EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.17.18

The European Patent Office (EPO) Grants Patents in Error, Insiders Are Complaining That It’s the Management’s Fault

Posted in Europe, Patents at 6:08 am by Dr. Roy Schestowitz

“Trust is broken & quality in decline”

A finger points

Summary: The EPO has languished to the point where patents are granted in error, examiners aren’t happy, and the resultant chaos benefits no-one but lawyers and patent trolls

LAST night we saw this new press release (republished with a different headline). It’s something we have become quite familiar with. Patents are being revoked again (after a grant and a lot of money in legal bills). From the press release:

Boston Scientific Corporation (NYSE: BSX) today announced that it, along with several other opponents, successfully opposed Edwards Lifesciences Corporation’s European patent EP 2,399,550 (’550) in the European Patent Office (EPO), resulting in a revocation of the patent.

[...]

Following last month’s U.K. Court of Appeal’s decision confirming that Edwards’ Sapien 3™ device infringes the Boston Scientific ’766 patent and that all claims of that patent are valid, the U.K. High Court has scheduled a hearing for the week of May 14, 2018 to determine what, if any, exception or limitation should be made to allow for Edwards to continue to supply the Sapien 3 valve in the U.K.

Not too long ago EPO insiders published a PDF in which they complained about patent quality. We’ve decided to reproduce that below as HTML.

16 March 2018

EPO FLIER No. 36

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict

Trust is broken & quality in decline

CA/3/18 to create further damage

Thanks to the intervention of some delegations during the last Board 28 meeting, the introduction of a new Article 53(1)(f)1 into the Service Regulations evaporated into nothing.

But don’t be fooled, the current proposal CA/3/18 still contains many harmful elements. If it enters into force, EPO management will be free to abolish permanent employment for all new recruits. CA/3/18 will further lower the attractiveness of the EPO as an employer2 and the quality of the services it delivers to the users of the patent system. Coming on the heels of many other reforms, we have the impression that the President is trying to create as much damage as possible before he leaves office at the end of June. Despite an Administrative Council resolution and an expert study3 commissioned by the President that concluded the pace of change was too high, he just continues. Instead of fixing some of the massive damage he has created, he carries on creating more.

EPO staff have lost the trust in their employer

While the unrest caused by the original proposal has settled after the last minute fix by Board 28, a strong feeling amongst staff remains that the EPO cannot be trusted as an employer. “The words of Art. 53(1)(f) will not be in our Codex, but are engraved in everybody’s mind.”4 By proposing Article 53(1)(f), the Office has given the clear signal to present and future staff that it does not intend to fulfil the promises it makes when hiring them. Staff are disappointed and disillusioned. Some colleagues, even young recruits, are desperate. In particular, it is the expatriates and staff who have invested in a new home who feel insecure.

For years, the staff have ceased to feel respected for their skills and the work they deliver. Many expect to be exploited while the Office needs them, and then dropped. It worries them that the Office has, for years, proposed one “reform” after the other, unilaterally cancelling mutual agreements5 and voted by a Council which does not verify whether they are acceptable to staff6 and beneficial to the Organisation.

No matter what our skills are and how much experience we have, the President thinks he knows better how to do our jobs. This arrogance has led to an EPO falling apart wherever you look: DG1 (including Patent Administration) is in chaos, HR management is a disaster, IM is spending millions and producing nothing that moves us forward. This is NOT the fault of the staff that works at the EPO, but the fault of a President who lames us rather than leading us. His claims of glorious achievements look impressive, but scratch below the surface and you find a desperate, demoralised, and intimidated body of staff.

Most of us have joined the EPO because the administration promised us job security and stable working conditions. This allowed us to fully commit ourselves to assimilating special skills which have only a limited market outside the Office, and to dare a future in another country together with our families. But the present administration seems to be obsessed with abolishing promised benefits7 and denying us even basic rights. This attitude is incompatible with the needs of an international organisation and a patent office.

Employees no longer have access to timely legal redress. The competent tribunal, the ILOAT, does not meet modern standards of independence8. Many colleagues feel imprisoned in a system where unlawful actions are unpredictable, irreversible, and practically unchallengeable. Democracy depends on the rule of law. In a country, when you lose your faith in the judicial system, you lose your faith in functioning society. The EPO is an international organisation, not a country, but the same logic applies. The perspective of presumably having to file complaints to claim what is due to you, but with little hope of justice9, makes the EPO unattractive as an employer. Some colleagues, including younger recruits, have started looking for alternatives.

Service quality in decline

While the atmosphere inside the Office is tense, critical outside observers10,11 have noticed a significant drop in the quality of the services delivered by the EPO.

That quality slip is an inevitable consequence of the EPO’s current HR policies. In a recent petition12 to the Council, more than 900 examiners complain that they are ‘submitted to constraints that are no longer compatible with fulfilling appropriately our duties within the Search and Examination divisions. We are far too often put in front of the dilemma of either working according to the European Patent Convention (EPC) and respecting the Examiner’s Guidelines, or issuing “products” as our hierarchy demands.’

Future reforms need careful consideration

The most important thing now is to rebuild the trust of the staff and of the users of the European patent system. To stop the disintegration, all changes that affect staff must meet the following requirements:

  • Reform proposals must be the result of a genuine consultation with the CSC
  • Proper benchmarking with other patent offices (not just with other international organisations)
  • Proper legal checks by truly independent experts
  • A staff survey measuring the impact of past “reforms” on staff health and motivation
  • Independent external monitoring of the impact of reforms on the service quality
  • Reforms must be compatible with improving the management-staff relationship
  • No reforms by an administration which has lost the trust of staff and users

Proposal CA/3/18 does not fulfil any of these requirements. Its likely detrimental consequences on the EPO’s service quality have been explained in recent publications13,14.

What in particular is wrong with the current proposal CA/3/18?

The proposal still contains harmful elements, some of them have been heavily criticised by several delegations15. These harmful elements are:

  • Five-year fixed-term contracts for all new recruits, including examiners, up to 20% of the total workforce.
  • In effect, recruitment solely on contract for the next 10 years or more, i.e. the de facto abolition of permanent employment at the EPO.
  • This is incompatible with Article 5(1) Service Regulations (General recruitment criteria): ”Recruitment shall be directed to securing for the Office the services of permanent employees of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of the Contracting States.” (emphasis added)
  • Disrespectful and discriminatory limitation of 10 years’ employment for administrative and technical staff.
  • Failure to take into account staff’s personal situation due to the EPO’s particular status as an international organisation, and the needs of a patent office.
  • The introduction of an additional staff category conflicts with the alleged aim to harmonise the conditions of employment of all employees7.
  • Outsourcing of recruitment and excluding staff representatives from the recruitment process allows a further lowering of the bar for recruitment standards. While this might help to compensate for the loss of attractiveness of the EPO as an employer, is it incompatible with the Office’s alleged priority of providing high quality services.
  • Vice-Presidents (VPs) will be allowed to sit in the General Consultative Committee (GCC). This is an attempt to legalise the current practice, which is in conflict with the Service Regulations: the current President expects his nominees to the GCC, including the VPs, to give a positive opinion on and to vote in favour of all his proposals16. And they have done that for years, making a mockery of the consultation process.

Can CA/3/18 still be stopped?

“The EPO’s latest idea to generate ‘more flexibility’ by employing more examiners on the basis of five-year contracts rather than permanently is … completely counter-productive to quality and should be firmly rejected by the Administrative Council.” – Thorsten Bausch11

Staff and users want the EPO to return to a situation of mutual trust between management and staff, and where users are satisfied with the quality of the EPO’s services.

The moment for the delegations to send a signal to the staff and the public that this is desired, or will at least not be impossible, is now.

The member states can still stop the proposal. They can vote against CA 3/18 in the Administrative Council meeting on 21&22 March.

In its resolution of 22 February 2018, Munich staff demands “the rejection of document CA 3/18 by the Administrative Council”.2

We entirely agree.

EPO Flier Team

______
1 The previous version of CA/3/18 would have allowed dismissal of permanent employees “if the exigencies of the service require abolition of their post or a reduction in staff.”
2 Resolution of the employees of the European Patent Office in Munich (22.02.2018)
3 In its January 2017 study prior to the DG1-DG2 Reorganisation, Boston Consulting Group pointed out that EPO top management had signaled a phase of consolidation after several years of accelerated change and significant growth of production, in line with the recommendations of several other studies (including the 2016 Social Study by pwc, 15.09.2016)
4 Destroying trust – for a long time. (SUEPO The Hague, 05.03.2018)
5 eg the new career system (CA/D 10/14), the DG1/DG2 reorganisation (CA/65/17), and the “reform” of the internal justice system (CA/D 7/17) allowing for easy dismissal for professional incompetence.
6 or are at least in line with international civil service law standards
7 Introducing flexibility in the employment framework (slide show, Elodie Bergot, 05.10.2017)
8 The Tribunal’s judges are appointed on three-year renewable contracts . Note that the ILOAT had several bilateral talks with the EPO administration – a party in the dispute – without informing or inviting representatives of the employees (ILO-AT: 90 years old and in need of repair, 03.05.2017, su17040cp)
9 This feeling has grown after the publication of the second batch of judgments of the 125th ILO session which confirmed the authority of the President to ignore even unanimous recommendations of the Disciplinary Committee
10 JUVE Patent Survey 2016 (https://suepo.org/public/ex17003cpe.pdf, English translation)
11 The EPO’s Vision (III) – Quality (Thorsten Bausch, Kluwer Patent Blog, 05.03.2018)
12 Patent quality has fallen, confirm Euro examiners (theregister, 15.03.2018)
13 EPO-FLIER No. 33 The final straw for patent quality? (www.epostaff4rights.org)
14 EPO-FLIER No. 35 What else is wrong with CA/3/18? (www.epostaff4rights.org)
15 eg during the Budget and Finance Committee (BFC) meeting in October 2017 (see CA/109/17)
16 CSC Report of the 238th meeting of the GAC on 28.02.2012 in Munich: “As reported earlier in our report of the 236th GAC, the so-called “HR Roadmap” talks of “involvement of higher management” in the GAC in 2012, in order to “strengthen” it. Additionally, in a meeting with the staff representation the President declared that if he wants an opinion from his managers he will ask them, but that once a proposal comes to the GAC he expects his nominees to defend it.”

Not much has changed since the above was published. Things have been worryingly calm in the sense that it just doesn’t appear like anything is improving. Some just gave up. The EPO languishes.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

Leave a Comment

You must be logged in to post a comment.

What Else is New


  1. World IP Day, a Propaganda Opportunity for Patent Maximalists, is Becoming More About Feminism

    The annual nonsense which is called "World IP Day" is being put in a dress for no purpose other than giving a moralistic aspect to it -- one that patent maximalists (predominantly male) do not deserve



  2. Britain Has Not Fully Completed Unified Patent Court (UPC) Ratification and It Remains Incompatible With Brexit

    Team Battistelli and Team UPC pretend that UPC has gotten some sort of 'green light', but actually this could not be further from the truth



  3. With Unified Patent Court (UPC) on Its Death Throes, Team UPC Now Resorts to Promoting Pertinent Parts of the Agreement (UPCA)

    The latest writings about the Unitary Patent and agenda related to it, courtesy of the same people, firms and Web sites that spent several years lobbying for the UPC (i.e. for their own wallets)<



  4. Reporting Benoît Battistelli Before He Too 'Pulls a Željko Topić'

    The media is full of EPO-sponsored puff pieces about the EPO (very soon Joff Wild and Battistelli will promote software patents again), so we encourage readers to contact authorities in France and tell them what Battistelli has been doing in (or to) the European Patent Office (EPO)



  5. Links 26/4/2018: KStars 2.9.5, Ubuntu 18.04 LTS, NetBSD 8.0 RC1

    Links for the day



  6. Battistelli Misuses EPO Budget to Saturate the European Media With Puff Pieces About His Event

    The latest examples of 'synthetic' coverage or fluff about Battistelli's expensive event that he cryptically and mysteriously chose to have at his other workplace in Saint-Germain-en-Laye



  7. Battistelli's EPO Continues to Promote Software Patents and Even Pays the Media to Play Along, Impacting Other Continents

    With silly new terms such as "4IR" (the EPO used to say "ICT", "CII", "Industry 4.0" etc.) Team Battistelli is hoping to make software patents look/sound acceptable, honourable and inherently innovative or "revolutionary"



  8. Links 25/4/2018: Ubuntu 18.04 Coming Shortly, Fedora 28 Next Month

    Links for the day



  9. Koch Brothers and Big Oil Could Not Buy the Decisions in Oil States, SAS

    In Oil States Energy Services v Greene’s Energy Group, a case which Koch-funded think tanks meddled in (including those whose panel guests send me threatening legal letters), ends up with dissent from a Koch-connected Justice citing or quoting those very same Koch-funded think tanks



  10. The European Patent Office (EPO) Wastes a Lot of Money on External PR Agencies for Battistelli's 'Heist'

    The EPO's management is once again scattering/throwing EPO budget at PR agencies and media companies (publishers/broadcasters) to disseminate a bunch of puff pieces and virtually ignore the very obvious conflict of interest, which should be a scandal on par with that of FIFA (resulting in the arrest of its boss, Mr. Blatter)



  11. Today's EPO is Not Compatible With the Law and It's Grossly Incompatible With Truth and Justice

    Today, once again, the EPO openly advocates software patents while media promotes loopholes (notably hype waves)



  12. Quick Mention: As Expected, the US Supreme Court Cements PTAB's Role With Trump-Appointed Gorsuch Dissenting

    Oil States has been decided and it's very good news for the Patent Trial and Appeal Board (PTAB); even Conservatives-leaning Justices support PTAB



  13. Links 24/4/2018: Preview of Crostini, Introducing Heptio Gimbal, OPNsense 18.1.6

    Links for the day



  14. Patent Maximalists Step Things Up With Director Andrei Iancu and It's Time for Scientists to Fight Back

    Science and technology don't seem to matter as much as the whims of the patent (litigation) 'industry', at least judging by recent actions taken by Andrei Iancu (following a hearing before the Senate Judiciary Committee)



  15. Mythology About Patents in the East

    Misconceptions (or deliberate propaganda) about patent policy in the east poison the debate and derail a serious, facts-based discussion about it



  16. Patent Trolls Watch: Red River Innovations, Bradium Technologies/General Patent, and Wordlogic

    A quick look at some patent trolls that made the news this Monday; we are still seeing a powerful response to such trolls, whose momentum is slipping owing to the good work of the Patent Trial and Appeal Board (PTAB)



  17. Holding Benoît Battistelli Accountable After the EPO

    The many abuses and offenses committed by Mr. Battistelli whilst he enjoyed diplomatic immunity can and should be brought up as that immunity expires in two months; a good start would be contacting his colleagues, who might not be aware of the full spectrum of his abuses



  18. Links 23/4/2018: Second RC of Linux 4.17 and First RC of Mesa 18.1

    Links for the day



  19. The Good Work of the Patent Trial and Appeal Board (PTAB) and the Latest Attempts to Undermine It

    A week's roundup of news about PTAB, which is eliminating many bad (wrongly-granted) patents and is therefore becoming "enemy number one" to those who got accustomed to blackmailing real (productive) firms with their questionable patents



  20. District Courts' Patent Cases, Including the Eastern District of Texas (EDTX/TXED), in a Nutshell

    A roundup of patent cases in 'low courts' of the United States, where patents are being reasoned about or objected to while patent law firms make a lot of money



  21. The Federal Circuit's (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

    The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)



  22. Patents Roundup: Metaswitch, GENBAND, Susman, Cisco, Konami, High 5 Games, HTC, and Nintendo

    A look at existing legal actions, the application of 35 U.S.C. § 101, and questionable patents that are being pursued on software (algorithms or "software infrastructure")



  23. In Maxon v Funai the High 'Patent Court' (CAFC) Reaffirms Disdain for Software Patents, Which Are Nowadays Harder to Get and Then Defend

    With the wealth of decisions from the Court of Appeals for the Federal Circuit (CAFC) wherein software patents get discarded (Funai being the latest example), the public needs to ask itself whether patent law firms are honest when they make claims about resurgence of software patents by 'pulling a Berkheimer' or coming up with terms like “Berkheimer Effect”



  24. Today's European Patent Office Works for Patent Extremists and for Team UPC Rather Than for Europe or for Innovation

    The International Association for the Protection of Intellectual Property (AIPPI) and other patent maximalists who have nothing to do with Europe, helped by a malicious and rather clueless politician called Benoît Battistelli, are turning the EPO into a patent-printing machine rather than an examination office as envisioned by the EPC (founders) and member states



  25. The EPO is Dying and Those Who Have Killed It Are Becoming Very Rich in the Process

    Following the footsteps of Ron Hovsepian at Novell, Battistelli at the EPO (along with Team Battistelli) may mean the end of the EPO as we know it (or the end altogether); one manager and a cabal of confidants make themselves obscenely rich by basically sacrificing the very organisation they were entrusted to serve



  26. Short: Just Keep Repeating the Lie (“Quality”) Until People Might Believe It

    Battistelli’s patent-printing bureau (EPO without quality control) keeps lying about the quality of patents by repeating the word “quality” a lot of times, including no less than twice in the summary alone



  27. Shelston IP Keeps Pressuring IP Australia to Allow Software Patents and Harm Software Development

    Shelston IP wants exactly the opposite of what's good for Australia; it just wants what's good for itself, yet it habitually pretends to speak for a productive industry (nothing could be further from the truth)



  28. Is Andy Ramer's Departure the End of Cantor Fitzgerald's Patent Trolls-Feeding Operations and Ambitions?

    The managing director of the 'IP' group at Cantor Fitzgerald is leaving, but it does not yet mean that patent trolls will be starved/deprived access to patents



  29. EPO Hoards Billions of Euros (Taken From the Public), Decreases Quality to Get More Money, Reduces Payments to Staff

    The EPO continues to collect money from everyone, distributes bogus/dubious patents that usher patent trolls into Europe (to cost European businesses billions in the long run), and staff of the EPO faces more cuts while EPO management swims in cash and perks



  30. Short: Calling Battistelli's Town (Where He Works) “Force for Innovation” to Justify the Funneling of EPO Funds to It

    How the EPO‘s management ‘explained’ (or sought to rationalise) to staff its opaque decision to send a multi-million, one-day ceremony to Battistelli’s own theatre only weeks before he leaves


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts