EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

07.16.19

EPO Looney Tunes – Part 1: Is D-Day Approaching for Battistelli’s “Difficult Legacy”?

Posted in Courtroom, Europe, Patents at 3:05 am by Dr. Roy Schestowitz

A four-part mini series about EBA referral G 2/19

EPO toons

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this. The exclusion of computer programs is a political question. [...] The core task of a computer is to process data. So at least the processing of data is not patentable.”

Ante Wessels, FFII

Summary: European patent justice isn’t working within the premises of EPOnia; a bunch of ‘show trials’ may in fact turn out to be just that — a show

THIS series about the European Patent Office (EPO) comes from someone who prefers to remain anonymous. It is a series by a guest author. This author has a lot of credibility based on a track record of high accuracy.

“EPO Looney Tunes,” the author explains, is “a four-part mini-series exploring Battistelli‘s “difficult legacy” and the Enlarged Board of Appeal referral case G 2/19 which is scheduled for a hearing in the main EPO Isar Building today (Tuesday, 16 July 2019).”

The Enlarged Board of Appeal (EBA) is very important (a decade ago it dealt with questions like software patentability in Europe and I sent it a letter about it). There are similar things in the United States (dealing with 35 U.S.C. § 101 at the Office) and elsewhere in Europe, e.g. in EUIPO (previous home of António Campinos). Yesterday the following comment was left in IP Kat: “I note that I am not permitted to post obscene or defamatory comments, or to post ad hominem (or, I presume, ad feminam) attacks on members of the blog team or other posters. Moreover, the IPKat team will moderate my comments before they are published. This seems perfectly reasonable to me. What I do not understand is that the USPTO should be less privileged in this respect than the IPKat. David T. Keeling (former EUIPO Board of Appeal member, rapporteur in the SCREW YOU case, not rapporteur in the FUCKING HELL case)…”

Assuming that’s really him, it’s funny that he takes note of IP Kat censorship — a subject we explored/revisited at least twice earlier this month. Notice how IP Kat quit covering the attacks on EBA a couple of years ago (after some people had left the blog and the EPO temporarily blocked the whole blog). EBA has since then complained, publicly even, about its lack of independence. Will any of that change any time soon (under Campinos)? Will the EPO change at all? Yesterday the EPO tweeted: “The EPO’s success is based on the expertise of its highly skilled staff.”

“The EPO already drove away all the best staff,” I responded. “So now it can grant loads of fake patents and underpay the staff.”

We also recently noted here that examiners are bound by the decisions (e.g. interpretations of the EPC) of the Boards of Appeal, including EBA. So it’s highly crucial that independence gets restored. Without it, quality of patents will continue to suffer if not fall even further. With that in mind, here comes part 1.


Back in March of this year, JUVE reported on a case which had been referred to the Enlarged Board of Appeal, the highest judicial instance at the EPO, in a move which was said to put Battistelli’s “difficult legacy” to the test.

The “difficult legacy” referred to here was the banishment of the Boards of Appeal to a new premises in Haar, an independent municipality on the outskirts of Munich.

The question as to whether oral proceedings could lawfully be held in Haar was raised by Aachen patent attorney Hans-Dieter Jostarndt, following objections raised by third parties during the granting procedure of EP 2 378 735.

The disputed patent relates to a technology for operating a mobile phone network and it belongs to IPCom, a well-known – some might say “notorious” – patent-holding company or “non-practicing entity”, which is a common euphemism for a patent troll.

One of the leading patent trolls in Germany, IPCom was established by the flamboyant Munich patent attorney, Bernhard Frohwitter, and it lays claim to a portfolio of over 1,200 patents, many of which were acquired from Bosch. It has been active in the business of trying to “shake-down” big telecom companies since 2008 or thereabouts.

In the course of the proceedings in the case of EP 2378 735, Jostarndt requested that an oral hearing scheduled for 25 January should be moved to the seat of the EPO in Munich because “Haar is obviously not intended in the EPC as a place for acts and negotiations.”

The Technical Board of Appeal dealing with the case decided to refer the matter to the Enlarged Board of Appeal.

Oral proceedings are scheduled to be held in the main EPO Isar building on Tuesday, 16 July 2019.

The hearing will be public so anybody who is interested can attend.

One of the questions on the agenda is whether an EPO Appeals Board can lawfully hold oral proceedings in Haar “if the appellant objects to this site as not being in conformity with the EPC and requests that the oral proceedings be held in Munich instead?”

Despite the excitement which the case has generated inside the EPO, observers are cautioning that it may all turn out to be a bit of an anti-climax because the question about Haar’s conformity with the EPC is preceded by two other questions which concern the admissibility of the legal action itself.

Should the Enlarged Board decide that the appeal is inadmissible, then it will not need to consider the “Haar question”.

In that case, the issue of Haar’s conformity with the EPC would remain unresolved and would be likely to fester on in the background until it resurfaces in a future proceedings.

While we are waiting for the Enlarged Board to make up its mind on referral G 2/19, it seems like a good time to take a peek behind the scenes and have a closer look at the background and some of the personalities involved in the case.

The next installment will follow shortly…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. Links 22/8/2019: KDE ISO Image Writer, GNU Parallel ‘Jesper Svarre’

    Links for the day



  2. Guarding and Rescuing the FSF Titanic: A Free (as in Freedom) Library, and Federation of Advocates

    "This library is not just for cultural works, but also for software."



  3. Linux Foundation's Linux.com in 2019: Zero Articles (Nothing Original) and a Terrible, Rookie New Design

    Linux.com has become a curated syndicator of news (edited by one single Microsoft proponent); the site has also eliminated its traditional design in favour of something only 'hipsters' can appreciate



  4. Managing IP as Team UPC's Megaphone and Lobbying Front

    Managing IP is lying on behalf of Team UPC yet again; the site's long history promoting the UPC hasn't ended even when prospects of the UPC are slim to none



  5. No More Rights for EPO Staff?

    The oppression and the crackdown on labour rights in Europe's second-largest institution has deepened to the point where staff is paid as little as is legally possible



  6. Links 22/8/2019: GNOME 3.33.91, Systemd 243 RC2, Cockpit 201, Ubuntu Touch OTA-10, FreeIPMI 1.6.4

    Links for the day



  7. Some Patent Attorneys Dislike Techrights Not Because It's Wrong But Because Software Patents Are Wrong (and Sometimes Illegal)

    Odd rants which misuse common law and ignore alleged Fair Use (and misinterpretation of copyright law, for censorship purposes) would have people believe that we're wrong; but it's more likely that the person in question is jealous, insecure, or offended by our stance on patent scope, which is very much rooted in the law itself (and the views widely held by software developers globally)



  8. Guarding and Rescuing the FSF Titanic: Distro-libre and feature-schema

    "Every time a distro does not suit a user's purposes, and it is less work to adapt the distro on one's own than to affect the distro in any other way, a distro is born."



  9. Links 21/8/2019: Dell's XPS 13, Mesa 19.2 RC1, Librem Update

    Links for the day



  10. Links 21/8/2019: Open Source POWER, Alpine 3.10.2, Netrunner 19.08

    Links for the day



  11. Edward as a Nodder to Team UPC Kool-Aid

    Bristows LLP is at it again and it's getting pathetic, not just dishonest as usual



  12. Guest Post: António Campinos' European Patent Office Redefines Modern Slavery in the Heart of Europe in 2019

    The European Patent Office’s (EPO) President António Campinos — like his predecessor Battistelli — emulates Chinese labour practices



  13. Guarding and Rescuing the FSF Titanic: There is More Than One Iceberg Ahead

    "This strategy is not far from when Microsoft talked about "de-commoditizing protocols" in the late 90s, as part of their plans to control, dominate, and end Open Source and Free software."



  14. EPO Cannot Handle Patent Justice With a Backlog of About 10,000 Cases at the Boards of Appeal

    The EPO's long war on judges and on the law has proven to be costly; it's difficult to pretend that the EPO functions like a first-world legal framework



  15. The European Patent Office Increases Surveillance: Can't Get Food Without Being Spied on

    The infamous "War on Cash" has been 'won' at Europe's second-largest institution, where people's diet can now be monitored and indefinitely retained on the system



  16. To GNU/Linux, the Operating System, GAFAM (Google, Apple, Facebook, Amazon, Microsoft) is Not the Threat. Microsoft is.

    Don't let Microsoft get away with its bogus narration; GNU/Linux is primarily under attack from Microsoft, whereas Software Freedom in general is under attack from many directions



  17. The Free Software Foundation (FSF) Has the Full Support of Techrights

    Our support for the FSF is strong enough that we want to occasionally suggest improvements; there are growing frictions designed to isolate the FSF and cause self-restraint/censorship



  18. Why We Support Phoronix (Whereas Some Others Do Not)

    Some people try to characterise Michael Larabel as the 'bad boy' of Linux even though Michael is probably the hardest working Linux journalist out there



  19. Guarding and Rescuing the FSF Titanic: The Simplest Ways that AI will Change Computing

    "AI is already used to help kill people. We should be cautious, and know that the best rules we come up with (like no doing magic outside the school grounds) won't be followed all the time."



  20. Links 20/8/2019: DragonFlyBSD Developing DSynth

    Links for the day



  21. Guarding and Rescuing the FSF Titanic: Narcissism in The Community

    "Narcissists are drawn to intelligent people. They take great pleasure in attacking, controlling and defeating intelligent people because it makes them feel smarter and more important."



  22. Breaking the Law Has Become the Norm at the European Patent Office

    The European Patent Office’s ongoing practice of destroying critics/whistleblowers and crushing unions, judges, examiners etc. — as well as threats and bribery of the media — ultimately mean a perpetual state of lawlessness that, if it prevails, will let patent trolls raid the European economy and stall innovation



  23. Links 20/8/2019: KMyMoney 5.0.6, Kdenlive 19.08

    Links for the day



  24. Guarding and Rescuing the FSF Titanic: Free Software in Education

    "If everyone learns to code, then everyone gains some understanding of how to code in other languages."



  25. Links 19/8/2019: Another Linux 5.3 RC, OpenSUSE's Richard Brown Steps Down, Slackware Creates Patreon Page, Qt 6 Initiated

    Links for the day



  26. Speaking Truth to Monopolies (or How to Write Guest Posts in Techrights)

    We need to have more articles tackling the passage of all power — especially when it comes to software — to few large monopolies that disregard human rights or actively participate in their abolishment in the digital realm



  27. Guarding and Rescuing the FSF Titanic: Free as in Speech

    "While a new breed of so-called anarchists campaign against expression that even the state allows, people are also foolishly overplaying the relevance of the state to free speech issues -- as if it's not a freedom issue when a project is increasingly thought-policed, because the thought-policing isn't on a state level."



  28. Toxic Culture at Microsoft

    Racism, intolerance, sexism and bullying are rampant at Microsoft; but Microsoft would rather deflect/divert/sidetrack to Google and so-called 'GAFA'



  29. Guarding and Rescuing the FSF Titanic: Introduction

    "The FSF isn't just threatened, it will hit a large iceberg in the future that changes it permanently."



  30. Linux Journal and Linux.com Should Have Been Kept Going

    There's apparently no good explanation for the effective shutdown of Linux Journal and Linux.com; London Trust Media Holdings (LTMH), owner of Linux Journal, saw numbers improving and the Linux Foundation, steward of Linux.com, is loaded with money


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