No shame is the name of his game, where Martial Law (to Hell with the EPC!) and perceived emergencies are agents of change
“…we firmly believe in the core values of tolerance and openness. Such attacks will never destroy these principles, nor the European values of cultural diversity, tolerance and mutual respect.” ~Benoît Battistelli today.
Summary: As usual, Benoît Battistelli resorts to exploitation of disasters to bolster the narrative of Battistelli himself as an heroic protector from terror (even when it’s him who terrorises everyone, even bloggers)
NOTHING that the Liar in Chief does surprises us any longer. Battistelli’s reputation is in the gutter both among his employees and among stakeholders (like clients) [1, 2]. Both rated him at 0% — a fact he can only attempt to deflect/distract from while comparing his staff (or their representatives) to “Mafia”. If Battistelli was a Corsican general like Napoleon, he would have already started a distant/imperialistic/expansionist war to bolster his sunken reputation. Syria might do. Battistelli’s awful leadership has destroyed the reputation of the EPO (both Office and Organisation). That’s half a century of reputation-building down the drain, impacting the résumés of former employees, devaluing decades-old EPs, and so much more. If EPO was a publicly-traded company with market value, it would have driven away shareholders and risk bankruptcy by now (there are already fiscal issues).
“Can’t they see that they merely reinforce their stigma as chronic liars?”A lot of people out there refer/allude to the EPO’s boss, Battistelli, as a Frenchman, which is technically correct but it’s an Italian name and he’s from Corsica, where his name is apparently associated with the Mafia. No wonder he runs the Office like the Sicilian Mafia, based on what insiders say. The mainstream media has already compared his regime to "terror", yet he has the nerve to condemn terror every single time it happens somewhere. Projection much? Another PR stunt? FTI Consulting's idea? Now Battistelli is milking Sweden (as usual, he always does this). At around the same time (this afternoon) the EPO retweeted Mikk Putk, a Patent Attorney who apparently fell for the latest publicity stunt and wrote that “EPO offers grants for academic research,” alluding to the latest PR/publicity stunt, trying to paint the EPO as a friend of researchers — the very thing it is not (at least not anymore). “Use [of misuse] of applicants’ money” is what one person at IP Kat comments called it today, linking to our rebuttal/response. How much worse can the PR strategy of the EPO get? Can’t they see that they merely reinforce their stigma as chronic liars? No other public institution is obsessing so much over terror attacks (to the point where about 20% of ‘news’ is just that). Battistelli’s chronic paranoia and weird fetishes are making the EPO more and more of a laughing stock. █
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Filing centre (de facto registration), not a patent examination office… as we had warned for years, even before SUEPO did
“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
Summary: EPO stakeholders too believe that the EPO is heading towards a collapse, whereupon they press for action although it may be too late (the crisis is deep and many EPs have been granted in error)
TEAM UPC is a truly dangerous bunch. It is pushing the same agenda as Battistelli — to the point where earlier today we joked that if IP Kat does yet another UPC lobbying piece (lots of that recently), then we can call it “Katistelli”.
Some of the biggest forces behind the UPC have just promoted their own people’s actions (the so-called Committee which is actually wolves guarding sheep). “The UPC Prep Committee has published the latest draft Rules of Procedure for the Unified Patent Court,” one of them said and Kluwer Patent Blog joined in, spurring the following new comment on it:
Kluwer Patent Blog; new RoP UPC:
New blog post about the UPC Rules of Procedure.
The new draft ‘is yet to come under scrutiny by the European Commission on the compatibility of the Rules of Procedure with Union law´…
Really, all allegations that the UPC is not a EU legal construction are difficult to believe when reading that the Preparatory Committee is running its provisional papers along the European Commission for approval.
Yes, these people get paid for improving all they can before the start of the UPC, but they must feel like riding a dead horse. With the BrExit running, their work looks like it’ll never be used…
More interesting comments, however, are coming out of this series from Thorsten Bausch (also at Kluwer Patent Blog), whose latest and last part has attracted some truly nuclear comments about the UPC. We believe that every EPO employee must read these to better understand what is going on at the EPO these days. Comments are copyrighted but assigned to their posters (typically anonymous), so we have decided to reproduce them below with emphasis added:
Readers I offer two possible explanations, A and B, for the bizarre behaviour of the EPO President.
A: in the interests of the Paris-based UPC getting a flying start, he wants to disable Munich-based DG3.
B: Currently, the Americans are re-stocking the numbers of judges at the USPTO, with staggeringly large numbers involved. But an Enarque can show the Americans what business efficiency looks like, and BB is the man to do it. Every time there is a meeting of the Group of 5, the bosses of the world’s 5 biggest Patent Office, BB is there with ever more impressive statistics to show the other four how, but only during his watch, the EPO has squeezed more output out of the Organisation, with ever higher “quality” and at the same time, ever-reduced costs.
Is there anything in explanations A or B?
Here is a response to that:
To me it is more option A which is valid (80%), whereby option B is not to be neglected as it pushes the ego of mr president ever higher.
In any case it is disgusting to transform a well working and reputable institution in a work floor churning out patents in a form and in a way which is not desirable for its users.
EPO looks more and more to industry as it was known in the former Eastern European countries! Ignore what the customer desires, but adhere to the plan as strictly as possible. We all know were planned economy led to.
I do not wish the EPO to end up in a disaster, but with the present management it will sadly end up in a disaster.
A good friend of the Boards wrote:
It is an absolute disgrace that the backlog in appeals has, by the own figures published by the Boards, increased. The reason is due to a chronical understaffing of the Boards. This chronical understaffing is a deliberate action of the president by not presenting to the administrative council new members and chairpersons in order to replace those leaving. Even the renewal of actual members was put on hold….
Here, like in DG1, emphasis is made on quantity and not on quality. For the president the members of the boards are simply too lazy and need a good push. Have you seen in any country the judges being obliged to give a minimum number of decisions per year in order to retain their job? This is what will happen with the new rules for renewing the contract for members.
The carrier of member of the boards has also been made unattractive, as there is no salary increase in the five years of a contract. A renewed contract will only be granted, and a corresponding increase in salary given, if the performance of the member has been considered “adequate”, not to use a worse word.
I fully agree that the sending of the Boards to Haar will not improve the situation in the slightest. On the contrary it will degrade it. The reason is very simple: the building is too small since it does not have enough rooms for the Boards to hold oral proceedings on the premises. Especially the number of rooms with simultaneous interpretation is anything but commensurate with the needs. So the boards will have to come back to the Isar building in order to hold their oral proceedings. Where is the gain in efficiency?
By now it should abundantly clear that all the actions against the boards and especially the sending of the boards to Haar is a nothing more than a revenge of the president over the boards. The enlarged board has not accepted to simply dismiss a member of the boards as the president wished. It has not accepted that the president has simply disregarded the separation of powers. This is however a basic requirement of any properly working society, which is not governed by an autocratic leader.
In this respect the administrative council, at least some members of it, have been truly accomplices of the president’s endeavour. When one looks at the vote in the administrative council, it is a majority of countries filing hardly any European applications, and hence having hardly refusals or oppositions, which made it possible to take the decision to change the carriers of the members and on top of it to send the boards to Haar. One wonders why?
That some boards apply the rules of procedure, or remit under Art 111, in way which allows to raise eyebrows, has however also to be said. But they are in a similar position as the examiners, and their position can be understood.
That in any system, a judicial institution is not in a situation to cover its costs, should not be taken against the boards of appeal of the EPO. The idea of simply increasing the appeal fee to ludicrous levels is also an attack on the users of the system. If the fee is too high, then the number of appeals will decrease. Is this rendering justice?
The boards of appeal are not any longer allowed to decide on their rules of procedure. The rules of procedure can only be adopted by the administrative council after the Boards of Appeal committee (comprising no members of the boards) has approved them and the President of the EPO had an opportunity to comment……. The only body in which members of the boards are represented is the presidium of the boards, and this body merely advises the President of the Boards of Appeal on proposals for amendments to the Rules of Procedure. Is there more to say?
I can only encourage readers of this blog to have a good look at the changes of the structure of the boards. On the paper, they look more independent, but on reality the contrary is true.
In my opinion the whole attack on the boards, is part of a long strategy. It is to weaken them so that in the long run everything will be dealt with by the UPC. Examination will consist in a quick look at prior art, followed by a quick grant, and any dispute afterwards will come before the UPC. The boards of appeal having more or less disappeared, there will also not be any risks of conflicting case law. Is this not wonderful?
By acting like this the president of the EPO and its followers are not only cutting the branch on which the staff of the EPO is sitting, members of the boards included, they also cut their own branch, and more worrying, they are cutting the branch on which the whole profession is sitting, at least as far as prosecution is concerned. Those firms also doing litigation will suffer much less. And look at the firms who have pushed the UPC through. No surprise…..
A sceptical one writes:
Of course, another way to help reduce the rate of growth of the backlog would be to improve the quality of decision-making at first instance. I don’t mean the EPO’s much-trumpeted “quality” ratings, but *real*, high-quality decision making. Speak to any attorney in private practice and you will find anecdotes by the bucketload confirming the increasing frequency of rushed, slapdash search and examination reports, incomprehensible or unreasoned objections, and opposition decisions taken by evidently inexperienced Opposition Divisions. I have the utmost respect for the EPO examiners and know that they are capable of doing a very thorough job, but it seems that the current focus on conflating speed with quality is severely detrimental to the real quality of work. Bad decisions lead to more appeals: it is as simple as that.
I am sceptical about the rumours that the Boards are being deliberately downgraded to pave the way for the UPC, however. For inter-partes proceedings the UPC can indeed, in principle, take the place of the boards. But the UPC will not have jurisdiction to review ex parte cases in the event of unjustified refusal of a patent application.
In response to that, notice what is said (honestly) about SMEs:
I agree with you about the fact that ex-parte procedures might be reviewed by the boards which cannot be the case of the UPC. But then, it should remain accessible also from a financial point of view.
Why should the appeal fee steadily grow up to a few thousand € just because some manager has decided that the boards should be self-sustaining? In no contracting state of the EPC the judicial authorities are self-sustaining. On top of a high appeal fee, there are also the costs for a representative.
It can become rapidly prohibitive for a SME, but no, the whole system is to help the SMEs, isn’t it?
Here is a very important observation by “Observer”:
‘Appointments’ this time was actually a single external legal member (MC?) appointed to the EBoA. All others announced were re-appointments.
Thorsten Bausch himself was stunned by this, as apparently he was not aware; he had been misled by the Liar in Chief. He then wrote:
Whow. What a big disappointment. So if this true, even the language of the communiqué (“The Council made a number of appointments (…) to the Boards of Appeal”) is wrong and misleading. I would really like to know what is going on in this “Administrative Council” and why they do not care more about a functional European Patent Office.
The UPC will clearly not be a solution to this problem. Firstly, it will be unaffordable for and has not been designed to serve the interests of SME. Secondly, the territorial scope of its decisions will not nearly match the territorial scope of an EPO decision, which covers all EU members without exception in addition to several important non-EU member states (Turkey, Switzerland, Norway to name but a few).
Why do the AC members of at least these states not stand up and protest against the President’s inactivity?
Thirdly, if the UPC had to deal with more than 1000 new cases per year, as the BoA currently have to, the entire system would very quickly break down completely. We cannot allow this to happen.
Then it veers off in another direction:
Slarti thinks that top quality decisions at first instance (ED or OD) will take the pressure of cases off DG3. I disagree.
However good the decision at first instance, whenever the case is important the loser will appeal (and then perhaps try harder to settle with the other side). No way is there going to be any diminution of the flow of new cases to DG3.
In England only one in three losers appeal though. How can that be? I say it is for reasons that don’t apply in civil law jurisdictions like mainland Europe.
What are those reasons. Fact-finding under English law is not usually appealable. With judges at first instance who do not get the law wrong, and with the facts not alterable on appeal, it is pointless. In addition, it’s horrible expensive.
And watch the response:
With respect, Max, I disagree to some extent.
Let me say at the outset that I completely agree that the understaffing and excess pressure on the Boards is nothing short of a complete scandal and it is both baffling and concerning that the AC continues to tolerate this.
However, let’s take as a proposition that many European patent applications are being (erroneously) refused due to undue pressure on the Examining Division leading them to cut corners and fail to consider applications properly. I’ve had several where I’ve been through a frustrating round of prosecution where the Ex.Div. simply keeps reiterating old objections without telling me why they disagree with my counterarguments. In such cases a final refusal can be expected and the only way to get the case looked at properly is by filing an appeal. If the pressure on the Ex.Div. and the “managerialism-by-numbers, high turnover equals high quality” is dropped, fewer applications will be wrongfully refused and so there will be no need to appeal against such refusals.
Finally, there’s this:
Slarti, you say nothing about oral proceedings before the ED. Some say that this is the first time that the work of the First Member gets scrutinised properly. Engage with all three ED members? Does that ever work?
But I am inclined to agree with you, that management these days in DG1 thinks that efficiency dictates making the decision (allow or refuse) early, indeed when issuing the EESR. Then, if it is to be a refusal, one should get the case out of DG1 and onto DG3’s docket as soon as possible
“Michel” said this, in the absence of criticism from stakeholders until it was too late to salvage the EPO:
You are perfectly right, but your complaints come much too late. Why did you not put pressure on the German representative before the vote? Germany did not vote against this disaster, did they? And, incidentally, why did epi not protest at all?
Unbelievable as this may seem, whenever I discuss with German attorneys, they appear to discover that there might be a problem. Is the whole profession asleep? You get what you deserve.
They too recognise that this system is rotting if not collapsing. Who would suffer as a result? It’s almost a rhetorical question. This is why we spent so much time covering these scandals. █
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Like Martin Goetz who patented a sorting system [sic] in 1968 and others who were painting software patents with the “brakes” brush
Summary: Another emergent loophole for asserting that patents on software somehow have merit (not abstract), merely because of the context in which they are used
PATENTS on driving/driver-related activities have become a plague that not only feeds several high-profile patent trolls but also Google. A lot of cars now come with computers and companies like Microsoft exploit this for patent blackmail (lately against Toyota).
The other day the Docker Report published this outline of a § 101 case:
The special master recommended denying defendant’s motion for judgment on the pleadings on the ground that plaintiff’s vehicle camera system patent encompassed unpatentable subject matter because defendant failed to establish that the asserted claims were directed toward an abstract idea.
That’s a shame. A lot of software patents these days get disguised as “with a car”, “on a car”, “in a car” etc. (one among several similar patterns pertaining to “device”, “phone”, “Internet”, “cloud”, “AI” and so on). These are still software patents.
“A lot of software patents these days get disguised as “with a car”, “on a car”, “in a car” etc. (one among several similar patterns pertaining to “device”, “phone”, “Internet”, “cloud”, “AI” and so on).”Jake Grove says in his new article (titled “Key IP Challenge: Protecting Vehicle Software”) that “[p]atents can provide broad coverage for software,” much to our surprise. Do patents cover software in the US? No, not anymore. Or barely (the outcome is typically negative when judged by courts, so only legal bills encumber both sides). These patents can be pretty worthless in the US these days. Just look at these latest figures from boosters of software patents, Fenwick & West. “With the close of the first quarter of 2017,” they say, “there have been some interesting patterns developing in AliceStorm.”
“Do patents cover software in the US? No, not anymore. Or barely (the outcome is typically negative when judged by courts, so only legal bills encumber both sides).”This was promoted by software patents proponents, as they give some Alice figures/updates with the expected slant (their obvious goal is to bring software patents back). They have clients who rely on this outcome, as this other new post discloses by saying: “My client SHzoom filed a request to make the Trading Technologies decision precedential. CQG attempted to leverage that motion as a further reason for the case to be reheard, arguing in their respose that “SHzoom’s Motion requesting that the panel’s decision in this case be made precedential should be denied. Its arguments further illustrate why CQG’s Petition for rehearing en banc should be granted.””
Trading Technologies is basically reduced to trolling.
The bottom line is, software is not patentable and examiners need to watch out for the trick of ascribing these to vehicles. █
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Summary: Half a decade after the America Invents Act (AIA) the USPTO announces imminent but unspecified changes to PTAB, putting at risk one of the biggest weapons against software patents (demand for which is growing)
PTAB, as we have noted in about a hundred past posts, is a much-needed improvement to the US patent system. It helps crush software patents, more so since Alice. So why would anyone hate PTAB? Only the predators seem to hate it (see this latest from IAM, the rude attacks from Watchtroll, and recall Dennis Crouch trying to slow it down). Well, the following new item from the USPTO states: [via Dennis Crouch]
At the direction of the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, Michelle K. Lee, the USPTO is launching an initiative to use nearly five years of historical data and user experiences to further shape and improve Patent Trial and Appeal Board (PTAB) trial proceedings, particularly inter partes review proceedings. The purpose of the initiative is to ensure that the proceedings are as effective and fair as possible within the USPTO’s congressional mandate to provide administrative review of the patentability of patent claims after they issue.
Since being created through the passage of the America Invents Act (AIA), PTAB proceedings have significantly changed the patent landscape by providing a faster, cost-efficient quality check on issued patents. Since AIA trials debuted in 2012, the USPTO has continuously looked for ways to improve the proceedings. Over time, we have listened to our stakeholders’ experiences, and we have now compiled data derived from thousands of case filings and dispositions.
MIP said about it that “USPTO announces initiative to examine Patent Trial and Appeal Board procedures including those relating to multiple petitions, motions to amend, claim construction and decisions to institute” (as per pressure from stakeholders).
“Considering the lobby to oust Michelle Lee, there is potential for bad things here.”What this will mean in specific/particular terms we do not know yet. It’s vague and open-ended. Considering the lobby to oust Michelle Lee, there is potential for bad things here. We’ll keep a close eye on this for any developments that may arise.
“Having seen patents used at various companies and been involved in inventing new products,” one person told me the other day, “I generally dislike them. My dislike isn’t only limited to software patents either. The quaint narrative about rewarding inventors doesn’t actually match reality. Often the true inventors names are not even on the patent. And that’s even before getting to the issue of trolls.
“I think it was Kropotkin who called patents “the greatest crime against innovation”.”
I have friends who say the same thing and some of them have a lot of patents (pressured by employer/s to pursue them), but personally I’m primarily worried about software patents. These happen to be the patents which PTAB very habitually invalidates these days. █
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The trolls’ ‘news’ site just won’t leave India alone (simply refusing to let go)
Summary: Lobbying site IAM continues to serve as the vehicle/front for patent parasites that cannot stand India’s patent policy and perpetually try to derail it
INDIA banned software patents a long time ago and many times so far this year IAM has attempted to shame and ridicule India into changing its mind. Articles about it from this year alone include:
“The last thing India should do is allow software patents, facilitating yet more of that blackmail (‘protection’ money without even a trial).”Today, Joginder Singh of LexOrbis tries to promote software patents in India (just published). This piece of his was printed by IAM last week, whereupon we debunked it here (just before the weekend). This morning, IAM published this piece about one of the world’s biggest patent bullies, Qualcomm [1, 2], as it takes on the Indian market. “Little surprise that telecoms companies led the way as licensors continue to file new infringement lawsuits in the mobile phone space, many targeting Indian and Chinese manufacturers,” IAM said. “Qualcomm retained its position as the top overall patent filer in the country, but it put a lot more space between itself and the number two company, Philips, increasing its applications by 55%. Microsoft and Toyota also increased their activity enough to break into the top 10.”
Suffice to say, Microsoft is another one of those companies that blackmail legitimate rivals and abuse a dominant position in the market. The last thing India should do is allow software patents, facilitating yet more of that blackmail (‘protection’ money without even a trial).
IAM is a truly malicious network pretending to be a news site; all it does is drive agenda in exchange for money. We believe/think that in order to shield itself from scrutiny (save face), IAM did not publicly speak about its EPO propaganda (‘survey’) this year, unlike before (prior years). Only Battistelli mentioned it publicly one month ago. █
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Composed by the PR department?
Summary: The EPO is trying to associate itself with research because researchers are not touching the EPO with a 10-foot barge poll these days, which causes a serious brain drain problem
ONCE upon a time the EPO managed to attract some of the brightest people out there, but that is no longer the case under the new regime and the whitewash du jour says quite a lot.
“The EPO’s managers are not friends of “research”; they are anti-scientific…”“The EPO recognises the importance of high-quality research,” says Benoît Battistelli according to this morning’s puff piece in the EPO’s ‘news’ section. (warning:
The EPO’s managers are not friends of “research”; they are anti-scientific (see the latest lies about the ‘results’, which we debunked in about half a dozen articles*). All they care about is their bank account.
It is “difficult for the EPO to hire workers, because more and more people realise that the EPO is a bad career move,” explains this comment which we got earlier in the morning. Here is the full comment:
It gets more and more difficult for the EPO to hire workers, because more and more people realise that the EPO is a bad career move. The biggest problem is that, in case one wants to leave, there is nowhere else to go. Once an engineer has worked in patents for a few years, it is very difficult to be hired to do a normal engineering job any more, so it will be patents for the rest of your professional life. And there aren’t that many patent offices hiring, so the only choice would be to be patent attorney, but it’s already a bit full.
Strangely enough, the UPC is not hiring examiners. I don’t know who is supposed to do the litigation work (if the UPS happens, which is unlikely of course).
Maybe the plan is to simply accept the search an examination of other major offices? That would indeed cut the number of examiners and attorneys needed worldwide by a factor of 4-5.
As to bad career move: there was also the regulation that examiners cannot work in a 2 years grace period after they left (or have been fired). This was not accepted by the council, but it seems that Battistelli cannot accept no for an answer. I have been told by 3 different people now that it was extremely difficult to get a certificate that they worked for the EPO after they left. Without the certificate, no EQE and job interviews are a bit awkward.
The EPO has already lost a lot of talent, which either retired early or simply left. We have some numbers and names, but for privacy reasons we won’t publish these. █
* Not a complete list:
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