M. Névant (FR), Editorial CommitteeM. Névant (FR), Editorial Committee

The World After: business as usual?

« Qu'est-ce qui a changé ?
Pas grand-chose
Je n'ai pas rangé les questions que je me pose »

(extract from a song from 2 French rappers (known as Bigflo and Oli), which can be translated as follows: “What has changed? Not much, actually. I still keep asking myself the same questions”).

A long time ago a pandemic spread across the planet, forcing about 3 billion people to be placed in quarantine. Thousands of people died and the model that ruled the world was on the brink of collapsing in what was then considered to be the worst health crisis ever. This, in fact, triggered a radical change in the way society was organized: capitalism was dead!

Worldwide companies started making a virtuous use of the patent system, no longer filing hundreds of applications (until the lockdown rather easily granted by IP5 offices), but instead focusing on those inventions actually making a contribution to the art. The EPO did not present, before the Administrative Council, amendments to the EPC which significantly impacted the life of practitioners without first reaching a consensus with epi. Members of the Boards of Appeal, relocated in beautiful Venice (freed from tourists and cruising ships), did not feel compelled to implement “a dynamic interpretation of the EPC” at the request of the EPO, in fear of having their term of office terminated.

Oops!! So much for science fiction. Let’s get back to reality!

Time will tell whether users of the IP system will change their behaviour once the Covid-19 crisis is over. Recent facts tend to show that it is unrealistic. Immediately after the lockdown was implemented in most western European countries, the EPO decided unilaterally and at very short notice and certainly without proper consultation that Examination Oral Proceedings would be held via videoconference except in exceptional circumstances. Whether or not this makes sense is not the point. The decision-making process is appalling. I can recall President Campinos’ speech, when he addressed Council members in November last year, in which he stressed the importance of the relationship between EPO and epi (“one of EPO's closest partners for the last four decades”). I leave it to our readers judge for themselves if this is an appropriate way to treat a very close partner.

More recently, the Enlarged Board of Appeal (EBA) issued opinion G 3/19 (Pepper), concluding that plants and animals exclusively obtained by essentially biological processes are not patentable. A summary of the Opinion is available here. In essence, the EBA concluded that new Rule 28(2) EPC (introduced by the Administrative Council in 2017) “allowed and indeed called for a dynamic interpretation of Article 53(b) EPC“. I will not try to understand the reasons why the EBA had to rephrase both of the EPO President’s questions, de facto answering their own questions, seemingly giving in to political pressure. Let just say that while the opinion of the EBA may bring (according to some observers) greater legal certainty in the relevant field, the overall legal uncertainty for applicants and the general public might now be much greater. The EBA has indeed just made it clear that they can change their interpretation of the EPC as they see fit (in a dynamic way shall I say) or, even worse, that the Administrative Council can change, of its own volition, the meaning of Articles of the EPC by amending the corresponding Implementing Regulations.

The above examples are typical of political and/or legal sleight of hand that should be dispensed with in the World post Covid-19. This is, however, unlikely to happen as long as specific interests take precedence over the general interest. It is therefore quite doubtful that things will change in the IP “ecosystem“ in the World post Covid-19.

It is impossible to conclude this Editorial without having a thought for all those of our members impacted by the Covid-19 pandemic, whether personally or professionally. On behalf of the Editorial Committee I wish all our members well in these very harsh times.

The functioning of our Institute has been impacted too, and appropriate steps have been taken by the Presidium not only to support the activity of the Secretariat, the Presidium, the Board and Committees but also to react to various activities (e.g. the cancellation of the 2020 EQE or the decision to hold Examination Oral Proceedings via videoconference). The epi website has been regularly updated in this respect (as reported elsewhere in this issue).

Finally, as you may know, the Council meeting that was planned to take place in Glasgow on 11th and 12th May 2020 has been cancelled. It will be now held as an e-Council on 29th June 2020. On this occasion, (new or reappointed) Council members will elect a new Board, members of the Disciplinary Committee, and the Internal Auditors. Let’s make the meeting a success and an important step for a return to a more normal life!