CAFCA (or Kafka) won’t save bad patents from their inevitable demise, as the boards of appeal in the US grow stronger, whereas in the EPO (Eponia) they grow weaker and increasingly understaffed, lacking independence, and too expensive to be reachable
Summary: The Court of Appeals for the Federal Circuit (CAFC), i.e. the court system, has become the last resort of serial litigators, as the PTAB gets in their way more and more often following AIA and Alice
THE quality of patents enshrined or ‘blessed’ by the USPTO must improve in lieu with high courts’ decisions, e.g. Alice (2014). Otherwise the applicants with their newly-granted patents will simply lack confidence in their patents and will be too reluctant to pursue patent licensing, litigation. etc. Patents are only worth anything if there is sufficient evidence to back claims of novelty and non-triviality. Otherwise, these patents are only useful for trolls (preying in cash-limited businesses and pursuing out-of-court settlements en masse). Patents were originally conceived for the purpose of publication and dissemination of knowledge, but nowadays nobody with a clue will look into them for insight because that can lead to wilfulness in infringement (i.e. higher damages). Some patent professionals at very large companies have said so explicitly and publicly.
Last year and earlier this year, the appeals board at the US (PTAB) eliminated a very large number patents. This has had a profound effect not only on the patents directly affected; companies and patent trolls found out that even if they don’t sue with a patent but merely strut around and pursue ‘protection money’ they can have their patents spontaneously eliminated (shortly after petition/s for review). Suffice to say, patent maximalists and apologists of patent trolls were upset about it; in some cases CAFC was chased to rescue them from the justice of the board, after they had claimed injustice. This merely wasted CAFC’s time (and limited resources) as CAFC usually did nothing to oppose the boards’ decisions; it barely even bothered looking into it.
Another CAFC case regarding patents reviewed by PTAB made some headlines last week. As Patently-O put it:
In an important obviousness decision, the Federal Circuit has reversed the PTAB IPR decision – holding that the PTAB failed to sufficiently explain its ruling that a person having ordinary skill in the art (PHOSITA) would have been motivated to combine the prior art teachings to create the patented invention. Although expressing its intent to follow KSR, the court here comes closer to trodding upon that (oft maligned) precedent.
The case involves an Inter Partes Review (IPR) challenge of NuVasive’s spinal fusion implant patent (U.S. Patent No. 8,361,156). The claims require that the implants include, inter alia, radiopaque markers on the medial plane. The PTAB found the claims invalid as obvious based upon a collection of prior art references related to spinal fusion.
“Federal Circuit vacates PTAB decision on NuVasive patent” was the headline of another article about this case. To quote:
The US Court of Appeals for the Federal Circuit has vacated and remanded a patent suit which NuVasive had appealed against after having patent claims invalidated.
The decision from yesterday, December 7, followed an appeal from the US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB), which held that certain claims of US patent number 8,361,156 are invalid as obvious.
NuVasive is the owner of the ‘156 patent, which relates to a “System and method for spinal fusion comprising a spinal fusion implant of non-bone construction releasably coupled to an insertion instrument dimensioned to introduce the spinal fusion implant into any of a variety of spinal target sites”.
This patent does not involve software, but it has an impact on various future PTAB cases, many of which do involve software. Any Inter Partes Review (IPR) can end up in the CAFC’s queue/desk, so this has broader ramifications, hence the media coverage. Patently-O‘s Dennis Crouch has meanwhile been asking about Ex Parte, not IPR: “Have you read any great writing on the difference between the process of judging a contested case vs an uncontested (or ex parte) case?”
These things are worth keeping track of as they generally define the level of certainty associated with patent lawsuits (or other forms of patent assertion). Michael Loney, writing for MIP from New York, shows that the number of PTAB filings is roughly steady compared to last year, in terms of petitions files. “This year is still below the record highs of 2015,” he notes (by a small margin), “but it has got closer as the year has progressed. The monthly average for the whole of 2015 was 149.8 petitions filed. So far this year the monthly average is 145.6.”
That’s just an average difference of 4 petitions per month. In other words, PTAB isn’t going away. Compare that to the massive year-to-year difference when it comes to patent litigation in the US — a subject covered here on numerous occasions before. It sure sounds promising and we certainly hope that patent disputes will, over time, be brought before PTAB (cheaper to both parties) rather than courts. It’s certainly not good for patent lawyers, but then again, what were they ever good for if not just themselves? █
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The history of personal attacks on Justices shows that such shameful resistance tactics are to be expected from the patent microcosm
Justice Breyer was pro-Alice or in favour of what’s now known as the Alice test that eliminates many software patents
Summary: In an important upcoming patent case, gross abuse of patent laws for the support of dubious business models can finally be tackled
As we noted here the other day, a big decision on patents is afoot. Great printer manufacturers heist (monopoly on toner/cartridges) can be stopped by the Supremes, but the implications go beyond just printing as global trade is at stake. The case of Lexmark affects every company that produces printers and also every company that tries to enforce its patents — so as to defend a notorious business model — abroad. A lot of articles have been written about this in recent days, e.g. [1, 2, 3, 4, 5], and in the words of the National Law Journal, “Justice Stephen Breyer seemed persuaded on Tuesday that supplying a single component of a product for overseas assembly isn’t enough to trigger extraterritorial application of U.S. patent laws.”
Breyer has already come under attacks from the patent microcosm for his views on other domains of patenting and we defended him. In this case too, Breyer seems capable of recognising that patents need to justify themselves at a broader sense than just someone’s business model. We hope that Lexmark will lose this case. When you purchase a printer or a cartridge, than both should basically be treated as your properly and anything you do with them oughtn’t be artificially limited by patent law. This relates to a recent controversy — one which the EFF too got involved in — where HP basically artificially limited people’s printers (remotely even) given updates that induced a sort of physical DRM (machines or software refusing to take orders from their operator/owner, in spite of having the capacity to do so). █
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It’s all about total(itarian) control now
Summary: The level of autocracy at the European Patent Organisation, an institution which has effectively positioned itself above the law with Battistelli and his minions in charge of the Office, faces growing backlash from staff
THE staff of the EPO has had enough. It’s hard not to sympathise considering the management’s pattern of lying, bullying, false accusations and so many other symptoms — clearly of the hallmarks of an autocracy. The modus operandi is, if one does not agree fully with the President (or is perceived as not agreeing deep inside), then that person is considered a potential danger to the President and thus removed using some excuse, like some tale from some years ago that Battistellites (notably Bergot) can distort, then resort to character assassination in the Intranet or the European media (by ‘leaking’ confidential and potentially erroneous intelligence). Whether or not the EPO now uses Parallel Construction or connections with spy agencies to pinpoint sources of dissent inside the Office we don’t know for sure, but it’s not unthinkable, especially after it was revealed that the EPO had hired CRG (actually connected to the Stasi in Germany, through Desa staff, as reported by German media).
“Whether or not the EPO now uses Parallel Construction or connections with spy agencies to pinpoint sources of dissent inside the Office we don’t know for sure, but it’s not unthinkable, especially after it was revealed that the EPO had hired CRG (actually connected to the Stasi in Germany, through Desa staff, as reported by German media).”The EPO is nowadays worthy of comparisons to Stalinist if not Nazi regimes. A more modern analogy would be the regimes in Thailand and in Turkey (many parallels there, including the extreme censorship). SUEPO, the staff union of the EPO, recognises an unjust regime which not only fails the Office on technical grounds but also on human resources grounds, ethical/moral grounds, and legal grounds. We fully support this latest call for protest in Munich on the 14th of December. It’s should be almost imperative to attend (moral imperative), but we suspect those not attending are simply afraid of retribution, not consenting to Battistelli reign of terror.
Here is the announcement from SUEPO, in full:
Actions continue at the European Patent Office: next demonstration on 14 December in Munich
The Administrative Council of the EPO will meet on Wednesday 14 and Thursday 15 December in Munich. Topics of discussion are likely to include the controversial removal of the EPO Boards of Appeal to Haar and the Office’s reaction to Judgment No. 3785 of the Administrative Tribunal of the International Labour Organisation.
SUEPO Munich organises a demonstration on Wednesday 14 December in front of the Isar building, starting at 12h30.
Our claims remain:
A return to Rule of Law
Freedom of association and freedom of speech
GOOD FAITH negotiation of reforms, and:
Hands off our staff representation !
Quite a few people, perhaps dozens, ought to have their jobs reinstated. It’s not just the named staff representatives who were subjected to injustice, such as dismissals, downgrades and other sanctions.
The Administrative Council cannot undo all the damage done by Battistelli, but the delegates can at least make a start but showing that they recognise the issues and are prepared to take firm action. If Battistelli stays in the Office until 2018, there is almost certainly no future to the Office. Stakeholders are reading up not only about the social issues but also the lack of patent quality, which is related to the social issues (or the atmosphere at the workplace). Based on people we have heard from, a growing number of inventors now make a conscious choice to halt the filing of new applications at the EPO; they turn to their national patent offices instead.
SUEPO is not trying to destroy the Office; it would make no sense for SUEPO to want that since it represents (and is funded by) actual EPO workers who want job security and restored pride in their job. These people recognise that Battistelli leads the Office into a dark place, so rather than stay idle they inform fellow staff and participate in internal processes. The sad thing is, those brave enough to function as staff representatives take all the blows, in the midst of what most certainly is a union-busting campaign. █
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Summary: A look at some of the latest issues surrounding the European Patent Office, whose insistence on denying the problems and instead attacking those who bring up legitimate concerns, will spell its doom
THE Administrative Council must act. It must act fast. Battistelli “will end up standing at the top of a pile of organizational rubble,” The Register said this week, alluding to Battistelli’s ambitions of power at the expense of the integrity of the EPO. WIPR wrote about the subject at least twice this month (so far) and one person noted: “What are the odds that WIPR will get by a DDOS attack soon …”
Well, IP Watch was recently down for a very long time (almost a day) and readers of ours suspected it was due to DDOS, so we asked them about it. Some speculated it may have been DDOS due to their reporting on EPO matters, but they told us this was not the case. As a reminder to all readers, at least 3 sites that regularly write about the EPO or its managers have come under repeated, chronic attacks, so this seemingly flippant response isn’t trivially reducible to paranoia. All those sites also received legal threats from the EPO or its managers.
The EPO is in an agonising process of collapse. It’s sad that it had to come to this and as The Register put it, “organizational rubble” may be the end result. Currently, as we noted earlier this week, the EPO is replacing staff with interns (we gave another example of this yesterday) and here comes the EPO again, reaffirming this belief with a ‘job’ advertisement (not really a job but an internship; warning:
epo.org link). “Learning by doing,” they call it, “this programme involves working on actual case files & running prior-art searches…”
Imagine how low the pay will be. The EPO under Battistelli is certainly racing to the bottom, both in Europe and internationally. Patent quality is just one among several aspects of rapid decline and software patents seem to be entering Europe not through national patent offices but through the EPO, which is acting in defiance of European authorities and their clear instructions to the EPO.
Here again is the EPO pushing software patents. To quote: “Looking forward to tomorrow’s [today's] @EPOorg conference on #industry40, #IoT and #patents – Who will be there as well? http://bit.ly/2edht4A pic.twitter.com/EWMtUE37I0″
The software patents proponents are going to this EPO event that promotes software patents (see event’s description) and one of them, Bastian Best (nice person by the way), told his followers: “Looking forward to tomorrow’s @EPOorg conference on #industry40, #IoT and #patents – Who will be there as well? http://bit.ly/2edht4A”
He later told me: “EPOorg joined by many #founders, #entrepreneurs and #companies large&small who protect their inventions with #patents”
Benjamin Henrion corrected him by saying “those are called trolls.” Maybe an exaggeration there, but no doubt the event won’t attract actual developers but those trying to prey on or tax them. As Henrion put it on an earlier occasion, “yet another echo chamber?”
Well, yes, for sure.
Patent scope at the EPO has truly gone bonkers under Battistelli, who measures “production” (a commercial term) not in terms like patent quality, improving reputation etc. He just wants an assembly line manned by drones like interns, who cannot distinguish between novelty and gobbledygook.
Here is another new article from yesterday, about yet another area (not software) where the EPO simply ignores the European Commission/Parliament and patents the craziest things:
LSPN 2016: EPO patent director talks about patentability of plants
Heli Pihlajamaa, director of patent law at the European Patent Office (EPO), yesterday outlined the latest developments in the area of plant patentability.
She was speaking at the Life Sciences Patents Network Europe conference hosted by Life Sciences IP Review in London.
On November 3, the European Commission adopted a notice clarifying certain articles of Directive 98/44 on the protection of biotechnological inventions.
The aspects of the directive concerned have “always been criticised by the European Parliament and by several non-governmental organisations”.
The most important one, according to Pihlajamaa, is the patentability of products obtained by essentially biologic processes. The notice said such products are unpatentable.
Although the notice is a non-binding instrument, the Court of Justice of the European Union (CJEU) has “followed such notices in their decisions”.
We are not sure why the EPO’s management actually believes this is a good idea. Well, it may be good for “production” in the short term (more patents), but what will people start to think about EPs and their worth? This actually damages anyone who has been granted EPs (European patents) over the past couple of decades.
Speaking of “production”, it looks as though the new bureaucracy — not the scandals — continues to occupy space in legal firms’ blogs/sites. “From 1 November 2016,” one of them has just said, “it is necessary that both the Assignor and Assignee execute an assignment document in order for such document to be accepted as evidence of a transfer. It is believed that this change has been made in response to an acknowledgment by the EPO that the practice to date was not consistent with Article 72 EPC.”
Will those new interns even manage to handle all this? It takes years to train an examiner and as for Patent Administration, this is the department under the most stress (with suicides), so giving them more work is just about the last thing the EPO needs. Does Battistelli intend to try to replace them too with machines? To quote an anonymous person who is familiar with the EPO, “For the state we’re in with EPO, an end would be an incredible progress.” █
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Summary: Response to some of the latest UPC promotion, courtesy of some of the usual suspects, who stand to benefit financially if the UPC ever becomes a reality
THE MANY articles we have written about the UPC predate it even being called “UPC”. We’re no beginners and not mere speculators about it. I have personally written about it for many years. I have read thousands of articles about it, including quite a few papers. Over the past fortnight we have posted a 7-part series about the bizarre (totally nonsensical!) developments in the UK, namely:
“I have personally written about it for many years. I have read thousands of articles about it, including quite a few papers.”The last couple of parts are very long. They are also the most important parts because they explain why the UPC cannot practically happen. Yesterday we added to all the above. UPC reassurances in the UK are believed — at least by some — to be a ploy or decoy, as we noted the other day, citing a valuable blog post almost nobody had noticed. After we mentioned this (just a couple of hours later) it quickly grew popular in social media sites (culminating yesterday afternoon) and then IAM too — in spite of being a UPC and Battistelli pusher — spotted this. A short while later it wrote: “Interesting & not beyond bounds of possibility: UK’s UPC ratification announcement a ploy not a commitment …”
Dr. Luke McDonagh, who didn’t buy the latest nonsense from Lucy and May (we quoted him a lot in the 7-part series), wrote: “PM May’s view ‘We’re not leaving only to return to the jurisdiction of the European Court of Justice’ won’t be true for a long time, if ever https://twitter.com/IndyPolitics/status/806814104870682624 …”
Later in the day Annsley Merelle Ward from Bristows, who habitually promotes the UPC at IP Kat (unrestrained optimism and misrepresentation irrespective of what's common sense), asked in her headline: “Will UK industry suffer from Government’s ‘ratify now, repent at leisure’ UPC stance?”
“UPC reassurances in the UK are believed — at least by some — to be a ploy or decoy, as we noted the other day, citing a valuable blog post almost nobody had noticed.”No, because it won’t even ratify. Extremely unlikely. Forget about it.
“The AmeriKat agrees,” she wrote about herself. “Given that the purpose of the UPC is to “enhance legal certainty” in the enforcement of patents (see Recital 5 of the UPCA), it would seem perverse that the UK’s ratification of the UPC would result in increased uncertainty for industry post-Brexit in patent law.”
But therein lies not the main issue. There are much more pressing issues that prevent the UPC from ever coming into force here. An associate of ours spoke to UKIP about it and it’s possible that a petition too will be set up soon. The UPC is not going ANYWHERE. We wish to remind readers that this whole “unitary patent” charade (latest name among many) has been going on for many years and the EPO along with Team UPC (of which Bristows is a key part) lied repeatedly or was being internationally overoptimistic. They want their opposition to give us and descend to defeatism. They want politicians to believe that it’s inevitable and thus they must participate. Truly malicious tactics…
“IP Federation is not “represent[ing] the views of UK industry in IP matters,” as we already noted here twice before.”Speaking of Bristows, a key participant of the UPC echo chamber that lobbies our government, watch this tweet linking to its blog that says: “Following the announcement of the UK’s intention to ratify the Unified Patent Court Agreement, the IP Federation (which represents the views of UK industry in IP matters) has published its response here. IP Federation recognises the potential benefits of the unitary patent and UPC system for industry and also of London hosting part of the Court’s central division. However, it also recognises that there is uncertainty over what will happen upon Brexit, because membership of the EU may (on one view) be essential to UPC membership, and because of the absence of any exit provisions in the UPCA. It therefore calls upon the UK and other contracting states “to work together urgently to enable the UK to stay in the system after Brexit and to prepare transitional provisions in case this is not possible”.”
Bristows, you are drunk. IP Federation is not “represent[ing] the views of UK industry in IP matters,” as we already noted here twice before [1, 2]. Calling IP Federation anything in relation to “UK industry” is like calling the MPAA representative of actors and RIAA and representative of musicians (rather than mere middlemen who exploit them). █
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The Administrative Council of the EPO looks increasingly complicit, like a pack of docile chinchillas led by crooked Kongstad
Reference: Fifa accused of cover up as it emerges World Cup bid report to be kept secret (does it have to involve sports and celebrities for mainstream media to care?)
Summary: A growing voice of concern about the integrity of the European Patent Organisation, whose management appears to be in cahoots (overseers/regulators included) so as to cover up its own serious abuses
THE internal and external affairs at the EPO look uglier by the day, if it’s possible at all for things to get any uglier when staff already dies. The EPO crisis fascinates us enough to have already dedicated close to 1,500 articles to it. It won’t stop until justice gets served and the EPO is (hopefully, if not too late) saved.
If the EPO does not fire Battistelli next week (it probably won’t, but it definitely should), then the whole Organisation (which is fed by fees from the Office) will continue to descend to new lows and it’ll definitely harm Europe’s competitiveness. A lot of the corporate media (especially in Germany) does not seem to understand — or maybe does not want to understand — how pressing an issue this is.
Thankfully, some in the British media seem to be more responsive and are paying attention to the pleas of EPO staff. This morning the following article got published by The Register:
Guess King Battistelli’s plan to fix the Euro Patent Office. Yep, give himself more power
The president of the European Patent Office has responded to a formal rebuke of efforts to impose his will on the organization by asking for more power.
The man who last week was called a disgrace to his country in the French National Assembly has been accused of targeting EPO staff who opposed his reforms and of running sham disciplinary hearings as part of a campaign of intimidation.
Some of Benoit Battistelli’s reforms have been enacted, whereas others – especially those that grant the president additional powers and effectively place him above the EPO’s independent review and appeal processes – have been bitterly fought.
Several staff members, including the staff union’s secretary, were placed on administrative leave by Battistelli over a year ago and have been put through what many claim have been a series of illegal and irregular hearings.
In a decision that lent significant weight to the staff’s complaints, those hearings were effectively nullified last week by the International Labour Organization Administration Tribunal (ILO-AT). The ILO-AT found that Benoit Battistelli had delegitimized the EPO’s Appeals Committee (ApC) by inserting two staff “volunteers” on the five-person panel rather than allowing the EPO’s central staff committee to select them. It also found the EPO’s management had mishandled critical aspects of the appeals process.
But, true to form, Battistelli has reacted by doubling down.
Now that approach – of having two staff volunteers – has also been deemed illegal. So what is Battistelli’s solution? That’s right: to give him the power to appoint people to the Appeals Committee.
In a formal proposal to the EPO’s General Consultative Committee, Battistelli has attempted to reintroduce a change to the EPO’s “service regulations” that he previously put forward, but which was rejected.
Under his “new” proposal, “if the Central Staff Committee fails to make appointments to these bodies, the President shall take appropriate steps to ensure the necessary appointments, such as by drawing lots or calling for volunteers from among all elected Staff Committee members.”
This approach – where Battistelli tells people what he wants to happen; is told that breaks the organization’s rules; and then attempts to rewrite the rules to give him the power to do it regardless – has become the president’s modi operandi and the reason he has been dubbed “King Battistelli.”
This is a very good article from one who has followed these affairs closely. It’s even a two-page article, for a change. Found in WIPR yesterday [via, top story too] was this article which quotes anonymous EPO insiders. This London-based publication, which targets law firms (unlike The Register, which targets technology firms not only in Britain), said this:
A source close to the Staff Union of the European Patent Office said: “Once more we are sad that instead of fixing what he has broken (namely a functioning internal appeals committee), Battistelli’s new proposal shows that he solely aims to circumvent the central staff committee.”
They added that the staff committee had “solid legal reasons not to nominate staff into the internal committee after two of its members had been downgraded by Battistelli”.
The morally corrupt patent office of Battistelli is more interested in legalising its sheer abuses rather than actually addressing them. Corrupt. Utterly.
What can Battistelli say for himself? The headline from WIPR is far too soft (compared to The Register‘s). It says “Battistelli asks to nominate EPO appeals committee members” as if he’s some gentleman asking for staff participation. While he sharpens his sword maybe…
“Shark asks fish to nominate sacrifices” is the analogy I used yesterday.
Only a fool would want to issue a judgment/call that does not satisfy the monster, Mr. Battistelli. The Liar in Chief, who falsely accuses people along with his buddy’s wife (Bergot), often dismisses them (only after bankrupting them financially and mentally). When they do this they always disguise the real motivation, as Battistelli’s goon did on Dutch television, pretending that the pattern on attacks on staff representative was just an incredible coincidence, not a union-busting effort.
The EPO is rapidly becoming synonymous with corruption. Yes, corruption. Moral corruption and some tell us fraud, too. Where is the German police? Where are the German authorities? For political/economic reasons they seem to be turning a blind eye to anything that is being presented to them. And rightly so… considering what kind of employers they have paying their salaries. It doesn’t look as though even ILO (or the UN) can compel the EPO to obey the law. Dutch courts, including the highest court in the Netherlands, are the subject of scorn inside Team Battistelli. It’s like the Mafia in Italy, except the Mafia does occasionally have to fight for its corner and corrupt some officials for protection. What Battistelli does to the EPO right now is similar to what France did to Algiers and he sucks everything that’s inside the EPO (decades’ worth of reputation and assets) for short-term personal gain. The FIFA scandal is utterly minuscule compared to this.
To quote some new comments (posted anonymously in IP Kat, which has not yet written a single article on this subject):
New rule to be decided by the Council next week:
“if the Central Staff Committee, despite an invitation to do so, fails to make appointments to these bodies, the President shall take appropriate steps to ensure and make the necessary appointments, such as calling for volunteers or drawing lots from among eligible staff members.”
Attention: “from among eligible staff members” and not “from elected staff representatives”. Deliberately. A very interesting phrase.
Yes, we noticed this the other day. “Following their resignation they have been publically defamed by VP4 and VP5 and then abusively disciplined (both downgraded),” added another comment. To quote:
the two staff reps nominees resigned during autumn 2014 (since they could not perform their work as they should have, due to several defficiencies reported to Battistelli and left uncorrected on purpose). Following their resignation they have been publically defamed by VP4 and VP5 and then abusively disciplined (both downgraded).
Facing such appaling situation the CSC did not want to nominate anyone anew before the reported defficencies had been corredted and insurance had been given that the new nominees would not be again pressurized and sanctioned.
As you may imagine Battistelli did nothing to redress the internal appeal system he and his associates had broken. Instead Battistelli “invited” all CSC nominees (read threathened them of disciplinary santions) and the weakest “volunteered”.
So much for independent judicial system at EPO
see here : http://techrights.org/2016/12/05/bunk-justice-at-epo/
“This “mis”management team should all be fired,” added another commenter.
Battistelli wants by all means to circumvent the staff representatives whom he truly hates since they do not wish to bend and praise his glory.
Battistelli’s problem is simple: he is enarque functioning with a software dating back last century. He thinks he knows better only he does not – see the mess he created and he has proven incapable solving?
The accolytes he recruited are no better. They too think they know better but the world outside is laughing at the EPO which they see sinking for the past 3 years.
The new “solution” is likely (once more) not to fly at the ILO-AT. Let’s see next week if the Administrative Council will approve that new pack of low quality legal work produced under the supervision of a German Vice President and a German Principal Directorate.
All this costs money and reputation. This “mis”management team should all be fired.
As we noted here earlier this week, Battistelli hopes to retroactively legalise his abuses. Battistelli is an utter catastrophe never seen in Europe, let aside the EPO. The term “Battistelli” might make the urban dictionaries one day, alongside Microsoft's Elop and Rick Belluzzo. Battistelli seems to be only destroying — not working for — the EPO, yet somehow Battistelli receives a secret salary from the EPO and nobody seems prepared to fire him.
“Thank you for your answers,” one person wrote. “Probably, now the usual EPO policy of changing the law when the judges interpret it in a way you do not like, will be carried out.”
“Further questions,” continued the thread. “Would it be possible for the staff reps who stepped down to come back? Though some have been dismissed, they are still legally elected staff reps appointed by the scs, aren’t they? How is the legal situation on that? If a staff rep gets dismissed, does he automatically cease to be staff rep? But that would necessitate new elections, wouldn’t it? Have those taken place? I do not think so. Anybody?”
Well, Battistelli is crushing anything that resembles a threat to his position and he is apparently immune, as the following comment makes clear:
Sadly it would appear that Article 52 of the EPO Service Regulations does not appear to apply to the President, the Vice-Presidents or to the Legal Services Department of the EPO.
Section 2 – Dismissal by the appointing authority
Article 52 – Professional incompetence
(1) Subject to Article 23 of the Convention, a permanent employee who proves
incompetent in the performance of his duties may be dismissed.
The appointing authority may, however, offer to classify the employee concerned in a lower grade and to assign him to a post corresponding to this new grade.
(2) Any proposal for the dismissal of a permanent employee shall set out the reasons on which it is based and shall be communicated to the employee concerned. He shall be entitled to make any comments thereon which he considers relevant.
The appointing authority shall take a reasoned decision, after following the procedure laid down in regard to disciplinary matters.
(3) Subject to Article 13, a permanent employee shall not be dismissed without notice. The notice shall be calculated on the basis of one month for each year of actual service; it shall not, however, be less than three months, nor greater than nine. The period of notice shall commence on the first day of the month following the date of notification of the decision to dismiss the employee. The period of notice shall be increased by one month for a permanent employee having his home as defined in Article 60, paragraph 2, in a country other than that in which he is employed.
We don’t believe that crooked Kongstad and his chinchillas (the delegates) will fire Battistelli just before Christmas, so we need to keep fighting for justice and we need to expose the serious abuses of the EPO. We continue to invite readers to anonymously send material to us. The more the public knows, the more often journalists all across Europe will need to subject authorities to scrutiny, and the more politicians will push to end the EPO’s tyranny. █
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Good for Denmark, where crooked Kongstad still manages the national patent office
Summary: The lunacy of the EPO with its patent maximalism will likely go unchecked (and uncorrected) if Battistelli gets his way and turns the EPO into another SIPO (Croatian in the human rights sense and Chinese in the quality sense)
A COUPLE of days ago we warned that the EPO is replacing well paid (and experienced full time) staff with interns. There’s a pattern to it and yesterday (again) the EPO tweeted this: “This programme allows participants to learn by “shadowing” technical board of appeal members…”
These boards have been intentionally understaffed for years (Kongstad and Battistelli didn’t seem to bother advertising to fill up vacant positions) and now they want some temporary workforce to replace skilled staff? This is part of a pattern that staff representatives have been warning about for a while.
“This is part of a pattern that staff representatives have been warning about for a while.”As we noted here last week, the Enlarged Board of Appeal does invaluable work keeping the scope of patents in check (see this latest coverage about its key decision [1, 2, 3, 4]; an article by Julian Asquith of Marks & Clerk was also reposted in another site of lawyers two days ago) and the last thing Battistelli wants right now is a bunch of independent staff stating out in public that he has demolished patent scope. Who would be brave enough to state the obvious, seeing all the ordeals/suffering one judge — along with his wife — has been subjected to for over two years (his salary too got slashed a few months ago)?
Mr. "production" Battistelli strives to only ever demolish the boards, little by little (because his actions are still technically limited by the EPC). It doesn’t take a genius to assess the trajectory of things and deduce that Battistelli wants an Office with no quality control and nothing independent, having already demolished and even shut down some auditory divisions. No king/autocrat wants to have his power questioned, let alone effectively challenged.
We have already written about the exile, the fee hikes, shortened appeal window, the intimidating manner in which Battistelli tries to compel staff to fire a colleague and so on. Marks & Clerk has just produced this this new article about when it will be “too late to file submissions with the Board of Appeal at the EPO” (Battistelli shortened and limited this even further, probably in an effort to further marginalise these boards). To quote this article:
In T 416/12, the Board of Appeal at the European Patent Office (EPO) considered the admissibility of amendments submitted by the patent proprietor made 29 days before the date of oral proceedings. Whilst it is possible for the Board to admit such submissions, it was ruled that the amendments in question should not be admitted since it was too late to fairly deal with the submissions at the impending oral proceedings. The patent was subsequently revoked. This case provides confirmation as to how the relevant regulations may be interpreted regarding the timeliness required for filling submissions before oral proceedings at the EPO.
Well, how much time is left for the BoA (whatever is left of it) to even exist after Battistelli is done burning the whole Organisation to the ground? Time is running out. The other day we saw a new article by BRIFFA about Carlsbergate — a little scandal which we covered here last month [1, 2]. To quote the article:
Are Carlsberg’s New Beer Patents Controversial? Probably …
This year, the European Patent Office (EPO) granted three new patents to Carlsberg (EP2384110, EP2373154 and EP2575433) relating, broadly, to the harvest of kernels from barley plants, the process for brewing and the drinks produced by these methods. European patent law prohibits patents on plant varieties and breeding; however, notwithstanding these prohibitions, the patents have been granted by the EPO.
The European Commission has stated that plants and animals resulting from essentially biological breeding should not be patented. Accordingly, there have been calls for Carlsberg to voluntarily relinquish the three patents on the basis that there should be no patents on beer and brewing barley since the cultivation of plants and beer brewing stems from a tradition that is centuries old. There have also been calls for European governments to bring the EPO under political control.
It remains to be seen whether the EPO will respond to statements made by the European Commission and the European Parliament and whether Carlsberg will respond to calls to voluntarily relinquish the patents.
Well, Kongstad’s high society Danish friends must be happy. Maybe they can have a good laugh (and a drink of Carlsberg!) over this, maybe in his chichillas slaughterhouse this cold winter. Kongstad is evidently uninterested in taking any action amid this EPO crisis, no matter how much pressure comes from politicians, from staff, from stakeholders, from labour rights groups, from ILO/UN, and from people all across Europe. Earlier this year someone passed to him a polite letter from me and suffice to say — as usual from Kongstad — he didn’t even bother replying. He only replies indirectly and by attacking style, not substance. Given that he knows Battistelli’s salary and constantly helps cover Battistelli’s behind, there is no doubt Kongstad is inherently complicit, much as we alleged even back in 2014.
The EPO is so rotten right now that with the help of yeast we can probably make Battistelli intoxicated enough not to see it and maybe we can even patent this method at the Battistelli-led EPO (an EP on a method for making a naked emperor drunk enough not to realise he’s naked). █
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Information still required on why Lucy did the unthinkable
Summary: Some eye-opening updates about the awkward move from Lucy Neville-Rolfe, who made promises (expression of intent) she can neither fulfill nor justify to the British public
THE EPO scandals are so broad and diverse that it’s becoming hard to keep track of them all. What’s also not helping is Battistelli’s latest distractions (warning:
epo.org link) which are amplified by the PR team (never ever mentioning anything related to these remarkable scandals, thus leaving applicants in the dark). The real news isn’t some photo op of Battistelli in Belgium (same thing he did with Neville-Rolfe in England to distract from the real news -- a strike!) but unprecedented abuses against staff — a subject we’ll cover separately.
Recently, Battistelli and media which he had paid were spreading misleading talking points (or utter lies) about the UPC. These set the tone for yet more misleading coverage. See this new misleading headline, which is a statement that is untrue and compare this to “Brexit’s Effect on UK Unitary Patent System and Court” — an article that says “UK government intends to ratify the Unitary Patent System and the Unified Patent Court prior to Brexit.”
“The real news isn’t some photo op of Battistelli in Belgium (same thing he did with Neville-Rolfe in England to distract from the real news — a strike!) but unprecedented abuses against staff — a subject we’ll cover separately.”We wrote a very long series about this last week and earlier this week. The UPC won’t happen. Brexit has made the UPC practically impossible, if not just in Britain then in the entire EU (and beyond). Basically, sooner or later there’s the conflict they’re trying to stay blind to, as we explained before (especially in parts 6 and 7 of our series). Valea AB wrote at the end of last month (just bumped up again in news feeds) that “UK Government Confirms it is Proceeding with Ratification of the UPC,” but actually it was only an expression of intent and nothing formal or a legally-binding commitment. It’s truly a shame that a lot of media, not just law firms' biased media, continues to get the story wrong.
A story which was mentioned here in the latest couple of parts (in the section about MIP’s pro-UPC events) reveals one of the reasons the UPC is a horrible idea. Software patents are currently not permitted in Europe, yet experts said that the UPC would likely change that. In fact, as Benjamin Henrion noticed, based on an admission from a British law firm, lawyers too understand that. “Will Cook (Marks&Clerk) noted that first movers may be able to shape UPC jurisprudence in these fields [ICT/software],” he wrote today. “Maureen Kinsler (Marks&Clerk),” he continued, is quoted as saying that “It’s probably easier to get a software-related patent in the EPO than in the US now” (look what crooked Battistelli has done, causing potentially huge damage to Europe’s software industry).
“As we said repeatedly last week, we are eager to receive leaks pertaining to why Lucy did what she did regarding the UPC.”“Interesting read about behind-the-curtain rumours regarding the UK announcement,” wrote one comment in IP Kat, linking to this valuable and belated blog post about something we sure wondered about. The title is “The UK and UPC: is the UK trying to have its cake and eat it?”
“Incidentally,” says the author, “the “accidental” leaking of the “Have cake” memo sounds like a plot straight out of The Thick Of It and therefore, I would venture, probably means it was anything but accidental. It’s a leap too far to suggest it was deliberately leaked to cover up the UPC news (patents are way down the agenda) but that seems to have been the effect nevertheless.”
Read the whole thing. As we said repeatedly last week, we are eager to receive leaks pertaining to why Lucy did what she did regarding the UPC. Certainly some people out there have access to this information; we can be contacted securely and anonymously and we have never compromised a source (in over ten years). █
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