12.12.17

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The EPO Protest Tomorrow Isn’t Just About Judge Corcoran But About the EPO as a Whole

Posted in Europe, Patents at 2:51 am by Dr. Roy Schestowitz

The Administrative Council has been complicit and the Boards of Appeal (as well as the EPC) are at risk/under an existential threat

EPO Protest in Munich
EPO protest in Munich last year

Summary: EPO staff is about to protest against the employer, pointing out that “Battistelli is still showing a total and utter lack of respect not only for his staff and their rights but also for the Administrative Council and for the Tribunal”

AS we already said last week, yesterday and again this morning, there’s another EPO protest lined up and it will take place tomorrow, in order to coincide with the meeting of the Administrative Council (we’ll be personally away those days and thus unable to cover many of the developments therein).

Following the announcement in German four days ago there is now a similar (but shorter) one in English and it says that “SUEPO Munich calls for a demonstration in front of the Isar building on the first day of the meeting of the Administrative Council on Wednesday 13 December at 12:30 in front of the Isar building. The aim is to signal to the Council that their governance is needed – if they want to avoid further criticism from the Tribunal.”

There’s also an accompanying document which sheds light on the legal bullying from Battistelli and his ‘bulldog’:

DEMONSTRATION

Wednesday 13 December at 12:30 Isar building

On 13 and 14 December the Administrative Council of the EPO will meet in Munich. The agenda can be found in micado as CA/105/17.

The meeting is likely to be tense:
- Mr Battistelli and Mr Topic have repeatedly accused a Member of the Boards of Appeal of defamation. They even introduced a private complaint for “Beleidigung” (insult) in a German court. The court dismissed the complaint as time-barred. In the second instance the German second instance court, apparently annoyed with the complaint, went further and also dismissed the complaint on the substance. A similar complaint filed in Croatia by Mr Topic has been withdrawn by the accuser, who presumably feared a similar fate.

- The suspended Member of the Boards of Appeal filed several complaints at the ILO-AT. The first two have now been decided. The Tribunal found that the President had a personal interest in the case and was partial. It further stated that the Administrative Council erred in not finding that the President had a conflict of interest in the matter.

- The Tribunal ordered the Office to reinstate the Member of the Boards of Appeal and lift the house ban imposed upon him with immediate effect. The problem: his contract expires at the end of the year and has not been renewed so the “reinstatement” will in practice be for less than two weeks.

- The case is on the agenda of the Council as point 1.7. It is a “C” point meaning that it will again be discussed behind closed doors, again solely on the basis of information provided by the President, including confidential documents that have not been shared with the accused, and without the Board of Appeal Member being heard.

Mr Battistelli is still showing a total and utter lack of respect not only for his staff and their rights but also for the Administrative Council and for the Tribunal.

SUEPO Munich calls for a demonstration in front of the Isar building on the first day of the meeting of the Administrative Council. The aim is to signal to the Council that their governance is needed – if they want to avoid further criticism from the Tribunal.

SUEPO Munich

It’s rather hard to imagine if/how the Boards of Appeal at the EPO can properly function. They’re not independent anymore. Battistelli gave them a death blow. He killed the EPC too, at least in the process.

There’s this new article from last night regarding the Boards of Appeal and it fails to mention that the Boards of Appeal are at a point of unprecedented crisis after several attack from Battistelli (the Boards are also grossly understaffed).

A guest post at Managing IP has said:

As previously discussed in this column, the Boards of Appeal of the EPO have a few tools at their disposal, which they use to conduct EPO appeal proceedings efficiently. In particular, Article 12(2) of the Rules of Procedure of the Boards of Appeal (RPBA) requires appellants to provide their complete case in their statement of grounds of appeal or response to an appeal.

Using this Article, the Boards of Appeal can choose not to admit evidence or amendments to a patent that are filed late in appeal proceedings.

It has generally been accepted, however, that late-filed evidence or claim amendments could be admitted into appeal proceedings, if they are a response to a filing or argument made by another party. So, for example, if a patentee-appellant files new data with their appeal to support an invention, an opponent-appellant should be able to submit counter-evidence, for example in the form of experiments. In effect, a late-filing needs to be justified by a change in circumstances.

How much of this cumbersome process can be afforded now that these Boards have been pushed to the edge and denied resources they need? Incapability/lack of capacity to audit patents (a form of quality control) granted by the Office is a serious peril to the whole Organisation. Shouldn’t that be noted by more writers of/from the patent microcosm? Shouldn’t they be fighting to restore the EPO’s integrity? Apparently they don’t care enough…

Unusually, Marks & Clerk decided to speak out about something rather extraordinary last month. It appeared in at least three places and we mentioned it before. It still circulates among EPO staff as evidence of what Alberto Casado is up to. “This article first appeared in Intellectual Property Magazine,” it notes and it then says that “third parties who may be significantly disadvantaged.”

“Presumably,” it notes, “all deferred applications will be removed from the statistics on average examination time, allowing the EPO an opportunity to drive down the numbers without actually doing any further work.”

Had the Boards of Appeal enjoyed real independence (and sufficient capacity), they would probably be able to say something about it. From Stephen Blake’s article:

An innovative economy is something to be celebrated, but increased numbers of patent applications can cause problems for intellectual property offices tasked with examining them. It has long been known that the European Patent Office (EPO) has a large backlog of patent applications to examine, with applicants waiting years to receive a first examination report. At the meeting of the EPI Council last week in Warsaw, I learned of a new proposal presented to Council by Alberto Casado, Vice President of the EPO, for tackling this backlog. If implemented in its proposed form then it is likely to have implications for applicants, but most notably for third parties who may be significantly disadvantaged.

In recent times, the EPO has introduced a number of initiatives known collectively as “early certainty” initiatives with the aim of speeding up the prosecution of European patent applications and the opposition proceedings for granted European patents. One of these initiatives is that the EPO aims to give preliminary opinion on patents within six months of filing the application. While the EPO has seen success under this initiative, a further initiative to reduce the average time for examination to 12 months has been less successful – the current average time for examination is just under two years. The EPO has therefore considered further measures to alleviate the backlog. One such measure is a proposal to defer examination at the EPO for up to three years on request from the applicant. I understand that the EPO thinks this will mean less time is spent examining applications that the applicants are not too concerned about. Presumably, all deferred applications will be removed from the statistics on average examination time, allowing the EPO an opportunity to drive down the numbers without actually doing any further work.

This whole “early certainty” spiel is a travesty which evades the very principles of patenting; rushed examination is typically as good as no examination at all and patents granted at haste/hurry should be treated with great caution/suspicion.

What ever happened to the Boards of Appeal which used to guard Europe from low-quality (and invalid) patents? Why is Battistelli fighting them tooth and nail? Probably because he has plenty of mischief to hide…

Battistelli is covertly creating another SIPO or INPI. Quality matters no longer…

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