Allegations Online: The EPO's Courts Are Just Mock Tribunals That Seek to Authorise Illegal Practices of EPO Management
Truly rotten system
LAST year the corrupt regime at the EPO openly celebrated the creation of illegal and unconstitutional tribunals in the EU, albeit only after more than a decade of lies, bribes, and various types of while-collar crime. Where is the EU's 'Navalny'? This abuse at every level wasn't about justice, it was about money - namely money that can be grabbed from ordinary Europeans for the benefit of some vicious, greedy law firms and multinational corporations.
A few years ago we ran a series about what had become of the EPO's internal tribunals, which were basically acting like "yes men" of the corrupt regime. It's what one might expect to find in Russia, not the EU, but things change. The legal system has deteriorated to benefit the few, who control the political systems, the political parties, the media, legislation, judges and so on.
Earlier today we saw some interesting comments regarding the BoA at EPO. One comment said: "What strikes me in the various decisions supporting a requirement to adapt the description to the claims is that a variety of different justifications are cited. There's Art. 84 itself, there's Art. 69 and the Protocol, as well as Rule 43 and Rule 48. These decisions can't even agree on the legal basis in the EPC for adapting the description - because there is none. Instead, they're all just grabbing at straws, trying to find an excuse to continue a practice that the EPO, in contrast to every other patent [monopoly] office in the world, for some reason thinks is absolutely critical to legal certainty for third parties."
There are some more comments there to that effect. "Like often at the EPO," one said, "the pendulum has swung happily in the other direction and it is manifest that some of the amendments carried out in the communication under R 71(3) were unreasonable, if not pedantic."
Here's the full comment:
Anonymous of Monday 21 October 2024 at 15:21:00 GMT+
If you have read my comment carefully you will undoubtedly see that I have given a legal basis for the adaptation of the description: Art 84, support of the claims. If you had not realised, Art 84 has two prongs: clarity in the ordinary sense and support of the claims by the description. In view of this legal requirement, the EPO has to “engage in this discussion [even] when the claims are clear in themselves”.
On top of this, I have given two examples in which the description ought to be adapted. I fail to see any counterargument in your comment.
That EDs have become more rigorous with the adaptation of the description is the result of a survey that at grant, in a significant number of cases, the description was not adapted to the amended claims. Like often at the EPO, the pendulum has swung happily in the other direction and it is manifest that some of the amendments carried out in the communication under R 71(3) were unreasonable, if not pedantic. This is certainly not acceptable, but it does not free the EPO and the applicants to abide by the EPC as it stands.
I agree that “The EPO is responsible for the examination part of the patent, and with the exception of opposition, everything else post-grant will be dealt with by national courts or the UPC”. With the EPC as it stands, the bare minimum for the EPO is to deliver or maintain patents in accordance with the EPC.
An broad claim need not be unclear. That Art 84 has not been considered as a ground of opposition was due to the fact that some twisted minds could always find claims unclear. The UK delegation at EPC 2000 has attempted again to introduce Art 84 as a ground of opposition. This was not followed by the other contracting states for the same reason.
In T 447/22, commented in my blog, the board held that in view of G 3/14, there were limits of the adaptation of the description after amendment in opposition. A pre-existing inconsistency cannot be removed in opposition. The adaptation of the description has to be limited to the amendments of the claims allowing maintenance.
“Roche has decided to object to this trend and has successfully pushed back on it more than once” This is correct, Roche has found an open ear with one specific legal member. Beside the decision of this legal member, I have found little more decisions besides the present one, i.e. T 1989/18 and T 1444/20, all three drafted by the same legal member, T 2194/19, which is also unconvincing, and T 438/22, which considers that claim-like clauses do not have to be deleted. Those few decisions weight little compared to the bulk of decisions requiring the adaptation of the description.
Another comment said: "Most representatives did not complain because they did not see the need to risk delaying the grant of their clients' patents."
The full lot:
Where is the legal basis? It's great to read that you disagree with the decision, but your main counter-argument seems to be that it was done similarly in the past, and therefore, it should be legal. No legal basis was provided except for an extension of what Article 84 could potentially be used for.
This requirement to amend the specification has only recently started to be applied more rigorously by the EPO (5 years). Most representatives did not complain because they did not see the need to risk delaying the grant of their clients' patents. In contrast, Roche has decided to object to this trend and has successfully pushed back on it more than once.
The question that remains for me, and that you have not addressed, is why the EPO would want to be involved in a step where there is no clear basis for it. The EPO is responsible for the examination part of the patent, and with the exception of opposition, everything else post-grant will be dealt with by national courts or the UPC. So, why should the EPO engage in this discussion when the claims are clear in themselves?
If the requirement to amend the specification to reflect the allowable claims should allegedly be based on Article 84, why is it not an opposition ground? In the travaux préparatoires, the only reason Article 84 was advocated to be added to the grounds of opposition was to avoid overly broad claims that were not supported by the specification.
If this does not clearly show why Article 84 was never intended to be used in the way you suggest, then it is true that nothing said by any board will convince you that this practice by the EPO is going beyond what they need to do.
Let this be a reminder that the EPI operates outside the rule of law, it breaks the law, and judges in the area of patents became merely 'some formality', informally given a seat just to serve the rich and the powerful (sometimes they work in private firms at the same time they act as judges!).
Get well soon, Europe. █