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01.31.19

Fake Software Patents, Patent Trolls and Assault on Generic Medicine in Europe

Posted in Europe, Patents at 7:55 am by Dr. Roy Schestowitz

Now that the European Patent Convention is effectively abolished (EPO President António Campinos does not obey it) the future is grim

EPO escalation

Summary: The state of the European patent system is starting to resemble that of the United States about a decade ago; the status quo is seriously detrimental to all except lawyers and aggressors (at the expense of public health, science and technology)

THE escalation or the escalating severity of EPO problems isn’t too hard to see; without any sense of shame, for instance, the patent microcosm is promoting illegal software patents (not allowed in Europe) in private (echo chamber event where no dissenting views are permitted/invited). As revealed in their tweets (with photos): “Huge thank you to @Copytwilight, Ana Andrijevic, @MichelJaccard, @bastianbest and @PHeckeler for sharing their views this afternoon at the “AI & Intellectual Property” track @appliedmldays.”

Watchtroll, similarly, promotes software patents ‘dressed up’ as “AI” and even as "Blockchain". “Techniques for Patenting Blockchain in Europe, the United States, China and Japan” is the latest output from this site, which acts more or less as a front for patent trolls.

“This system is systematically discriminatory (against the small).”Europe has attracted quite an influx of such trolls, as measured by the number of cases filed, especially in Germany.

“Trolls in Dusseldorf, the Eastern District of Europe. At least VW is a large company, they can afford litigation, which is not the case for most of us, small companies,” Benjamin Henrion wrote, citing a report from Mathieu Klos about the patent trolls infestation in Europe. The gist of it:

Germany’s largest carmaker Volkswagen faces the next lawsuit from an non-practicing [troll] entity. Dutch company Innovative Foundry Technologies filed an infringement suit against VW, Ford and Texas Instuments at the Regional Court Düsseldorf before Christmas. The patent covers a special chip manufactured by Texas Instruments that VW and Ford install in the infotainment modules of their cars.

There probably would be out-of-court settlements if the targeted companies were smaller. This system is systematically discriminatory (against the small). As we noted earlier this month (see “The EPO’s Low Patent Quality Can Kill the European Software Industry and Kill People Too” and what we wrote yesterday about cancer patients), poor people literally die because of patents like these. Yesterday Selin Sinem Erciyas (Gün + Partners) wrote in IAM (blog of patent trolls) about a Turkish generic company coming under attack from likely bogus European Patents granted by examiners under pressure and in a rush. Now they’re reassessing (belatedly). In her own words:

A Turkish generic company filed an invalidation action against a leading US pharmaceutical originator company in Turkey and requested the invalidation of its patent – a Turkish validation of a European patent granted by the EPO. The opposition proceedings were still pending before the EPO at the filing date of the invalidation action in Turkey. The patent owner subsequently requested a delay of the national proceedings, stating that the patent claims could still be amended during the opposition and appeal proceedings before the EPO.

Well, opposition and appeal proceedings can be slow and overburdened. The number of pending appeals, for example, is said to have skyrocketed to around 10,000. This is insane. Team Battistelli planned to just get rid of these appeal proceedings, replacing the Boards of Appeal (BoA) with the UPC. Tom Lorkin of Dehns (Team UPC) has just remarked on the dependent and afraid BoA trying to determine patent scope while illicitly ruled and intimidated by abusive EPO management, even in gross defiance of the EPC that governs this entire framework. Lorkin mentions T990/96 and T1085/13, which can in turn relate to medicine, too. To quote:

In what may come as a welcome departure from existing practice, an EPO board of appeal in decision T1085/13 has clarified the conditions under which patents can be granted for known compounds at higher grades of purity.

A leading case concerning purity of materials has been T990/96 where it was held that a document disclosing a compound for the first time ordinarily makes the compound available in all desired grades of purity. EPO practice has been to view the earlier disclosure as novelty destroying to a later claim in which the same compound is claimed at a higher purity. To take an example, a document discloses a new dye, which is manufactured in 90% purity. The position based on T990/96 is to assume that that dye can be purified to all levels of purity by conventional methods and so is made available to the public in all desired grades of purity. Consequently, a later application claiming that dye in 95+% purity would lack novelty over the earlier disclosure.

This EPO board of appeal is certainly aware that it enjoys no independence from the rogue management of the Office; so what can be made of its decisions? The EPO boards of appeal generally complain about this repeatedly.

“Who benefit from this? Certainly not Europe.”What we’re seeing more evidence of, over time, is the impact of the Battistelli era; patent trolls, software patents, invalidation of European Patents in courts and lack of access to life-saving medicine. Who benefit from this? Certainly not Europe.

President Campinos Maintains Battistelli’s Abusive Sanctions, EPO Staff Increasingly Losing Faith and Hope in Him

Posted in Europe, Patents at 7:47 am by Dr. Roy Schestowitz

The more things change…

The Clintons, Battistelli and Campinos

Summary: Elisabeth Hardon, Laurent Prunier, Aurélien Pétiaud, and Michael Lund named as examples of EPO injustice; nothing is being done to actually rectify injustice, abuse and corruption (never mind technical problems, e.g. those associated with deterioration of patent quality), so one must conclude that Battistelli and Campinos are “birds of a feather”

THE EPO no longer speaks about patent quality; instead it speaks of “quality of patent services” or something along those lines (that typically means just speed); these semantic tricks are intentional. As some EPO observers have already pointed out, the Office uses equally misleading terms to allude to injustice and corruption (terms like “climate”, “social” and other euphemistic nonsense). This is so typical of the new President. It’s an exercise in PR, nothing else…

“Both insiders and outsiders are coming to grips with the fact that nothing has really changed.”Thankfully, fewer people can still be fooled by this. Both insiders and outsiders are coming to grips with the fact that nothing has really changed.

The latest comments about the European Patent Office (EPO) over in Kluwer Patent Blog (some were mentioned here earlier this week) are revealing. Staff already knows who or what kind of President it’s deal with: Another Battistelli, not an alternative to Battistelli. They break the law routinely and nobody stops them looting the organisation (its budget) because there’s no real oversight. They’re above the law.

Some people wonder why we keep stock of these comments, sometimes even exhaustively. Seeing the level of censorship at sites like Kluwer Patent Blog and IP Kat (it even zapped an entire comments thread — about 40 comments about the incoming President), it’s all about preservation of voices. “Well done Roy,” one reader told us yesterday, “excellent article! By the way, here is another one from IPPro Patents, published this morning.”

EPO insiders habitually get in touch and they want to be heard; they can only be heard anonymously (for fear of punishment) and sites/blogs like Kluwer Patent Blog and IP Kat have made it no secret that they censor comments (they even censored some of mine!). Sometimes the comments get deleted even after they’re published (i.e. it’s not a simple matter of “moderation”). The above-mentioned article comes from “IPPro Magazine” and the latter part of this article, linked to by SUEPO yesterday, explains just how much of a failure the new EPO President António Campinos really is. The corruption and abuse persist. And software patents are being granted in Europe along with other patents banned by courts, the law, EPC etc. Here’s what the staff committee says: (it’s not allowed to speak to staff directly, as Campinos announced new oppressive rules that severely limit communications)

The CSC explained it was interested to hear from other stakeholders and asked to be informed of their contributions to the consultation. It requested that Campinos discuss the input and ideas of the new management team with the CSC, as it would be “in the best interest of the office if staff could also support the strategic plan that will be presented to the administrative council”.

Alongside the open letter, the CSC also sent Campinos its contribution to the strategic plan of the EPO.

The contribution focuses on policies that will be “good for the office and staff from all perspectives”, with a view to restoring the rule of law inside the EPO, contribute to a discussion on the European Patent Organisation’s governance and improve the EPO’s “currently damaged reputation”.

In its contribution, the CSC gave its own analysis of the current situation at the EPO. It said that Campinos has been “mandated to restore social dialogue” at the office and that his “statements of intent and his hands-on approach to addressing problems are promising”, but to date, “little has concretely changed in the office’s way of addressing the concerns of staff on the social front”.

The CSC said its goal is to re-establish the reputation of the EPO as an attractive employer and patent granting authority that is reliably able to consistently deliver patents with a high presumption of validity.

It explained: “Reaching this goal will allow the office to reach comprehensive long-term sustainability—that is, not only financially, but also with regard for the human component.”

“The greatest asset of the EPO is its staff. It is not enough for management to just acknowledge this; they must live it, and not manage solely by judging staff members by unrealistic and inflationary performance targets.”

“Staff members need working conditions allowing them to respect the provisions of the European Patent Convention.”

The CSC continued: “Staff must be motivated by positive measures encouraging them to work at, perform well at, develop at, and stay at the EPO. Staff should not be persecuted, threatened and put under continuous pressure and/or treated under the ‘challenging people’ doctrine.”

“Staff representation is ready to work together with EPO administration in addressing the issues as set out in this paper and to ensure that any further reforms to our working conditions are done in the interest of staff and office alike and are legally sound.”

“Concerned observer,” who habitually leaves comments critical of EPO management, has meanwhile left the following comment:

I find it astonishing that the Member States appear to be more concerned about upholding the EPO’s immunity than they are about the fact that the EPO’s employees are being deprived of fundamental rights afforded to them under EU law.

More astonishing still are the difficulties in identifying a legal mechanism by which the fundamental rights of EPO employees can be upheld. Whilst the complaint of SUEPO to the ECtHR should have succeeded in this aim, it seems that this went nowhere (though there is precious little information on that case, the comments of ECHR President Guido Raimondi indicate that at least he views the immunity of international organisations as being more important than the fundamental human rights of those working for such organisations).

Then there is the Charter of Fundamental Rights of the EU… and this is where things get a little weird. Despite defining FUNDAMENTAL rights, the Charter apparently applies to Member States “only when they are implementing EU law”. That obviously makes things a little tricky when the provisions concerned are national (or, in the case of the EPO, international) laws that do not obviously “read on to” a provision of EU law.

So it seems that, because both the Dutch Supreme Court and the ECtHR appear to prioritize immunity of an international organisation above even fundamental human rights, there is a “loophole” in the legal system in Europe that is being actively defended by the Member States but that is providing the management of organisations such as the EPO with carte blanche to disregard not only the letter but also the spirit all EU and national laws, no matter how fundamental or important. Worse still, in the case of the EPO, even clear breaches of the EPO’s own statute either go unpunished by the AC or are retroactively “rubber stamped”.

I agree with you that this situation is unlikely to change for as long as that lucrative stream of renewal fees keeps flowing to the Member States. Those that effectively provide the funds that keep this all going (ie the EPO staff, who grant the patents that lead to the fees, and the general public, who pay increased prices as a result of more patents of dubious validity being granted) either have no say in the matter or are oblivious to what is going on. With this in mind, it is no wonder that international organisations such as the EPO have been acting in ways that markedly depart from the ideals to which one might hope they would aspire. The absence of any effective legal remedies makes it perfectly possible, perhaps even likely, that international organisations will be captured by “bad actors” that seek only to line their own pockets and that get away with doing so by effectively stuffing the mouths of their overseers with gold. There are simply no disincentives to acting in this way, and no real legal consequences even if one is caught doing so.

So far, so depressing. However, there is one option that might be worth exploring, namely identifying a provision of EU law that “reads on to” activities of the EPO and that might provide a “hook” for national courts to establish whether those activities comply with EU law in the light of (eg Articles 28, 30 and/or 47 of) the CFREU. I, for one, would be very interested to see how the courts would deal with such a case. This is not least because of the obligation under Article 267 TFEU to refer questions regarding the interpretation of EU laws to the Court of Justice … which might just have something to say about Member States of the EU signing up to international organisations that do not comply with even the most basic of provisions of EU law.

The same person later added:

Upon reflection, I should perhaps not be so surprised that the Supreme Court of the Netherlands (a country which benefits financially from hosting many international organisations that rely upon privileges and immunities) and the President of the ECtHR (which is itself an international organisation affording priviliges and immunities, particularly to its President) prize so highly the immunities afforded to international organisations.

Nevertheless, I still find it extremely disturbing how such important judicial bodies, which are supposed to apply the law in an impartial and objective manner, can seemingly allow naked self-interest to sway their views … and to such an extent that the conclusions at which they arrive are manifestly flawed / illogical.

It is of course important to respect judicial decisions, even if one violently disagrees with the court’s conclusions. However, it would take an awful lot to persuade me that there is any semblance of logic in the Dutch Supreme Court’s conclusion that the AT ILO (which only accepts complaints from individuals negatively affected by decisions already in force) provides an adequate remedy for those seeking to rely upon their right to COLLECTIVE bargaining. By the same logic, the availability of medical assistance would be an adequate replacement for a bullet-proof vest!

“Worried about the future,” a less familiar pseudonym (perhaps an EPO insider), said this, asking openly some questions addressed at Campinos:

Please let us not forget the several staff reps and union officials, who had the guts to stand in front Battistelli and his acolytes who violated the rule of law and were abusively sanctioned by Battistelli and not released by Mr Campinos so far

– Mrs Elisabeth Hardon -dismissed – from Munich
– Mr Laurent Prunier – dismissed – from The Hague
– Mr Aurélien Pétiaud – downgraded – from Munich
– Mr Michael Lund – downgraded – from The Hague

https://www.unionsyndicale.eu/usf-lettre-damnistie-oeb/

Everyone would like to believe that you are better than your predecessor Mr Campinos but then why did you not act to redress their situation?

Why Mr Campinos did you keep all top managers responsible for the social mess at their positions where they continue to do damages to both individuals and the EPO as a whole?

Also why did you Mr Campinos keep a career which puts staff under unhealthy pressure whilst contributing directly to demotivate staff and lower the quality of the work done?

Why are you simply doing nothing since your arrival Mr Campinos or worse: why are you (secretly) planning new deteriorations of the work package soon (e.g. deteriorated salary adjustment method, deteriorated pension system etc etc ) without consulting the staff reps and unions ?

This is something we have not heard about (that last bit/paragraph/sentence). If anyone can send us information related to that, we’ll gladly have it published (while securing source identity, as usual). It certainly seems like Campinos is just quietly and ‘politely’ straining the staff even more than Battistelli did. The only difference is the attitude. What will be the final straw? A very high proportion of the staff will be forced to retire very early and even the pension conditions are being rewritten ‘in vitro’, so to speak. They experiment with people and many die or commit suicide. At first, back when Team Battistelli illegally brought firearms and thugs to the Office, corrupt Battistelli went as far as to sanction/steal Elisabeth Hardon’s pension.

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