Bonum Certa Men Certa

The EPO Not Only Abandoned the EPC But Also the Biotech Directive

Like outlaws still run the Office

Topić France



Topić letter



Summary: Last week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place

EUROPEAN Patents (EPs) which threaten lives and software patents that are EPs were mentioned in our last post. How far is António Campinos willing to go? How far will Iancu at the U.S. Patent and Trademark Office (USPTO) go?



How about patents on life itself?

It is widely known that this subject is 'controversial', by which we mean on one side we have large corporations like Monsanto and on the other side virtually everyone else, i.e. the public (those not striving to 'own' all lives using bizarre patents).

Last week there was some disturbing development/news which made one wonder if judges had been having dinners at Bayer or something like that. There has been no word on this decision from the EPO's Twitter account, which has been unusually quiet lately (the past few days). Those who covered the decision have been almost without exception patent maximalists; the same goes for comments. Apparently all that matters is how much they can profit from it, not how much sense it actually makes. Miquel Montañá wrote about this yesterday ("The Political Dimension of Tomatoes, Broccoli and Peppers"); it's about the incredible stance of the European Patent Office's (EPO) Board of Appeal (BoA), which decided that patents on seeds, pigs, plants etc. are acceptable as if people "invented" these. Does the EPC not matter anymore?

Here's a new comment on the connection between the EU and the EPO:

In response to 'EPO is not EU...', please see http://patentblog.kluweriplaw.com/2018/05/08/eu-bring-unitary-patent-system-control/

Already the economic and academic arguments are being made as can be seen in that article. The EPO is being entrusted with the Unitary Patent, but that will bring the responsibility of harmonising with EU. It does not make sense to have 2 different sets of appeal systems in Europe (The EPO Boards and the CJEU). A single system of control is sensible, and I am sure will come into being at some point.

"Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law."


Here's another comment of interest:

I would like to address a number of inaccuracies in (implied) statements in your comment from 7 December.

Firstly, it is the Member States that are bound by the Biotech Directive. The role of the courts is to interpret that legislation, ie to determine the meaning of rules that bind the Member States (and other individuals / entities towards which those rules are directed).

Secondly, only the CJEU is able to provide a binding interpretation of the Biotech Directive. Whilst the views of the Commission and of the Member States may be of interest, they are meaningless if they do not align with the CJEU's interpretation of that Directive.

Thirdly, there has already been national litigation (in the Netherlands) on relevant claims. Contrary to what you asserted would be the inevitable result, those claims were held by the Dutch court not to be excluded from patentability.

Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law. In this respect, a positive aspect of the Board of Appeal's decision is that it avoided an outcome that would have been a blatant example of non-compliance with EU law (specifically, with Article 267 TFEU, which is essential to preserving the autonomy and supremacy of EU law).


If the Biotech Directive does not matter and the EPC does not matter either, what does that make the EPO? An outlaw organisation? An organism? If it's an organism, maybe people can apply for a patent on it.

"There is a large uncertainty regarding patenting of plants and animals exclusively obtained by means of essentially biological processes in Europe," Valea AB's Joanna Applequist and Karolina Wiktorson wrote earlier this week. Over at Mondaq, J A Kemp (promoter of antibody patents) seemed rather happy to see this. "We understand that, at an oral hearing held on 5 December 2018 in relation to case T1063/18 concerning an application entitled "New pepper plants and fruits with improved nutritional value", EPO Technical Board of Appeal 3.3.04 held that Rule 28(2) EPC introduced in July 2017 is in conflict with Article 53(b) EPC. Once confirmed, this will have important implications for EPO practice regarding inventions in the field of plant (and animal) breeding as in principle the Rule can no longer stand or be used to reject patent applications if it does not conform to the Article it is supposed to implement," J A Kemp's Andrew Bentham wrote.

Patent propaganda site Managing IP chose a headline that says “Plants patentable in Europe”. How misleading. It's not actually over yet. Moreover, as we explained some days ago, the EPO is simply enraging farmers, who have already protested such moves. The ramifications remain to be seen, but for a patent office that just strives to increase so-called 'production' this may seem (artifiically, on the surface) like a positive development. At what cost?

Recent Techrights' Posts

XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
 
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
The Danes Want GNU/Linux
David Heinemeier Hansson recently moved to GNU/Linux
Cory Doctorow Explains Why Software Freedom Matters, Whereas "Open Source" Misses the Point and Helps Monopolies
It's a very long article
BillPR (EpsteinGate-Bribed NPR) is Turning Into a Partial Slopfarm that Promotes Slop
"I went on a date with a chatbot!"
Two Weeks Passed Since Latest Large Wave of Microsoft Layoffs, More Expected Next Month
Blaming the debt on "AI" is just self-serving storytelling
There's Still Hope for the World Wide Web
Let's hope that the trajectory of the Web won't be leading us to over-reliance on Google, nor will it reward worthless slopfarms
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 14, 2025
IRC logs for Monday, July 14, 2025
Gemini Links 15/07/2025: Gemini "Style Sheets" and Switching From Microsoft GitHub to Codeberg
Links for the day
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025