12.24.15

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Concerns About the Unitary Patent Court (UPC) Among EPO Staff an Outcome of Battistelli’s Attacks on Staff

Posted in Europe, Patents at 7:46 am by Dr. Roy Schestowitz

What leaders promise before signing is rarely what actually happens afterwards

NAFTA
NAFTA signing; original photograph is in the public domain in the United States

Summary: Amid EPO crisis and an effort to tilt the system in favour of large (and usually foreign) corporations some believe that “the future legal situation concerning patents in Europe is becoming extremely uncertain”

Concerns about UPC lobbying by the EPO don’t contribute much to the reputation of UPC(ourt), or to the Unitary Patent in general. Given the cheating and the lying from EPO management, can anyone actually believe a word that it says about the UPC? As we have been saying all along, benefiting from the UPC are mostly lawyers and large companies which big law firms represent (sometimes European firms representing non-EU companies).

As this one comment put it:

Why should BB and the AC trash DG3 like this? Do not underestimate the political influence (in Davos and Brussels) of the giant international Anglo-American patent litigation law firms, by lobbying to bamboozle Euro pols into supposing that the UPC will be an improvement, and by inducing BB to join their cause.

Fact is, that disputing patent validity at the EPO (for 38 jurisdictions) is cheaper by a factor of from one to a hundred thousand than litigating validity in the USA. For more than 35 years, these law firms have been spitting in frustration, that the work is done not by them but by European patent attorney firms. They want their full wad and, with the advent of the UPC, they’re gonna get it, OK?

Also regarding the UPC, one person writes:

Surely for the UPC to be a success the EPO needs to be granting strong patents. With the possibility of a UPC patent being revoked in all territories agents will need to consider whether to file for a single for a single UPC patent or several national patents. If the quality of a a UPC patent is poor national paten ts may be more appealing. Or is invalidating a UPC patent so expensive the quality doesn’t matter?

The UPC, for reasons which we outlined before, is beneficial to big businesses, and not even European ones. It marginalises those that are smaller and cannot sustain injuctions, large court cases (fees), high damages/royalty claims, etc. The bigger the system, the more beneficial it becomes to large players.

This one comment from what seems like a patent lawyer says:

As usual, the Americans do it better. When they say their patent system enables Little David to triumph over the Giant Goliath, they are correct. It does, every so often. I know. My small client won an injunction and 40+ Million USD damages from a Big Corp infringer of his US patent. His lawyer worked on a contingency fees basis, of course, betting on getting a cut of the 40 mill.

But when the Commission in Brussels sets up a pan-European patent litigation system, there is no way an SME can get anywhere with it. When was the last time an SME in Europe pulled 40 mill in damages?

The Commission’s answer? We know. But we need to set up a system by which an SME can insure against the costs of patent litigation. That will fix the problem.

If you don’t laugh, you would cry, at the level of ignorance and wilful blindness. At the moment, some national jurisdictions (NL, DE, GB) have systems that allow the Little Guy to prevail. That is not going to survive the advent of the UPC though, is it? Big Corp and ist lackeys are delighted. For them, it’s Mission Accomplished. Special thanks to BB and the AC.

George Brock-Nannestad, who recently wrote a long post bemoaning the money motive at the EPO (we've posted here the translation of his post) said the following in a comment which comes in two parts [1, 2]:

It is my impression that the present and in particular the future legal situation concerning patents in Europe is becoming extremely uncertain. In a world where we thought that responsible persons would cooperate to maintain a legal framework that is predictable, we see massive attacks on integrity and a future situation akin to those states that merely registered and did not examine patents and left all patent construction to the courts. All the good words and the work to preserve the balance between those who invented and those who could afford to litigate is now being put in question and deliberately destroyed.

A legal attorney, registered to practice as such in one of the member states of the EPC, is permitted to represent before the EPO without any proof of competence. Those attorneys who do precisely that will nevertheless have studied the EPC, the Guidelines, and the “Case Law of the Boards of Appeal of the European Patent Office” anyway. However it now turns out that these texts are not to be valid anymore. In the future it will be absolutely useless knowledge, because attorneys will begin to represent holders of doubtful patents against possible infringers, and they will need to transfer to litigation and the rules being developed there in order to assist clients. A European Patent Attorney does not have the same possibilities.

The massive reduction in the intellectual effort permitted by production goals in the EPO for examining applications will be felt in the Boards of Appeal as an extra workload in cases of opposition, which will become more frequent as individual companies and patent defiance associations will need to file them to match the onslaught of accepted but inherently defective European applications in their Unified Patent form. The present proposed change of status of the Boards of Appeal is in flagrant contravention of the EPC. But with the proposed changes it will administratively be made very difficult for the BoAs to reject an appeal, because that would be the end of the story. And it is definitely desired for the story to continue, and only an acceptance can ensure the survival of a patent that is useful for the UPC system. Alternatively, the time for opposition will be reduced to 3 months and the fee will be set at such a high and rising level that it may become cheaper just to give up the possibly infringing product line. Observations during examinations will be abolished because they endanger the patentability.

This is not the way to increase competition between the SMEs and big transnational corporations!

This type of development was already visible (or at least envisageable) in Peter Drahos’ book “The Global Governance of Knowledge. Patent Offices and their Clients”, Cambridge University Press 2010. Highly recommended reading for anybody who can afford to take the longer view. In all the discussions on IPKat on the EPO situation I have not seen one post or comment that has taken its inspiration from this perceptive book.

Actually one may see an outline also from a 2008 response to Joff Wild (an apparently unabashed promotor of all undertakings from the EPO administration), by SUEPO (document No. su08163cl), which was recently made instantly available by the Techrights blog. But as the Boards of Appeal have until now been independent, it was not in 2008 possible to envisage that they and their legal framework would be so completely degraded.

The system is beyond help — there is nobody to change the course. It is truly a situation where the foxes are in charge — or should we say we have an Orwellian ‘Animal Farm’? All the suggested admininstrative changes are doable because there is nobody to complain to.

The only way to combat the system would be for a united front to avoid using the UPC at all so that it dies of lack of funding. As we cannot expect conflicts to disappear, this would sadly lead to the general application of arbitration, which is characterised by not creating any jurisprudence others may learn from. However, in a rotten system, what good is jurisprudence anyway? And how do we re-create a good European examination system from the shards left over?

All the best from an observer of massive decline,

George Brock-Nannestad

As one response to the above comments put it:

Some of the more significant member states have told BB to behave. It is only natural that he decided to infuriate those member states even more.

Apparently he is confident, or gambling, that the three-quarters majority that is necessary to remove him will not be reached.

The EPC is on the verge of turning into a failed project.

The German media, according to this comment, finally has some coverage of it. “Here is a well documented article by Juve,” says the comment, “on the loss by the President of the AC´s support for the reforming of the boards of appeal” (pushing the envelope). To quote the summary (in German): “Die Reform, die zu mehr Unabhängigkeit der Beschwerdekammern des Europäischen Patentamtes (EPA) führen soll, verzögert sich weiter. Nach mehreren übereinstimmenden Berichten aus dem Umfeld der Münchner Patentbehörde verfolgt der Verwaltungsrat seit vergangener Woche offensichtlich einen neuen Reformvorschlag. Danach hätte das Aufsichtsgremium des Amtes seine Zustimmung zum ursprünglichen Reformpaket von Benoît Battistelli versagt. Bislang galt der Verwaltungsrat als die Machtbasis des umstrittenen EPA-Präsidenten.”

It would be useful to have a translation of the article into English.

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