Bonum Certa Men Certa

Lusting for a Unified Patent Court (UPC) That Respects Invalid European Patents, Including Software Patents

EPO delivery



Summary: Judging by the comments in Kluwer Patent Blog (a Team UPC blog), there's still a dangerous old fantasy about patents without justice, a mere rubber-stamping of dubious monopolies with a kangaroo court to acknowledge them

THE ILLUSION that today's European Patent Office (EPO) helps justice through enforcement (by courts or outside them) is really just an illusion. Courts can see that. The EPO is rogue. It wasn't always like that. António Campinos is just a natural extension of Battistelli, chosen by Battistelli himself.

Yesterday morning we wrote about the EPO lobbying to spread European software patents and later in the day the EPO wrote: "One of our initiatives for the future is to harmonise and simplify patent procedures and processes."

What the EPO's management means to say is that it's exporting fake patents like software patents, even to the USPTO where 35 U.S.C. ۤ 101 more or less forbids such patents (both offices now use similar buzzwords like "AI" to bypass these restrictions).

The EPO's management also wants a UPC for software patents, in effect bypassing the EPC and national laws that explicitly ban software patents. This has thankfully not worked. As mentioned in our daily links (yesterday) and later SUEPO's as well, Thorsten Bausch (Hoffmann Eitle) has this major new rant about delays in German courts' judgments. He did not speak about the UPC, but comments in Kluwer Patent Blog (a Team UPC blog) are diverting all attention to UPC. There's this first comment: "Why such modest demands? EPO Boards of Appeal manage around 10 decisions per Board member each year."

"No doubt lawyers are loving it (this is enriching them), but what about the rest of us (who aren't working in law firms)?"Followed by: "Also the Constitutional Complaint against the UPC takes ages…"

And then also: "In his list of things that take too long in Germany, the author forgot to mention rulings by the Bundesverfassungsgericht…"

Here's another:

The Federal Constitutional Court’s list of “decisions envisaged for this year” is not without a reason nicked “Lügenliste” by the members of the German Rechtsanwaltskammern (German Regional Attorney’s Bar Association).

And that goes without saying, but the UPC/UPA-complaint before the BVerfG has no impact on legal certainty for cases under dispute, and a reference to that would just divert attention away from the main issue, being that most European states have neglected investments into their legal systems.


And one more about the UPC:

On a more controversial note, how about abandoning bifurcation in favour of a more UK-style system: where infringement and validity are considered together but there is a possibility of obtaining a preliminary injunction ahead of a full trial?

As I read the statistics presented above, bifurcation is systematically denying timely access to justice for those parties who merely wish to “clear the way”. So why not ditch it completely?

And why on earth set up the UPC so that it can also develop a fast track for infringement and a slow lane for validity proceedings? (Though it has to be said that, in my view, that is probably the least of the myriad of problems with the UPC … and so perhaps it is no bad thing if the BVerfG waits until the dust settles on Brexit, so that the facts surrounding the legality of the UPC system are known.)


There may be more comments to come (time remains before it's closed) and the very latest one, from "Universal Hobo", speaks of EPO examiners as follows:

“And given that it is easier to comply with applicant’s wishes than to write a decision of refusal, you can guess what this trend means for the average quality of the search and examination process.”

We should also not forget that since April 2018 (and with retroactive (!) effect as from 01 January 2018), the production points awarded to EPO examiners for refusal decisions has been reduced from previously 2 points to now only 1 point.

The previous counting of 2 points per refusal decision was done in recognition of the fact that a refusal decision requires significantly more work (typically a number of Art. 94(3) EPC communications, then summons, holding of oral proceedings, a lengthy decision on possibly multiple auxiliary requests to be written) than an intention to grant.

Hence, since this difference in workload between a proposal to grant and a refusal decision is no longer recognised, there is now absolutely no reason for a sane EPO examiner to burden herself or himself with the hassle of a refusal.

The reason given by senior EPO management (COO HBC) as to why refusals were now recognised identically to intentions to grant, she said that this was to harmonise award point counting with production counting.

When asked whether harmonisation was the relevant factor to consider, when what was at stake was a difference in workload, a silent smile but no answer was given.

When then asked whether the reduced recognition of refusal decisions meant that less effort was now expected to be put into these decisions (such as by providing less reasoning, or no reasoning at all), she refused to answer the question.

Now there is some surprise at management level that a recent staff survey at the EPO has revealed sub-zero confidence levels of the examiners in their senior management…


The above too mentions "harmonisation"; The matter of fact is, the EPO nowadays grants so many fake European Patents that it would be insane to let these have an effect in countries based on judgments in courts external to them (and courts that use a foreign language -- a major disadvantage for small defendants). Earlier this week Unilin issued a statement to say that EPO "confirmed the validity of European patent No. 2 588 311," but the EPO is not an actual court and even judges lack independence there. To quote:

Wielsbeke, Belgium, May 8, 2019-On May 6, the European Patent Office (EPO) confirmed the validity of European patent No. 2 588 311 (EP 311) owned by Unilin BVBA in opposition proceedings filed by Windmöller GmbH; Windmöller will appeal the EPO decision, believing it has strong non-infringement arguments against this patent.


How much are these disputes costing? No doubt lawyers are loving it (this is enriching them), but what about the rest of us (who aren't working in law firms)?

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
 
People Don't Just Kill Themselves (Same for Other Animals)
And recent reports about Boeing whistleblower John Barnett
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day