No patents on life and nature? You must have missed the news!

Summary: The absolutely ridiculous patent bar (ridiculously low) at today's EPO means that legal certainty associated with European Patents is at an all-time low; patents get granted for the sake of granting more patents each year

HAVING just covered software patents in Europe and UPC issues, we now look at the broader picture in the European Patent Office (EPO).

It's so sad that in less than a decade the EPO managed to earn a reputation worse than that of the USPTO not just because of the scandals but also decline in patent quality. Those two things are of course closely linked. Examiners that Battistelli has not managed to drive away António Campinos either drives to 'retirement' or replaces with private companies. It's as if it's an actual goal to get rid of experienced examiners and turn their job into a business venture with the likes of Serco, which already do business for the USPTO.

"It's so sad that in less than a decade the EPO managed to earn a reputation worse than that of the USPTO not just because of the scandals but also decline in patent quality."When EPO founding documents were crafted and refined half a century ago architects of the system envisioned a system that would serve scientists, be inclusive (not in the nepotism sense), and not be run like a greedy corporation. The EPC was routinely violated in recent years and nobody was held accountable. This is why we end up in such a sordid mess. It's utterly grotesque.

Check out who's hammering the news wires this week [1, 2] with stuff like this, in effect self-promotional words for an event that berates quality control:

Many patent applications and patents are lost before the EPO, either before Opposition Divisions or before Appeal due to incorrect original drafting, and added subject matter is a recurrent problem. Learn advanced drafting techniques for successful EPO patent applications.

Many patent applications and patents are lost before the EPO Boards of Appeal due to incorrect original drafting. Added subject matter is a recurrent problem: Amendments made during grant procedure, to take account or new prior art, amount to added subject-matter, often fatal in opposition procedure before the EPO, and national courts.

Giving tips for getting patents from the EPO -- even if fake patent monopolies -- by employing tricks to exploit deliberate loopholes. Is this what we've come to? Also published yesterday was this piece behind the Agrow paywall:

Submissions urge EPO not to patent conventional plants

The European Patent Office (EPO) has been urged not to patent conventionally bred plants in separate submissions from the European Commission and a group of farming and environmentalist organisations.

Such patents should never have been granted in the first place; patents on nature don't make sense, neither morally nor legally. Anyone who's granting them does a disservice to common sense and the planet. Similar patents literally cause the death of a lot of people. Back in February we wrote about patents on cancer treatment -- the latest of many articles on the subject. Here's a new press release about another such European Patent:

Onxeo S.A. (Euronext Paris, NASDAQ Copenhagen: ONXEO), (“Onxeo” or “the Company”), a clinical-stage biotechnology company specializing in the development of innovative drugs targeting tumor DNA Damage Response (DDR) in oncology, in particular against rare or resistant cancers, today announced having received a communication from the European Patent Office (EPO) informing the Company of its intent to grant a new patent strengthening the European protection of compounds sourced from its platON™ platform.

[...]

This patent will provide a term of protection valid until mid-2031, which could be further extended until 2036 via the supplementary protection certificate (SPC) system. It completes the already robust set of 9 patent families securing the protection of AsiDNA™ and its related compounds.

Instead of tackling cancer, as it should, the EPO grants monopoly through patents so as to limit who can treat cancer!

Here's another new statement, coming from esoteric sites like "Golden Casino News":

Scandion Oncology A/S (“Scandion Oncology”) today announces that the European Patent Office (“EPO”) has granted the company’s patent application for SCO-101 when combined with chemotherapy. Patent is valid until May 2037.

The headline says "Scandion Oncology A/S receives EU-patent for SCO-101," but that's just wrong. EPO is not EU. Notice what's being granted here; the EPO now treats cancer as "business opportunity" rather than something to be cured; the same goes for global warming. If only more people grasped the seriousness of it...

Rose Hughes (working for companies like the above) has meanwhile covered T 1003/19) -- a case concerning intention to grant European Patents:

Recent Board of Appeal decision T 1003/19 poses a riddle: when is it not the intention of the EPO to grant the "text-intended for grant? Before the Examining Division (ED) grants a patent application, they send the applicant a copy of the text-intended for grant (“Druckexemplar”) (Rule 71(3) EPC). The text-intended for grant is normally considered to be, as the name suggests, the text that the ED plans on granting. In response to the Rule 71(3) communication, the applicant approves the text-intended for grant by filing translations of the claims and paying the appropriate fees. If the applicant approves the text-intended for grant, the patent is granted.

T 1003/19 related to an appeal from a decision of the ED to grant an application based on a text-intended for grant in which all but one of the drawings pages were missing. The applicant had approved the text-intended to grant. In most circumstances, it is difficult for a patentee to correct mistakes in a granted patent based on a text-intended for grant that they have approved. As stated in the Guidelines for Examination: “Since the final responsibility for the text of the patent lies with the applicant or patentee, it is his duty to properly check all the documents making up the communication under Rule 71(3)” (H-VI-3.1). It is difficult to argue, for example, that it was not the intention of the ED to grant a patent containing a mistake introduced and approved by the applicant themselves (G 1/10, IPKat post here).

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The BA concluded that the applicant had not approved a text-intended for grant. The BA therefore set aside the decision to grant the patent.

There are serious autonomy problems at the EPO as the appeals process is lacking independence and suffering massive backlogs as well.

"Trips to Cambodia and Ethiopia don't exactly present the EPO as a world leader."Alex Frost, writing the first reply to this post, said: "We have tried to escalate this problem with the EPO as it is causing huge problems with disgruntled applicants who are being told that they cannot rectify a problem that is in no way of their making."

Here's the full comment from Alex:

A welcome decision given the exponential rise we are seeing in the number of errors being introduced by Examining Division at the moment. So far in 2019, just of my own cases, I have come across 5 with significant errors (description pages missing or duplicated; drawings missing etc), all of which were the fault of the EPO (either the Primary Examiner or his/her Formalities officer, presumably). Goodness only knows how many such cases there have been across the whole firm/profession.

This is against a backdrop of, I guess, a similar number (5 or 6 ) such cases of mine with this sort of ED introduced error over the whole previous 25 years of practice. No doubt a part of the problem is the unseemly haste to examine and grant applications at the moment. We have tried to escalate this problem with the EPO as it is causing huge problems with disgruntled applicants who are being told that they cannot rectify a problem that is in no way of their making.

It's nice to see so lucidly expressed (and publicly recognised) issues aired in IP Kat again, even if only in the comments. The decline in patent quality will accompany a collapse in legal certainty. And then what? Who would then be willing to apply for European Patents or at what cost? What does EPO even know of patent quality? The EPO, in external communications, brags about spreading its lowered patent quality and invalid patents to other continents! "In order to avoid duplication of efforts and provide services on time and at a high level of quality, IP offices need to work together," the EPO wrote yesterday. Judging by which patent offices today's EPO takes photos with, the future doesn't seem promising. Does the EPO try to adapt to the standards of countries with not a single European Patent? Trips to Cambodia and Ethiopia don't exactly present the EPO as a world leader. ⬆