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

The Register MS Sponsored to Hype Up "Datacenters" and "AI" (Bubble, Pyramid Scheme)
"Sponsored by Cisco" with "AI" 26 times in this page
World Mental Health Day is Tomorrow and EPO Staff Talks About What the Job Does to Workers
In recent years we've written a great deal about mental health consideration in relation to work, with a focus on "IT"
You Definitely Do NOT Wish to Live Close to a Datacentre
put aside for a moment the noise, the pollution...
GGG Pot Calls the Kettle Black
"It means a situation in which somebody accuses someone else of a fault which the accuser shares, and therefore is an example of psychological projection, or hypocrisy. Use of the expression to discredit or deflect a claim of wrongdoing by attacking the originator of the claim for their own similar behaviour (rather than acknowledging the guilt of both) is the tu quoque logical fallacy."
The Microsoft Ban Should Go Further (Telecommunications Cybersecurity and Resilience Act Incompatible With Back Doors)
it's not difficult to see where to start
 
Links 09/10/2026: Stranded Busan Shark Still a 'Circus', Endangered Monkey Rescued, BBC Shells Out Money
Links for the day
Gemini Links 09/10/2026: Manifesto, Slop, Geminispace, and "Cryptography of the Internet"
Links for the day
Betanews is Still a Slopfarm, Articles About "Linux" Are Fake and Plagiarism by LLMs
Cheaters and plagiarists aren't journalists; they're people who rip off and harm journalists
James Bottomley Has Promoted Microsoft-Controlled Restricted ('Secure') Boot, His Blog Has Just Been Cracked
Does this meet IBM's and Microsoft's standards for "distinguished" (in security)?
Links 09/10/2026: "Internet Archive to Demo Wayback Machine at Friday’s Uniqlo Street Festival", France Wages Censorship War via DNS
Links for the day
Controlled Opposition
The underlying concept is hardly new
More Stallmans
We need more Stallmans, we don't need to change Stallman
SUEPO Munich (EPO Staff Union in the Main Headquarters) Opposes Monarchy ('Cocaine King' Campinos), Plans Online Meeting Next Week
They may have about 1,000 workers joining in
GNU/Linux Flirts With 20% "Market Share" in North America Overnight
Who should we trust on GNU/Linux? Microsofters on an armchair or Cloudflare Radar?
New Site Makes the Case Against Adoption of Omarchy, But Focuses Almost Entirely on Politics
Let's examine what the page says and what points it focuses on
Brigading Against Women - Part XXIV - Nobody's Name is Unspeakable
Names are not sacred
Microsoft is in Trouble (With the Regime It Sponsored)
It seems like Microsoft paying the existing regime/dictatorship wasn't enough
In the United Kingdom, Rising Cost of Hardware Benefits GNU/Linux
GNU/Linux rose from about 4% to almost 6% in one year
Japanese Targets of Cyber Breaches or Insider Threats
Japanese government bureau and major firms experience data breaches
Gemini Links 09/10/2026: Optimism, Stargazing, and Solar MiniServer
Links for the day
When Americans Export a 'Suicide Mission' to Other Continents
I worry that this culture of debt-taking and overconsumption is being spread from the US to Europe
The Register MS: "AI" Several Times in Same Headline, 31 Times in Page. The Register MS Was Paid to Do This.
The phenomenon is commercial (paid media), not scientific
The Outcome of Microsoft Ban Was Predictable
told you so
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 08, 2026
IRC logs for Thursday, October 08, 2026
Gemini Links 08/10/2026: Economical Thrashing, How I Killed the Earth, and Thoughts on Gemini
Links for the day
Links 08/10/2026: Wikimedia Bemoans Chaffbot Slop (Bots Sold as 'Agents') That Sabotage It, ICC's Taliban Warrants
Links for the day
Links 08/10/2026: Slop Scammers (Pushers) Inflate Hosting Bills and "YouTube Testing Everything"
Links for the day
The Register MS Helps Prove the "AI" Frenzy in the Media is Evidence of Compromised Media, Not Legitimate "Revolution"
Ignore the hype and carry on
London Became Synonymous With the Royal Courts of Justice
London used to be a place where we go on holiday/retreat/break; nowadays we have only one destination there
Microsoft Insiders on "Effectively Being Silently Laid Off From Microsoft"
People are laid off by the thousands without the media uttering a word or the companies confirming anything
Brigading Against Women - Part XXIII - Extremism in the Mix and Getting the Police Involved
In 2012 I was getting heckled a lot for opposing back doors in Linux; it has not stopped since
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 07, 2026
IRC logs for Wednesday, October 07, 2026
Microsoft's XBox CEO Asha Sharma Tells Staff That Many Thousands of Layoffs Are in Fact "Return to Growth"
Get it? Layoffs are "growth".
Gemini Links 07/10/2026: On Feeling Guilty Leaving the US, Multinet, and Limiting Net Usage
Links for the day
The Cyber Show Explains the Concept of "Data Rape"
a metaphor some might find crude
FREE BEER is Still Online, But Barely Active
25 years ago or even 20 years ago many spoke of open/free beer (or "COLA")
Syria: GNU/Linux Has Surged to 8% "Market Share"
I don't have a convincing explanation for this
IBM Dimming Down the Lights on IBM Consulting, No Knowledge or Experience Required
They just "ride" the (old) brand, that's all
Statement on American SLAPP
Crossposted from schestowitz.com
Today The Register MS Published "SPONSORED FEATURE" and "SPONSORED POST" With "AI" 31 Times in Them
This isn't a "Reality" or "Era of AI", it's a paid-for spam campaign
Gemini Links 07/10/2026: Nostalgia, Neutral Map, and Shorthanding
Links for the day
Links 07/10/2026: Unrest in France and Rumours of Plague in Russia
Links for the day
Brigading Against Women - Part XXII - The Lozza Problem (in Length)
Garrett's case was a waste of the Court's money
JavaScript in Richard Stallman's Web Site
For search he is using CGI, not JavaScript
EPO's Local Staff Committee The Hague (LSCTH) Plans Presentation Next Week (Coinciding With Apparent Coronation of 'Cocaine King' Campinos)
They've outsourced this session to the dictator's spying eye
The GNOME Foundation's Code of Conduct Has Been Misused to Hide Corruption
People who value free speech and freedom of expression won't touch social control media with a 10-foot bargepole
Voting for Freedom of the Press
American elections happen every 4 years
What Brett Wilson LLP and Matt Garrett Don't Want People to See/Read
Book-burning is counterproductive
Book-Burning Mindset Does Not Work
It makes the suppressed voices more widely known
Microsoft's XBox in 'Freefall'
XBox is practically finished
Slop is Plagiarism
Plagiarism is not "theft" and copyright infringement is not "piracy"
IBM is Almost Defunct
IBM is doomed. It just tries to test how much more patience the shareholders have.
Criminalisation of Journalism
"Journalist Derya Okatan arrested in Turkey for allegedly possessing classified material"
Brigading Against Women - Part XXI - Hiding Behind the Veil of "Privacy" After Telling Nazi Things in IRC Channels of Techrights and Physically Threatening People
To merely explain an abuse (or crime) requires naming people; that's a fundamental tenet of reporting
Links 07/10/2026: Quitting Smartphone and "Meta's Muse Is Spying on All Your Friends and Family"
Links for the day
Gemini Links 07/10/2026: Greed, In Praise of Zotero, and The de-Google Path
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 06, 2026
IRC logs for Tuesday, October 06, 2026