08.01.19

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The Boards’ (of Appeal) Fear of Enforcing the Law (EPC) Will Doom the European Patent Office

Posted in Courtroom, Europe, Law, Patents at 4:07 pm by Dr. Roy Schestowitz

It’s just a big bubble waiting to burst

Big bubble

Summary: The Convention on the Grant of European Patents 2000 (EPC 2000) is totally meaningless judging by the actions of today’s EPO and the scope of European Patents; this means that a bubble is being inflated pending an inevitable implosion

European Patent Office-granted patents (EPO patents or European Patents, EPs) are rapidly losing their value, just like USPTO-granted patents after 35 U.S.C. § 101.

Team Campinos/Battistelli doesn’t think long-term; like CEOs of companies all they care about is quarterly or annual “targets”; quality isn’t part of it and one might call quality an “obstacle” (it slows things down when all one is willing to measure is “products”, numerically).

“Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC. They’re toothless now.”The EPO was supposed to be self-correcting, but the EPC was violated in many possible ways. There’s no separation of powers. Last month we saw EPO ‘justice’ in a nutshell — a stacked panel of judges refusing to even deal with the question of the EPC being violated (instead deeming the very question ‘inadmissible’). Who are they kidding?

Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC; they’re toothless now. They cannot do their job. But Marks & Clerk, being the patent maximalist it has always been, chose to focus on upcoming rule changes:

In a meeting of its Administrative Council on 26 and 27 June, the European Patent Office (EPO) approved new Rules of Procedure for its Boards of Appeal (RPBA), which will come into force on 1 January 2020 (“RPBA 2020”). This approval comes after a consultation process, which saw 140 comments made on a first draft and a conference held in Munich in December 2018 to discuss a second draft, amendment of which has led directly to the RBPA that will now come into force. Although the full effect of these rules on practice before the EPO, not only in appeals but probably also in first instance proceedings, will only become clear once these rules have come into effect, it is generally understood that the new rules are likely to be more burdensome on parties than the existing rules and we recommend that cases presently on appeal at the EPO, or which may be the subject of appeals, be reviewed as soon as possible in case potentially beneficial action may be taken before the new rules come into effect.

The EPO’s Boards of Appeal have exclusive jurisdiction to decide upon appeals against so-called first instance decisions handed down by other departments of the EPO, for example decisions in oppositions to granted European patents and decisions refusing European patent applications. The RPBA are binding upon the Boards, “provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the [European Patent] Convention” (Article 23 RPBA, unamended).

[...]

There are still further changes that will come into effect on 1 January 2020, which we have not discussed. These include the possibility for Boards to issue decisions in which the reasons are given in abridged form or partially abridged form; and timescales for Boards to issue decisions. Additionally, if a Board’s rapporteur is asked to do so by the Board’s Chair, (s)he will assess whether or not more than one appeal should be handled together or whether any appeals should be taken out of turn, seemingly for reasons of overall procedural economy.

[...]

Lastly, in view of the future importance of decisions from first instance proceedings on appeal proceedings, not to mention that of the minutes of any first instance Oral Proceedings, these (both decisions and minutes) will need to be considered to a greater extent than before, to minimise the possibility that subject-matter presented on appeal may be regarded as an amendment, which could potentially be inadmissible.

So “inadmissible” again? Does anyone still believe that the rule of law prevails at the EPO? Not even EPO staff believes that anymore. Alluding to the Enlarged Board of Appeal decision G05/83, Tim Fitzgerald and Michael Finney (IP Gateway Patent and Trade Mark Attorneys and Bennett & Philp Lawyers, respectively) have just mentioned Swiss-type patent claims, affirming our observation that the EPO became extremely lenient when it comes to patent quality:

Swiss-type claims were originally approved by the Swiss Patent Office as a mechanism to allow for protection of a new therapeutic use of a known compound (i.e., second or further medical use), given prohibition of claims to methods of medical treatment.[1] The claim format was subsequently accepted at the European Patent Office (EPO) and affirmed in the Enlarged Board of Appeal decision G05/83. In particular, the Enlarged Board held that it was “legitimate in principle” to allow Swiss-type claims where the formulation was for a specified new and inventive therapeutic application, even where the process of manufacture did not differ from known processes using the same active ingredient.

Under the provisions of the Convention on the Grant of European Patents 2000 (EPC 2000), claims in the format “Compound X for use in treating condition Y” (‘European use format’) are construed as use-limited for novelty purposes, and Swiss-type claims are no longer allowable in Europe.[2] Nevertheless, previously issued European patents containing Swiss-type claims have the potential to remain in force until at least 2031.[3] In recent years, there has been substantial judicial assessment of infringement requirements for Swiss-type claims of existing European patents, including in the UK.[4]

The Boards of Appeal of the European Patent Office cannot be viewed as an independent judiciary anymore. It’s not their fault, either. The Office colluding with a supine Administrative Council did this and terrorising the Boards’ judges sure leads to acceptance of whatever the Office wants. Unless one wishes to risk unemployment, demotion, slander and even public mobbing.

“The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.”What has meanwhile emerged (also today) is an upcoming patent case. The UK Supreme Court might soon throw out some more questionable European Patents granted by the EPO (it throws out many such patents these days). There’s one particular patent at stake here. It still exists because of the EPO Boards of Appeal:

Entyvio is an anti-integrin used to treat ulcerative colitis and Crohn’s disease. Entyvio recently outperformed Abbivie’s Humira in a ulcerative colitis phase 3b clinical trial and sales of Entyvio reached $1.37 billion in the nine months to December 2018. Roche claimed that Entyvio infringed its European patent EP 2 007 809. The patent had been maintained in amended form by the EPO Boards of Appeal following an opposition by GSK and Novartis (T1784/15). Takeda denied infringement and brought a revocation action in the UK courts against the patent.

The patent related to a modified antibody structure that reduced the capacity of the antibody to cause unwanted cell death. Particularly, Claim 1 of the patent related to a glycosylated human monoclonal antibody, characterised by the fucose content of its sugar chain: at least 99% fucosylation (as measured by LCMS peptide mass analysis). Although not mentioned in the patent in words, Roche argued that the high level of fucosylation abolished the ability of the antibody to cause cell death (as shown in the Figures of the patent).

Judging by recent rulings from the same court, there’s a good change the patent and the lawsuit will be thrown out (at the highest court in Britain). There’s also this new update on the German Supreme Court (BGH) deciding in relation to the EPC (“The European Patent Office (EPO) has developed a standing practice with regard to the enablement requirements (Art. 83 EPC) with regard to claims…”), but it’s behind a paywall. Many predict — and quite rightly in fact — that in the coming years the gross discrepancy between the EPC and EPO will become visible in courts outside EPOnia, reducing legal certainty and valuations of EP portfolios. The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.

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