08.11.20

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Europe Deserves Better Than Today’s EPO

Posted in Europe, Patents at 5:29 am by Dr. Roy Schestowitz

Forbidden is better

Summary: Overly restrictive society with countless monopolies (even on seeds!) will neither serve people nor will it breed general acceptance

THE European Patent Office (EPO) which I once respected — the office that didn’t pursue software patents “as such” (unlike the USPTO) — is gone. It has been long gone, predating even Benoît Battistelli although President Brimelow wasn’t anywhere as grotesque as him and I sometimes found her amicable, unlike António Campinos (he’s not amicable, he’s 100% faking it!).

As a proponent of the EU I’ve long viewed the EPO as something that might be OK, especially if it shapes its policy based on Europe’s needs (like developers’ and customers’ needs) rather than Team UPC’s (litigation parasites). Battistelli and Campinos keep making it very clear whose side they're on and it's not Europe's. Look no further than all the UPC propaganda they’ve been flinging out there for a decade, basically lying to the European public.

The truth of the matter is, even UPC proponents have virtually given up by now. So many nails on their coffins are adding up.

Osborne Clarke’s Xavier Pican, Gaspard Debiesse, Will James and Johannes Graf Ballestrem — in Lexology and the firm’s own site — show the growing trend, wherein law firms are either absolutely silent about UPC (when did Bristows last mention it?) or acknowledging that this “paper giant” (their term) is likely dead, but they continue to downplay this death:

Will we ever see the Unified Patent Court operate? Many have doubts, as its path – already long and difficult – runs into new obstacles and the venture looks more and more like a “paper giant”.

IAM produced countless “fake news” items about the UPC, hoping to give it momentum based on deliberate falsehoods and distortions.

Let’s hope — although chances seem slim — that something can suddenly change in a major way. Maybe the Council of Europe can do something, recognising the EPO crisis and impending layoffs as a sign of things gone awry. The courts and national governments in German and Dutch territories certainly don’t plan to do anything; the EPO is their cash cow.

Resistance to the patent system as a whole will continue to grow (disdain for the very concept) if things carry on like this. COVID-19 is already changing many people’s attitude towards monopoly on medicines/vaccines and seeing the dysfunctional state of the EPO can contribute to that. For the patent system to survive it will simply have to earn consent/respect from the general public.

The other day Bardehle Pagenberg’s Axel B. Berger and Kerstin Galler boosted their article about “patentability of plants and animals in Europe” and another one by Jennifer Bailey (HGF Ltd) highlighted the absurdity of a patent office ever so eager to grant patent monopolies on life and on nature (“Battle Over Beer Patents Brewing At The European Patent Office”). To quote what she said some days ago:

Oppositions launched by 16 organisations against patents for mutant barley owned by Carlsberg & Heineken highlight the tensions that exist over the grant of monopolies for plant products. We consider which party will most likely be raising a glass to victory in light of recent legal changes, and the lessons applicable to patentees across the spectrum of plant innovation.

A recipe for dispute

The patents in question, EP2384110 (EP’110) and EP2373154 (EP’154), relate to a beverage prepared from a barley plant carrying a particular mutation, and the mutated plants themselves. EP’110 covers barley plants comprising mutations that cause loss of functional lipoxygenase (LOX)-1 and LOX-2 enzymes, while the mutation described in EP’154 causes functional loss of methionine S-methyltransferase (MMT). These mutations are said to improve the taste of the resulting beer.

The patents were opposed by a group of organisations represented by Dr Cristoph Then of the campaign ‘NO PATENTS ON SEEDS!’. The opponents object that the patents cover conventionally bred barley, which they argue is excluded from patent protection by Article 53(b) of the European Patent Convention.

[...]

In the case of EP’110, the EPO’s Opposition Division noted that plants carrying a mutation introduced by technical means, such as incubation of seeds with a mutagen, are not excluded from patent protection. Nevertheless, the claims were considered to encompass both plants created by technical means and plants obtained by an essentially biological process, the latter falling foul of Rule 28(2). As such, the patent was found invalid.

The patentees overcame this problem by clarifying that the barley plant had not been exclusively obtained by an essentially biological method. However, the Opposition Division then deemed the claimed plant to be insufficiently disclosed. Although the patent described one method of making a mutant plant (the seeds of which were deposited in a publicly accessible culture collection), this method relied on random mutagenesis and subsequent screening of 35000 mutants, placing an undue burden on someone trying to reproduce the invention. Accordingly, it was held that the patent does not enable the skilled person to obtain any mutant barley plant lacking functional LOX enzymes, but only the specific mutant deposited. This appears consistent with established case law on sufficiency, as re-affirmed by the UK’s Supreme Court in Regeneron v Kymab.

Can the EPO not understand that these patents cause grassroots organisations to rebel against the system as a whole? If the EPO cares about Europe’s future and the very decree upon which it exists, then it’ll stop doing all these inane/insane things. What’s so hard to understand here? As we put it 2 years ago, “The Enemies of the Patent System Are Patent Maximalists, Not Those Pursuing Saner Patent Policy“.

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