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06.01.16

Save the Boards of Appeal to Save the EPO From Battistelli’s Neoliberal Vision and Recipe for Disaster

Posted in Europe, Patents at 2:38 pm by Dr. Roy Schestowitz

NASCAR sponsorsSummary: The ENA or Battistelli school of thought poses an unprecedented danger not just to the Office but the entire Organisation and unless people fight back, the whole of Europe will suffer

Edward Bray from Marks & Clerk (software patents pushers) seems to conveniently ignore the fact that software patents are not allowed in Europe. Why are patent lawyers from Marks & Clerk surprised at all that such claims are not patent-eligible? As it turns out, based on Bray’s new writeup, the determination came from the Technical Board of Appeal, whose function is essential for keeping software patents out of the EPO, in the face of strong/intense pressure from boorish neoliberals like Battistelli. To quote Bray: “In T 1370/11, the Technical Board of Appeal of the EPO considered a patent application directed to a method for determining values of objects in a program by performing a calculation based on properties of those objects and using the result of the calculation to determine if a cache required updating. [...] The Board held in paragraph 10 of the decision that “the argument that a computer program or computer-implemented method is inventive because it is faster than an earlier one is on its own insufficient to establish an inventive step. More specifically, the improved speed of a computer program is by itself not a technical contribution to the art.” [...] “This case provides useful guidance for those hoping to patent quicker, more efficient computer programs. It is clear that a reduction in computing time is, by itself, not a technical contribution and cannot be relied on to support inventiveness. Inventors and claim drafters should instead consider what “further” technical effect their invention provides in order to satisfy the EPO examiners that a technical, inventive contribution is provided over the state of the art.”

We sure hope that the Boards of Appeal will all survive. They’re quality controllers. Battistelli is so clueless (and completely non-technical) that he's not aware of sharp quality decline and if he gets his way (demolishing the Boards of Appeal), things will get a lot worse pretty fast. There will be even less oversight and fewer controls, not just over Battistelli himself but also the technical process where increased pressure and nepotism already limit the exhaustiveness of prior art search and provide an incentive to grant, not to reject. Looking at some of the latest comments from The Register, one person makes the FIFA comparison (again): “So, get your mates to set you up in Office, then turn it into a fiefdom. Sounds like standard practice to me (FIFA, EUFA, International Olympic Committee etc.)”

Another person compares Battistelli to Mugabe by saying: “Narcissus? ;-)

“We sure hope that the Boards of Appeal will all survive.”“Pretty scary stuff this. The EPO agents should have complete autonomy, otherwise the President basically becomes a version of Robert Mugabe (without all the evil things Mugabe has done).

“If I had a vote, I’d vote El Presidente out immediately and call for form. Oh, but wait: the EU isn’t a democracy ;-)”

The EPO is not an EU institution though. “I guess you could always write to your local MEP,” one person jokingly added. “You know, the one you voted for in the last European elections, remember? ;)”

Well, they are not effective enough as the EPO is unhinged from the EU. Eponia is quite a crazy place. The best comment was this sarcastic one: “I think Benoit Battistelli is doing an excellent job… of highlighting all the flaws in the current appointment and employment process.

“The only thing left is to test the forced exit procedure, and from what I can read, he’s hard at work to ensure he gets to test that too. I just hope he able to sample the exit-in-disgrace process in full instead of forcing a test of business continuity process that should kick in if he’s run over by a bus due to failing bike brakes.”

“Sarcasm aside, I would like to know of the moron who ever approved an operating model like that. It must have been someone who saw this as a nice cushy retirement job. The only flaw in the plan must have been Battistelli not leaving.”

“Eponia is quite a crazy place.”The problem is, some of these flaws he himself has created by removing oversight and attacking critics, hiring old buddies, and even their family members. We have been writing about this for years. We showed the ‘paper trail’, so to speak.

“The Register article about an AMBA letter to the AC regarding the proposed reforms,” noted one person at IP Kat, giving people a link to it. “If that is true, then our President follows his targets to the minimum letter. He has been told to consult. check. Nobody told him to listen to the arguments and come to an agreement regarding a proposal during these consultations.

“I wonder what DG3 would say if I came to Oral Proceedings in Examination or Opposition and have the decision already on the table. Efficient procedure, yes. But….

“I would be doing what our President is doing. yet I could be charged with professional incompetence and be fired over this.”

Another person then said: “An Appeal Board that is funded from patent renewal fees is clearly not financially independent, hence not independent. The law of unintended consequences should make everyone careful over what they wish for.”

Yes, this is in fact a design flaw, perhaps dating back to the EPC. One person wrote:

As good as half a lifetime ago
Conscientious examiners at the EPO
Were proud to do a job well done
To serve the European public as one
but now are hindered to do so.

Well, there’s a lot of money at stake and mistakes cost a lot to society. To quote this new example from IP Kat, watch the royalty rates. To quote: “This technology was the subject of European Patent No EP 0173 177 53, issued on 22 April 1992 (‘patent EP 177’), as well as two patents issued in the United States on 15 December 1998 and 17 April 2001 (‘patent US 522’ and ‘patent US 140’, respectively). On 12 January 1999, the European Patent Office revoked EP 177.”

So patents do get revoked (admission of errors), but boards won’t have the opportunity to revoke anything under Battistelli. It’s not only expensive but it’s also unclear if any staff will be left inside the boards.

Another IP Kat post (a little older) contains a very long discussion about sanctions imposed on those choosing to leave their EPO job. One person has just said that:

The problem with the proposal, as usual, is that it lacks checks and balances. If someone leaves the Office or is fired and seeks another occupation, even without pay (say being the head of the local Union…), the President can say no. He just has to say it is against the interest of the Office. The person can only complain to the ILO-AT tribunal In Geneva who, in practice, only checks whether formal conditions are met. ILO-AT will then obviously agree with the decision, as all recent jurisprudence shows.

Furthermore, in the new system, the personal member getting a new job must first inform the President and wait two months before accepting a new job. In the present system, there is no such obligation.

There is a new paper about the Paris criteria explaining that the Office will hire massively in the next 3 years, creating redundant examiner posts once the backlog is processed. I understand that hundreds of “redundant” examiners will be fired then. All this is very worrying.

Truthfully, it is worth reading comments prior to this as well. We chose not to focus on this due to lack of time, but it helps highlight just how deep a trap people fall into when they choose to sign an employment contract with the EPO.

Where can such people find employment if just about everywhere that looks for patent expertise is out-of-boundaries for existing (or departing) EPO staff? Battistelli entraps them.

“Battistelli is ruining the EPO pretty fast and if his so-called ‘reforms’ become a reality, the whole Organisation (not just the Office) may become irreparable, making Europe a lot less competitive.”Kingsley Egbuonu of MIP is currently ‘advertising’ the UPC (job ads) even though it’s still just a hypothetical thing. To quote the summary: “Part-time and full-time UPC judges wanted; new features of the UPC case management system and EPO’s software for Unitary Patent released; more member states preparing for ratification; Preparatory Committee discuss remaining aspects of the UPC; our latest UPC scenario on challenging a non-opted out European patent relating to a pharmaceutical product during the transitional period” (putting aside the fact that the UPC can still be called off).

Not too long ago there was a long discussion about why (or why not) board members (from the Boards of Appeal) can/cannot take such jobs. When it comes to the UPC, many comments about it in IP Kat reveal confusion and uncertainty even from insiders (the whole thing is a mess, as even patent attorneys habitually tell me) and to make matters even worse, the UPC helps bring software patents to Europe. Would there be any Boards of Appeal to antagonise this? Probably not. This is why the Boards of Appeal need to be guarded and the UPC antagonised. Battistelli is ruining the EPO pretty fast and if his so-called ‘reforms’ become a reality, the whole Organisation (not just the Office) may become irreparable, making Europe a lot less competitive. It’s all about serving billionaires, in lieu with TTIP, TPP, and what used to be called ACTA. Watch what Microsoft has just done to Xiaomi and recall what Microsoft did to TomTom (medium-sized Dutch company) using software patents.

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