01.30.18

Gemini version available ♊︎

A Danish Company Has Just Collapsed Due to Patent Quality Issues at the EPO

Posted in Europe, Patents at 2:52 am by Dr. Roy Schestowitz

Forward PharmaSummary: Rushed examination at the EPO is taking its toll on companies that need legal certainty and instead get just Early Certainty™ (which is no certainty at all, just an excuse to fake ‘production’ numbers for Battistelli)

THE EPO may have become worse than the USPTO when it comes to patent quality if it’s true that it’s now easier to get software patents at the EPO than at the USPTO (as some law firms publicly claim). Then there’s the aspect of patents on life.

This is alarming because the EPO used to be the best bar none when it comes to patent quality. A European Patent (EP) offered very high legal certainty, e.g. in case a lawsuit gets filed.

Yesterday, IAM’s editor was reposting for Haseltine Lake LLP. It’s about that latest study of theirs (first mentioned by us about 3 weeks ago). It is, however, preceded by his introduction, which goes as follows (after calling the Battistelli era “highly controversial” — a gross understatement).

As President Battistelli sees out his final months, the big question is how much of an impact the changes have had. Well, if research by James Ward and Frances Wilding, partners at Haseltine Lake LLP, is correct, the answer is a great deal. In the following overview of detailed number-crunching they have done, the pair explain that the amount of grants the office made in 2017 is likely to have exceeded 100,000 for the very first time, while the examination backlog could be on the way down; though the number of oppositions is on the rise. What the numbers cannot tell us is whether there has been any impact on the quality of the rights the EPO issues – that, of course, will always be subjective (IAM readers have always seen the office as being the leader of the pack among the IP5).

IAM cites IAM to maintain the illusion that patent quality is OK under Battistelli. This is also what Battistelli keeps citing. Circular logic?

Either way, there have been several high-profile mistakes lately. Thankfully, these were corrected upon opposition. The most famous example is the Broad Institute's CRISPR patent, which has just been mentioned again by Awapatent’s Sofia Willquist. Here is what she wrote: “The CRISPR systems are covered by several patents and patent applications filed by different applicants, and are currently owned by the Broad Institute at MIT, the Max-Planck Institute in Berlin, University of California and MilliporeSigma. Early last year, the Broad Institute won a first dispute, which concerned fundamental patent rights in the US, as previously reported here. However, last week on this side of the ocean, the pendulum swung the other way and Broad suffered a serious set-back when one of the core patents was revoked by the European Patent Office (EPO).”

Rightly so.

Mark Summerfield, an Australian patent maximalist, wrote that “Loss of CRISPR Priority in Europe is a Warning to All Patent Applicants” (more like “Loss of CRISPR Priority in Europe is Great News to People Who Object to Patents on Life”).

From his blog post:

On 17 January 2018, a panel of the European Patent Office (EPO) opposition division wholly revoked a patent co-owned by the Broad Institute (‘Broad’) relating to CRISPR/Cas9 ‘gene editing’ technology. The European patent in question, number EP2771468, is entitled ‘Engineering of systems, methods and optimized guide compositions for sequence manipulation’, and is a European equivalent to US patent no. 8,906,616, which is one of the key Broad patents involved in the US patent interference dispute with the University of California (UC) – which is currently on appeal to the US Court of Appeals for the Federal Circuit. As is usual with European opposition proceedings, the ruling was issued immediately at the hearing (which had originally been scheduled to continue for two further days). A full written decision providing detailed reasons is likely to be a few weeks away.

Technically, the basis for revocation in the final decision is likely to be lack of novelty and/or inventive step of all claims of the Broad patent. However, the underlying reason for Broad’s failure to defend its patent is a loss of priority. In particular, the EPO panel determined that Broad was not entitled to claim priority from four of its earlier US provisional applications, including the earliest filing, US provisional application no. 61/736,527, which was filed on 12 December 2012. This loss of priority was fatal to the patent, as a result of a number of publications – including Broad’s own – that occurred subsequently, but prior to the full application’s filing date of 12 December 2013.

The good news is, the Office managed to correct it. It’s now likely to be on its way to the EPO’s Enlarged Board (on appeal). It’s incredible that such a ludicrous patent can even get this far. It’s also incredible that the Enlarged Board can still get some things done in spite of Battistelli (they’re constantly under several attacks from him). Here’s yesterday’s coverage from Denmark regarding decision G 1/16:

The EPO’s Enlarged Board of Appeal (EBA) recently issued its long-awaited decision G 1/16 relating to undisclosed disclaimers. The decision lays down under which circumstances the introduction during prosecution of a patent application before the EPO of a disclaimer not disclosed in the application as filed may be allowable under Article 123(2) EPC. The decision essentially confirms the standard defined in decision G 1/03 of 2004.

The more interesting news from Denmark, however, started with this press release (“Forward Pharma Announces the Decision of the European Patent Office in the Opposition Proceedings for the EP2801355 Patent”) and then an article titled “Here’s Why Forward Pharma Lost 30% Today” (published only hours ago).

Based in Copenhagen (Denmark) on the face of it, Forward Pharma has collapsed. The EPO has just managed to correct itself after nearly granting a bogus patent. Watch the effect of the EPO rejecting a bogus patent after false hopes were given: “Shares of Forward Pharma A/S (NASDAQ: FWP), a Denmark-based clinical-stage biopharmaceutical company, lost around 30 percent Monday after the company announced a disappointing update related to its patent.”

From the press release:

Forward Pharma A/S (NASDAQ:FWP) (“Forward” or the “Company”) today announced that the European Patent Office (the “EPO”) has revoked the EP2801355 patent (the “’355 patent”) following the oral hearing in the Opposition Proceedings.

The EPO Opposition Division revoked the ’355 patent after considering third-party oppositions from several opponents. The Opposition Division will issue detailed reasons for the decision in written form in due course, and following receipt and review of these, Forward plans to appeal the Opposition Division’s decision to the Technical Board of Appeal, with an expected duration of the appeal process of an additional two to three years.

It probably serves to show how rushed examination, Early Certainty™ etc. can do more harm than good. These put a strain on the EPO Opposition Division (now dealing with about 4,000 oppositions per year) because examiners are pressured to work in a rush. How much of this work won’t be corrected by the Opposition Division or the Boards but by the courts? At a huge expense to both plaintiff and defendant/s…

The patent certainty surrounding EPs is gone. So much for Early Certainty™…

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 20/05/2022: Plasma's Latest Beta in Kubuntu 22.04, Kapow 1.6.0 Released

    Links for the day



  2. Turkey's Migration to Pardus Linux and LibreOffice Explained 2 Months Ago in LibrePlanet

    This talk by Hüseyin GÜÇ was uploaded under the title “Real world GNU/Linux story from Istanbul”



  3. In Turkey, Windows Market Share is Down to Almost Nothing, 'Linux' is About Two Thirds of the Connected Devices

    Watch this graph of Windows going down from around 99.5% to just 11.55% this month



  4. The Lies and Delusions of António Campinos

    Monopolies and American corporations (and their lawyers) are a priority for today's EPO, Europe's second-largest institution



  5. Links 20/05/2022: Fedora BIOS Boot SIG

    Links for the day



  6. Links 20/05/2022: Oracle Linux 8.6 and VMware Security Crisis

    Links for the day



  7. IRC Proceedings: Thursday, May 19, 2022

    IRC logs for Thursday, May 19, 2022



  8. Links 19/05/2022: Rust 1.61.0 and Lots of Security FUD

    Links for the day



  9. EPO Eating Its Own (and Robbing Its Own)

    António Campinos is lying to his staff and losing his temper when challenged about it; Like Benoît Battistelli, who ‘fixed’ this job for his banker buddy (despite a clear lack of qualifications and relevant experience), he’s just robbing the EPO’s staff (even pensioners!) and scrubbing the EPC for ill-gotten money, which is in turn illegally funneled into financialization schemes



  10. [Meme] EPO Budget Tanking?

    While the EPO‘s António Campinos incites people (and politicians) to break the law he’s also attacking, robbing, and lying to his own staff; thankfully, his staff isn’t gullible enough and some MEPs are sympathetic; soon to follow is a video and publication about the EPO’s systematic plunder (ETA midnight GMT)



  11. EPO.org (Official EPO Site) Continues to Promote Illegal Agenda and Exploit Ukraine for PR Stunts That Help Unaccountable Crooks

    epo.org has been turned into a non-stop propaganda machine of Benoît Battistelli and António Campinos because the EPO routinely breaks the law; it’s rather tasteless that while Ukrainians are dying the EPO’s mob exploits Ukraine for PR purposes



  12. [Meme] EPO Applicants Unwittingly Fund the War on Ukraine

    As we’ve just shown, António Campinos is desperately trying to hide a massive EPO scandal



  13. EPO Virtue-Signalling on the Ukrainian Front

    António Campinos persists in attention-shifting dross and photo ops; none of that can change the verifiable facts about the EPO’s connections to Lukashenko’s 'science park' in Minsk



  14. Links 19/05/2022: PostgreSQL 15 Beta 1 and Plasma 5.25 Beta

    Links for the day



  15. A Libera.Chat Anniversary and Happy Birthday (Maybe the Last) to 'Leenode'

    What became known as the so-called ‘Leenode’ is a cautionary tale, but maybe it is also a blessing in disguise because IRC as a whole seem to have become a lot more decentralised (as everything should be)



  16. Links 19/05/2022: The Gradual Fall of Netflix/DRM

    Links for the day



  17. IRC Proceedings: Wednesday, May 18, 2022

    IRC logs for Wednesday, May 18, 2022



  18. Links 18/05/2022: Qt Company Loses Chief; OpenSUSE Leap Micro 5.2 and RHEL 9 Final

    Links for the day



  19. Jim Zemlin's Wife is Funded by Puppies (Microsoft)

    Jim Zemlin — like his wife — is bagging millions from Microsoft, but that’s clearly a conflict of interest for the Linux Foundation



  20. Links 18/05/2022: More Defections From WordPress to Gemini

    Links for the day



  21. Links 18/05/2022: PikaScript and cURL's Annual User Survey

    Links for the day



  22. IRC Proceedings: Tuesday, May 17, 2022

    IRC logs for Tuesday, May 17, 2022



  23. Phoronix: Microsoft and Phoronix Sponsor (and Close Microsoft Partner) AMD All Over the Place

    When you’re taking massive 'gifts' from AMD (and also some from Microsoft) maybe it’s not surprising that editorial decisions change somewhat…



  24. EPO Has No F-ing Oversight

    Earlier today SUEPO mentioned this new article demonstrating that EPO President António Campinos can very obviously and blatantly violate the Code of Conduct of the Office without facing any consequences; there are translations too, so the report is now available in four languages



  25. [Meme] Linux-Rejecting Foundation

    The Linux Foundation never really leads by example; by default, it uses proprietary software



  26. Linux Foundation Almost Never Uses Open Source

    The Linux Foundation uses proprietary software (look where they hire and take money from) and be sure they're probably not even aware of it



  27. Links 17/05/2022: Many More Games on GNU/Linux, YaST Development Report

    Links for the day



  28. Links 17/05/2022: Rocky Linux 8.6 and Budgie Desktop in Fedora

    Links for the day



  29. Patent Examiners Rising Up Against EPO Abuse

    Unhappy with the law-breaking autocracy (the EPO‘s management breaks the law as a matter of routine), fast-deteriorating working conditions and rapidly-decreasing quality of work (or lack of compliance with the law), workers have escalated further, topping off strikes and industrial actions with a large-scale petition



  30. [Meme] What Managers (Really) Mean by Acting Professionally

    The myth of 'professionalism' needs to die along with the façade of conformity as prerequisite for employment (Linus Torvalds can work just fine in a bathrobe in his own home)


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