Summary: Pressure is growing for the EPO to actually comply with the law and obey the European Patent Convention (EPC); the judges who look into these matters, however, lack the independence which the EPC sought to guarantee

THE European Patent Office (EPO) may hopefully invalidate European software patents some time soon. This will have to come from a court rather than the Office itself. As Jan Wildeboer (Red Hat, soon IBM) put it in this tweet yesterday: "The EUCJ never pulled an ALICE AFAICS. I hope they do soon."

We remain concerned that António Campinos is friends with Iancu, whose attitude towards the law has just come under scrutiny from a high court. Will Campinos even allow judges to deal with the relevant issues? Judges that exercise true independence? We think not.

"Will Campinos even allow judges to deal with the relevant issues? Judges that exercise true independence? We think not."On Tuesday the EPO wrote about opposition procedures as follows: "Patent administrators in Helsinki are invited to this event to learn about fee payment, opposition procedures and other related matters..."

But the EPO is still a very unjust place where people responsible for oppositions can be arbitrarily 'disciplined' and dismissed under false pretexts/fabricated circumstances. This apparently happens also under Campinos, not just Battistelli. SUEPO wrote about it.

"Our hope is that the Boards will rediscover or recover their independence; then and only then do we expect them to rule out software patents and patents on life, in lieu (shall we say "harmonisation"?) with Alice and Mayo, respectively, in the US."What if the EPO's staff says "no!" to a big "client"/"customer" (what EPO management calls applicants)? Or to a partner of the EPO (like Judge Corcoran did Baxter)? Can the examiners in Oppositions be fired? Demoted? Reprimanded? We have mentioned this the other day, maybe before the press release even came out.

Here is the official press release and Globes coverage from yesterday:

Teva Pharmaceutical Industries Ltd. (NYSE and TASE: TEVA) today announced that a three-member panel of the European Patent Office’s (EPO) Opposition Division upheld patent EP 2 949 335 covering Teva’s COPAXONE€® 40mg product in Europe. The Opposition Division will issue its written underlying rationale on the decision within a few months.

And the financial media in Teva's home country:

While in the US, Teva Pharmaceutical Industries Ltd.'s (NYSE: TEVA; TASE: TEVA) original multiple sclerosis treatment Copaxone is already battling it out with generic competitors with its main dosage (40mg), in Europe there is still no generic competition, and a decision by the European Patent Office (EPO) should delay it further. Teva announce today that a three-member panel of the EPO Opposition Division upheld the patent (EP 2 949 335) covering its Copaxone 40mg product in Europe. The Opposition Division will issue its written underlying rationale on the decision within a few months.

Should this take months? Longer than the decision took to be reached perhaps?

An advocacy site of patents on life, Life Sciences Intellectual Property Review, has meanwhile written about the EPO merely considering obeying a law -- another subject we last touched yesterday. To quote:

European Patent Office (EPO) president António Campinos will refer a recent decision on the patentability of plants exclusively obtained by essentially biological processes to the office’s Enlarged Board of Appeal (EBA).

The news follows long-running legal confusion over whether plant products produced by essential biological processes are patentable.

Last December, the EPO’s Technical Board of Appeal 3.3.04 issued decision T 1063/18, which ruled that rule 28(2) of the European Patent Convention (EPC) is incompatible with Article 53(b) of the same convention.

This neglects to take account of the European authorities' position and the fact that in defiance of the European Patent Convention (EPC) these Boards no longer enjoy freedom and independence to rule as they see fit.

As European Patents now exceed 3 million in number we're seeing yet more press releases about them, such as this one from yesterday:

Also, SANUWAVE received European Patent EP 3,117,784 on December 26, 2018 entitled “Usage of Intracorporeal Pressure Shock Waves in Medicine”, which has an expiration date in July 2030 from the European Patent Office (EPO). This patent is validated in designated countries including Denmark, Finland, France, Germany, Great Britain, Holland, Ireland, Italy, Norway, Spain, and Sweden. The European patent includes fifteen (15) claims related to the special construction of the intracorporeal shockwave devices/systems comprising of a catheter size fit within at least one of a blood vessel, graft, or artificial blood vessel, with at least one balloon, and at least one or multiple shockwave generation sources coupled to the catheter. The intracorporeal shockwave device/system can be used to treat plaques and obstructions together with distal protection devices, to protect the flowing of dislodged plaque particles to the heart or brain. The shockwave generation sources can be electrohydraulic, laser-based, electromagnetic, or piezoelectric.

This isn't my field and the above is a promotional press release, but this one too seemingly relates to health. The EPO used the term "medtech" yesterday -- a term it nowadays uses to refer to algorithms (i.e. software) in a medical context.

We continue to worry that nobody seems to care -- let alone intervene -- in EPO affairs. Commenting on the patent troll Unwired Planet as recently as yesterday (it operates in Europe, even in London), Florian Müller wrote that "[s]tatistics show that most patents are invalid as granted, and even those that are valid rarely involve an inventive step of the impressive kind..."

Here's the part about EPO and then some more about FRAND/SEP:

The patent system is prone to abuse because, contrary to widespread misconception, the commercial value of patents lies in legal uncertainty, and patent offices around the globe prioritize quantity over quality (institutionalized excess and race to the bottom, especially with leaders such as USPTO Director Andrew Iancu or the current president of the EPO and his predecessor). Statistics show that most patents are invalid as granted, and even those that are valid rarely involve an inventive step of the impressive kind--and reasonable people can disagree on claim construction, which is why a fairly high percentage of all claim constructions are reversed on appeal.

Patent judges are increasingly aware of the issues, and it depends on each judge's style how they try to address the problem (such as by being ever more inclined to stay cases when the validity of a patent-in-suit is doubtful)--but the root cause (the aforementioned institutionalized excess) can't be addressed by them, so it all comes down to purely symptomatic treatment.

One form of abuse that constitutes a systemic threat is privateering: the practice of transferring patents to patent assertion entities whose business is to bring extortionate litigation. A few years ago I made a public call to "name and shame companies that feed patent trolls," and I'd like to refer you to such previous statements (you can find far better explanations of the privateering problem from others to be honest) rather than elaborate on this again.

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To give you an idea of how novel and unorthodox that approach is, it may help to remind you of the fact that Germany is a jurisdiction that doesn't even enable third-party beneficiaries (such as companies that are entitled to a FRAND license because of a FRAND promise made by a participant in a standard-setting process to a standard-setting organization) to enforce their rights like a direct contract. So even if Ericsson had never sold those patents to anyone, Huawei couldn't simply enforce third-party beneficiary rights to a FRAND license from Ericsson. But Judge Dr. Kuehnen's decision comes down to restricting Unwired Planet's rights vis-à-vis Huawei. So we're not talking about a third-party, but partically fourth-party, beneficiary rights.

It's not just about the FRAND commitment at an abstract level. It's that specific licensing terms could be deemed discriminatory based on what the previous patent holder did. (It would, of course, make sense to consider a previous patent holder's licensing terms in a FRAND analysis, but just an indication of what terms might have been agreed upon by parties.)

Our hope is that the Boards will rediscover or recover their independence; then and only then do we expect them to rule out software patents and patents on life, in lieu (shall we say "harmonisation"?) with Alice and Mayo, respectively, in the US. ⬆