Bonum Certa Men Certa

A Danish Company Has Just Collapsed Due to Patent Quality Issues at the EPO

Forward PharmaSummary: Rushed examination at the EPO is taking its toll on companies that need legal certainty and instead get just Early Certaintyâ„¢ (which is no certainty at all, just an excuse to fake 'production' numbers for Battistelli)

THE EPO may have become worse than the USPTO when it comes to patent quality if it's true that it's now easier to get software patents at the EPO than at the USPTO (as some law firms publicly claim). Then there's the aspect of patents on life.

This is alarming because the EPO used to be the best bar none when it comes to patent quality. A European Patent (EP) offered very high legal certainty, e.g. in case a lawsuit gets filed.

Yesterday, IAM's editor was reposting for Haseltine Lake LLP. It's about that latest study of theirs (first mentioned by us about 3 weeks ago). It is, however, preceded by his introduction, which goes as follows (after calling the Battistelli era "highly controversial" -- a gross understatement).

As President Battistelli sees out his final months, the big question is how much of an impact the changes have had. Well, if research by James Ward and Frances Wilding, partners at Haseltine Lake LLP, is correct, the answer is a great deal. In the following overview of detailed number-crunching they have done, the pair explain that the amount of grants the office made in 2017 is likely to have exceeded 100,000 for the very first time, while the examination backlog could be on the way down; though the number of oppositions is on the rise. What the numbers cannot tell us is whether there has been any impact on the quality of the rights the EPO issues – that, of course, will always be subjective (IAM readers have always seen the office as being the leader of the pack among the IP5).


IAM cites IAM to maintain the illusion that patent quality is OK under Battistelli. This is also what Battistelli keeps citing. Circular logic?

Either way, there have been several high-profile mistakes lately. Thankfully, these were corrected upon opposition. The most famous example is the Broad Institute's CRISPR patent, which has just been mentioned again by Awapatent's Sofia Willquist. Here is what she wrote: "The CRISPR systems are covered by several patents and patent applications filed by different applicants, and are currently owned by the Broad Institute at MIT, the Max-Planck Institute in Berlin, University of California and MilliporeSigma. Early last year, the Broad Institute won a first dispute, which concerned fundamental patent rights in the US, as previously reported here. However, last week on this side of the ocean, the pendulum swung the other way and Broad suffered a serious set-back when one of the core patents was revoked by the European Patent Office (EPO)."

Rightly so.

Mark Summerfield, an Australian patent maximalist, wrote that "Loss of CRISPR Priority in Europe is a Warning to All Patent Applicants" (more like "Loss of CRISPR Priority in Europe is Great News to People Who Object to Patents on Life").

From his blog post:

On 17 January 2018, a panel of the European Patent Office (EPO) opposition division wholly revoked a patent co-owned by the Broad Institute (‘Broad’) relating to CRISPR/Cas9 ‘gene editing’ technology. The European patent in question, number EP2771468, is entitled ‘Engineering of systems, methods and optimized guide compositions for sequence manipulation’, and is a European equivalent to US patent no. 8,906,616, which is one of the key Broad patents involved in the US patent interference dispute with the University of California (UC) – which is currently on appeal to the US Court of Appeals for the Federal Circuit. As is usual with European opposition proceedings, the ruling was issued immediately at the hearing (which had originally been scheduled to continue for two further days). A full written decision providing detailed reasons is likely to be a few weeks away.

Technically, the basis for revocation in the final decision is likely to be lack of novelty and/or inventive step of all claims of the Broad patent. However, the underlying reason for Broad’s failure to defend its patent is a loss of priority. In particular, the EPO panel determined that Broad was not entitled to claim priority from four of its earlier US provisional applications, including the earliest filing, US provisional application no. 61/736,527, which was filed on 12 December 2012. This loss of priority was fatal to the patent, as a result of a number of publications – including Broad’s own – that occurred subsequently, but prior to the full application’s filing date of 12 December 2013.


The good news is, the Office managed to correct it. It's now likely to be on its way to the EPO's Enlarged Board (on appeal). It's incredible that such a ludicrous patent can even get this far. It's also incredible that the Enlarged Board can still get some things done in spite of Battistelli (they're constantly under several attacks from him). Here's yesterday's coverage from Denmark regarding decision G 1/16:

The EPO's Enlarged Board of Appeal (EBA) recently issued its long-awaited decision G 1/16 relating to undisclosed disclaimers. The decision lays down under which circumstances the introduction during prosecution of a patent application before the EPO of a disclaimer not disclosed in the application as filed may be allowable under Article 123(2) EPC. The decision essentially confirms the standard defined in decision G 1/03 of 2004.


The more interesting news from Denmark, however, started with this press release ("Forward Pharma Announces the Decision of the European Patent Office in the Opposition Proceedings for the EP2801355 Patent") and then an article titled "Here's Why Forward Pharma Lost 30% Today" (published only hours ago).

Based in Copenhagen (Denmark) on the face of it, Forward Pharma has collapsed. The EPO has just managed to correct itself after nearly granting a bogus patent. Watch the effect of the EPO rejecting a bogus patent after false hopes were given: "Shares of Forward Pharma A/S (NASDAQ: FWP), a Denmark-based clinical-stage biopharmaceutical company, lost around 30 percent Monday after the company announced a disappointing update related to its patent."

From the press release:

Forward Pharma A/S (NASDAQ:FWP) (“Forward” or the “Company”) today announced that the European Patent Office (the “EPO”) has revoked the EP2801355 patent (the “’355 patent”) following the oral hearing in the Opposition Proceedings.

The EPO Opposition Division revoked the ’355 patent after considering third-party oppositions from several opponents. The Opposition Division will issue detailed reasons for the decision in written form in due course, and following receipt and review of these, Forward plans to appeal the Opposition Division’s decision to the Technical Board of Appeal, with an expected duration of the appeal process of an additional two to three years.


It probably serves to show how rushed examination, Early Certaintyâ„¢ etc. can do more harm than good. These put a strain on the EPO Opposition Division (now dealing with about 4,000 oppositions per year) because examiners are pressured to work in a rush. How much of this work won't be corrected by the Opposition Division or the Boards but by the courts? At a huge expense to both plaintiff and defendant/s...

The patent certainty surrounding EPs is gone. So much for Early Certaintyâ„¢...

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