Plants and animals exclusively obtained by essentially biological processes are not patentable. That is the opinion (G 3/19) of the Enlarged Board of Appeal of the European Patent Office (EPO).

According to an EPO press communiqué of 14 May 2020, the “Enlarged Board of Appeal of the European Patent Office adopted a dynamic interpretation of the exception to patentability under Article 53(b) of the European Patent Convention (EPC) and held that the non-patentability of essentially biological processes for the production of plants or animals also extends to plant or animal products that are exclusively obtained by means of an essentially biological process.”

The decision, triggered by a referral from EPO president António Campino in April 2019, is the latest and not unlikely the final one in a debate which has been running for years about the issue.

It is contrary to earlier decisions in the so-called Broccoli-II and Tomato-II cases (G 2/12 and G 2/13) of 2015. In these, Enlarged Board of Appeal  ruled that ‘plant products such as fruits, seeds and parts of plants are patentable even if they are obtained through essentially biological breeding methods involving crossing and selection.’

After this decision, the European Commission issued a Notice in 2016, indicating that the Biotech Directive 98/44 should have been interpreted as that plants obtained by essentially biological processes are not patentable. Taking into account this notice, the EPO Administrative Council amended its Regulations in 2017.

In vain however, it seemed: on 5 December 2018, the BoA decided in case T 1063/18 that EPC Rule 28 (2) which was introduced by the EPO Administrative Council in 2017 to exclude plants or animals from patentability, was in conflict with 53(b) of the European Patent Convention and therefore to be considered void.

This created a lot of legal uncertainty and a few months later, the EPO president referred the decision to the EbA. According to a press release, the aim was ‘to obtain an opinion (…) on the patentability of plants exclusively obtained by essentially biological processes, hereby considering recent legal developments (interpretations and statements of the European Commission, the EU Council, European Parliament and EPO’s Administrative Council on the interpretation of the European Patent Convention and the EU Bio-Directive, all of them concluding that there should be no patentability in these cases).’

As is explained in the EPO’s press communiqué, “the Enlarged Board endorsed its earlier findings on the scope of Article 53(b) EPC, which were based on the classical (i.e. the grammatical, systematic, teleological and historical) methods of interpretation. However, the Enlarged Board found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This meant that decisions G 2/12 and G 2/13 did not settle the meaning of Article 53(b) EPC once and for all.

Taking account of the Administrative Council’s decision to introduce Rule 28(2) EPC, the preparatory work on this provision and the circumstances of its adoption, as well as legislative developments in the EPC contracting states, the Enlarged Board concluded that new Rule 28(2) EPC allowed and indeed called for a dynamic interpretation of Article 53(b) EPC.

In adopting this dynamic interpretation, the Enlarged Board abandoned its earlier interpretation of Article 53(b) EPC in decisions G 2/12 and G 2/13. It held that, after the introduction of new Rule 28(2) EPC, Article 53(b) EPC was to be interpreted to exclude from patentability plants, plant material or animals, if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process.”

António Campinos has welcomed the opinion of the Enlarged Board of Appeal. “It will bring greater legal certainty for patent applicants, and the general public, on what is a sensitive and complex issue that has legal, societal and economic implications.” Proceedings in examination and opposition which were stayed while the referral was pending will be gradually resumed.

“In order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board ruled that the new interpretation of Article 53(b) EPC given in G 3/19 had no retroactive effect on European patents containing such claims which were granted before 1 July 2017, or on pending European patent applications seeking protection for such claims which were filed before that date.”


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27 comments

  1. I wonder how the German Federal Constitutional Court would react if the legislators came up with a law requiring the constitution to be interpreted in a particular manner, contrary to earlier decisions of the FCC. That is effectively the situation which the EBA has indicated is an acceptable one.

  2. Whilst this decision might bring “greater legal certainty” with respect to the patentability of plants, it generates numerous other areas of legal uncertainty.

    Firstly, how can the Boards of Appeal of the EPO demonstrate that they are an INDEPENDENT judicial instance, as required, for example, by TRIPS?

    The members of the Boards of Appeal are subject to the disciplinary and reappointment authority of the AC. This calls into question whether it is possible for any decision of a Board of Appeal that finds an absence of conflict (in the sense of Article 164(2) EPC) to avoid perceptions of partiality in favour of the AC … who will, of course, have authored the allegedly “conflicting” Implementing Regulation.

    Secondly, as the EBA correctly observes, the Court of Justice of the EU has not yet interpreted Article 4(1)(b) of the Biotech Directive. Thus, in view of the appeal decision in the Taste of Nature case, Article 267 TFEU means that any “final” judicial instance that is inclined to reach a contrary conclusion (that is, to reach the same conclusion as in G 3/19) MUST make a preliminary reference to the CJEU.

    Thus, given that the Boards of Appeal have previously decided that they are unable to participate in the preliminary reference procedure, how can the Boards apply the ruling in G 3/19 without contravening EU law?

    In other words, the ruling in G 3/19, whilst “resolving” a point of law that will be of relevance to a vanishingly small percentage of applicants, has simultaneously drawn attention to fundamental weakness of the EPC that now require urgent attention. Perhaps this can serve as a reminder of the danger of unintended consequences.

    1. Maybe it is a Machiavellian plot by the EBA – writing a decision which is apparently in line with the wishes of the President and the EU legislators but is phrased to cause such an outcry that the system of the boards of appeal has to be revised once and for all, taking the boards out of reach of the EPOffice.

      1. Perhaps. However, it is much more likely that, in view of the (nearly) unanimous support for Rule 28(2), the EBA saw no reason to risk upsetting the President and the AC simply because they had chosen the wrong mechanism for amending Article 53(b).

        Of course, by showing a distinct lack of backbone in standing up for a “technicality” such as picking the correct mechanism to amend the law, the EBA has rendered Article 164(2) EPC otiose, and has overridden the voting requirements set out in Article 35(3) EPC. Whilst I can understand the EBA’s desire to avoid inflaming the situation, I think that setting a precedent that ignores or overrides provisions that are fundamental to the rule of law at the EPO is a very high price to pay for a quiet life. I had honestly hoped for much better from the EBA.

  3. Concurring with Concerned Observer, it is necessary to say goodbye to the independence of the EBA, and hence to that of the BA. The EBA played the game wanted by the administrative council and the president.

    I cannot imagine the CJEU rewriting a prejudicial question referred to it in order to give a politically correct reply wished by the commission or a member state.

    I always thought that a court cannot decide ultra petita, but that is exactly what the EBA did. This decision is disastrous to say the least.

    That laws may be amended with time in order to bring it in line with evolving societal criteria is not at stake. That the interpretation of the EPC by the EBA might not have been the best one in its decision about broccoli and tomatoes, is one thing. At the time it was accepted. But to behave as the EBA did now is flabbergasting.

    The only clean way to deal with the problem raised was an amendment of Art 53, b). So rather than do what would have been legally necessary, the EBA is now accomplice of those wanting to amend the EPC without using the proper mechanism. Was the fear of its members not being reappointed so great that the EBA gave in?

    I can see such changes also being adopted for other fundamental aspects. At least the members of the EBA ruling in G 3/08 had the guts to resist the then president.

    I would not see any Machiavellian plot followed by the EBA, rather sheer lack of spine. But at least the question of the independence of the Boards is now on the table, and the problem has to be tackled urgently. The reforms introduced in 2016 have to be scrutinised again. Rather than increasing the independence of the Boards they did the contrary as we have now seen with G 3/19.

    By the way, when will a conference of ministers in charge of IP as provided in Art 4a EPC2000 be summoned? This could have been a perfect topic for such a conference. That the previous president did not like it, and the new one even so, is not a compelling reason. But for this the tail should not be wagging the dog.

    Techrights and zoobab: FINGERS OFF!!

    1. Is there, I wonder, any cross-talk between those in contact with the BVG, that is, the Constitutional Court of Germany, and the Enlarged Board of Appeal at the EPO. Will this new EBA Decision accelerate the ongoing deliberations at the BVG about the independence (or otherwise) of the Boards of Appeal? The Grand Plan: a push for a Mk II version of a Convention to establish a (perhaps Paris-based) pan-European patent court system uncluttered by the presence at the discussions of the increasingly absurd British. How many members of the EBA have any appetite to remain at their posts? They all want out, don’t they?

      1. MaxDrei – what, if anything, does the position of the UK government vis-a-vis the EU (which is what I assume you refer to when you talk about the “increasingly absurd British”; and I don’t disagree with you there) have to do with the EPO or the independence of its Boards of Appeal?

        Anyway, if the Boards are swept away and replaced by UPC Mark 2 (which I think is what you’re suggesting) let us not forget that there are other EPC members besides the UK which are not members of the EU, nor even the EEA. Where would such a system leave them, and why should they agree to it?

  4. What happened to any notion of Stare decisis!

    Nothing in the Vienna Convention about “dynamic” interpretation.

    1. Nice to read you again, NM. This thread started with a thought about how the Bundesverfassungsgericht would like it if another court, or even the EBA, were to stray into its territory. But only this week, that same court has handed down a Decision telling the European Central Bank, sorry but your COVID stabilising measures are ultra vires.

      The notion of stare decisis looks to me, these days in mainland Europe, more than a bit wobbly. But this is not the first time that the EBA has corrected itself. And national supreme courts can do the same, can they not?

  5. “The members of the Boards of Appeal are subject to the disciplinary and reappointment authority of the AC. ”

    Not only that. Since December 2015 and the adoption of CA/D 18/15, Board of Appeal members can be *suspended* for up to two years (with the possibility of an extension “in exceptional cases” whatever that is supposed to encompass …).

    See here:
    https://www.epo.org/modules/epoweb/acdocument/epoweb2/194/en/CA-D_18-15_en.pdf

    According to ILOAT case law a suspension is supposed to be an interim and precautionary measure so a two-year suspension is in itself already a highly questionable legal construct.

    However, when you consider that the term of office is five years and a suspension can be imposed by a simple majority vote of the AC without any “safety catch” such as provided by Article 23 (1) EPC then it’s clear that the AC has provided itself with a mechanism for carrying out the removal from office of an “irksome judge” unilaterally.

    The “independence” of the EPO Boards of Appeal is looking increasingly like an elaborate legal fiction.
    Will be interesting to see if they can push it past Karlsruhe …

  6. Previous comments are critical of the EBA for a supposed submission to the President and the AC’s requests. But the independence of the EBA should not be assessed only vis-à-vis the President and the EBA. There is a broad spectrum in termes of sources of influence : the Commission, the Parliament, the Member States, corporate players, in this case the agribusiness on one side and the seed industry on the other side.
    I would welcome comments dealing with the substance i.e. whether the decision of the EBA denying patent protection for plants is welcome or not.

    1. Whether or not the effect of the decision (i.e. in denying patent protection for plants produced by “essentially biological processes”) is right, or welcome, will vary depending on each player’s perspective. Had the EPC been amended to achieve this end via the proper legal route which is provided in the Convention, some players may have disagreed with the policy shift but there could have been no serious question about the legitimacy or wider consequences of the method employed.

      What worries us here is not necessarily the outcome, rather it is the route taken to achieve it. The ends do not justify the means, and the whole process sets a worrying precedent in terms of the independence of the Boards and the powers of the executive to change the interpretation of the EPC on a whim.

    2. I am not aware of any objective reason to perceive that one or more members of the EBA might be partial towards the Commission, the Parliament, the Member States and/or corporate players? Are you?

      The objective reasons for questioning partiality towards the President and the AC are: (1) the AC has the (re)appointment and disciplinary powers that I and Savigny have previously outlined; and (2) the AC has repeatedly demonstrated that it is happy to follow the President’s lead, even if that requires retroactively “rubber-stamping” the President’s ultra vires imposition of a “house ban” on a member of the Boards of Appeal.

      Of course, this does not mean that the result in G 3/19 is definitely attributable to partiality of the members of the EBA. The problem, however, is that a reasonable suspicion of partiality hangs over the judgement … especially as the EBA’s reasoning stretches credulity somewhat.

      With regard to whether the end result is welcome or not, I think that you are not seeing the wood for the trees. There are doubtless arguments that could be made for and against what appears to be a rather arbitrary distinction between (non-variety) plants that are GMOs and those that are the products of essentially biological processes. Also, it is notable that TRIPS allows WTO member states to decide whether they wish to draw that distinction. However, this is not the aspect of G 3/19 that will exercise many legal scholars. Instead, their attention will be drawn to the fact that G 3/19 provides a way for the AC to short-circuit the safeguards in the EPC and, with nothing more than a three quarters majority of votes (at a meeting at which not all of Contracting States need be represented), to position itself above the Boards of Appeal as the highest authority regarding interpretation of the EPC.

      In other words, G 3/19 will be remembered because it trashed the separation of powers at the EPC and handed far greater authority to the AC (and, by extension, to the President) than the founding fathers ever intended.

  7. They could have said GMOs are patentable, that would have clarified what is patentable.

    Change a few ATGC, and hop, new patents!

  8. In fact, there is only one time when the EBA changed its case law. According to G 1/84, the proprietor could oppose its patent; in G 1/93 this case law was reversed. In the meantime we have had G 9/91 and G 10/91. Under EPC 2000 this question has become moot as the proprietor can file a request for limitation or revocation during the whole life of its patent.

    In G 2/08, the EBA has decided that Swiss-type claims were not allowable from a certain date, but in the meantime EPC 2000 had entered into force. Swiss-type claims under G 1/83 had become moot. I do not consider this a change of case law, as the EPC had changed.

    In G 2/07 the EBA noted: “There can be no “legitimate expectation” that an interpretation of a substantive provision governing patentability given in a decision of the boards of appeal will not be overruled in the future by the Enlarged Board, since recognising such an expectation as legitimate would undermine the function of the Enlarged Board of Appeal”. This statement is certainly correct, and one cannot blame the EBA for amending its case law.

    What is at stake in the present case, is the way in which the EBA did come to this change of case law. Without the questions from the president, things would have remainedas they were. By rewriting the questions put to it in order to give the reply the president and the AC wished, it has himself shown being obedient to the wishes of the latter two. What guarantees do we have that the EBA will not redo the same? Think for instance of Art 52(2, b or c).

    This amounts in effect to giving the EBA full power to change the interpretation of the EPC without going through the democratic processes set out in the Convention, like a diplomatic conference or a decision under Art 33(1,b).

    That there is apparently a general wish within society for the non-patentability of seeds obtained by essentially biological processes, the decision is quite understandable. What it is not, is the way it came to this new interpretation of the EPC.

    I would not put it past to some applicants in the field, to make an attempt to bring one or more contracting states before an international arbitration chamber, as they can claim that all the investments they made in the field were in vain and cannot be recouped as patent protection is denied. May be one will even be daring to cite the EPO before such an arbitration chamber.

    As far as the members of the BA are concerned, all those having applied for a job of judge at the UPC have apparently not even received a letter acknowledging their candidature. So there is no risk that they will have the possibility to migrate. And before all, the UPC has to come to life, which is anything but certain.

    The decision in Karlsruhe about the independence of the BA will be very interesting. I fear however that under the new chairman of the Court, the GFCC will not touch the question even with a barge pole. He is a lawyer having acted in a large lawyer’s firm specialised in litigation and is a strong supporter of the UPC. By putting into question the position of the members of the BA, he would indirectly put into question the position of the judges of the UPC.

    But wait and see: in front of court you are in the hands of god, but certainly not at the EBA. There you are in the hands of the AC and of the president.

    Techrights and zoobab: FINGERS OFF!!!!

  9. Also, did anyone think about how Rule 28(2) is supposed to work in practice?

    The method of making a product (a plant) is now decisive for the patentability of that product, while at the same time this method of making the product has no direct impact on the features of the product.

    A plant is patentable if the causal mutation was induced. The same plant is not patentable if the causal mutation was “merely” identified in an existing plant. In the latter case, the causal mutation could still originally have been the result of induced mutagenesis, since untargeted mutagenesis techniques have been common in plant breeding for decades and have induced countless background mutations.

    Just to give a practical example: say I have identified a new and inventive trait in an existing plant. This plant is not patentable under Rule 28(2). I subsequently identify the causal mutation and file a patent application claiming the same plant and provide an enabling disclosure to obtain said plant by induced mutagenesis. Now, exactly the same plant claim is patentable under the EPC. There is no obligation to disclose how a given trait was originally obtained (provided that the plant is not regulated as a GMO). There is only an obligation to provide an enabling disclosure. The disclosure requirement is met by describing the mutagenesis method. The knowledge that a native trait exists which has the same effect as the man-made trait can be kept secret without further ado.

    The blessing of Rule 28(2) by the Enlarged Board is a bad joke, which will only lead to creative patent drafting and subsequent outcries by NGOs that the agrochemical industry is still patenting plants that should not be patentable (“because there should be no patents on life”).

    A requirement to disclaim plants exclusively obtained by an essentially biological method does not remove the fundamental flaws in Rule 28(2). A claim directed to a plant “with the proviso that the plant is not exclusively obtained by means of an essentially biological process” only disclaims plant that do not comprise any induced mutations. Who can realistically argue that a given domesticated plant does not comprise any induced mutations? (I refer to the decades-long use of untargeted mutagenesis techniques in plant breeding.)

    And what about patent infringement? An assumed infringer can (and will) state to his or her defense that he/she did not use induced mutagenesis. He/she simply crossed plants (likely obtained from the patent holder) and obtained a new plant variety exclusively by using an essentially biological method. It is simply not possible to determine whether a given mutation was originally induced or occurred spontaneously. Would this scenario be confirmed in infringement proceedings, all plant patents have become worthless even if the patented trait has been obtained by technical mutagenesis techniques like gene editing. I sometimes believe that this scenario is exactly the objective of certain supporters of Rule 28(2) since they truly believe that patents in general and particularly plant patents are bad for society.

    Plant breeding has developed from an unreproducible process of chance to a technical process that is reproducible, and which can be described in such way that it can be reworked by a person skilled in the art. The IP right to protect technical processes and the products obtained by technical processes are patents. I do not see any valid reasons why (bio)technology in plant breeding should be regarded differently than, let’s say, in medicine. Despite the fact that the development of plant breeding into a biotechnology process is regarded undesirable by many, this can neither be negated nor reversed. Certainly not by the implementation of Rule 28(2).

    1. I cannot more agree with your view, to which we also came in the company I’m working for when the “disclaimer” approach started to be introduced by the examining divisions right after R. 28(2) entered into force. Indeed, the most concerning effect of this mandatory disclaimer approach now justified by R.28(2) is that it will in practice render almost unenforceable patents that would be granted on plants that are not obtained by an essentially-biological process (e.g. targeted mutagenesis), that anyone will then be free to use and copy as they like without risk, for the simple reason that the infringer would only have practiced non-essentially-biological steps for copying the plants, and such steps are excluded from the claims by the disclaimer. There remains the possibility to comment on the open survey on the Guidelines to further point the EPO to the consequences of this detrimental examining practice, but I place very little hope on the effects of such comments…

  10. The reform of the Boards of Appeal initiated by Mr Battistelli has effectively deprived the members of the Boards of their independence, since their reappointment is now subject to production and other requirements. When this reform was adopted by the Administrative Council, the former Vice-President in charge of the Boards of Appeal reportedly said: “This is the end of the Boards of Appeal.” History proves him right. The poison was in the tree. Now the appearance of the tree is beginning to change. This decision of the Enlarged Board shows that the poison has reached the treetop. There are strange-colored leaves. The supreme organ of the EPC is bending to the wind of the moment. We are entering the dynamic age. For those who knew the Enlarged Board when there were still people who could withstand the pressure, it is quite sad to see. Now opportunism and pragmatism reign. Thus passes the glory of the world.

  11. Thanks to Anonymous of Monday, 18 May 2020 at 12:34 PM, for giving the view of a specialist in the matter.

    Your comment resembles a lot to your comment in IPKat.

    I would like to add some further points, as I have started doing in IPKat,

    In view of your explanations, I wonder whether R 28(2) is at all compatible with the TRIPPS agreement.

    As a whole lot of patents have become worthless, so citing contracting states or even the EPO before an international arbitration chamber has become even more likely.

    Should tomorrow the European parliament decide that any patents on CII are to be proscribed, not just merely purely software patents as it previously decided under the lobbyism of free software groups, it can be expected that, should the European Commission and the AC endorse this position, the president will again put a question to the EBA in order for it to “dynamically” adapt its interpretation of Art 52(2, b and c)?

    I would say the lobby to be faced then is probably much stronger than the one presently having acted in order to bring in R 28(2).

    One can only concur with Kenavo when he states that the reform of the BA and the creation of the BOAC has deprived them of their independence. Their rules of procedure are not any longer decided by the boards. They are simply heard. This has led for example to a first version of Art 11 RPBA2020 in which remittal was forbidden unless there was a substantial procedural violation in the first instance. This new Art 11 had been imposed by the members of the BOAC. It is one of the few amendments following the presentation of the new RPBA in December 2018.

    Independently of the question of the reappointment problem. one thing is clear: as long as the BA will not have their own budget, they will never be truly independent as they have still to go through the president to ask for their budget. It is still the president of the EPO who will provide the president of the boards of appeal with the necessary resources, as set out in the adopted budget which the former will have agreed.

    The president of the boards of appeal will only ever exercise the functions and powers delegated to him by the President of the European Patent Office. As the president has its say in the designation of the president of the boards of appeal, he will certainly never agree to a candidate he could fear will not follow his instructions. A prime example has been given in G 3/19.

    Now the EBA has bowed to the pressure of the AC and of the president, the the dam gave in. If tomorrow the UPC, should it ever come to life, issues decisions which are contrary to those of the EBA, will the latter have to adapt its position by using a “dynamic interpretation of its own case law”. I hope not, but the subservient attitude of the EBA in the present matter has created a dangerous precedent.

    Dynamite and dynamic are very close. Let’s hope that the whole situation it has created will not backfire on the EBA.

    Techrights and zoobab: FINGERS OFF!!!

  12. Quite frankly I fail to see what all the fuss is about.

    The latest “dynamic interpretation” spiel of the EBA is merely a continuation of the trend established under Baddystelli which turns the “hierarchy of legal norms” on its head and uses lower ranking regulations to circumvent (or subvert) the primary law.

    So for example:

    – Article 23 (1) EPC is circumvented by means of Article 95 of the EPO Service Regulations (as amended by CA/D 18/15 of 17 December 2015).

    – The need to convene a conference of Ministers or a diplomatic conference in order to reform the primary law governing the Boards Appeal is obviated by amendments of the Implementing Regulations. Thus while the majority of “dependent” EPO units have Vice Presidents appointed pursuant to Article 11 EPC, the “independent” Boards are governed by a “President” whose position is established under the Implementing Regulations (and which can at any time be “dynamically” revised by the AC acting on a proposal of the President …).

    Given the general trend which was already clearly taking root under Baddystelli the latest development is hardly surprising.

    It may all seem unsound and unhealthy from a rigorous legal perspective but the attitude among those who are at the helm seems to be “so what?”

    And there is apparently nobody to shout “stop” …

    What exactly do you expect from the AC which is basically a quango of national civil servants who are acting in an environment where they are effectively immune from any kind of meaningful oversight or scrutiny, whether ministerial, parliamentary or judicial.

    This may all seem unsound and unhealthy from a “democratic” perspective but once again, the prevalent attitude seem to be “so what?”

    1. The MOU signed on February 20 between the AC and the EPO president has defined a relationship which could be dubbed subservience. The AC relies on the EPO resources for its operations, and its has no independence even as to the appointment of its Head of Secretariat : the Chair of the AC is only entitled to be consulted on the selection of the president. If the AC wants external expert advice, it has no independence either since it must consult with the president for the choice of the expert.

  13. What we should keep in mind though is that the outcome is what most people think is right. Neither the EPO nor the BA nor anyone can act against the wishes of the majority of the people for a long time, and it is wise to give in on these niche topics.

    I wonder what would happen if a large part of the electorate in e.g. Germany would ever really take notice what the patent system is and what it does. Imagine a mass movement like “Fridays against Patents” or the like. A lot of people would not like the outcome when they see how quickly the patent system can get disbanded when there is a majority and a persistent will in the electorate to do so.

    A video showing how a cute little baby cow gets killed based on a court order because it infringes a patent might be all it takes…

    1. Peter, it sounds very much as if you are arguing that the ends justify the means.

      If the Contracting States really were of a mind to change the law, then they were perfectly capable of doing so by a completely non-controversial route. For example, they could have amended the EPC (at a Diplomatic Conference, or under Article 33(1)(b) EPC). Even better, they could have amended the Biotech Directive, perhaps by way of a stand-alone “clarification” having the force of law. Indeed, given that the political push behind Rule 28(2) EPC started with the European Parliament and Commission, it is bizarre that the latter option never seems to have been considered.

      As a result of that “strategic” decision by European politicians we now have a situation that, at least in normal times, would be viewed by those having responsibility for the EPO as being an unmitigated disaster. That is, numerous well-informed commentators are raising serious questions regarding the independence of the Enlarged Board. Absent any serious moves to address the concerns raised by those commentators, there is no way that this can end well for the EPO.

      Still, whilst the ship that is the EPO slowly sinks into the mire, at least the politicians (and EPO management and AC delegates) that had a hand in creating this mess will be able to comfort themselves by repeating the mantra that they delivered the outcome that “most people” wanted.

  14. @Peter Parker

    That sounds like a dystopian recipe for ochlocracy … government by the tabloid press …

  15. @Peter Parker

    I do not think that keeping “in mind [though is] that the outcome is what most people think is right”. On the contrary.

    I guess that most people would not accept abrogation of capital punishment or would like its re-introduction. Is this necessarily right? I am not sure, as capital punishment has never withheld some people to kill others.

    There are already numerous groups against any form of “patents on life”. I am not saying they are right or wrong. It is a matter of fact. No need to come up with the story of a baby cow culled by order of a court.

    What should be kept in mind, is that it is not for a court to decide by a “dynamic” interpretation of its case law to abide by the wishes of the executive.

    There are proper mechanisms to amend the EPC. None of those have been used, but the EBA has opened “the door to the AC to change the EPC by amending the Rules, without unanimous agreement from the contracting states or a diplomatic conference”, cf. Rose Hughes from IPKat in her blog of today.

    That is what matters, and not a possible horrible story by a tabloid.

    @Politcratus

    Thanks for enriching our knowledge and vocabulary!

    Techrights and zoobab: FINGERS OFF!!!

  16. One again it is necessary to reiterate that the rot had already set in a long time ago.

    The whole Board of Appeal “reform” project was predicated on the assumption that there was no need to call a diplomatic conference. The job could be done by the AC fiddling around with the Implementing Regulations under the “guidance” of the President of the Office. Why bother with the inconvenience of ministerial or governmental interference …

    And it was waved through without a peep of dissent.

    So after that resounding “success” why is anybody surprised that the same approach is now being used to secure a “dynamic” interpretation of the EPC ?

    Get used to it folks … there is nobody around to shout “stop” !

  17. So let’s zoom in on the notion of the separation of powers between the legislative, judicative and executive branches of government. The EPC’s EPO is not the legislative branch. It should confine itself to the other two pillars of the Rule of Law, right?

    And yet.

    Each of the seats on the AC is occupied by a representative of a national government that has a working majority in the Parliament of a sovereign State that is ruled as a representative democracy. If these States wish to set up a multi-national, supra-national agency for granting patents, what’s to stop them? So long as that agency does nothing more than filter what gets through to grant, all it is doing is confining within limits what can be patented.

    Patents are a restraint of trade. Some say that the patent system has had its day and that patents should be abolished. Not me. But public acceptance (and my acceptance) requires that any “creep” of patent rights into areas where the harm they do outweighs the good work they do (in promoting the progress of technology) should be blocked.

    Worse things can happen, than that the EPO acts to hold patent rights within limits. It is not as if the current President of the EPO is, on this particular occasion, abusing any basic human rights (for example, those of an employee that he disapproves of).

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