent Office because of a lack of sufficient legal remedies at the German Patent Office. This complaint was upheld and it ultimately lead to the establishment of the German Federal Patent Court.


We assume readers are aware of the constitutional complaint against the UPC and we have repeatedly shown that the press does not properly cover this (if at all). Amplifying the EPO's lies is not journalism and here's a new example of it ("New EU Patent System On Course For End Of 2020, Says EPO"). The EPO lies and some people copy-paste the lies, just like so-called 'reporters' who publish "Trump says" pieces. From the outline:

Progress is being made towards the implementation of the EU’s new patent system, but the UK’s insistence on severing all ties with the European Court could spell the end for its participation.


Could or will? Will. Has. This is hardly news.

The EPO's management has meanwhile moved on to its new lie (warning: epo.org link), having published this piece in which patent maximalists from all around the world push software patents agenda under the guise of "emerging" and "HEY HI" (AI). The EPO attributes this propaganda to “IP5” and says:

The five largest intellectual property offices held the inaugural meeting of their joint Task Force on New Emerging Technologies and Artificial Intelligence this week in Berlin. Known as the “IP5”, the five offices – which are the EPO, the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the China National Intellectual Property Administration (CNIPA) and United States Patent and Trademark Office (USPTO) – together handle about 85% of the world’s patent applications. The meeting was organised jointly by the EPO and KIPO.

Launched at the IP5 annual meeting last June in Incheon, South Korea, the new task force will explore the legal, technical and policy aspects of new technologies and AI, their impact on the patent system and on operations at our five offices. The aim is to pinpoint which areas can most benefit from joint IP5 responses, ranging from employing AI to improve the patent grant process, to applying the patentability requirements to inventions in the field of AI, and handling applications for inventions created by machines.

“This task force is the IP5 offices’ first joint response to a changing global patenting landscape and evolving user needs in the field,” said Christoph Ernst, the EPO’s Vice-President for Legal and International Affairs, opening the event. He added: “New emerging technologies and AI touch upon almost every aspect of daily life and seem to question the traditional models for the generation and utilisation of knowledge flows and decision-making. This translates into considerable challenges in IP, and the task force is a chance for us to demonstrate that we, as the world’s leading offices, are agile and responsive to change.”


It's very clear that Campinos, Iancu and the others just want to grant as many patents as possible, no matter the legality of these. This includes software patents.

Having said that, this EPO agenda has just suffered a major setback because CRISPR patents turn out (again) to be fake patents. This can, by extension, doom many other European Patents on life and nature.

The EPO has just tweeted: "Heinz Müller, #patent expert at @ige_ipi, will talk about the #patent landscape of #CRISPR at this event in Zurich..."

Maybe the EPO did not get the memo, but around the very same time (maybe the same day) judges found the courage to say no to CRISPR patents.

A site advocating for such patents (pressure group of the "life science" monopolists) wrote:

In a dramatic reversal, a European Patent Office’s (EPO) board of appeal has upheld the revocation of a Broad Institute CRISPR/Cas9 patent.

Yesterday, the board indicated that it would refer several key issues at the heart of the case to a higher panel, potentially triggering a lengthy delay.

But today the board has announced that, after consideration, it is already equipped to decide the case and agreed with the earlier Opposition Division ruling that the Broad’s patent lacks a valid priority claim.

Daniel Lim, partner at Kirkland & Ellis, said the decision was “quite the change of heart” from the board.

“I can imagine that the stakes involved in this case and the level of interest and scrutiny have not made the Board’s life easy,” he said.

Yesterday’s proceedings opened with the announcement that the board intended to refer at least three questions to the EPO’s enlarged board of appeal.


This has also been covered by Rose Hughes (AstraZeneca), who said:

The Board of Appeal (3.3.08) finished hearing submissions on priority from the parties this morning. Proceedings were then adjourned until the afternoon whilst the Board conferred. The parties undoubtedly had a tense lunch. The Board was either going to decide on the issue of priority or refer the issue to the EBA for clarification. There was a strong feeling following the comments made by the Board of Appeal on Day 3 that a referral to the EBA was likely. However, news came soon after recommencement of the proceedings that the Board of Appeal was to dismiss the appeal. [In a classic fake news saga, Merpel watched with bemusement today the ongoing proliferation of reports that the Board of Appeal had referred the matter to the EBA].

The immediate impact of the referral would have been to prolong the dispute. Even if the EBA had accepted the referral (far from certain), any decision from the EBA would not have been the end of the matter. The EBA is there to provide clarity on points of law. After a EBA decision, the case would then have had to be sent back to the Board of Appeal. Those wishing for legal clarity will welcome the Board of Appeal's decision to settle the matter today.

On the other hand, a fact easily forgotten amidst the all the excitement over this week's appeal hearing, is that the patent in dispute, EP2771468, is far from being the Broad Institute only patent relating to CRISPR. Whilst today is the end of the road for EP2771468, there are 5 divisional applications in the same family as the patent in dispute: EP2784162, EP2896697, EP2940140, EP2921557, EP3144390.

[...]

The patent family of EP2771468 is also, of course, not the only family relating to CRISPR. There are many other patents relating to aspects of CRISPR technology, owned by the Broad Institute and other parties, most notably University California Berkeley.


Could this be the most courageous decision these judges have made in recent years? More importantly, will there be 'consequences' for it? Will they soon decide to rule out software patents ('simulation') as well? Let's hope so.

Recent Techrights' Posts

Keeping Track of Microsoft Layoffs in 2025
So here's a quick roundup of 2025
The Rumours Were Likely True: Sixth Wave of Microsoft Mass Layoffs in 2025 (Days After "50" Anniversary and About 5,000 Layoffs)
5 hours ago, by Ashley Stewart
The Sixth Anniversary of the Lightweight Alternative to the Web (Gemini Protocol)
Now 11 short of 3,000 active capsules. 65 short of 4,500 total.
People Are Sick of LLM Slop. Offer Them Alternatives.
We never used LLM slop for anything and we never will
You Can Be an A--hole to Women (Even Strangle Women) as Long as You Work for Microsoft
Recalling the Mark Shuttleworth origin story
 
Techrights Be Like...
K.I.S.S.
Gemini Links 09/04/2025: Autism, Cybersecurity, and LLMs Attacking Services Online
Links for the day
GNU/Linux Would be Measured at Over 5% Globally (by statCounter) Had the Data in India Not Been Changed
GNU/Linux grew a lot in many countries and has expanded since then
Links 09/04/2025: Quartz Fires All Writers (Shutdown, LLM Slop or Slopfarm Instead), "Bitcoin Is Crashing Hard"
Links for the day
Web Surveyor statCounter Sees Apple's macOS Falling From 5.6% to 3.6% in Two Months, It Might Soon be Smaller Than GNU/Linux
Apple's "value" (faked, exaggerated) is back to "pandemic times"
UK House of Lords Recognises the SLAPP Issue in the UK and EFF Pursues "Bill (That) Could Put A Stop To Censorship By Lawsuit" in the US
"A House of Lords inquiry into how the news industry can survive into the future has accused the government of “failing to prioritise” action on strategic lawsuits against public participation (SLAPPs)."
Open Source Initiative (OSI) Privacy Fiasco in Detail: Seeking Class Action Against the OSI
"LETTER SEEKING CLASS ACTION REPRESENTATION"
The Value of Slop, by Alexandre Oliva
Original by Alexandre Oliva
Gemini Links 09/04/2025: Neocities, Tinylogs, and Inter-community Protocols
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 08, 2025
IRC logs for Tuesday, April 08, 2025
Canonical is a Proprietary Software Reseller With a 'Debian Base'
"Canonical Ubuntu" is just Debian with some proprietary things sold on top of it
statCounter Sees Microsoft Bing at Lowest Level Since Last Summer
Since 2023 Bing has repeatedly had layoffs
Nearly 5,000 Microsoft Layoffs Disclosed on Week of Microsoft 'Anniversary' (Media Noise), The HR Digest Says More Layoffs Coming
more "Microsoft layoffs on the horizon"
Windows "Market Share" Down to 1% in Sudan, Based on statCounter
Among those 1% who use Windows to access the Web fewer than 30% are on Vista 11
People Who Facilitate Truth Will Always Win at the End
"Just always stick to the truth"
Slopwatch: LinuxTechLab, linuxsecurity.com, "Cyber Security News" and More LLM Slopfarms
So the Web has this bunch of slopfarms pretending to "cover" GNU/Linux
Links 08/04/2025: More Mass Layoffs Expected at Microsoft (Gaming), Fentanylware (TikTok) Unsold
Links for the day
Gemini Links 08/04/2025: "Shared Ownership" and Rant About Scrapers
Links for the day
Links 08/04/2025: Microsoft Shrinking, Oracle's Clown Computing Cracked
Links for the day
Walmart Vizio TVs Scream At Immigrants to Leave America
Reprinted with permission from Ryan Farmer
Stolen Credit Card and LinkedIn. DHS Spies on Immigrant Social Media.
Reprinted with permission from Ryan Farmer
How Corporations Such as Microsoft Try to Crush Critics and Dissolve Activism
Stay focused
Wikipedia Can Lower Its Hosting Bill by Going More Static, Not Just by Caching, But It Would Not Solve Its Biggest Problems (Bribes and AstroTurfing)
For about 15 years we had a Wiki in this site
At 50, Microsoft Has Over 100 Billion Dollars in Debt and Less Than 25% "Market Share" (Windows)
statCounter basically sees less than a quarter of Web requests coming from Windows
linuxhint.com Died 12 Months Ago (After Adopting Image Slop)
Zombie sites
LLM Slop Will Eventually Stop Due to High Costs, Worse Training Sets (Polluted Models Ingesting Their Own Junk), and No Real Returns
This too shall pass
Urgent Need for SLAPP Litigation Transparency
Microsofters really want to shut us up
Courage is Contagious
I became a witness to acts of great courage from EPO examiners
On Shutdowns and 2,000 More Layoffs at Microsoft (10,000 Microsoft Staff May Have Already Been Laid Off in 2025)
Microsoft tries to hide and belittle mass layoffs; its data centre business also flounders, so it issues puff pieces about some anniversary over and over again
Gemini Links 08/04/2025: Gabbro 0.1.4 and Disillusioned With Social Control Media
Links for the day
Microsoft Windows in Jordan: From 99% Down to 10%
This is becoming more "normal"
Open Source Initiative (OSI) Privacy Fiasco in Detail: A "Deep Dive" Into the Complaint at the California Privacy Protection Agency
There are many facets to it and it may be the first complaint of several
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 07, 2025
IRC logs for Monday, April 07, 2025
Gemini Links 07/04/2025: Stock Market, Galène, and DMT Entities
Links for the day
During the Weekend We Said Fedora DEI Requires Proprietary Software, Now the Chat About It Is No Longer Accessible Over the Open Web
is this just a coincidence and an habitual change in Element?
Microsoft Problems in Europe Even Before the Cheeto Tariffs
The case of Romania, Europe's notorious Microsoft fan
Oman in 2025: GNU/Linux Growing to 5%
what can Microsoft do about it except sabotage the PCs?
Links 07/04/2025: US Measles Fatalities and China Launches HDMI and DisplayPort Alternative
Links for the day
Links 07/04/2025: More Cuts to Science Funding, Snail-speed Internet in Germany
Links for the day
Gemini Links 07/04/2025: Leasehold and Safe Gifts
Links for the day
Microsoft Shares Collapse Again (Down $101), Fifth Round of Microsoft Mass Layoffs in Less Than 100 Days in 2025
disaster
In Some Countries, Laptops and Desktops Become a Dying Breed (Even Before Tariffs), Windows Has Nowhere to Go
expect more GNU/Linux on new and existing laptops
When the Credibility or 'Quality' of Clients Ceases to Matter, It's About Helping Rich Companies Like Microsoft Censor Critics (No Matter the Risks)
Bad ideas typically result in undesirable outcomes
UAE: GNU/Linux and Android at Record Levels, Windows at New Lows and Falling Below Apple
Even iOS is measured as bigger than Windows this month
Links 07/04/2025: Reddit Occupied (Social Control Media Controlled by Oligarchy), Demise of Globalisation Ongoing
Links for the day
Windows Has Fallen to All-Time Lows in Switzerland Since GNU Celebrated 40th Anniversary (GNU’s 40th Birthday in Biel, Switzerland)
GNU/Linux has been doing well in Switzerland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 06, 2025
IRC logs for Sunday, April 06, 2025
Links 07/04/2025: Leaving Gemini/smolweb and Mastodon Migrations
Links for the day