Roland Grossenbacher's dissent

Summary: In the absence of Benoît Battistelli quality control at the EPO is still not effective; patents are being granted like the sole goal is to increase so-called 'production' (or profit), appeals are being subjected to threats from Office management, and external courts (courts that assess patents outside the jurisdiction of the Office/Organisation) are being targeted with a long-sought replacement like the Unified Patent Court, or UPC (Unitary Patent)

TODAY'S European Patent Office (EPO) is the same place it was half a year ago, except António Campinos (Battistelli's choice) is in charge and his 'boss' (also Battistelli's 'boss') will soon be his assistant instead. It's just about as backwards as it sounds and it's hardly surprising that patent quality continues to decline. The Office now openly promotes software patents in Europe, knowing that not even judges associated with the Organisation will dare stop this (and they work to replace outside judges too, at least hoping to with the UPC).

Some readers have been in touch with us regarding the Boards of Appeal Committee (BoAC) and the Boards of Appeal of the EPO (BoA). Some important things happened this week and notable among them are aspects we shall cover below as concisely as possible (due to lack of time mostly).

The EPO is expectedly not covering any of the important news. As a decoy from corruption, for instance, the EPO tweeted almost nothing yesterday except: "It was an immense honour to receive the Corporate Art Award€® 2018 for international cultural initiatives at the ceremony held within the European Parliament. Thank you!"

We mentioned this puff piece yesterday and its likely intended (albeit subconscious) purpose. Battistelli used to do that quite a lot. We don't wish to dwell on it; neither should examiners. Also retweeted by the EPO yesterday was this UK-IPO tweet about a CIPA-centric event in London, scheduled for next week. To quote: "We are teaming up with @EPOorg to deliver an online services workshop, making online filing easier to understand. Join us on 13 or 14 Dec at @TheCIPA in #London."

CIPA is the most prominent lobby of Team UPC and there's no sign of the UPC ever materialising (another false rumour about decision by year's end). Citing an interview from September with Kevin Mooney (Team UPC), never mind the court's refutation shortly after that (it responded to an inquiry from JUVE), Team UPC quoted out of the blue: "On DE [German] #UPC constitutional complaint: “The delay of 18 months in reaching a decision is quite astonishing for an English lawyer.” - Kevin Mooney in JUVE Patent interview. https://www.juve-patent.com/news-and-stories/legal-commentary/im-a-pragmatist-there-will-be-a-upc-agreement/ …

They're just complaining about courts (a constitutional court even!) while trying to push a kangaroo court for patents. Their disdain for justice, law, democracy and even constitutions is rather revealing. All they care about is money in the form of legal bills. Shall they ever get their way, any thought will be patentable and taxed; the courts will not even assess merit of patents and instead act like rubber-stamping tax authorities.

Perhaps timed strategically for the BoA, Doctors Without Borders issued a statement that we wrote about yesterday. "Doctors Without Borders and five organizations have appealed the European Patent Office’s decision upholding Gilead Sciences Inc.’s patent for the hepatitis C drug sofosbuvir, the international nonprofit announced on Wednesday," Tiffany Hu wrote. On the same day Neha Bakshi and some other blockchain-centric sites relayed the EPO's latest propaganda for software patents (event about blockchains). "This criterion came into existence on the basis of case law associating the computer implementing inventions," they said. In the United States, 35 U.S.C. €§ 101 would invalidate such patents; in Europe the EPC would do the job, but only if it exits the Office and reaches truly independent courts. As happened before...

We must express our sheer disappointment if not disdain for IP Kat (nowadays connected to CIPA and Team UPC). As recently as yesterday it was publishing puff pieces for the EPO's management (to help the promotion of software patents). That was rather revealing from Frantzeska Papadopoulou, whose blog colleague Rose Hughes wrote that "IPKat ha[d] received breaking news that the Technical Board of Appeal (TBA) yesterday decided that recently amended Rule 28(2) EPC is in conflict with Art. 53(b) EPC as interpreted by the Enlarged Board of Appeal in G 2/12 (Broccoli/Tomato II). Further, according to the Art. 164(2) EPC the Articles prevail, thus rending the R. 28 amendment void."

A correction was needed. "One correction," the sole comment said. "Solynta filed observations in support of Syngenta's position that the rule was incorrect, as did multiple other parties."

We wrote about this yesterday. We were not exactly surprised to see a Board of Appeal ruling the way EPO management, i.e. patent maximalists, would want. These people lack independence and Campinos has done absolutely nothing to correct this. He doesn't care. It's not even on the agenda.

Adam Lacy and Thorsten Bausch have meanwhile written about the patent procedures, taking note of the fact that Roland Grossenbacher now speaks on behalf of the Boards of Appeal Committee (BoAC).

"I thought Roland Grossenbacher had at long last retired, and am therefore to see him donning a new hat," one comment pointed out. Battistelli's chinchilla is also in the BoAC.

Here's what Lacy and Bausch (Hoffmann Eitle) wrote yesterday:

As European patent professionals are all too aware, the Boards of Appeal of the EPO (BOA) have a huge amount of power, particularly over the rights of patentees. In EPO opposition proceedings, the BOA have the final say on whether to revoke a patent across all of the EPC contracting states. This does not apply to parties opposing European patents at the EPO, who live to fight another day in the form of national invalidity proceedings if they fail to persuade the BOA to revoke a patent.

In this light, it is with some concern that we attended the User consultation conference on the Rules of Procedure of the Boards of Appeal (RPBA) held by the EPO in Munich yesterday, where the latest draft RPBA was up for discussion.

The conference was opened by Roland Grossenbacher on behalf of the Boards of Appeal Committee (BOAC) and Carl Josefsson, President of the BOA. Justice Colin Birss did a brilliant job to moderate the conference and manage the sometimes critical contributions from the audience, not shying away from sharing his own experiences as a UK judge and former barrister with the audience. Markus Müller gave an excellent presentation on case management aspects under the new RPBA, before it was Mike Harrison’s turn to explain the procedural hardships provided in the new rules to an audience that was not always amused by them. He recognised that he had drawn the short straw with this assignment and valiantly defended the current draft.

It seems to us that the main purpose of the new RPBA is to make proceedings more efficient and thus help the BOA clear their significant backlog. We are sceptical though whether the new RPBA will actually achieve this aim and we are concerned that the main legacy of this draft will likely be that the EPO system will be skewed even more in the favour of opponents, contrary to the principle of “equally fair treatment” for parties to the appeal set out in G 9/91. Thus, while we welcome many of the new rules of procedure and stand behind their general principles and ideas, we would like to consider a few Articles in more detail in the following where we have concerns from a patentee’s perspective.

This "significant backlog" is a subject we covered here before; the last thing EPO management wants is an effective and efficient BoA that serves to highlight sharp decline in patent quality. As one comment then points out (about Auxiliary Requests):

The natural response of patentees to the proposed changes will be to file more Auxiliary Requests, in order that there are sufficient Requests on file at 1st instance to address every possible (win/lose) permutation for all of the objections raised by the opponents, irrespective of the apparent strength of each of those objections. Even with only a small number of objections under each heading, this could give rise to an alarming number of permutations, especially if any of those objections can be addressed in a number of different ways.

Whilst this would be an understandable response on the part of patentees, it will place an increasingly impossible (and expensive) burden on opponents, especially if – as is entirely predictable – it results in huge numbers of ARs being filed at the stage of final written submissions (ie after the patentee is in receipt of the OD’s preliminary opinion). It will also make it increasingly difficult for oral proceedings to be completed in the allotted time frame without depriving parties the opportunity of a fair hearing with regard to each ground of objection for each admissible request.

It therefore stands to reason that there is absolutely no point limiting the patentee’s ability to amend his case at the appeal stage unless and until there is robust case management at 1st instance. The Boards of Appeal may well be independent but that does not mean that they should be free to introduce rules that, by turning a blind eye to structural defects in the 1st instance procedure, systematically deprive parties of their right to be heard.

And more on Auxiliary Requests from a familiar person (who used to comment in IP Kat until they became aggressive with censorship and self-censorship):

As to the sure fire prediction of an obscene proliferation of Auxiliary Requests, early on in the opposition proceedings, one recalls that the more than likely consequence of an unimaginative amendment of the Rules intended to improve speed and efficiency is to render the proceedings more complex, lengthy and inefficient. Recall, for example, the misconceived and misbegotten rule changes to cap the length of time in which the filing of a divisional is permitted, the resulting ridicule and abuse, and the swift setting aside of those rule changes. The Law of Unintended Consequences is all-pervasive.

I suppose an EPO fee to be paid on each and every Auxiliary Request (or after the first fifteen Requests) would require an Intergovernmental Conference to implement. But it might curb the worst excesses of AR proliferation. Consider how Americans, otherwise willing to stump up large amounts of money, baulk at giving the EPO any claims fees at all. Sometimes, it is best to approach public policy objectives obliquely rather than explicitly. By a nudge rather than a prohibition.

Bloggers, one more thing to think about, when whingeing that these new Rules are anti-patentee.

Might this not be the “hidden agenda” behind the rule changes? We live in times where a lot of influential people see each and every patent as an unwanted restraint of trade, so that the sheer numbers of issued patents has to cropped down to a minimum, regardless what inventors have against that public policy objective. Get rid of all “trivial” patents at all costs, they demand. Uphold only those where the contribution to the art is, from the outset, the application as filed on the priority date, self-evident, substantial and clear.

If so, those pushing for implementation of the rule changes will be delighted with this assessment by members of the Hoffmann Eitle firm.

We don't suppose that the BoA is going away; after all, the UPC/A is pretty much dead and it's not getting anywhere. But in the absence or lack of such 'rubber-stamping authority' (fast track for injunctions, raids and penalties) the EPO's management is at least hoping to undermine other form of patent quality control. Who will suffer? Europe. ⬆