05.20.20

Gemini version available ♊︎

Amid Lock-Down the EPO is Still Laughing at the Law

Posted in Australia, Europe, Law, Patents at 3:30 am by Dr. Roy Schestowitz

The European Patent Convention (EPC 1973) is just a fossil made deprecated by sheer neglect and endless violations

EPO 2020, EPC 1973

Summary: There’s a major discord/disconnect between the EPO as originally envisioned by its founders and today’s EPO which just serves the litigation ‘industry’ along with Monsanto/Bayer, Microsoft, and a large bunch of patent trolls glorified by the EPO

THE tyranny of EPOnia is no laughing matter. People’s lives are being devastated by it. Workers sink into deep depression, which in turn leads to chronic conditions and severe health problems. European scientists and technologists are being blackmailed by a bunch of trolls and other bullies using bogus European Patents that should never have been granted. The European public pays immeasurable patent tax and few people in EPOnia — along with law firms and international ‘patent barons’ — pocket a lot of public money. This contributes to inequality, concentration of power, decrease in competition, and retardation of innovation this necessarily entails. Society suffers profoundly.

To make matters worse, there’s no legal basis for it.

Rose Hughes wrote a second and more detailed post about the Friday (announced on Friday anyway) decision [1, 2, 3, 4] from the Enlarged Board of Appeal (EBA/EBOA) of the EPO, this time focusing on the sausage factory of António Campinos (which resembles Benoît Battistelli‘s war on judges). There were previously worthwhile remarks on how this was done by Campinos also in the corresponding referral regarding software patents in Europe. The short story is, EPO management has just reaffirmed that it violates the EPC by meddling in the affairs of judges; or as Benjamin Henrion put it: “Democracy in patentland [...] Same undemocracy with the UPC, they are allowed to change it on the fly.”

Here are some key parts:

The EPO President referred two questions to the EBA. The President’s first question effectively asked whether the AC is permitted to amend the Rules of the EPC so as to be in conflict with previous interpretations of the Articles by the EBA.

The EBA considered this question too broad, referring as it did to the general question of the competencies of the AC and EBA. The EBA didn’t feel it was necessary to answer such a question. To the EBA, the real issue of the referral was to address the question of the patentability of natural plant and animal products. The EBA further noted that were they to answer “yes” to the President’s first question, this would effectively give the AC “carte blanche to deviate from established case law and give a particular meaning to any Article of the EPC by means of the Rules of the Implementing Regulations. This would open the door to the possibility of circumventing the statutory procedures for amending the Convention itself”. So instead of answering either yes or no, the EBA decided it would be pertinent to re-phrase the question. The EBA therefore combined the President’s questions into a single re-phrased question relating to whether the meaning of the Articles could change over time in view of changes to the Rules.

Admissibility of the Question

To be admissible, a referral from the President to the EBA must relate to a point of law of fundamental importance (Article 112(1) EPC). The EBA acknowledged that the point of law was of fundamental importance because of the wish of the legislator to harmonise the EPO’s and EU’s approach to biotech inventions.

A second requirement for admissibility is that a referral from the President’s to the EBA should relate to a question on which there are conflicting Board of Appeal decisions (Article 112(1) EPC). The Board of Appeal was clear in T 1063/18 (Pepper) that new Rule 28(2) EPC was in contradiction to the previous interpretation of Article 53(c) EPC in G2/12 (Broccoli/Tomato II). Thus the Board of Appeal found that the AC was not competent to amend Article 53(c) EPC by means of Rule 28(2) EPC.

[...]

Simply put, the EBA’s question asked to what extent the interpretation of Article 53(c) EPC may have been changed since G2/12 (Broccoli/Tomato II) by the AC’s introduction of Rule 28(2) EPC. The EBA first reiterated its previous position from G2/12 on the “grammatical, systematic and teleological” interpretation of Article 53(c) EPC. Namely, the EBA interpreted the wording of the Article as clearly excluding essentially biological processes from patentability but not the products of such processes.

The EBA further confirmed that the opinion of the EU commission on the interpretation the EU Biotech Directive was not legally binding on either the EU or EPO. The EU commission had itself accepted that only the CJEU is competent to interpret Union law. As the EBA noted, “to date, no decision concerning the exception to patentability in respect of animals, plants or plant materials obtained by an essentially biological process and the interpretation of Article 4 EU Biotech Directive has been handed down by the CJEU”. The EBA also pointed out that the EPO is independent of the EU, and thus not bound by Union law:

The EBA was further of the opinion that the actions of roughly a quarter of the EPC member states to amend their national legislature to exclude products produced by natural process from patentabilty, was irrelevant. In particular, such actions did not themselves amount to an agreement between the contracting states on the interpretation of Article 53(c) EPC.

[...]

The EBA’s decision in G3/19 can be simply summarised as follows.

EBA: Article means P (under a grammatical, systematic and teleological interpretation)
AC: The New Rule changes meaning of Article to Q.
EBA: Because of the New Rule, Article now means Q.

Therefore, whilst the EBA rephrased the referred questions so as to not consider the appropriateness of Rule 28(2) EPC, G3/19 still seems to none-the-less open the door to the AC to change the EPC by amending the Rules, without unanimous agreement from the contracting states or a diplomatic conference. Finally, the fudging by the EBA to reach its decision in G3/19 will raise questions as to its functioning as an independent body, free from the political influence of the President and AC.

Mind the first commenter (“Anonymous”) and the first comment that says: “May a crude parallel be drawn, pehaps [sic], with the BVerfG’s decision that the UPCA contravenes the German constitution due to violation of the proper procedure for its ratification…?)”

Here’s the full thing:

An excellent account of the distinctly iffy manouevres employed by the EBOA to reach the conclusion desired!

At least one elephant is now situated in the room. Namely, if new Rule 28(2) was not introduced legally – which the EBOA side-stepped considering – can a “dynamic interpretation” of Article 53(c) legitimately arrive at the conclusion reached by the EBOA, if that very interpretation rests upon a rule which was not adopted in a valid manner?

I wonder if we have not seen the last of this. Surely a clever representative can try to get the Boards to look at the issue of whether Rule 28(2) was adopted in a legal manner – and perhaps a Chairman or two close to the end of their careers with the EPO could be persuaded to take a look at this question without the threat of (non-)reappointment hanging over them.

(May a crude parallel be drawn, pehaps [sic], with the BVerfG’s decision that the UPCA contravenes the German constitution due to violation of the proper procedure for its ratification…?)

Someone corrected the above: “I think you mean Article 53(b) not 53(c)?”

“It seems to have become standard practice to just ‘invent’ rules for the sake of patent maximalism.”And another person asked: “I am sure this is a stupid question, but can anyone tell me why the EBoA didn’t say “this doesn’t apply to patents/applications with a filing/priority date before 1 July 2017″. The wording, which refers to grant dates, makes no sense to me. What does this mean for a patent granted on 2 July 2017?”

So the EPC does not matter before some particular day? That does not make sense at all…

It seems to have become standard practice to just ‘invent’ rules for the sake of patent maximalism. This is lawlessness, it is a form of deep corruption.

Here’s a new article from Australia about the EPO’s “video conference (VC)” (promoted under the droll title “Australia can now visit the European Patent Office without jetlag“).

Well, for one thing, this should not be done. This is illegal. Phillips Ormonde Fitzpatrick’s Mary Munroe misses that point. Like all those law firms we’ve mentioned, they never highlight this simple fact. They just don’t care. It’s all about money and “show must go on” (and be charged at $200+ per hour). To quote:

COVID-19 has affected many aspects of conventional life and business and the European Patent Office (EPO) is no exception as social distancing requirements have recently resulted in a decision that all Oral Proceedings before the EPO’s examining divisions are to be held via video conference (VC). While VC facilities have been available to the EPO for more than 20 years, the vast majority of oral proceedings during examination have been held in person at one of the EPO branches in Munich, The Hague, or Berlin. More radically, the EPO have initiated a pilot project to assess the suitability of VC for opposition division oral proceedings which will run from 4 May 2020 until 30 April 2021.

These are interesting developments for Australian applicants of European patent applications for obvious cost savings where representatives no longer incur travel expenses in attending oral proceedings, but more excitingly, for the opportunity to join the VC proceedings, particularly where the EPO agree to schedule an early morning VC.

A couple of hours ago the EPO tweeted: “Want to know how oral proceedings by videoconference work? Find out in this online training course, which includes mock oral proceedings by ViCo in opposition…”

This is not legal, but who cares, right?

Going back to the above thread, the sausage factory gets yet worse. “One could even ask if the EBA has now overstepped its bounds by declaring Article 3 of the AC’s decision void,” said another anonymous comment, reproduced in full below.

I believe the EBA may have overlooked Article 3 of the “Decision of the Administrative Council of 29 June 2017 amending Rules 27 and 28 of the Implementing Regulations to the European Patent Convention (CA/D 6/17)”, which introduced Rule 28(2) EPC. Article 3 states:

“This decision shall enter into force on 1 July 2017. Rules 27 and 28 EPC as amended by Articles 1 and 2 of this decision shall apply to European patent applications filed on or after this date, as well as to European patent applications and European patents pending at that time.”

Hence, Rule 28(2) EPC was introduced with RETROACTIVE effect, including for those pending applications otherwise relying on G 2/12 as laying out the law. I therefore think that the argument for admissibility of G 3/19, namely that T 1063/18 did not interpret the law dynamically and therefore is conflicting with earlier decisions does not hold. Rule 28(2) as introduced by the AC was not introduced dynamically in the sense used by the EBA and the Board in T 1063/18 correctly found that a conflict existed between Rule 28(2) and G 2/12.

One could even ask if the EBA has now overstepped its bounds by declaring Article 3 of the AC’s decision void…

Welcome to the “2020 EPO” (or “EPO 2020″) — a tyranny that mirrors the 2020 Trump Regime — one in which oversight is not allowed (one gets fired for merely looking into allegations of ethical violations) and the rules are made up irrespective of any law, set aside constitutions. The sole goal is absolute power and ‘trickle-up effect’ (passing more wealth to those who already hoard it, then spend waste a tiny portion of it to control the whole system). This is how democracy dies.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. [Teaser] Rape is Not a Joke

    Having just uploaded a police report, we’re starting to move the ongoing series to the next phase, which will still be — for the most part — weekly installments on Mondays (for months to come)



  2. [Teaser] Meet Microsoft’s Chief Architect of GitHub Copilot, Balabhadra (Alex) Graveley

    Alex Graveley, a serial abuser, has been protected by Microsoft; what does that say about Microsoft and about Nat Friedman, GitHub’s CEO whom Alex considers his "best friend"? Stay tuned as we have plenty more to show



  3. IRC Proceedings: Tuesday, December 07, 2021

    IRC logs for Tuesday, December 07, 2021



  4. Links 8/12/2021: FreeBSD 12.3, EasyOS 3.1.13, and WordPress 5.9 Beta 2

    Links for the day



  5. [Meme] EU Assurances

    The EPO‘s staff cannot be blamed for losing patience as elected public representatives completely fail to do their job (with few exceptions)



  6. Clare Daly (GUE/NGL) Does What Every Public Official in Europe Should Have Done About EPO Shenanigans

    There’s another (new) push to hold the EPO accountable, seeing that the overseers clearly do not do their job and instead cover up the abuses



  7. Links 7/12/2021: Firefox 96 Beta and Fedora 37 Abandons ARMv7

    Links for the day



  8. Links 7/12/2021: Plasma Mobile Gear 21.12 and Tails 4.25

    Links for the day



  9. All IRC Logs Now Available as GemText Over Gemini Protocol

    Today we've completed the transition from plain text over gemini:// to GemText over gemini:// for IRC logs



  10. IRC Proceedings: Monday, December 06, 2021

    IRC logs for Monday, December 06, 2021



  11. [Meme] Rowing to the Bottom of the Ocean

    The EPO‘s Steve Rowan (VP1) is failing EPO staff and sort of “firing” workers during times of crisis (not at all a crisis to the EPO’s coffers)



  12. EPO Gradually Reduced to 'Fee Collection Agency' Which Eliminates Its Very Own Staff

    Mr. Redundancies and Mr. Cloud are outsourcing EPO jobs to Microsoft and Serco as if the EPO is an American corporation, providing no comfort to long-serving EPO staff



  13. Linux Foundation 2021 Annual Report Made on an Apple Mac Using Proprietary Software

    Yes, you’re reading this correctly. They still reject both “Linux” and “Open Source” (no dogfooding). This annual report is badly compressed; each page of the PDF is, on average, almost a megabyte in size (58.8 MB for a report of this scale is unreasonable and discriminates against people in countries with slow Internet connections); notice how they’re milking the brand in the first page (straight after the cover page, the 1991 ‘creation myth’, ignoring GNU); remember that this foundation is named after a trademark which is not even its own!



  14. Links 7/12/2021: OpenIndiana Hipster 2021.10 and AppStream 0.15

    Links for the day



  15. Microsoft “Defender” Pretender Attacks Random Software That Uses NSIS for installation; “Super Duper Secure Mode” for Edge is a Laugh

    Guest post by Ryan, reprinted with permission



  16. Links 6/12/2021: LibreOffice Maintenance Releases, Firefox 95 Finalised

    Links for the day



  17. “Wintel” “Secure” uEFI Firmware Used to Store Persistent Malware, and Security Theater Boot is Worthless

    Guest post by Ryan, reprinted with permission



  18. No Linux Foundation IRS Disclosures Since 2018

    The publicly-available records or IRS information about the Linux Foundation is suspiciously behind; compared to other organisations with a "tax-exempt" status the Linux Foundation is one year behind already



  19. Jim Zemlin Has Deleted All of His Tweets

    The Linux Foundation‘s Jim Zemlin seems to have become rather publicity-shy (screenshots above are self-explanatory; latest snapshot), but years ago he could not contain his excitement about Microsoft, which he said was "loved" by what it was attacking. Days ago it became apparent that Microsoft’s patent troll is still attacking Linux with patents and Zemlin’s decision to appoint Microsoft as the At-Large Director (in effect bossing Linus Torvalds) at the ‘Linux’ Foundation’s Board of Directors is already backfiring. She not only gets her whole salary from Microsoft but also allegedly protects sexual predators who assault women… by hiring them despite repeated warnings; if the leadership of the ‘Linux’ Foundation protects sexual predators who strangle women (even paying them a salary and giving them management positions), how can the ‘Linux’ Foundation ever claim to represent inclusion and diversity?



  20. Microsoft GitHub Exposé — Part IX — Microsoft's Chief Architect of GitHub Copilot Sought to be Arrested One Day After Techrights Article About Him

    Balabhadra (Alex) Graveley has warrant for his arrest, albeit only after a lot of harm and damage had already been done (to multiple people) and Microsoft started paying him



  21. The Committee on Patent Law (PLC) Informed About Overlooked Issues “Which Might Have a Bearing on the Validity of EPO Patents.”

    In a publication circulated or prepared last week the Central Staff Committee (CSC) of the EPO explains a situation never explored in so-called 'media' (the very little that's left of it)



  22. Links 6/12/2021: HowTos and Patents

    Links for the day



  23. IRC Proceedings: Sunday, December 05, 2021

    IRC logs for Sunday, December 05, 2021



  24. Gemini Space/Protocol: Taking IRC Logs to the Next Level

    Tonight we begin the migration to GemText for our daily IRC logs, having already made them available over gemini://



  25. Links 6/12/2021: Gnuastro 0.16 and Linux 5.16 RC4

    Links for the day



  26. Links 5/12/2021: Touchpad Gestures in XWayland

    Links for the day



  27. Society Needs to Take Back Computing, Data, and Networks

    Why GemText needs to become 'the new HTML' (but remain very simple) in order for cyberspace to be taken away from state-connected and military-funded corporations that spy on people and abuse society at large



  28. [Meme] Meanwhile in Austria...

    With lobbyists-led leadership one might be led to believe that a treaty strictly requiring ratification by the UK is somehow feasible (even if technically and legally it's moot already)



  29. The EPO's Web Site is a Parade of Endless Lies and Celebration of Gross Violations of the Law

    The EPO's noise site (formerly it had a "news" section, but it has not been honest for about a decade) is a torrent of lies, cover-up, and promotion of crimes; maybe the lies are obvious for everybody to see (at least EPO insiders), but nevertheless a rebuttal seems necessary



  30. The Letter EPO Management Does Not Want Applicants to See (or Respond to)

    A letter from the Munich Staff Committee at the EPO highlights the worrying extent of neglect of patent quality under Benoît Battistelli and António Campinos; the management of the EPO did not even bother replying to that letter (instead it was busy outsourcing the EPO to Microsoft)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts