"Inappropriate and misleading": whatever happened to the original EPO response?

The IPKat suspects that there have been some funny goings-on in European corridors of power and he's not laughing. The Pharmaceutical Sector Inquiry conducted by DG Competition (see IPKat here for back-references) resulted in the publication of a preliminary report on 28 November 2008, to which responses were invited by 31 January 2009 [i.e. two months, less time consumed by the Christmas vacation].  One of the respondents was the European Patent Office, whose comments can be perused on the DG Competition website here, along with all the other contributions (the full list, posted on 16 March 2009 and believed to have been composed on 10 March, can be read here).

The strange thing is this.  On 2 March 2009, MLex Market Intelligence published this note, written by Lewis Crofts, entitled "European Patent Office queries aspects of EC's pharma enquiry report".  The odd thing is that the submission which Mr Crofts describes-- a fairly robust document that criticises aspects of the preliminary report in vigorous terms -- seems tobe  rather at odds with the genteel draftsmanship of the document now described as the EPO's comments. 

Here are a couple of examples.  The version of the EPO report described by Mr Crofts "calls the commission's methodology in multiplying the patent applications by the number of EU states 'questionable and its results ... misleading'". This now appears as "... we question this methodology and its results ...".    Also, the trenchant "...this method of counting patents needlessly and artificially inflates applicable numbers" has become "... this method of counting patents exaggerates applicable numbers ...".   Then "We consider this inappropriate and misleading" is watered down to "It is questioned whether this is appropriate".  In another passage the words "More disturbing", in relation to the assertion that the upholding of a patent but with an amended scope is a 'success', have been deleted completely.

Another oddity is that the EPO's original comments were apparently available on the website of the European Generic Medicines Association (EGA) but, as MLex reports, those comments have since been removed.

The IPKat wants to know when, and by whom, the first document was changed.  MLex is a pretty ear-to-the-ground sort of operation, and it seems unlikely that it would have based its note on an ancient document, from which the Kat suspects the watered-down version was substituted for the original quite close to the time the MLex report was prepared -- and this would almost certainly be after the closing date of 31 January 2009 for the submission of comments.   Merpel says, perhaps the EPO took a leaf out of its users' books and based its second filing on an earlier one with a priority date before 31 January 2009 ....

The original version of the EPO comments on the Preliminary Pharma Sector Report can be read here. The genteel version is also that which can be found here on the EPO website.
"Inappropriate and misleading": whatever happened to the original EPO response? "Inappropriate and misleading": whatever happened to the original EPO response? Reviewed by Jeremy on Monday, March 23, 2009 Rating: 5


  1. Jeremy, since these sort of EPO reports are highly political you cannot expect that reason and logic are the main driving factors for either the original report or its changes.

  2. I read the EPO comments on Celex before reading this note and felt they were responsible and helpful. Surely this is just good editing. As we discovered at the IBIL seminar, we run the risk of being ignored as cranks if responses are heated and emotional. There is a balance to be struck if the European public is to have a vibrant pharma business for the benefit of its economy and drugs that are good value and accessible to those who need them.


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