Bonum Certa Men Certa

The Corcoran Incident Demonstrates That the EPO's Boards of Appeal Are Threatened and Battistelli Violates Laws

As the Boards themselves are sometimes courageous enough to note

A shocked Battistelli



Summary: The ongoing refusal to obey the rulings of judges (regarding an illegal attack on other judges) shows the Battistelli regime for what it truly is (necessitating immediate removal of immunity)

LAWLESSNESS at the EPO has become so routine that it's almost banal now. It's the new norm.



We have just uploaded a local copy of the document regarding immunity and issues associated with it (published earlier this week and mentioning the EPO extensively). It was covered yesterday in relation to Battistelli's war against justice and against the EPC. This war carries on. It even intensifies further, albeit somewhat covertly (they just keep uttering sound bites like "perception of independence" while sending judges to exile).

We now have two separable but related issues: 1. the EPO breaks laws and; 2. it does not obey the courts, either (when found to have broken laws). It's not even obeying ILOAT and it's sending Corcoran to exile. We wrote three articles about it so far [1, 2, 3] and some media belatedly takes note. The only new bit of information there is that Corcoran is being given only weeks' notice. This cites a letter:

In a letter addressed to the heads of delegations of the administrative council, the EPO’s Central Staff Committee said that the office had informed Corcoran he would be “permanently transferred in February 2018 to a post of senior expert in classification expressly created for him in The Hague”.

The committee argued that “transferring [Corcoran] to a country in which he had never lived is a further burden for him and his family”.

The committee also argued that the office “did not fulfil its duty of care by assessing medically whether the employee was fit for a transfer. For medical or personal reasons, the employee may have to refuse to be transferred and in such case the President may decide to terminate his service”.


If anyone could send us a copy of this letter, we would appreciate it. Without media/public scrutiny, justice remains "in the dark" and can thus never be assured. The same goes for patents.

On another topic, oppositions at the EPO are soaring and even SUEPO took note of it earlier this week (citing the Haseltine Lake research which we cited over two week ago). Onxeo has just paid for a press release to brag about "Intent-to-Grant Notice," but what are the chances of oppositions on the way? At a pace of about 4,000 oppositions per year now (it used to be far less) certainty for patenters is rather low. The latest-high profile example is Broad Institute's CRISPR patent. There are "differences between U.S. law and the EPC regarding a priority determination," Patent Docs has just said, noting the relevance to the EPC and Paris Convention (a subject of debate at IP Kat's comments). To quote:

The interference between the Broad Institute and the University of California/Berkeley has been in the spotlight over the past year (see "PTAB Decides CRISPR Interference -- No interference-in-fact"; "PTAB Decides CRISPR Interference in Favor of Broad Institute -- Their Reasoning"; "University of California/Berkeley Appeals Adverse CRISPR Decision by PTAB"; and "Berkeley Files Opening Brief in CRISPR Appeal"). But there have been other skirmishes between the parties, each of which has recently been (for now) resolved.

[...]

In Europe, under Article 87 EPC and Paragraph IV of the Paris Convention, priority to an earlier-filed application can be validly claimed by the prior applicant or by her successor in interest. In either case, the applicant must be someone having the right to claim priority. In the U.S., provisional applications are filed in the name of the inventor and the EPO requires that there be an assignment of the invention on or before a European or PCT application is filed. (Of course, a PCT can always be filed naming the inventors as applicants.) In this case, proper application of the applicable rules required both the named applicants (The Broad Institute, MIT and Harvard College) and the Rockefeller to have been named as applicants when the application was filed. Rockefeller was not named as an applicant. Accordingly, the OD determined that the named Proprietors could only validly claim priority to the third provisional application, and by the filing date of that application there had published prior art that invalidated the granted claims. In this regard, the preliminary opinion may provide guidance on the OD's thinking, where that opinion states that "In both the EPC and the Paris convention systems the decisive fact for a valid claim of priority is the status of applicant, rather than the substantial requirement [] to the subject matter of the first application" (emphasis in opinion). The OD determined (preliminarily) that "neither the requirement of the applicant's identity nor the proof of a valid success in title [had] been fulfilled" for the claimed invention, and stresses that these were requirements to promote legal certainty that would protect third parties' interests, and that these requirements were not subject to the national law of the priority document. Nor, according to the preliminary opinion could the granted European patent properly claim priority to U.S. 61/758,468 because that document failed to disclose the length of the guide sequence as claimed.


The matter will likely be decided, upon appeal, by the appeal boards which complain about lack of independence (and they typically rule in favour of patent maximalism). The Corcoran incident is relevant to this because it reinforces the perception of partiality, it clearly demonstrates that the Office operates outside the Rule of Law, and it quite likely ensures that the UPC will never come to fruition.

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