Oddfellow July 2020

J.A. McStea, Teemacs GmbH

Interesting times…

Bubendorf 31, July 2020

…wasn’t that an old Chinese curse? (Another one???). It’s almost August and I haven’t seen the inside of Zug since I last wrote. I’ve been told to stay put, so I have. No great effort involved!

Here in rural Swizzieland, life has changed very little for us, except for the aforementioned not going to Zug. We get regular bulletins from HQ as to what’s happening, and we have been conducting all our meetings on-line, which seems to work well. So well in fact that I wonder whether this is the way of the future. Novartis certainly seems to think so – it has announced that, if they can and if they so desire, people can work permanently from home. Melbourne has naturally been much in the news here, especially relating to the interesting and hitherto unknown fringe benefits of security guards.

I’d rebooked my trip to see my mother in September, but, alas, that appears also to be off. While theoretically possible (Swiss domiciles arriving in Ireland have to self-quarantine, except if they’re proceeding directly to Northern Ireland), things change so rapidly that I could end up being stuck there. Alternatively, the status of Northern Ireland could change from “OK” to “not OK” in the middle of my visit, and I could come home and be stuck in the house for 10 days (not allowed to leave for any reason, even if I test negative). This is not beyond the bounds of possibility, given that people do crazy things. There is now a COVID hot-spot in Limavady in Co. Derry, because people had a karaoke sing-along and were passing around a microphone. I mean, how daft can you get?

In the midst of all this, the EPO is, like all good organisations, hoping for the best, but planning for the worst.  Following the cancellation of the 2020 EQE, it has announced that next year’s EQE, set down for next March, will be held on-line.  Essentially, this means that EQE 2020 and 2021 will be taken at the same time. Of course, things will have changed in the meantime (new Board of Appeal or Enlarged Board decisions, for example, the recently-released G3/19 relating to the patentability of plants and animals (see below)), so candidates will actually be able to decide under which set of circumstances (2020 or 2021) they want to take the exam. One interesting consequence of the Supervisory Board decision is that candidates for the 2021 exam will be able to enrol for the main exam without having to have a pass grade in the pre-exam. It’ll be interesting to see how they handle the logistics involved, especially if candidates experience an Internet failure in the middle of the exam. Could this be the EQE equivalent of “the dog ate my homework”?

On the other hand, the US profession gave up paper exams a long time ago and has been holding its patent bar exams on-line for ages, and there seems to be no problem. Admittedly the US patent bar exams are a lot less involved than the EQE (100 multiple-choice questions, to be answered over two 3-hour sessions) and the USPTO does offer them year-round at specified exam centres.

On the other side of the Channel, CIPA is intending to hold UK attorney exams in October, also on-line. They can be done at home or at work. The Patents Examination Board has provided a list of requirements – PC or laptop (not tablet), e-mail/internet connection, webcam and phone camera, microphone and speaker, MS Word 2010 or higher (Apple users need not apply…), Adobe, printer and scanner. Camera? Apparently the candidate will be expected to give camera access to an invigilator (unlike the EQE, the CIPA exams are closed-book). There may be modifications to these (how many candidates have a scanner at home?). In addition, the PEB will not accept your dog eating your homework – it “will not accept requests for special consideration after the examination, based on the failure of IT/communications equipment, systems or software”. As a result, most firms are encouraging candidates to take the exam at work. It might be a problem for smaller practices.

As you’ll all have heard, the UK has withdrawn its ratification of the EUP/UPC. So, does this finally leave the UPC up the proverbial creek without the equally proverbial paddle? Perhaps not; the Germans are determined to press ahead and not allow all the work to go to waste, since the long-held dream of a pan-European patent was so tantalisingly close. The first thing is to get a proper vote for ratification. The vote should have been by a two-thirds majority in the Bundestag (German parliament), but when the vote was taken at 1.30am in March 2017, only 35 members of a chamber of 630 were present. The new vote will probably be taken in this session (ending September 2021), presumably COVID-19 permitting.

The German Ministry of Justice has opined that the loss of London as the court for pharma/chemical patents should be no problem, as the work could be done by the other two branches in Paris or Munich (the Italians and Dutch are believed to be angling for the court). The fact that London is specifically mentioned in the Agreement is dismissed by an argument along the lines, “Well, the UK is not an EU member, therefore the agreement can’t possibly apply to a non-EU member, so we can ignore that bit”. I get the feeling that, in its anxiety to keep the show on the road, the various parties involved are glossing over some considerable legal minefields.

In addition, there might be further constitutional challenges. The instigator of the last one, renowned UPC-sceptic Ingve Stjerna, has foreshadowed another one, based, he said, on the fact that only one of his grounds was considered, and that the others, properly considered, were of perhaps more relevance. So, while the doctors can still detect signs of life in the patient, death’s door is still not so very far away.

In the meantime, the Enlarged Board of Appeal, now settled in its new home in Haar, home of Germany’s biggest psychiatric clinic (is there a connection?) has decided, in G 3/19 (“Pepper”), that plants and animals exclusively obtained by essentially biological processes are unpatentable. Previous EBA decisions had said that the Article 53(b) provision applied to biological processes for the production of plants or animals, but not to the products of such processes. However, the relatively recent introduction of Rule 28(2) (“European patents shall not be granted in respect of plants or animals obtained by means of an essentially biological process”) changed the game. As a result, the decision does not apply to European patents granted on biologically-produced plants and animals prior to 1 July 2017 or to pending applications filed prior to that date.

Sad to see another good man gone. Donald Vincent, the man who trained the man who trained me, passed away at just short of 99. He was the subject of a long obituary in the most recent CIPA Journal. Donald was running the patents group in ICI Paints Division in Slough in the 1960s, when Don Berryman of BALM Paints (later Dulux Australia) came to him for training. Donald was a hard, but fair, taskmaster, insisting on the highest standards. Initially, June Berryman didn’t understand how these things worked, and at one point she gave poor Donald the rounds of the kitchen for giving her husband such a hard time. But the training was invaluable, and it enabled Don to come back and pass the Australian exams.

Donald eventually moved from the prefab building in which the Paints Division patent department lived (he had refused to move to the nice new office building on the far side of the road, because he wanted to be near the inventors) to the position of The Patent Agent at the rather grand Imperial Chemical House at Millbank, just down from the Houses of Parliament. He wasn’t particularly enthusiastic about moving away from the drafting and prosecution work he loved, but that’s the way of big companies, if they offer you a big promotion once and you turn it down, they may never ask again. He was a forceful advocate for the European Patent Convention and was a Member of Honour of AIPPI.

We exchanged mails after he finally retired (he took early retirement and did some private work), and the last mail I received was some time ago, as he was about to leave his beloved Shell House in Hedgerley. This was listed by the National Trust and the Vincents had to ask for permission of the NT to do anything to it, even install a modern bathroom. In the end, the upkeep of the house and its associated nearly 3 acres of garden was beyond him, and he moved in with one of his sons. 98 is a pretty good innings, but the world is a poorer place without its Donald Vincents.

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