Bonum Certa Men Certa

Status and Potency of European Patents Compromised

A seed
If even seeds are patentable, what else is?



Summary: The European Patents -- once renowned for their high quality -- see certainty lowered and the process associated with granting increasingly questioned

THE previous post spoke of the diminishing value of European Patents (granted by the EPO). The more patents get granted (with lowered quality bar), the lower their worth. Just see what the USPTO learned the hard way (about a decade ago).



According to the news (not some patent law firm), European Patents are already being successfully challenged. Apparently, "several European patents" (not just one) became toothless. To quote:

The German pharmaceutical and medical technology group B. Braun melsungen has lost a patent dispute with the Indian competitor Polymedicure since 2009.

This involves intravenous safety catheters, which had protected B. Braun with several European patents.

When a physician applies such a catheter to a patient, a needle guard automatically protrudes over the tip when the needle is withdrawn from the arm. This protects the doctor and nursing staff. Conventional catheters lack such a needle guard. Polymedicure also sells intravenous safety catheters, but their needle protection is somewhat different.


As any examiner can imagine, this reduces the likelihood that B. Braun (among other companies in its domain) will pursue more European Patents. Judging by last year's statistics, the number of patent applications at the EPO is declining.

Yesterday, the following comment turned up in IP Kat (where comments tend to be more informative than shameless self-promotion in 'article' form). It's about Eli Lilly, whose decision we included yesterday evening in daily links. To quote the comment (which relates to the EPO):

So, Lord Neuberger is "inclined to think that the examiner was wrong" in taking the view that the patent should be limited to pemetrexed disodium. However, the examiner does not specify the claims an applicant must file, either during drafting or prosecution. This was solely in the hands of the applicant. The examiner took the view that the claim to 'pemetrexed' was added matter, and rightly so. It is unfortunate that our Supreme court act in total disregard of established case law of the EPO. If the UK courts are so opposed to the strict law of added matter followed by the EPO, maybe they should not be so quick to follow the EPO's position in respect of novelty.

Whether, and to what extent, the courts should protect a patentee from its own incompetent drafting is a separate point as clearly equivalence doctrines exist. However, the present case leads to significant uncertainty in an area where claims can be defined in absolute clarity down to the atomic level. 'Sodium' means one thing only, whereas 'spring' is a functional definition open to interpretation. Even 'vertical' has a degree of error.


The same subject was soon covered by Managing IP, which also spoke of the relevance to the EPO:

The UK Supreme Court has ruled that a patentee can argue that the scope of protection afforded by its patent extends beyond the ambit of the claims. In its ruling in Eli Lilly v Actavis, the Court also provided guidance on when reference to EPO prosecution file would be appropriate in interpreting a patent in infringement cases


It didn't take long for Stephen Jones from CIPA (now writing at IP Kat) to write about it also, reminding us that this blog is written by a front group/lobbyists who also promoted the UPC.

Here is a comment on the blog: "It also rather puts a mocker on the EPO Examiners who expend such time and ink to pounce on any allegedly-impermissible intermediate generalisation. The Examiner insists that the Applicant write in the specific, not the general term - for the Applicant must not improve his position, must he? - and lo-and-behold, the Courts delete the specific and replace it again with the general term."

Yes, how do examiners feel?

Read the next comment:

I'm also surprised, as a first reaction, Stephen. But, on thinking about it, not so surprised. I should say that I've read your write up, above, but the Decision itself, not yet.

If you (the Inventor or Applicant) have only got results for Na, and the Paris priority year is ending, what can you get out of the EPO other than a claim limited to Na? But does that mean you are entitled to no more scope than that? Is it "fair" to confine your scope to Na alone?

What is the law in Germany on Doctrine of Equivalents? I suspect the SC is bearing in mind that it has to i) lay down law compatible with the reality of prosecution at the EPO, and ii) give due deference to the jurisprudence of Germany. I guess it was fully briefed on what the BGH says about any DoI.

And, quite apart from BREXIT, it should bear those two things in mind, shouldn't it?


Speaking of BGH, watch what the Kat Mark Schweizer wrote about a European Patent (EP) from Shionogi in relation to Merck (a competitor of Eli Lilly):

According to its media release of 11 July 2017, the German Federal Court of Justice confirmed the decision of the Federal Patent Court granting Merck a compulsory license to EP 1 422 218 owned by Shionogi. This allows Merck the continued distribution of its antiretroviral drug Isentress, an approved medication for treatment of HIV-patients, on the German market.

[...]

The Federal Patent Court held that the criteria developed under competition law for FRAND licenses were not applicable in the context of €§ 24(1) Patent Act. The media release of the BGH only states, somewhat cryptically, that in view of the specific facts of the case, “namely the uncertain outcome of the opposition proceeding”, Merck’s efforts had been sufficient.


I'm not feeling old, but I'm old enough to remember the days when EPs were the "gold standard" and hardly disputable. After Battistelli it seems like EPs are just riding the wave of their former reputation, which simply won't last long.

Recent Techrights' Posts

EPO Staff Can Go Listen to Richard Stallman Next Week in Munich (Technical University of Munich, Rudolf-Diesel Hörsaal (MW2001) on Campus Garching at 18:00)
"The talk is open to the public and attendance is free. Registration is not required."
At IBM, Relocation Means Layoffs (Downsizing)
Silent or 'invisible' layoffs?
Dystopian Trends in Technology Make Richard Stallman More Relevant Than Ever
It's good to see him attracting vast audiences
Richard Stallman (RMS) Announced His Talk Less Than 24 Hours Before It Took Place and Still Filled Up the Auditorium at Sapienza Università di Roma
Photos from yesterday evening [...] It looks like it was a very successful event
 
Many Developers Have Many Political Views, They'll Never Agree on Everything
It's an effort to divide and destroy, not build
Gemini Links 14/10/2025: An Opportunity to Consider GNU/Linux and Another Simple IRC Client
Links for the day
Slopwatch: UbuntuPIT, LinuxSecurity, Google News, and the Serial Slopper Brian Fagioli
Nothing of merit here, just more slop
Links 14/10/2025: Lack of Trust in Slop and "Retirement Challenges"
Links for the day
Rhonda D'Vine, Gerfried Fuchs, Pronouns & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Central Staff Committee of the European Patent Office (EPO) Warns That EPO Management is Robbing or Manipulating Pension Funds Again
Faking "growth" is just about as bad as forgery
Probably a Lot Worse Than LLM Slop: GNOME Tying Itself to Divisive Politics, Even Where It's Clearly Not Relevant
Something has gone terribly wrong in GNOME
Links 14/10/2025: Microsoft OneDrive Scanning Faces in Photos (Without Asking First), "OpenAI Says It Will Move to Allow Smut"
Links for the day
They Generally Don't Like Scholars, as They're Less Compelled or Pressured to Repeat What Corporations and Oligarchs Say
People who loathe scholars have an agenda in mind that, unlike that of reasonable people, revolves around controlling people
Belated New Article About Last Thursday's Lecture by Richard Stallman in Helsinki, Finland
there are good reasons to pay with cash, not limited to privacy
Attacking Richard Stallman Has Become 'Career Suicide'
If you're going to viciously attack somebody, make sure your arguments are rock-solid
Microsoft's Failing XBox Business Has Turned Games Into Funerals
How does it feel to depend on Microsoft?
Yesterday's "Distinguished Lecture" by Richard Stallman Possibly Attended by Close to 1,000 People
The capacity of the place is about 900
Slop Poisons Everything
Imagine wanting to find what Torvalds has just said or what has just been released
Taking Software Freedom 'Mainstream'
interest in Software Freedom must have grown
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 13, 2025
IRC logs for Monday, October 13, 2025
Gemini Links 14/10/2025: Ada Lovelace Day, Sony CLIE PEG-TG50 Review, Why to Avoid Network Solutions
Links for the day
The EPO's War on Techrights Was a Massive Mistake
The EPO started the SLAPPs after we had published a few hundreds of articles; we've since then published close to 6,000 because the attacks on us emboldened insiders to help us
General-Purpose Computers to Become Growing Area of Coverage
Without them, we have little left for controlling our lives
"They missed a great opportunity to shut up." -Jacques Chirac
Brett Wilson LLP has been trying to cheat the legal system many times
Harassment evidence: Switzerland, overcrowded fitness and yoga centers, incompetence and racism in accident response
Reprinted with permission from Daniel Pocock
Vincent Danjean & Debian NXIVM collateral, blackmail risks
Reprinted with permission from Daniel Pocock
In Sweden This Past Friday Richard Stallman Explained Why Copyleft is Important
And he didn't have to 'bash' BSDs, either
IBM Layoffs Due to a Lack of Money and Company Debt Rising by Almost 10 Billion Dollars in 6 Months
IBM didn't buy Red Hat for any ideological reasons; it was a fast "cash grab" for revenue
Forbes Already Stopped Being a News Sites. Now It's a Spam and Propaganda Platform for "Paying Partners" (Companies).
news from Forbes became very scarce
Is the Second-Largest Institution in Europe (EPO) Gradually Becoming More Like a Sweatshop?
Underpaid, unqualified, inexperienced and incompatible people are already recruited to replace veteran examiners
The Register MS Has No FOSS Coverage Anymore
The Editor in Chief is like a Microsoft plant
Links 13/10/2025: "Toasty Subwoofer" and WiFi Speakers "Are About To Go Dumb"
Links for the day
Gemini Links 13/10/2025: iNaturalist and Tove Jansson’s Moominpappa at Sea
Links for the day
Microsoft Does Not Deny That Large Retailers Like Walmart, Costco and Target Are Giving Up on XBox (and Not Stocking It)
No doubt XBox is in trouble and rumours suggest that more mass layoffs are imminent
We'll Encourage Richard Stallman to Talk About Software Patents at the EPO Next Week When He Visits Munich (EPO Headquarters)
Go listen to Richard Stahlmann
Investigative Journalism Protects Society From Corruption, Crimes Against Women, Assaults on Civil Society
"what is the point of men doing military practice to defend a system that is so rotten?"
Swiss pimp usurping reputation of legendary Tissot boss Francois Thiébaud from France (BaselWorld, SWATCH Group SA)
Reprinted with permission from Daniel Pocock
Paris 'Love Nest' & Debian Outreachy: from Lycée Lakanal to ENS Cachan, Cr@ns, nepotism
Reprinted with permission from Daniel Pocock
Richard Stallman to Give Public Talk in 3 Hours, Then in the Technical University of Munich (Germany) Next Week
Richard Stallman at TUM on 21.10.2025 18:00, MW2001
Arnaud Parreaux lost case defending rogue employer
Reprinted with permission from Daniel Pocock
Mathieu Elias Parreaux declared bankrupt in Switzerland
Reprinted with permission from Daniel Pocock
Breakdown of the Rule of Law and Patent Law in the European Union (EU)
The EPO cannot recruit suitably qualified patent examiners this way, let alone retain them
Gemini Links 13/10/2025: Good Films, Wizard of Earthsea, Upgrading the Steam Controller's Stick
Links for the day
Leaks and Whistleblowers: Our Plan for Today
Society simply cannot advance when too many people self-censor
It's Not Justice When One Side Denies the Other Side the Ability to Even Speak
At this stage, Brett Wilson LLP is in my humble opinion acting in contempt of the Court
Links 13/10/2025: Australian Catholic University Uses Slop to Libel Students, Canada Threatens to Kill Beluga Whales
Links for the day
How Not to Silence Tux Machines (It'll Only Backfire, Badly)
defending Microsoft while attacking this site
Slopwatch: UbuntuPIT and Google News
It seems abundantly clear that Google News and Google in general participates in the slop epidemic
Vincent Danjean (not INTERPOL), Claire Bardel & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Christmas lynchings: Martin Krafft (madduck), Penny Leach (mjollnir) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 13/10/2025: Birthdays and "Committee Unable to Contact Nobel Prize Winner"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 12, 2025
IRC logs for Sunday, October 12, 2025