EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

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.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 6/4/2020: New Red Hat CEO, elementary OS Hera Updates

    Links for the day



  2. When the Decision is OK and the Judge's Motivations Are Also OK

    Justice Huber made the right call; but the bullies and charlatans who conspired to undermine laws and constitutions will never be satisfied



  3. The Fall of the UPC - Part XII: Doing the Unthinkable by Blaming the Judge's (Justice's) Wife?

    Team UPC and its media partners never cease to amaze us; anybody who stands in their way is either portrayed as a Russian stooge or too ignorant to be worth talking to



  4. The Fall of the UPC - Part XI: Lies Told by Bundesverband der Deutschen Industrie (BDI) in Süddeutsche Zeitung

    Today we look at misleading claims (or lies) published by Süddeutsche Zeitung after the Germans' constitutional court (FCC) had pointed out the obvious, namely that UPC ratification would be in violation of the German constitution



  5. IRC Proceedings: Sunday, April 05, 2020

    IRC logs for Sunday, April 05, 2020



  6. Links 5/4/2020: MindSpore, Covid-19 Projects and More

    Links for the day



  7. EPO is Just Like Some Cruel Political Party and Not a Patent Office

    The "cabal" which runs today's EPO (even the word "Mafia" seems suitable here) isn't acting -- not even remotely -- like a patent office; it's a patent-printing operation ("protection money" as income) that uses shallow political stunts to manufacture consent with the EU's 'generous' assistance



  8. Digitalisation and Digital Technologies as a Ploy to Justify Illegal Software Patents

    Say "hello" to the next weasel word/s; from the "hey hi" hype wave we've now moved to something "digital" (which can mean just about anything, including algorithms of all sorts)



  9. The Fall of the UPC - Part X: How We Shall Catalogue UPC Lies

    The cult that Team UPC became (one member lying to another member, maintaining a false version of reality) will be judged based on underlying facts, not lying about facts; we start with a token of contempt for IP Kat and Bristows LLP (there are overlaps)



  10. IRC Proceedings: Saturday, April 04, 2020

    IRC logs for Saturday, April 04, 2020



  11. Major Revelation: Microsoft Blackmail Against LAMP (GNU/Linux and Free Stacks for Servers) Goes At Least 16 Years Back, Predating the Novell Patent Deal

    (Techno-)Anthropological analyses of Microsoft's patent war on Free/libre software must take into account what Microsoft did to MySQL, a Swedish company at the time



  12. Links 4/4/2020: Sparky 5.11, Firefox 74.0.1, POCL 1.5

    Links for the day



  13. IRC Proceedings: Friday, April 03, 2020

    IRC logs for Friday, April 03, 2020



  14. Links 3/4/2020: Ubuntu Beta, GNOME 3.36.1, ExTiX LXQt Mini, NetBSD 8.2 Released

    Links for the day



  15. Digital Communication, Digitalisation and Videogaming Among the EPO's Latest Smokescreens for Illegal and Abstract Patents on Algorithms

    The EPO keeps liaising with the EU to promote patents which EU officials have themselves said were illegal; to make matters worse, the EPO's violations of its own laws inspire the United States to do the same



  16. Emotional Blackmail for Illegal Software Patents

    Semantic tactics the European Patent Office (EPO) uses to promote software patents in Europe and may theoretically use in the future (satire)



  17. Clear Linux is to GNU/Linux What Clearly Defined is to Open Source

    The idea that we need Intel to take GNU/Linux ‘mainstream’ is ludicrous; as OSDL co-founder (now succeeded in the flesh of the Corporate Linux Foundation), Intel is more about Linux (with DRM, “secure boot” and everything that lets it be remotely controlled) than about GNU and it’s not too keen on GPL (copyleft), either



  18. IRC Proceedings: Thursday, April 02, 2020

    IRC logs for Thursday, April 02, 2020



  19. Links 2/4/2020: Linux 5.6.2, Qt Creator 4.11.2, LineageOS ROM Based on Android 10

    Links for the day



  20. OIN in 2020 Resembles Linux Foundation in 2020 (Corporate Front Group Piggybacking the Linux Brand)

    We regret to say that the Open Invention Network seems not to care at all about Software Freedom; to make matters worse, it is a proponent of software patents and a voice for companies like IBM and Microsoft, not the "Community" it fancies misrepresenting



  21. Inside the Free Software Foundation (FSF) - Part IX: Semi-Happy Ending

    Richard Stallman is here to stay and the FSF will let him stay (as chief of GNU); we want to close the series on a positive note



  22. IRC Proceedings: Wednesday, April 01, 2020

    IRC logs for Wednesday, April 01, 2020



  23. Upcoming Articles and Research Areas

    Although we've failed to write as much as usual, we're still preparing some in-depth articles and maintaining Daily Links (in spite of unforeseen ordeals like a forced laptop migration)



  24. Links 2/4/2020: ProtonMail Bridge for Linux, GTK 3.98.2 and Red Hat DNF 4.2.21

    Links for the day



  25. Links 1/4/2020: Linux 5.7 Merges, Qt 5.14.2, GhostBSD 20.03, Linux Mint 20 Ulyana Plans, WordPress 5.4 “Adderley”

    Links for the day



  26. IRC Proceedings: Tuesday, March 31, 2020

    IRC logs for Tuesday, March 31, 2020



  27. Techrights to Delete Articles From All Past Years to Save Disk Space

    What if we deleted over 25,000 posts?



  28. IRC Proceedings: Monday, March 30, 2020

    IRC logs for Monday, March 30, 2020



  29. Links 30/3/2020: GNU Linux-libre 5.6, WireGuard 1.0.0

    Links for the day



  30. IRC Proceedings: Sunday, March 29, 2020

    IRC logs for Sunday, March 29, 2020


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts