To be continued

I think it is high time to wish all readers of this blog happy holidays. 2018 was an eventful year in the small world of European patent law, and there is little doubt that 2019 will be as well.

Before you go, here is a short summary of a few things to watch out for in the coming year – so that you can ponder over those and make your own 2019 predictions while indulging in device- or apparatus-shaped chocolates, or while humming typical Christmas songs such as “we wish you a valid patent, we wish you a valid patent, we wish you a valid patent, and a happy new grant“.

Let me start with the topic of last week’s post, the new mandatory web-based filing system implemented by the INPI. Let’s hope that it will improve next year and become more manageable and user-friendly.

Two side notes on this topic. One, the INPI guidelines have now been updated to reflect the new filing procedure. You can download them here. Second, there was an interesting discussion in the comment section of the post. There seems to be a strong argument that the Patent Law Treaty makes it impossible for the patent office to prohibit paper filing. One reader reported that, in one of his cases, the INPI accepted a paper filing when the representative insisted. But there has been no communication from the office on this issue. The updated guidelines no longer mention paper filing, and neither does the decision of the Director of the INPI which sets up the new system.

Hopefully we will get some clarification in the near future.

And while we are talking about the INPI, there is actually a lot going out right now, as reported in one of my previous posts. Will the legislative reform be successfully completed? What will the French opposition proceedings look like? Will there indeed be a full examination of French national applications? If the current expectations are confirmed, this will be an upheaval of French patent practice – but so far the always important practical details have not been forthcoming.

Things are also moving on the SPC battlefront – aren’t they always – with a number of important pending references to the CJEU. Just a few days ago, the opinion of the Advocate General in Abraxis (C-443/17) was issued, and it calls into question Neurim (C-130/11), which is one of SPC applicants’ favorite CJEU rulings. See a full report by Alexa von Uexküll and Oswin Ridderbusch here. We’ll see which way this one goes. And perhaps one day we will finally get to understand what a “product” is – almost a philosophical question.

“A kit for creating an illusion that suggests a Santa Claus visit”. Wait a minute? Is Santa Claus just an illusion?

Turning now to the EPO, no upheaval in sight, but still some interesting developments.

First, the new version of the Rules of procedure of the Boards of appeal will likely be finalized soon. As noted by a number of colleagues, such as Adam Lacy and Thorsten Bausch (here), this will likely make the lives of many parties in appeal proceedings more difficult.

One side remark again: when I reported on T 1914/12 (which by the way does not seem to be very much followed by other Boards, see Peter de Lange’s blog here), I wondered whether the proposed revision of the rules of procedure could potentially be considered as breaching article 114 EPC, if one were to adhere to the reasoning of Board 3.2.05 in this decision. Any thoughts on this?

Next, a new online user consultation has been launched by the EPO regarding the possibility of a postponed examination option (see here). A very recurring subject indeed. We’ll see whether and how it progresses in 2019.

Last but not least, the broccoli / tomato / bell pepper battle is still raging at the EPO. Remember that it was decided in G2/12 and G2/13 that the exclusion of essentially biological processes for the production of plants from patentability does not preclude patents on the plants themselves. But the European Commission subsequently expressed its disagreement with this position, which led to the amendment of R. 28 EPC in July 2017. And then bang! Board 3.3.04 in T 1063/18 decided that amended R 28 EPC violates art. 53 EPC. See Laurent Teyssèdre’s report here. It is quite difficult to predict where things will go from there.

As a consolation, faithful readers of this blog will be satisfied that Lionel Vial correctly anticipated some of the current difficulties with the application of amended Rule 28 EPC one and a half year ago. Are you skeptical? The evidence is here.

This post would not be complete if I did not say a word on the white whale of European patent law: the UPC. Rumor had it that the
German Bundesverfassungsgericht would issue a decision on the constitutional complaint in December, but you know how it is with UPC-related rumors. So I would be surprised if we had a decision under the tree on Christmas morning, and the suspense will likely continue for some time. Come March 29 and the actual Brexit, it is clear that the plan will have to be reworked.

That’s all folks, season’s greetings to all!

Happy birthday

Happy birthday, blog. On October 17, 2015, this blog’s first post was published. I am looking forward to another year of blogging and I do hope to be able to publish a second birthday post – although no promises are made.

Thank you very much Lionel Vial and Aujain Eghbali for your contributions up to now. You are welcome back on this blog any time. Other contributors are also welcome, even for a short message. Anonymous contributions may also be accepted.

A few stats for those who are interested. At this point the blog has a little bit more than 70 email subscribers. Thank you all. The link for subscribing is at the bottom of the left banner. The blog has had approximately 13,500 page views so far. The best score ever was 628 views in a single day when Laurent Teyssèdre kindly mentioned the blog in a post of his own famous blog. Thank you so much for this huge publicity.

The home page and some permanent pages are the most viewed ones. Other than that, the most popular post ever was the April fools’ joke on the UPC. Makes me think that I should quit reading case law decisions and start a career in hoaxes. Then, the next most popular ones are generally in the pharma field, this one being the winner.

Unfortunately, the vast majority of search queries which led visitors to this blog remain unknown to the blogmaster, but a tiny minority are known (this all depends on which search engine is used as far as I understand), and it makes you realize that sometimes the search results must have been quite disappointing for the searchers.

For instance, someone looking for a “patent for poison” was led to this post on poisonous divisionals; another person wanting to translate “the remedy may be worse than the disease” into French landed on a report by Lionel Vial on Merck v. Actavis; last but not least, a reader interested in “nice models” ended up on another (gorgeous) report by Lionel Vial, this time on disease models and their importance for the appraisal of sufficiency of disclosure.

This may also be a good time to ask readers about their thoughts on the blog and their opinion on how it could be improved:

  • Would you like to read more about EPO case law? Or to read only about French case law?
  • Should the posts be more succinct?
  • Should I switch to French because no foreign reader can possibly have any interest in what is discussed here?
  • Are there topics which have not been addressed yet and which should?
  • What about posting frequency?
  • Should my sentences be shorter and contain less passive voice as the blog editor keeps telling me?

Comments and private messages are welcome.

Enough celebrated. Let's extinguish the candles right now.
Enough celebrated. Let’s extinguish the candles right now.