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06.17.17

Appalling Press Coverage Regarding the Unitary Patent (UPC)

Posted in Deception, Europe, Patents at 3:03 pm by Dr. Roy Schestowitz

Dave Croston in Financial Director
One example of plenty more fake news about the UPC (e.g. [1, 2, 3]), courtesy of those who stand to profit from legal Armageddon

Summary: How the media has lied (and keeps lying) about the UPC, which the European public neither needs nor wants, putting aside serious constitutional issues that are associated with the UPC

PUTTING ASIDE the issue of UPC censorship/deletionism in the mediaa subject we explored here before — we continue to see a lot of EPO-leaning spin in the wake of Germany’s barrier to the UPC [1, 2, 3]. It’s more obnoxious than anything that the same people who conspired in secret to create this mess are now dominating the media, hijacking blogs, deleting comments, and telling off people who contradict or debunk their propaganda.

Watch this new piece titled “Germany delay probably not the end of the UPC — a piece which extensively quotes people with financial stake in the UPC. It quotes Team UPC’s Wouter Pors a lot, for example: “Wouter Pors, head of Bird & Bird’s IP practice in the Netherlands, explained that the Bundesverfassungsgericht has the authority to issue an order blocking the president from signing in a law.”

Where are the opponents of the UPC? They were not even approached for a comment. There is zero balance there. People who want to profit using the UPC (at the expense of everybody else) refuse to believe it’s dead; that’s hardly surprising. Where are the voice of reasons though? Totally omitted from this article, as usual…

Looking around for more coverage of this, we are finding little less than sites controlled if not owned by patent law firms. In fact, patent firms that actively wage a coup (to replace the current system with the UPC) are dominating all the blogs and some responded to the breakdown with potentially paid-for placements like these [1, 2] from William Fry and CMS Hasche Sigle.

One former Kat said that “it could be” the end of the UPC, but that’s just because he tends to be more honest than most and he occasionally links to us regarding the UPC (albeit he does not agree with the relatively abrasive tone).

Almost all UPC opponents prefer to remain anonymous and it’s easy to see why. They don’t want to receive abuse. A German complaint was filed anonymously, but we think we know who filed it. Character assassination would ensue of the identity of the complainant was known.

Now that Germany must decide whether the UPC is constitutional at all (it’s not, for reasons we covered here before), one person said he expects a “decision in perhaps 6 or 12 months.”

That’s a very long time. To quote in full: “A few people have asked about timing. From what I gather the Court proceedings have already been expedited, which means a decision in perhaps 6 or 12 months. Still before the date of Brexit but getting uncomfortably close.”

“Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law),” said another comment. It’s part of an ongoing discussion (in uncensored comments) about the legality of the UPC (or absence thereof). Reproduced below are the relevant comments in case IP Kat (i.e. someone like Bristows) decides to ‘vanish’ them: [G&P refers to Gordon and Pascoe]

Firstly, the current UPC Agreement is the only one currently on the table. There is no amended Agreement, and there may never be.

Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.

Also, just because the UPCA Member States are all currently EU Member States, it does not necessarily follow that the UPC (under the current UPCA) will form “part of the national legal order” of the EU Member States. Indeed, it would be absurd if the status of the Member States was the only relevant factor.

For example, why should the UK’s departure from the EU suddenly remove the UPC from the national legal order of other EU Member States? Conversely, why should the mere fact that all signatories are EU Member States mean that an international agreement is capable of creating a court forming part of the national legal order of those states? Does there not need to be something more than just a common status of the participants to properly “embed” the UPC in the national legal order?

Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law) in one of their cases – and that complaint was only dismissed because it was inadmissible, not because it was wrong.

“Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.”

Indeed it would, if that were correct. Except that this is not quite what G&P are saying. There is more than one way to provide the safeguards required in order to comply with EU law.

One is if the UPC itself were part of the national legal order of the contracting EU member states. Article 267 TFEU and the rest of EU law would then apply directly, with no need to say more. But it isn’t, as you point out. As stated by G&P it’s an international agreement, and the fact that it is common to the contracting EU member states doesn’t change that.

So the way in which the current UPCA provides the necessary safeguards is by stating explicitly that the UPC is common to a number of EU Member States (Article 1). And by imposing obligations on the UPC as a court common to those EU Member States (Articles 20-23). Including an obligation to make references to the CJEU in accordance with Article 267. (See G&P paragraph 15).

This is not a direct application of EU law (including Article 267 TFEU), but instead it hard-codes the same obligations into the UPC itself.

The other side of the coin (currently) is that the CJEU automatically has jurisdiction to receive references and decide questions of EU law, because the UPC is common to a number of EU Member States, and the CJEU has jurisdiction over all those Member States. No need to hard-code anything.

However, this current form of the UPCA needs amendment after Brexit. G&P’s proposed amendments keep the hard-coded obligations, but adapt them to the new situation that one of the contracting states is no longer an EU Member State. As previously, this is not a direct application of Article 267 etc.

Unfortunately the CJEU would no longer have jurisdiction automatically, as its jurisdiction is limited to EU Member States (G&P paragraphs 80, 84, 85). This is why G&P say that a separate agreement is needed, with the EU as a party. The CJEU’s jurisdiction also now needs hard-coding.

One minor point: is it not a little odd that there are references in Articles 21 and 22 UPCA that only seem to make sense if the UPC does form part of the national legal order of the EU MSs?

For example:
“as part of their judicial system” (Art. 21);
“as any national court”; and
“in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law”.

It appears to me that the drafters of the UPCA tried hard to create a “Benelux-type” court that the CJEU’s Opinion 1/09 indicated was OK. But now it seems necessary to argue that the drafters were unsuccessful in their efforts, and that the UPC complies with EU law by way of a novel mechanism.

I can at least concede that the UPC is very obviously different from the Benelux Court. This is not least because the UPC is an alternative to the national courts, rather than a court that is “plugged in” to the national legal systems by way of appeal / remittance links.

However, I have my doubts over whether the proposed novel mechanism for complying with Article 267 TFEU would work. That is, given that the CJEU can only accept references from “any court or tribunal of a Member State”, is there not a risk that the CJEU – despite the safeguards that you mention – would find that the UPC is not a court “of a Member State”, and thereby refuse to accept preliminary references from that court?

Of course, I do not rule out the possibility that the CJEU will find a reason why the current UPC set-up is compliant with EU law. However, as the CJEU has not yet given the system the “thumbs up”, we cannot be certain that they will do. In this respect, do you not worry that the arguments in G&P’s opinion could perhaps undermine a crucial point for EU law compliance (namely the ability for the UPC, as a court “of a Member State” to make references to the CJEU)?

More importantly, do you not worry about the risks of “going live” with a system that is not guaranteed to be compliant with EU law and where there are no guarantees that the UK can remain in that system post-Brexit? I understand the temptation to press on given that we are now so close to realising a long-held wish amongst certain sections of the IP community in Europe. Nevertheless, given the lack of guarantees on important points (especially when there are lingering, and well-reasoned doubts on those points that cannot yet be dismissed), I cannot help thinking that pressing on regardless generates huge – and frankly unacceptable – uncertainty for rights holders (and interested 3rd parties).

What we advise readers is, ignore pieces written by firms with stake in the UPC, so-called ‘reports’ (puff pieces/PR) that extensively quote those firms, and stacked panels that include liars from the EPO. Sadly, nowadays comments about the UPC are being deleted from numerous prominent blogs, but those comments which miraculously remain almost unequivocally voice pessimism about the UPC. Professionals in the field evidently don't believe what Team UPC is saying and there are surveys that show that.

The Writings on the Wall at the European Patent Office: Number of Directors May Soon Decline From 150 to Just 65-70

Posted in Europe, Patents at 2:35 pm by Dr. Roy Schestowitz

Related: The EPO Does Not Want Skilled (and ‘Expensive’) Staff, Layoffs a Growing Concern

President Trump fires FBI Director James Comey

Summary: Battistelli is seizing more direct and indirect control over the European Patent Office (EPO), which is supposed to eject him with a proposal for replacement already formally prepared for publication (on July 3rd)

THAT crazy EPO with its insane granting bonanza is undeniably faltering (it grants patents on genome and stem cells too, based on this new article, mostly because it’s greedy with a lust for grants, a.k.a. “production”).

“Battistelli will have left the Office by then, probably with some generous (but of course secret) pension plan.”We recently wrote several articles about anticipated administrative changes which further empower Battistelli and may give leeway for rule changes that can keep him in power indefinitely (even if by proxy). The number of applications is declining, however, and workload is expected to dry up next year, causing an avalanche of layoffs (redundancies). Battistelli will have left the Office by then, probably with some generous (but of course secret) pension plan. He and his cronies already fatten their bank balance at everyone's expense.

Looking through the news and ignoring all the expensive (often paid-for) puff pieces about ‘European Inventor Award’ we mostly find patent law firms trying to attract business around the EPO by speaking of pharmaceutical and biotech patents, as well as this one comparing the EPO to the US patent system, the USPTO. One firm even published at least two copies of this article titled “The Essentiality Test – Falling Out of Favour at the EPO?” [1, 2]

“It reaffirms the assertions that Battistelli is giving more power to himself…”What truly stood out, however, was this new article from Kieren McCarthy in which he shed light on pertinent details in upcoming proposals. Today, for the first time in nearly a month, he wrote:

Another raft of reforms at the troubled European Patent Office has come to light and, yet again, the main purpose appears to be to enhance the power of EPO president Benoit Battistelli.

The structural changes are just the latest in a long series of changes pushed by Battistelli over the past two years, and will be considered at the next meeting of the EPO’s Administrative Council at the end of this month.

This time around, rather than awarding himself greater powers over his staff, the EPO’s appeals process or its independent appeals board, Battistelli is proposing that the EPO’s departments be restructured, with several of them combined and their new chief operating officers reporting directly to him.

[...]

Directors stem from the patent examination world and so have “little understanding for this part of the formalities work and tended to prioritize the relatively small part of the formalities work that concerned the examiners,” it warns.

The change looks appealing to EPO management, however, since it would more than halve the number of directors from the current 150 to between 65 and 70.

The EPO-FLIER group notes that while EPO management wants to start the reforms immediately and finish them by January 1, 2018, the BCG report highlighted “reform fatigue at the EPO” as a significant risk factor in their likely success. The report warned that the “more profound the desired reorganization efforts, the more negative the expected impact on employee engagement.”

Not only that, but the BCG – which had been specifically asked to consider structural reform – noted that it didn’t see much value in the proposal, saying that “the new structure will not fundamentally change the work of patent examiners and formality officers.” In other words: if it ain’t broke, don’t fix it.

Perhaps we will publish the full text from EPO-FLIER folks some time soon. A lot of the above is already known to us (already reported by us), but some of the numbers are new. It reaffirms the assertions that Battistelli is giving more power to himself and someone in the comments already says something similar to what we said in recent months. To quote: Battistelli’s “last reform will be to make the term a life appointment, or he’ll be allowed to designate a successor – and it’ll be like how Putin switches the levers of power from Prime Minister to President, depending on which post he’s currently occupying.”

“…reform will be to make the term a life appointment, or [Battistelli] be allowed to designate a successor – and it’ll be like how Putin switches the levers of power from Prime Minister to President, depending on which post he’s currently occupying.”
      –Anonymous
Some people in the comments are meanwhile mistaking the EPO for the EU (or part of the EU) and taking the discussion somewhat off topic.

On the failure of the media to report this, one comment said that the “problem we have is that most of the press is restricted by its owners’ own personal agenda,” which isn’t a controversial thing to insinuate. At all.

Here are 3 of the better comments (so far):

This rather assumes that one of the planned reform measures does not include using International standards for transfer of power. Just like the ones used in Zimbabwe, North Korea etc etc. aka Dead Men’s Shoes

[...]

Those do strange things with people. But one thing which bothers me though: where is the failsafe in all this? You know, the classic issue of who’s monitoring the monitors.

More and more stories seem to surface these days about politicians and other people within a position of (certain) power who simply can’t control themselves and usurp the whole thing. Yet it only surfaces when someone leaks, the system itself seems totally incapable of detecting and dealing with excessive situations like those.

Yet it’s always the person who gets dealt with and replaced, no one seems to care about the system which basically made it possible in the first place.

[...]

The fail safe should be journalists as they expose the actions of these people and rightly so el reg has done just that in the same way it’s doing it with Chairman Mao/Pai. It’s one of the many reasons I read el reg, I just hope one day they add a “donate” option for those that use ad blocking.

The problem we have is that most of the press is restricted by its owners’ own personal agenda so even if these things are reported there is always a way for them to get out of it, e.g. lets have an enquiry, make recommendations, never follow them because they are just that, recommendations. The normal press will make out that the enquiry was successful in it’s objectives but nothing actually changes. Rinse and repeat ad infinitum.

We particularly like that last comment (also modified it slightly to amend typos) and this is why Techrights, as a matter of priority, now covers the EPO. We have a large number of drafts about software patents and news from the US, but we leave all that aside because there is already some decent coverage out there on the subject.

European Patent Office (EPO) Whistleblowing Guidelines

Posted in Europe, Patents at 2:59 am by Dr. Roy Schestowitz

Because the consequences can be dire if it’s not done right

Reality Winner

Summary: The first part of a series which offers tips for sending us material/evidence, specifically from the European Patent Office (EPO)

THE EPO has become both secretive and abusive. Toxic mix. “Dangerous cocktail,” one might call it. Even the salary of the boss is no longer known (predecessors’ used to be publicly disclosed). The combination of secrecy and immunity is outright unacceptable and the only way to assure accountability (e.g. public scrutiny) is to leak documents pertaining to the operations of the Office and the Council/Board. We welcome submissions of information about the EPO and as always we are deeply committed to protecting our sources. We have a perfect record after 11 years (of never compromising a source). Security and privacy is something we are intimately familiar with (professionally too).

In the words of an insider, “some people at the EPO decided that they can no longer look away and tacitly/passively accept that some EPO managers, above all managers at the very top of the organization and their cronies, can enjoy the doubtful benefits of an intransparent system which fosters bribing and corruption and is self-stabilizing, if not self-intensifying – mainly due to a total lack of accountability of the persons in charge. I am one of these people.”

Here is the first part of a series, in which tips shall be given to insiders for (1) the safe acquisition of material and (2) secure passage of this material (with additional/contextual information) to us, preferably without leaving a personally-identifying trail at any level.

We can make up or compensate for imperfect transmission (e.g. metadata, lack of obfuscation), but if it’s done the wrong way by the source (e.g. printing pages without awareness of something we have warned about for years), then it limits our capacity to protect the source.

Unofficial EPO Circular no. 001

Whistleblowing Guidelines

for the staff of the European Patent Office

- part 1 -

Misconduct by EPO Management and Administrative Council

Are you an employee of the European Patent Office (EPO), its Boards of Appeals Unit or the secretariat of the Administrative Council? Then you won’t need to think long before you can come up with several severe cases of abuse of power1,2, misconduct and negligence2, ruthlessness1,2, a ‘reign of terror’3 – even leading to staff suicides4,5, slander6, nepotism7,8, corruption9, greed10, recent or ongoing, by EPO senior management and the representatives of the Administrative Council2(AC).

Several documents and numerous allegations have been leaked to the public during the Battistelli presidency. A more focused approach may be useful in the interests of staff and the Organisation. This document is intended to complement the legal and pseudolegal framework of the EPO, by providing, for the first time in the history of the EPO, guidelines advising EPO staff when and how to blow the whistle.

Conflict Resolution within a Model Organisation

In a model organisation, most problems would be resolved within the usual hierarchic procedures. A reliable internal system for whistleblowing or conflict mediation would also be available for bypassing the hierarchy. Furthermore, for certain cases, National law enforcement mechanisms would be available.

The EPO, on the contrary, has opted for a reign of terror. Hierarchy is used to protect superiors from subordinates. The oversight body of the EPO, the Administrative Council, regularly fails to take interest in the pleas of staff and users of the European patent system. Internal conflict resolution systems have been twisted to deny access to justice by stretching procedures to endless length and by denying basic rights to members of staff. Denunciation and self-censorship are encouraged. Social dialogue and collective bargaining through official staff representation or trade unions have been brutally crushed. Internal regulations are perverted to be used as weapons against employees11 instead of respecting their rights. The Office even overstretches the Protocol on Privileges and Immunities to hide from National authorities, which results in a legal vacuum and islands of lawlessness within the borders of the Organisation’s democratic host states.

As a consequence, external whistleblowing is not an option, it’s a must.
____
1 https://ipkitten.blogspot.com/2016/11/firings-will-continue-until-morale.html
2 https://ipkitten.blogspot.com/2016/11/remember-house-ban-how-two-years-flies.html
3 http://www.dutchnews.nl/news/archives/2015/03/european-patent-office-under-fire-over-reign-of-terror/
4 https://www.suepo.org/public/ex15152cp.pdf, https://www.suepo.org/public/ex15350cp.pdf
5 http://www.politico.eu/article/labor-relations-turn-toxic-in-the-european-patent-office/
6 http://www.iam-media.com/blog/detail.aspx?g=2141acfb-0254-48ab-a380-31fee0da7f97
7 https://www.suepo.org/documents/42912/54300.pdf
8 http://techrights.org/wp-content/uploads/2015/07/epo-people.pdf
9 http://www.fosspatents.com/2014/12/european-patent-office-pays-for-health.html
10 http://techrights.org/2017/03/11/suepo-on-the-functional-allowance/
11 https://www.theregister.co.uk/2017/05/23/euro_patent_office_internal_rule_changes/

Part 2 will follow soon.

General Consultative Committee of the EPO Warns About Battistelli’s Plans

Posted in Europe, Patents at 2:30 am by Dr. Roy Schestowitz

Also related: Guest Post: Behind the GCC Meeting and How Battistelli Finds Excuses for His Union-Busting Campaign at the EPO

Summary: The General Consultative Committee (GCC) issues a long document (176 pages) which explains to the overseer of the Office how internal rule changes make things even worse

WHAT follows is a document which was commented on by Kieren McCarthy more than 3 weeks ago. This document, from the GCC of the EPO, shows how Battistelli is (to quote the letter) “simply trying to shift the responsibility for these new, flawed proposals from himself to the Council” to “further damage the legal framework within the EPO” and risk a “further deterioration in the already severely spoiled working atmosphere.”

Considering the layout, the size, and some of the auxiliary material, it has been a lot simpler and more practical to publish this in the form of images, with paging used to limit the bandwidth required to load the images. Click for larger versions and use the pagination numbers at the bottom to move between 10 images apiece, split across 18 pages.

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