03.02.19

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The Collapse of Poor-Quality European Patents Continues in European Courts

Posted in Europe, Patents at 4:34 am by Dr. Roy Schestowitz

As SUEPO warned all along (for nearly half a decade)

EPO’s IT - Yet another crack in Battistelli’s “excellence” bubble

Summary: In the face of growing mounds of evidence it is getting difficult to deny that European Patents are losing their lustre and causing frivolous (costly to the innocent) litigation

THE U.S. Patent and Trademark Office (USPTO) isn’t the only patent office grappling with quality issues. Yesterday afternoon (at 4PM to be precise) the European Patent Office (EPO) abolished eDossier [1, 2] after it had wasted about a quarter billion euros, producing bad European Patents in the process (these might cost Europeans several billions). It might take some time to get a full picture of the degree of damage, but there are already data points, symptoms, signs and ‘case studies’ (or court cases).

“It might take some time to get a full picture of the degree of damage, but there are already data points, symptoms, signs and ‘case studies’ (or court cases).”This post deals with two days’ worth of reports. We’ll try to keep this as concise as possible and include as many links as possible.

Today’s EPO is managed by patent maximalists with very scarce knowledge or understanding of patents. Some of the people in charge are probably less qualified than examiners, yet they’re expected to manage them? Or earn respect they hardly even deserve? António Campinos, the young ‘genius’ who keeps promoting software patents in Europe using meaningless buzzwords, is somewhat of a banker by profession. He has no patents and no background/education in sciences. It’s like another Battistelli, who even EPLAW did not like, having expressed concerns about the EPO several years ago [1, 2]. When we wrote about EPLAW in December we made it very clear that EPLAW is overzealous about patents, so it’s pretty noteworthy that they too deemed Battistelli incompetent and harmful (to their goal). The same is true for Team UPC. Maybe they just viewed Battistelli as an absolutely terrible flag-bearer.

“It just shows who’s in charge of the EPO; it’s neither science nor technology but law firms.”Yesterday afternoon Intellectual Property Watch said that “[t]he European Patent Office has published a report detailing differences in the laws and procedures of European countries for the granting of compulsory licences.”

The EPO tweeted about it a few times last week. But was it really an EPO report? No. As Intellectual Property Watch put it: “The report was prepared by the European Patent Academy and the European Patent Lawyers Association (EPLAW), and aims “to provide a comprehensive overview of the different compulsory licensing regimes in all 38 EPC [European Patent Convention] contracting states.””

“A patent system which was created (at its very inception) for inventors is now almost entirely dominated by lawyers and attorneys.”So now the patent maximalists are writing EPO reports; EPO events have American patent trolls in their panels, so such things are no longer jaw-dropping. It just shows who’s in charge of the EPO; it’s neither science nor technology but law firms. When Campinos traveled to the US last month those were the people and groups whom he visited. How revealing. A patent system which was created (at its very inception) for inventors is now almost entirely dominated by lawyers and attorneys.

Despite all its efforts, the EPO failed to make UPC a reality. Where’s Margot Fröhlinger? Is she still even working at the EPO? Her name is rarely mentioned anymore. This tweet from yesterday — the second of its kind this past week — shows the EPO more or less accepting that the UPC is dead, leaving national European courts to assess patent infringement claims and the underlying patents. Good.

Another day passes and yet another bogus European Patent bites the dust after courts actually assess it. The firm that managed to accomplish this invalidation (“Disclaimer: the author’s firm acted for Accord.”) published this yesterday in Kluwer Patent Blog:

In nullity proceedings initiated by Accord Healthcare (“Accord”) the District Court of The Hague has held Shire-NPS Pharmaceuticals’ (“NPS”) patent EP 1 203 761, the basic patent for an SPC covering cinacalcet, invalid for lack of inventive step and declared the SPC null. In short, the court considered that the (selection of) cinacalcet provided no technical contribution to the prior art, while the skilled person would have selected cinacalcet with a try-and-see approach.

[...]

Accord argued that the skilled person would adopt a neutral try-and-see attitude, because routine testing suffices to determine which of the compounds within the general formula possesses a higher activity than the most active compound from the prior art. Moreover, the prior art explicitly invites the skilled person to do such further testing.

The court follows this line of argumentation. As the prior art encourages the skilled person to do research to find other suitable calcimimetic molecules, the skilled person would not be discouraged by the size and extent of the research (contrary to the above referred to Sandoz/AstraZeneca case where such a pointer was lacking). Also the fact that the general formula disclosed in the prior art comprises a large number of molecules would not discourage the skilled person in his attempt to find other compounds. Therefore, the skilled person would have made the selection and the patent is also under the second question not inventive.

On the same day came this press release from Regen Lab SA [1, 2]; “The European Patent Office (EPO) Disapproves British Court and New U.S. Patent Granted for Regen Lab on Autologous Biological Glue,” said the title, which was circulated quite widely (we found several instances). Can the Office just ignore the courts? To quote:

In Europe, the Regen Lab group (“Regen”) defends one of its patents (EP2073862B, method of PRP preparation) in opposition proceedings before the European Patent Office (EPO), where alleged patent infringers have contested its validity.

Whilst a UK Court has made a finding of invalidity based on prior disclosure and recognized that “it would have been infringed” (Judge Hacon), the EPO issued a second Preliminary Opinion on February 8, 2019 which came to the opposite view on prior disclosure and in relation to costs of the proceedings.

Regen believes it will be able to overturn all the findings of the UK Court on appeal and that the validity of its European patent for the method of PRP preparation will be vindicated by the EPO at the hearing in April.

But all in all the courts determined invalidity; imagine what a EPO-connected UPC would do. As we’ll show in a moment, the Boards of Appeal are a cautionary tale.

As SUEPO warned, nowadays a lot of European Patents turn out to be ‘fake’. Here’s another example from yesterday. Although partly about SPCs (the Team UPC’s biggest obsession), here’s what Rose Hughes wrote: “The case concerned the Genentech’s EP (UK) patent relating to an anti-IL-17A/F antibody (EP1641822). The patent includes claims directed to the antibody and claims directed to the medical use of the antibody, in both Swiss-style and EPC 2000 “second medical use” form.”

Justice Arnold deemed the SPC application invalid. What would the EPO itself have said?

Yesterday Thorsten Bausch explained that the Boards of Appeal judges still lack independence. “I have always queried why the Boards had to move out of the Isar building at all,” he concluded, “and never believed the official excuse that this might help to increase the appearance of the Boards’ independence. Anyway, the hearing rooms are still there, but do not seem to be used much. Will the Boards return one day? Stay tuned!”

Thorsten cited the EPC — a document long forgotten and abandoned by EPO management when he wrote:

In the Board’s view, a referral of the question of the right venue of the oral proceedings (Referral Question 3) to the Enlarged Board of Appeal appears necessary according to Article 112 (1)a) EPC, since the question is of fundamental importance for a large number of appeal proceedings, answering it serves to ensure a uniform application of the law, and the Board considers that a decision on this matter is necessary.

The deciding Board placed much reliance on earlier decisions T 1012/03 and T 689/05, according to which the right to be heard in oral proceedings includes, as a subset of the right to be heard, not only the right to be heard at all, but also the right to be able to present the arguments in the right venue. The right venue is not automatically the seat of the European Patent Organisation referred to in Article 6 (1) EPC, but regularly the venue referred to in Article 6(2) EPC, at which the department responsible for the proceedings within the meaning of Article 15 EPC of the European Patent Convention is located, provided that the venue of the department must be compatible with the European Patent Convention. (T 1012/03, reasons no. 41 et seq.; T 689/05, Reasons no. 5.3).

In the referrings Board’s view, the decision on the question will essentially depend on whether the President of the European Patent Office or the Administrative Council of the European Patent Organization, who empowered the President to rent the new office building and thus approved the relocation of the Boards of Appeal in the municipality of Haar, either had the power to relocate departments of the Office within the meaning of Article 15 EPC also outside the locations mentioned in the EPC (Art 6(2)) including the Centralisation Protocol (Section I(3)a)), or whether Article 6(2) of the EPC is to be interpreted as meaning that “Munich” is not the city of that name, but rather the greater Munich area. The referring Board clearly favours a strict Interpretation of “Munich”.

The way things stand, the EPO cannot offer true justice, it is incapable of delivering high-quality patent grants (Bausch covered the example of Teff less than a week ago), and staff is demoralised. It’s run by incompetent and corrupt officials. As one new comment on that Teff post said (by Jasmine Torres): “I agree with you that no claim granted by the EPO was ever “clear” to a level of 100%. My understanding is that the EPO is hot on clarity at the moment is because it is a metric that is being used to measure patent quality. I do not believe there was ever a significant issue with clarity post-grant prior to this crusade. My worry is that the EPO as an organization is aiming for claims having 100% clarity and perfect ‘form’.”

The patent system is not a collection of prose; it should be about substance and novelty. That requires deep knowledge and experience in particular areas of science; being a polyglot is hardly enough.

Although it is less relates to the EPO specifically, mind this new article by Noel Courage and Donald Bocchinfuso (Bereskin & Parr LLP). This firm tries to sell the ludicrous concept of ‘crowdsourcing’ for patents (it never worked, people and firms have tried it). In its own words:

The CS&E Project started in July 2018, and will run for three years. Detailed information is online, for example, at the WIPO, USPTO and EPO web sites. The first two years are operational, and the third year is to analyse the CS&E’s impact. Unlike previous pilot projects, applicants choose whether they want to apply for the CS&E. Applying is simple — applicants submit a participation request together with their PCT application to one of the IP5 offices (USPTO, EPO, JPO, KIPO, or CNIPA) or the International Bureau. For now, only applications in English are eligible to participate, but applications in other languages will be accepted down the road.

[...]

The EPO has described the response by patent applicants as “overwhelmingly positive” and it reached its quota for the first cohort in Fall 2018. The EPO took on 10 additional French and German patent applications in January 2019, and will take English applications again starting July 1, 2019.

That’s almost half a year from now. The reason such ‘crowdsourcing’ never worked is that volunteers lack the time and will to participate. It means that deep-pocketed large corporations dominate the process and game the system in their favour. It’s no secret that the EPO has long tilted the system in favour of these corporations; every single day the EPO uses the word/term “SMEs” to distract from this ruinous (to its reputation) reality. SMEs can rarely afford (or find incentive for) a day in court, so bogus patents harm SMEs the most.

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