10.08.19

The Injustice at the EPO Deepens, From Examination to Oppositions/Appeals and From BoA to Courts (UPC Prospects)

Posted in Europe, Law, Patents at 6:11 am by Dr. Roy Schestowitz

The patent system in Europe has been reduced to a litigation pipeline that breaks the law, besieged by law firms that are science-hostile and self-serving

Large gavel
Will private companies get the gavel, too (‘contractor’ judges)?

Summary: The concept of justice at the EPO has become so ridiculous that it’s rather incredible some people view Unified Patent Court (UPC) prospects as reasonable (putting courts at the hands of private companies such as Serco)

IN OUR latest Daily Links we put some links regarding the U.S. Patent and Trademark Office (USPTO). Not much has happened there except the usual FRAND-pushing, 35 U.S.C. § 101-bashing Iancu and troll-pushing Gilstrap down in Texas. Seeing that it’s the same old tune (more or less), we’d rather focus on EPO affairs, not just because it’s “closer to home” (to me personally) but because of the urgency associated with software patents in Europe, promoted by both António Campinos and his ‘poppa’ Battistelli. They’re also cozying up and liaising with front groups of patent trolls; it’s perfectly clear what their priorities are (whose financial agenda).

“…this is the sort of causality analysis we’ve come to expect from nontechnical EPO leadership that bribes scholars and media for shameless, unaccountable propaganda operations.”The EPO seemingly ceased caring about its reputation or its scientific credibility because there’s nothing left to guard. Together with EUIPO it has been issuing this infamous pile of lies for a number of years (since Battistelli). They have repeatedly cited, on a daily basis for two weeks now, this pile of lies despite many rebuttals and debunkings showing up. Yesterday they wrote: “Our latest study assesses how industries that make intensive use of intellectual property rights contribute to EU economies.”

So do industries that have toilets. That does not in any way mean that the contributions can be attributed to this one thing. But this is the sort of causality analysis we’ve come to expect from nontechnical EPO leadership that bribes scholars and media for shameless, unaccountable propaganda operations. Notice their use of the term “intellectual property rights” — a term that contains at least two lies in it. There’s no such thing as “intellectual property rights” (it’s a lawyers’ propaganda term), so it’s clear whose side the EPO is on. They’re also collaborating with a front group of patent trolls, as advertised as recently as a day ago, together with the term “intellectual property” (IP). This is what they wrote: “Are you interested in informal one-to-one meetings with IP and business experts at our event for #startups and technology business decisionmakers in Dublin?”

“Did you know that the EPO offers free or cheap access to tools and databases for retrieving and analysing its patent data?”
      –EPO
It’s a LES/I event. They’re actively collaborating if not cooperating with thugs or corporate bullies — exactly what it takes to embolden this system’s critics. LESI is fronting for so-called ‘businesses’ whose sole/principal operations are going after real companies with demands of ‘protection money’ (so-called ‘royalties’).

The EPO then said: “Did you know that the EPO offers free or cheap access to tools and databases for retrieving and analysing its patent data?”

But many of these patents are not valid as courts would throw them out. Focus on improving patent quality instead of scuttling the messenger.

The EPO’s oppositions division or EPO Opposition Division as it’s formally called is buried under a growing load of petitions. Haseltine Lake Kempner LLP published some paper with numbers and graphs; the number of oppositions nearly doubled in a very short amount of time, restricting the capacity and thus quality of reassessment like the quotas do examination (everything is being rushed at all levels, limiting the breadth of prior art search, assessment of triviality and so on). As StreetInsider as just shown in this new press release, here we have a European Patent in the domain of pharmaceuticals. This patent withstands scrutiny for a change (albeit not in a court) — not quite the typical outcome these days because challenged ones often turn out to be fake. To quote:

Tonix Pharmaceuticals Holding Corp. (Nasdaq: TNXP) (Tonix or the Company), a clinical-stage biopharmaceutical company, today announced that the European Patent Office’s (EPO) Opposition Division has upheld the Company’s European Patent 2501234B1 with claims covering compositions containing the active ingredient in TNX-102 SL, cyclobenzaprine, for use in treating the development, initiation, consolidation, and perpetuation of posttraumatic stress disorder (PTSD) symptoms following a traumatic event. This patent was originally granted by the EPO in September 2017 and an opposition was filed against the patent in June 2018.

The U.S. counterpart to the European patent is U.S. Patent No. 9,918,948, the validity of which is not being challenged. In addition to these patents, Tonix owns patents covering TNX-102 SL and its use to treat PTSD in the U.S., Europe, and other countries. Together, these patents protect the use of TNX-102 SL in Europe and elsewhere.

They basically say something along the lines of, USPTO is OK with this patent, so EPO needs to accept it as well. The patent was granted under Battistelli and the opposition was filed one month before he left. We don’t know the details of this opposition, but it doesn’t take a genius to see that the Opposition Division is being buried under a growing load of oppositions and rising quotas, imperiling individuals’ ability to assess patents as thoroughly as courts would.

Published at the start of the week through/in Mondaq was this Haseltine Lake Kempner LLP piece on EPO oppositions. There should be hundreds of thousands such oppositions, but the EPO cannot handle these and years ago took steps to suppress them (we covered the methods at the time); it’s a patent-granting machine and any oppositions ‘interferes’ with that machine. Here’s what the article said, citing some words from Isobel Finnie (partly responsible for the above-mentioned study):

The seminar began with an EPO case law update which was given by Isobel Finnie and Robert Margue and covered topics including the admission of Auxiliary Requests into the opposition appeal proceedings, insufficiency and the possible “unusual parameter” practice coming to Oppositions and Opposition Appeals.

[...]

After a short break in the sun, and time to grab a coffee and pastry, we began the second half of the seminar with a talk on “Strategic opportunities and pitfalls in the interplay of Oppositions with UK litigation” from Richard Kempner and Brian Whitehead, two of our patent litigation experts. They provided an overview of stays of proceedings, what happens to remedies/costs if patent is subsequently revoked/amended by the EPO and inconsistent evidence in EPO and national courts.

The final session of the day was a panel discussion on the new Rules of Procedure of the Board of Appeal hosted by Joe Lenthall and with Christopher Rennie-Smith and David Brown. As someone who helped to draft the current Rules of Procedure Christopher has a great insight into this topic and was able to provide thoughtful and interesting information on the subject.

So they then moved on to the Boards of Appeal — the EPO’s courts that cannot quite do their job because they’re oppressed and intimidated. Some time very soon they’re supposed to deal with the question of software patenting (e.g. simulation in software), but they’re not equipped to make up their minds based on the EPC, only the EPO’s zeal (O as in Office, if not Organisation as well). We’re meanwhile becoming ever more accustomed to seeing the EPO framing software patents as the buzzword du jour. Getting illegal software patents from the EPO by masking them as "hey hi" is a popular trick. The EPO keeps linking to tips to that effect (in its tweets). Just call your algorithm “hey hi” and the job will be done by examiners (whose new guidelines strongly insist on allowing a patent on such ‘innovative’ ‘inventive’ ‘invention’). FRKelly’s Paul Keane has in fact just published an article about it and it was promoted in Lexology. Check this:

When building a portfolio of AI patent assets, one should take a strategic approach with the vision that current legislation in the various jurisdictions may change. Further patent case law may evolve to catch up with the AI revolution, where technological advances are often years ahead of legislative change. A long term patent strategy in the AI field must take account of how the IP5 patent offices (USA, EPO, China, Korea, Japan) are currently examining AI patent applications and, more importantly, consider how they may examine AI patent applications in the future. Whether a patent strategy is focused on building a portfolio of AI patent assets for future cross-licensing deals or a bunker for defensive assets; the same approach applies. It is imperative that AI patent applications are carefully drafted to allow different generations of claimed AI inventions to be harvested from a single application when the time is right. The following discussion considers how such a strategy could be implemented at the EPO.

Notice how many times Keane says “hey hi” (8 times in the above paragraph alone); they typically refer to computer, algorithm, or just automation. Not even machine learning algorithms, which are themselves statistics/maths. How about this new EPO tweet about so-called ‘machine translations’ (fancy name for something else) that have no legal legitimacy and no validity whatsoever?

“In this age of social media and instant gratification and an attention span of not more than 10 seconds, is our precious representative democracy (separation of powers, Rule of Law) more or less, sooner or later, doomed to be etched away to nothing?”
      –Anonymous
“EPO lawyer Britta Kley talks about machine translations in grant and opposition proceedings,” the EPO wrote. Those have no legitimacy in a court, so opposition proceedings too ought not rely on the gobbledygook that comes out of them. This is hype and buzzwords at play, in the name of “efficiency”. People tend to believe that one language neatly translates into another without nuance and connotation issues because people who know multiple languages usually know closely related ones (like Italian and German, not Chinese and Arabic). My wife speaks 5 languages and can tell the paradigm shift going from one to another. Brits and Americans (as in US, not Canada) can barely speak more than one language. Automated translations are lousy, misleading and sometimes offensive (not intended, due to errors or loss in translation). How can the EPO seriously pretend that examination decisions and oppositions are to be decided based upon some crap spewed out from Google algorithms? What does that say about application of law? Do some lousy algorithms that chew text now replace judges?

It is quickly becoming rather evident that the EPO is rogue and that it’s granting illegal patents using semantic tricks, much to the chagrin of law firms. Thankfully, as far as we’re aware, the FCC in Germany (Bundesverfassungsgericht) takes note. It can see more or less what’s going on; it would be an epic embarrassment to Germany if the EPO 'franchise' was allowed to extend to the court system. As mentioned by SUEPO and Team UPC, Thorsten Bausch (Hoffmann Eitle) has resumed his complaints about lack of independence in the Boards of Appeal — an issue he has been commenting on for years. He now focuses on what that means to the FCC:

Most importantly, the Bundesverfassungsgericht has so far mostly managed to stay above the political trench warfares and is remarkably little politicized, even though many of its decisions have political implications and repercussions. This may be helped by the peculiar mode on how its judges are appointed, which (in the final stage) requires a 2/3 majority in the Bundestag or Bundesrat (each of which elects 4 judges per Senate; there are two Senates each composed of eight judges). Compare that with the way Supreme Court judges are appointed in the USA with very small partisan majorities, and you see the obvious advantages of a system driven by the desire and need to compromise and balance.

Another thing of which no one would dare accuse the Bundesverfassungsgericht is undue haste with its decisions. The most beloved topic on this blog, i.e. the constitutional complaint against the UPC, has meanwhile aged well over two years and is very unlikely to be decided this year. I would expect that the Bundesverfassungsgericht will first decide on the compatibility of the EAPP (Expanded Asset Purchase Programme) with the Basic Law, as it held oral proceedings about this case in July. Which of the other “big” cases pending before the competent department of Prof. Huber will be next is a matter of conjecture. The Court has a choice between the constitutional complaints against insufficient legal protection against decisions of the EPO Boards of Appeal (four cases pending since 2010 (!), 2013, 2015 and 2016), constitutional complaints against CETA (the free trade agreement between the EU and Canada, pending since 2016), a referral decision by the Administrative Court of Bremen whether the Bremen state law prohibiting the transhipment of nuclear fuel in Bremen ports, is incompatible with Article 71, Article 73 (1) No. 14 of the Basic Law and the principle of federal loyalty (pending since 2015), municipal constitutional complaints whether certain obligations of cities and municipalities enshrined in a federal law are compatible with the right to local self-government guaranteed by the Basic Law (pending since 2012), and, last but not least, Dr. Stjerna’s constitutional complaint against the UPCA which was filed in 2017 and thus is a comparatively recent case, though (the only) one where the Bundesverfassungsgericht asked the President not to sign a ratification law passed by Parliament.

[...]

I am of course aware of Art 13 EPC stipulating that employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, and I have written about the Boards of Appeal and the problem of their independence before. However, even if legal protection by the Administrative Tribunal of the ILO were perfect (which it is not for several practical and legal reasons – in particular the AT-ILO is not an independent instance of fact) and if the Boards of Appeal were indeed completely independent of the Office President (which they are not), there would still be a lacuna, because the AT-ILO only hears cases in labor law, whereas the Boards of Appeal substantially only hear patent cases, with the exception of the Enlarged Board of Appeal, which also has the competence under Art 23 EPC to propose the removal of an Appeal board member from office if there are serious grounds for such removal, but so far the Enlarged Board never made such a proposal. This leaves most areas of law substantially court-less. It would then be for the Administrative Council to exercise its disciplinary authority over senior EPO employees, which it has under Art 11(4) EPC.

However, there are at least two problems with this oversight function of the Administrative Council (AC). The first is that the AC is ill-equipped to actually perform the function of an independent supervisory body. It consists of two envoyees of each of the EPO member states, who are mostly heads of their national patent office and/or ministry officials. To my knowledge, they have very few expert staff of their own and are as such not well suited to independently check e.g. the EPO’s financial accounts independently or form an informed opinion of whether e.g. the move of a part of the office to Haar makes sense from a financial or organisational point of view, or whether HR matters are managed well within the EPO. On top of that, they are also not really independent of the management of the EPO. Quite on the contrary, they tend to elect the EPO President and Vice Presidents from among themselves. While this may be acceptable in a constitutional system that includes independent courts as a control instance, it is very problematic where there is no such independent third power and where members of the AC who want to improve their own financial situation via an attractive position in the EPO management may be lured into not being too critical with the Office.

Let me give you two (of course, completely hypothetical) examples of the difference between a national patent office and the Eponia world. Assume the President of a national patent office received a bill or a fine due to some personal wrongdoing, such as, e.g. misbehaving in the public under the influence of alcohol or other drugs. Assume, furthermore, that this President would then submit the bill to the accounting department of his/her patent office, requesting them to pay it. What would happen? I assume that a President of a national patent office would not get very far with such a request, and if they were, they might encounter pretty serious problems later, if and when the payment is uncovered. In Germany, such a President might even have to face an action for embezzlement and abuse of trust (Sec. 266 DE Penal Code).

To quote one comment:

When one reflects on the immunity vs impunity point urged on us by one commentator here, the current antics of Johnson in London and Trump in Washington DC, the outrageous effrontery of the immediate past-President of the EPO, the spineless behaviour of the AC, and the public opinion pollings that suggest that both Trump and Johnson would get re-elected if they were to stand today for re-election in a General Election, one wonders about the capabilities of ordinary voters in any representative democracy to comprehend even the most simple aspects of what you have written.

In this age of social media and instant gratification and an attention span of not more than 10 seconds, is our precious representative democracy (separation of powers, Rule of Law) more or less, sooner or later, doomed to be etched away to nothing?

“EPO is not responsible in front of a court for its acts,” the subsequent comment said, “this is not compliant with the rule of law principle. This is one of the pending constitutional complaint in Germany, where EPO examiners preferred going to watch the football world cup instead of doing their job.”

“Carl Josefsson explains what is being done to ensure the boards’ independence and says new rules of procedure can help reduce the “untenable” backlog…”
      –Managing IP
They’re actually entitled to holidays. It’s part of their set of rights (except the EPO denies those rights). Surely the higher courts can see that and they can also see that the EPO lacks independence, as this recent case served to show. It’s brought up in the comments and there’s this new interview (this time behind paywall) with Carl Josefsson, whose initial words focused on massive backlogs of cases (that was outside the paywall). Even Carl Josefsson himself does not have independence, so the whole lot is rogue; it’s not the judges’ fault that EPO corruption engulfed the courts, coercing judges who want to keep their job (and not be dragged out of their office at the middle of the day only to face false accusations and years of slander).

“Carl Josefsson explains what is being done to ensure the boards’ independence and says new rules of procedure can help reduce the “untenable” backlog,” says the summary, alluding to over 10,000 impending cases (yes, that number is not a typo!) because no court can deal with such a backlog, especially not when threatened constantly to harm impartiality and intentionally understaffed to make it less potent. From the limited publication:

Carl Josefsson is clear on one thing when we ask about the EPO Boards of Appeal’s new procedural rules: in order to work, they will rely on better case management and a potential increased workload for first instance divisions.

Remember that when this publisher (Managing IP) previously planned to speak to AMBA, i.e. the Boards of Appeal’s representation, it was denied permission from the EPO’s management. So much for separation of powers. What kind of ‘justice’ is it when the subject (or target) of these cases intimidates/silences the judges?

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