03.18.17

Gemini version available ♊︎

European Directives and Boards of Appeal Desperately Needed to Keep EPO Patent Scope in Check

Posted in Europe, Patents at 4:35 pm by Dr. Roy Schestowitz

Also see: The Boards of Appeal Openly Complain (in the EPO’s Web Site) About Battistelli, But Don’t Tell Battistelli About It…

A shocked Battistelli

Summary: Battistelli’s notorious reign of terror has caused patents to be granted that are bogus and no longer valid (if/once challenged); moreover, it prevents legal firms from lashing out at him publicly while bogus patents continue to pile up, diminishing confidence in European patents (EPs)

AT THE EPO, patent scope has gone awry based on the management's own admission. But depending on the target audience, they might attempt to tell a different story (diversionary tactics). The USPTO, by contrast, has acknowledged similar problems and is actively working to correct them, much to the pain of the patent microcosm in the US. Patents are a man-made concept and they need to be limited based on various factors such as speed of innovation, production costs, cost of research (e.g. drug discovery and facilities), and public interests (e.g. mortality versus luxury). All this is beyond the scope of this post and was covered here hundreds of times before.

“Patents are a man-made concept and they need to be limited based on various factors such as speed of innovation, production costs, cost of research (e.g. drug discovery and facilities), and public interests (e.g. mortality versus luxury).”A few days ago we saw the lawyers’ media publishing “EPO Stay Of Proceedings In Biotech Cases” — in itself not news but more of an analysis and déjà vu. We already wrote several articles about it; EPO management consciously took a swipe at the law by granting such patents in the first place. Patent lawyers and their clients are now understandably concerned that their patents may be worthless, as a result of belated political intervention (which Team Battistelli belatedly decided to obey, for a change). To quote:

Following a Notice of the European Commission related to certain parts of the EU Biotech Directive (98/44/EC), the EPO has decided to stay all examination and opposition proceedings in which the invention is a plant or animal obtained by an essentially biological process.

The Commission Notice appears to be in direct response to decisions of the EPO’s Enlarged Board of Appeal in the “Tomato II” and “Broccoli II” cases (G 2/12 and G 2/13). These decisions related to the patentability of products which could be obtained by an essentially biological process. Such essentially biological processes are excluded from patentability by Article 53(b) EPC. However, the Enlarged Board decided that the exclusion of essentially biological processes for the production of plants by Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material. Therefore, such product claims are potentially allowable under the EPC.

Following these decisions, the European Parliament adopted a Resolution which asked the Commission to look at the patentability of plants and animals obtained by means of essentially biological processes. Surprisingly, we understand that the Commission undertook this review without consulting its own expert working group on biotech patents. The resulting notice sets out the Commission’s view of the intention of the legislator when adopting the EU Biotech Directive 98/44/EC, Article 4(1) of which contains an exclusion drafted in identical terms to Article 53(b) EPC. Their conclusion is that such plants and animals are not patentable under the Directive.

This is a good example of erosion when it comes to confidence in EPs and it is the fault of an Office that decided to disregard directives and common sense.

“See the ramification of Battistelli disregarding the Boards of Appeal?”As for the the Boards of Appeal of the European Patent Office, they cannot function independently anymore (Battistelli lied about them last week in a lame video) as the following new article serves to remind us. Published (as above) by lawyers’ media, it is titled “Antidote to Toxic Divisionals—European Patent Office Rules on Partial Priorities” and it says: “Beginning in 2009, the Boards of Appeal of the European Patent Office (“EPO”) issued a series of decisions that essentially created a new priority law in Europe that allowed members of the same patent family to negate each other’s novelty. Notions such as “poisonous priorities” and “poisonous or toxic divisionals” emerged, threatening patent holders and raising concerns among patent practitioners and scholars. Confirming principles established for priority rights by the Paris Convention, the recent decision G1/15 of the Enlarged Board of Appeal of the EPO (“EBA” or “Board”) has put an end to this jurisprudence.”

See the ramification of Battistelli disregarding the Boards of Appeal? Or put another way, this is the impact of him choosing to attack/marginalise the Boards of Appeal rather than listen to them. Now there’s a pile of trash granted and enshrined as “EPs”, where the assignees themselves are no longer sure if such EPs are valid at all. Confidence (or certainty) in EPs is the very thing that gives them value, at both ends of negotiation and/or litigation (defendant or licensee included). Look what Battistelli has done!

Confidence (or certainty) in EPs is the very thing that gives them value, at both ends of negotiation and/or litigation (defendant or licensee included). Look what Battistelli has done!”Battistelli has been so drunk on power and so eager to pursue just so-called ‘production’ that he forgot what a patent office actually is and what it is for (maybe he never knew at all, considering the awkward way INPI handles patents).

With Battistelli in charge, the Office makes enemies out of stakeholders (they want Battistelli out) and out of the public. The public interest groups now openly call, yet again, for the EPO to stop patents on beer, so to speak. Two days ago “No Patents on Seeds” circulated the announcement “Call to stop patents on beer” (see original and copies thereof). To quote just a portion of the text:

The protest is targeted at patents granted by the European Patent Office (EPO) in 2016 (EP2384110, EP2373154 and EP2575433) to the brewing companies Carlsberg and Heineken. The patents claim barley derived from conventional breeding, its usage in brewing beer and the beer produced thereof. However, the patents are simply based on random mutations in the plant’s genome. Just recently, the EU Commission and the EU Member States made it very clear that patents on plants and animals derived from conventional breeding are not allowed. Nevertheless, the EPO wants to continue to grant patents in future on random mutations. Currently, the civil society organisations are demanding that politicians ensure the loopholes in the law are closed.

The patented barley is said to simplify brewing and make it cheaper, the beer will also supposedly keep fresh for longer. The two brewing companies can profit twice over – by selling the beer and from the cultivation of the barley. At the same time, they can prevent other breeders from breeding better barley and also extend their market dominance – to the detriment of farmers, breeders, other breweries and consumers.

See our recent article titled Boards of Appeal Still Under Attack From Team Battistelli While the EPO Proceeds to Granting Patents on Carlsberg BEER!"

“It just comes to show how Battistelli’s notorious reign of terror extends beyond the Office and even silences critical blogs (they tried to silence us too, using several legal threats).”Also bear in mind, as we shall show later tonight, that many in patent law firms are deeply concerned about the above granting of dubious patents, which they never thought merited a grant in the first place (there are analogous stories about the USPTO in the 1990s). These firms, i.e. individual employees, are afraid to speak out against the UPC and the EPO (or Battistelli himself), especially using real names (of firms or staff). Fear of retribution, we suppose, against or from an employer (fear that Battistelli will punish the firm and that the firm will then punish staff) is what keeps them separate and isolated. It just comes to show how Battistelli’s notorious reign of terror extends beyond the Office and even silences critical blogs (they tried to silence us too, using several legal threats). We are dealing not with public servants here but with psychopaths.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day



  2. This Apt Has Super Dumbass Powers. Linus Sebastian and Pop_OS!

    Guest post by Ryan, reprinted with permission



  3. [Meme] Trying to Appease Provocateurs and Borderline Trolls

    GNU/Linux isn’t just a clone of Microsoft Windows and it oughtn’t be a clone of Microsoft Windows, either; some people set themselves up for failure, maybe by intention



  4. Centralised Git Hosting Has a Business Model Which is Hostile Towards Developers' Interests (in Microsoft's Case, It's an Attack on Reciprocal Licensing and Persistent Manipulation)

    Spying, censoring, and abusing projects/developers/users are among the perks Microsoft found in GitHub; the E.E.E.-styled takeover is being misused for perception manipulation and even racism, so projects really need to take control of their hosting (outsourcing is risky and very expensive in the long run)



  5. Links 29/11/2021: FWUPD's 'Best Known Configuration' and Glimpse at OpenZFS 3.0

    Links for the day



  6. President Biden Wants to Put Microsofter in Charge of the Patent Office, Soon to Penalise Patent Applicants Who Don't Use Microsoft's Proprietary Formats

    The tradition of GAFAM or GIAFAM inside the USPTO carries on (e.g. Kappos and Lee; Kappos lobbies for Microsoft and IBM, whereas Lee now works for Amazon/Bezos after a career at Google); it's hard to believe anymore that the USPTO exists to serve innovators rather than aggressive monopolists, shielding their territory by patent threats (lawsuits or worse aggression) and cross-licensing that's akin to a cartel



  7. Microsoft GitHub Exposé — Part VIII — Mr. Graveley's Long Career Serving Microsoft's Agenda (Before Hiring by Microsoft to Work on GitHub's GPL Violations Machine)

    Balabhadra (Alex) Graveley was promoting .NET (or Mono) since his young days; his current job at Microsoft is consistent with past harms to GNU/Linux, basically pushing undesirable (except to Microsoft) things to GNU/Linux users; Tomboy used to be the main reason for distro ISOs to include Mono



  8. Dr. Andy Farnell on Teaching Cybersecurity in an Age of 'Fake Security'

    By Dr. Andy Farnell



  9. IRC Proceedings: Sunday, November 28, 2021

    IRC logs for Sunday, November 28, 2021



  10. Links 29/11/2021: Linux 5.16 RC3 and Lots of Patent Catch-up

    Links for the day



  11. By 2022 0% of 'News' Coverage About Patents Will Be Actual Journalism (Patent Litigation Sector Has Hijacked the World Wide Web to Disseminate Self-Promotional Misinformation)

    Finding news about the EPO is almost impossible because today’s so-called ‘news’ sites are in the pockets of Benoît Battistelli, António Campinos, and their cohorts who turned the EPO into a hub of litigation, not science; this is part of an international (worldwide) problem because financial resources for journalism have run out, and so the vacuum is filled/replaced almost entirely by Public Relations (PR) and marketing



  12. Trying to Appease Those Who Never Liked Free Software or Those Who Blindly Loved All Patent Monopolies to Begin With

    It’s crystal clear that trying to appease everyone, all the time, is impossible; in the case of the EPO, for example, we hope that exposing Team Battistelli/Campinos helps raise awareness of the harms of patent maximalism, and when speaking about Free software — whilst occasionally bashing the alternatives (proprietary) — we hope to convince more people to join the “Good Fight”



  13. Links 28/11/2021: Laravel 8.73 Released, GitHub Offline for Hours

    Links for the day



  14. IRC Proceedings: Saturday, November 27, 2021

    IRC logs for Saturday, November 27, 2021



  15. Links 27/11/2021: Nvidia’s DLSS Hype and Why GNU/Linux Matters

    Links for the day



  16. [Meme] Linus Gabriel Sebastian Takes GNU/Linux for a (Tail)'Spin'

    If you’re trying to prove that GNU/Linux is NOT Windows, then “haha! Well done…”



  17. GNU/Linux is for Freedom and It'll Gain Many Users When (or Where) People Understand What Software (or Computing) Freedom Means

    Software that respects people's freedom (and by extension privacy as well) is an alluring proposition; those who choose to try GNU/Linux for the wrong reasons are likely the wrong target audience for advocates



  18. Amid Reports of Microsoft's Competition Crimes in Europe...

    European companies are complaining, but they seem to overlook the principal aspect of an imperialistic system with bottomless pockets (almost 30 trillion dollars in debt already; US national debt soared again last month); Microsoft is shielded by a political system with military (“defence”) as bailout budget to help cushion international expansion for data grab and technical leverage, as we've seen in the case of EPO (this is all political, not technical, and should thus be treated as a political/corruption issue)



  19. Is Linus Trolling the GNU/Linux Community?

    This new video responds to what many sites have been provoked into amplifying



  20. Links 27/11/2021: Tux Paint 0.9.27 and SeaMonkey 1.1.19 in EasyOS

    Links for the day



  21. [Meme] Keeping Our Distance From Microsoft

    The OSI is the dagger, the Linux Foundation is the knife, and many others are the sword by which Microsoft tries to get into the very heart of GNU/Linux and extinguish the Free software movement



  22. Microsoft Edge Encourages Indebted Americans to Guilt-spend Just in Time for Christmas

    Guest post by Ryan, reprinted with permission



  23. IRC Proceedings: Friday, November 26, 2021

    IRC logs for Friday, November 26, 2021



  24. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  25. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  26. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  27. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  28. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  29. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  30. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts