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02.17.18

UPC Has Done Nothing for Europe Except Destruction of the EPO and Imminent Layoffs Due to Lack of Applications and Lowered Value of European Patents

Posted in Europe, Patents at 9:14 am by Dr. Roy Schestowitz

Lots of fake news lately from those who stand to benefit from UPC (at the expense of everybody else)

UPC fake news

Summary: The Unified Patent Court (UPC) is merely a distant dream or a fantasy for litigators; to everyone else the UPC lobby has done nothing but damage, including potentially irreparable damage to the European Patent Office, which is declining very sharply

THE UPC is not going anywhere; except away. Maybe. The EPO barely mentions it any longer and Team UPC seems to have been reduced to just Bristows (almost nobody else mentions it anymore). Just before the weekend Mathieu Klos from JUVE wrote: “UPC challenge Germany I: According to constitutional court spokesman: as yet no date for oral hearing or judgement. If there were an oral hearing, press release to be published in advance. Next Wednesday (21.02.) the Court publishes list of cases it intends to decide in 2018.”

“No word about the UPC from Team UPC for at least two days now, so we can safely assume that the UK has — once again — said no to “unitary” nonsense (patent maximalism disguised as “unity”, “EU”, “harmony”, “community” and so on).”And later on this: “UPC challenge Germany II: According to constitutional court spokesman: Court received all amicus briefs, no further institution got deadline extension. All paperwork is done, now judges can read and decide.”

No word about the UPC from Team UPC for at least two days now, so we can safely assume that the UK has — once again — said no to “unitary” nonsense (patent maximalism disguised as “unity”, “EU”, “harmony”, “community” and so on). Waste of effort is all it boils down to; they should improve actual patent quality, but there’s no money in it for lawyers. In fact, it would render many of them redundant.

“Was the gamble on UPC (massive headache for European companies but boon to litigators worldwide) worth it?”And speaking of redundancies, it’s regretful and uncomfortable to say, but a lot of EPO workers can already envision themselves losing their jobs. See some of the latest comments here.

One reader of ours told us that the “EPO plans addition of Art 53(1)(f) in Service regulations: staff can be dismissed if the exigencies of the service require an abolition of a post or a reduction of staff. To be debated during next session of AC.”

Yes, well, that’s hardly a surprise. A Portuguese friend explained to me earlier today all sorts of things about the former employer (bank) of the upcoming President of the EPO. It seems as though we’ll have lots to say in July when layoffs become a big item on the agenda. Here’s one new comment that stands out (it’s about how backlog runs out, rendering many examiners redundant and many dubious applications enshrined as patents):

The reduction in training time has become a usual fashion since the full deployment of BEST around 2005, as BEST was allegedly increasing productivity/production by 30%, the training time for search and examination was reduced by 50%.

15% time gain for search and 15% time gain for examination makes 30% time gain in total! Yes this is the level at which such a decision was taken. The real gain in production given by BEST was much lower, but in order for the pill to pass the AC, the figure had to be enlightened. But still the training time was reduced by 50%.

It is not a joke. And this was long before the Office had to endure the present tenant of the 10th floor! He simply aggravated the situation, but was helped in this endeavour by the former VP1 Minnoye.

New examiners receive an initial training as how to churn out as many communications as possible in the first year. When the replies arrive, training has already been reduced drastically, and they are left on their own…

Training time is time in which neither the trainee nor the trainer produce. Training people is considered as an extra task not belonging to the core tasks. Core tasks have absolute priority. Language training might be given, but outside the working time, whether such training is considered necessary or not.

Training, especially when it comes for highly educated people like examiners, needs to be carefully conceived. While in the past it was within DG1/DG2 i.e. in direct contact with the people at the “coal front”, it is nowadays under HR, with the famous E.B! It is thus not at all surprising that training has developed in the way shown above.

Furthermore, in order to increase the output, not all examiners will deal with oppositions. On the face of it, it might look positive and more efficient. But not only does it create two classes of examiners, whereby those not dealing with oppositions will not have a chance to go to DG3 should they wish to do so, but it takes away from the “basic” examiner that what he is dealing with is not a mere piece of paper for which he gets points, but represents an asset which has either to be defended or pushed out of the way.

It is by dealing with oppositions that examiners realise that their work is not just playing with words (original Minnoye), but represents an economic value. To me, dealing with oppositions is part of the necessary general culture needed by an examiner in order to fully comprehend his job, and not just an adjustable variable useful in getting more production out.

That some directors instruct their people not to adapt the description is not a surprise. Just a waste of time. That afterwards in litigation before a national court, the proprietor can then try to pull wool over the eyes of a judge is a nice side effect. But one day those people will also sit on the other side.

Some directors go even as far as to say that it is not even necessary to read the description, just look at the claims and at the drawings if any. Even a long time ago, oral instructions were given that if the first examiner decides to grant, the two other members of the division had to shut up.

And with all those measures examiners are meant to be respected and feel happy at work. It makes me want to puke.

See some later comments in there about the USPTO compared to the EPO. The EPO is losing its advantage and it’s the USPTO that now enjoys a rise in applications (they’re on the decline in the EPO). The emerging theme right now is how easily the EPO will soon fire employees (traditionally it was very difficult, which meant work security). What will the ‘Campinos era’ bring? Based on what we’re told, he’s hardly any better than Battistelli; some people are a lot more negative about him than we are.

What will the ‘Campinos era’ mean for patent quality? More lies about quality? Watermark’s Christian Schieber has just written about ‘anti-PACE’ — basically a belated response to rushed examination that many applicats did not want at all. As Schieber put it:

The European Patent Office (EPO), following public consultation, intends introducing a new procedural option enabling applicants of European Patent (EP) applications to request postponement of the start of substantive examination, by up to 3 years.

Currently, applicants can speed up the grant procedure of an EP application, using the Programme for Accelerated Examination of European patent applications (PACE) or other mechanisms. However, no mechanism is currently available to defer commencement of examination. For EP applications filed directly with the EPO, examination has to be requested no later than 6 months from publication of the European search report. For EP applications originating in International (PCT) applications, examination is requested at the time of regional phase entry, ie latest by 31 months from the priority date of the PCT application.

So they can delay it by “up to 3 years” (i.e. until 2021). Will there even be an EPO as we know it in 3 years? SUEPO believes that mass layoffs can begin as early as this year.

The Lawyer’s Daily, a site whose name is self-explanatory, says that CIPO (Canada) assumes EPO will last another 3 years, never mind if there are many layoffs coming soon. To quote yesterday’s article:

As of January, the Patent Prosecution Highway pilot agreement between the Canadian Intellectual Property Office (CIPO) and the European Patent Office (EPO) has been extended for another three years.

According to a statement from CIPO, the Patent Prosecution Highway allows applicants at the CIPO and EPO to obtain corresponding patents quickly and efficiently. It also enables the two patent offices to benefit from work previously done by each other, which reduces examination workload and improves patent quality.

The above is not actually news. Not really (we mentioned it before). What’s news is all sorts of worthless deals Battistelli signs in countries like Cambodia (with zero European Patents) or distant nations like Argentina with only dozens of European Patents.

We worry that Europe is losing its competitiveness in terms of patents (which we’re not inherently against). How could anyone envision/consider the attacks on the EPC and the EPO as a good thing? Was the gamble on UPC (massive headache for European companies but boon to litigators worldwide) worth it?

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