08.16.19

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The EPO’s War on the Convention on the Grant of European Patents 2000 (EPC 2000), Not Just Brexit, Kills the Unitary Patent (UP/UPC) and Dooms Justice

Posted in Deception, Europe, Patents at 7:10 am by Dr. Roy Schestowitz

1600 Gamer @ Berne Switzerland

Summary: Team UPC continues to ignore the utter failures that have led to lawlessness at the EPO, attributing the demise of the Unified Patent Court (UPC) to Brexit alone and pretending that it’s not even a problem

EUROPE’S second-largest institution, especially under the Battistelli/Campinos autocracy, disobeys the EPC every single day. Many people — the “general public” as one might call them — don’t understand the severity of this. The EPC is like the ‘constitution’ of the European patent system. It’s what gave it its authority, so it’s like a founding document. How would people react if the nuclear safety agencies actively sought to undermine regulations?

“How would people react if the nuclear safety agencies actively sought to undermine regulations?”Fake patents are nowadays nonchalantly being granted by the European Patent Office (EPO); it’s causing chaos. Examiners too warn about this. Illegal patents are then followed by illegality and prevention of essential medicine reaching the market, essential software being written and so on.

Yesterday we saw this new press release about a bunch of patents that had been invalidated only owing to UK High Court intervention (legal fights at this level are very pricey). We wrote about this dispute before and here’s the latest:

Estar Technologies Ltd. (Estar Medical) announced today that Regenlab failed to pay legal costs resulting from two orders made by the UK High Court (Patent Court). The Patent Court awarded Estar Medical extensive legal costs after it revoked the Regenlab PRP patent in its entirety. Regenlab claims it is unable to pay the ordered costs because its access to cashflow is “very limited” and a “restricted amount of liquid funds available”. Regenlab originally asked the Patent Court, in a witness statement submitted by its legal counsel, Mr. Andreas Pigni, to defer the payment which “could have a ‘domino effect’ on the viability of [its] business” and “would impact on Regen’s business in a way that would be difficult to quantify financially but is likely to be substantial and would take significant time for Regen to recover its position”.

The Patent Court judgment is in line with the decision of the Opposition Division of the European Patent Office (EPO) which also revoked Regenlab PRP patent in its entirety for lack of novelty and added mater. The EPO and UK judgments add to Estar Medical’s winning the infringement claim in Germany last year and the venue judgment in Federal Court in New York in which Regenlab also lost against Estar Medical.

Why are such patents being granted in the first place? It’s only good for lawyers, not for anybody else.

The EPO’s management carries on walking ahead as if nothing is wrong. They don’t listen to anyone who blows the whistle, either internally and externally. To make matters worse, the EPO squashes all sources of possible dissent, including supposedly independent branches whose purpose (as envisioned by the EPC) was to regulate, criticise and offer oversight. The EPO just ceased functioning like it was supposed to. It’s uncontrolled and out of control.

“The EPO’s management carries on walking ahead as if nothing is wrong. They don’t listen to anyone who blows the whistle, either internally and externally.”“A Decision of the Supervisory Board amending Rule 25 of the Implementing provisions to the Regulation on the European qualifying examination for professional representatives has been published in the Official Journal,” Roel van Woudenberg notes. His blog is about ‘entry level’ stuff for the EPO, which disobeys the EPC. These people may enjoy plenty of frivolous litigation in years to come, but we know at whose expense.

Earlier this week HGF Limited weighed in on the EPO’s Enlarged Board of Appeal with its oftentimes ludicrous composition. Here is its decision, published originally in French:

The decision of case G01/18 has recently been published in French by the EPO’s Enlarged Board of Appeal (EBoA). The conclusion reached was that late payment of the appeal fee and/or late filing of the notice of appeal results in the appeal being deemed not filed.

[...]

Importantly, this decision provides clarity regarding the status of an appeal and the reimbursement of an appeal fee under the above-explained circumstances. Whilst a surprisingly large number of appeals boards (including one enlarged board in R02/10) had previously found that an appeal should be treated as inadmissible under one of the above-described scenarios, the consequence of these (now determined to be incorrect) rulings was that the appeal fee (€2,255 as of time of writing) was not reimbursed in those cases. Accordingly, the only damage to the prospective appellants in each of the ‘minority’ case law cases due to this misinterpretation of the EPC was financial, with no rights having actually been lost as a consequence. This decision should prevent boards of appeal from taking decisions in future which would deny a refund of the appeal fee under any of the above-described circumstances, whilst also drawing a line under the divergence that had developed in this area of (seemingly) straightforward case law.

Meanwhile, there does not appear to be any rhyme or reason as to why so many appeal boards previously decided that an appeal should be deemed inadmissible rather than not filed under one of the above-explained circumstances. For example, there is arguably a difference between the text of Article 108 EPC depending on the language in which it is read (with the English text more clearly connecting non-filing with failure to meet the two month deadline). However, most of the minority case law decisions were published in English and, therefore, it seems unlikely that the divergence on case law regarding interpretation of Article 108 EPC has been based on differences in translation. Furthermore, the minority case law spans nearly a quarter of a century, with little or no cross-over of Appeal Board members from one case to another.

Scheduled to look into software patents in Europe (or simulations on a computer), this Board is very unlikely to rule in a way that irks the Office. What good are appeal boards that are basically threatened by those whom they're supposed to disagree with?

“What good are appeal boards that are basically threatened by those whom they’re supposed to disagree with?”The above issues are very much visible to and are well understood by the German FCC, which has been stalling decision on UPC/A for about 2 years now. As was clarified recently, there should be no expectation of a decision being reached any time soon. Probably not this year, either…

One can expect Team UPC to twist what was said; it has been doing that for half a decade and it is still lying and making up ‘the facts’. Complete and utter distortion of what was actually said can be seen here: [via]

The federal government is currently suggesting that it will wait for Brexit before the Unified Patent Court (UPC) is allowed to start [sic]. This is the result of an answer to a question from the FDP parliamentary group. In our opinion, however, the Federal Government is firmly bound to the will of Parliament and must implement the Ratification Act with the signature of the Federal President without delay.

Complete nonsense. Lots of lies in that one single paragraph, but that’s the usual from Team UPC. There are many barriers facing the UPC, not only in Germany (several raised in the complaint, at least four!) but in other countries as well. Of course Team UPC pretends it’s as simple as “Brexit happens, then UPC!” and “everybody wants it!!!”

“All those law firms that lobby heavily for the UPC basically say (not out loud), “to hell with the law, to hell with constitutions. WE. WANT. MONEY!” Just like the EPO’s management.”The false perception and bogus narratives surrounding UPC are partly due to pro-UPC events, funded in part by the EPO and set up by think tanks. Managing IP did several of those, as did IAM. There are similar think tanks in the US, doing the same thing to influence the U.S. Patent and Trademark Office (USPTO). In the case of the EPO, it went as far as funding pro-UPC events in the US (another continent!).

Earlier this week we saw this latest nonsense called “IP STARS” — the paid-for/fake endorsement from a think tank of litigation firms and patent trolls. They’re sponsors of Managing IP, a publisher as well as lobbying front that does biased events with stacked panels.

What’s troubling about all this is that the UPC is unconstitutional and it’s also impeded by gross violations of the EPC. All those law firms that lobby heavily for the UPC basically say (not out loud), “to hell with the law, to hell with constitutions. WE. WANT. MONEY!” Just like the EPO’s management.

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