09.21.17

In an Effort to Push the Unitary Patent (UPC), EPO and the Liar in Chief Spread the Famous Lie About SMEs

Posted in Deception, Europe, Patents at 6:23 pm by Dr. Roy Schestowitz

Rule of thumb: everything that the EPO says nowadays is a deliberate lie.

Summary: The EPO wants people to hear just a bunch of lies rather than the simple truth, courtesy of the people whom the EPO proclaims it represents

THE EPO offers nepotism and fast lanes to large corporations. It panics when the public finds out about it and constantly lies about the matter, stating that it protects SMEs, small inventors and so on. The European Digital SME Alliance has already refuted some of these lies, but that wasn’t enough to make the lies stop.

As a matter of priority, even though it’s past midnight right now, we’ve decided to compose a quick rebuttal/response to today’s EPO lies (disguised as ‘study’, as usual). What a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.

“hat a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.”The latest lie was promoted in Twitter in the late afternoon. I responded by stating that the “first EPO announcement in more than a month spreads a lie, the famous “SME”-themed lie [in which the EPO] makes up more “SME”-themed lies in order to sell the [other] lie that UPC is good for SMEs. See last paragraph.”

Yes, I used the word “lie” quite a lot. It’s as simple as this. They lied deliberately.

The official ‘news’ item (epo.org link), which quotes the ‘king’, as usual (self glorification), ends like this:

They also highlight the benefits that SMEs can expect from the planned Unitary Patent. These include savings in time and money, as well as increased legal certainty across the EU market.

That’s a lie. Even insiders know that it’s a lie and yet later in the day (earlier tonight) the Liar in Chief, Battistelli, promoted (epo.org link) the same Big Lie that SMEs want the UPC (it would kill them). From his closing paragraph:

As we look to the future of SMEs and patents, the case studies underline the significant role that the Unitary Patent and Unified Patent Court are set to play in IP strategies. Many of the SMEs featured talk about how the cost-effectiveness of the Unitary Patent and the jurisdiction of the Court will help them expand into other European markets, previously unconsidered by those same companies. Potential savings of up to 70%, a simplified application process with the EPO acting as a one-stop-shop and greater legal certainty will all prove attractive features of the UP and UPC. So, whether they use the Unitary Patent or the classical European patent, or a combination of both, the future holds a wealth of opportunities for SMEs to make the most of patents. It is our hope that these case studies will help increase understanding of how IP can play a fundamental role in the success of SMEs.

That’s a lie again. It’s a lie that the EPO promoted in another tweet that said: “This publication gives you full access to twelve case studies on the benefits of IP for #SMEs http://bit.ly/SMEstudies2017 #IPforSMEs”

They even came up with a hastag for it: #IPforSMEs

It links to this page (epo.org link), which gives the veneer of a ‘study’ to something that’s a lie to the very core.

“So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance).”First of all, the UPC isn’t happening. The UPC Preparatory Committee has in fact just officially admitted that their plan is derailed (no schedule) due to the situation in Germany. Team UPC wrote about it some hours ago. The best spin they could come up with was this: “The Preparatory Committee of the Unified Patent Court (UPC) has today published a short update, in which it notes that the pending case in the German Federal Constitutional Court will cause delay to Germany’s ratification of the UPC Agreement (UPCA) and the Protocol on Provisional Application (PPA) and concludes that it is currently difficult to predict any timeline for the start of the new system.”

So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance). Even observers in the field know damn well that the UPC would be an SME killer. There were several comments to that effect in IP Kat on Thursday (today). Well, after the site stopped covering the scandals we rely on comments there; the authors/Kats (who now include CIPA) certainly won’t say anything negative about the UPC.

“What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP?” (Unitary Patent)

That’s what the first comment (relating to the earlier ones) said:

Thanks to Proof of the pudding for his interesting contribution on the law applicable for infringement.

I have a further question with respect to validity, which is also to be decided by the UPC.

What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP? In other words, in case of conflict between decisions of the UPC and the TBA.

At the latest conference on the UPC in Munich, Sir Jacob made it clear that for him the UPC will be the leading court in Europe. In other words, the UPC decisions should prevail. By doing so he forgets that there are also other non-EU member states at the EPO. And they also deserve some respect.

One example: it is abundantly clear that the boards of appeal of the EPO have taken a strict stance in respect of added subject-matter. What if the UPC waters down the requirements? This thought is not abstruse when one looks at certain national decisions in this respect.

The UP being a patent to be granted by the EPO, the examining and opposition divisions are bound to follow the case law of the boards of appeal, and especially that of the enlarged board. The strict stance will be maintained be it only for this reason.

If the UPC is more lenient in the matter, which is to be expected, the only way to have a patent scrutinised strictly on this point is to file an opposition at the EPO. Otherwise it might become difficult to have a strict view on the matter. That proprietors prefer a more lenient way is obvious, but the opponents will want exactly the opposite.

At the recent INGRES Conference reported in another blog on IPKat, Mr Hoying made an interesting comment. According to his view, “Art. 54(3) EPC [is] a big problem which leads to multiple patents for the same invention (and – via divisionals – unacceptable uncertainty of third parties). Why can EPO and Dutch courts not read “the content of European patent application” broader? The skilled person should always read (when reading for Art. 54(3) EPC purposes) with the common general knowledge and consider each combination with the common general knowledge as disclosed”.

This is to me a clear attempt to water down the requirement for novelty which is goes like an Ariadne thread through all decisions of the enlarged board, novelty, added subject-matter, priority, divisional applications and disclaimers.

If the UPC follows this line, then we can say good bye to certainty in this matter. Is this really want is good for the users of the system? For US companies yes, as they have never understood the problem, for European companies, and especially EU and SMEs among them, certainly not.

In any case, the uncertainty will remain. And to me, this is not good for business, unless it has deep pockets.

By the way, at the latest conference on the UPC in Munich, Sir Jacob made it also very clear what he thought of opposition divisions and the boards of appeal: an opposition is playing waiting for Godot! This is not very kind, to say the least.

To me, the problems with the UPC are not only when it comes to infringement as exemplified by Proof of the pudding, but also when it comes to validity.

Then, in reply to it, someone recalled Battistelli’s attack on TBA and said: “I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance.”

To quote the whole comment:

I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance. They may potter on for a while in Haar but their glory days are over.

The independence has been so far eroded despite or perhaps as a result of the fig-lesf reform in 2016 so that they can no longer be seriously considered as an independent judicial instance. The “President” of the Boards of Appeal cannot even appoint his deputy without the approval of the President of the EPO (nota bene: the EPO President and not the Admin Council has the final say here). The President of the EPO also has the final say over the promotion of Board members.

The plan of the EU manadarins seems to be to replace the EPO Boards of Appeal by the UPC. That much is clear from Jacob’s comments.

The next one said this:

The Boards of Appeal are likely not to survive the upcoming decisions of the German constitutional court, be it only because the Enlarged Board itself in a recent and disastrous disciplinary case stated it was under the influence of the President of the office.

This entirely changes the situation which prevailed for decades, when earlier decisions rightly concluded that the members of the Boards were judges in all but name.

As the next and final comment put it, “revocation actions at the UPC are likely to be an order of magnitude more expensive.”

It explained how the UPC would crush SMEs — something we have said repeatedly for years.

Here is the full comment:

Hmmmn. If that is true, then we could be looking at a very dark future indeed.

Oppositions at the EPO could hardly be described as a “low-cost” exercise. However, on any realistic assessment, revocation actions at the UPC are likely to be an order of magnitude more expensive.

It is therefore all too easy to envisage disastrous consequences for SMEs (and the public) across Europe if the UPC becomes the only forum for revoking European patents. That is, if the cost of knocking out a “bad” patent that has been asserted against you becomes prohibitively expensive, and the market for litigation insurance has (predictably) failed to materialise, how do you stop the “trolls”?

There is another factor could make this a “perfect storm” that could devastate important areas of industry across Europe, especially those that are largely populated by SMEs. That is, we need to consider that the management of the EPO has, in recent years, engaged upon a drive to grant as many patents as possible. It is clear to anyone who has been paying attention that this drive has involved a “light touch” approach to examination… thus greatly increasing the likelihood that patents will have been granted with overly-broad claims, or perhaps even no valid claims at all.

So, we could end upon with more “bad” patents and the prospect of hugely increased costs for knocking out such patents. Who would that benefit, I wonder?

Whilst I am very reluctant to believe in conspiracies, even I have to admit that the actions of the current EPO management (grant rate forced ever upwards, Boards of Appeal hobbled, chances of the opposition procedure surviving the constitutional complaints in Germany correspondingly decreased…) all seem to be tailor-made to benefit only a certain section of the patent ecosystem. We shall just have to wait and see whether this is the result of accident or design.

The last paragraph (above) is key. It spares us the need to once again explain why UPC would be an SME killer, contrary to what the EPO claimed 5 times today (new page, news item, blog post and 2 tweets).

It will actually be news when the EPO stops spreading lies. █

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