Bonum Certa Men Certa

The Boards' (of Appeal) Fear of Enforcing the Law (EPC) Will Doom the European Patent Office

It's just a big bubble waiting to burst

Big bubble



Summary: The Convention on the Grant of European Patents 2000 (EPC 2000) is totally meaningless judging by the actions of today's EPO and the scope of European Patents; this means that a bubble is being inflated pending an inevitable implosion

European Patent Office-granted patents (EPO patents or European Patents, EPs) are rapidly losing their value, just like USPTO-granted patents after 35 U.S.C. ۤ 101.



Team Campinos/Battistelli doesn't think long-term; like CEOs of companies all they care about is quarterly or annual "targets"; quality isn't part of it and one might call quality an "obstacle" (it slows things down when all one is willing to measure is "products", numerically).

"Over at Lexology, Marks & Clerk's Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC. They're toothless now."The EPO was supposed to be self-correcting, but the EPC was violated in many possible ways. There's no separation of powers. Last month we saw EPO 'justice' in a nutshell -- a stacked panel of judges refusing to even deal with the question of the EPC being violated (instead deeming the very question 'inadmissible'). Who are they kidding?

Over at Lexology, Marks & Clerk's Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC; they're toothless now. They cannot do their job. But Marks & Clerk, being the patent maximalist it has always been, chose to focus on upcoming rule changes:

In a meeting of its Administrative Council on 26 and 27 June, the European Patent Office (EPO) approved new Rules of Procedure for its Boards of Appeal (RPBA), which will come into force on 1 January 2020 (“RPBA 2020”). This approval comes after a consultation process, which saw 140 comments made on a first draft and a conference held in Munich in December 2018 to discuss a second draft, amendment of which has led directly to the RBPA that will now come into force. Although the full effect of these rules on practice before the EPO, not only in appeals but probably also in first instance proceedings, will only become clear once these rules have come into effect, it is generally understood that the new rules are likely to be more burdensome on parties than the existing rules and we recommend that cases presently on appeal at the EPO, or which may be the subject of appeals, be reviewed as soon as possible in case potentially beneficial action may be taken before the new rules come into effect.

The EPO’s Boards of Appeal have exclusive jurisdiction to decide upon appeals against so-called first instance decisions handed down by other departments of the EPO, for example decisions in oppositions to granted European patents and decisions refusing European patent applications. The RPBA are binding upon the Boards, “provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the [European Patent] Convention” (Article 23 RPBA, unamended).

[...]

There are still further changes that will come into effect on 1 January 2020, which we have not discussed. These include the possibility for Boards to issue decisions in which the reasons are given in abridged form or partially abridged form; and timescales for Boards to issue decisions. Additionally, if a Board’s rapporteur is asked to do so by the Board’s Chair, (s)he will assess whether or not more than one appeal should be handled together or whether any appeals should be taken out of turn, seemingly for reasons of overall procedural economy.

[...]

Lastly, in view of the future importance of decisions from first instance proceedings on appeal proceedings, not to mention that of the minutes of any first instance Oral Proceedings, these (both decisions and minutes) will need to be considered to a greater extent than before, to minimise the possibility that subject-matter presented on appeal may be regarded as an amendment, which could potentially be inadmissible.


So "inadmissible" again? Does anyone still believe that the rule of law prevails at the EPO? Not even EPO staff believes that anymore. Alluding to the Enlarged Board of Appeal decision G05/83, Tim Fitzgerald and Michael Finney (IP Gateway Patent and Trade Mark Attorneys and Bennett & Philp Lawyers, respectively) have just mentioned Swiss-type patent claims, affirming our observation that the EPO became extremely lenient when it comes to patent quality:

Swiss-type claims were originally approved by the Swiss Patent Office as a mechanism to allow for protection of a new therapeutic use of a known compound (i.e., second or further medical use), given prohibition of claims to methods of medical treatment.[1] The claim format was subsequently accepted at the European Patent Office (EPO) and affirmed in the Enlarged Board of Appeal decision G05/83. In particular, the Enlarged Board held that it was "legitimate in principle" to allow Swiss-type claims where the formulation was for a specified new and inventive therapeutic application, even where the process of manufacture did not differ from known processes using the same active ingredient.

Under the provisions of the Convention on the Grant of European Patents 2000 (EPC 2000), claims in the format "Compound X for use in treating condition Y" ('European use format') are construed as use-limited for novelty purposes, and Swiss-type claims are no longer allowable in Europe.[2] Nevertheless, previously issued European patents containing Swiss-type claims have the potential to remain in force until at least 2031.[3] In recent years, there has been substantial judicial assessment of infringement requirements for Swiss-type claims of existing European patents, including in the UK.[4]


The Boards of Appeal of the European Patent Office cannot be viewed as an independent judiciary anymore. It's not their fault, either. The Office colluding with a supine Administrative Council did this and terrorising the Boards' judges sure leads to acceptance of whatever the Office wants. Unless one wishes to risk unemployment, demotion, slander and even public mobbing.

"The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It's the cost of mismanagement."What has meanwhile emerged (also today) is an upcoming patent case. The UK Supreme Court might soon throw out some more questionable European Patents granted by the EPO (it throws out many such patents these days). There's one particular patent at stake here. It still exists because of the EPO Boards of Appeal:

Entyvio is an anti-integrin used to treat ulcerative colitis and Crohn's disease. Entyvio recently outperformed Abbivie's Humira in a ulcerative colitis phase 3b clinical trial and sales of Entyvio reached $1.37 billion in the nine months to December 2018. Roche claimed that Entyvio infringed its European patent EP 2 007 809. The patent had been maintained in amended form by the EPO Boards of Appeal following an opposition by GSK and Novartis (T1784/15). Takeda denied infringement and brought a revocation action in the UK courts against the patent.

The patent related to a modified antibody structure that reduced the capacity of the antibody to cause unwanted cell death. Particularly, Claim 1 of the patent related to a glycosylated human monoclonal antibody, characterised by the fucose content of its sugar chain: at least 99% fucosylation (as measured by LCMS peptide mass analysis). Although not mentioned in the patent in words, Roche argued that the high level of fucosylation abolished the ability of the antibody to cause cell death (as shown in the Figures of the patent).


Judging by recent rulings from the same court, there's a good change the patent and the lawsuit will be thrown out (at the highest court in Britain). There's also this new update on the German Supreme Court (BGH) deciding in relation to the EPC ("The European Patent Office (EPO) has developed a standing practice with regard to the enablement requirements (Art. 83 EPC) with regard to claims…"), but it's behind a paywall. Many predict -- and quite rightly in fact -- that in the coming years the gross discrepancy between the EPC and EPO will become visible in courts outside EPOnia, reducing legal certainty and valuations of EP portfolios. The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It's the cost of mismanagement.

Recent Techrights' Posts

Microsoft Windows Falls to 19% in Congo, Only About 1 in 8 Windows Users (or 2-3% of Web Users) Are on Vista 11
The estimated share of Vista 11 fell sharply this past month
Twitter as X-Rated Hatred: Criticising Microsoft is Not OK, Calling for Beheadings (With Bounties on People's Heads) is OK
Twitter automation missed 'hit job' advertising
 
Another Case Study Regarding Edge's Death
people adopt Chrome and a lot more people use obscure browsers than adopt the latest Edge
[Meme] A Question of Interests
'The Internet? We are not interested in it.' -Bill Gates, 1993
In the Romanian Browser Market, Microsoft is the 2% (Edge Down to 2.3%)
the Wintel era has ended
Gemini Links 17/08/2024: Selfishness and Offline BBSing
Links for the day
Frans Pop & Debian Day 2024: 31 years of deception and modern slavery
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 16, 2024
IRC logs for Friday, August 16, 2024
Links 16/08/2024: YouTube Bans and Surveillance Expanded
Links for the day
We Were Right All Along and the Collaborators of Microsoft Helped Competition Crimes of Microsoft
Once again vindicated regarding UEFI "secure boot"
[Meme] The New Windows Slogan
stat me up
Addendum: Associate's Notes on Free Software as a Labour Issue and the Connectivity Swindles
these are related issues/causes
Microsofters Infiltrating Roles of Authority and Government Positions to Protect Microsoft and to FUD Microsoft's Competition
friends of Microsofters who bully me and my wife
Links 16/08/2024: UK Skills Deficit and Kim Dotcom to be Extradited to the US (for Doing the Same Stuff GAFAM Does)
Links for the day
Gemini Links 16/08/2024: Overgeneralisation and Games
Links for the day
Russia's Yandex 5 Times Bigger Than Microsoft... in Ukraine
They'd rather rely on the Kremlin than on Microsoft
[Meme] Gemini is Different, So What?
different, not worse
Now It's "Official": Over 4,000 Known Gemini Capsules in Lupa
For the first time ever
Clown Computing
Reprinted with permission from Dr. Andy Farnell
[Meme] What Freedom Means to IBM
Free labou
Balancing Activism Against (or With) Basic Necessities and Daniel Cantarín on Our Collective Battle for Software Freedom Around the World
"I'm VERY angry about lots of stuff happening here in Argentina, all of it shielded behind the word "freedom"."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 15, 2024
IRC logs for Thursday, August 15, 2024
From 99% in 2012 to 27% in 2024: How Microsoft Lost Georgia
What we're seeing is a migration from Windows to other platforms, notably GNU/Linux
To Understand Cisco's Mass Layoffs Look at the Company's Soaring Debt (Same at Microsoft)
Look what's happening to Intel - down almost 60% since the start of the year, 57% to be precise
Windows Flying Low at 25%
It's another all-time low
[Meme] Long Texts You Never Bother Reading (Because Life is Too Short, Unlike Those Texts)
The devil is in the terms of service
Links 15/08/2024: Monkeypox Hysteria and Modern Homesteaders Living Off the Grid
Links for the day
Gemini Links 15/08/2024: Confession of a Convention Game Master and Some Release nostalgia
Links for the day
Congratulations to Romania, Where Windows is Now "Minority Market Share" Platform
Time will tell if GNU/Linux can pass 5% on the desktop/laptop "form factor" there
Why It Matters That 4,000 Gemini Capsules Are Known to Lupa and Why Gemini Protocol Matters to Us
I have no doubt Gemini Protocol will continue to expand because it solves a real problem
Links 15/08/2024: Avast Surveillance Scandal Unsolved and Facebook Still Censors Terror Sympathisers
Links for the day
Daniel Cantarín's Response to Alexandre Oliva's Talk on Achieving Software Freedom in the Age of Platform Decay
Soylent News caught up with the series
4,000 Gemini Capsules
it's basically one capsule short of 4,000
"Microsoft is a Sponsor of The New Stack."
Many articles turn out to be just ads
New Highs for Android in Russia, But It's Reportedly Working on Its Own Linux-Based Operating Systems (GAFAM-Free)
statCounter isn't equipped to properly parse user agents or to keep up
Upcoming Series: Terms of Service (TOS) Under the Microscope, FSF Party, GitHub Scandals, Clowns, and More
Right now we have way more material than we have time to cover. But that's a good thing.
Gemini Links 15/08/2024: Lies of Therapy and Web Applications
Links for the day
Software Freedom in Perspective - Part 5 - When Richard Stallman Came to Argentina
It might seem a bit harsh, but a discussion at the end of this series will tie things together and explain why those things were said
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 14, 2024
IRC logs for Wednesday, August 14, 2024