AT THE USPTO the Patent Trial and Appeal Board (PTAB) is under a constant attack from the patent microcosm. We write about it every week, even several times per week.
"BoA (sometimes through AMBA) repeatedly complains about it, but it doesn't seem like the patent microcosm is genuinely interested in the Boards' side of the story."The EPO's management has basically joined the patent microcosm in attacking its equivalent (sort of) of PTAB, known as BoA (including TBA and EBoA). Their objective is pretty obvious: patent maximalism. The European Patent Convention (EPC) gave BoA complete independence from the Office, but this independence has been brutally shattered by crooked Benoît Battistelli. BoA (sometimes through AMBA) repeatedly complains about it, but it doesn't seem like the patent microcosm is genuinely interested in the Boards' side of the story.
Kate Appleby (Marks & Clerk) has just published this self-promotional puff piece about the Technical Board of Appeal, citing the EPC which Marks & Clerk would gladly ignore/override if that means more income. To quote:
According to Article 54 of the European Patent Convention, an invention is considered to be new if it does not form part of the state of the art. The state of the art comprises everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of a European patent application.
But at what point does a document leave the non-public domain and enter the public domain?
In case T 1050/12, an EPO Technical Board of Appeal was asked to decide on this point in an opposition by Innovacell Biotechnologie AG (IB) to a patent owned by the University of Pittsburgh (UP). The patent concerned skeletal muscle-derived muscle cells, compatible with the tissues of different individuals for use in the repair of smooth muscle. Such cells could be used to treat urinary stress incontinence.
UP's granted patent was opposed by IB on the ground of lack of novelty over several prior art documents. The most relevant document was an abstract of a presentation at a meeting, referred to as D3, which had two authors, both of whom were inventors named on the patent. Every feature of the claims of the patent was held by the Board to be disclosed in D3.
The EPO's Boards of Appeal underwent comprehensive reform in 2017, one of the aims of which was to enshrine their independence by delegating power to the President of the Boards of Appeal. Another aim of the reform –one that will be of particular interest to patentees and opponents - was to increase the efficiency of the Boards. A five-year objective has been set to settle 90% of cases within 30 months, and reduce the number of pending cases to below 7000. However, with almost 9000 appeals pending by the end of 2017, this is no small task.
One question is whether this is realistic; another is the effect that this drive to efficiency could have on the quality of decisions.
The number of new cases filed with the Technical Boards of Appeal in 2017 was 2798, an increase of 1.8% from 2016 and 11% compared to 2013, indicating an upward trend in the number of appeals being filed. Of those filed in 2017, 39% were examination appeals and 61% were opposition appeals. Notably, opposition appeals are slightly quicker to be settled, taking on average 35 months compared to 42 months for examination appeals. While the majority of cases have only been pending for two or three years, some appeals are yet to be decided which were filed as early as 2009. Given the significant length of time of appeal proceedings, it is unsurprising that by the end of 2017 the backlog had grown to over 5200 pending opposition appeals, and over 3600 examination appeals. Furthermore, with an apparent increase in the speed of examination of patent applications by the EPO, it seems likely that the number of appeals being filed will continue to rise.
So, how do the Boards plan to reduce the backlog?
This analysis is based on an EPO Board of Appeal decision (T108/09).
Due to acquired resistance to a particular cancer treatment, it is common for cancer patients to first be treated with a given drug (eg, tamoxifen), then with a second drug (eg, an aromatase inhibitor) as soon as resistance to the first drug occurs, and possibly with a third drug (eg, fulvestrant) as soon as resistance to the second drug occurs. Using fulvestrant as a third line of treatment was considered a novel cancer therapy, although fulvestrant was already known as a first and second-line cancer treatment. Granted Claim 1 reads: “Use of fulvestrant in the preparation of a medicament for the treatment of a patient with breast cancer who previously has been treated with an aromatase inhibitor and tamoxifen and has failed with such previous treatment.”
