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01.19.20

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

Posted in Europe, Law, Patents at 3:45 am by Dr. Roy Schestowitz

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.

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