05.10.20

Fake Technological ‘Advancement’ (or ‘Efficiencies’): EPO Still Breaking the Law and the Ever-So-Shy Media Refuses to Talk About That

Posted in Europe, Law, Patents at 4:54 am by Dr. Roy Schestowitz

The media, which is staffed by patent maximalists and owned at least partly by litigation/litigating firms, often celebrates the law-breaking

Granting everything seemed like a good idea at the time

Summary: A bunch of webstreams, controlled by private corporations outside Europe, may seem like a worthwhile “compromise” and they serve to show that adherence to law was never the goal, just ad hoc preservation of monopolies and cash cows

THE European Patent Office (EPO) formally likes talking about things like “efficiency” and “innovation”. It also likes to pretend to be at the ‘cutting edge’, even though hard evidence easily refutes such claims. We’ve given many examples over the year. If anyone is a Luddite at the EPO, it is the management, which is not technical (and hardly qualified/experienced at anything, let alone management!).

“If anyone is a Luddite at the EPO, it is the management, which is not technical (and hardly qualified/experienced at anything, let alone management!).”As readers are aware, webstreams aren’t a new thing; I did webstreams way back in the 1990s, i.e. more than two decades ago. There’s nothing inherently innovative about video compression and/or audio compression (and synchronising the two). It’s also known that people behind MP3 (and similar patent traps disguised as ‘standards’) did intentionally complicated and less efficient things just so that they can stockpile more patents on the format, amassing more “royalties”. This is well documented. As for real-time streaming with compression (of multimedia)… nothing too innovative about it either. Low latency and Internet reliability in the “broadband age” made these things a lot simpler in practice. And it’s all software…

Ask coders about it. Many of them have done message-passing programs, whether webstreams or not. There’s nothing intrinsically complicated about that. I did this before. My brother did that (video chat) as a final year Computer Science project a whole decade ago… as an undergraduate. It is very, very old “tech”…

“So, when the EPO claims to be all “innovative” and “modern” with webstreams we should immediately ridicule them.”One might say that it predates computing and goes back to the early days of TV with cable transmission and broadcast over radio waves (with antennas and towers).

So, when the EPO claims to be all “innovative” and “modern” with webstreams we should immediately ridicule them. There are many fine reasons to avoid webstreams for particular things; only days ago the EPO published (warning: epo.org link) “EPO member states discuss co-operation and Covid-19 response at first virtual annual meeting” [sic]

It’s not a meeting, it’s a bloody webstream.

We keep saying this repeatedly. Companies nowadays pretend to have “summits” and “events” and “conferences” or whatever… when all those things really are… well, they’re webstreams from people’s bedrooms and living rooms, with someone recording the streams and uploading footage to some spying (with ads) sites like Google’s YouTube. Hardly novel.

Many companies just lack the guts to admit that their long-running tradition (some event) has ended and an event was canceled. That’s all.

They’re in denial about it. Simple.

“If you call your webstream a “conference” then I might call my home “palace” and Techrights a “news corporation”…”But this post isn’t about the lunacy of webstream as ‘events’… (which typically infer a physical presence, not analogies and connotations).

If you call your webstream a “conference” then I might call my home “palace” and Techrights a “news corporation”…

One curious aspect of webstreams is the sheer number of software patents on them (several different aspects, from packet management/serialisation to data compression), even in Europe, which does not in principle allow software patents. One reader of ours from Finland recalls the actions of a Finnish company called Tuxera. “In contrast,” he wrote to us today, “Tuxera was Microsoft from the beginning and based entirely around proprietary software and the illegal acceptance of software patents in Europe. Their business model was to pretend that software patents are valid in the EU. I remember them spreading their software patent bullshit at a fake conference back around just over 10 years ago. That fake conference even had a stacked panel full of Microsoft partners, pushing software patents.”

The EPO does similar things to promote software patents, which are illegal. Similarly, the USPTO is bypassing 35 U.S.C. § 101 to become little but a patent-granting machine, including shallow and obvious software patents. The media hardly talks about it. Instead, so-called ‘media’ writes about PR fluff, e.g. mere hirings of a single person spun as ‘news’ (new example of it here). There’s also today’s spam (ads) like “Webinar on Artificial Intelligence and Machine Learning” (yes, software patents disguised as something else).

“Why does it not bother anyone out there who’s a “journalist” that there are laws being broken in the name of “the law”?”As we noted a couple of weeks ago, there’s a major scandal involving the EPO’s outsourcing of legal proceedings to Microsoft. This is against the law for a whole number of different reasons.

Does that bother anyone in the media? Apparently not. Actually, only one blog covered it! One! Not two. One.

“New technologies and procedures might become more of a norm in German courtrooms as the country eases its way out of lockdown,” Charlotte Kilpatrick rejoiced some days ago as if some webstreams are decent substitutes for a critical process that must not discriminate on the basis of accessibility, platform, access to the Internet etc.

Why does it not bother anyone out there who’s a “journalist” that there are laws being broken in the name of “the law”?

One new comment in IP Kat got past their moderation police, which suppresses even criticism of António Campinos and Benoît Battistelli. It concludes with: “It is thus once again shown that the president of the EPO and his staff of “counsellors” think they are above the law and can decide in their ivory tower what they think is fit for the EPO and its users.”

Here’s the whole lot:

That oral proceedings can be held by videoconference is technically possible is not at stake. That what is happening in The Netherlands and also in UK is to be welcomed.

What is interesting here is that the possibility of a hearing by video conference in The Netherlands has been decided by the legislator and not by the government.

It gave the provision a legal basis and it should in principle be limited to the time when such hearings are not possible without endangering the health of the participants.

Nothing replaces a face to face contact, and it is to be hoped that by adopting adequate safety measures proper hearings will be possible again.

The president of the EPO wants to establish videoconferences as standard way to hold oral proceedings in examination and in opposition. In opposition it is called a pilot. We all know that what is called pilot at the EPO is there to stay from the onset, unless it is an absolute disaster.

What the president of the EPO has done, boils down as if the Dutch government had taken the decision how to interpret the law and decided unilaterally without even consulting the users. Epi has, for once, protested.

The decision taken by the president is interfering with the Implementing rules of the EPC. These are not to be decided by the president, but by the administrative council, even if they are proposed by him. On the other hand we all know that the tail is wagging the dog.

It is to be expected that any loosing party will appeal such a decision for formal reasons. Having been taken by the legislator such formal reasons will not be opened to parties in The Netherlands. What will be gained if the result of such decisions can be set aside by the boards of appeal of the EPO?

Although Art 12(1,e) RPBA2020 speaks about “minutes of any video or telephone conference with the party or parties”, there is nothing in the rest of the RPBA2020 about video conferences.

Would it thus not be better to coordinate the possibility of holding oral proceedings in form of videoconferences with the Boards of Appeal? At least a coherent system could be established.

It is thus once again shown that the president of the EPO and his staff of “counsellors” think they are above the law and can decide in their ivory tower what they think is fit for the EPO and its users.

Only Kluwer Patent Blog wrote about this (other than us; we don’t count ourselves). Everywhere else this illegal practice is being celebrated!

Who by?

Law firms of course.

“This is becoming so typical and the above merely reaffirms everything we’ve been saying about media coverage regarding patents.”They don’t want “work stoppage”; laws be damned! Take their “business” (court hearings) online.

Marks & Clerk’s Julian Asquith has just conveniently overlooked the fact those EPO proceedings (like oppositions) are not legal when he published this piece (promoted in aggregators for a fee). We saw several more pieces like this one and added these to Daily Links over the past fortnight. To quote Marks & Clerk:

At the European Patent Office (EPO), the term “oral proceedings” is used for occasions on which parties present their arguments verbally. Oral proceedings typically occur at the end of a process, after written submissions. There are three occasions when oral proceedings are used by the EPO, namely during examination of patent applications (before examining divisions), during oppositions to a patent by another party (before opposition divisions), and during appeals (before a board of appeal).

With effect from 2 April 2020 all new oral proceedings before examining divisions will be held by videoconference. With effect from 4 May 2020 oral proceedings before opposition divisions can be held by videoconference with the agreement of the opposition division and with the agreement of all parties. The use of videoconferencing before boards of appeal is possible in theory, but is currently not done in practice. We discuss videoconferencing in each of these three areas separately below.

Not even once does he mention the legal issues with it. Not once!

The same is true about other articles on this subject (we saw almost a dozen in the past 2 weeks alone).

This is becoming so typical and the above merely reaffirms everything we’ve been saying about media coverage regarding patents. Facts don’t seem to matter; only business models…

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