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08.11.16

‘Constitutional Crisis’ at the European Patent Office (EPO)

Posted in Europe, Patents at 8:27 am by Dr. Roy Schestowitz

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.

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