05.23.20

The EPO Continues to Publicly Brag About Granting Illegal Patents to Fake ‘Production’ (It’s Not Really Production But Abuse of the Granting Authority)

Posted in Europe, Law, Patents at 7:47 am by Dr. Roy Schestowitz

The EPO ‘racket’ needs to end; the ‘fat cats’ in the management just pillage and plunder this institution, in effect breaking the laws while exploiting diplomatic immunity

Fat cats: What they want you to think of EPO and what actually goes on

Summary: Patents on life, nature and mathematics serve to highlight the degree of corruption embraced by EPO management, eager to fake ‘production’ in order to hoard money, which is then stolen and misused in other ways

“European patent applications in image data processing and generation increased 11% between 2018 and 2019,” said this tweet from yesterday, echoing similar prior tweets.

Those are illegal software patents which are often being granted against the rules in Europe (but courts will never get around to assessing these individually). The António Campinos-led European Patent Office (EPO) — just like Benoît Battistelli‘s — publicly brags about welcoming and granting illegal patents so as to artificially fake (inflate) numbers, hoard money, then pass the external costs to the public that can be trolled/blackmailed by these patent scams. A lot of this goes under the radar because no lawsuits are filed; it’s a shakedown. Which means that the real costs are unknown.

The pattern of the above buzzwords was explained here several times back in March and April. It even impacts my personal field of research, which is clearly about software and maths. Nothing else. Images are data and image processing/manipulation is reducible to mathematics. But like the 35 U.S.C. § 101-hostile USPTO today’s EPO doesn’t seem to mind the rules or even courts’ repeated decisions/caselaw. Law seems to be a ‘dirty’ word in today’s EPO; all that matters is ‘production’… as if they’re nothing but a factory.

“It even impacts my personal field of research, which is clearly about software and maths.”Things have gotten so bad that for a long time the EPO was granting patents on life and on nature; we made some jokes about it last week and included in Daily Links (already) are additional articles from law firms, dealing with the latest admission by the EPO that it had granted fake patents. The following were mostly promoted to a wider audience through Lexology (they’re 1-2 days old):

  • Plants obtained from conventional breeding can’t be patented, European patent court rules

    The highest judicial authority at the [European Patent Office] EPO issued their opinion …. in the controversial G3/19 (Pepper) case. Contrary to previous decisions in G2/12 and G2/13 (Tomato/Broccoli), the Enlarged Board of Appeal (EBA) has found that plant and animal products produced by essentially biological processes should NOT be patentable.

    This U-turn is the end result of significant political pressure from across Europe in favor of farmers and breeders who consider that patents on plants obtained from conventional breeding methods will hinder their activities.

    Importantly, this new interpretation will not have retroactive effect on European patents granted before 1st July 2017, or pending European applications that were filed before this date.

  • An End To The Saga Of Whether Plants And Animals Produced By Essentially Biological Processes Are Patentable Before The EPO

    On 14th May the Enlarged Board of Appeal issued its opinion on the questions referred in case G3/19, otherwise known as the ‘Pepper’ case1. HGF have been following the case with interest, and attended the original Board of Appeal hearing which lead to the referral, our last update can be found here.

    The opinion marks the potential end to a saga which has created legal uncertainty in the field of plant and animal breeding and selection for over a decade. The issues began back in 2007 when the first referral to the Enlarged Board was made on the subject. This case became known as the infamous ‘Broccoli I’ decision of G2/072 and the subsequent related decision of ‘Tomatoes I’ of G1/083 . Enlarged Board of Appeal decisions usually produce final and binding decisions on issues of legal interpretation, however the tale of broccoli and tomatoes rumbled on to create two more subsequent referrals; G2/12 and G2/134 were consolidated and the decisions were issued together in 2015. These decisions, however, created controversy in that they essentially stated that the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material produced from an essentially biological process.

  • Pepper trumps Broccoli: EPO finds products produced by essentially biological processes are not patentable

    Responding to a question referred to it by the EPO’s President, the Enlarged Board of Appeal of the European Patent Office has issued its opinion in relation to what was perhaps the most controversial referral of 2019. In a complete reversal of its opinion of just five years ago, the EPO has held that plants and animal products produced by essentially biological (natural) processes are not patentable.

    Background

    In 2015, the Enlarged Board of Appeal of the EPO held that although non-microbiological processes for the production of plants which are “essentially biological” cannot be patented (Art 53 EPC), the products derived from using essentially biological processes could be patentable (G2/12; G2/13, also referred to as Broccoli/ Tomatoes II).

    Following these decisions, the European Parliament asked the European Commission to review the patentability of plants and animals derived from essentially biological processes. This resulted in a European Commission Notice dated 8 November 2016 clarifying that the EU legislator had intended to exclude such plants and animals (either in whole or in part) from patentability when adopting the EU Directive on biotechnological inventions (Directive 98/44/EC). The Administrative Council of the EPO therefore amended Rule 28(2) EPC to state that, from 1 July 2017, the EPO will no longer grant patents for plants and animals exclusively obtained by means of an “essentially biological process”. Further background and the legal framework regarding patents for plants and animals exclusively obtained by means of an “essentially biological process” is set out in our previous update, here.

  • A Dynamic Reversal by the EPO’s Enlarged Board of Appeal

    Plants and animals exclusively obtained by essentially biological processes are excluded from patentability, according to the Enlarged Board of Appeal (“EBA”) of the European Patent Office (“EPO”). This reversal of the EBA’s previous rulings was issued late last week in the eagerly anticipated opinion in referral G 3/19 (“Pepper”).

    To recap, after the Broccoli-II and Tomato-II decisions (G 2/12 and G 2/13) affirmed the patentability of products derived from essentially biological processes, the European Commission issued a Notice indicating that the Biotech Directive should have been interpreted to exclude such products from patentability (see our June 2015 Commentary, “Clarifying or Confirming the Extent of Process Exclusion under Art. 53(b) EPC?” and our December 2016 Alert, “Clarifying or Confusing? The European Commission Chews on Tomatoes and Broccoli”). In order to comply with the Notice, the EPO Administrative Council introduced Rule 28(2) EPC in July 2017 (see our July 2017 Commentary, “Clarifying or Conforming? The EPO Bows to the European Commission”).

    The latest referral to the EBA was triggered by an alleged legal uncertainty that occurred after a Technical Board of Appeal found the amendment to Rule 28 EPC de facto void and followed the interpretation of Article 53(b) EPC given in G 2/12 and G 2/13 (case T 1063/18).

    According to the EPO press release announcing the opinion in G 3/19, the EBA “found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This meant that decisions G 2/12 and G 2/13 did not settle the meaning of Article 53(b) EPC once and for all.

    “Taking account of the Administrative Council’s decision to introduce Rule 28(2) EPC, the preparatory work on this provision and the circumstances of its adoption, as well as legislative developments in the EPC contracting states, the Enlarged Board concluded that new Rule 28(2) EPC allowed and indeed called for a dynamic interpretation of Article 53(b) EPC.”

  • EPO Enlarged Board of Appeal Decision G 3/19 and the patentability of plant and animal products in Europe

    Last week the EPO issued another decision (G 3/19, “Pepper”) from the Enlarged Board of Appeal (EBA) regarding the patentability of plant and animal products. The decision is from the “extreme dark and bulky peppers” application and is the latest decision in over 2 decades of EPO case law relating to “essentially biological processes” for the production of plants and animals.

    The decision sets out detailed and fundamental principles for interpretation of the European Patent Convention (EPC) in the context of changing political and legislative circumstances. It is notable because it essentially overturns a previous decision of the EBA, uses a form of legal interpretation not previously adopted by the EBA, and discusses the powers of the Administrative Council (AC) of the EPO to amend the European Patent Convention (EPC).

    In this article of two halves, we first set out the practical consequences for the Agri-Tech sector, before summarising how we got here and examining some of the relevant legal principles in detail.

    [...]

    Our article from 2019 discusses the decision set out in T 1063/18 and can be found here. As a quick recap(sicum), here’s how the protection of plant and animal varieties has evolved over the years:

    Article 53(b) EPC states European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.

    1999 – EBA decision G 1/98 was published and confirmed a claim directed to plant varieties was excluded from patentability, but “a claim wherein specific plant varieties are not individually claimed is not excluded from patentability under Article 53(b) EPC even though it may embrace plant varieties”.

    2010 – Combined EBA decisions G 2/07 and G 1/08 (“Tomatoes” and “Broccoli”) were published. They related to the patentability of claims relating to essentially biological processes (not products), and stated the exclusion to patentability set out in Article 53(b) EPC extended to “essentially biological processes for the production of plants”, as literally stated, and not just essentially biological processes for the production of plant varieties. Among other things, the decision confirmed processes that “contain or consist” of the steps of sexually crossing the whole genomes of plants are not patentable.

    2015 – The EBA published combined decisions G 2/12 and G 2/13 (“Broccoli II” and “Tomato II”, respectively), which related to the relevance of Article 53(b) EPC to the patentability of plant products obtained by the excluded “essentially biological processes”. In that decision, the EBA stated Article 53(b) EPC did not exclude such products from patentability, other than plant varieties specifically.

    July 2017 – Rule 28 EPC was amended by a decision of the Administrative Council (AC) to include an interpretation of Article 53(b) EPC under new Rule 28(2) EPC. The amended rule states, under Article 53(b) EPC, European patents shall not be granted in respect of “plants or animals exclusively obtained by means of an essentially biological process”. This clearly conflicts with the EBA’s interpretation of Article 53(b) EPC in G 2/12 and G 2/13.

    February 2019 – EPO Technical Board of Appeal (TBA) decision T 1063/18 was published. In that decision, the TBA concluded that Rule 28(2) EPC was in conflict with Article 53(b) EPC as earlier interpreted in G 2/12 and G 2/13. The TBA therefore disregarded Rule 28(2) EPC pursuant to Article 164(2) EPC, which states in the situation where any conflict arises between the Articles and Rules of the EPC, it is the Articles that prevail over the Rules. It seemed then the amendment to Rule 28 EPC by the AC was null and void.

    April 2019 – In light of legal developments since G 2/12 and G 2/13, namely interpretations and statements of the European Commission, the EU Council, the European Parliament and the EPO’s AC (all of which concluded there should be no patentability in the case of plants or animals obtained as a direct product of essentially biological processes), the President of the European Patent Office referred a point of law to the EBA. The questions posed aimed to clarify whether Rule 28(2) EPC as amended by the AC should be followed or not, with the President arguing it should be followed as written. The referral was not without controversy, and the proceedings relating to G 3/19 attracted no fewer than 41 amicus curiae briefs arguing both sides of the case.

    May 2020 – The present decision G 3/19 is published, and addresses that last question. In short, the answer is: yes, Rule 28(2) EPC as amended by the AC decision should be followed.

Last week the EPO even promoted software patents in the Vision Without Illusion Conference (which was basically cancelled and became a measly webstream, just like many other conferences). EUIPO said about it that it had a “wide range of experts from the IP field will be sharing their views about the importance of intellectual property in economic growth, taking into account the new challenges that the future will bring,” then naming “the World Intellectual Property Office (WIPO), the European Patent Office (EPO), and the Organisation for Economic Co-operation and Development (OECD), among others…”

“Campinos recently admitted in an IAM interview that a huge proportion of newly-granted European Patents involve software.”No counterpoints, no critics, no public interest groups present, i.e. the usual. Also published a few days ago was this shallow survey entitled “European Patent Applications filed by Applicants from Africa,” giving people the false impression that Africa stands to gain anything by participating in a system that even grants monopolies on seeds (see what happened in Ethiopia). “Despite small fractions of “EP Africa patent applications” having applicants from Seychelles, Egypt, Morocco, and Tunisia,” it concluded, “most African corporations do not seem to seek protection by means of a European patent. Considering that the examination criteria have not changed significantly in the last few years at EPO, it is possible to assess that the quality of the “EP Africa patents applications” has been improving, in view of the respective growing tendency of European patents granted.”

This is false; the EPO changed a lot and the examination criteria changed too. For instance, half a year ago the EPO went even further to allow if not encourage software patents. Nowadays it makes appeals more expensive and possibly priced out of reach deliberately (to conceal injustices). Appeal processes are illegally handled over Microsoft webstreams and EPO staff is still being crushed and robbed by unqualified management that gives itself additional bonuses amid a public health crisis.

The sordid mess we’re seeing at the EPO isn’t at all explained by any of the above self-serving puff pieces (the media that covers patents is controlled, composed, manipulated and even censored by the litigation giants/interests, so we increasingly rely on what's left of anonymous comments after filtering). Heck, the subject of judges’ loss of independence isn’t being brought up at all. It remains to be seen whether this year will bring us “European Alice” and seeing the judges’ persistent lack of autonomy, we somehow doubt they can put an end to software patents (and even if they do, rest assured Office management will simply ignore it, maybe even threaten or retaliate against individual judges to keep the rest terrified). Campinos recently admitted in an IAM interview that a huge proportion of newly-granted European Patents involve software. Who’s to stop an unaccountable office with no effective oversight in place?

Going back to patents on life, who actually wants these? Nobody almost…

As for software patents, software professionals strongly object to these. So why do we still have those?

And to quote one new comment, citing the feedback of actual farming economies:

The anonymous of Monday and the reply by Attentive Observer raise a number of fundamental points. Such fundamental points not only occur with the EPC and its interpretation but also with other patent laws in which e.g. an exception to the patentability of naturally occurring products is laid down. In analogy with the argument provided by Anonymous the following could be argued in those cases. Imagine that a naturally occurring organism harbours protein A. Because of its natural occurrence protein A is then rendered unpatentable. If, however, I change a few amino acids of protein A by using conventional chemistry, I may be able to obtain a protein with improved properties (e.g. an increased effect, a longer shelf life, etc.). Because of these chemical modifications I have ended up with a protein molecule that would be patentable. Unless it appears that such a mutation would also be occurring in nature (e.g. in a closely related naturally occurring organism). Hence, also in this case, it is not the product itself, but the way it is obtained which governs the patentability (or, if you prefer, the patent eligibility).
Now, the possibility to exclude naturally occurring compounds from patentability has been discussed during the negotiations coming to the TRIPS agreement. Especially the developing countries lobbied for such an exclusion and in 1990 they opted for a text of Art. 27 TRIPS to be:
‘Parties may exclude from patentability:
….
Plants and animals, including microorganisms, and parts thereof and processes for their production. As regards biotechnological inventions, further limitations should be allowed under national law. [Document IP/C/W/383 WIPO (Documents of the Council for TRIPS with respect to the review of the provisions of Article 27.3(B), the relationship between TRIPS and the Convention on Biological Diversity and the protection of traditional knowledge and folklore].
This text, which would allow national laws to exclude biotechnological inventions, such as inventions relating to DNA, proteins and living organism, from patentability was disapproved in favour of the current wording of Art. 27.3(B), which is identical to Art. 53(b) EPC.
Thus, from a legal perspective – apparently – there is an approval for the patentability of products in all fields of technology (Art. 27(1) TRIPS) and also for products obtained by a process which process itself would not be fit for patent protection. This seems to be the consequence of allowing patent protection for products.
Where the TRIPS agreement forced developing countries to adapt to this when joining the WTO, it now seems that some of the developed countries – for whatever reasons – seem to slip away from the general principle provided by the TRIPS agreement.

Does patent law exist only for monopolists and barons? What does the above indicate?

In relation to the Haar question we previously wrote about odd composition of judges and the next (last, posted Thursday by Mike S) comment says: “Has anyone else noticed that, for G 3/19, the composition of the EBA changed between May 2019 and May 2020? H. Rothe (legally qualified) and W. Sieber (technically qualified) were replaced with A. Galgo Peco and P. Gryczka.

“Unless I missed something, this change was not announced. Perhaps this has something to do with the fact that the “procedural documents” link for G 3/19 has not worked for many months now.”

As we already know, the Office President can just toss out judges in violation of the EPC and face no consequences for it. Then he can even become head of a law school, adding insult to injury.

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