07.13.19

European Media Continues to Ignore the EPO Crisis While Law Firms and EPO Management Cover Things Up

Posted in Europe, Patents at 4:20 am by Dr. Roy Schestowitz

PR tactics, including bribery of publishers and threats to bloggers, only sweep or bury these growing problems under a rug

Cat and rug

Summary: The EPO crisis silently deepens because serious problems are lied about, not acknowledged, and the legitimacy of European Patents is greatly diminished, not to mention the EPO’s ability to attract talent

NOTHING has really changed since Battistelli left a year ago. Things are arguably getting worse, albeit silently; it’s all cosmetic. It’s hogwash and PR.

“The EPO has not actually done anything to improve things, except maybe perception.”Staff continues to come under attacks from European Patent Office (EPO) management (remember how António Campinos views "efficiency", notably layoffs and significant salary decreases) and patent quality continues to decrease (which means more software patents, patents on nature and so on).

The EPO has not actually done anything to improve things, except maybe perception. There’s no justice, there’s no quality, laws aren’t being obeyed and the EPC has probably been thrown into a cardboard casket somewhere. There are these “Revised Rules Of Procedure Of The Boards Of Appeal To Come Into Force From 1 January 2020,” as another law firm has just put it. We mentioned this in relation to another law firm and a report (from a publisher associated with law firms) explaining that this is already being criticised by law firms; they know that today’s EPO still besieges judges (won’t listen to them, won’t give them independence) and therefore makes patent justice even harder; oppositions and appeals become harder, more cumbersome, and this means that fake European Patents are easier to get and keep (as long as it remains within the realms of the EPO). To quote the law firm (a loud proponent of patents on life): “The EPO states that the main aims of the revisions are to “increase (i) efficiency, by reducing the number of issues to be treated, (ii) predictability for the parties and (iii) harmonisation”. With regard to point (i), Article 12, paragraphs 4 to 6 of the revised RPBA may make it harder for appealing parties successfully to get new requests, facts, evidence and/or objections admitted during appeal proceedings. Accordingly in cases where it would be advantageous for new requests, facts, evidence and/or objections to be admitted during an appeal, it would be advisable to file the statement of grounds of appeal prior to 1 January 2020 where possible. Presumably also with the intention of increasing efficiency, the revised RPBA allow for an “abridged” decision to be issued under certain circumstances. In particular, according to Article 15, paragraph 7, an abridged decision may be issued if all the parties agree, unless it has been indicated to the Board that a third party or court has a legitimate interest in the decision not being abridged. Further, Article 15, paragraph 8 allows for the Board to issue an abridged decision if it agrees with the finding and reasoning of the department which issued the decision under appeal. There is no requirement for the agreement of the parties in this latter scenario. It will be interesting to see how often Boards decide to issue abridged decisions, particularly in the latter scenario.”

Notice how nothing at all is being done to restore and assure the judges of independence. Nothing. And they’re still in Haar, probably in direct violation of the EPC (it certainly violates it indirectly because the events leading up to it were an act of collective punishment and intimidation).

“Notice how nothing at all is being done to restore and assure the judges of independence. Nothing. And they’re still in Haar, probably in direct violation of the EPC (it certainly violates it indirectly because the events leading up to it were an act of collective punishment and intimidation).”Don’t look at IP Kat for any meaningful discussion of it — something it did more than 2 years ago. There’s nothing there about it except for this ad from Jonathan Pratt. He just boosts the patent extremists from CIPA after CIPA’s head was in that blog: “A shorter post this week, but still full of exciting opportunities! From a conference on the EPO’s Revised Rules of Procedure of the Boards of Appeal to an interesting job listing at the Association of Commercial Television in Europe. [...] The CIPA are running a seminar on the recently approved EPO Revised Rules of Procedure of the Boards of Appeal on 22 July 2019 in London. The programme includes discussions with an attorney perspective, and EPO representatives providing their view from both a Boards of Appeal and a first instance perspective. Details can be found here.”

CIPA. Team UPC. Battistelli's friends. Some ‘objective’ party, eh?

Days ago the EPO wrote: “Staff engagement & a digital transformation are only two of the five strategic areas we will be focusing on in the coming years.”

They always just enumerate a bunch of marketing terms (same as above). This whole thing is ridiculous hogwash even EPO staff is mocking, at times openly ridiculing. Battistelli’s strategy of propaganda “position papers” continues as though nothing changed. Because nothing changes. They just issue “reports” and so-called ‘studies’.

“Battistelli’s strategy of propaganda “position papers” continues as though nothing changed. Because nothing changes. They just issue “reports” and so-called ‘studies’.”“The European Patent Office (EPO) is known for its strict approach to added matter,” Sanam Habib and Maeve O’Flynn (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) wrote some days ago in Lexology. “Accidental” anticipation? We didn’t ‘anticipate’ that…

Do these firms even care that a lot of newly-granted European Patents are invalid/ineligible? No, they still get to charge for application and litigation processes.

As usual, like we said before, the only real signal (rather than noise) in today’s IP Kat comes from the comments. “By not revoking a patent riddled with added matter, the Court is thus giving to the patentee the undue advantage over competitors the Boards of appeal want absolutely to avoid by being strict on added subject-matter,” one person wrote in response to a long and ongoing thread. The full comment:

The two examples given by “Explanation given” are not as exemplary as he would like to see them. In both cases, the Board merely repeated the provisional opinion in its decision, as the applicant did not bother to reply and did not turn up at the scheduled oral proceeding. In T 1537/07, the lack of inventive step was due to non-technical features in the claim, and on top of it the board found a lack of clarity. Thus the Board had no choice to act differently if it wanted to close the case.

The two examples are thus to be taken with a rather large pinch of salt!

I would just agree that we all disagree and leave at that. I have not convinced you, what I accept, but you have not convinced me, what I hope you can accept as well. That British courts have a different view is for me not a problem as it is their right to do so. But I do not see that what British courts are doing is necessary a hallmark for the rest of Europe.

To be honest, what has been said by Kant makes me laugh. So in other words, a patent riddled with added subject-matter can be infringed. Nice to hear for the competitors.

By not revoking a patent riddled with added matter, the Court is thus giving to the patentee the undue advantage over competitors the Boards of appeal want absolutely to avoid by being strict on added subject-matter. And I agree with this stance.

All the promoters of the idea ignore added matter when dealing with novelty and inventive step were speaking for applicants/proprietors. I have not heard anybody representing an opponent agreeing with this.

From now on, silence will be my reply, unless I am provoked to reply.

What we deal with here is a European Patent being thrown out (metaphorically) by the highest British court — a fact which as far as we’ve aware nobody is covering!

“Validation has been too shallow, however, and quality of European Patents is extremely low now…”Miquel Montañá over at Patent Kluwer Blog has just spoken of another European Patent, recalling that “[s]ome years ago, the complainant in this case filed an opposition against patent EP 1.081.284 (“EP ‘284”), alleging lack of inventive activity. The opposition was unsuccessful and the company that had filed the opposition (i.e. the complainant in the case discussed in this blog) then decided to acquire EP ‘284. Some years later, it filed a patent infringement action against a third party. One of the arguments of defence used by the defendant was that the complainant was blatantly contradicting the position taken before the European Patent Office (“EPO”) where, as mentioned, it tried to revoke EP ‘284 for lack of inventive activity when it was owned by another company. In particular, the defendant alleged that the complainant was acting against the doctrine that prevents one from acting against one’s own acts (i.e. estoppel).”

Another new post from the same blog says: “When a European patent is granted and validated, an existing national patent loses its effect only for the invention claimed in the European patent.”

Validation has been too shallow, however, and quality of European Patents is extremely low now

“What we have here is the EPO trying to paint itself as “ethical” by piggybacking young people, who probably don’t know what malicious people simply exploit them for PR.”The EPO has commented about the collapse of patent quality internally. To the outside world, however, it lied about it in a new report. It just has nothing positive to say, so it lies instead. Just before the weekend the EPO exploited “the children” (or “youth”) to distract from its abuses by tweeting some Nellie Simon nonsense (it’s about them indoctrinating youngsters for patent maximalism) and then linking to this totally pointless puff piece (warning: epo.org link) which says: “The EPO yesterday partnered with TEDxYouth@München and engaged in dialogue with young opinion leaders. The Office was able to further the Munich TEDxYouth community’s knowledge of patents, learn what they think about innovation and the role of Intellectual Property rights, as well as gain their views on broader societal issues in relation to technological progress.”

We’ve been critical of TED for over a decade; it’s funded by and exists to serve oligarchs under the guise of “education”. What we have here is the EPO trying to paint itself as “ethical” by piggybacking young people, who probably don’t know what malicious people simply exploit them for PR. And speaking of PR, watch another Nellie Simon tweet which says: “Munich celebrates LGBTQI Pride this weekend, and EPO supports equality in all forms. “Only when everyone at the EPO feels they can bring their authentic self to work, will we succeed.” said Vice-President Nellie Simon, chair of the EPO’s Diversity & Inclusion Advisory Panel.”

“People are certainly aware of the crisis, but law firms and their media work hard to cover it up. They hope that applicants won’t notice; but they do. This is why the number of applications is decreasing, as even JUVE recently pointed out.”She’s included because of nepotism, as a former colleague of Campinos. What we have here is the EPO wrapping itself up in “human rights” while committing crimes and driving its own staff to suicide and depression. How cheap a publicity stunt. All they had to do was post a picture of a flag.

We don’t suppose European media will pay any attention to EPO scandals anymore. Maybe at the start of next week there will be some puff pieces commissioned by the EPO about how it’s all “for the children” and “for tolerance”…

We don’t suppose many people will read comments in IP Kat, especially those posted in a week-old thread. So let’s examine what people are saying about a European Patents getting canned by Britain's highest court.

“If the judgement is not appealed then an Order to revoke the patent will follow,” said this comment.

Re last comment from “Explanation please”. Am I missing something here? Justice Arnold quite clearly concludes at para. 260(ii) that the patent is invalid for added matter. If the judgement is not appealed then an Order to revoke the patent will follow. If the judgment is appealed then the appellate court will have the benefit of a full consideration of the issues before the lower court. There may be a question whether it is efficient for the lower court to consider all matters when it need not necessly do so (in my view it’s helpful to do so), but it is wrong to suggest that the court has in any way offended the EPC.

Further down someone pointed out: “Actually, in German courts (or in opposition proceedings at the DPMA) a patent will be revoked if there is added matter. A patent will not be revoked, if the claim includes a feature that was not disclosed originally but is purely limiting (plus some more conditions). In such a case novelty and obviousness will be decided on the claim WITHOUT the limiting feature, but for infringment the scope will be limited by this feature. So, in such a case a better wording would be ‘non-disclosed limitation’ instead of ‘added matter’. Example: BGH X ZR 43/09 Integrationselement (the patent was declared invalid because of added matter nonetheless)”

Part of the longstanding argument in the comments was about whether or not examiners can be blamed (they need to follow judges at the EPO, who no longer enjoy any independence and are thus beholden to patent maximalists).

Another comment said:

I did not say the court has offended the EPC. My point is that there is an inherent difficulty in deciding validity when at the same time a claim is riddled with added matter. The two are for me not going together. A claim which offends Art 123(2) does not have an effective date, and hence cannot be compared with prior art. If this is done nevertheless, it gives, as I said it before, a proprietor an undue advantage over its competitors.

The idea of no effective date for claim offending Art 123(2) is not an invention of mine. When you look at the Examiner’s report of the EQE, you will not find an assessment of novelty or inventive step for a claim or the variant of a claim offending Art 123(2).

See the second alternative(out of 3) in claim 1 of C2019, the second alternative of claim 5 of C 2018, claim 3/1 in C 2017, claim 2/1 in C 2016.

For claim 4b in C 2015, and for claim 2 in C 2014, the Examiner’s report states expressis verbis that a claim infringing Art 123(2) has no effective date.

Do not tell me that the examiners of the EQE do not know what they are telling, as they have to check whether candidates are fit to practice, and hence should nknow how to handle problems occurring during prosecution, by respecting the case law of the Boards.

Do I have to say more. I do not think so.

MaxDrei then replied

I realise that commenters are growing weary, but I would like to add just one short comment.

Many yeas ago, I was asking the TBA to reverse the OD and then remit the case to the OD to consider the issues under Art 54 and 56. The Board reversed, but declined to remit, with the following reasoning: We do not need to remit because from the OD’s written Decision we already know its opinion on these issues. Think about that! Is that not behaviour (both by the OD and the Board) to be welcomed, commended?

Now, of course, there are cases that ought to be remitted, and cases where an unnecessary remittal adds years to pendency to a case. Seldom do both parties ask the EPO to go as fast as possible. Often one party wants speed, the other delay. Which party shall the EPO reward, and which one shall be punished?

And, of course, there are some cases where it makes little sense for the OD to address ALL issues in dispute in its written Decision. But, equally, there are cases where it is perverse for an OD to stop immediately after considering the first ground of attack on validity. The skill and wisdom lies in distinguishing the one type of case from the other, and then write the Decision that the equities in the case require.

A wise patent judge once said “We can learn a lot from the Americans. Watch carefully what they do. And then make sure not to repeat their mistakes”. In the USA we see a sort of ongoing squabble between the Court of Appeal and the Supreme Court, on issues of patent validity, that has been going on for decades, and which demeans both courts. It would be regrettable if the EPO’s Examiners and Boards of Appeal end up sniping at each other. Better that they should try hard to see the reasonable point of view of the other instance, and work together to retain flexibility, raise procedural efficiency, reduce pendency, and serve the over-riding objective of doing justice between the parties in dispute.

Anybody here disagree with any of that?

“Effectively claiming that the EQEs, which are necessarily time-limited tests of knowledge, should be used as an example of “best practice” before the EPO and the courts is faintly ludicrous,” said this next person:

Effectively claiming that the EQEs, which are necessarily time-limited tests of knowledge, should be used as an example of “best practice” before the EPO and the courts is faintly ludicrous. They are there to provide a way of measuring if candidates are fit to practice – no more, no less.

As so many people have said above, the important thing here is that the courts can function efficiently to deliver justice to the parties. I am just repeating so many above in saying that to ignore the issues of novelty and inventive step on the premise that there is added subject-matter would just prolong the process if a higher court were to disagree about the added subject-matter.

To take this back to your example of Paper C, this is an opposition paper. When taking the paper you are required to formulate all possible attacks on a patent. If there is an added matter attack available, you are expected to use it. You are also expected to submit a lack of novelty or inventive step attack if this is available against the same claim. If you simply stated “there is added matter therefore I cannot attack novelty because there is no effective date from which to consider novelty”, you would not get any marks.

Of course, where the added matter is so blatant as to be unarguable, you may not need to make further attacks, but real life is rarely so straightforward.

So how does one check for novelty with a claim that may contain added matter? You assume it does not include added matter and examine it with the effective it would have were this to be the case – i.e. either the filing date or, if the matter relied upon to provide support is in the priority document, the priority date. I cannot see how such an approach can be considered to be controversial.

There is no “inherent difficulty in deciding validity” if you simply determine what effective date the claim would have if your judgement on added matter is incorrect.

Considering your opinions infallible in matters of law that rely on personal interpretation is just asking for trouble.

The above comments are a lot more meaningful than anything we find in blog posts, PR-like media coverage, and endless lies about/from the EPO. People are certainly aware of the crisis, but law firms and their media work hard to cover it up. They hope that applicants won’t notice; but they do. This is why the number of applications is decreasing, as even JUVE recently pointed out. Future EPO articles at Techrights will likely focus on media’s failure (reluctance/inability/refusal) to cover the scandals. What’s the point of the media if not to inform the public?

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