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03.29.20

Pretending EPO Corruption Stopped Under António Campinos When It is in Fact a Lot Worse in Several Respects/Aspects (Than It Was Under Benoît Battistelli)

Posted in Europe, Law, Patents at 6:51 am by Dr. Roy Schestowitz

Focus on presidential composure/temper misses the point when about 85% of workers want to go on strike

Berlin Alexanderplatz

Summary: Germany’s eagerness to keep Europe’s central patent office in Munich (and to a lesser degree in Berlin) means that politicians in the capital and in Bavaria turn a blind eye to abuses, corruption and even serious crimes; this won’t help Germany’s image in the long run

THE European Patent Office’s (EPO) corruption under António Campinos has been documented here since 2018 and as recently as this month. There’s no concrete reason to believe — only shallow PR ploys to swallow — that he’s better than Battistelli. He’s a continuation of Battistelli and further regression along the very same lines. The agenda or the goal is the same; it has nothing whatsoever to do with innovation or competitiveness.

“The agenda or the goal is the same; it has nothing whatsoever to do with innovation or competitiveness.”In our next post we’ll highlight the latest nonsense from Campinos. It’s about the UPC. SUEPO cited only The Register rather than some law firms on this matter. Rightly so! SUEPO has also, as it promised it would, produced these two English translations [PDF] of German Bundestag discussions [PDF]. We’d like to reprint these in HTML form below (the English version; there’s also French and the originals are both in German). From the document with the questions:

German Bundestag
19th Legislative Period

Printing Material 19/17383
02/25/2020

Brief Inquiry

of members of parliament Roman Müller-Böhm, Stephan Thomae, Grigorios Aggelidis, Renata Alt, Nicole Bauer, Jens Beeck, Dr. Jens Brandenburg (Rhein-Neckar), Sandra Bubendorfer-Licht, Dr. Marco Buschmann, Britta Katharina Dassler, Hartmut Ebbing, Dr. Marcus Faber, Daniel Föst, Otto Fricke, Thomas Hacker, Peter Heidt, Katrin Helling-Plahr, Markus Herbrand, Torsten Herbst, Katja Hessel, Manuel Höferlin, Reinhard Houben, Ulla Ihnen, Olaf in der Beek, Dr. Marcel Klinge, Daniela Kluckert, Pascal Kober, Carina Konrad, Konstantin Kuhle, Ulrich Lechte, Dr. Martin Neumann, Dr. Wieland Schinnenburg, Matthias Seestern-Pauly, Frank Sitta, Dr. Hermann Otto Solms, Bettina Stark-Watzinger, Katja Suding, Michael Theurer, Dr. Florian Toncar, Gerald Ullrich, Sandra Weeser, Nicole Westig, Katharina Willkomm, and the parliamentary party FDP

Position and Procedure of the European Parliament

[Material omitted which the reply reproduced]

We ask the federal government…

[Questions omitted which the reply below quoted]

Berlin, 30th January 2020

Christian Lindner and parliamentary party

Berlin, 30 th January 2020

Christian Lindner and parliamentary party

____
General Production: H. Heenemann GmbH & Co. KG, Printing and Offset Office, Bessemerstraße 83–91, 12103 Berlin,
www.heenemann-druck.de

Distribution: Bundesanzeiger Verlag GmbH, PO Box 10 05 34, 50445 Cologne, Telephone (02 21) 97 66 83 40, Fax (02 21) 97 66 83 44, www.betrifft-gesetze.de
ISSN 0722-8333

To avoid repetition we’ve cut out the introduction and questions above, leaving them in tact below, instead.

The responses (to the questions listed below) are really quite the extraordinary ‘coverup’ with ridiculous excuses and dismissive revisionism. Here it goes:

German Bundestag
19th Legislative Period

Printing Material 19/17809
03/11/2020

Reply
of the federal government

regarding the brief inquiry of member of parliament Roman Müller-Böhm, Stephan Thomae, Grigorios Aggelidis, other members of parliament, and parliamentary party FDP

– Printing Material 19/17383 –

Position and Procedure of the European Parliament

Preliminary Note of the Inquirer

The European Patent Office (EPO) is the executive body of the European Patent Organization (EPOrg) with headquarters in Munich and has the function to check patent applications and to grant European patents. The EPO was created by international agreement and is a multinational institution with the status of a legal entity (https://www.epo.org/ about-us/foundation_de.html). It was agreed that the EPO will have legal immunity and that only the special rights created by the member countries is legally binding for the EPO (cf. Article 8 of the European Patent Agreement). The competence for legally binding decisions rests with the member countries of the organization in the course of a corresponding conference (https://www.epo.org/about-us/governance_de.html).

In the recent past, the EPO was confronted with widespread criticism. This varied from the announced use of financial means, to the quality standards of patents, to the treatment of employees, and to insufficient independence of the complaint’s offices (https://suepo.org/public/ex18052cdp.pdf, p. 4 and 5). A group of 924 employees criticized that the accelerated procedure during the evaluation of patents would be performed at the expense of quality. In their opinion, this is due to the requirements regarding productivity of the employees of the old management. Correspondingly, the international union within the EPO, the Staff Union of the European Patent Office (SUEPO), especially criticized that the introduced scoring system would incentivize the examiners to produce masses of patents with low quality (https://www.heise.de/newsticker/meldung/Europaeisches-Patentamt-Patentpruefer-rebellieren-gegen-Qualitaetsverluste-3997082.html).

Besides that, the Federal Audit Office last year criticized the decision by the EPO that the assets of the office are supposed to be used in a financially speculative way (https://www.wiwo.de/politik/europa/rechnungshof-scharfe-kritik-an-finanzgebaren-des-europaeischen-patentamts/22722052.html). In the view of the Federal Audit Office, this is not necessary and may entail higher risks. Additionally, it is objected that through the investment transactions of the EPO, a “shadow budget” is managed in an international agency with public funds that is not covered by the international constitutive act of the member countries and violates democratic principles
______

The reply was transmitted on behalf of the federal government by writing through the federal ministry of justice and consumer protection dated 10th of March 2020.
Additionally, the printing material contains – in small font – the question text.


(Petra Sorge, Die unheimliche Wette, WirtschaftsWoche vom 22. Juni 2018, S. 35). This continues in a general criticism regarding the state of labor and the legal controls of the EPO (http://www.deutschlandfunk.de/europaeisches-patentamt-deutsches-arbeitsrecht-gilt-hier.724.de.html/?dram:article_id=347579).

Moreover, employee policy was criticized for some time. Employees of the EPO mostly appeared anonymously towards the press, according to their own statements due to fear of sanctions (Petra Sorge, Die unheimliche Wette, WirtschaftsWoche vom 22. Juni 2018, S. 36). Besides that, the right to strike for employees were limited by internal regulations and sick employees were ordered to stay home. Furthermore, measures against critical employees were introduced, such as key logger. There is also talk about an EPO internal investigation unit for employee matters (Petra Sorge, Wo kein Richter …, Cicero vom 3. Mai 2018). The former judge at the Federal Constitutional Court, Dr. Siegfried Broß, says that there are substantial deficits concerning the employment status of the employees. There are employee representatives, but they do not have any constitutive participation rights. Instead, they could only issue recommendations to which the president is not bound (https://www.deutschlandfunk.de/europaeisches-patentamt-deutsches-arbeitsrecht-gilt-hier.724.de.html?dram:article_id=347579).

The Federal Republic of Germany, as member country of the EPO, has a joint responsibility for the EPOrg. With the changed conditions caused by the change within management as of 1st July 2018 (https://www.heise.de/newsticker/meldung/Europaeisches-Patentamt-Chef-Battistelli-tritt-ab-Campinos-tritt-an-3857253.html) and in light of the previous events regarding the EPOrg, according to the inquirer, the question arises, whether and to what extent from the perspective of the federal government, the situation at the EPOrg has changed with the new management.

1. Did the federal government have knowledge about the published accusation in the press of a loss in quality during the patent application examination and the granting of patents as compared to the previous management of the EPO, and how does the federal government assess it?

For the federal government, the quality of the patent assessment by the European Patent Office (EPO) is an important issue. Quality management and quality control must be secured sustainably within the workflow of the EPO. The federal government therefore welcomes the goals, the new president of the EPO has set himself in his strategy plan for 2019 to 2023. The achievement of these goals will be evaluated by the federal government on the basis of annual quality reports performed by the president of the EPO.

2. Did the federal government have knowledge about the published accusations in the press of the “shadow budget” and the financial risk management as compared to the former management of the EPO, and how does the federal government evaluate it?

The cited press reports are known to the federal government. The EPO issues a budget annually, in which also financial investments are considered and explained transparently. A so-called shadow budget does not exist. An appropriate risk management is in place.

Germany had voted against the new investment guideline for the management of cash funds during the 156th meeting of the supervisory board dated 27th/28th of July 2018 on the basis of the statement issued by the Federal Audit Office.


3. According to the federal government, are there deficits in terms of financial management and the treatment of employees at the EPO?

a) If so, what measures would the federal government assume then?
b) If no and from the point of view of the federal government, are the existing rules at the EPO regarding financial management and treatment of employees sufficient?

According to the federal government, there are no deficits as regards financial management at the EPO. The federal government welcomes that the new president of the EPO wants to improve the social climate and treatment of employees, and has introduced initial measures in the course of the strategy plan 2019 to 2023.

4. Did the federal government have knowledge about the published accusation in the press of a violation of rights of employees caused by surveillance and curtailing of labor laws as compared to the former management of the EPO, and how does the federal government assess this?

5. According to the federal government, were there any complaints filed with police with respect to the EPO?

6. Did the federal government have knowledge about the published accusation in the press of employee surveillance by internal investigation groups of the former EPO management, and how does the federal government assess this?

7. Did the federal government have knowledge about the published accusation in the press of a curtailing outsourcing of the complaint’s office under the former EPO management (Petra Sorge, Wo kein Richter …, Cicero vom 3. Mai 2018), and how does the federal government assess this?

Questions 4 to 7 are answered together.

The questions involve confidential disciplinary procedures to which the federal government does not take position. This also applies to the procedures before the internal complaint’s offices.

8. In the view of the federal government, is there a “legal” control that was itself instituted by the EPO, (Petra Sorge, Wo kein Richter …, Cicero vom 3. Mai 2018) which itself ensures an effective legal protection?

9. In the view of the federal government, is the current of the complaint’s offices task as an authority, without being bound to restrictions, sufficiently met?


10. In the view of the federal government, is there a necessity to change the “legal” control system at the EPO?

a) If so, how should it be restructured in the view of the federal government?
b) If no, is it the opinion of the federal government that a legal control at the EPA is sufficient?

Questions 8 to 10 will be answered together.

It is the view of the federal government that an effective legal protection exists against decisions by the EPO. The federal government does not see any need for reform at the moment.

The European Patent Organization (EPOrg) was granted immunity by the national jurisdictions of the member countries as an international organization in the course of its official activity. This corresponds to a normal approach in all international organizations. Consequently, international organizations are not bound to national jurisdictions.

The EPO is a body of the EPOrg (cf. Article 4, Section 2a) of the European Patent Agreement (EPA). The employees of the EPO have the right for an appropriate legal protection before international courts (Administrative court of the International Labor Organization (ILOAT)) (cf. Article 13, Section 1 EPA).

For disputes that affect patent decisions of the EPO, the independent complaint’s offices are responsible. The employees of the complaint’s offices are not bound to instructions during their decision making and are only subjected to the European Patent Agreement (cf. Article 23, Section 3 EPA).

At the 148th meeting of the supervisory body of the European Patent Organization dated 29th/30th of June 2016, the supervisory body approved a comprehensive reform of the complaint’s offices, which further strengthened the autonomy of the complaint’s offices. The reform is effective as of 1st of July 2016.

11. How does the federal government assess the impact of the legal independence of the EPO from national and European law as regards the collaboration of the EPO with the EU member states to solve the criticism towards the EPO?

The immunity granted to the EPA complies with the normal approach at international organizations. It influences the objective collaboration between the EPA and their member states just as little as with other international organizations.

12. Is the federal government in dialogue with the EPO regarding the accusation or several accusations, and if so, how?

a) If so, what results have been achieved so far?
b) If so, what goals does the federal government pursue with a dialogue?

The federal government is in a continuing dialogue with the EPO as regards different issues. Important issues for the federal government are especially patent quality, social climate, and long-term financial stability.


13. In view of the federal government, has the situation as regards the accusation or several accusations improved with the new management?

The federal government especially welcomes the measure that the new EPO president took to improve social climate. This also includes discussions with individual employees as well as regular dialogues with stakeholders. The federal government also supports the intended measures for a further improvement in all other areas as outlined in the strategy plan for 2019 to 2023 by the EPO president.

14. Does the federal government plan to take political as well as legal actions, should the accusations against the EPO continue under the new management, and if so, what?

The federal government has no reason to believe that the accusations against the EPO will continue under the new management.

______

General Production: H. Heenemann GmbH & Co. KG, Printing and Offset Office, Bessemerstraße 83–91, 12103 Berlin, www.heenemann-druck.de

Distribution: Bundesanzeiger Verlag GmbH, PO Box 10 05 34, 50445 Cologne, Telephone (02 21) 97 66 83 40, Fax (02 21) 97 66 83 44, www.betrifft-gesetze.de
ISSN 0722-8333

We don’t plan to — as we lack time for it at this moment — examine each and every fallacy in the reply. There’s a load of whitewashing lies and embellishments. But let’s consider just the past few days’ EPO abuses, highlighting the fact that nothing is really changing and nothing has changed. They want us to believe that a little presidential shuffle — with the previous president’s mate put in power — solved everything.

Let’s focus on technical abuses and deviation from (i.e. violation of) the underlying laws. This is a topic we had covered for a number of years before we started focusing on big EPO scandals (in the middle of 2014). I’ve observed these issues for nearly 20 years, primarily as a coder.

“I’ve observed these issues for nearly 20 years, primarily as a coder.”As recently as days ago the EPO started advertising this thing called “DigitalisationIndex”. Earlier this past they started misusing terms like “digital technologies” quite a lot; we took note of that several times. They’re looking to justify granting illegal software patents (European Patents on algorithms) under the guise of “Digitalisation”.

Their apparently first tweet on this said: “#Digitalisation is triggering patenting growth. What regions do patent applications in this field come from? Check out this analysis of our latest patent statistics to find out: https://bit.ly/DigitalisationIndex … ”

“Hey hi” (AI) and “4IR” are among the latest buzzwords EPO uses to grant illegal patents on abstract ideas (“ICT” and “CII” are considered too old and not sufficiently exciting). The EPO is run by a bunch of people who choose buzzwords over substance, partly because — as their professional background reveals — they’re simply not technical. It corrodes the image of the EU as some of these people come from EU jobs, notably EUIPO, and the EU actively participates in this promotion of patents on algorithms. In other words, EU officials too are increasingly playing a role in the violation of the EPC. German government officials don’t seem to mind as long as that generates activities on German soil. But that’s a problem. Is lawfulness being compromised for raw profits that are temporary and ruinous to one’s credibility? Also, at whose expense does this activity take place? Europe has far more to it than a bunch of patent litigation lawyers. Earlier today I chatted with somebody about the devastating effect of this patent regime on the European automobile industry. That somebody writes many blog posts on this subject and he’s German.

“Is lawfulness being compromised for raw profits that are temporary and ruinous to one’s credibility? Also, at whose expense does this activity take place?”The corresponding new page (warning: epo.org link) is tied to the so-called 'results' and it provides excuses for lowering the bar, notably buzzwords: “As the fourth industrial revolution (4IR) materialises, it’s not just our factories that are getting smarter – it’s our hospitals, homes, appliances, cars, and wearable devices too. In 2019, digital communication became the new leading field of patent applications at the EPO while computer technology was the second fastest growing. These two technical fields are enabling 4IR by providing the tools for turning technical applications in other fields into smart devices. They are also powering further developments in areas such as artificial intelligence (AI) and 5G.”

Who wrote this? A technical person or a marketing professional? Likely the latter.

Speaking of marketing, check out this truly shallow EPO ‘news’ from Friday (warning: epo.org link), accompanied by a tweet with the hashtag #EarthHour (greenwashing).

“You only do this because COVID-19 shut you down,” I responded. “Quit the greenwashing…”

“A lot of actual EPO news gets lost in a sea of puff pieces.”Maybe this “news” was designed to distract from the other “news” published on the same day. It was a Campinos lie, which we’ll deal with in our next post.

A lot of actual EPO news gets lost in a sea of puff pieces. Even 3 weeks later some sites are still reprinting EPO press releases as though they’re “news” or “reporting”. The EPO posted this new page (warning: epo.org link) on the same day (“Notice concerning the electronic authentication of decisions and other documents relevant to the decision-making process”) and promoted it in Twitter, in effect overwhelming the site with enough distraction and obfuscation — a subject we shall deal with in our next post.

The EPO’s “decision-making process” is notoriously bad and it is the subject of several ongoing complaints in the German constitutional court. Not only is oversight lacking; judges and examiners are moreover being bullied, so they cannot uphold the EPC (which was supposed to strictly govern the Office).

“…the EPO is making it harder to appeal. It’s going to get vastly more expensive.”And speaking of decision-making process deficit, Emma Foster (Marks & Clerk) reminds us that, effective next week, the EPO is making it harder to appeal. It’s going to get vastly more expensive. This is what she published just before the weekend: “The European Patent Office (EPO) usually reviews its fee structure every two years. In line with this, the EPO has announced that fees will increase from 1 April 2020. We have summarised the fee increases for many frequently paid fees in the table below, most of which are in the region of 4%.

“However, the appeal fee has increased substantially from €2255 to €2705, which equates to an increase of around 20%. The EPO will continue to offer a reduced appeal fee to a) small and medium-sized enterprises; (b) natural persons; and (c) non-profit organisations, universities or public research organisations (i.e. appellants as defined in Rule 6(4) and (5) EPC). The appeal fee for these appellants will soon be €1955, which represents around a 4% increase to the current fee.”

“Even if the EPO committed mass murder in broad daylight, the government would likely help the Office come up with excuses for it.”Before Campinos raised the costs Battistelli had done the same, especially when it comes to ‘transactions’ (Battistelli might call them “products”) that challenge the Office and can serve to expose the collapse of patent quality.

Sadly, judging by the replies at the top, this doesn’t concern or bother the ruling politicians in Germany. Even if the EPO committed mass murder in broad daylight, the government would likely help the Office come up with excuses for it. Heck, in this age of Coronavirus they might even send complainants to 'quarantine' in Haar. Messengers of truth are “poison kitchen” to the EPO’s management.

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