07.24.18

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Under António Campinos the EPO’s Appeal Boards, Including the Enlarged Board of Appeal, Still Lack Independence

Posted in Europe, Patents at 3:45 am by Dr. Roy Schestowitz

António Campinos has done virtually nothing about it after nearly a month on the job

Mafia Battistelli

Summary: Campinos has thus far done absolutely nothing to reverse Battistelli’s abusive policies; he is thus better/best regarded as Battistelli with another faceplate and fewer words

THE EPO scandals simply aren’t over because nothing was ever done to resolve them. Campinos is not even complying with court rulings, still. His silence is in some sense more dangerous than Battistelli’s loud and strident approach because in calm and secrecy he can do bad things, such as plotting future layoffs and other cuts (like he did at EUIPO some months ago).

“Oppositions staff said “no” to such patents, but will the Boards enjoy any perceived independence? Will they be afraid when ruling, e.g. cuts of their jobs?”An advocacy site of patents on life (disguised as a news site) has published this article titled “Will the EPO’s Enlarged Board hear the Broad’s CRISPR case?”

Oppositions staff said “no” to such patents, but will the Boards enjoy any perceived independence? Will they be afraid when ruling, e.g. cuts of their jobs? They should just say no to all CRISPR patents (as per the EPC), but will they? Can they take the ‘risk’? Inside the EPO they have somewhat of a reputation for patent maximalism — the very same thing Campinos pushes for in this atmosphere of impending layoffs and a hiring freeze. To quote this pseudo-news site (lobbying ‘packaged up’ as news):

As the Broad Institute faces a formidable task in defending its revoked CRISPR patent claims in a pending appeal at the EPO, European academics Jakob Wested, Timo Minssen, and Esther van Zimmeren are wondering whether some of the issues might be referred to the Enlarged Board of Appeal.

The EPO has meanwhile (yesterday) mentioned the EPO’s appeal boards (warning: epo.org link) for the first time since Campinos took over. It’s in French. Since the President is French (dual national banker they disguise as only “Portuguese”) he can read the original in French (his country of birth) and the English part says this: “In accordance with Article 112(1)(b) EPC the President of the European Patent Office has referred a point of law concerning the interpretation of Article 108 EPC to the Enlarged Board of Appeal (case G 1/18).”

“The EPO is still in a serious crisis. Campinos perpetuates this crisis by refusing to resolve any of the scandals. He has not tackled even one! It has been almost one month.”What happens if they rule the ‘wrong’ way (i.e. not the way he wants them to)? Structurally, he has far too much leverage over this. This has been covered and explained many times before. This structural deficiency, perpetuated by the UPCA, renders them incapable of ruling properly.

The EPO is still in a serious crisis. Campinos perpetuates this crisis by refusing to resolve any of the scandals. He has not tackled even one! It has been almost one month.

Where are the law firms that objected to Battistelli? Why aren’t they speaking out against the inaction from Campinos? Did they just pursue a face change or a change in policy?

Hogan Lovells has just published this update about the EPO/Germany, but EPO scandals are nowhere in sight. To quote:

The patent at issue relates to a cigarette paper having a reduced tendency for inflammation. According to the patent, this is achieved by applying a thin film (solution) on the cigarette. In opposition proceedings, a panel of the EPO decided the term “solution” did not include “suspensions.” In subsequent infringement proceedings, however, the Higher Regional Court ruled the opposite. It held that suspensions fall within the scope of the patent and found the same to be infringing. In doing so, the court stressed that it was not bound by an interpretation of the EPO; rather, the infringement court should make its own assessment on how to define claim features.

[...]

This decision may make it easier for parties to take contradictory or conflicting positions across validity and infringement proceedings. Not only did the Higher Regional Court find it was not bound by the EPO, it added that contradictory statements by a plaintiff in validity proceedings should only be taken into account under exceptional circumstances—in particular, only to the extent that (1) a patent owner has made a declaration in course of the validity proceedings that is directed at restricting the scope of the patent; (2) the patent has been maintained on the basis of this; and (3) the defendant to the infringement action was a party to the validity proceedings. This decision may therefore help patent owners seek a narrow claim construction in validity proceedings, while later insisting on a broader interpretation in infringement proceedings.

EPO insiders have long complained about decline in patent quality (necessitating more of the above-mentioned validity proceedings). What can redeem the office are the appeal boards, issuing decisions that set the policy/tone, but they’re still enslaved/inferior to Campinos, a man known for just about nothing (so far) but being Battistelli’s pick. That’s no assurance of independence and their colleague might still be hospitalised after years of vicious legal bullying.

This is a very bad situation to be in. Stakeholders all across Europe don’t just need to accept lack of access to justice; it’s like the judges themselves tell them (or publicly complain) that they lack independence. This is an unprecedented crisis and to even speak about the UPC as a possibility should be outright ludicrous (UPC would replace national courts, which aren’t yet corrupted like this).

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