11.17.17

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EPO ‘Business’ From the United States Has Nosedived and UPC is on Its Death Throes

Posted in America, Europe, Patents at 7:43 pm by Dr. Roy Schestowitz

Issuing lots of garbage patents is not a long-term strategy but akin to organisational suicide and immesurable harm to all existing EPs

Elodie Bergot letter

Summary: Benoît Battistelli and Elodie Bergot further accelerate the ultimate demise of the EPO (getting rid of experienced and thus ‘expensive’ staff — see above), for which there is no replacement because there is a monopoly (which means Europe will suffer severely)

THE EPO‘s management had bet the farm on UPC and it wasn’t just unethical and reckless; it was terrible for everyone.

We already know who UPC was for. It was for few multinational giants and their litigators — firms such as Bristows.

Bristows staff (“AmeriKat”) which was accused of "brown-nosing" Colin Birss (after he had ruled to the benefit of patent trolls) is doing it again today and quoted from within her previous post (quote from the European Judges Forum): “death is a certain change of status, a passage to a better status. I believe so, and I believe the UPC will live with Orpheus … and all the others that had lived a life of honor, and have died of an unjust sentence.”

Another quote from that speech: “Therefore, it is clear to me that we do not need the UPC, since everything is dealt with in the Court of Milan. I would suggest to pack up and go home.”

Yes, things are very grim for the UPC. Even insiders say so and Bristows staff goes through the effort of translating/publishing that.

Read the latest comment on this (about how “EPO itself considers that it is only obliged to be bound by “G” decisions”):

While reference has been made to establihshed case law of the EPO, it is clear from numerous decisions that the EPO itself considers that it is only obliged to be bound by “G” decisions. In many decisions it has been pointed out, seemingly mainly to UK authorised representatives, that the EPO relies on a legal code (the EPC) and, unlike Anglo-Saxon legal practice, is not necessarily bound by precedents because non-”G” decisions are not “case law” as per UK practice.

See for example T 0154/04: para 2.

2. …. the legal system of the European Patent Convention gives room for evolution of the jurisprudence (which is thus not “case law” in the strict Anglo-Saxon meaning of the term) and leaves it to the discretion of the boards whether to give reasons in any decision deviating from other decisions or to refer a point of law to the Enlarged Board.

G 0003/08 : reasons:

7.3.1 Development of the law is an essential aspect of its application, …. That is especially true of Anglo-Saxon law, where a decision on an individual case has far greater implications as a precedent than judgments in continental civil law.

T0910/06

2.8 To the extent that the absence in the decision under appeal of any reference to the “established case law” … is seen in itself by the appellant as a “substantial procedural violation” it must be recalled that unlike some Anglo-Saxon legal systems which are precedent driven, the instances of the European Patent Organisation work within a codified system of law, i.e. the European Patent Convention and its implementing regulations, and are constrained by case law only in the case of decisions handed down by the Enlarged Board of Appeal.

Benoît Battistelli has basically, and quite blatantly, attacked the authority of these technical boards. At what cost?

Well, we already know that (and earlier on wrote about) the EPO prioritises US corporations, not European ones. To make matters worse, the EPO is consulting the legal ‘industry’ (firms such as Bristows and their front groups) rather than scientists. Hours ago the EPO published this: (warning: epo.org link)

This year’s meeting of the US Bar-EPO Liaison Council, a forum to facilitate informal exchanges with US applicants, took place at the EPO’s Munich headquarters on 15 November. Consisting of representatives of IP special-interest groups and IP sections of State Bar associations, the Council provides the EPO and US Bar representatives with an excellent opportunity to discuss contemporary issues in the patent system and to address questions of mutual interest. For the EPO, it is also a valuable opportunity to present recent developments at the EPO and gather feedback from US users, currently the EPO’s largest origin of patent applications.

[...]

Feedback from US Bar members revealed that the meeting had helped them deepen their understanding of European patent practice and they welcomed the possibility of another such meeting in 2018.

Notice who’s in attendance. No wonder the EPO is nowadays just reduced to shameless UPC lobbying. No wonder the EPO has seen the number of patent applications declining this past year. “EPO Jobs” said a few hours ago that “The @EPOorg is reducing a number of fees. Head over to the President’s Blog to read all about it…”

Well, as we explained before, Benoît Battistelli may be trying to cook the books. Lower cost means that more applications might be filed (albeit bringing less income). Gaming the numbers? Either way, the writings are on the wall. The value of EPs has gone down considerably, patent quality is nowhere near what it used to be, and earlier today someone told us this:

I don’t see how the EPO is going to find recruits under that new contract form.

The EPO only recruits examiners fresh from the University. They don’t want anything else and the pay for people with experience is not attractive anyway, especially in Munich where the industry is also recruiting engineers and scientists. But for someone fresh from the University, the first job will determine the rest of your career. An employer will typically look at your past 5 years experience and not at your diplomas any more. So if you start your career with patents, it will be very difficult to do anything else afterwards.

But in patents, there are only two jobs: patent examiner and patent attorney. The EPO is basically the only provider of patent examiner jobs in Europe, so if they fire you after 5 years, that road is closed. Patent attorneys cannot absorb a significant number of recruits either. They never did, they are not going to change their policy when the office starts laying off people in significant numbers after 5 years. So, basically, after 5 years you are out of a job with no perspective.

Besides I don’t understand the need for the new policy. The EPO can already fire people at will, they even did so for a judge and some staff representatives.

Suffice to say, this is a recipe for disaster. There’s no substitute to the EPO in the form of UPC, there’s no imminent redemption for the appeal boards, and if things go along the same trajectory, patent backlog (queue) will have run out next year, rendering many examiners redundant. Short-term contracts serve to indicate that EPO management already has this expectation. The EPO is shrinking and growing irrelevant. Battistelli stole all the golden eggs (and many bonuses).

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