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05.20.20

Amid Lock-Down the EPO is Still Laughing at the Law

Posted in Australia, Europe, Law, Patents at 3:30 am by Dr. Roy Schestowitz

The European Patent Convention (EPC 1973) is just a fossil made deprecated by sheer neglect and endless violations

EPO 2020, EPC 1973

Summary: There’s a major discord/disconnect between the EPO as originally envisioned by its founders and today’s EPO which just serves the litigation ‘industry’ along with Monsanto/Bayer, Microsoft, and a large bunch of patent trolls glorified by the EPO

THE tyranny of EPOnia is no laughing matter. People’s lives are being devastated by it. Workers sink into deep depression, which in turn leads to chronic conditions and severe health problems. European scientists and technologists are being blackmailed by a bunch of trolls and other bullies using bogus European Patents that should never have been granted. The European public pays immeasurable patent tax and few people in EPOnia — along with law firms and international ‘patent barons’ — pocket a lot of public money. This contributes to inequality, concentration of power, decrease in competition, and retardation of innovation this necessarily entails. Society suffers profoundly.

To make matters worse, there’s no legal basis for it.

Rose Hughes wrote a second and more detailed post about the Friday (announced on Friday anyway) decision [1, 2, 3, 4] from the Enlarged Board of Appeal (EBA/EBOA) of the EPO, this time focusing on the sausage factory of António Campinos (which resembles Benoît Battistelli‘s war on judges). There were previously worthwhile remarks on how this was done by Campinos also in the corresponding referral regarding software patents in Europe. The short story is, EPO management has just reaffirmed that it violates the EPC by meddling in the affairs of judges; or as Benjamin Henrion put it: “Democracy in patentland [...] Same undemocracy with the UPC, they are allowed to change it on the fly.”

Here are some key parts:

The EPO President referred two questions to the EBA. The President’s first question effectively asked whether the AC is permitted to amend the Rules of the EPC so as to be in conflict with previous interpretations of the Articles by the EBA.

The EBA considered this question too broad, referring as it did to the general question of the competencies of the AC and EBA. The EBA didn’t feel it was necessary to answer such a question. To the EBA, the real issue of the referral was to address the question of the patentability of natural plant and animal products. The EBA further noted that were they to answer “yes” to the President’s first question, this would effectively give the AC “carte blanche to deviate from established case law and give a particular meaning to any Article of the EPC by means of the Rules of the Implementing Regulations. This would open the door to the possibility of circumventing the statutory procedures for amending the Convention itself”. So instead of answering either yes or no, the EBA decided it would be pertinent to re-phrase the question. The EBA therefore combined the President’s questions into a single re-phrased question relating to whether the meaning of the Articles could change over time in view of changes to the Rules.

Admissibility of the Question

To be admissible, a referral from the President to the EBA must relate to a point of law of fundamental importance (Article 112(1) EPC). The EBA acknowledged that the point of law was of fundamental importance because of the wish of the legislator to harmonise the EPO’s and EU’s approach to biotech inventions.

A second requirement for admissibility is that a referral from the President’s to the EBA should relate to a question on which there are conflicting Board of Appeal decisions (Article 112(1) EPC). The Board of Appeal was clear in T 1063/18 (Pepper) that new Rule 28(2) EPC was in contradiction to the previous interpretation of Article 53(c) EPC in G2/12 (Broccoli/Tomato II). Thus the Board of Appeal found that the AC was not competent to amend Article 53(c) EPC by means of Rule 28(2) EPC.

[...]

Simply put, the EBA’s question asked to what extent the interpretation of Article 53(c) EPC may have been changed since G2/12 (Broccoli/Tomato II) by the AC’s introduction of Rule 28(2) EPC. The EBA first reiterated its previous position from G2/12 on the “grammatical, systematic and teleological” interpretation of Article 53(c) EPC. Namely, the EBA interpreted the wording of the Article as clearly excluding essentially biological processes from patentability but not the products of such processes.

The EBA further confirmed that the opinion of the EU commission on the interpretation the EU Biotech Directive was not legally binding on either the EU or EPO. The EU commission had itself accepted that only the CJEU is competent to interpret Union law. As the EBA noted, “to date, no decision concerning the exception to patentability in respect of animals, plants or plant materials obtained by an essentially biological process and the interpretation of Article 4 EU Biotech Directive has been handed down by the CJEU”. The EBA also pointed out that the EPO is independent of the EU, and thus not bound by Union law:

The EBA was further of the opinion that the actions of roughly a quarter of the EPC member states to amend their national legislature to exclude products produced by natural process from patentabilty, was irrelevant. In particular, such actions did not themselves amount to an agreement between the contracting states on the interpretation of Article 53(c) EPC.

[...]

The EBA’s decision in G3/19 can be simply summarised as follows.

EBA: Article means P (under a grammatical, systematic and teleological interpretation)
AC: The New Rule changes meaning of Article to Q.
EBA: Because of the New Rule, Article now means Q.

Therefore, whilst the EBA rephrased the referred questions so as to not consider the appropriateness of Rule 28(2) EPC, G3/19 still seems to none-the-less open the door to the AC to change the EPC by amending the Rules, without unanimous agreement from the contracting states or a diplomatic conference. Finally, the fudging by the EBA to reach its decision in G3/19 will raise questions as to its functioning as an independent body, free from the political influence of the President and AC.

Mind the first commenter (“Anonymous”) and the first comment that says: “May a crude parallel be drawn, pehaps [sic], with the BVerfG’s decision that the UPCA contravenes the German constitution due to violation of the proper procedure for its ratification…?)”

Here’s the full thing:

An excellent account of the distinctly iffy manouevres employed by the EBOA to reach the conclusion desired!

At least one elephant is now situated in the room. Namely, if new Rule 28(2) was not introduced legally – which the EBOA side-stepped considering – can a “dynamic interpretation” of Article 53(c) legitimately arrive at the conclusion reached by the EBOA, if that very interpretation rests upon a rule which was not adopted in a valid manner?

I wonder if we have not seen the last of this. Surely a clever representative can try to get the Boards to look at the issue of whether Rule 28(2) was adopted in a legal manner – and perhaps a Chairman or two close to the end of their careers with the EPO could be persuaded to take a look at this question without the threat of (non-)reappointment hanging over them.

(May a crude parallel be drawn, pehaps [sic], with the BVerfG’s decision that the UPCA contravenes the German constitution due to violation of the proper procedure for its ratification…?)

Someone corrected the above: “I think you mean Article 53(b) not 53(c)?”

“It seems to have become standard practice to just ‘invent’ rules for the sake of patent maximalism.”And another person asked: “I am sure this is a stupid question, but can anyone tell me why the EBoA didn’t say “this doesn’t apply to patents/applications with a filing/priority date before 1 July 2017″. The wording, which refers to grant dates, makes no sense to me. What does this mean for a patent granted on 2 July 2017?”

So the EPC does not matter before some particular day? That does not make sense at all…

It seems to have become standard practice to just ‘invent’ rules for the sake of patent maximalism. This is lawlessness, it is a form of deep corruption.

Here’s a new article from Australia about the EPO’s “video conference (VC)” (promoted under the droll title “Australia can now visit the European Patent Office without jetlag“).

Well, for one thing, this should not be done. This is illegal. Phillips Ormonde Fitzpatrick’s Mary Munroe misses that point. Like all those law firms we’ve mentioned, they never highlight this simple fact. They just don’t care. It’s all about money and “show must go on” (and be charged at $200+ per hour). To quote:

COVID-19 has affected many aspects of conventional life and business and the European Patent Office (EPO) is no exception as social distancing requirements have recently resulted in a decision that all Oral Proceedings before the EPO’s examining divisions are to be held via video conference (VC). While VC facilities have been available to the EPO for more than 20 years, the vast majority of oral proceedings during examination have been held in person at one of the EPO branches in Munich, The Hague, or Berlin. More radically, the EPO have initiated a pilot project to assess the suitability of VC for opposition division oral proceedings which will run from 4 May 2020 until 30 April 2021.

These are interesting developments for Australian applicants of European patent applications for obvious cost savings where representatives no longer incur travel expenses in attending oral proceedings, but more excitingly, for the opportunity to join the VC proceedings, particularly where the EPO agree to schedule an early morning VC.

A couple of hours ago the EPO tweeted: “Want to know how oral proceedings by videoconference work? Find out in this online training course, which includes mock oral proceedings by ViCo in opposition…”

This is not legal, but who cares, right?

Going back to the above thread, the sausage factory gets yet worse. “One could even ask if the EBA has now overstepped its bounds by declaring Article 3 of the AC’s decision void,” said another anonymous comment, reproduced in full below.

I believe the EBA may have overlooked Article 3 of the “Decision of the Administrative Council of 29 June 2017 amending Rules 27 and 28 of the Implementing Regulations to the European Patent Convention (CA/D 6/17)”, which introduced Rule 28(2) EPC. Article 3 states:

“This decision shall enter into force on 1 July 2017. Rules 27 and 28 EPC as amended by Articles 1 and 2 of this decision shall apply to European patent applications filed on or after this date, as well as to European patent applications and European patents pending at that time.”

Hence, Rule 28(2) EPC was introduced with RETROACTIVE effect, including for those pending applications otherwise relying on G 2/12 as laying out the law. I therefore think that the argument for admissibility of G 3/19, namely that T 1063/18 did not interpret the law dynamically and therefore is conflicting with earlier decisions does not hold. Rule 28(2) as introduced by the AC was not introduced dynamically in the sense used by the EBA and the Board in T 1063/18 correctly found that a conflict existed between Rule 28(2) and G 2/12.

One could even ask if the EBA has now overstepped its bounds by declaring Article 3 of the AC’s decision void…

Welcome to the “2020 EPO” (or “EPO 2020″) — a tyranny that mirrors the 2020 Trump Regime — one in which oversight is not allowed (one gets fired for merely looking into allegations of ethical violations) and the rules are made up irrespective of any law, set aside constitutions. The sole goal is absolute power and ‘trickle-up effect’ (passing more wealth to those who already hoard it, then spend waste a tiny portion of it to control the whole system). This is how democracy dies.

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