Bonum Certa Men Certa

Judges Reject EPO Patents on Life as Constitutional Complaints Against the EPO Pile Up in Germany

5 challenges and counting...

Pile of old books



Summary: EPO judges throw out patents on life (CRISPR at least); there's now growing hope that they'll have the courage to do the same to patents on software

THERE HAS been mostly good news coming from the European Patent Office (EPO) in recent days. We hope there will be positive impact and perhaps an end to software patents in Europe.



"As fewer readers may know, there are currently quite a few constitutional challenges against the EPO."As most readers know/are aware of, Team Campinos/Battistelli is unscientific and perhaps anti-scientific. The sole goal is granting as many patents as possible, irrespective of what the science says and what scientists need. It's not in vain that examiners are protesting and it is not without reason.

As fewer readers may know, there are currently quite a few constitutional challenges against the EPO. Richard Gillespie wrote about "Constitutional complaints against the EPO in Germany" just under a day ago. There's a decent roundup right there, naming 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16, and, 2 BvR 561/18:

Patent Attorneys like myself are not known for their love of excitement. For example, I like reading lists. One regrettably exciting item that appears to have slipped off the ‘things to look out for in 2020’ lists that I have seen is the outcome of the constitutional complaints against the EPO in Germany. The outcome of these complaints could have potentially explosive implications for patent practice in Europe and they have not received enough attention.

At present there, are five constitutional complaints relating to the European Patent Office (EPO) before the German Federal Constitutional Court (BVerfG), namely, 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16, and, 2 BvR 561/18. At issues is the lack of sufficient legal remedies at the EPO against negative decisions of the Boards of Appeal. I believe there is a clear risk that the BVerfG will uphold at least some of the constitutional complaints relating to the EPO. Such an outcome would likely mean that the European Patent Convention (EPC) in its present form is incompatible with the German constitution.

My reasoning is as follows: according to these complaints there is a question (amongst others) on whether or not Articles 19(4) and 103(1) of the German constitution (i.e. the Basic Law of the Federal Republic of Germany) have been violated. Article 19(4) states that if any person’s rights are violated by a public authority, they have recourse to the courts. Article 103 deals with the right to a fair trial.

[...]

As noted in by Vissel (GRUR Int. 2019, 25) it is instructive to note the submissions of the Federal Republic of Germany during the Travaux Préparatoires of the EPC (emphasis added):

“The delegation of the Federal Republic of Germany opposed this request [to delete para. (b) of Art. 135]. It pointed out that the application of a national procedure should be possible not only in cases in which the applicant suffered a loss of rights as a result of the omission of an act but also where the European Patent Office had given a negative decision. It was in precisely these cases that there was a constitutional problem in the Federal Republic of Germany. The Basic Law required that every administrative act should be capable of being examined by a court. The Boards of Appeal of the European Patent Office, although similar to courts of law, were not in fact courts proper so that the possibility of recourse to a German Court had to be maintained. It should, however, be borne in mind that the Federal Republic did not at present intend to avail itself of the option available under para. 1(b). However, even if this option were applied, there would be little danger of any delay in the procedure since it was unlikely that proceedings would be initiated before the German patent authorities and the German Court after the European procedure had been concluded.”

Hence, the provision of Article 135(1)(b) EPC was drafted for a situation in which the Boards of Appeal of the EPO could no longer be seen as independent courts.

This was a situation that had occurred within the German Patent Office when appeals against decisions of the Office were conducted internally. There was a constitutional complaint against the internal appeals of the German Patent Office because of a lack of sufficient legal remedies at the German Patent Office. This complaint was upheld and it ultimately lead to the establishment of the German Federal Patent Court.


We assume readers are aware of the constitutional complaint against the UPC and we have repeatedly shown that the press does not properly cover this (if at all). Amplifying the EPO's lies is not journalism and here's a new example of it ("New EU Patent System On Course For End Of 2020, Says EPO"). The EPO lies and some people copy-paste the lies, just like so-called 'reporters' who publish "Trump says" pieces. From the outline:

Progress is being made towards the implementation of the EU’s new patent system, but the UK’s insistence on severing all ties with the European Court could spell the end for its participation.


Could or will? Will. Has. This is hardly news.

The EPO's management has meanwhile moved on to its new lie (warning: epo.org link), having published this piece in which patent maximalists from all around the world push software patents agenda under the guise of "emerging" and "HEY HI" (AI). The EPO attributes this propaganda to “IP5” and says:

The five largest intellectual property offices held the inaugural meeting of their joint Task Force on New Emerging Technologies and Artificial Intelligence this week in Berlin. Known as the “IP5”, the five offices – which are the EPO, the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the China National Intellectual Property Administration (CNIPA) and United States Patent and Trademark Office (USPTO) – together handle about 85% of the world’s patent applications. The meeting was organised jointly by the EPO and KIPO.

Launched at the IP5 annual meeting last June in Incheon, South Korea, the new task force will explore the legal, technical and policy aspects of new technologies and AI, their impact on the patent system and on operations at our five offices. The aim is to pinpoint which areas can most benefit from joint IP5 responses, ranging from employing AI to improve the patent grant process, to applying the patentability requirements to inventions in the field of AI, and handling applications for inventions created by machines.

“This task force is the IP5 offices’ first joint response to a changing global patenting landscape and evolving user needs in the field,” said Christoph Ernst, the EPO’s Vice-President for Legal and International Affairs, opening the event. He added: “New emerging technologies and AI touch upon almost every aspect of daily life and seem to question the traditional models for the generation and utilisation of knowledge flows and decision-making. This translates into considerable challenges in IP, and the task force is a chance for us to demonstrate that we, as the world’s leading offices, are agile and responsive to change.”


It's very clear that Campinos, Iancu and the others just want to grant as many patents as possible, no matter the legality of these. This includes software patents.

Having said that, this EPO agenda has just suffered a major setback because CRISPR patents turn out (again) to be fake patents. This can, by extension, doom many other European Patents on life and nature.

The EPO has just tweeted: "Heinz Müller, #patent expert at @ige_ipi, will talk about the #patent landscape of #CRISPR at this event in Zurich..."

Maybe the EPO did not get the memo, but around the very same time (maybe the same day) judges found the courage to say no to CRISPR patents.

A site advocating for such patents (pressure group of the "life science" monopolists) wrote:

In a dramatic reversal, a European Patent Office’s (EPO) board of appeal has upheld the revocation of a Broad Institute CRISPR/Cas9 patent.

Yesterday, the board indicated that it would refer several key issues at the heart of the case to a higher panel, potentially triggering a lengthy delay.

But today the board has announced that, after consideration, it is already equipped to decide the case and agreed with the earlier Opposition Division ruling that the Broad’s patent lacks a valid priority claim.

Daniel Lim, partner at Kirkland & Ellis, said the decision was “quite the change of heart” from the board.

“I can imagine that the stakes involved in this case and the level of interest and scrutiny have not made the Board’s life easy,” he said.

Yesterday’s proceedings opened with the announcement that the board intended to refer at least three questions to the EPO’s enlarged board of appeal.


This has also been covered by Rose Hughes (AstraZeneca), who said:

The Board of Appeal (3.3.08) finished hearing submissions on priority from the parties this morning. Proceedings were then adjourned until the afternoon whilst the Board conferred. The parties undoubtedly had a tense lunch. The Board was either going to decide on the issue of priority or refer the issue to the EBA for clarification. There was a strong feeling following the comments made by the Board of Appeal on Day 3 that a referral to the EBA was likely. However, news came soon after recommencement of the proceedings that the Board of Appeal was to dismiss the appeal. [In a classic fake news saga, Merpel watched with bemusement today the ongoing proliferation of reports that the Board of Appeal had referred the matter to the EBA].

The immediate impact of the referral would have been to prolong the dispute. Even if the EBA had accepted the referral (far from certain), any decision from the EBA would not have been the end of the matter. The EBA is there to provide clarity on points of law. After a EBA decision, the case would then have had to be sent back to the Board of Appeal. Those wishing for legal clarity will welcome the Board of Appeal's decision to settle the matter today.

On the other hand, a fact easily forgotten amidst the all the excitement over this week's appeal hearing, is that the patent in dispute, EP2771468, is far from being the Broad Institute only patent relating to CRISPR. Whilst today is the end of the road for EP2771468, there are 5 divisional applications in the same family as the patent in dispute: EP2784162, EP2896697, EP2940140, EP2921557, EP3144390.

[...]

The patent family of EP2771468 is also, of course, not the only family relating to CRISPR. There are many other patents relating to aspects of CRISPR technology, owned by the Broad Institute and other parties, most notably University California Berkeley.


Could this be the most courageous decision these judges have made in recent years? More importantly, will there be 'consequences' for it? Will they soon decide to rule out software patents ('simulation') as well? Let's hope so.

Recent Techrights' Posts

The Free Software Foundation (FSF) is Being Attacked by Organisations Jealous of Its Principled Stance and Longevity
Nobody is perfect, but imperfection does not instantaneously imply sinister intent
Many Microsoft "Assets" Are Fabricated Baloney (to Game the Numbers)
At times it seems like what we deal with are many weak patents (on algorithms), valuations or speculations based on hype ("hey hi"), and stocks held by Microsoft and its own staff
"Internal Changes at Red Hat / IBM"
It seems like quite a few people are leaving
Confirmed in French Media: Mass Layoffs (10% Culled) in Microsoft France
Now some reports in French
Microsoft in Freefall in Finland
Can Finland eradicate Windows from all its infrastructure, including core operations that are sensitive to sabotage by cracking?
Google's Chrome Passes 70% and Web Standards Are Dying
The Web is quickly becoming devoid of any standards
Slopwatch: Plagiarism and Ponzi Scheme, Bubble About to Burst Entirely, Admits Goldman Sachs
the hype that Google News and The Register MS actively participate and profit from
The Register MS Says "AI Web Crawlers Are Destroying Websites", So Why Does The Register MS Help 'AI' Companies? (Spoiler: Money)
People need to call out The Register MS on its hypocrisy
Slopfarms Already Peaked, They Will Die When Slop Companies Run Out of Money to Borrow
slopfarms will lack an actual "engine"
 
Preparations for Our 19th Anniversary Have Already Begun
When we get back we'll probably sort out some balloons and venue for the next party
Pleased After 2 Years With team.blue
Moving from a Content Management System (CMS, dynamic) to a Static Site Generator (SSG) was a wise decision that made life so much easier
If You Reject the Google Verdict in the US, Then You Should Also Reject the "Modern" Web (Do Something About It)
Gemini Protocol is still open; it cannot be hijacked or subverted because it's frozen by design and by intention
Open Source Initiative IRS Filing: Almost All the Money is Corporate, Stefano Maffuli (Executive Director) Takes About a Quarter of That Money for Openwashing of "AI" Ponzi Scheme
OSI is currently little but a PR/marketing agency of Microsoft
Many People Are "Leaving" Red Hat, Even High-Level Managers
Something is definitely going on at Red Hat
Techrights Has Been Subjected to Calls of Violence (and Death Threats), It Never Condoned Violence
I have no sympathy for people who call violence "free speech" and then get in trouble
Condoning Violent Behaviour and "Free Speech"
perhaps Microsoft Lunduke lost touch with what constitutes violence
Takeaway From the Google Verdict: GAFAM Has Too Much Control (Even Over the US Government and Courts With Government Appointees)
Many people feel disappointed but hardly surprised by the verdict
The Free Software Foundation (FSF) Turns 40 in One Month
As noted a few days ago, several times in fact, many people now recognise the importance of the FSF's mission, even if most people don't know what the FSF is
"Voluntary" Layoffs at Microsoft (to Game the Numbers, Sugar-Coating a Crisis)
"Employees interested have until the end of October to volunteer."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 02, 2025
IRC logs for Tuesday, September 02, 2025
Links 02/09/2025: Oligarch Tech and Text Encoding Concerns in Ada
Links for the day
"People on LinkedIn Saying That They've Left Red Hat."
We already saw signs of it a month ago and named some of the people
Gone With the BRICs (or BRICS): "Linux 8" in Cuba
GAFAM must be worried
Telecompaper Reports Microsoft to Reduce the Workforce by Another 10% (in France)
Imagine what this will do to staff's morale
India is Back to Windows 8 (Market Share Down to 8%) as Android Soars to a New Record High
For Microsoft, India is a runaway market
Links 02/09/2025: SCO Summit and Russia Suspected Of Jamming GPS
Links for the day
Gemini Links 02/09/2025: Mediterranean Marriage and Staying Connected at 35,000 Feet
Links for the day
Links 02/09/2025: Attacks on Unions, Microsoft TCO, and DDoSing a Growing Problem
Links for the day
Why We Publish Information About the SLAPPs (But Not About the Legal Process), an Abuse of Process by Americans Trying to Silence Critics of Their Employer, Microsoft
It doesn't take thousands of pages to explain something simple
Internet Relay Chat Didn't Fall Off a Cliff
IRC will turn 40 in less than 3 years from now
The UEFI 9/11 - Part V - This is Not a Drill (Disable "SecureBoot" Now)
A "9/11" Coming
There's No Obligation to Speak to Anybody
The very fact that "bkuhn" is till spending time in social control media says a lot about his poor judgment
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 01, 2025
IRC logs for Monday, September 01, 2025
Microsoft Trying to Force People to Resign (Amid Mass Layoffs) a Strategy That Takes Its Toll
Microsoft seems to be circling down the drain and the "final flush" will be the moment the "hey hi" (AI) bubble implodes completely
Google Simply Cannot Be Trusted
Only fools would trust GAFAM
Admission That a Third Party (or Parties) Funds the SLAPPs Against Techrights
This can end up costing them over a million dollars
Modifying and Writing One's Own Computer Programs is Not a Crime (or: Google Proves That Stallman Was Right)
We're generally gratified to see so many positive mentions of him
Why We Stopped Publishing Videos (for Now)
We'll probably get back to videos one day, but it's hard to say when or to what extent
What Animal Rights Activism Teaches Us About Sympathy and Focus
It's possible to believe that the planet is warming, that we must do something about it, and still eat eggs and butter
When You Turn Web Sites About Tech Into Political Sites
A lot of people fall into the trap of catering only for particular groups
Gemini Links 02/09/2025: ROOPHLOCH 2025 and Lagrange 1.19 Released
Links for the day
Gemini Links 01/09/2025: News Corp. WSJ and A Month With NixOS
Links for the day
“Sideloading” Never Killed Anybody
There are many online discussions this week about the misnomer "sideloading"
Slopwatch: Google News as FUD Vector Against Linux and Plagiarism Enhancer, Serial Slopper (SS) Uses LLMs to Googlebomb "Linux"
Slop destroys the Web not just by screwing with search engines and helping plagiarists. It's also responsible for de facto DDoS attacks...
Links 01/09/2025: "Attacks on Science" and China's "Soft Power" Grows
Links for the day
Links 01/09/2025: Fresh Backlash Against Slop and "Norway’s Electricity Crisis is About to Hit Britain"
Links for the day
Writing and Coding Isn't Always Enough
Last year we had to assume a role we didn't have before: litigants
Links 01/09/2025: Catching Up (Mostly via Deutsche Welle), "Windows TCO" Effect in UK
Links for the day
Gemini Links 01/09/2025: Linguistic Barriers and "Web 1.0 Hosting"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 31, 2025
IRC logs for Sunday, August 31, 2025
Autumn Has Come
Autumn should be exciting in all sorts of ways; it'll also mark our anniversary
The UEFI 9/11 - Part IV - External Interference
They all seem to be playing a role in crushing Software Freedom and self-determination for users