Bonum Certa Men Certa

'Constitutional Crisis' at the European Patent Office (EPO)

Declaring de facto Martial Law in defiance of the spirit of the Office, in order to seize additional powers

Rodrigo Duterte
Photo credit: Edwin Espejo



Summary: The Benoît Battistelli-run EPO is not run like a professional institution anymore and it does not even obey the rules of the founding fathers of the EPO

Several years ago we took note of a steep decline in patent quality at the EPO, whereupon we started writing not only about software patents at the Office but also its general policy. Some signs of wear could first be seen towards the end of Brimelow's term (see our articles from around 2008). A lot of patent examiners knew about it, but with hypothetical stuff like the Community Patent over the horizon at the time (just another name like EU Patent, EPLA or UPC) there was probably hope that there was some "greater good" somewhere along the way. Well, now we know better that compromising patent quality and inviting malicious actors like trolls (entities which are creating nothing, effectively predators that prey/run over others for quick gains through racketeering) would be an inevitable side effect of such a patent regime. Not only would that hurt European businesses; it would also harm patent examiners and their families, pensions, sense of pride etc. Like ISDS inside treaties such as TPP, the goal is not to promote some public interests but to advance corporate interests through their lobbyists, lawyers, etc. Don't we already know how it typically works after defunct efforts like ACTA? Don't we have a collective responsibility to put an end to that? For me, as a software developer and researcher (medical biophysics is my specialty), the EPO looks increasingly daunting especially because of the phasing in of software patents inside Europe. I wish to develop software and deploy software in peace, without having to fear threatening letters from patent trolls, not to mention threatening letters from the EPO. A lot of people feel the same way. They share the concerns that I do; that is why many software developers are in general strongly against software patenting, not just in Europe but everywhere in the world. For those who wonder about my motivations (sometimes because they try to malign and discredit me), there are no personal grudges against EPO managers (they are not my employers and I have nothing to fear from them personally), it's just that the EPO is heading down a really bad path and everyone -- including EPO insiders -- are assured to suffer from this. My goal is to help redeem/save the EPO, not to destroy it. When a lot of people try to fix the EPO it's likely that this fix will be an inevitability. One tyrant cannot defy the motivations of the majority of his staff. It's as simple as that. These are highly-skilled workers that aren't disposable and not easily replaceable (for recruitment of docile/loyal 'drones' such as scabs).



"These are highly-skilled workers that aren't disposable and not easily replaceable (for recruitment of docile/loyal 'drones' such as scabs)."The more we learn about the EPO and the deeper we delve into its top-level operations (Team Battistelli and their corporate masters), the uglier things look. How did it get this bad? Maybe this has been brewing for a number of years, but mostly behind closed doors. Now that doors are opening a lot of 'dirty laundry' comes out and the stench is overwhelming. FIFA was nothing compared to this.

"Discuss the importance of EP protection for US industry here," the EPO wrote yesterday. Yes, it seems like the EPO is prioritising US conglomerates now, even at the expense of European businesses. It's easy to see that the EPO does not give a damn about SMEs, no matter what it said this week about them. It's all hogwash. Under Battistelli, those who bring more income receive better treatment and that's just morally and professionally wrong. It's unprofessional.

Watch the EPO linking to a "Boards of appeal" page which says "Discussion of mock trial" as if they are talking about the Judge Battistelli attacks and defames. More "mock trials" were mentioned yesterday by a Bristows blogger. It's basically promotion of EPLAW (guess who's behind EPLAW).

In this other new article from her IP Kat 'colleague', Mark Schweizer, some are still floating the UPC, saying that a CJEU "case is interesting because the Preparatory Committee for the Unified Patent Court has suggested the adoption of ceilings on recoverable costs [...] whether and when the UPC will ever become a reality is anybody's guess" (probably never).

Another rename/rebrand for the UPC is likely, especially if the UK remains a major barrier. Watch this new IAM "REPORT" (i.e. advert) titled "Impact of Brexit on US IP owners". Surely they know that as long as Brexit stands, there is virtually no way for Lucy to ratify the UPC (even for a friend like Benoît Battistelli).

Expect the Battistelli-led EPO to continue its race to the bottom. It's pushing for the bottom low of patent quality for the sake of so-called 'production' and earlier this week we mentioned the effect on the EPC with the relevant document added later [1, 2]. Quite a few comments came up about it, even some which cite Techrights. One person wrote in IP Kat:

A leaked copy of that presentation would be much appreciated. If the EPO is planning to change such a fundamental as the law / standard that it applies during examination, then this issue really needs to be debated in public.

Of course, given what has happened at WIPO (where the Member States are being denied access to a report: that they commissioned; which concludes that WIPO's director knowingly flouted UN sanctions; and which has been passed to the direction in question despite containing sensitive details of whistle-blowers who testified against him), it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC.


"A leaked copy of that presentation would be much appreciated," the above says and if anyone who reads this saw the presentation and has a copy of the slides, please consider transmitting these to us.

The following IP Kat comment is responding to someone who (as quoted above) said "it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC."

Check the Protocol on Privileges and Immunities:

Article 23 (1) Any Contracting State may submit to an international arbitration tribunal any dispute concerning the Organisation or an employee of the European Patent Office or an expert performing functions for or on its behalf, in so far as the Organisation or the employees and experts have claimed a privilege or an immunity under this Protocol in circumstances where that immunity has not been waived.


"As I have said before," added another person, "crap patents are fine, as long as everyone understands they're crap."

The principal danger is that, over time, more people will realise that EPO patents are of low quality and won't be willing to: 1) pay for claims without challenging them in courts; 2) take an EP at face value and haul companies into court; 3) pay a high fee for application/renewal/appeal.

Here is the comment in full:

From the SUEPO document posted on Techrights, it seems that the EPO strategy is not sinister. The aim is merely to reduce the quality of examination, and thereby increase the throughput, or possibly the other way round. Nothing wrong with that. As I have said before, crap patents are fine, as long as everyone understands they're crap. Whether applicants will still be interested in paying top dollar, and whether the EPO will find intelligent engineers willing to churn out crap day after day, is another question. OK, two questions. And questions which must presumably have been considered at length by the EPO's indisputably enlightened management.


Another person wrote:

So it looks like the answer to the open question is "no". There would have to be a "dispute" in the first instance (question: how could a such a dispute come about?), and then there would need to be an arbitration tribunal willing and able to take this on (question: would ILOAT have the competence, or even the inclination, to take on a dispute concerning compliance of EPO examination policy with the EPC? And if not the ILOAT, then who else?).


In relation to Brexit one person wrote this morning about the EPC/EPO/UPC that "[i]t's like BREXIT. The procedure exists (on paper). Somebody just needs to start the ball rolling. It's all in the PPI. The founding fathers foresaw that there could be disputes and accordingly they made arrangements for arbitration."

That's like people in the US justifying the abolishment of the Constitution or Amendments "because of terrorism" or something to that effect. The only emergency at the EPO right now may be fiscal/financial -- a subject we shall cover another day.

Recent Techrights' Posts

Why We Publish Information About the SLAPPs (But Not About the Legal Process), an Abuse of Process by Americans Trying to Silence Critics of Their Employer, Microsoft
It doesn't take thousands of pages to explain something simple
 
The Register MS Says "AI Web Crawlers Are Destroying Websites", So Why Does The Register MS Help 'AI' Companies? (Spoiler: Money)
People need to call out The Register MS on its hypocrisy
Slopfarms Already Peaked, They Will Die When Slop Companies Run Out of Money to Borrow
slopfarms will lack an actual "engine"
Links 02/09/2025: Attacks on Unions, Microsoft TCO, and DDoSing a Growing Problem
Links for the day
Internet Relay Chat Didn't Fall Off a Cliff
IRC will turn 40 in less than 3 years from now
The UEFI 9/11 - Part V - This is Not a Drill (Disable "SecureBoot" Now)
A "9/11" Coming
There's No Obligation to Speak to Anybody
The very fact that "bkuhn" is till spending time in social control media says a lot about his poor judgment
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 01, 2025
IRC logs for Monday, September 01, 2025
Microsoft Trying to Force People to Resign (Amid Mass Layoffs) a Strategy That Takes Its Toll
Microsoft seems to be circling down the drain and the "final flush" will be the moment the "hey hi" (AI) bubble implodes completely
Google Simply Cannot Be Trusted
Only fools would trust GAFAM
Admission That a Third Party (or Parties) Funds the SLAPPs Against Techrights
This can end up costing them over a million dollars
Modifying and Writing One's Own Computer Programs is Not a Crime (or: Google Proves That Stallman Was Right)
We're generally gratified to see so many positive mentions of him
Why We Stopped Publishing Videos (for Now)
We'll probably get back to videos one day, but it's hard to say when or to what extent
What Animal Rights Activism Teaches Us About Sympathy and Focus
It's possible to believe that the planet is warming, that we must do something about it, and still eat eggs and butter
When You Turn Web Sites About Tech Into Political Sites
A lot of people fall into the trap of catering only for particular groups
Gemini Links 02/09/2025: ROOPHLOCH 2025 and Lagrange 1.19 Released
Links for the day
Gemini Links 01/09/2025: News Corp. WSJ and A Month With NixOS
Links for the day
“Sideloading” Never Killed Anybody
There are many online discussions this week about the misnomer "sideloading"
Slopwatch: Google News as FUD Vector Against Linux and Plagiarism Enhancer, Serial Slopper (SS) Uses LLMs to Googlebomb "Linux"
Slop destroys the Web not just by screwing with search engines and helping plagiarists. It's also responsible for de facto DDoS attacks...
Links 01/09/2025: "Attacks on Science" and China's "Soft Power" Grows
Links for the day
Links 01/09/2025: Fresh Backlash Against Slop and "Norway’s Electricity Crisis is About to Hit Britain"
Links for the day
Writing and Coding Isn't Always Enough
Last year we had to assume a role we didn't have before: litigants
Links 01/09/2025: Catching Up (Mostly via Deutsche Welle), "Windows TCO" Effect in UK
Links for the day
Gemini Links 01/09/2025: Linguistic Barriers and "Web 1.0 Hosting"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 31, 2025
IRC logs for Sunday, August 31, 2025
Autumn Has Come
Autumn should be exciting in all sorts of ways; it'll also mark our anniversary
The UEFI 9/11 - Part IV - External Interference
They all seem to be playing a role in crushing Software Freedom and self-determination for users
Links 31/08/2025: Baggage Claim Scams, an Insurrectionist’s War on Culture, and a Sudden Robotics Hype
Links for the day
Gemini Links 31/08/2025: Reviewing Netsurf and Slightly Less Historic Ada Design
Links for the day
IBM Has Taken Control of GNOME
Don't expect a successor to be found any time soon
Links 31/08/2025: Google Gmail Data Breach and LF Puff Pieces for Pay
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 30, 2025
IRC logs for Saturday, August 30, 2025
This is What Google News Has Become
Moments ago