07.29.17

Anonymous Comments Discuss Erosion of Lawful Activity at the EPO, Lowered Patent Quality, Software Patents, and Trump Comparisons

Posted in Europe, Patents at 3:52 pm by Dr. Roy Schestowitz

Insiders and stakeholders sound off!

Summary: Views and opinions about the state of the European Patent Office (EPO), as expressed in recent days in anonymous comments over at IP Kat

THE REASON why the UPC is not going anywhere (and oughn’t go anywhere, either) — some believe — is the lack of separation of powers (EPO tyranny), which itself poses a threat to juridical sanity. What good is a legal system wherein appeals are subservient to those whose decisions are judged?

Nothing of that kind was ever an issue at the USPTO (where PTAB does a good job).

“What good is a legal system wherein appeals are subservient to those whose decisions are judged?”Neil Wilkof, citing “Kat friend” Florica Rus and quoting her extensively, wrote about the EPO’s decision to stop granting lots of patents on seeds and plants, essentially succumbing to the EPC, to enormous pressure from the public, and the European Commission (i.e. the EU).

Rus correctly pointed out that “GMOs face in Europe strong and constant opposition. Can it be that after these developments, GMOs will gain more popularity?”

No.

“What good is an EP if the EPO can decide overnight to revoke it (without even a trial/opportunity for appeal)?”Either way, after revoking a lot of patents en masse the value of EPs will decline and confidence in them be reduced. We already wrote about some people who express such views. What good is an EP if the EPO can decide overnight to revoke it (without even a trial/opportunity for appeal)?

The comments on the views from Wilkof/Rus (Wilkof did only the introduction) reveal concerns about chaos as the Administrative Council could “simply overrule the EBA on the basis of a interpretive note from the European Commission.”

Here is the comment to consider carefully:

Whilst the legal changes may well be sensible and correct, the means by which that solution has been reached is clearly legally illegitimate and entirely incorrect. The Administrative Council cannot simply overrule the EBA on the basis of a interpretive note from the European Commission. The interpretative note has no legal standing unless and until it is examined by a Court of the European Union.

Regardless of how proper the outcome is, amendment of the Rules cannot and should not be welcomed as it has been achieved by completely bypassing all normal legal procedures. The ends cannot be used to justify the means.

Correct. But this is the outcome of the EPO operating in a vacuum, wrongly assuming that if input/feedback/imperatives are ignored nothing will go awry later.

“…this is the outcome of the EPO operating in a vacuum, wrongly assuming that if input/feedback/imperatives are ignored nothing will go awry later.”This was a house of card waiting to collapse and we warned about it more than half a decade ago.

“The Administrative Council,” says the next comment, “even dismissed a member in violation of Art 23 EPC.”

Yes, the EPO is a lawless place and in 2014 Battistelli rubber-stamped that status, having already hired a thug and serially-accused criminal to be his Vice.

The Administrative Council has recently lifted the former quasi-automaticity in the renomination of board members for a further five years term, and even dismissed a member in violation of Art 23 EPC. Guess why?

So the EPC no longer matters and Battistelli just nonchalantly violates it without any consequences (the Administrative Council led by Kongstad seems not to mind even when explicitly alerted about it).

“…the EPC no longer matters and Battistelli just nonchalantly violates it without any consequences…”It often seems like Battistelli not only shreds the EPC but also altogether kills the EPO. He kills it for UPC to get started, first by ensuring that there are no pending applications, rendering the majority of examiners redundant as early as next year. Some are already being pushed out without it being labeled “layoffs” (they’re just asked to resign).

“The EPO’s days as an independent entity are numbered, and it knows it,” said the next comment:

To Anonymous of 10:22, it must be kept in mind that after the public reaction to Harvard Oncomouse and the Transgenic Plants case the EPO decided it no longer wanted controversy. It waited for the EU to bring out the Biotech Directive and imported it into the EPC Rules, and the idea was that the EU and CJEU would make the decisions and take the flak for future ethical/bio issues. Therefore the EPO has already given away its authority on these matters to the EU which is why the Administrative Council did what it did, but the problem is the present procedures don’t reflect that.

The EPO has to tread very carefully because once the UP and UPC are up and running the EPO will be the next thing the EU will want to encompass. If the EPO had kept to its position to interpret its rules differently from the equivalent language in the Directive it would have given the EU more ammunition for the argument that there can only be one Supreme Appeal Court for patents in Europe. The EPO’s days as an independent entity are numbered, and it knows it. For now it must stay subservient to the EU to keep out of trouble, but it know it cannot resist forever.

Then, the relevance to/of the CJEU gets brought up (often the case when it comes to the UPC, especially in relation to Brexit):

The European Commission is entitled to a view on what the Biotech Directive means. But the body with the power to say what it means is the CJEU.

As to whether the change in the Rules is sensible, there may be more than one view. One thing that won’t result is increased certainty.

CJEU was then bought up again:

…but just as a means of clarification: are the boards bound by the implementing regulations to the extent they are NOT inconsistent with the the convention (also in view of article 24 saying the form an integral part of it)

-As for the CJEU, this is indeed a question that is waiting to be asked. However, if EPO (incl the boards) follow the new Rules, then no new patents will be granted, so national judges can only ask such a question with regards to national patents (if those don’t follow the EPO line) or already existing EP’s. It is likely (but not sure) that those jurisdiction where the EC opinion and the implementng law are already consistent with this reading of the biotech directive will not see a need to make the reference, and it is exactly those jurisdictions that tend to ask a lot of IP questions to CJEU. It could therefore be a long wait until the eventual question is asked…

After a day the original author responded to this query among others (like software patents):

Thanks for your comments. There is no doubt that the discussions regarding patents on plants will not end here.

To Treaty Notifier:
If the Boards are consistent with the Convention, having “as a shield” Article 164(2), one could say that they are not bound by the Implementing Regulations and, arguably, no issue can be raised against them. As for Article 24 EPC regarding exclusion and objection of the Board members (I guess you were referring to this provision, I hope not to be wrong), this applies also in case there is a reason for exclusion other than reasons originating from a member itself or from any party of the proceedings. One could think that “other reason” might be not following the amended Rules. Bearing in mind the current situation, in the end, if it will be considered that having a different view than the one in the Amended Rules might trigger exclusion, the case will be treated on a case by case basis. All in all, I am sure that further developments won`t take long … Hope to have answered to your question.

Regarding a question to the CJEU, it is true that a national patent case can refer to the CJEU. As for the time being, who knows, maybe there is somewhere a national revocation proceeding and in light on the new developments, the national Court will ask for a preliminary ruling.

To Anonymous of 14:15:
I like the comparison with the CII. Their situation can be considered similar to the one of patents on plants, although I think that CII began to have their situation under a more concrete legal layer than the latter. And yes, the creativity of the attorney or “smart claim drafting” could be seen as solutions. As for the reasons which contributed to the stay of the proceedings, there are arguments to run for or against it.

To Anonymous from 10:22:
It is true that there were several others ways to reach a harmonization and to amend the required provisions (e.g. a new Referral to the EBA; revision of the Biotech Directive and the EPC itself and so on). Now, we have to see what`s next and how to deal with/better interpret the new background around plant patents.

In the above response mind the part about “CII” [sic] (a euphemism for software patents). It’s those same old loopholes, which are referred to as “Art 52 EPC that however apply only for the exclusions “as such”.”

Here is the comment in question:

Personally, as a practioner I do not think that this will be a huge problem. The amended rule 28 EPC refers to “essentially biological processes”. This weak formulation will result in an outcome that might well be comparable with the situtation regarding the exclusions in Art 52 EPC that however apply only for the exclusions “as such”. In practice, programs for computers can be patented quite well as long as there is any interaction with the “outside” and creatvity on the side of the attorney. I expect that a similar approach could be taken with respect to biological processes. That is, try hard and long enought and you will have a T decision that gives you some leeway for arguments in subsequent cases that a claim is not directed to a “essentially” a biological process but merely has some biological features.

That national courts may revoke a patent that is perfectly vaild at the EPO in light of the very same circumstances is also an unfortunate fact of life that however has less consequences in practice than one might think. For example, while it appears that the German Supreme Court has a completely different view with respect to novelty of selections/sub-ranges than the EPO/BOAs, in the end, this hardly ever plays a role.

That the stay of proceedigns of cases “par ordre du mufti” was in my opinion illegal must also be said though.

So some people do believe that applicants will simply work around the restrictions and patent life (fruit, vegetables, seeds and animals) anyway.

“So some people do believe that applicants will simply work around the restrictions and patent life (fruit, vegetables, seeds and animals) anyway.”Does patent quality not matter anymore?

In another thread — the one regarding decline in patent quality and management's latest lies about it — alternative surrogates for measuring patent quality got brought up. The following speaks of oppositions to grants as a “checking mechanism for the quality of examination,” but it’s no secret that the window for oppositions has been narrowed by Battistelli, appeal boards have been crushed and so on. We covered all that. Here is the comment in full:

To use oppositions as a checking mechanism for the quality of examination is an old idea, but it does not work.

For a start, there are only 5% of the granted patents which are opposed.

Then, in some technical areas there are hardly any, and in other areas, they are quasi systematic. Number of oppositions are in new and upcoming areas, that means they are there as long as there is a place to take or subsidies to grasp. Once the market is settled, then they disappear as quickly as they arrived.

Some oppositions are on the basis of public prior use or divulgation, and hence not relevant for assessing the search and the examination procedure.

Last but not least, they are not for free. The actual fee might be low, but then you have to add costs for representation. Unless there is an economic interest, nobody will oppose.

There are other means to draw the attention to the lowering quality, but those are not without danger for the individual examiner.

In yet another thread — this one regarding a decision in the UK which keeps mentioning the EPO (and EBA) — the discussion carries on this weekend (there have been many comments on this).

Here is one of the latest comments on this (alluding to “zero-tolerance to ambiguity that the EPO espouses”):

My comment on the craziness of this decision is from a UK perspective. Here we had basically killed off our doctrine of equivalents (purposive construction) and were well along the road of increased literalism and zero-tolerance to ambiguity that the EPO espouses. Our younger judges (at Court of Appeal level and below) would have fallen entirely into that way of thinking and we would have been doing that for eternity had this Supreme Court decision not totally changed the direction of how we interpret claims. This is a big change for the UK, and I can tell you our patent attorneys are feeling pretty bewildered! Many feel that infringement opinions will be close to impossible to write now.

I referred to Brexit and Trump jokingly, but I do think that Brexit is giving some of the country a feeling that we now need to get back to independent thinking and not be so reliant on the EU and other International organisations to deal with the big problems. Trump being president means that decades of our foreign policy is up in the air, and the UK is requestioning what sort of country it wants to be and why. The Supreme Court may have had all this in the back of their minds when they decided to change how we interpret claims.

Trump, in my personal view, is about as irrational and dangerous as Battistelli. A few years ago Battistelli’s EPO simply blocked the whole of this Web site and earlier this evening Donald Trump blocked me in Twitter (for merely criticising him). The parallels are noteworthy. They refuse to accept criticism and censor to suppress access to it. █

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