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06.15.16

Benoît Battistelli’s Façade Continues: Exploiting Terror Attacks Again, Throwing Expensive Parties at the EPO’s Expense, Crushing More Workers’ Rights

Posted in America, Europe, Patents at 9:08 pm by Dr. Roy Schestowitz

Like watching a flower being squashed to perfume oneself

A militant EPO
The Office — much like Paris — is better known as a militaristic operation now, not an examination institution

Summary: Another depressing look at how Battistelli manages the EPO, once a meritorious patent office which has become a laughing stock not only among EPO employees but also among the stakeholders who are the source of the EPO’s income

Benoît Battistelli is embarrassment to the EPO. He does to the image of the EPO and the European Union what Blatter did to the reputation of FIFA and UEFA.

Benoît Battistelli is once again (as in many times in the past year) exploiting terror attacks (warning: epo.org link) to pretend that he’s anything other than a thug, or a bully who terrorises staff, terrorises lawyers, terrorises delegates, and even terrorises bloggers. What a total hypocrite. This is a typical routine of his, after every major terror attack (we covered other such examples in the past). This helps boost/feed the fictitious narrative of urgent need for 6 bodyguards [1, 2, 3] and makes it seem like he’s the “defensive” party. What next? Will he be strutting around with a plaster across his face like Blatter did? Cosby too used such strategies to garner sympathy. Are these blog posts written with advice from FTI Consulting? Maybe ghostwritten by the PR team? These have been written since the initial FTI Consulting deal. Is Battistelli sitting up there in his office near the Isar waiting for the next terror attack so that he can write blog posts and ‘private’ letters (opportunistically published to the whole world), painting him as sympathetic and caring? The latest is being sent to the head of the USPTO, a terrible patent system with no real quality control and a lot of patent trolls (i.e. what Battistelli strives for with the UPC). There is hardly any connection between her and the victims. She probably lived in the West Coast and is of East Asian decent, whereas the attack happened in the (South) East Coat and mostly killed Latinos. But never mind all that; terror attacks are always convenient excuses for policy-pushing (gun control, foreign policy etc.), especially for politicians like Battistelli. He’s not a scientist, he's a politician, which in itself is a problem. This could disqualify him if not rationalise impeachment.

“But never mind all that; terror attacks are always convenient excuses for policy-pushing (gun control, foreign policy etc.), especially for politicians like Battistelli. He’s not a scientist, he’s a politician, which in itself is a problem.”Speaking of the low patent quality at the USPTO, it seems evident that Battistelli — whether inadvertently or not — emulates the same thing (including the patent trolls). Meldrew wrote today that: “There is a bouncing ball that might be spun in different ways.” Meldrew alluded to number of patent grants, which help demonstrate that Battistelli killed patent quality at the EPO; how long will it take for applicants to realise this and for value of existing (and future) patents to be accordingly/appropriately depreciated? In his/her blog, Meldrew wrote: “Applying some rough and ready guesswork, one can guess a total number of patents granted in 2016 as in the region 88,000 to 102,000 representing an increase of 29-49% in the number of grants over 2015.”

Yes, how ‘natural’. Unless the industry as a whole suddenly experienced a 29-49% growth in ‘innovation’…

That’s ENA’s neo-liberalism ‘at work’, racing to the bottom to help portray the businessman (Battistelli) as a king of all trades, master of jacks, and holder of no scientific qualifications. Meldrew asked: “What is happening in the background that explains this sudden increase?”

Well, recall the push to grant quickly, even at the expense of examination quality. Also recall the apparent fudging of numbers [1, 2, 3]. Another person explained this as follows:

Meldrew,
A partial explanation… Grants actually reflect work done 7-8 months previously as the decision to grant is based on the intention to grant delayed by time for translation and any amendments. Thus the current ‘surge’ is actually a surge taking place in early 2015.
That relates to a time when Early Certainty From Search started and examiners dossier management system prioritised search over examination. With one exception! Grants could be made immediately even if they were low ranked and the system identified files which were possibly ready for grant based on the info supplied for ESOP or WOISA. In order to reach targets examiners thus took this option and, in effect, non-grantable files became secondary at best. Priority was search and grant. Examination had to wait for search deadlines (priority 1) to be met. This may change soon so the apparent surge may not continue. Indeed, at some point examiners will have to do the examinations as priorities will change. But in the meantime the examination work is skewed to grant rather than further communications, even if the applicant has amended and feels it is ready for grant the examiner must deal with highly ranked files – legal search deadlines etc. – first and is not allowed to choose lower files.

Meanwhile, the EPO’s Twitter account (i.e. PR people) is still milking the staged events and linking to puff pieces like this one. Applicants’ money is apparently being wasted by the millions on a silly festival rather than a thorough/comprehensive/exhaustive patent search (for prior art). Cutting corners to improve the bottom line in the short term seems like ENA ideology. If Battistelli manages to survive until the end of his term, why worry about the mess he leaves behind him? It’s like a 4- or 8-year presidential cycle, where one typically leaves the bubble for successors to grapple with as it implodes.

“Grossenbacher has earned quite a negative reputation, for reasons we named here before. Some suspect he is also the reason Brimelow stepped down and made room for Battistelli.”EPO and Battistelli are busy wasting a lot of money on a lobbying event, dressed up as an award ceremony or science. Here is Battistelli writing about his lobbying event (warning: epo.org link) which took place one week ago. This event, which he spent millions of Euros (EPO budget) on, will “continue to assert itself as the ‘Nobel prize’ of innovation,” according to Battistelli’s blog post. So he thinks he’s Nobel again, having said something to that effect at the event as well (we covered this at the time). Megalomania at work?

Speaking of megalomania, Battistelli must be so intolerant toward quality control at the EPO that he is still working towards demolition of appeal boards (like court of appeals). Based on today’s legal news [1, 2], a fortnight from now the boards may be further marginalised. “Early Certainty,” the EPO labeled it today (euphemisms galore), “new opposition procedure from 1 July.”

We have already mentioned it here the other day, as it’s clearly an attack on appeal rights and hence on the boards. Patent quality would be severely damaged. That was a cornerstone of the EPO and it was how the high costs (fees) were justified for decades. These fees are presently being wasted by Battistelli, who is buying the media to control the message (improve an image) rather than improve the Office. To the tune of millions of Euros, Battistelli flushes money down the toilet because the image of the EPO remains tarnished.

Many comments appeared today at IP Kat and we wish to quote some relevant ones. At the EPO, according to one person, Roland Grossenbacher (who is Swiss like Blatter and the person who started the Investigative Unit) “must be viewing the present mayhem with a certain satisfaction.”

Grossenbacher has earned quite a negative reputation, for reasons we named here before. Some suspect he is also the reason Brimelow stepped down and made room for Battistelli. To quote the comment in full:

Personally, I have always seen the dead hand of Eminence Grise Roland Grossenbacher (or ‘Roland’ as BB warmly refers to him in meetings of the AC) in all this. He has led the hawkish element in the AC ever since he became head of the Swiss delegation and if there is any concertation involved in the various measures introduced by the BB regime, he is at least the arranger, if not the bandmaster. This is not to say BB is his creature: I think Benoît is now beyond anyone’s control. But Roland must be viewing the present mayhem with a certain satisfaction.

As for the third leg of the milking stool, I suspect that Jesper thought he was playing as an equal with the big lads, but probably now realises that the game has got too rough for him. Certainly, he does not seem to be exercising any leadership in the AC, for someone who is supposed to be its chairman.

“If an ordinary CEO had done [what Battistelli did] in the UK,” one person commenter, “he would have committed a criminal offence” (laws don’t apply at Eponia, Battistelli makes them up and changes them whenever he pleases).

Here again is the comment in full:

Truly astonishing. If it can be proven that there was a “threatening” letter, then it is hard to see how that could amount to anything other than an attempt to pervert the course of justice. If an ordinary CEO had done this in the UK, he would have committed a criminal offence that carries a maximum sentence of life imprisonment.

So does that mean we are now in the situation where it is unarguable that the EPO is being run by a person who, under national law, could fairly be described as a criminal?

Regardless of the semantics, the AC needs to act now, even if they have arguably been complicit in bringing this situation about. On this occasion, the president has unarguably overstepped the mark (and in a serious way). Given that the president has also taken other actions that are directly contrary to instructions given to him by the AC, then what choice does the Council have but to give him his marching orders? There would appear to be no options for “finessing” this situation so that business can carry on as normal.

I shall finish with a thought experiment. Imagine you are BB. Also imagine that there is some reason why it is essential to your survival that you keep from the public certain details pertaining to the investigations into the Board of Appeal member that you are trying to get rid of. Then what, in this imaginary situation, would you do if the Enlarged Board decided to make the dismissal hearing open to the public? Apart from making it as difficult as possible for the public to attend, you would perhaps try to engineer a situation where the Enlarged Board would be forced to close the hearing without having discussed the substance of the case (and hence without revealing to the public the material that could really damage you).

This kind of tactic would be akin to ensuring that your claims go down for added matter upon appeal, just in order that you do not receive a public (and final) pronouncement of unpatentability on a substantive ground such as novelty or inventive step.

The observable facts appear to fit the theory pretty well. However, could BB and his team be that devious? If so, just how explosive / damaging is the information that such tactics are aimed at suppressing?

The EPO still threatens people using their pensions, which is why some people suspect Ciaran McGinley decided to retire now (exceptionally early). Here is one new comment about it:

Here is an example of a restrictive covenant which was upheld by the Danish Courts:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/541.html

(see §43 onwards)

Here, compensation of 50% of final salary was paid for a 12 month covenant, with the prohibited acts restricted fairly narrowly. While there may be good reasons for the EPO to restrict certain acts after employment at the EPO ends, it is reasonable for the restrictions to be narrowly defined such they demonstrably protect the interests of the office rather than being open ended subject to the whims of the management of the day.

“They’re not acquired rights,” another person added, “they are contractual terms. And that was the intention when new examiners signed the contract. But bona fide is not in the legal lexicon of the EPO, it seems.”

Finally, here is the latest comment on this thread:

Staff Regulations of the European Union Article 16: An official shall, after leaving the service, continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits. Officials intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service shall inform their institution thereof. If that activity is related to the work carried out by the official during the last three years of service and could lead to a conflict with the legitimate interests of the institution, the Appointing Authority may, having regard to the interests of the service, either forbid him from undertaking it or give its approval subject to any conditions it thinks fit. The institution shall, after consulting the Joint Committee, notify its decision within 30 working days of being so informed. If no such notification has been made by the end of that period, this shall be deemed to constitute implicit acceptance.

Looks very much like the new service regulations article 19. Nevertheless there are some differences which can be problematic.

Based on the type of comments we have been seeing today, Battistelli’s EPO has an appalling reputation, not just among EPO staff but also externally. Patent stakeholders (such as attorneys) increasingly view the EPO in a negative light. Does Battistelli care? And if so, what would he do? Dump several more millions of Euros (of applicants’ money) on media and PR companies? The EPO seems to have gotten itself a Sarkozy in charge, with or without a Bygmalion affair.

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