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10.26.17

Benoît Battistelli Still Involved in Politics, Probably in Defiance of Clear Rules for International Civil Servants

Posted in Europe, Patents at 10:18 pm by Dr. Roy Schestowitz

He is alleged to have used political connections to install Campinos in a position of power and also get himself appointed as President

Sylvie Habert-Dupuis élue première adjointe à Saint-Germain-en-Laye

Summary: Benoît Battistelli turns out to still be involved in Saint-Germain-en-Laye politics

THE EPO long ago departed from the Rule of Law.

As we pointed out over a year and a half ago, Battistelli should not be doing politics. It is not allowed for international civil servants, as per ILOAT, which said that “…an international civil servant, though entitled to hold his own political views, must stand aloof from demonstrations of adherence to a political party. Integrity, loyalty to the international civil service, independence and impartiality are the standards required of an international civil servant and they require him to keep clear of involvement in national party politics.”

On Wednesday the French media posted this article with a mugshot of Battistelli. A reader has sent us a translation of the (only) part talking about Benoît Battistelli:

Douze adjoints à Saint-Germain-en-Laye

Le 6e adjoint a également été élu : Benoît Battistelli, jusqu’ici conseiller municipal chargé du théâtre, prend le poste d’adjoint à la Culture.

« Benoît Battistelli va retrouver une délégation qu’il connaît bien et l’équipe que nous formions va se reformer sous un autre format », a déclaré le maire, qui était lui-même adjoint à la Culture avant de devenir maire de Saint-Germain.

In English:

Twelve deputy mayors at Saint-Germain-en-Laye

The 6th deputy mayor has been elected as well: Benoît Battistelli, up to now municipal councillor for theater, takes the post of the deputy mayor for culture.

« Benoît Battistelli will meet a delegation he knows well and the team we will form will reshape in a different format », declared the mayor, who himself had been deputy mayor for culture before he became the mayor of Saint-Germain.

Nicolas Sarkozy and the Bygmalion affair aside, Battistelli is still associated with that party and does, in his capacity as a politician, get involved in local politics. But it’s not like the Council or Dr. Ernst would dare oust him for it.

New EPC Cartoon

Posted in Europe, Patents at 9:54 pm by Dr. Roy Schestowitz

EPC cartoon

Summary: The cartoon anticipates/extrapolates the impact of the latest reform on the future patent quality and possible consequences for holders of European Patents after Brexit

Context: The organisational merger of large parts of DG1 and DG2, which is currently being implemented, respects the wording of Rule 9 EPC but it conflicts with its spirit. The introduction of a direct reporting line between the new COOs and the president give him even more control over the patent examination process while marginalising the roles of VP1 and VP2. [the direct reporting links are shown in the organigram of the new structure, taken from epo.org]

The new structure at EPO
The new structure at EPO (large view)

Rule 9:

Administrative structure of the European Patent Office

(1) The European Patent Office shall be divided administratively into Directorates-General, to which the departments specified in Article 15(a) to (e), and the services set up to deal with legal matters and the internal administration of the Office, shall be assigned.

(2) Each Directorate-General shall be directed by a Vice-President. The assignment of a Vice-President to a Directorate-General shall be decided by the Administrative Council, after the President of the European Patent Office has been consulted.

Professor Siegfried Broß Again Complains About the Situation at the EPO and Issues With the UPC

Posted in Europe, Patents at 1:29 pm by Dr. Roy Schestowitz

Failure of European media should alarm also those outside the EPO

About censorshipSummary: In spite of the suspicious absence of real coverage/journalism regarding the Unitary Patent (as opposed to puff pieces penned by Team UPC), voices come out in opposition of the Unitary Patent and comments continue to be deleted (usually by Team UPC, which orchestrates a media blackout on UPC matters)

Professor Siegfried Broß is no stranger to the EPO scandals. Being retired probably means that he has more time to study the situation and earlier this year he wrote a very long article about it (in German).

“Being retired probably means that he has more time to study the situation and earlier this year he wrote a very long article about it (in German).”Broß is loved by EPO employees and it’s easy to see why; he says the truth about Team Battistelli (comparing what Battistelli has made of the EPO to “Guantánamo Bay”). He, unlike many in his profession (in active service), speaks truth to power.

Earlier today a pro-UPC blog (Kluwer Patent Blog) published this new interview with Broß. It is already being discussed by Team UPC (see here for example) and the introduction is as follows: “European states lack awareness of their obligations under the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights and have established associations such as the EPO and the UPC, without anyone accounting for guarantees with regard to democracy, the rule of law and human rights. Professor Siegfried Broß said this in an interview with Kluwer IP Law about the constitutional complaint that has been filed against German ratification of the Unified Patent Court Agreement. Broß is a former judge of the Xth Civil Panel of the Federal Court of Justice (1986-1998), responsible among others for patent cases, and of the German Federal Constitutional Court (FCC, 1998-2010).”

“He, unlike many in his profession (in active service), speaks truth to power.”Broß clarifies that he has nothing to do with the UPC complaint and has in fact never spoken to the complainant, who is also German. Looking down at the comments section, it is already disrupted (again) by the same anti-SUEPO commenter whom we prefer to ignore.

Don’t expect Team UPC to draw much attention to this interview. They reject or hide what does not suit their agenda. Earlier today, for example, Fiona Nicolson from Bristows did some more spin. “Another draft Statutory Instrument (The Unified Patent Court (Immunities and Privileges) Order 2017) is currently before the UK Parliament,” she wrote. Actually, the UPC is pretty much abandoned here and it was removed off the agenda (Bristows did not report that, it preferred for nobody to notice).

Censorship and omissions are very commonplace when it comes to UPC matters. We have already caught, on numerous occasions, IP Kat and Kluwer Patent Blog censoring comments that were hostile towards the UPC. They always have their excuses ready, but it happened so many times that it’s clearly not attributable to technical errors.

IP Kat itself is having credibility issues, having decided to nuke almost 40 comments and make a blanket statement about them. There are new comments being posted about censorship of comments (we can imagine that these too may be filtered). Among them:

All very well, Merpel. But why delete all of the comments and not just the “offensive” ones?

I had not forgotten the “rules” for posting on EPO-related matters. Indeed, I took great care to follow them. So I am particularly offended that my comments were deleted. Could you please therefore extend me the courtesy of restoring them (as well as all of the other comments that comply with the “rules”)?

Here is another example:

Does this count as a personal attack on an identifiable individual?

“The current EPO President Benoît Battistelli has been attacking all parts of the EPO with ruthless efficiency. The strands of this are almost too numerous to enumerate, but Merpel will attempt a brief summary. (Most of the posts on this topic are labelled “Eponia” so a search on this should reveal to any keen readers the majority of Merpel’s posts.)

A Board of Appeal member remains in limbo having been suspended, but the Enlarged Board of Appeal three times (showing admirable and rare backbone) having declined (also noted here) to propose his removal from office.
The staff representation has been emasculated, and the main staff union SUEPO has been constantly under attack, with four of its officers either sacked or demoted on dubious charges (see posts here and here).
The Boards of Appeal have likewise been emasculated and banished to Haar, approved by the AC last October, seemingly in retaliation for the lack of compliance of the Enlarged Board of Appeal with the President’s wishes.
Examination quotas have been continually increased for Examiners, and while the mantra about “quality not affected” is often raised, there is actually no proper assessment of examination quality, with many reports that it is suffering. The astonishing 40% increase in granted patents in 2016 has been widely reported, although this is presumably partly due to the changed examination priorities which, inter alia, involve progressing rapidly to grant cases that are clearly allowable.
The social situation at the EPO has deteriorated with repeated amendments to the employment regulations, and the atmosphere between Examiners and managers grows increasingly toxic.”

The last comment says this:

“The overwhelming majority of comments were purely libellous ad hominem attacks on a man that has not even taken office.”

That is simply NOT true. Those very few posts that would fall into that category could have easily moderated out.

For anyone interested in making up their own mind, the original posts are hosted as a PDF a the (rather opinionated) Techrights site.

People are always safe to comment in Techrights. We delete logs so we cannot comply with searches and we never ever deleted even a single comment. Alternatively, get in touch with us in the usual ways. Our intention is to help inform staff and stakeholders — something which mainstream media in Europe is evidently unwilling to do (with few exceptions every now and then).

Speaking of mainstream media in Europe, someone sent us this new article about “Battistelli a la culture,” to quote the sender, who said s/he had “[p]icked this [in the] morning in the news…”

Can anyone translate it for us please? It’s in French. We try not to rely on anything automated. It might help to know what Battistelli plans to do when his term is finished.

The European Commission Has Essentially Invalided Many European Patents (EPs) for Being Out of Scope; Are Software Patents (CII) Next?

Posted in Europe, Patents at 12:47 pm by Dr. Roy Schestowitz

European Commission room

Summary: Now that the European Commission openly intervenes in matters pertaining to the EPC and granted patents, will it belatedly revoke all these software patents (granted over the years by the EPO)?

IT is no secret that the EPO grants software patents in Europe. We have been writing about this for many years and insiders now speak about this anonymously; they’re not happy about it, nor are they pleased with the systematic decline in quality of EPs.

“Are software patents next on the agenda? Will European software patents finally be eradicated?”Yesterday, AA Thornton & Co’s Alex Hughes wrote about EPO changes, but not EPO scandals. They never mention the scandals. They’re afraid to rock the boat. Instead, Hughes wrote about “EPO Guidelines for Examination 2017″ and concluded with the following portion about intervention by the European Commission (which makes EPO feel like more of an EU institution):

The Guidelines have also been updated to reflect amended Rules 27 and 28 which came into force on 1 July 2017. These rules are discussed here in detail and concern the exclusion of products exclusively obtained by essentially biological processes following the Notice of the European Commission from November 2016.

Are software patents next on the agenda? Will European software patents finally be eradicated?

Barbara Rigby from Dehns also wrote about the subject (earlier today under the title “Changes to EPO Guidelines”) and here is what she said:

Products of essentially biological processes Section G-II, 5.2-5.5

The Guidelines have been updated to reflect the amendments to Rules 27 and 28 EPC that came into effect as of 1 July 2017 (with retrospective effect). Thus, the Guidelines set out that plants and animals exclusively obtained by essentially biological processes are excluded from patentability under Article 53(b) EPC.

It’s about time they also excluded everything the EPO calls “CII” (basically software patents by another name). Sadly, however, there’s heavy lobbying and earlier today IAM mentioned Microsoft AstroTurfing groups such as ACT (Association for Competitive Technology) and IP Europe. It’s about the European Commission DGs and here is the relevant part:

In its report PaRR states that the DGs squaring off against each other include, on one side, Competition and on the other Internal Market and Industry, and Research. The former backs calls from users of SEPs, including companies represented by the BigTech-sponsored, US-based ACT The App Association, for a prohibition on use-based licensing of SEPs; while the latter are supportive of the position taken by the likes of IP Europe – whose members include Nokia, Ericsson, Orange and the Fraunhofer Institute – which claims use-based licensing is the only way to fairly reward companies that invest billions in R&D and to incentivise them to develop standards that allow interoperability. With 5G on the horizon and the IoT on everyone’s mind, this is a live and highly important debate.

The term “IoT”, as we explained before, is just a Trojan horse and a buzzword; they’re trying to sneak software patents tax into just about every device out there.

The EPO is Breaking the Law and Its Employees Cannot Speak About It (Updated)

Posted in Europe, Law, Patents at 3:30 am by Dr. Roy Schestowitz

Like popes who suppress information about abuse

Benoît Battistelli at UIMPSummary: A truly extraordinary situation at the EPO, where laws are being violated in the name of so-called ‘production’ and truth is treated as “defamation” and attacked vehemently

SUEPO has just, for the first time in fact, mentioned denial of holidays by the EPO. We have been writing about it since early September and now there is this text about it in German [PDF].

SUEPO refers to it in English as “Abolishment of German National Public Holidays at the European Patent Office. Kurzgutachten zu den Rechtsfragen – For more information, read here. (German) The Europea [sic] Patent Office above national law.” It says this while referring to this page from the site of the EPO. (warning: epo.org links may be a privacy risk)

Surely the staff is extremely upset about this. Some people thought about actions they might take, such as not showing up or demanding double pay for that day. Since the EPO cannot be sued (immunity), Battistelli will quite likely get away with it. He intends to do this again and again (3 times at least) and not because it’s some critical situation like missed deadlines; his right-hand bulldog has already admitted that this is all about increasing so-called ‘production’ (i.e. granting more low-quality patents, faster). But perhaps what’s most horrible about this is that staff is unable to speak out against it. The media isn’t listening and when comments are posted they get deleted. As someone (John) put it in our comments a few minutes ago:

The ipkat article reads (cite):
“The overwhelming majority of comments were purely libellous ad hominem attacks on a man that has not even taken office.”
The man who has not even taken office can only be Campinos. I don’t remember any particular comments about Campinos in the comments, do you?

There is a similar comment about it in Kluwer Patent Blog. To quote:

We now know that the deletion of comments on the IPKat thread was deliberate:

http://ipkitten.blogspot.co.uk/2017/10/ipkat-comment-moderation-policy_25.html

We are reminded that EPO-related comments on IPKat must follow strict rules. However, it is immensely disappointing (to say the least) no attempt was made to remove only those comments that transgressed the rules.

As to whether it is correct for Merpel to assert that “The overwhelming majority of comments were purely libellous ad hominem attacks on a man that has not even taken office”, readers can judge for themselves:

http://techrights.org/wp-content/uploads/2017/10/censored-by-ipkat.pdf

By my count, a total of 3 (out of 34) comments could reasonably be characterised as referring to “the character, motive, or other attribute” of Mr Campinos. Of those, only two go in any way beyond mere mention of facts regarding his background… and, in any event, seem pretty mild by the standards of blog posts even in the civilised world of IP. So, not quite an “overwhelming majority” of problematic comments, then? Unless, of course, you believe that a 6% level of (mild) “opinion-based” comments qualifies as such.

So, it seems that we are back to my initial comment – that strange things are indeed afoot in the world of (reporting on) the EPO.

“Amazing indeed,” Dr. Thorsten Bausch called it. Bausch has been brave enough to say the truth, using his own real name.

The above is based on a PDF of a printout, which we published before IP Kat was forced to admit that it had censored all the comments. Watch this comment from yesterday (posted in another context in IP Kat): “My comment was not really that serious, as it was really intended to establish whether all of my comments (as opposed to just those relating to the EPO) were getting “censored”.”

The context of this comment was a discussion which involves the EPC — something which Battistelli neither respects nor follows (just as he flagrantly violates national laws and disregards holidays). The latest comment mentions the EPC explicity:

Well, I read the decision, and it appears logical, but have one overrding question, and I hope somebody can answer it.

In 3.1.1.3 it says ‘The successor in title ….must prove that it indeed owned…’

It is especially the requirement TO PROVE that bothers me. Where does this come from. What is its basis under the EPC? I don’t see it.

If both the original owner and the successor in title certify that the transfer was effected on date X, to their satisfaction, and in a form which they found acceptable, what is the basis for a third party, or EPO, to doubt an effective transfer, and where is their basis to require proof.

As a summary this decision is nice…but still, I’d like to have seen a legal basis for the right of others to demand PROOF.

Well, lawlessness is the new norm and lawfulness at the EPO is a thing of the past. Get used to it or do something about it. It’s the EPC which granted the EPO powers to give (and profit from) patents; these powers are now being grossly misused. Revoke it.

As a lot of the media has been compromised (using money and threats) it’s hard to know what’s true about the EPO and UPC. Using soothing terms like “balance”, professional journalists (i.e. salaried to follow their publisher’s agenda) they often repeat lies from the EPO and habitually ignore the voices of EPO employees. This has been going on for years. This is why we have been so eager to write about the subject.

Update: SUEPO has just self-censored the above (could be due to threats or something else), so we are making a local copy of the PDF.

Big Blow for the Unitary Patent (UPC) as Even Patent Professionals Say “It’s Dead”

Posted in Europe, Patents at 2:38 am by Dr. Roy Schestowitz

German and English UPC

Summary: Issues for the UPC have become too much for momentum to be gained anywhere across Europe, resulting in decay and perhaps abandonment

THE EPO NO longer speaks about the UPC. It has not said anything about 2 months of additional delays, knowing that it quite likely dooms the UPC as a whole (not just in the UK).

“The UPC won’t go anywhere from here. It’s too late and Battistelli is leaving.”Don’t ask Team UPC about it. It’s an echo chamber where everyone is lying to everybody else; they tell each other what they want to believe rather than what is true.

Earlier this week WIPR wrote about the latest development; the article is quoting only the microcosm, not UPC opponents or any businesses (i.e. echo chamber, as usual). Here is the background to it all:

The German Constitutional Court (Bundesverfassungsgericht) has extended the comment period on the credibility of a challenge to the Unified Patent Court (UPC).

In June, the court announced it was delaying the ratification of the UPC Agreement because of a constitutional complaint brought by an individual.

According to German news site Juve, Düsseldorf-based attorney Ingve Stjerna filed the complaint.

Dr. Alex Robinson wrote about it as well. He has a stake in it and he explained that a “delay until 2019 or 2020 now looks likely, assuming that the BVerfG ultimately gives the UPC Agreement the OK…” (which is their best case scenario). To quote’s Robinson’s post:

After expiry of the deadline, the BVerfG will first of all decide whether the complaint is admissible. If the complaint is deemed admissible, a decision on the merits will follow. No firm timetable is known yet, but a decision on admissibility is expected in early 2018. If the case is admitted, a decision on the merits is unlikely before the second half of 2018 at the earliest. Given that some of the grounds of complaint include an allegation that the Agreement is contrary to European law, a referral to the ECJ for a preliminary ruling on points of European law cannot be ruled out. If this takes place, a delay until 2019 or even 2020 for the final decision might be expected.

“In other words, post-Brexit,” Dr. Luke McDonagh remarked it.

The UPC won’t go anywhere from here. It’s too late and Battistelli is leaving.

“It’s pretty astounding what Team UPC firms got away with. They manipulated the media, politicians, and even their paying clients. Now they have neither credibility nor UPC.”David Pearce (better known as “Tufty the Cat” from back in his IP Kat days) has just said the UPC is “dead”.

He said similar things before.

Robinson just refuses to accept this; he responded with “UK participation, at least, seems less likely by the day. And even if it goes ahead, without UK in European firms are questioning value [] Don’t want to prejudge merits of case. But a long delay seems assured, at least.”

Just say it: the Unitary Patent is stuck and likely forgotten about. Good riddance. It was an affront to society. We wrote literally hundreds of articles about it. It’s pretty astounding what Team UPC firms got away with. They manipulated the media, politicians, and even their paying clients. Now they have neither credibility nor UPC.

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