02.28.19

The Latest Brexit Developments Add Another Nail (Among Many) to the Unified Patent Court’s (UPC) Coffin

Posted in Europe, Patents at 5:11 am by Dr. Roy Schestowitz

Unitary collapse; even the “Law Society” knows it by now; eDossier officially dies tomorrow

The Law Society Gazette

Summary: The Law Society one among many who have virtually given up on the Unitary Patent, knowing that Unified Patent Court Agreement (UPCA) ratification is unlikely and Britain’s limbo prevents any further progress anyway; it means that national patent courts will continue rejecting a lot of European Patents, whose quality has declined considerably

TECHRIGHTS has never been about (pure) politics but rather about more technical things, including patents. Hence the focus on the EPO and USPTO along with legal cases. We’re not planning to write about pro- and anti-Brexit (there are lots of blogs out there which already cover it), but considering what happened over the past few days if not weeks it looks even more likely that UPC will never become a reality. The silence from Team UPC further reinforces this. They would be shouting from rooftops otherwise (but they don’t). Battistelli’s plan for the Office and for Europe goes down in flames.

“The silence from Team UPC further reinforces this.”Yesterday at IP Kat the Litigation ‘Society’ (“Law Society”) had its position outlined (“Law Society’s guidance on IP and No-Deal Brexit”); it’s just lobbying for more litigation and legal bills, as one might expect from a front group of law firms. But surprisingly enough UPC is not even mentioned. Their publications kept lobbying for the UPC under the guise of “news” (in the “Law Gazette”, which is really just “The Law Society Gazette”). Have they given up like IAM did? It is quite noteworthy that the EPO never mentions the UPC anymore (António Campinos has not uttered these words in many months), IAM isn’t covering the subject, JUVE covers it only on rare occasions (maybe once a month, echoing Team UPC) and the Law Society — unlike Team UPC — isn’t even listing it anymore.

Meanwhile at IAM, which has sunk in its ratings, there’s this self-promotional piece from Carpmaels & Ransford LLP (hence no paywall) that speaks of double patenting (we covered it some days ago). To quote:

For the first time, questions have been referred to the Enlarged Board of Appeal specifically addressing the EPO’s approach to double patenting. They concern the circumstances, if any, in which there might be a legitimate interest in the same applicant being granted multiple patents for the same subject matter.

It is possible that the Enlarged Board’s answers will have a significant impact on filing strategies that are frequently employed at the EPO. For example, the answers could be relevant to strategies that involve filing divisional applications to protect against commercial or legal uncertainties. Another common strategy that might be affected is the use of parent and divisional applications to prosecute subject matter at an accelerated pace (eg, narrow claims of the highest commercial value), while prosecuting other subject matter at a slower pace (eg, claims of broader scope).

The questions come from the Technical Board of Appeal 3.3.01, which handles pharmaceutical matters, and concern an application filed by Nestec SA. The application (09159932.4) was refused by the Examining Division following an assessment that Claim 1 was “100% identical” to the subject matter claimed in the patent from which 09159932.4 claimed priority. The Examining Division therefore argued that the grant of 09159932.4 would be contrary to the prohibition on double patenting referred to in the obiter dicta of Enlarged Board decisions G1/05 and G1/06. Nestec SA appealed the Examining Division’s refusal.

Well, double patenting is a hallmark of patent maximalism, which goes together with the decline of patent quality in general. Courts across Europe will, over time, reveal just how severe the problem has become.

“Battistelli’s plan for the Office and for Europe goes down in flames.”Mondaq has in fact just reposted some other IAM nonsense from Selin Sinem Erciyas (Gün + Partners) in which she inadvertently highlighted yet more evidence of the collapse of patent quality at the EPO and the serious, potentially fatal, consequences (access to medicines). This one is about generics:

A Turkish generic company filed an invalidation action against a leading US pharmaceutical originator company in Turkey and requested the invalidation of its patent – a Turkish validation of a European patent granted by the EPO. The opposition proceedings were still pending before the EPO at the filing date of the invalidation action in Turkey. The patent owner subsequently requested a delay of the national proceedings, stating that the patent claims could still be amended during the opposition and appeal proceedings before the EPO. Further, if the EPO proceedings were still outstanding, there could be inconsistency between the claims of the European patent and the claims of the Turkish validation. In addition, per Article 138/3, in proceedings relating to the validity of the European patent the patent owner has the right to limit the patent by amending its claims.

[...]

Although there is no clear national provision in Turkey, envisaging the delay of invalidation proceedings until a final decision from the EPO, the new judge felicitously considered the options granted to a patent owner by Article 138/3 of the European Patent Convention and the possible unnecessary litigation costs and time that might arise from several expert examinations. The decision is a good example of the interpretation of indirect effects of the rights conferred to the patent owner by Article 138/3.

Turkey’s standards for patents probably aren’t so high; so it would be noteworthy when courts in Turkey too cite the EPC and reject European Patents. Also mind Moroğlu Arseven’s Gökçe Izgi and Yonca Çelebi with their new post titled “Patents in Turkey” (these include European Patents). Considering Battistelli’s love affair with China, one begins to wonder just how low patent quality has gone. The EPO recently decided to privately admit patent quality had gone awry (after a quarter billion euros were wasted). Speaking of coffins, Stephen Rowan and Nellie Simon said “eDossier Stock Management will stop on Friday 1 March 2019 at 16:00.” That’s tomorrow. eDossier and UPC can share a coffin.

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