09.02.16

UPC Threatens to Send the European Patent Office Circling Down the Drain

Posted in Europe, Patents at 3:09 am by Dr. Roy Schestowitz

“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

–Dr. Glyn Moody

Expect a possibly new (or reused) name for the same bad scheme that favours trolls and large corporations

The EPO is being run like a cliquish family business these days… and it shows [1, 2, 3, 4]

Summary: The European Patent Office (EPO) may never see the UPC becoming a reality (almost definitely not under Battistelli) and staff of the EPO should antagonise any attempt to replicate and make it a reality

THE UNITARY patent, or UPC (Unified Patent Court)^*, threatens the EPO‘s staff, especially or in particular parts of the Organisation which are currently foreseen/expected to be made redundant by unitary courts, with rumours suggesting that their jobs would go somewhere like Paris (Battistelli’s gift to France perhaps).

Not much is known about the UPC right now because Brexit undermined it so badly that it may never happen at all (in no shape or form). SUEPO noticed that this German programme covered the subject, presumably “(from 14’35’’ onwards, Das Erste, 17 August 2016): on the Unitary Patent.”

“German State TV “Das Erste” Plusminus,” told me one person (who informed many others as well), has a “very critical report about UPC-from 14’35’’ onwards, Das Erste, 17 August 2016″ (a translation of it would be very much appreciated as we already have a translation of a similar TV report from Italy).

Suffice to say, there are voices in the media that do try to advance the UPC. The boosters of the UPC (like Team UPC) act as though everything is alright (it’s not!) and MIP has just published another Unitary Patent and UPC “progress report”, even though there has been no concrete progress. To quote the summary: “UK IPO speaks out on UK’s involvement in the UPC and Unitary Patent system; UK patent attorney body CIPA prefers UK in the system; experts to discuss the latest on the UPC and post-Brexit patent strategies at MIP European Patent Forums in September.”

That’s all talk and lobbying, no action. Meanwhile, as one new comment put it:

Instead of running after something which has gone, it would be wiser to put energy in saving what is left from the UP/UPC once UK has gone, but then to look at the matter with fresh eyes. The matter should be simplified and the influence of common law should be thrown overboard. After all, UK has left and the continent is not an area relying on common law.

Going back to MIP, there’s this new bit of coverage from Shanghai which says: “Post-coffee break, Gordon Harris, a partner of Gowling WLG, shared his observation on the impact of Brexit on IP rights. He stressed that EU registered IP rights remain protected in UK for the time being, and there will be no change to European patents.”

As usual, it’s patent (or IP) lawyers that dominate all those debates and it’s hardly surprising that they want more litigation and more problems. They profit from it. The more, the merrier.

EPO patents are already suffering a steep decline in quality (we covered this many times before); imagine the effect of combining that with some EU-wide courts, which would effectively empower all sorts of parasitic elements like patent trolls. Regarding the “Unitary patent and related developments,” said a not-so-recent (pre-Brexit) oral report from EPO staff, “Ten Contracting States have ratified the treaty so far, most recently Bulgaria. The ratification in the Netherlands is currently pending. The consequences of the Brexit votum are unforeseeable. The Italian delegation as well as the observers from Business Europe and epi called for “business as usual” and encouraged further engagement of the EU states to conclude the Unitary Patent. SR [Staff Representation/Representatives] confirmed that staff would in principle be ready and willing to make the Unitary Patent a success, i.e. a legal title with high legal certainty. But the SR also reminded the Council that solid search and thorough examination requires time. Political guidelines are to be given by a conference of ministers of the Contracting States according to Article 4a EPC. The SR repeated again that this conference is long overdue.”

Generally speaking, the EPO under Battistelli arrogantly disregards the EPC in all sorts of way. Not only that in fact; Battistelli also ignores national and sometimes international laws. These people want us to believe that there is some “greater good” in all this and all the abuses are somehow to be justified in the long term because of “reforms” like the UPC.

Now that it looks increasingly unlikely that the UPC will ever become a reality, where does that leave Battistelli? Why did the SR (as above) play along with only very cautious criticism? Are they already this afraid of the lunatic in chief and his goons? Has it become unacceptable to merely question the merits of the UPC? There are no merits.

The UPC is on the retreat these days; as we noted last month, it’s hardly even mentioned these days (internally and externally). Our guess is, the whole bundle of legislative laundering will be changed to overcome Brexit and maybe renamed yet again. Will staff be prepared to antagonise it? Already, boards of appeal (patent quality assurance) have essentially been ejected from the EPO’s building (exodus or diaspora imminent, probably as early as next year), so time is running out for those wishing to save the EPO rather than letting it become another USPTO (with virtually no quality control, lots of patents trolls, and leanings towards large corporations that effectively run it^**). It now attempts to garner support by asking for feedback, at a time when press releases are issued aplenty to celebrate newly-granted software patents [1, 2].

Judging by some of the latest comments in IP Kat, people generally understand that the boards’ move to Haar has nothing to do with independence. To quote one such comment:

In spite of all the nice words, the message of Mr Battistelli to his staff drafting the proposal and arranging the move to Haar (and to the Administrative Council) was clear: here is what I want to do to the Boards of Appeal; now you arrange for it to happen somehow, and if necessary find an explanation why it is legal.

By the way, as an (unintended?) side-effect, the president is for the moment de facto himself in control of the Boards of Appeal; see http://amba-epo.org/; so far for independence…

Here is a comment about the legal opinion just formally unleashed by SUEPO:

The London-based lawyers, Bretton Woods Law, has produced a legal opinion concerning the actions of the President of the EPO, and the responsibility of the Administrative Council as well as the Member States of the EPO with respect to staff:

LEGAL OPINION – CONSIDERING THE ACTIONS OF THE PRESIDENT, THE ADMINISTRATIVE COUNCIL AND
MEMBER STATES OF THE EUROPEAN PATENT OFFICE

BREACHES OF BASIC AND FUNDAMENTAL RIGHTS AT THE EPO

I quote:

“It is not hard to see that many of the circumstances that have arisen at the EPO
amount to violations of the rights contained in the ECHR. To list but a few: fair
trial provisions are fundamentally absent at the EPO, since the President sits as a judge in his own cause; there is a lack of equality of arms, delays, an absence of due process and a tribunal that is itself beholden for its funding to the very institutions it is being invited to find against. The provisions in respect of sick leave (and the effective ‘house arrest’ of staff members) appear to contravene the right to a private and family life. The arbitrary treatment and abuses of the system in respect of staff representatives appear to be an attack on all of the rights listed above.”

It is probably worth the paper it is written on for President Battistelli and his Administrative Council.

Still, I am looking forward to the decision of the High Court in the Netherlands about the EPO breaching fundamental human rights …

Here’s more on that:

Me too.

Alas, the “Hoge Raad” seems to have pushed their decision date a bit further down the road…

From their site:
“15/02186 Europese Octrooi Organisatie en de Staat / Vakbondsunie Europees Octrooibureau (VEOB) en Staff Union European Patent Office (SUEPO)

Is de Nederlandse rechter bevoegd in deze zaak? En zo ja, moet deze vakbond door het octrooibureau worden toegelaten?

Conclusie 30 september 2016.”
Case number is there, and expected decision date.
A month to go, which puts it just beyond the next Board28 (22 September) and before the next AC meeting (12/13. 10.2016)

In December, we might see more party than decisions, as it’ll be meeting 150 of the AC. And that’s the AC which should discuss the results of the meeting regarding the social conference.
Well timed…

As the following comments note, Battistelli, who postponed any discussions about the social situation at the EPO until October, has produced propaganda to be used, for a payment, to lie to the Council (again):

And the Social Conference is arranged for 11th October – the day before the AC. Staff – but only the registered Union – can apply to participate but, with the ‘conference’ due to start and end less than 24 hours before the AC begins, it would be hard not to be cynical as to whether the conclusions may already have been decided or not.

The significance of the timing isn’t being overlooked:

What is the stated purpose of the “Social Conference”? If it is any way connected with the decision-making of the AC, then you would appear to have every reason to be cynical.

Also, do we know the proposed agenda for the next AC meeting? I would be very interested to learn what (if anything) the AC intends to do about the President’s interventions in case Art. 23 1/16, as well as whether they intend to make redress to the individual who was the subject of that case.

Remember the time Battistelli used his silly lobbying event and IAM propaganda to pretend (to the Council) that on the technical front everything was great? Again, well timed. The EPO is basically being run by villainous liars and since it’s like a family business there’s enough loyalty at the top to prevent dissent. █
_____
^* The name of the UPC just keeps getting changed, making criticism of it harder to maintain and easier to dodge.
^** USPTO Directors typically come from mega-corporations, a de facto policy which inevitably introduces a conflict of interests (one of them, David Kappos, became a lobbyist thereafter, serving his former employer and intervening in USPTO policies). The latest such Director is at least a female (Lee) — something which Brimelow might have something to say about after she got muscled out by “alpha-males”. From the figures that are publicly accessible, say some EPO insiders, “we can deduce that female staff are not fairly and equally treated since in particular very few senior managers are female. This is an inadequate situation for an international organisation in the 21^st century.” The few females at the top are not only French but in some cases connected (friendliness and kinship) to Battistelli himself. One must be careful of appointment of women where these appointments are made by man who virtually control and use them for “femmewashing”. Not too shockingly, the Wall Street-funded political campaign of Clinton is supported by patent maximalists (mostly males), white male executives, and extremely chauvinistic regimes from Gulf states. The patent maximalists reportedly support Clinton because her patent policy, as we noted here before, echoes their wishlist and desires.

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