01.16.20

The European Patent Organisation Continues to ‘Piss All Over’ Separation of Powers

Posted in Europe, Law, Patents at 10:15 am by Dr. Roy Schestowitz

Nobody speaks for judges’ loss of independence anymore (the European Patent Office controls them instead of the other way around)

Summary: The EPO continues to scatter invalid patents (IPs) that are European Patents (EPs) all over Europe and nobody can stop this, not even the judges of the EPO because they lack independence (by their very own admission)

THE U.S. Patent and Trademark Office (USPTO) deals with both patents and trademarks, so sometimes it wants a “collective” term for both. “AYE PEE” (“IP”) is a misnomer though; “IPR” is even worse because it adds one more lie, falsely implying that patents aren’t just “property” but also “rights” (they’re neither).

António Campinos — like Battistelli — has no excuse for (mis)using legal terms. He runs a patent office, not a “patents and trademarks” office (though he was in EUIPO before) and so far this week we saw the EPO ‘tweeting’ terms like “IP” several times per day. More than the usual…

Remember that any time they push software patents in Europe in defiance of the EPC (or 35 U.S.C. § 101 in the US) they basically try to tell us that code doesn’t need copyrights but patents. That’s baloney. Ask actual developers and coders…

“The law firms want us to view nature and life as “sciences” which are therefore “inventions” that merit patents. Sounds ridiculous? Of course! Because it is.”The EPO’s misleading terminology is contagious and it originally comes from litigation firms/lawyers. In the copyright domain they’ve dubbed infringers “pirates” — same word as used to describe people who raid boats, murdering ship crews (or turning them into hostages if they’re ‘lucky’).

Conflating patents with “AYE PEE” (“IP”) — and that’s how patents are described in this new and typical press release about the EPO [1, 2, 3] — is no laughing matter. It has significant harms.

How about the term “life science”? We wrote several articles about that back in 2018. The law firms want us to view nature and life as “sciences” which are therefore “inventions” that merit patents. Sounds ridiculous? Of course! Because it is.

Nowadays, as the EPO violates all the laws, it can’t seem to see how ridiculous it is. Life Sciences [sic] Intellectual Property [sic] Review has just published:

The European Patent Office (EPO) will refer several questions in the Broad Institute’s ongoing CRISPR patent case to the enlarged board of appeal, meaning the case is set to drag out further.

The appeals board hearing the case made the announcement at the start of proceedings in Munich this morning, January 15.

Under the European Patent Convention (EPC), the enlarged board of appeal is a higher panel which reviews questions of “fundamental importance” that have been referred to it by a lower appeals board or the EPO president.

Speaking in Munich this morning, the appeals board hearing the Broad’s case also clarified that making the referral would mean the current proceedings would be adjourned.

The Broad Institute gave “emphatic objections” to the decision to refer the issues in question, LSIPR understands.

AstraZeneca at IP Kat (guess who’s side is taken on CRISPR) has insinuated judges are cowards even though we see Campinos already meddling in their cases, partly in the open (pushing them to allow software patents). To quote AstraZeneca Kat:

A week before Christmas, the Court of Justice of the EU handed down its judgment in IT Development SAS v. Free Mobile SAS (case C-666/18). The question, referred to the CJEU by the Paris Court of Appeal was, in short, whether the Enforcement Directive (2004/47) and the Software Directive (2009/24) are applicable to those cases in which the infringement of IP rights (the unauthorized alteration of a computer program) also constitutes a breach of contract (typically a licence agreement) between the parties.

In the case, the plaintiff, IT Development, granted a licence to the respondent, Free Mobile, for use of a software package. The plaintiff alleged that the respondent had modified the software in breach of the licence agreement and, accordingly, it sued for “contrefaçon” (a non-contractual type of IP infringement action under French law). The Tribunal de Grande Instance dismissed the suit, arguing that there was no case of liability in tort, given that the respondent “was clearly alleged to have failed to perform its contractual obligations, providing a basis for an action for contractual liability, and not for the tortious act of infringement of software copyright”.

On appeal by the plaintiff, the Paris Court of Appeal asked the CJEU–
whether Directives 2004/48 [Enforcement Directive] and 2009/24 [Software Directive] must be interpreted as meaning that the breach of a clause in a licence agreement for a computer program relating to the intellectual property rights of the owner of the copyright of that program falls within the concept of ‘infringement of intellectual property rights’, within the meaning of Directive 2004/48, and that, therefore, that owner must be able to benefit from the guarantees provided for by that directive, regardless of the liability regime applicable under national law.

As usual, the comments at today’s IP Kat are vastly better than posts. The second comment said: “The world is not so simple as expressed above. Let’s say the priority application contained a rechargeable battery and a charger developed for that battery. These two aspects were developed by two companies and they file a joint application. It turns out that only the charger is novel so the company which developed the charger files an application on it own for the charger claiming priority. Should it be denied the right to priority simply because the EPO has interpreted “any” in a manner contrary to its normal meaning?”

“MaxDrei” took issue with the term “chickening out”:

I sympathise with the Board and think it true but a bit harsh, to characterize a reference as “chickening out”. If ever there was a case deserving of analysis by the EBA, this is it.

I disagree that the crux of the dilemma is special treatment for Americans. I see it, rather, as the burden which the EPO Boards of Appeal carry, to craft a body of law which the rest of the world is unable to disparage, which the RoW can accept as a template for development of its own national jurisprudence.

For example, the existing “Gold Standard” at the EPO is, to my mind, more or less unassailable. But, on matters of ownership of rights, the EPO has less experience, less case law. Further, the way the EPC sets it up, the EPO is not tasked to be the final arbiter of ownership of rights. The EPC envisages this to be a job for the courts.

Then there is the important universal issue of “proportionality”. As Robin Jacob has said: who wants to be a patent attorney, when one moment of inattention to one formality or another can blow away for ever all possibility of any patent rights whatsoever. My view is that one should refrain from punishing excessively something in the nature of a simple oversight. Rather, one should strive to find a remedy that is proportionate and which balances the interests of the parties in dispute.

Sometimes it takes an extreme set of circumstances to expose a defect in the intellectual foundation of the established case law. And once such a shift in perceptions has occurred, one can never again be satisfied with the established case law. So when a TBA is faced with such an extreme example, and inclined to find fault with the established case law, it should put aside any considerations of discourtesy towards esteemed colleagues. Rather, it should work out why the established law is wrong, and then write a Decision so well-reasoned that all those esteemed colleagues reading it with a mind willing to understand will grudgingly accept the force of the argumentation.

Only the next comment mentioned the independence issues:

I concur with MaxDrei, in particular, because

1) the priority issues at stake ARE a point of law of fundamental importance,
2) Art. 112(1)(a) EPC (in contrast to Art. 112(1)(b) EPC) does not require diverging case law,
3) Art. 112(1)(a) EPC does not explicitly require that the questions is decisive for the acutal case (see German version: “hierzu” instead of “hierfür”, i.e., the referral is to be required for a uniform application of the law or for answering a point of law of fundamental importance (and not for the actual proceedings),
4) the external members of the EBoA have to be involved for anwering points of law of fundamental importance, because
a) they are truly independent (e.g., their main income does not come from the EPO),
b) they are less biased from an established (sometimes very questionable) practice of the EPO and/or case law of the BoA.

Like we said earlier this week, we wish “MaxDrei” and others still remembered the outcry of the judges. They aren’t happy being stuck there in Haar with the Office meddling in their affairs. Why is nobody mentioning that anymore? █

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