12.07.18

The European Patent Organisation is Like a Private Club and Roland Grossenbacher is Back in It

Posted in Europe, Patents at 6:01 am by Dr. Roy Schestowitz

Roland Grossenbacher cartoon
Roland Grossenbacher's dissent

Summary: In the absence of Benoît Battistelli quality control at the EPO is still not effective; patents are being granted like the sole goal is to increase so-called ‘production’ (or profit), appeals are being subjected to threats from Office management, and external courts (courts that assess patents outside the jurisdiction of the Office/Organisation) are being targeted with a long-sought replacement like the Unified Patent Court, or UPC (Unitary Patent)

TODAY’S European Patent Office (EPO) is the same place it was half a year ago, except António Campinos (Battistelli’s choice) is in charge and his ‘boss’ (also Battistelli’s ‘boss’) will soon be his assistant instead. It’s just about as backwards as it sounds and it’s hardly surprising that patent quality continues to decline. The Office now openly promotes software patents in Europe, knowing that not even judges associated with the Organisation will dare stop this (and they work to replace outside judges too, at least hoping to with the UPC).

Some readers have been in touch with us regarding the Boards of Appeal Committee (BoAC) and the Boards of Appeal of the EPO (BoA). Some important things happened this week and notable among them are aspects we shall cover below as concisely as possible (due to lack of time mostly).

The EPO is expectedly not covering any of the important news. As a decoy from corruption, for instance, the EPO tweeted almost nothing yesterday except: “It was an immense honour to receive the Corporate Art Award® 2018 for international cultural initiatives at the ceremony held within the European Parliament. Thank you!”

We mentioned this puff piece yesterday and its likely intended (albeit subconscious) purpose. Battistelli used to do that quite a lot. We don’t wish to dwell on it; neither should examiners. Also retweeted by the EPO yesterday was this UK-IPO tweet about a CIPA-centric event in London, scheduled for next week. To quote: “We are teaming up with @EPOorg to deliver an online services workshop, making online filing easier to understand. Join us on 13 or 14 Dec at @TheCIPA in #London.”

CIPA is the most prominent lobby of Team UPC and there’s no sign of the UPC ever materialising (another false rumour about decision by year’s end). Citing an interview from September with Kevin Mooney (Team UPC), never mind the court's refutation shortly after that (it responded to an inquiry from JUVE), Team UPC quoted out of the blue: “On DE [German] #UPC constitutional complaint: “The delay of 18 months in reaching a decision is quite astonishing for an English lawyer.” – Kevin Mooney in JUVE Patent interview. https://www.juve-patent.com/news-and-stories/legal-commentary/im-a-pragmatist-there-will-be-a-upc-agreement/ …

They’re just complaining about courts (a constitutional court even!) while trying to push a kangaroo court for patents. Their disdain for justice, law, democracy and even constitutions is rather revealing. All they care about is money in the form of legal bills. Shall they ever get their way, any thought will be patentable and taxed; the courts will not even assess merit of patents and instead act like rubber-stamping tax authorities.

Perhaps timed strategically for the BoA, Doctors Without Borders issued a statement that we wrote about yesterday. “Doctors Without Borders and five organizations have appealed the European Patent Office’s decision upholding Gilead Sciences Inc.’s patent for the hepatitis C drug sofosbuvir, the international nonprofit announced on Wednesday,” Tiffany Hu wrote. On the same day Neha Bakshi and some other blockchain-centric sites relayed the EPO’s latest propaganda for software patents (event about blockchains). “This criterion came into existence on the basis of case law associating the computer implementing inventions,” they said. In the United States, 35 U.S.C. § 101 would invalidate such patents; in Europe the EPC would do the job, but only if it exits the Office and reaches truly independent courts. As happened before…

We must express our sheer disappointment if not disdain for IP Kat (nowadays connected to CIPA and Team UPC). As recently as yesterday it was publishing puff pieces for the EPO’s management (to help the promotion of software patents). That was rather revealing from Frantzeska Papadopoulou, whose blog colleague Rose Hughes wrote that “IPKat ha[d] received breaking news that the Technical Board of Appeal (TBA) yesterday decided that recently amended Rule 28(2) EPC is in conflict with Art. 53(b) EPC as interpreted by the Enlarged Board of Appeal in G 2/12 (Broccoli/Tomato II). Further, according to the Art. 164(2) EPC the Articles prevail, thus rending the R. 28 amendment void.”

A correction was needed. “One correction,” the sole comment said. “Solynta filed observations in support of Syngenta’s position that the rule was incorrect, as did multiple other parties.”

We wrote about this yesterday. We were not exactly surprised to see a Board of Appeal ruling the way EPO management, i.e. patent maximalists, would want. These people lack independence and Campinos has done absolutely nothing to correct this. He doesn’t care. It’s not even on the agenda.

Adam Lacy and Thorsten Bausch have meanwhile written about the patent procedures, taking note of the fact that Roland Grossenbacher now speaks on behalf of the Boards of Appeal Committee (BoAC).

“I thought Roland Grossenbacher had at long last retired, and am therefore to see him donning a new hat,” one comment pointed out. Battistelli's chinchilla is also in the BoAC.

Here’s what Lacy and Bausch (Hoffmann Eitle) wrote yesterday:

As European patent professionals are all too aware, the Boards of Appeal of the EPO (BOA) have a huge amount of power, particularly over the rights of patentees. In EPO opposition proceedings, the BOA have the final say on whether to revoke a patent across all of the EPC contracting states. This does not apply to parties opposing European patents at the EPO, who live to fight another day in the form of national invalidity proceedings if they fail to persuade the BOA to revoke a patent.

In this light, it is with some concern that we attended the User consultation conference on the Rules of Procedure of the Boards of Appeal (RPBA) held by the EPO in Munich yesterday, where the latest draft RPBA was up for discussion.

The conference was opened by Roland Grossenbacher on behalf of the Boards of Appeal Committee (BOAC) and Carl Josefsson, President of the BOA. Justice Colin Birss did a brilliant job to moderate the conference and manage the sometimes critical contributions from the audience, not shying away from sharing his own experiences as a UK judge and former barrister with the audience. Markus Müller gave an excellent presentation on case management aspects under the new RPBA, before it was Mike Harrison’s turn to explain the procedural hardships provided in the new rules to an audience that was not always amused by them. He recognised that he had drawn the short straw with this assignment and valiantly defended the current draft.

It seems to us that the main purpose of the new RPBA is to make proceedings more efficient and thus help the BOA clear their significant backlog. We are sceptical though whether the new RPBA will actually achieve this aim and we are concerned that the main legacy of this draft will likely be that the EPO system will be skewed even more in the favour of opponents, contrary to the principle of “equally fair treatment” for parties to the appeal set out in G 9/91. Thus, while we welcome many of the new rules of procedure and stand behind their general principles and ideas, we would like to consider a few Articles in more detail in the following where we have concerns from a patentee’s perspective.

This “significant backlog” is a subject we covered here before; the last thing EPO management wants is an effective and efficient BoA that serves to highlight sharp decline in patent quality. As one comment then points out (about Auxiliary Requests):

The natural response of patentees to the proposed changes will be to file more Auxiliary Requests, in order that there are sufficient Requests on file at 1st instance to address every possible (win/lose) permutation for all of the objections raised by the opponents, irrespective of the apparent strength of each of those objections. Even with only a small number of objections under each heading, this could give rise to an alarming number of permutations, especially if any of those objections can be addressed in a number of different ways.

Whilst this would be an understandable response on the part of patentees, it will place an increasingly impossible (and expensive) burden on opponents, especially if – as is entirely predictable – it results in huge numbers of ARs being filed at the stage of final written submissions (ie after the patentee is in receipt of the OD’s preliminary opinion). It will also make it increasingly difficult for oral proceedings to be completed in the allotted time frame without depriving parties the opportunity of a fair hearing with regard to each ground of objection for each admissible request.

It therefore stands to reason that there is absolutely no point limiting the patentee’s ability to amend his case at the appeal stage unless and until there is robust case management at 1st instance. The Boards of Appeal may well be independent but that does not mean that they should be free to introduce rules that, by turning a blind eye to structural defects in the 1st instance procedure, systematically deprive parties of their right to be heard.

And more on Auxiliary Requests from a familiar person (who used to comment in IP Kat until they became aggressive with censorship and self-censorship):

As to the sure fire prediction of an obscene proliferation of Auxiliary Requests, early on in the opposition proceedings, one recalls that the more than likely consequence of an unimaginative amendment of the Rules intended to improve speed and efficiency is to render the proceedings more complex, lengthy and inefficient. Recall, for example, the misconceived and misbegotten rule changes to cap the length of time in which the filing of a divisional is permitted, the resulting ridicule and abuse, and the swift setting aside of those rule changes. The Law of Unintended Consequences is all-pervasive.

I suppose an EPO fee to be paid on each and every Auxiliary Request (or after the first fifteen Requests) would require an Intergovernmental Conference to implement. But it might curb the worst excesses of AR proliferation. Consider how Americans, otherwise willing to stump up large amounts of money, baulk at giving the EPO any claims fees at all. Sometimes, it is best to approach public policy objectives obliquely rather than explicitly. By a nudge rather than a prohibition.

Bloggers, one more thing to think about, when whingeing that these new Rules are anti-patentee.

Might this not be the “hidden agenda” behind the rule changes? We live in times where a lot of influential people see each and every patent as an unwanted restraint of trade, so that the sheer numbers of issued patents has to cropped down to a minimum, regardless what inventors have against that public policy objective. Get rid of all “trivial” patents at all costs, they demand. Uphold only those where the contribution to the art is, from the outset, the application as filed on the priority date, self-evident, substantial and clear.

If so, those pushing for implementation of the rule changes will be delighted with this assessment by members of the Hoffmann Eitle firm.

We don’t suppose that the BoA is going away; after all, the UPC/A is pretty much dead and it’s not getting anywhere. But in the absence or lack of such ‘rubber-stamping authority’ (fast track for injunctions, raids and penalties) the EPO’s management is at least hoping to undermine other form of patent quality control. Who will suffer? Europe.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

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

What Else is New


  1. IRC Proceedings: Wednesday, October 28, 2020

    IRC logs for Wednesday, October 28, 2020



  2. Links 28/10/2020: Linux Dropping WiMAX Support, Istio 1.7.4, Ubuntu is “Hirsute Hippo”

    Links for the day



  3. Linux Foundation (Men for Monopolies) Once Again Hijacking Women's (and Minorities') Voices for Public Relations

    Diversity and tolerance are absolutely essential, but those who preach or lecture us about it most loudly (their financial means or privilege enable media reach) set a bad example and are mostly opportunistic hypocrites who perpetuate the status quo



  4. In a State of Flux Due to Maintenance and Improvements

    For the first time since summer of 2019 we're investing time and effort improving the site in a number of ways



  5. Links 28/10/2020: Torvalds on Succession, PyTorch 1.7.0

    Links for the day



  6. [Meme] Stealing the Competition

    After the fall (and fail) of CodePlex Microsoft decided to grab the Linux Foundation and most Git-based projects (through GitHub) — a strategy even Microsoft can learn to love



  7. IRC Proceedings: Tuesday, October 27, 2020

    IRC logs for Tuesday, October 27, 2020



  8. Links 28/10/2020: FreeBSD 12.2, NixOS 20.09 and WordPress 5.6 Beta 2

    Links for the day



  9. Taking Our Efforts to the Next Level in an Increasingly Proprietary and Hostile Web

    Web users are being repressed by mechanisms of mass manipulation, control and restrictions; the Web may not be going away any time soon, but architectural and topological issues need to be overcome (the sooner, the better)



  10. Read Techrights Without a Web Browser

    Any text editor can now be used to read Techrights, owing to a daily bulletin we've set up and will maintain every day



  11. [Meme] Torvalds Assimilated

    People belatedly realise that Microsoft’s plan for Git (and for Linux) isn't for the betterment of those projects but for Microsoft monopoly



  12. Links 27/10/2020: FuguIta 6.8, Fedora 33, Red Hat Satellite 6.8, KDE Plasma 5.20.2 and GStreamer 1.18.1

    Links for the day



  13. Site Changes Ahead of Anniversary

    We’re making some changes to the presentation and function of the site — changes that will become more prominent over the coming days



  14. IRC Proceedings: Monday, October 26, 2020

    IRC logs for Monday, October 26, 2020



  15. Links 26/10/2020: rpminspect 1.2, Open Source Hardware Certification and LibreOffice Conference

    Links for the day



  16. Links 26/10/2020: Debian "Bullseye" Artwork, Fwupd 1.5 Released

    Links for the day



  17. [Meme] Satya Na-DL

    Microsoft has shown its real priorities (just before the weekend when many people might not notice)



  18. Jonathan Wiltshire and Debian, Falsified Harassment Claims, Tiger Computing and GCHQ

    Reprinted with permission from Debian Community News



  19. Links 26/10/2020: Linux 5.10 RC1 and Loongsoon Laptops

    Links for the day



  20. The Downfall of Free Software Leaders (and Their Projects or Missions)

    "Cancel George Orwell, and happy hacking."



  21. IRC Proceedings: Sunday, October 25, 2020

    IRC logs for Sunday, October 25, 2020



  22. Links 25/10/2020: Kodi 18.9, ScummVM Android Love, Cutelyst 2.13

    Links for the day



  23. [Meme] Captain Zemlin and Neil McGovern's Ugly Legacy in GNOME (His Predecessors Work for Microsoft Directly Now)

    The Linux Foundation is already ‘sold’ and Microsoft Tim‘s interview with Neil McGovern, published a few days ago, was rather revealing (comments on the article/interview were also harsh)



  24. How Microsoft is Still Worse Than Google

    "I have decided that we should not publish these extensions. We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage."



  25. 'President Bill Gates' Wants to Punish Not Only Google After Using “Extensions” to the Web to Reinforce Microsoft's Monopoly (Antitrust Violations Are a Microsoft Thing)

    In gross distortion of facts and of history and in a rather incredible fashion (very shameless and insulting) the corporate media tries to paint Bill Gates as an antitrust hero that will save the world from monopolies



  26. Donald Trump Helped Bill Gates Increase His Wealth by More Than 50%, Especially During the Pandemic

    Contrary to ridiculous narratives disseminated by nutty accounts all around the Web, Gates and Trump are no foes but 'partners in crime'



  27. Our 14th Birthday is Coming

    We're turning 14 shortly and we need ideas from readers (things that can be done to mark the event and celebrate 'on-line')



  28. In Spite of IBM's Difficult Past and Particularly Dark History, Under Arvind Krishna’s Leadership It Has Only Shown Signs of Improving

    This winter, 6 months after Arvind Krishna’s tenure as CEO began, we can generally say that things seem to have improved and we look forward to further improvements



  29. Links 25/10/2020: GNU Taler's IETF Milestone, RISC OS 5.28 and New Ubuntu Community Council

    Links for the day



  30. IRC Proceedings: Saturday, October 24, 2020

    IRC logs for Saturday, October 24, 2020


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

Recent Posts