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01.25.20

When the Monopolists and the Patent Litigation Industry Hijack the News They Control the Narrative

Posted in Deception, Europe, Patents at 2:39 pm by Dr. Roy Schestowitz

Hardly independent. They want something in return.

Labiotech patrons

Summary: Money buys perception and litigation firms have certainly ‘bought’ the media coverage, which fails to convey the issue at stake and instead paints a rational court decision as tragedy for “innovation” (by “innovation” they mean monopolies on nature and on life)

THE SEEMINGLY ENDLESS MEDIA CHEERLEADING for the UPC — and deliberately false predictions — have long amused or entertained us. Sure, lies can be rather obnoxious, but we chose to approach it all with humour, including lots of memes and jokes. Team UPC didn’t appreciate the funny side of it because its sociopathic members lack a sense of humour and honesty. They see truth-telling as scorn or ridicule.

Each years for about half a decade they’ve been telling us that the UPC would come the following year.

“Without UK participation the UPC itself is doomed, but never mind those ‘pesky’ facts.”At the end it was, as usual, proven false. The UPC is buried and this new comment has just said: “Brexit is starting to show its effect. And there are still people thinking that UK might be participating in the UPC. Time to give up this dream…..”

Without UK participation the UPC itself is doomed, but never mind those ‘pesky’ facts.

Desperate for a miracle, António Campinos did a photo op earlier this month, akin to this one of Battistelli and CIPA. We reproduce it below.

CIPA meeting with Stephen Jones

Compare it to this month’s Campinos photo op, begging for UPC in defiance of constitutions and many other things. Did anything at all change at the European Patent Office (EPO)? Not really. The main difference is, the media became indifferent and uncaring for EPO staff. EPO bribes and threats (directed at the media) played a role. A lot of the media is corruptible and EPO ‘slush funds’ just ‘took care of that…’

“Compare it to this month’s Campinos photo op, begging for UPC in defiance of constitutions and many other things.”It’s pretty astounding when one looks for patent news in 2020. There’s virtually nothing but press releases and statements by law firms. There’s no journalism. Almost none left.

Promoted through Mondaq by John Leeming (J A Kemp LLP, proponents of all the bad things that promote excess litigation and monopolisation) was this piece with overview of software patent cases and related cases, offering tricks for getting software patents in Europe. This is what he wrote about the upcoming T 0489/14, which might as well demonstrate that many if not all software patents granted by the EPO are junk:

2019 has been another busy year for the EPO Boards of Appeal covering computer-implemented inventions, although the most significant case has not reached a conclusion. In T 0489/14 (Pedestrian simulation/CONNOR) of 22.2.2019 questions relating to the patentability of simulations and modelling were referred to the Enlarged Board of Appeal, which has not yet set a timetable for a hearing and decision. Although the questions asked are primarily related to the narrow field of simulation of physical systems, it is possible that the answers given could have a broader impact by affecting what is considered technical.

As has been the case for many years now, the definition of “technical” remains the most significant unanswered question in this field. However, progress has been made, with several decisions developing the approach to separating technical and non-technical features by reference to the “notional business person” first expounded in Cardinal Commerce (T 1463/11) and some other decisions analysing the circumstances in which non-technical features may be considered to contribute to a technical effect.

[...]

This case is discussed in more detail in our briefing here. At the time of writing, a board has been appointed and numerous amicus curiae briefs have been filed, along with invited comments from the President of the EPO. However no timetable for oral proceedings or a decision has been set.

The majority of the amicus curiae briefs and the comments from the President of the EPO are supportive of the existing case law: that simulation or modelling of a specific technical or physical system is patentable, that the simulation has to be based on scientific or technical principles and that the same applies if the simulation is part of a design process. However, there is no guarantee that the Enlarged Board will follow this approach and previous Enlarged Boards have rewritten the questions they have been asked. It is possible therefore that the Enlarged Board will give a decision that has ramifications beyond the field of simulation.

Having said that simulation or modelling of a technical system or process is usually patentable, T 2677/16 (Drug target/QIAGEN) is a case where it was not. In this case, the purpose of the method was “identifying a drug discovery target”. A drug target is a molecule in the body, usually a protein or a gene, that is associated with a particular disease process, and could theoretically be targeted by a drug to treat the disease by interrupting the disease-related metabolic pathway. The examining division considered that the potential to produce a therapeutic effect was a sufficient technical purpose but rejected the application for lacking inventive step for not achieving that purpose. The board however held this unduly broadens the concept of a technical purpose to encompass any scientific endeavour in medicine, observing that a “drug target is not a therapy: it has no therapeutic effect, but is merely a promising direction for future research.” Thus the invention was considered to be about making discoveries, which are not patentable.

[...]

The EPO recognises the claim categories method, apparatus and product (often created by the method or apparatus) and usually considers a claim to a “system” to be apparatus (hardware). However in T 1499/17 (Pathway recognition/UC) board 3.5.05 observed that ‘claims for an “ecosystem” are unheard of. An “ecosystem” neither has an established meaning in the relevant art nor can be construed as an apparatus solely because it has the word “system” as a sub-string.’

In T 1125/17 (Parallelizing computation graphs/AB INITIO) board 3.5.06 commented, obiter, that a “computation graph meant to be executed is, essentially, a computer program.” However, the fact that such a graph may be “easier to parallelise” does not provide a “further” technical effect in the absence of a parallel execution platform in the claim. The mere potential for a speed-up by parallelization was not sufficient.

A common issue in some fields of technology is whether a claimed invention provides a technical effect across the entire scope of the claim. This issue rarely arises in the software field but two cases raised similar issues in 2019. T 2223/15 (User-configurable multi-function key entry timeout/Doro) and T 1882/17 (Malware detection/QUALCOMM) refused cases for not demonstrating that a technical effect “is credibly achieved over essentially the whole scope of protection sought”.

In T 1164/15 (Printer colorant usage/IPC) the application was rejected because ‘the claimed printer controller is defined solely as a “black box” rather than specifying its essential properties for actually finding an optimised trade-off’.

All the above are computer programs, but the lawyers try really hard to find ways to justify these. They don’t care what the law actually says, only what their clients want.

“They don’t care what the law actually says, only what their clients want.”And speaking of these patently dishonest law firms, watch what the law firm Novagraaf has just published. The piece by Oliver Harris (“Lessons from CRISPR: Getting your European priorities straight”) has just been boosted in Lexology — possibly for a fee — and the piece is making it sound like a mere formality — something to be easily overcome by tricks — was the reason CRISPR patents are rejected. But no, the lesson is that CRISPR patents are junk and worthless, hence should not be pursued anymore.

Harris is not a journalist; his boss is a patent maximalist, so he said: “In a somewhat dramatic twist, the Board of Appeal indicated during the oral proceedings that it might refer the matter of priority to the EPO’s Enlarged Board of Appeal, only to decide a day later that it could deal with that matter without such a referral. Ultimately, the Board re-affirmed the EPO’s ‘all applicants’ approach to valid priority entitlement, whereby all applicants of a priority filing, or their successors in title, must be named as applicants on a later case, for that later case to validly claim priority to the priority filing.”

“Nature is simply not an invention.”It was not exactly a “dramatic twist” and the reason oppositions succeeded against such patents was their ludicrous nature. Patents ought not be granted on nature. Nature is simply not an invention. Modifying it a little does not make it a human invention, either.

On at least 4 occasions (4 articles) we’ve taken note/stock of the very poor level/quality of press coverage. It was surreal!

What happened to journalism? Is it unofficially over in 2020?

This morning we saw another example of this trend. A site called Labiotech issued this “press release” (that’s how it was labeled!) under its “CRISPR” section to say something (mis)labeled in the headline “Analysis” (spin would be the proper term). To quote:

A decision from the Boards of Appeal at the European Patent Office has revoked the claim of the Broad Institute to general patents on CRISPR/Cas9 gene editing technology, strengthening the position of its opponent UC Berkeley in Europe.

The Broad Institute in Cambridge, US, is one of the main contenders in the ongoing battle for the rights to the intellectual property of CRISPR/Cas9 technology, which is making gene editing easier and faster than ever before. While the Broad Institute has secured CRISPR patents in the US, the European Patent Office (EPO) revoked one of its key patents in 2018.

Now, the Boards of Appeal of the EPO have corroborated this decision. The hearings that took place in Munich last week revolved around the filing date of one of the Broad Institute’s CRISPR patents. The Broad was contending the decision of the EPO that the earlier filing date of a provisional application submitted in the US could not be considered the filing date of its patent application.

So far, so good (the introduction), but then it says “this dispute is affecting many other applications where exclusivity would not be necessary” and quotes talking point from the monopolists, claiming that it somehow harms small companies.

“The situation is paralyzing small companies.”

Really?

Then it promotes the patent troll MPEG-LA. To quote: “A solution to this problem would be setting up a patent pool, so that anyone that wants to use the technology can get a single license that covers the IP of all different parties. While the US patent firm MPEG LA has been trying to set up such a patent pool, its efforts have so far not been successful.”

“What happened to journalism? Is it unofficially over in 2020?”A pool of fake patents? Like those patents on maths that MPEG-LA uses to blackmail everyone, leveraging these bogus patents in bulk? This way it’s virtually impossible to wage a legal challenge. Overall, it became a profitable cartel.

The author, Clara Rodríguez Fernández, works only for this site (as far as one can see) and the site is a German “Trade/B2B” firm. It is more like a business front group than a publisher — consistent with the pattern we’ve been noting here for over a week.

“A pool of fake patents? Like those patents on maths that MPEG-LA uses to blackmail everyone, leveraging these bogus patents in bulk? This way it’s virtually impossible to wage a legal challenge.”Aside from the above we’ve also found more self-promotional stuff from law firms. Hours ago we found another new example, this time from DLA Piper.

There was also this paid press release about a new patent grant (drowning out any real journalism about the EPO). To quote:

Kitov Pharma Ltd. (“Kitov”) (NASDAQ/TASE: KTOV), a clinical-stage company advancing first-in-class therapies to overcome tumor immune evasion and drug resistance, today announced receipt from the European Patent Office (EPO) of a Notice of Intention to Grant for its patent application entitled “Combinations of IRS/STAT3 Dual Modulators and Anti-Cancer Agents for Treating Cancer.” The patent, which expires in 2036, covers the treatment of NT-219, the company’s novel dual inhibitor of IRS 1/2 and STAT3, in combination with EGFR antibodies and inhibitors.

One more patent among millions. Is this newsworthy? ResearchAndMarkets are once again reposting their advocacy of software patents to make sales (of seats). It’s a paid press release.

“The money is in litigation and extortion. This means that patent maximalists run the show.”This, believe it or not, pretty much sums up all one can find about the EPO in the news. Still not a single article about the strike vote, not a word about the absurdity of patents on code and nature, not a word about various scandals and blatant corruption of EPO management. Who controls the press? Wrong question. What controls the press? Money. The money is in litigation and extortion. This means that patent maximalists run the show.

01.24.20

When EPO Press Coverage Boils Down to Lobbying, Press Releases, EPO Lies, and Bribery

Posted in Deception, Europe, Patents at 5:21 am by Dr. Roy Schestowitz

Media and academia both [1, 2] bribed to toe the party line

Toeing the Line
Toeing the Line, Byam Shaw

Summary: Any attempts to properly assess and explain what happens in Europe’s patent landscape are being drowned out by EPO-bribed and law firms-connected media; to make matters worse, the EPO’s bribes have expanded to academia, so even scholarly work in this domain is corrupted by money of special interest groups

NOW THAT CRISPR patents are disallowed by the European Patent Office (EPO) — as one can infer from a BoA case that the decision extends to other patents — one can hope that software patents are next to be buried. António Campinos has openly supported these patents and in a Battistelli-like fashion pressured judges in the upcoming case concerning simulations. Just imagine the reaction if the Director of the U.S. Patent and Trademark Office (USPTO) pressured the Federal Circuit in some case concerning 35 U.S.C. § 101. Absurd, right? But apparently not in Europe…

“Where’s the proper journalism about this case? There has been almost none. We just saw many statements from monopolisers and their lawyers, not journalists. The EPO has of course not uttered a single word about this. It has been a whole week. It hopes nobody will notice; that might keep a flow of patent applications…”An advocacy site of monopolisers of life/nature is still pushing that sick old agenda (“Broad Institute presses for CRISPR settlement after EPO revocation” is the latest). Trying to “settle” using fake patents? That does not make any sense.

Where’s the proper journalism about this case? There has been almost none. We just saw many statements from monopolisers and their lawyers, not journalists. The EPO has of course not uttered a single word about this. It has been a whole week. It hopes nobody will notice; that might keep a flow of patent applications…

As it turns out, there’s also a site called European Pharmaceutical Review (not the same as the above “Review” or WIPR) churning out press releases as though they’re articles. Is this journalism or promotional marketing? Has media coverage regarding patents been reduced to “moves” (which company hired which people) and which patent is being advertised? Here’s how it reads:

Inflazome have announced that the US Patent and Trademark Office (USPTO) and the European Patent Office (EPO) have granted approval to patents for the company’s small molecule compounds that show useful activity in inhibiting NLRP3 inflammasome activation.

The patent application WO 2016/131098 will be accepted by the USPTO as US 10,538,487 on 21 January 2020 and by the EPO as EP 3,259,253 on 15 January 2020.

The pharma business currently has two NLRP3 inflammasome inhibiting compounds in Phase I trials, Inzomelid and Somalix. These treatments can be used in a range of disorders, including Parkinson’s, Alzheimer’s and motor neurone disease, where inflammation is a key factor and starts or progresses due to the NLRP3 inflammasome.

So pending appeals/opposition (we presume) some company was granted approval to one patent among tens of millions and we’re supposed to think this is “the news”?

“To manufacture an illusion of UPC “progress” Gregory Bacon of Bristows makes it seem like “decision in the “ECB bond purchase program” case on 24 March 2020″ has something to do with UPC!”It’s even more laughable if one turns to Bristows’ site, which says: “The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has announced here that its Second Senate will hand down its decision in the “ECB bond purchase program” case on 24 March 2020.”

Compare this to the misleading headline. Totally surreal! To manufacture an illusion of UPC “progress” Gregory Bacon of Bristows makes it seem like “decision in the “ECB bond purchase program” case on 24 March 2020″ has something to do with UPC! Because of a judge’s name!

The EPO has meanwhile tweeted: “The first results from our Academic #Research Programme are now available. They offer new insights into the #patent system.”

“Anything the EPO touches turns to something awful.”This links to the latest spammy ‘news’ item (warning: epo.org link), wherein the EPO now brags about bribing scholars to manufacture propaganda for patent maximalists. When did the EPO become a propaganda department rather than a patents assessment branch? The EPO is as proud about bribing academia as it is about bribing the media (as it does, a lot).

When the EPO says “Academic Research Programme” it simply means a programme for legitimising bad EPO policies and practices by means of bribery offered to corruptible/desperate scholars. The opening paragraphs are presenting Battistelli’s mate (Ménièr) as some sort of genius and bribery of academia as some sort of ‘charitable’ act. To quote:

The EPO has published six research reports developed with funding from its Academic Research Programme. The research used patent data to investigate topics such as financing for innovation, knowledge transfer, trade, tracking inventions in the marketplace, and the growth of technologies to tackle climate change. Grants totalling €300 000 were awarded for the six projects in 2017, with the researchers presenting their final results at a workshop hosted by the EPO in Munich last month.

EPO Chief Economist [sic] Yann Ménière, who chairs the programme’s scientific committee, said: “The impact of the patent system on industry, society and the economy raises important questions for policymakers. Careful, robust, peer-reviewed academic research can often be the best way to get answers. The insights these new results give us into different aspects of the IP ecosystem and the functioning of innovation cycles can be very useful to the EPO, other researchers, and innovators alike.”

As they’re funded by the EPO, of course there’s expectation that they will “toe the line” and exploit the veneer of “academia” or “research”. A number of years ago we took note, on several occasions, of the corrosive effect it has on academia. It erodes trust and breaches a number of rules. Anything the EPO touches turns to something awful.

01.23.20

The Patent Microcosm is Really Panicking as European Patents on Life and Other Spurious Junk (Invalid Patents) Are Successfully Rejected

Posted in Europe, Patents at 8:04 am by Dr. Roy Schestowitz

The Boards of Appeal said the N word (“No”)

European Patents? No, Invalid Patents

Summary: European Patents (EPs) may be revoked en masse if what we’re seeing is the gradual emergence of ‘European Mayo’ (and maybe soon ‘European Alice’)

NOT A day goes by without the U.S. Patent and Trademark Office (USPTO) granting software patents. Not a day goes by (OK, maybe except Christmas) without US courts squashing such patents using 35 U.S.C. § 101/Alice; we’re citing some new examples in our Daily Links almost every day, sometimes several times per day.

When António Campinos came to the top floor in Munich Team Battistelli was ready to tell him that software patents were perfectly fine to grant. That’s a lie. It is the sort of lie Team UPC tells us. It’s also the same lie that Campinos told the Boards of Appeal some months ago.

“Some applications definitely need to be rejected. What’s the point having exams that everyone passes? Or everybody aces?”Watchtroll, which is like a peripheral propaganda arm of Team Battistelli (speaking to their staff to manufacture puff pieces), is at it again this week. Yesterday’s “Eight Tips to Get Your Patent Approved at the EPO” by Watchtroll’s Gene Quinn is the latest reminder that patent zealots — notable pushers of software patents in Europe — push the European Patent Office (EPO) to be a patents-granting machine rather than a decent examination center which values quality (or legal certainty). Quinn says: “Vague descriptions that leave open ambiguities will typically lead the EPO examiner to determine that your application is not satisfactory for grant regardless of the magnitude of the innovation.”

As if the sole problem is rejection. Some applications definitely need to be rejected. What’s the point having exams that everyone passes? Or everybody aces?

“There’s no “Loss of Patent Rights in EPO on CRISPR” because there were no such “rights” in the first place. It’s an error.”Anyway, the zealotry extends further this week. David Hricik should know better, for example that patents are not rights and nobody has a “right” to own the concept of life and nature. Yet watch the title he has just published. He then said: “The Board of Appeals at the EPO held on January 17, 2020 that the EPO patent on CRISPR gene editing technology was revoked for lack of novelty because it could not claim priority to a US provisional application.”

He actually cites Carl Oppedahl, not those who are patent rationalists. He should know better, he apparently used to work for the Federal Circuit in some clerical position (if memory serves correctly). Well, typically we’ve seen good posts from Hricik, who focuses on ethical issues. Get well soon, Hricik, and kind regards!

There’s no “Loss of Patent Rights in EPO on CRISPR” because there were no such “rights” in the first place. It’s an error.

“This will have ramifications worldwide. Expect this decision to be mentioned for weeks if not months to come.”The totally one-sided coverage by law firms and patent fanatics (about this decision regarding CRISPR patents — a subject we covered thrice before) can only contribute to the perception that media is nowadays dead, or a zombie of the PR industry.

Law360 has meanwhile published “European Appeal Board OKs Revoking Broad CRISPR Patent” and it is surprisingly balanced (albeit behind paywall). To quote:

The European Patent Office Board of Appeal has greenlighted a decision to revoke a Broad Institute patent covering the breakthrough gene-editing technology CRISPR.

The EPO's opposition division had revoked European Patent No. 2771468 two years ago saying it wasn't novel, and the appeal board on Thursday dismissed the Broad Institute's appeal of that ruling. The board said a decision with its reasoning will be issued "in due course."

In a statement, the research institute associated with Harvard and the Massachusetts Institute of Technology said the decision was based on a "technical formality" tied to its provisional patent application in the U.S…

This will have ramifications worldwide. Expect this decision to be mentioned for weeks if not months to come.

Hricik’s ‘boss’ at that blog meanwhile persists with the same old nonsense (“This week in Property: Efficient Infringement” is the headline, but it is not “Property”). Dennis Crouch’s latest post promotes the slur of patent extremists: “Efficient Infringement”

“Notice they’re citing Koch mouthpieces such as Adam Mossoff. What a horrible sight.”What does he hope to accomplish? No idea, but it makes Patently-O seem no more moderate than Watchtroll. Maybe Patently-O has jumped the shark as well..

To quote: “Steenburg Homes argued that this is a case of efficient infringement. Although it was trespass, the company should only have to pay for the harm it caused.”

Wow. It’s being compared to “trespassing”? Or sometimes “piracy”? Why not claim that patent infringement is the moral equivalent of murder and advocate for death penalty (for patent infringement)? Notice they’re citing Koch mouthpieces such as Adam Mossoff. What a horrible sight.

“When it comes to patents, sometimes less is more.”Speaking of bad media, another EPO mouthpiece, WIPR, is now speaking for patent zealots, amplifying their “global warming is a scam” moment (‘patent troll myth’ — same line of thing Iancu did about a year ago).

The summary is just megaphone for Mingorance, followed by: “The head of a corporate alliance that includes Nokia and Ericsson has urged the EU to beware the so-called ‘patent troll myth’, which he said has “little basis in fact”.”

“Mingorance, or goodbye to freedom of programming” is how Henrion put it.

“An idea,” he also joked would be to “flood the patent system with AI generated patents…”

When it comes to patents, sometimes less is more. More quality, more legal certainty and so on.

01.22.20

Poor Excuses for Granting Poor (and Often Illegal/Invalid) Patents

Posted in Deception, Europe, Patents at 2:24 am by Dr. Roy Schestowitz

Illegal/Invalid Patents (IPs) don’t make the system stronger but weaker

Let them eat patents. All the world's problems will be solved by more patents.

Summary: A quick look at some of the latest examples of software patents advocacy (not by actual software professionals, obviously) and why it’s deeply misguided (or guided solely by greedy law firms)

THE PUSHESR of what’s called “stronger” (or STRONGER) “patent act” in the US don’t care about the strength of patents. They care about the contrary and push for the very opposite. They just want the U.S. Patent and Trademark Office (USPTO) to grant loads of software patents that courts reject anyway.

“In practice, however, they merely grant monopolies in technology that can reduce pollution.”The same is true for the European Patent Office (EPO), where António Campinos — like Battistelli before him — measures ‘strength’ in terms of so-called ‘productivity’. Not quality, not examiners’ skills, not validity rates (or rates of European Patents being upheld by courts). It’s hardly surprising that Campinos shamelessly lobbies for software patents in Europe. That helps him fake ‘production’…

In order to pretend that the EPC does not exist (like 35 U.S.C. § 101 in the US) they resort to misleading, novelty-sounding buzzwords such as “hey hi” (AI). To deny patents on this “hey hi” would surely be a denial of progress and amazing novelty, right? The media speaks about “hey hi” day and night, especially more so since 2017 or thereabouts (it boils down to superficial, faked hype).

Another pattern of EPO propaganda has recently been greenwashing. They pretend that their patents somehow “save the planet…” (no, they seriously try to imply that!)

In practice, however, they merely grant monopolies in technology that can reduce pollution. As we mentioned in an earlier post of ours, there’s a new example of this which is promoted in a misleading fashion. For instance, the article “SeaTwirl Granted European Patent” (from North American Windpower) says: “SeaTwirl, a producer of floating wind turbines, will be granted a patent for a divisible wind turbine by the European Patent Office (EPO). SeaTwirl has already been granted the same patent in Sweden, the U.S. and China. [...] SeaTwirl is working strategically to build a broad patent portfolio. By protecting technical solutions that make the wind turbines cheaper to build and maintain, the company strengthens its market position, notes SeaTwirl.”

How does a monopoly make things cheaper? The opposite is true. But never let “green” stunts slip away, right?

The National Law Review has just published this new piece from a giant law firm (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C). The piece mentions the EPO’s position on so-called ‘AI’ patents and notes that “IEEE-USA urged the USPTO to focus on correcting the problems facing all computer implemented technologies as a primary approach to providing strong patent protections to AI based inventions.”

Well, IEEE is at least consistent in his anti-software developers stance. We’ve long warned about IEEE pushing illegal software patents and it seems rather clear that IEEE does not represent engineers. Here are some portions: (it’s about input sent to the US patent office)

The European Patent Office (EPO) has refused two European patent applications that designated an artificial intelligence called DABUS as the inventor, following a non-public hearing on November 25, 2019. The EPO has not yet published its reasons for refusing the applications but merely stated that “they do not meet the requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, not a machine.” The refusal refers to Article 81 and Rule 19 of the EPC. The EPO further noted “A reasoned decision may be expected in January 2020.”

[...]

Institute of Electrical and Electronics Engineers (IEEE-USA): IEEE-USA urged the USPTO to focus on correcting the problems facing all computer implemented technologies as a primary approach to providing strong patent protections to AI based inventions. IEEE suggested looking to other areas of IP law for models as it relates to inventorship. For example, the IEEE cited Naruto v. Slater (“monkey selfie case”) which denied a monkey copyright authorship of a selfie taken by the monkey. The rulings were based in part on the constitutional authorization to reward human authors and inventors. Accordingly, the IEEE also believes that AI cannot be inventors.

A reader has meanwhile alerted us about this upcoming ‘course’ from the patent zealots of ResearchAndMarkets (who also push UPC lies). Surely they know that software patents are disliked by programmers and are also illegal in Europe but that does not discourage them. Their target audience is law firms and they say: “This intensive one-day event will help you to understand the development strategies impacting software patents and update you on the major developments in European patent law, in particular, GUI inventions and ‘mixed’ inventions with both patentable and non-patentable subject matter.”

Those old loopholes of combining algorithms with something like a “device”; it’s a popular kind of loophole and we’ve seen that in New Zealand and in India. Just to be clear, patents on algorithms are still forbidden in India, but Spicy IP (a site whose founder died last year) is still peddling old myths, promoting such patents even though software developers — many of whom live in India — do not want software patents (and that’s all that matters). Their introduction says: “Who would have thought a Tunisian citizen would end up having a couple of major impacts on the Indian IP landscape?” (Correction below)

So what’s their excuse for advocacy of software patents? To quote: “In today‟s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become non-patentable inventions – simply for that reason. It is rare to see a product which is not based on a computer program. Whether they are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all have some sort of computer programs in-built in them. Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability.”

They’re basically squeezing a bunch of buzzwords in there, arguing that because those buzzwords are used in relation to lots of things it is therefore “innovative” and deserves a patent.

So, in summary, anything that is “green” and “widespread” — tell us the patent maximalists — needs to be patented, irrespective of underlying law, economic rationale, and so on.

Correction: There was a misunderstanding. The author at Spicy IP has stated or clarified that “the point I’ve made through that post, is that the court order is flawed and is unnecessarily favouring “software patenting”…”

The pro-software patenting position is contained in that post not as a form of endorsement; it is the writer showing what others have said.

01.21.20

Media Reactions to the EPO Coming to Grips With Fake Patents That It Granted (Spoiler: the Media is Controlled by Lawyers of Monopolists and EPO Partners)

Posted in Deception, Europe, Patents at 9:43 am by Dr. Roy Schestowitz

Invalid Patents (IPs) or European Patents (EPs)? Let the spin begin…


‘Free’ propaganda

Summary: Appalling quality of reporting and truly awful bias in the media, primarily owing to the fact that it is dominated/manned not by actual reporters but the firms looking to patent life itself; they use their lawyers and operatives who are literally funded by these lawyers (wearing “journalist” badges to mislead)

TODAY’S European Patent Office (EPO) repeats all the same mistakes made by the U.S. Patent and Trademark Office (USPTO), which celebrates reduced patent quality this week (it’s all over the news and in our Daily Links too).

Non-scientists like António Campinos and Battistelli want us to believe that “success” means more patents and vice versa, neglecting — perhaps intentionally — to take account of what patents actually are. Iancu flagrantly snubs 35 U.S.C. § 101 and Campinos happily violates the EPC when he lobbies judges to allow software patents in Europe.

“When they say “inventions in the field of AI” they mean algorithms. They mean code with some logic in it.”World Intellectual Property Review (WIPR), a mouthpiece of the EPO (it wasn’t always like that, but staff changed), has just parroted the puff piece of Campinos, Iancu and others. They’re pushing the “hey hi” (AI) nonsense. To quote: “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.”

When they say “inventions in the field of AI” they mean algorithms. They mean code with some logic in it.

But let’s brush aside the whole controversy about those abstract patents and focus on what happened in Munich Haar last week. Many EPO patents that had been illegally granted on nature and life came under scrutiny. A large portion of these patents and all CRISPR ones have just been rendered worthless and the EPO still says nothing about it. It is a lying institution that deserves no respect.

Did it speak about it yesterday? Nope. Instead this: “Want to know what can be patented in #biotech? Join us for this event in Zurich” (it did the same around the time of the above decision).

So the EPO is happy to lie when it needs to distract from its law-breaking. When law-breaking becomes more visible the EPO says nothing. As we noted earlier this week, this CRISPR patent battle was only covered by monopolists and their mouthpieces. There has been virtually no journalism about this. Quickly came IAM out of the gate, with its Life [sic] sciences [sic] reporter [sic] Adam Houldsworth, basically a lobbyist for the monopolisers of life and nature (they pay him for it).

Then there was BioNews (UK), where Dr Yvonne Collins wrote:

The European Patent Office (EPO) announced that it will uphold an earlier ruling to retract a key CRISPR/Cas9 genome editing patent held by the Broad Institute of Harvard and MIT, Massachusetts.

The EPO Board of Appeal reversed its earlier decision to refer the case to a higher panel, and stated that it would uphold the 2018 ruling of the EPO’s Opposition Division to cancel the Broad Institute’s patent for failing to prove novelty and a valid priority claim.

The EPO panel concluded that:

‘This prior art became relevant because the opposition division did not acknowledge the patentee’s claim to priority from a US provisional application naming more applicants than the subsequent PCT application [Patent Cooperation Treaty application- this is the application that was made to the EPO] from which [the patent] is derived. Since the omitted applicant had not transferred his rights to the applicants of the PCT application the priority claim was considered invalid.’

Mondaq, a propaganda outlet of law firms (connected to IAM), is still posting nothing balanced at all. Aside from this latest litigation jingoism from Francois Pochart, Elodie Bardon and Lionel Martin (August Debouzy) it posted Broad’s CRISPR/Cas9 Patent EP2771468 Revoked By The European Patent Office by Lisa A. Haile. Check affiliation. To quote:

In the ongoing CRISPR patent battle, after four days of oral arguments, it was announced today that the European Patent Office’s (EPO) Technical Board of Appeal (Board) upheld the earlier EPO Opposition Division ruling from January 2018, stating that Broad Institute’s European patent EP2771468 is not novel and therefore fully revoked.

The Board confirmed the prior decision, finding that all claims of the Broad Institute’s patent for gene editing were invalid because the Broad Institute was not entitled to its earliest priority dates and therefore the claims lacked novelty in light of prior art. Thus, all claims of the Broad Institute’s patent remain fully revoked and the Opposition Division’s decision to revoke the patent is now final.

Where are the non-lawyers? This whole thing was mentioned by almost no scientists. The case was followed closely and subjectively by an attorney from AstraZeneca at IP Kat and yesterday we saw this article about AstraZeneca leveraging dubious European Patents against generics:

AstraZeneca is the holder of European Patents EP1250138 (EP’138) and EP2266573 (EP’573), which claim an intramuscular formulation of fulvestrant for the treatment of breast cancer. EP’573 is a divisional of EP’138 and both patents will expire on 8 January 2021.

AstraZeneca is also the holder of Patent EP1272195 (EP’195), which claims the use of fulvestrant for the treatment of a sub-type of breast cancer patients. This patent expires on 2 April 2021.

In July 2017 AstraZeneca sued Teva for alleged infringement of the formulation patents EP’138 and EP’573. It also requested and was granted an ex parte preliminary injunction. In January 2018 AstraZeneca sued ratiopharm for infringement of the same patents, plus use patent EP’195.

In parallel, in May 2017 the European Patent Office (EPO) Opposition Division revoked the divisional EP’573 due to lack of inventive step; AstraZeneca’s subsequent appeal was pending.

We’re still trying hard to find an actual investigation of what’s at stake, but it’s Googlebombed to death by lawyers of monopolists striving to ‘own’ all lives and nature. Misfiled under “European Union” was this piece by Christopher Wilkins (Dehns, Team UPC) entitled “CRISPR Patent Portfolio Edited: The Broad Institute Has Lost Its Appeal On A Key CRISPR Patent In Europe…”

“As I have discussed previously here,” he said in a blindly promotional fashion, “CRISPR-based techniques have revolutionized the field of gene editing in recent years. The Broad Institute is at the forefront of this technology and holds many of the original patents. However, the validity of some of those patents has been challenged at the European Patent Office (EPO) and developments this week are a blow to the Broad Institute’s patent coverage in Europe.”

So what? Are they your client? Or similar to them?

Speaking of the misfiling under “European Union”, this morning Benjamin Henrion wrote: “Still no answer on why the EPO, who will grant the Unitary Patent, is still not following the “rule of law” principle, and cannot be taken to court for maladministration.”

How come the EU’s rules are being ignored by the EPO? Need it be mentioned that the Unitary Patent is an EU system?

Can the EPO persist in this existence without any oversight whatsoever? This morning the EPO tweeted about its close connections to the EUIPO (EU), but later they tell us that the EPO has nothing to do with the EU.

It might also not help the EPO that the title “SeaTwirl Gets EU Patent” has just been published (along with “European Patent Office Nods to SeaTwirl”). Too many still think that EPO is EU (even applicants and journalists). The EU had already said “no” to such patents (patents like CRISPR) a long time ago, including last summer, but the EPO carried on ignoring it.

01.20.20

European Commission Pushes for Even Greater Patent Maximalism Instead of Rationality, Patent Zealots’ Site Cherry-Picks China as Whipping Boy

Posted in Deception, Europe, Patents at 12:11 am by Dr. Roy Schestowitz

The original paper is here [PDF]

European Commission's paper
The opening page with amendment noted

European Commission's paper index
What the report actually covered

European Commission's paper on China
How patent propagandists framed it all (this site is very often used for EPO propaganda, since the Battistelli days)

Summary: Fear of China is being leveraged to promote an agenda of patent maximalists; the general idea they promote is that granting millions of low-quality patents is the only way to compete, even if in reality that merely handicaps the whole market

THE previous post bemoaned (yet again) the state of journalism — if any still exists — when it comes to patents. Almost all coverage is just lobbying and propaganda of litigation firms. One can even follow the money and reassure oneself that it is funded by them.

Based on the above report, one gets the impression that the EU acts as mouthpiece for patent maximalists including the European Patent Office (EPO). It uses an image of António Campinos and says “Poor IP [sic] protection [sic] in China causes ‘irreparable harm’ to EU companies” (the same line habitually used by US litigation giants…)

“To ignore the sheer number of Chinese patents — no matter their low quality — is to be dishonest to oneself.”It’s actually easier to get software patents in China than in Europe (despite deviations from the EPC) and in the USPTO (despite 35 U.S.C. § 101 being snubbed by Iancu) and even the litigation giants say so. In the area of copyrights, China also went further than the West and allowed copyright coverage of computer-generated stuff (it was all over the news earlier this month and they called it “Hey Hi”).

To ignore the sheer number of Chinese patents — no matter their low quality — is to be dishonest to oneself. The real issue isn’t China but the declining quality of patents in the West. The other day there was this press release about a mere patent grant that said:

Synedgen, a biotechnology company using glycochemistry to develop drugs that enhance and mimic the innate immune system, today announced the award of a new patent by the European Patent Office (EPO), covering aspects of the treatment of mucositis in the gastrointestinal (GI) tract with Synedgen’s glycopolymer platform of molecules (EP 2555760).

We never see any press releases (at all) bragging about the Chinese patent office granting a patent. Why? Because it’s widely considered to be a very weak yardstick of merit. Now, to be fair, the same is becoming true when it comes to European Patents because the EPO nowadays follows the trajectory of China. If these patent maxmalists get their way — owing in part to alarmist nonsense like the above — patents as a whole will lose their legitimacy (and value). What good — or what source of pride — is a patent if millions get one each year? The problem isn’t China; the problem is patent scope.

01.19.20

CRISPR Patents Disallowed, But Where Are the Journalists?

Posted in Deception, Europe, Patents at 11:29 pm by Dr. Roy Schestowitz

Journalists and corporate pressure groups are not the same thing

CRISPR patents; Because reproducing is 'stealing'
The Shark Tank patent meme

Summary: The narrative surrounding last week’s decision against CRISPR patents may have been virtually monopolised by the litigation think tanks and law firms; it certainly feels like no journalism is left to rebut them, fact-check, and introspect

THE European Patent Office (EPO) has spent more than half a decade lowering patent quality. Ask EPO examiners. They’ll say so off the record (for fear of retribution they won’t say so openly and publicly).

It didn’t start with Battistelli, but it became far more profound under Battistelli and it continues to get worse with António Campinos, who intervenes in legal cases (more recently in support of software patents in Europe).

In the U.S. Patent and Trademark Office (USPTO) and even more so in American courtrooms we’ve seen Alice and Mayo routinely used — via 35 U.S.C. § 101 — to squash patents on naturally-repeating/recurring phenomena and maths. That’s just common sense, isn’t it?

“Last year the opposition/s folks at the EPO came to the conclusion that CRISPR patents are impermissible and days ago the EPO judges doubled down on that decision.”Here in Europe it’s possible that later this year EPO judges will reject a lot of software patents by deciding on a ‘simulation’ patent; it won’t be a European ‘Alice‘ because the level of EPO tribunals is nowhere near that of SCOTUS in the US. But that can be a start

Last year the opposition/s folks at the EPO came to the conclusion that CRISPR patents are impermissible and days ago the EPO judges doubled down on that decision. That’s a pretty big deal with wide-ranging ramifications. Having surveyed all the EPO-CRISPR news I was able to find, it seems clear to me that no journalism exists anymore in the area of patents. It’s all just pressure groups and press releases of large corporations. It’s grotesque; prove me wrong/show otherwise…

Before this decision, roughly a week beforehand, Jamie Atkins and Claire Weston (Kilburn & Strode LLP) published CRISPR priority appeal – What you need to know ahead of the hearing. This links to their site (of course) and says: “Arguably the highest profile appeal at the EPO in recent years (T 0844/18) will be heard before the Board of Appeal in Munich on 13-17 January 2020…”

One can guess whose side Kilburn & Strode LLP takes; they’re a litigation giant, so the more patents, the merrier (to them anyway).

Back in December we saw some shameless self-promotion by Sterne, Kessler, Goldstein & Fox P.L.L.C., under the giveaway headline: “Prosecuting Bioinformatics Patent Applications in Europe” (the only “bio” they care about it “bio-litigation”).

Yesterday’s IAM blog post said: “This week, all eyes are on the EPO Boards of Appeal’s oral proceedings in T0844/18, the Broad Institute’s appeal against the revocation of its key patent on CRISPR-Cas9.”

Life Sciences Intellectual Property Review, a site whose sole purpose seems to be advocacy of such patents, wrote a lot about it throughout the week [1, 2, 3].

Except a couple of blog posts, which were cited here a day ago, I’ve found nothing else but this mainstream media piece behind a paywall. It said: “The saga over who owns the valuable patents that cover CRISPR/Cas9 gene editing took a new turn this week with a court decision that goes against the Broad Institute of Harvard and MIT and two local startups.”

There are paid press releases, such as this one: (Yahoo, Business Wire)

ERS Genomics Limited, which was formed to provide broad access to the foundational CRISPR/Cas9 intellectual property held by Dr. Emmanuelle Charpentier, announced that yesterday the European Patent Office’s (EPO) Technical Board of Appeal (Board) upheld the earlier EPO Opposition Division ruling that the Broad Institute patent EP2771468 is not formally entitled to a number of its asserted priority dates and all its claims are therefore not novel and fully revoked.

EP2771468 is viewed as the Broad Institute’s foundational CRISPR-Cas9 patent in Europe. In January of 2018 the Opposition Division found that all claims of the Broad Institute’s patent were invalid because the Broad Institute was not entitled to its two earliest priority dates and thus the claims lacked novelty in light of prior art. The Broad Institute appealed the Opposition Division’s decision, which the Board affirmed yesterday. Thus, all claims of the Broad Institute’s patent remain fully revoked with no option left to overturn this decision.

So there’s panic among patent zealots looking to ‘own’ all lives; they panic because even EPO judges explain that patents on life are fake, bogus, invalid patents.

GenomeWeb, a patent maximalism site focused on that domain (their track record suggests so always), said this:

The European Patent Office (EPO) Board of Appeal has upheld the revocation of a Broad Institute CRISPR patent in Europe.

The Science Board wrote:

An important patent on CRISPR technology held by the Broad Institute has been revoked by the European Patent Office (EPO).

On January 16, the EPO’s Technical Board of Appeal upheld a previous ruling in 2018 that the Broad Institute’s EP2771468 patent was not novel and therefore should be revoked. EP2771468 is seen as the institute’s foundational CRISPR-Cas9 patent in Europe, noted a release from ERS Genomics.

The Broad Institute had appealed the earlier decision, saying the issue related to the “current interpretation of rules that dictate what happens when the names of inventors differ across international applications. This interpretation affects many other European patents that rely on U.S. provisional patent applications, and is inconsistent with treaties designed to harmonize the international patent process, including that of the United States and Europe,” according to background information about the patent.

Notice how nobody bothers explaining why such patents are so troubling and problematic. These monopolists are shedding a tear this weekend because there were planning to turn organisms into ‘private property’ and it’s not quite working as they hoped.

How long will it take for a real article to explain all this? We’ll watch closely…

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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