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03.26.17

Thanks to Merpel, the World Knows EPO Scandals a Lot Better, But It’s a Shame That IP Kat Helped UPC

Posted in Europe, Patents at 4:14 am by Dr. Roy Schestowitz

Also see: IP Kat is Lobbying Heavily for the UPC, Courtesy of Team UPC (competing interests in the same blog)

Bristows LLP and EPO

Summary: A look back at Merpel’s final post about EPO scandals and the looming threat of the UPC, which UPC opportunists such as Bristows LLP still try hard to make a reality, exploiting bogus (hastily-granted) patents for endless litigation all around Europe

Right now, with UPC lobbying in full force (just three days left before Article 50 invocation), some IP Kat circles like Bristows LLP/Bristows UPC (using the blog for lobbying) could probably use Battistelli’s EPO as an ally. Merpel never publicly acknowledged the EPO’s sanctions (blog banned), further actions, or hints thereof as playing a role in self-censorship about EPO scandals. Truth be told, it’s like an NDA scenario; I should know as the EPO tried to gag me about threats that it had sent me. It’s a classic modus operandi and SLAPP-happy lawyers use that sparingly. Shiva Ayyadurai and his lawyer (who attacks the media on behalf of Melania Trump) did this to me earlier this year.

We are gratified for the time Merpel spent shedding light on the EPO. We use a lot of her revelations to this day. In fact, to date, some information that’s in the public domain is a Merpel “exclusive”. That information is still publicly accessible, so the EPO never successfully deleted history. It’s all documented online.

Now that the Administrative Council of the European Patent Organisation sounds like its master's voice (Battistelli) action is urgently needed. After the Dutch election (earlier this month) allies of EPO staff are even fewer. The EPO conflict persists and the issue is anything but resolved, or even near a solution. Merpel is unlikely to change her mind, even if she ever publicly acknowledged that her assumption was wrong (about things improving or reaching a breaking point). “‘Public’ institution threatens non-profit blog that informs the public, blog gives up,” I told her earlier this month, adding, “please don’t give up fighting for justice, for staff and parties affected (all of Europe).”

It certainly feels like IP Kat actually did want to write about EPO scandals, but someone in the blog capitulated to the bullies. Techrights will carry on of course, and The Register too does a good job covering these scandals. This already tarnishes the image of EPO management and politicians cite these articles in support of their motions (recently in Dutch Parliament for instance). It seems like too few people are both capable (have the background knowledge) and willing to expose and tackle EPO abuses. We hope IP Kat will rethink its self-censorship on the matter, but we can’t be optimistic about it. We’ll just assume that no matter the persistence and persuasion from readers, Merpel has already made up her mind. She did not respond to any of the comments urging her to carry on.

“Keep going,” one person wrote, “don’t stop! He will have his Waterloo soon…surely, please God!” (“From: a “customer” of the EPO, that like quality “products”…even if they to wait a little while to get them”).

We need to keep fighting not just for EPO workers but for Europe in general. A lot is at stake here. As the following comment put it: “No strikes anymore, no resistance, nothing. Good bye, EPO!”

Unless something is done to redeem the EPO, the whole institution will be destroyed. Here is the comment in full:

Thank you for your regular reports in the past. It appears that also applicants lost their interest in the EPO. Why should we pay enormous fees for fake quality? I feel sorry for the examiners, but they are digging their own graves by solely looking at production figures in order to get more money. No strikes anymore, no resistance, nothing. Good bye, EPO!

Someone then responds with claims that the “unfortunate reality is that highly qualified, highly intelligent examiners are viewed as mindless drones” under Battistelli. Therein lies one of the core causes of brain drain. Here is the full comment:

We EPO Examiners are not “solely looking at production figures in order to get more money” as you put it. We are doing our best to perform our job as it supposed to be done, in an increasingly hostile environment, whilst trying to keep our jobs; no more, no less. More money does not come into it, and never has.

Don’t forget, examiners are all either scientists or engineers; once you have done our job for more than a few years, it is hard to change jobs, and is especially hard to do if you have a family. The unfortunate reality is that highly qualified, highly intelligent examiners are viewed as mindless drones by EPO higher management, and are treated as such…

The next comment speaks of “dubious (AC / EPO management) practices that are a serious threat to the reputation of all of us who work in the patent microcosm.”

Yes, the term “patent microcosm” was used and they too worry about what Battistelli has done. To quote:

Merpel – many thanks for covering the EPO up to now. The information, insights and commentary that you have provided have been invaluable in shedding light on dubious (AC / EPO management) practices that are a serious threat to the reputation of all of us who work in the patent microcosm.

I do hope that you will be able to pass the baton over to another member of the IPKat family. With the reputation of the EPO now in tatters, it would be a shame if the IP world lost an important source of information that helps it to critically assess the picture painted by the management of the EPO.

“EPOmustGO,” said an anonymous comment. “Replacing the president won’t change anything in its democratic deficiency,” the person added. Actually, while the EPO was never a paradise, it wasn’t ever this horrific. Insiders say that even several years ago things were more or less acceptable.

A more courteous comment said this to Merpel at al:

Guys be proud of the work you did for the benefit of the IP community since the dysfunctionings of the EPO impact the IP community obvsiouly.

Your posts will be missed but hey that’s life.

All the best to you and thanks for work done.

“Now EPO has decided to PACE everything,” the next comment from “Observer” said, “but without listening to its users and exclusively pleasing its shareholders.”

There is also something inherently discriminatory about PACE. It reveals the favouritism. Here is the comment in full:

Warm thanks to Merpel for what she did, but I am sad to see her resign.

I hope that Merpel’s renouncement has not been provoked by threats uttered against her.

It is a pity that a voice like Merpel goes out. In the end, the president of the EPO will be grinning: another one I manage to shut down…..

That things should change at EPO which had entered a certain trot is not to be denied. But did it have to be done with an ax? There is a difference between what is legal and what is moral; what was done looks legal but is certainly not moral.

It is sad to see that how an office which was thriving and having an excellent reputation is driven in the wall by would be managers.

Under other skies it is called shareholder value. Here the shareholders will be happy that they can cash in annual fees much earlier, so that disapproval by the AC is probably not on the table.

I wonder whether this frenzy of quick granting of cases is really in the interest of the applicants at large. I have always heard that it becomes expensive once the patent is granted, and the numerous publications about PACE, i.e. acceleration of search and examination, in old editions of the OJ have never been followed by increasing numbers of such requests. There were certainly good reasons for not following this invitation, unless absolute necessity. Now EPO has decided to PACE everything, but without listening to its users and exclusively pleasing its shareholders.

In the end, one cannot suppress the feeling that what is going on at the EPO is to quickly obtain patents, which are worth what they are, so that litigation can start at the UPC. This would be to the profit of certain applicants, I do not count SMEs under those, supported by certain law firms who have been very active and keen to push the UPC through.

This also touches upon the boards of appeal and the way they have been treated. Why do we need them, if we have the UPC? The less case law the boards of appeal produce, the less chances there are of colliding jurisprudence.

I do not want to see it all as a plot. However, I cannot help but ask questions.

Mind the part about the UPC: “In the end, one cannot suppress the feeling that what is going on at the EPO is to quickly obtain patents, which are worth what they are, so that litigation can start at the UPC. This would be to the profit of certain applicants, I do not count SMEs under those, supported by certain law firms who have been very active and keen to push the UPC through.”

That’s a toxic combination of low quality patents and easy, far-reaching litigation and injunctions. We’ve braced for a disaster, but right now it seems likely that we’ll just say “UPC is dead, long live the next UPC attempt” (maybe later this week). What about all these falsely-advertised UPC jobs that never existed and probably will never exist?

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