Summary: The EPO's push for UPC, which has already involved payments to media and academia, is spreading to the EU, which unfortunately fails to uphold the Rule of Law and the spirit of the EPC

THE EPO, having recently corrupted academia for some UPC propaganda, managed to convince the European Union (Horizon 2020 research and innovation programme to be specific) to promote the lies, dubbing these "[a] new study [sic] concerning the Unitary Patent..."

The EPO has also just repeated the lie it told earlier this week. "These findings confirm that the fragmentation of the current European #patent system is a persistent gap in the completion of the European Single Market for #technology," it said. The EPO is wrong again. It did not bother asking actual technology companies. Sovereignty or assumption of innocence is not "fragmentation", it's due process. And either way, technology companies do not want the UPC. Many have signed a petition against it. There's a legitimate fear that UPC would usher in software patents, among other patents that are not acceptable in pertinent nations based on their national patent law. The UPC can be viewed as a Trojan horse that overrides -- not just bypasses -- rational patent scope.

"Patent maximaklism at the EPO has become a disease that insiders -- notably examiners -- routinely complain about."What about patents on life? Hazel Ford from Finnegan, Henderson, Farabow, Garrett & Dunner LLP has just published this article (actually, self-promotional marketing piece) that speaks of "Natural Products" (product of a process) being patented. Sure, go ahead and compare nature to "products" (industrial term) in order to sell/promote patents on just about everything.

She points out that the USPTO is rightly restrictive on this matter and then addresses 'perils' (to lawyers) associated with the EPC, which the EPO ignores anyway. To quote:

There is currently a significant divergence in practice between Europe and the United States when considering the patentability of naturally-occurring products. Since the Myriad decision of the U.S. Supreme Court, the USPTO has started to reject claims directed to naturally-occurring products under 35 USC ۤ101. In the European Patent Office (EPO), such objections do not generally arise.

The EPO’s position is that that merely finding a previously unrecognised substance occurring in nature is an unpatentable discovery. However, if that substance can be shown to produce a technical effect, then the naturally-occurring substance may be patentable (EPO Guidelines for Examination G-II, 3.1).

This ability to patent natural products derives from the rules of the European Patent Convention (EPC), which explicitly state that biological material which is isolated from its natural environment or produced by means of a technical process can be patented, even if it has previously occurred in nature (Rule 27(a) EPC). Similarly, although the human body itself cannot be patented at the EPO, elements isolated from the human body, including gene sequences, can form patentable inventions, even if they are structurally identical to a natural element (Rule 29(1) and (2) EPC).

In order to obtain a patent at the EPO to a product that occurs in nature, the claim must specify that the product is isolated from its natural environment, or it must make it clear that the product as claimed was produced by a non-natural process.

Patent maximaklism at the EPO has become a disease that insiders -- notably examiners -- routinely complain about. UPC is a danger because it extends enforcement -- not just patent-granting -- to nations that would otherwise reject these patents based on national, rational law (evidence-based). The UPC needs to be stopped before any real damage is done to Europe's productive industries; thankfully, the UPC is stuck, probably for good. ⬆