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12.13.15

Keeping the European Patent Office (EPO) Out of Politics Amid the EPO’s Campaign to Deceive the Media, Politicians

Posted in Europe, Patents at 4:51 am by Dr. Roy Schestowitz

EPO Campaign to Deceive

Summary: The EPO is still — as for at least a decade beforehand — lobbying politicians and trying to manipulate the media (which politicians read) for a manufactured sense of legitimacy

THE President of the EPO has been doing some UPC lobbying recently (including unbelievably shallow puff pieces with so-called 'correspondents' who read from a pro-EPO script). It’s just part of a recent trend; we recently showed other examples of EPO lobbying for the Unitary Patent [1, 2], playing into the hands of large multinational organisations, not European citizens.

Looking around for some history on this, this is not exactly a new practice. Segolene Royal, French socialist candidate to the Presidency (2007), mentioned EPO lobbying in her answer to a series of questions:

Son activité dégage également des excédents mais avec l’avantage supplémentaire pour lui qu’aucun État ne vient les ponctionner. Ces excédents lui permettent de financer des professionnels des relations publiques pour influencer les choix du Parlement Européen.

Jonas Maebe, FFII Board Member, wrote in a letter to MEPs during the debate on the software patent directive:

The EPO lobbying politicians to promote software patents is a bit like some Department of Housing promoting the handing out of more building permits. We hope our letter and its annexes can give MEPs more balanced information than the EPO’s simplistic oneliners like “Idea + Patent = Innovation”. Economic policy making should not be based on unfounded claims by the EPO and emotional pleas by its largest customers, but on sound economic evidence and the desires of the involved sectors as a whole.

In our previous posts we showed some EPO material being disseminated too; was this distributed in the European Parliament? Outside of it too? What’s the context for all this lobbying if not software patents (at the time)? One small group of people that we know said it was “concerned that the EPO has become like a big business. Did you know that the EPO keeps an office in Brussels, just so that it can lobby the Commission, and Parliament? Did you know that the EPO places full-page adverts in magazines that MEPs read, promoting software patents?”

The matter of fact is, the EPO wants to expand its scope of influence and power. Broadening patent scope is one way to accomplish this. Becoming a vassal of massive multinationals is another.

According to D Young & Co’s new puff piece about the EPO, “an Adobe PDF file [can] to be converted into editable form or typed into a Microsoft Word document” and given to the EPO (remember that Microsoft is a special partner of the EPO, so no ODF file is likely to be accepted).

As we did back in the Novell days, we now have lots of trackers on the EPO, helping us quickly identify cases of EPO lobbying and manipulation of the media. We are going to try to inform journalists whom we believe got bamboozled or exploited by the EPO. There is a massive PR campaign going on right now.

When SUEPO Called the EPO a “Public Service Organisation Out of Control”

Posted in Europe, Patents at 4:37 am by Dr. Roy Schestowitz

The inherent problems with the European Patent Office (EPO) are long-recognised problems

Benoît Battistelli
Photo via “European Parliament not fooled by hearing of the patent microcosm”

Summary: Recalling some of the past calls for caution regarding the European Patent Office (EPO) or the organisation as a whole

THE European Patent Office (EPO) has been controversial for quite some time. Not only EPO staff was complaining. The problem isn’t SUEPO but is still Battistelli [pun intended] along with his buddies. The very fact that a clique of people managed to come into power with extreme force (Team Battistelli) is in itself a testament to the problems.

SUEPO logoAll those years SUEPO was able to co-exist with the management, but it’s only Battistelli that could not tolerate such staff unions. He added to his team a notorious aggressor who refuses to even acknowledge SUEPO's existence. He also hired notorious union busters, Control Risks.

Looking around some older material we found Senftl and Hardon v. EPO [PDF] (ILO-AT from 2010). There’s a long history of scandals there and also high staff turnover (we recently wrote about brain drain, or people moving around or leaving; even the recruiters themselves may be leaving as Iris Kindl was appointed Director Procurement only this spring). Hardon, however, is one of the well known veterans, having worked there for many decades. This is what probably makes her a very effective staff representative and an attractive scapegoat to Battistelli. She has seen a lot over the many years.

One interesting finding that we’ve managed to net is this old press release from almost a decade and a half ago. It speaks of structural issues in the organisation. To quote the press release:

A Public Service Organisation out of control?

As has been widely reported in the last few days, the European Patent Office appears to consider itself not to be bound by European Directives. In the specific case mentioned there was an alleged contravention of the Directive on Biotechnology in relation to European Patent EP-B1 0 695 351.

The European Patent Office is not part of the European Union

Although originally intended to be the authority charged with the grant of patent rights for the European Community, the EPO was created outside the framework of the European Union. As a result, the European Patent Office is in many respects an “autonomous state”, which is not bound by any of the directives of the EU unless it so chooses. The “Head of State” is the President, Ingo Kober. He is responsible solely to the Administrative Council, a body made up of representatives from the 19 contracting states who are party to the European Patent Convention. This body is not democratically elected and is accountable only to the respective national governments. As a body created by a separate international treaty this body is not directly bound to any national or international law other than the European Patent Convention, the EPC.

Further loosening of democratic control is contemplated

This Administrative Council is currently contemplating far-reaching changes to the Eurpoean Patent Convention. These changes will effectively mean that in future the Administrative Council can decide autonomously on the future direction of the law governing the award of patent rights in Europe, and the very law by which it is governed itself. No agreement by the European Parliament or any other publicly accountable European organisation will be needed and, as in all deliberations of the Administrative Council, many of which are held in secret session, there will be no participation of society at large. This opens the door to uncontrolled wide-ranging changes to the European Patent System. Recent events suggest that these changes may be against the interest of European citizens.

The Administrative Council already fails to defend the interests of the European public

The Administrative Council has put the Office under pressure to grant patents as fast as possible, without, however, creating the conditions that would make it possible to recruit the necessary staff. This means that the existing staff, already working to their full capacity, are being put under pressure to examine cases faster and faster. With less time being allowed to consider the complicated technical and legal questions which arise in patent examination, it is to be feared that the standards applied will drop. Statements in the press attributed to an EPO spokesman acknowledge that increasing production pressure can indeed lead to errors. See for example:

http://news.bbc.co.uk/hi/english/uk/scotland/newsid_653000/653067.stm

www.tagesthemen.de/archiv/2000/02/22/sendung/tt-2230/meldung/gene.html

This could in turn lead to a larger number of patents of dubious validity (“junk patents”), thus impeding fair and open competition in the European Market, and hence threatening the employment market in Europe. This is however simply the tip of the iceberg. Lack of legal security for staff threatens standards The EPO is not bound by many of the laws or regulations that most of the citizens of Europe take for granted, such as the European Convention on Human Rights.

Some examples:

  • The Employment Law offers the staff extremely limited protection. Staff can be dismissed almost at will by the President and have no claims to unemployment pay or other social security payments:
  • Basic legal rights are ignored. The President is the ultimate ruler of the EPO. He is judge, jury and executioner. His decisions on matters within the office are final. Any decision made by the President can be enacted immediately. There is no “stay of execution” pending the outcome of appeal hearings. Sanctions are arbitrary and harsh. This makes the staff extremely vulnerable to pressure from the management in order to meet demands, e.g. by increasing output to a level beyond which it is possible to assure sufficient attention to detail.
  • European safety and health standards are not applied on EPO premises.
  • Even criminal law is disregarded: In 1995 the then President of the EPO physically attacked and injured a staff member, the Administrative Council of the EPO subsequently refusing to lift the immunity of the President.

Conclusion

The Administrative Council has shown a tendancy to treat the office as a commercial entity rather than as the public service organisation it is. This results in the continuing demands for ever more granted patents, while refusing to increase the resources of the European Patent Office accordingly. SUEPO, the Staff Union of the EPO soundly condemns this development due to the risks it poses to the quality of patent rights granted in Europe. It is high time that steps are taken to change the structure of the Organisation making it accountable for its actions to the citizens of Europe and their elected representatives.

This wasn’t the only such strongly-worded statement. Nearly a decade ago the SUEPO public page was mentioning (snapshot from that time, along with others that sport the default Drupal theme) the governance of the EPO as an extremely heated debate:

On June 19th the staff of the EPO in Munich striked (photos…) against the undermining of the European Patent System by the body entrusted with its governance, the Administrative Council. Simultaneously there was a demonstration held in Bern, in front of the Swiss Patent Office – home of Mr. Grossenbacher, the Chairman of the Administrative Council. National and individual interests (many of which financial) are dominating the decision making process and making it increasingly difficult for staff to maintain a high quality output of valid patents. The issue of governance of the EPO and its effect on the future of the European Patent System is a topic of heated debate.

Here is a face-saving interview from around that time.

SUEPO’s interview of Francis Hagel [PDF] is still online and it says:

Suepo: What effects (advantages / risks) does this combination of functions in a national and European offices have?

Francis Hagel: There are pro’s and con’s in any governance system. Certainly the fact that members of the Administrative Council are heads of national patent offices interested in the transfer of workload from the EPO raises a conflict of interest when such transfer is discussed by the Council. This may provoke criticism. However, the question is : what is the alternative ? A significant advantage of the current system, on the other hand, can be seen in the fact that the members of the Council understand very well the patent system and the operation of patent offices. Replacing the heads of national patent offices by public officials unfamiliar with the patent system and the operation of patent system, or involving the EU institutions in the governance of the EPO, could entail serious risks for the EPO.

SUEPO also published an interview of Dietmar Harhoff, who is introduced as “Munich innovation researcher and patent expert”. He said [PDF] the following:

3. Internal EPO structures

The Administrative Council runs the EPO together with the President. Most of its members work at national patent offices.

What effects does this combination of national and European offices have?

Professor Harhoff: It is undoubtedly good that the European Patent Organisation benefits from the experience of national institutions and experts. However, there are problems, on principle, with the fact that the EPC contracting states, or rather their national offices, profit financially from EPO-granted patents by virtue of their 50% share of the renewal fees, yet simultaneously would have to approve any measures leading to a greater focus on quality and thus to fewer patents. That is indeed an unsatisfactory situation requiring correction in the long term. The whole fee system is characterised by cross-subsidisation: expensive examination is partly financed by renewal fees. That of course creates incentives to grant as many patents as possible. The Academic Advisory Council report did in fact criticise this.

Finally, here is an interview from 2007 with Dr Ulrich Schatz [PDF] (it’s concluding with “The Central Executive Committee”). It is an interesting one that says:

(3) What should the relationship between the EU and the EPO look like?

[…]

From my experience over the last forty years, I can only warn against diluting that clear position, e.g. by making the EPO a subordinate EC agency. The Organisation would then forfeit its budgetary independence, which has so far ensured both Office and staff virtually ideal conditions in technical, accommodation and manpower terms. This would also put paid to any prospect of achieving a comprehensive and efficient European patent system including the post-grant phase as has been conclusively shown this past year by the EC’s renewed failure to create a Community patent.

It’s clear that for quite a long time now SUEPO has known about inherent issues inside the EPO. Now isn’t a bad time to unearth old criticisms, many of which still apply and are relevant.

SUEPO has sincere, genuine concerns, not some efforts to maliciously scandalise its members’ employer.

Patents Roundup: Software Patents Debate in the US, Microsoft and Apple Fight in Favour

Posted in America, Apple, Microsoft, Patents at 4:19 am by Dr. Roy Schestowitz

Depositing money using weaponised patents, for the benefit or enrichment of patent trolls, monopolists, and those working for them

Deposit

Summary: A week’s roundup of news about software patents in the United States, primarily from sources that stand to gain from them (software monopolists and patent lawyers)

THE US patent system, the USPTO (which also combines another aspect, trademarks), is arguably creating a chilling environment that at times can discourage innovation. This has been a subject of active debate for quite some time because in some domains, such as software, any development work can be done quickly by a single person, to whom it is infeasible to study a lot of patents before undertaking the development work. To make matter worse, because a lot of software is reducible to logic or mathematics, there may not be any workarounds, especially when the patent is so vague that it covers a whole breadth of different approaches (patent on a progress bar for instance).

“To make matter worse, because a lot of software is reducible to logic or mathematics, there may not be any workarounds, especially when the patent is so vague that it covers a whole breadth of different approaches (patent on a progress bar for instance).”The world’s prominent patent maximalists (and occasional proponents of patent trolls) promoted the potency of software patents back in September, in spite of Alice. Also see Amanda Ciccatelli’s “How the USPTO’s “analysis paralysis” changed the software patent game”. She said that “As of late, the USPTO has invalidated an increasing number of software patents and denied numerous patent applications that deal with software that’s too abstract. With so much uncertainty about the patentability of software-related inventions, there are steps that patent-seekers take to ensure compliance with §101.”

Looking to this new article from a lawyers’ site, it becomes clearer just how some patents can discourage creation, either pre-actively, out of fear, or after the work was already done. To quote: “Receiving a cease and desist letter that alleges patent infringement is becoming more common in today’s competitive business markets and may come as a shock to the recipient, particularly if the sender is unknown to them and the recipient is unaware of the patents referenced in the cease and desist letter. That shock may quickly evolve into an emotional reaction based on an assumption or suspicion that the sender may be a “patent troll”, which may result in the letter being tossed into the garbage.”

“Software patents are the weapon of choice of patent trolls and patent lawyers universally like these because they profit from feuds.”Software patents are the weapon of choice of patent trolls and patent lawyers universally like these because they profit from feuds. The more litigation, the more business they get. That’s just how this market works; companies don’t just amass patents for publicity, vanity, etc. as though these are trophies. They use these offensively.

This new article by Tony Dutra speaks of a new story about patent trolls. To quote the gist of it: “A Harvard Business School study released Dec. 9 claims that patents on inventions in the financial services industry score lower on standard measures of quality compared to patents in non-financial fields.

“Professor Josh Lerner and his team looked at patents awarded by the Patent and Trademark Office after the Federal Circuit’s 1998 State Street Bank decision opened the door to business method patents. The patents featured fewer citations to other documentation—non-patent literature, leading academic journals, etc.—that is likely to show an exhaustive prior art search for patentability assessments.”

“That’s just how this market works; companies don’t just amass patents for publicity, vanity, etc. as though these are trophies. They use these offensively.”According to this new report from the Financial Times, Goldman Sachs “had applied to patent a virtual currency settlement system” (we mentioned this some days ago). The intersection between patents on business methods and on software were previously explored by SCOTUS with the Bilski case.

Justin Blows, an Australian patent attorney, speaks about the recent trolling with encryption patents (patents on software). He called it “the rise of US software patents”, but in reality, software patents are a declining market in the US. Blows says that in “the Alice decision, a two-step test for patent-eligible subject matter was created. In a first step, it is considered if the claims are directed to an abstract idea. If so, in a second step it is considered whether the claims have a sufficient “inventive concept” to render the idea patent-eligible. A summary of the two-step test can be found here.

“I do not believe that anyone would dispute that encryption is directed to an abstract idea. In fact, many computer implemented calculations relate to an abstract idea and so this question is particularly interesting.”

“…Microsoft and Apple are now lobbying for software patents, not so surprisingly (they both use software patents against GNU, Linux, Free software and so forth).”Software patents are still on their way out (as we have shown here before, with some exceptions). Based on this new report, titled “Court to hear animation case some call broad threat to software patents”, Microsoft and Apple are now lobbying for software patents, not so surprisingly (they both use software patents against GNU, Linux, Free software and so forth).

To quote Reuters, “McRO Inc, its attorneys at MoloLamken and Mishcon de Reya, and an industry group that counts Apple Inc and Microsoft Corp among its members, say that a ruling last year from a district court in California canceling McRO’s patent puts the software industry in jeopardy.”

Interesting to see the litigation/litigious firm which the EPO uses to attack me (Mishcon de Reya) on the same side as Microsoft.

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