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06.29.19

EPO Staff, Lawyers and Courts Are Growing Tired of the Debased Patent Office and Administrative Council

Posted in Europe, Patents at 11:58 am by Dr. Roy Schestowitz

They all know they’re being lied to in so-called ‘reports’ and ‘studies’

Skeleton Study/Pile of 'reports' and 'studies'

Summary: The realisation that the EPO isn’t performing well keeps spreading further and the EPO hasn’t evaded scrutiny even from past allies; something has got to change, but diplomatic immunity and lack of oversight from the Administrative Council (paid to turn a blind eye) may mean that in a lot of senses the EPO is already defunct or dead

THE latest daily links contain news about the U.S. Patent and Trademark Office (USPTO) and outcomes from American courts such as the Federal Circuit, sometimes appeals of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). We’ve left out all the rants from Watchtroll because they show borderline lunacy; those are attacks on the government, on judges, and on courts. 35 U.S.C. § 101 opponents are completely losing it. Nothing goes their way anymore. Almost nothing. Even their relatively recent (in Senate about a month ago) stacked ‘hearings’ aren’t having any effect, just as we expected all along, so sites like Watchtroll now lean on the far right, hoping that relatively radical elements can somehow dismantle the courts. We promised to no longer focus on the USPTO and instead focus on the European Patent Office (EPO), where things are a lot worse because António Campinos promotes software patents in Europe, just like Battistelli. As expected, the Administrative Council is absolutely fine with it. Campinos gives away EPO money to keep it that way. We shall get to that in a moment.

“The patent office that used to be about science (rather than piggybacking the reputation of actual scientists in some annual ‘festival’) is turning to marketing and buzzwords.”Longtime readers are aware that half a decade ago EPO management blocked access to Techrights (in all branches) and a year later sent me several threatening letters, realising that blocking staff from reading truthful information wasn’t enough and that it was worth trying to frighten me, too. They later did the same thing to IP Kat and it worked, as we shall note later on in this long article. The sociopaths who run the Office evidently forgot that in a sense they represent Europe as a whole, so these tactics of theirs, which might be expected in a country like China or Russia, damage the EU’s reputation. As a hardcore supporter of the EU myself, these experiences weakened but did not obliterate my support for the EU. I still support the EU (and I oppose Brexit), so the way I look at it, correcting the EPO is part of the effort of repairing the EU and appeasing its worst critics.

I am not an opponent of patents. I am certainly not an opponent of patent examination and I could probably be an examiner myself. I am a strong proponent of good patent examination and strict limits on patent scope. Last weekend we mentioned patents on air and water as examples of bad patents. Such patents would serve almost nobody; they’re outright tyranny or a form societal feudalism (charging people to just breathe or drink water, the element of life).

It has been saddening to see that 5 years down the line and nearly 4,000 articles later the EPO isn’t quite repairing itself. Sure, some people have left and high-profile people like Kongstad have reportedly been fired. But those who replace them aren’t much better. Moreover, the policies remain more or less the same. Patent scope isn’t improving but only getting worse. The patent office that used to be about science (rather than piggybacking the reputation of actual scientists in some annual ‘festival’) is turning to marketing and buzzwords. It’s run by utterly clueless people whose career track record has more connections (nepotism, past employers) than technical substance. “Tribalism” best describes the culture of today’s high-level EPO management. It’s a clique.

A few days ago Isobel Finnie and Joanna Rowley (Haseltine Lake Kempner LLP) wrote about "hey hi", citing the UK-IPO and WIPO alongside the EPO (WIPR amplified them a lot throughout this conference, as did Bristows at IP Kat [1, 2]). To quote what Finnie and Rowley wrote in/through Mondaq:

On 1 February 2019 the UK IPO issued a notice that brings welcome news for biotech innovators wanting to use the services of the UK IPO. Searches on all UK initial patent filings in the biotech sector should be sped up, and for some applicants significant cost savings should be available in connection with subsequent European or PCT applications claiming priority from that UK patent filing.

[...]

Unfortunately, due to backlogs at the UK IPO, applicants in the field of biotech2023nology have had to wait longer than 6 months to receive the UK IPO’s search results. To tackle this backlog and to ensure that the UK IPO can continue to issue search reports quickly, the UK IPO announced on 1 February 2019 that they have signed a co operative searching agreement with the European Patent Office (EPO). Under this agreement, the EPO will perform 200-300 searches per year for UK applications relating to biotech inventions. The agreement will last for at least two years and is based on similar co-operation agreements which already exist between the EPO and other EPC contracting states including Cyprus, Greece, Italy, Latvia, Lithuania, Malta, Monaco and San Marino.

The EPO does not do the job it’s supposed to do (examination) properly, based on its own examiners, who are denied the time (or required capacity) because of corrupt management that’s cheating and faking ‘production’. Why would the UK-IPO want anything to do with this?

“The EPO does not do the job it’s supposed to do (examination) properly, based on its own examiners, who are denied the time (or required capacity) because of corrupt management that’s cheating and faking ‘production’.”A Haseltine Lake Kempner LLP colleague, Kirwin Lee, then wrote about “Blockchain Patentability In Europe And China” (spicing up patent applications with hype waves in order to get illegal software patents). To quote:

As blockchain is increasingly being recognised as a disruptive technology that could revolutionise a wide range of industries including finance, logistics, and data services, it continues to be one of the hottest topics in IP in 2019. Blockchain patenting is rapidly taking off in global economies such as China and the US, and the number of patent filings in this area is expected to grow at an exponential rate in the coming years.

To explore the implications of blockchain for patent applicants and stakeholders, the European Patent Office (EPO) held a blockchain patenting conference on 4 December 2018 at The Hague to discuss topics related to the challenges of searching blockchain and legal issues associated with blockchain, as well as how the EPO and other jurisdictions examine blockchain patent applications.

Having carefully read the above, as well as the IP Kat pieces (two parts from patent maximalists who took over the blog), we regret to say that things only get worse because 1) there’s an attempt to automate examination using inferior and unproven methods (marketed as “hey hi”); 2) qualified and experienced examiners aren’t being valued anymore and 3) abstract software patents are being disguised as “hey hi” or “blockchain” or whatever (many other hype waves and buzzwords). Yesterday in our daily links we showed a large law firm discussing how to twist software patents as “autonomous vehicles”. There are about a dozen such sound bites that the EPO nowadays uses to justify patents on algorithms; it just never uses the term “software patents” and the closest it gets to it is “computer-implemented”. They consciously avoid particular terms. As such…

Meanwhile we keep observing the pushback from European courts (nothing like the UPC because they’re national courts). Here’s Potter Clarkson LLP’s Sheena Linehan on the UK Supreme Court, which is rather strict about patents and has thrown out many European Patents lately. Does the EPO even pay attention to these decisions? Patent value or legal certainty will collapse if this goes on. It happened years ago in the US and as a result of that the number of lawsuits collapsed. Last year the number of granted US patents also decreased.

“Meanwhile we keep observing the pushback from European courts (nothing like the UPC because they’re national courts).”Sadly, the EPO isn’t interested in law, justice, and facts. Months ago the EPO only asked for feedback from patent maximalists (the form lacked an option for members of the public) and then, just before the weekend, it spreads this nonsense in relation to another survey: “Thank you to all who contributed! The European #Patent Register survey reveals a 93% satisfaction rate…”

That’s like a survey among wolves (regarding the rights of sheep). This was from Patent Information News (Issue 2 | 2019) (warning: epo.org link), which was first published about a week ago.

“That’s like a survey among wolves (regarding the rights of sheep).”Then came the so-called “four-year strategic plan”, which we mentioned the other day. The EPO’s plan was promoted by INPI and then retweeted by the EPO (“Le nouveau plan stratégique 2023 de l’ @EPOorg, récemment adopté, comprend 5 objectifs majeurs. Une présentation complète ici”). INPI and the EPO have many overlaps, including in their Twitter accounts. The same is true for EUIPO (for similar reasons).

Max Walters, a person who understands many of these matters, did a good piece about it and it was entitled “Lawyers urge EPO for quality as new plan branded “propaganda”” (even they aren’t buying it). To quote:

Lawyers who have regular dealings with the EPO are sceptical about the office’s four-year strategic plan – given its alleged focus on speed over quality – and call for more clarity over staff relations

The EPO says that granting patents in a timely manner and placing an increased focus on staff engagement will be its major policies for the next four years, though regular users of the system are unconvinced …

“Reportedly,” Kluwer Patent Blog said yesterday, “part of the AC meeting 26 and 27 June 2019 in Munich was dedicated to a discussion of the Staff Engagement Survey carried out by Willis Towers Watson, which was very negative for the EPO management. The communiqué of the AC meeting hasn’t yet been published. That will probably happen soon here.”

A commenter in Kluwer Patent Blog has meanwhile looked at the so-called ‘strategy’ and shared his/her findings:

The EPO’s Strategic Plan makes for grim reading. (https://www.epo.org/about-us/office/strategy.html)

Despite the attempts to obscure the true meaning of objectives with excessive use of “management speak”, certain points stand out even at a glance, as illustrated below.

STATEMENT: “Development plans will gradually increase the capabilities of staff under the new employment framework, by defining a policy to also enhance staff competencies and performance over the first ten years of their employment (five year contract + five year contract), with tailored training and development. Both contract renewal and a permanent employment offer will be subject to the application of transparent and objective criteria, such as individual performance, operational needs and long-term financial sustainability”.
TRANSLATION: In the future, the EPO will offer few, if any permanent contracts to examiners. It will also reduce overheads by minimising the number of experienced (for which read “expensive”) examiners.

STATEMENT: Staff members are represented at the EPO by staff representatives directly elected at local and central levels. In order to facilitate collective bargaining and build consensus, the framework in which the EPO management and these staff representatives interact will be reviewed to ensure efficiency and avoid the duplication of efforts.
TRANSLATION: We will pick a structure for interacting with staff representatives that makes it even harder for collective bargaining to have any perceivable impact upon our policies.

STATEMENT: The topics subject to discussion will be identified before the start of each calendar year to allow for sufficient preparation and increase the likelihood of achieving constructive outcomes that are acceptable to all stakeholders.
TRANSLATION: We want to be able to delay discussion of new policies until those policies have already become firmly established.

STATEMENT: The unions enjoy a significant level of recognition at the Office, which covers freedom of association, the right to call strikes, the right to call for a general assembly that can also be organised on Office premises, and access to communication channels such as in the intranet, noticeboards and leaflet distribution. To formalise the framework of relations between the Office and the unions, a memorandum of understanding will be discussed based on national and international best practices. Among other things, the right to strike will be revisited as part of the discussion.
TRANSLATION: We don’t like strikes and will try to further limit the circumstances under which they can be called.

STATEMENT: Finally, the Office aims to ensure that internal means of redress are a last resort, to avoid a proliferation of proceedings on the same topic, to encourage the withdrawal of appeals which have become irrelevant and to promote respect for the scope of the internal appeals system. The effectiveness of internal mechanisms of redress is an important condition for the Office’s immunity from jurisdiction and its operational independence.
TRANSLATION: We cannot believe that we actually lost some important cases at the ILO. To stop this happening again, we intend to pressure complainants into giving up before the ILO hears their cases.

STATEMENT: As the Office brings its backlog under control, the EPO will be more exposed to variations in demand. This calls for a more dynamic business model to ensure increased productivity and more effective management of incoming work.
Greater adaptability and flexibility among examiners and formalities officers will constitute a major element of this dynamic business model. It will therefore be crucial to identify emerging trends early, so that if a staff member needs to change technical field, proper training can be offered well in advance.
TRANSLATION: Short term contracts will become essential to making our workforce more flexible. Oh, and that old-fashioned idea of ensuring that applicants get their cases examined by someone who might understand the technology involved? Yeah, we’re not really too bothered about that any more. Allocation of examiners will be based more upon who happens to have spare capacity at the time.

I could go on … at great length. But the general message seems to be reduce overheads, pay lip service to quality, continue to turn a deaf ear to both internal and external complaints, and ensure that there are plenty of opportunities for jollies for management (and for tame regulators). Grim reading indeed!

Some of the latest comments here are revealing, yet European media refuses to debunk these lies of the EPO (refuted by the EPO’s own staff). Here’s another: “A step forward after forcing examiners to sit together in open space offices would be to have a lector of novels, like in Cuban cigar factories. Even better, in order to save money by removing the human reader, one could introduce modified radios which can only tune in on approved frequencies (like in North Korea): channel 1: Battistelli speeches, channel 2: Campinos speeches. Oh, we have such great times before us!”

“Some of the latest comments here are revealing, yet European media refuses to debunk these lies of the EPO (refuted by the EPO’s own staff).”Based on coverage from World Intellectual Property Review, it looks like the Battistelli methods are still in place. Will the EPO keep bribing nations and their NPOs (or NPO heads) to play along/participate in the illegal agenda of EPO management? Seems so.

Notice this “catalogue of cooperation projects”:

The European Patent Office (EPO) is to seek closer alignment with its member states, as well as other European and international institutions.

Yesterday, June 27, the EPO set out its Strategic Plan 2023 in which it identified strengthened cooperation with other patent bodies as a key objective.

The report said the EPO would put forward a new “catalogue of cooperation projects” with member states, aimed at simplifying IT infrastructure and promoting the convergence of practices between patent offices.

In the report, the EPO said it would propose a new funding structure for co-operation initiatives with member patent offices, whereby the EPO would provide 80% of the funding for such schemes. The remaining 20%, to be borne by the member states, could take the form of a “contribution in kind”.

[...]

EPO president António Campinos said the plan was a “clear vision of how we want our office to look in the future, and how we plan to achieve it”.

“We intend to be a more adaptable and agile organisation that can support inventors everywhere with improved and more responsive services,” he added.

The vision of the EPO (that its management has) is an illegal one; it involves lots of unqualified examiners, illegal and fake patents, as well as bonuses to those responsible for the corruption (cuts for the rest). To make matters worse, the EPO hopes to bypass courts and judges, in effect making a leapfrogging pipeline for litigation, not innovation.

“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?”

“It makes the EPO come across as an enemy of science. Such an impression would not be incorrect.”This is Marco Schulze (Nightlabs Gmbh) quoted by Benjamin Henrion before the weekend because it was World SME Day. The EPO just doesn’t seem to care about SMEs; instead it exists to serve small- and medium-sized trolls. As we noted some months ago, the EPO made arrangements to collaborate with LESI. No kidding! The EPO is working with front groups of patent trolls and retweeted by EPO before the weekend were these three tweets [1, 2, 3] which congratulate trolls’ agenda. This was retweeted by EPO: “EBTC team attending a training session organised by the EPO @EPOorg and LES @LESIntl on “Succeeding at Technology Commercialisation and Negotiation” on 27th June 2019 in Basel, Switzerland…”

Also retweeted by EPO: “It is often a good idea to shift perspectives to get the full image. @EPOorg and @LESIntl workshop for tech commercialization for #SME .”

Not SMEs but trolls. Why does the EPO make it so obvious that it’s attacking Europe’s interests and liaising with patent trolls of the whole world? Does the EU need an EPO like this? No. It makes the EPO come across as an enemy of science. Such an impression would not be incorrect.

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