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

07.27.19

IP Kat Used to Blast the EPO for Profound Lack of Justice. Now It’s Just Meowing With the EPO’s Management.

Posted in Courtroom, Europe, Law, Patents at 6:54 am by Dr. Roy Schestowitz

From watchdog to pussycat

Curious Cat

Summary: The European Patent Convention (EPC) has been turned into a Kleenex® tissue and all that the ‘Kats’ (what’s left of them) have to say amounts to a puff piece with some Battistelli photo op

THE largest patent office of Europe has been ruined by Benoît Battistelli. António Campinos is ‘finishing the job’…

Suffice to say, Campinos was wedged or shoehorned by Battistelli into this position. It’s all ‘fixed’. Nepotism and cover-up. The concept of independence or oversight exists only in theory but never in practice.

“Today’s EPO offers only a pretense of justice.”When I was a lot younger I used to hear about the quality of examination at the European Patent Office (EPO) and how strong a background examiners came from (professors and scholars). That was before the lobby for software patents in Europe and back in the days when professors and judges such as Alain Pompidou and Ingo Kober ‘ran the show’. They weren’t perfect, but at least they had respect for science and the rule of law. Right about now there’s a similar problem at the U.S. Patent and Trademark Office (USPTO), whose Director Andrei Iancu openly mocks the law, notably 35 U.S.C. § 101. In our latest daily links we’ve included some new articles to that effect; thankfully the trends at the Federal Circuit carry on (invalidation of abstract patents) and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) continue unabated.

Today’s EPO offers only a pretense of justice. It puts together a panel of judges for ‘trials’ which have become show trials and ‘legal theatre’. We wrote about it earlier this month in relation to the Haar case or the “Haar question” (our coverage of this case was based on an informed source).

About a week ago the EPO quietly published (warning: epo.org link) this page. The EPO did not say anything about it in “news” or in its Twitter account; instead it made lots of noise about “green” or “social” or “ethics” (three separate puff pieces coinciding with this case). To quote:

The Enlarged Board of Appeal today issued opinion G 1/18 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal, and on the consequences of this. The opinion is in response to a referral by the President of the European Patent Office (EPO). The Enlarged Board of Appeal is the highest judicial authority under the European Patent Convention (EPC).

The point of law referred by the President of the EPO was whether an appeal is to be treated as not filed or as inadmissible in cases of a failure to observe the two‑month time limit under Article 108 EPC owing to belated payment of the appeal fee and/or belated filing of notice of appeal. The appeal fee is not reimbursed if an appeal is inadmissible (Rule 103(1) EPC).

Under Article 112(1)(b) EPC, the President of the EPO may refer a point of law to the Enlarged Board of Appeal where two boards of appeal have given different decisions on it. With respect to the point of law in issue here, some boards had held that the appeal was inadmissible and that there were therefore no grounds for reimbursing the appeal fee. However, the prevailing view in the Boards’ case law was rather that the appeal was deemed not to have been filed, and that – since no appeal existed – the appeal fee had been paid without a legal basis and therefore had to be refunded. The Enlarged Board was therefore called on to clarify this point of law and its consequences for the reimbursement of the appeal fee.

This is hogwash and a stunning reminder of what a joke justice at the EPO became. Just before the weekend Rose Hughes (IP Kat) mentioned the above — an outcome we first mentioned several days ago. No other blog appears to have mentioned it (we checked) and the EPC’s demise apparently interests nobody who is in the ‘trade’ of litigation. The EPO’s management just doubles down on its unconstitutional behaviour and gross violation of the law; it refuses to even deal with the question, just as we expected/foresaw. Here is what Hughes wrote just before the weekend:

The referral related to the question of whether, where a notice of appeal is filed after expiry of the time limit for filing an appeal (Article 108 EPC), an appeal to the Boards of Appeal a) is inadmissible or b) should be deemed not to have been filed. The question was referred by outgoing EPO President Benoît Battistelli, just before the end of his term. For a full background to the case see IPKat post here.

Of course today’s ‘Kats’ won’t bother pointing out how monumental a disaster the EPO became. “We await publication of the Enlarged Board of Appeal opinion in full,” Hughes concluded. As do others, but we know who’s responsible for this farce and why. It was predictable given how the panel had been constructed. Watch this comment that says: “The full decision is available here:
https://www.epo.org/law-practice/case-law-appeals/eba/number.html” (warning: epo.org link)

Why did nobody among the ‘Kat’, who had written many articles about the exile to Haar, bother scrutinising this decision? IP Kat ‘staff’ (Jonathan Pratt) wrote this weekly roundup. Hughes is basically pushing Team UPC agenda like SPCs, FRAND and SEP. In Pratt’s words:

Rose also commented on the question relating to SPCs for a second indication of a product that has been referred to the CJEU (C-354/19).

On the theme of SPCs, Rose further summarised the SPC manufacturing and stockpiling waiver (amending Regulation (EC) No 469/2009) that came into force on 1 July 2019. Controversially, the legislation provides a waiver not only for the manufacture of generics and biosimilars for export, but also provides a waiver for stockpiling for day-1 release following expiry of an SPC.

Finally, Rose updated us on the latest step in the FRAND/SEP saga with the UK High Court decision on the validity of Conversant’s patent for 3G mobile phone technology. Mr Justice Arnold found that Conversant’s patent is essential and infringed by Huawei and ZTE, but invalid for added matter: Conversant v Huawei [2019] EWHC 1687 (Pat).

The interests that nowadays drive these ‘Kats’ are disturbing. It used to be like a watchdog (or cat), but now it’s like a litigators’ lobby, very much like IAM (almost the same at times, with literal litigators as bloggers).

Hughes soon (less than two hours later) proceeded to CIPA ‘ads’ for “Rules of Procedure of the Board of Appeal” (which lack independence). It was entitled “Event Report: CIPA seminar on the revised Rules of Procedure of the Board of Appeal” (an ‘event’ mentioned here before it took place because of the sheer bias).

CIPA is a pack of patent maximalists, Battistelli allies (almost a 'collusion'), and Team UPC nuts who intentionally promote falsehoods and lie about businesses in Britain in order to extract money from these businesses (in the form of legal fees). Kluwer Patent Blog and other prominent blogs about patents have not yet said a thing about the Haar decision; why not? Are they embarrassed? Do they believe it’s not worthy of a report? Why has the EPO itself kept quiet about it?

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. GitHub is a Dagger Inside Free/Open Source Software (FOSS); This is Why Microsoft Bought It

    A year later it seems pretty evident that Microsoft doesn’t like FOSS but is merely trying to control it, e.g. by buying millions of FOSS projects/repositories at the platform level (the above is what the Linux Foundation‘s Jim Zemlin said to Microsoft at their event while antitrust regulators were still assessing the proposed takeover)



  2. Microsoft Grows Within and Eats You From the Inside

    Microsoft entryism and other subversive tactics continue to threaten and sometimes successfully undermine the competition; Microsoft is nowadays doing that to core projects in the Free/Open Source software world



  3. Links 18/8/2019: New KNOPPIX and Emmabuntus Released

    Links for the day



  4. Links 17/8/2019: Unigine 2.9 and Git 2.23

    Links for the day



  5. Computer-Generated Patent Applications Show That Patents and Innovations Are Very Different Things

    The 'cheapening' of the concept of 'inventor' (or 'invention') undermines the whole foundation/basis of the patent system and deep inside patent law firms know it



  6. Concerns About IBM's Commitment to OpenSource.com After the Fall of Linux.com and Linux Journal

    The Web site OpenSource.com is over two decades old; in its current form it's about a decade old and it contains plenty of good articles, but will IBM think so too and, if so, will investment in the site carry on?



  7. Electronic Frontier Foundation Makes a Mistake by Giving Award to Microsoft Surveillance Person

    At age 30 (almost) the Electronic Frontier Foundation still campaigns for privacy; so why does it grant awards to enemies of privacy?



  8. Caturdays and Sundays at Techrights Will Get Busier

    Our plan to spend the weekends writing more articles about Software Freedom; it seems like a high-priority issue



  9. Why Techrights Doesn't Do Social Control Media

    Being managed and censored by platform owners (sometimes their shareholders) isn’t an alluring proposition when a site challenges conformist norms and the status quo; Techrights belongs in a platform of its own



  10. Patent Prosecution Highways and Examination Highways Are Dooming the EPO

    Speed is not a measure of quality; but today's EPO is just trying to get as much money as possible, as fast as possible (before the whole thing implodes)



  11. Software Patents Won't Come Back Just Because They're (Re)Framed/Branded as "HEY HI" (AI)

    The pattern we've been observing in recent years is, patent applicants and law firms simply rewrite applications to make these seem patent-eligible on the surface (owing to deliberate deception) and patent offices facilitate these loopholes in order to fake 'growth'



  12. IP Kat Pays the Price for Being a Megaphone of Team UPC

    The typical or the usual suspects speak out about the so-called 'prospects' (with delusions of inevitability) of the Unified Patent Court Agreement, neglecting to account for their own longterm credibility



  13. Links 17/8/2019: Wine 4.14 is Out, Debian Celebrates 26 years

    Links for the day



  14. Nothing Says 'New' Microsoft Like Microsoft Component Firmware Update (More Hardware Lock-in)

    Vicious old Microsoft is still trying to make life very hard for GNU/Linux, especially in the OEM channel/s, but we're somehow supposed to think that "Microsoft loves Linux"



  15. Bill Gates and His Special Relationship With Jeffrey Epstein Still Stirring Speculations

    Love of the "children" has long been a controversial subject for Microsoft; can Bill Gates and his connections to Jeffrey Epstein unearth some unsavoury secrets?



  16. Links 16/8/2019: Kdevops and QEMU 4.1

    Links for the day



  17. The EPO's War on the Convention on the Grant of European Patents 2000 (EPC 2000), Not Just Brexit, Kills the Unitary Patent (UP/UPC) and Dooms Justice

    Team UPC continues to ignore the utter failures that have led to lawlessness at the EPO, attributing the demise of the Unified Patent Court (UPC) to Brexit alone and pretending that it's not even a problem



  18. Links 15/8/2019: GNOME's Birthday, LLVM 9.0 RC2

    Links for the day



  19. 'Foundation' Hype Spreads in China

    Nonprofits seem to have become more of a business loophole than a charitable endeavour; the problem is, this erodes confidence in legitimate Free software and good causes



  20. Links Are Not Endorsements

    If the only alternative is to say nothing and link to nothing, then we have a problem; a lot of people still assume that because someone links to something it therefore implies agreement and consent



  21. The Myth of 'Professionalism'

    Perception of professionalism, a vehicle or a motivation for making Linux more 'corporate-friendly' (i.e. owned by corporations), is a growing threat to Software Freedom inside Linux, as well as freedom of speech and many other things



  22. Links 14/8/2019: Best Chromebooks, EPEL 8.0, LibreOffice 6.2.6

    Links for the day



  23. Being in Favour of Free/Libre Open Source Software Means Rejecting Software Patents

    Those who believe in Software Freedom cannot at the same time believe that software patents are desirable; we've sadly come to a point where many companies that dominate so-called 'Open Source' groups actively lobby for such patents, in effect betraying the community they claim to be a part of



  24. Links 14/8/2019: Apache Evaluated, HardenedBSD Has New Release

    Links for the day



  25. Planet Python is Being Overrun by Microsoft, Just Like PyCon and Python in General

    Microsoft is perturbing the Free/Open Source software (FOSS) world from the inside, promoting Microsoft's most malicious proprietary software from within that world while taking positions of power in powerful FOSS projects



  26. Coming Soon: The Innards of the Eric Lundgren Case That Microsoft is Desperate to Hide or Spin (by Defaming Lundgren)

    Microsoft is rather stressed about Eric Lundgren coming out of prison and telling how Microsoft put him there; right now Microsoft is mostly name-calling while seeking to control public dialogues



  27. Wrong Person in Charge of the Linux Foundation (and in Charge of Linus Torvalds)

    There are several glaring issues when it comes to the leadership of Linux's steward; for one thing, it lacks actual background in... Linux



  28. 2019 Tech Glossary

    This clavis refers to what the de facto definition may be, based on how (and when) media uses the words nowadays



  29. The Silence of the Media Lamb

    There are reasons that are perfectly legitimate to criticise media which is unable and more so unwilling to cover particular scandals for fear that coverage can be detrimental to the media's owners and sponsors



  30. LINUX.COM Managed by Apple’s MacOS Users, Open Source Managed and Covered by People Who Reject Open Source

    The narratives are being hijacked; people who we're supposed to assume speak for Linux and for Open Source support neither of these things; they're only in it for the 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