09.18.16

EPO President Benoît Battistelli and Team UPC Are Still Lying, Don’t Believe a Word They Say

Posted in Europe, Patents at 12:38 pm by Dr. Roy Schestowitz

Newspeak and half-truths would actually be an improvement for them

'Deceiver' poster
Deceiver at the Internet Movie Database

Summary: A rather bulky rebuttal to some of the latest misleading statements from EPO management and law firms that wish to expand/advance their own careers at the expense of the integrity of the European patent system

THE SITUATION at the EPO is pretty grim right now, but what’s even worse is the UPC, which threatened to bring some of the worst elements of the USPTO into Europe and beyond.

“There are even very expensive events that are intended for shameless self-promotion by Battistelli.”EPO workers must have noticed that after the summer the EPO has barely said or announced anything. The managers seem to be trying to keep a low profile (as allegedly advised by their PR 'experts') and the only time they speak out is at staged events where there’s no opportunity for dissent (if there is dissent, the EPO will delete it from articles even after publication). There are even very expensive events that are intended for shameless self-promotion by Battistelli. The EPO plans a similar event for next year and is publicly asking all those whom it can message to play along. It even gets pushy and sends unsolicited promotion. Check out some of the latest EPO 'spam' to European universities (latest examples are in [1, 2, 3]). It’s pathetic if not painful to watch. As we noted here before, the EPO under Battistelli wastes a fortune essentially buying off the media for positive puff pieces in several countries [1, 2]. This is not sustainable. There are also staged pro-UPC events, supported by the EPO and funded by its PR 'experts'.

“There are also staged pro-UPC events, supported by the EPO and funded by its PR ‘experts’.”Not much is being said these days about the social climate at the EPO, but there’s propaganda in the making and we are prepared to respond to it (the Social Conference is scheduled for next month). Instead, right now the topic on everyone’s lips is the slip in patent quality and sometimes the slip of the UPC.

“The EPO likes to give the impression that it’s possible to achieve certainty for the applicant,” one person wrote a few days ago. Well, certainty that one can get a patent is not certainty that the patent is a valid one and that the courts will respect that patent. Watch how many patents granted by the USPTO are now dropping like flies at the courts (potentially destroying the applicant). The full comment said: “The EPO likes to give the impression that it’s possible to achieve certainty for the applicant and for the public by carrying out a high quality examination. This is bottucks. EPO search and examination is trivial compared with the effort expended when there is an imminent risk of winning/losing a lot of money. It’s a useful first approximation – nothing more.” In response to this one person wrote:

It is true that a high productivity or production does not necessarily lead to a lower quality. If people know what to do and how to do it, it is possible. However the prerequisite is that people have been correctly trained.

I have strong doubts that this is the case at the EPO in view of the tremendous production pressure put on newcomers. How can it be that after three years a newcomer is fully proficient in search and in examination? In the past, when search and examination were separate, the three year goal was for each function, now only for the mixed one.

Anyone believing that the EPO searches all dependent claims is believing in father Christmas, not to say more, and Mr Spigarelli should know better.

If an examiner finds an X document, if he finds one, then he stops the search. If he wants to have a good production and achieve a quick grant, he will find nothing but a pseudo X or a lot of A documents. Examiners are not all to be blamed, they do what they are told, and anyone resisting this will be mowed down.

Look at case law of the boards of appeal. It happens that the Board has to quote new prior art when deciding on appeal following refusal of an application. If the search is so wonderful, why would the boards be led to bring in new prior art? Whether it is correct to do so is an other point, but this is what is happening.

It is certain that if the claims are correctly drafted a search is easier to carry out. Simply trying to push the blame towards applicants is a bit too easy. The responsibility is shared in the present situation.

Simply churning out searches and grants is not necessarily a sign of quality. The objectives according to the plan are achieved, if not overthrown. Remember what happened to “planned” economies. But the top management of the EPO can feel happy. They are managers…. but certainly not leaders. But this is another story.

Several days ago we wrote about Battistelli's patent quality brag (comparing the EPO to arguably the worst patent office in the West when it comes to patent quality). Since then — as we are watching this closely — the brag has reached some Australian Web sites with a modified headline [1, 2]. This headline is a lie unless EPO and Battistelli are the same thing (we explained why it’s not, noting that staff — quite broadly — loathes Battistelli and disagrees with him). These news sites are rewriting the headline from Andrew Chung (or his editor at Reuters) like some other people did before them, so “Europe patent boss” is becoming just “EPO”. Not good…

One can be left with the illusion that the only takeaway is that EPO quality is absolutely fine and great when real figures/facts are somewhat alarming.

“One can be left with the illusion that the only takeaway is that EPO quality is absolutely fine and great when real figures/facts are somewhat alarming.”Responding to this latest nonsense from Battistelli, Benjamin Henrion (FFII) wrote: “Maybe he could comment on the progress bar patent?”

“Battistelli says EPO issues better patents than USPTO,” he added, but “always remember patent examiners can’t read binaries” (he added some informative image about the progress bar patent).

As we noted here a long time ago, Battistelli is pretty clueless about patents. It’s not his area at all and he’s not a scientist, either. He surrounds himself only by people who tell him what he wants to hear and reprimands the rest. EPO is quite a Pariah when it comes to patent quality, it ignores European law regarding patent scope, and it definitely breaks many laws in order to punish staff that speaks about it. Right now, says Henrion, the “EPO explains you with sounds on how they grant software patents https://e-courses.epo.org/wbts/cii/index.html”

That’s how bad it has become. The EPO is making enemies by promoting software patents and FFII might return to activism or take more actions if this carries on. Henrion told them (directly), “you really want a fight isn’t it?”

They are basically pushing for software patents while at the same time advocating/promoting the UPC, which in itself would be supportive of software patents.

“They are basically pushing for software patents while at the same time advocating/promoting the UPC, which in itself would be supportive of software patents.”Regarding Battisteli's UPC lobbying and the latest lies from the EPO, backlash is apparent online (there are several opponents of the UPC there). The only exception to this backlash is Team UPC, i.e. the patent law firms that stand to benefit from the UPC. Here it is pushing for ratification in the UK because democracy, to these people at least, does not matter. The lawyers want more money. This post says that “while the UK continues not to ratify the UPC Agreement, the system, at least in its current form, cannot come into force. If the EU and the participating member states fail to reach an agreement enabling (or at least attempting to enable) continued UK involvement, there will be no upheaval in the UK patent litigation system upon Brexit, and no UPC operating elsewhere in Europe. This would appear to strengthen the UK’s negotiating position in Article 50 negotiations, compared with the scenario in which it had already ratified the UPC Agreement.”

“The opinion is worth a read, if you can stomach the legalese,” one person told us, but it seems to be so heavily biased in favour of the UPC, as one can expect from legal firms. They’re not independent or objective observers.

Here is EIP becoming so delusional that it wants us to assume the UPC can happen in the first place (without the UK), in order for the UK to join it later. Watch their optimism in Twitter: “UK #IP organisations obtain legal opinion on #UK participation in #UPC post #brexit, UK can still take part”

“We never saw any criticism of the UPC from these folks.”Team UPC’s echo chamber (basically a bunch of Battistelli-controlled mouthpieces and UPC proponents patting each other on the back/shoulder) can also be seen at Managing IP, which set up events in which to promote the UPC last week (or almost a fortnight ago) [1, 2, 3, 4].

One thing that we mentioned the other day was Italy’s step towards something that can never happen in the first place. Now we have Team UPC, the antidemocratic group of lawyers (and Bristows in this case), pushing for a dead (Trojan) horse to enter the gates of Italy. Have they no sense of shame? Have they now given up yet?

“UPC would put Italian SMEs at a disadvantage because of the choice of official language,” Henrion told them and the facts are on his side. The UPC would also put Italian SMEs at risk of more lawsuits and SMEs rightly complain about this. Henrion said that “maybe FFII should commission a legal opinion on whether UPC can bring us software patents and trolls.”

“They are trying to convince the already-convinced (who are paid for it) that the UPC is great and then pressure British politicians while conveniently misleading, tricking and misrepresenting their views.”Speaking of Bristows, their employees are still pushing for the UPC (which is effectively dead) in public events. One of them has just spoken of Milan and said she “feels incredibly at home in Italy, which is apropos given her heritage. So when she finally landed in Milan this morning for this year’s AIPPI Congress her cares melted away. That is until she saw her agenda….This year’s AIPPI Congress is jammed packed with incredible events, from panel sessions dealing with everything from contributory patent infringement to IP and food, to lunch time sessions focusing on expert evidence and study questions on copyright and linking, IP securities and added matter. The final day will be devoted to a very political topic – the fate of the UPC post-Brexit followed by a biosimilars preliminary injunction mock trial in the UPC. The AmeriKat [from Bristows] and a team of incredible friends and contributors, including her colleague Vanessa Rieu (Bristows), will be reporting from the events on the IPKat over the coming days.”

By “reporting” she probably means advocating, as usual. We never saw any criticism of the UPC from these folks.

In response, says one patent attorney: “Interesting UK counsel opinion here. No legal bar to UK participation in UPC – only political issues.”

Not true. He links to a PDF from EIF’s Web site [PDF], but again, this is a case of an Team UPC echo chamber, nothing else. They are trying to convince the already-convinced (who are paid for it) that the UPC is great and then pressure British politicians while conveniently misleading, tricking and misrepresenting their views.

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