Petition to the Administrative Council of the European Patent Organization
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August 10, 2019 BY EMAIL Petition to the Administrative Council of the European Patent Organization Cc: Antonio Campinos, President of the EPO Emmanuel Macron, President, French Republic Christoph Ernst, VP Legal/ International Affairs Angela Merkel, Chancellor, Germany Karin Seegert, COO, Healthcare & Chemistry Mark Rutte, Prime Minister, The Netherlands Piotr Wierzejewski, Quality Management Boris Johnson, Prime Minister, United Kingdom Stoyan Radkov - Applicant’s Representative Cornelia Rudloff-Schäffer, President, German PTO Tim Moss, CEO, Intellectual Property Office of Cadre Philippe, Director, French National Institute the United Kingdom of Industrial Property Vincentia Rosen-Sandiford, Director, Netherlands Patent Office Re: European patent application 09735962.4; and European divisional application 17182663.9; Applicant: Asha Nutrition Sciences, Inc. Dear Delegates in the Administrative Council, We have been prosecuting the referenced patent applications directed to critical innovations for public health at EPO for last 10 years. However, rather than advancing the innovations EPO has been obstructing them. EPO statements in the prosecution history evidence that rejections have been applied to oblige us to reduce the claimed scope, even though as per provisions of European Patent Convention, the subject claims are perfectly patentable. A narrow patent is not synonymous with a quality patent. The metric of quality disregarded by EPO is genuine innovation, measured by betterment of life achieved, though that is the very purpose of patents and is built into the law. For example, solutions to critical unmet needs are inventive even if claims are otherwise obvious (GL1, G-VII, 10.3). Narrow patents in the nutrition arts have already caused great harm to public health and created patent-practice- made humanitarian crises by creating misinformation and taken us farther away from solving nutritional problems, preventative solutions, and sustainability. Narrow patent would defeat the very purpose of the subject innovations, conceived to overcome the misinformation in the art and the resulting public suffering and to set humanity on course to long-term solution to the lipid problem sparking downstream advancements in public health. Without sufficient patent scope and term, it is impracticable to effectively implement the claimed solutions. EPO’s unchecked dominance over European Patents results in obstruction of innovation and fosters stagnation. The dominance creates perverse incentives, such as EPO colluding with patent lawyers to defraud public, inventors, and applicants. As supervisory body of the EPO, we request your review of the matter detailed below and provide requested relief. 1 Guidelines for Examination in the European Patent Office, November 2018 Asha Nutrition Sciences, Inc. PO Box 1000, Palo Alto, CA 94302 asha-nutrition.com [email protected] August 10, 2019 Asha Petition to AC of EPO Page 2 of 29 TABLE OF CONTENTS Pages I. BACKGROUND OF THE APPLICATIONS 4 II. BACKGROUND OF THE INVENTIONS 4-6 III. IMPROPRIETIES IN EXAMINATION AND APPEAL REVIEW 7-17 A. EPO Rejected the Parent Case Under the Pretext of Article 123(2) 7-13 Because EPO Could Not Reject Claimed Inventions under Articles 54 and/or 56 EPC i. The Examining Division in the Parent Case (ED-1) Conceded 9-10 That Article 123(2) EPC was Satisfied in AR9-10 but Applied Article 56-type Rejections Under the Heading of Article 54 EPC to AR9-10 ii. The Board of Appeal (BoA) Applied Article 123(2) EPC 11-13 Rejections to ALL Claim Requests Even Where ED-1 Skilled Persons Conceded Article 123(2) Was Satisfied AND BoA Colluded with Applicant’s Own Representative to Undermine the Applicant B. The Enlarged Board of Appeal (EBoA) Turned a Blind Eye to 14-16 Evidence of Malfeasance in Its Review The Examining Division in the Divisional Case (ED-2) Takes C. 16-17 License for More Improprieties from BoA and EBoA Improprieties in the Parent Case IV. EPO HAS DISREGARDED NUMEROUS COMPLAINTS SUBMITTED 17-23 AND ISSUES BROUGHT UP BY THE APPLICANT V. EPO’s UNCHECKED DOMINANCE OVER EUROPEAN PATENT 24-26 SYSTEM RESULTS IN OBSTRUCTION OF INNOVATION AND FOSTERS STAGNATION A. EPO like any organization seeks to strengthen itself with more 24-25 revenue at the expense of innovation and fosters stagnation 25-26 B. Perverse Incentives Between EPO and European patent attorneys, such that rather than representing the client the attorneys represent EPO to the client C. EPO Ensures That No Evidence of Its Wrongdoing is Preserved 26 VI. PATENT-PRACTICE-MADE HUMANITARIAN CRISES 27-28 A. Humanitarian Rights Violations of Public at large 27-28 B. Humanitarian Violations of Independent inventors and Small 28 Entities and Worldwide Effects of EPO Actions VII. CONCLUSION AND REMEDY REQUESTED 29 August 10, 2019 Asha Petition to AC of EPO Page 3 of 29 ATTACHMENTS: Pages Attachment A: Formal Complaint, submitted on 30 January 2018 with 30-93 following Exhibits: Exhibit A. US Patents for Humanity Application, 8 November 2015 Exhibit B. Applicant’s Correspondence with Mr. Nick Lee of Kilburn & Strode, 23 April 2015 Exhibit C. Applicant’s Correspondence with Mr. Michael Alt of Bird and Bird, 16 August 2017 to 18 September 2017 Exhibit D. Declaration of Ms. Urvashi Bhagat, dated 30 January 2018 Exhibit E. Wikipedia, “Omega-6 fatty acid” (accessed on 29 January 2018) Attachment B: Annotated Minutes of Oral Proceedings with the Board, 94-99 dispatched on 03 August 2017, with Request for Correction of Minutes, submitted on 20 December 2017 100-102 Attachment C: Declination of Correction of Minutes to the Oral Proceedings by the Board, dispatched on 01 January 2018 Attachment D: Petition for Review by the Enlarged Board of Appeal 103-118 under Article 112(a) EPC submitted on 26 March 2018 Attachment E: Communication of the Enlarged Board of Appeal, 119-131 dispatched on 12 June 2018 132-154 Attachment F: Response to Communication of the Enlarged Board of Appeal, submitted on 22 July 2018 Attachment G: Annotated Decision of the Enlarged Board of Appeal of 155-169 10 October 2018 Attachment H: Formal Complaint Upon Enlarged Board of Appeal 170-173 Decision R 4/18 submitted on 12 November 2018 Attachment I: Applicant’s Response Submitted on 25 June 2019 in the 174-206 Divisional Case Attachment J: Applicant’s Letter to the Congress of the United States of 207-243 America dated 10 August 2019, regarding related US Applications Attachment K: Translation of the Decision of Intellectual Property High 244-323 Court of Japan and the pending claims in corresponding application Attachment L: Translation of the Decision of the Intellectual Property Trial 324-361 and Appeal Board of South Korea and the allowed claims in corresponding application August 10, 2019 Asha Petition to AC of EPO Page 4 of 29 I. Background of the Applications The parent application has a filing date of 20 April 2009, it entered European phase on November 19, 2010. After the Examining Division (hereinafter “ED-1”) failed to render justice, the case was appealed to the Boards of Appeal (hereinafter “BoA”). At the oral proceedings held in July 2017, BoA colluded with the Applicant's own representative (Representative 1) to undermine the application. Request for Correction of Minutes dated 3 August 2017 was submitted on 20 December 2017 (Attachments B and C). Formal Complaint was filed with EPO on January 30, 2018 (Attachment A with Exhibits A-E), which was dismissed by Directorate Quality Management. A Petition under Article 112a for review by the Enlarged Board of Appeal (hereinafter “EBoA”) was filed on March 26, 2018 (Attachment D), with the Complaint and copy of email communications between the Applicant and Representative 1 (Exhibit C) and declaration from Applicant’s CEO evidencing improper conduct at the oral proceedings (Exhibit D). The response to EBoA communication was filed on July 22, 2018 (Attachments E and F). The Enlarged Board disregarded the evidence of wrongdoings (Exhibits C-D) and refused to grant a review on October 10, 2018 (Attachment G). The Applicant documented in the Formal Complaint filed on November 12, 2018 (Attachment H) that it was improper for EBoA to disregard the evidence Exhibits C-D, which are the only mechanisms available to Applicant to report wrongdoings at EPO oral proceedings. The divisional application filed in 2017 is now under examination by new Examining Division (hereinafter “ED-2”). ED-2 appears to take BoA and EBoA improprieties in the parent case as license for more improprieties in the divisional case (discussed below). II. Background of the Inventions The innovations pertain to tailored delivery of lipids. The independent claims pending in the divisional application are as follows (similar claims were presented in the parent case). Claim 1: A lipid-containing formulation for a subject, comprising a mixture of lipids from different sources and a dosage of omega-6 fatty acids, wherein the formulation further comprises: a) a dosage of omega-3 fatty acids at an omega-6 to omega-3 ratio of 4:1 or greater, wherein: (i) omega-6 fatty acids are 4-75% by weight of total lipids and omega-3 fatty acids are 0.1-30% by weight of total lipids; or (ii) dosage of omega-6 fatty acids is not more than 40 grams; or b) polyunsaturated, monounsaturated, and saturated fatty acids, wherein the omega- 6 fatty acids are greater than 20% by weight of the total lipids and nutrients comprising one or more polyphenols, or one or more phytochemicals selected from: phytosterols, organosulfides, melatonin, saponins,