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09.30.16

New Paper Provides Evidence of Sinking Patent Quality at the EPO, Refuting the Liar in Chief Battistelli

Posted in Deception, Europe, Patents at 9:32 am by Dr. Roy Schestowitz

So much for patent quality claims

US patent 6368227 B1
Being better than the USPTO is not the same as having acceptable patent quality (US 6368227 B1)

Summary: In spite of Battistelli’s claims (lies) about patent quality under his watch, reality suggests that so-called ‘production’ is simply rushed issuance of invalid patents (one step away from rubberstamping, in order to meet unreasonable, imposed-from-the-top targets)

PATENT QUALITY at the EPO has sunk pretty low, as insiders tell us and staff representatives say as well (they have this new paper about it [PDF] — a paper which somebody leaked to us). It seems to be the consensus inside the EPO that patent quality is far from what it used to be; it’s only EPO management that keeps lying about it and the above was published internally because “the President is advertising our quality all over the world.” Yes, the liar in chief is now making a career out of lying about everything. He calls himself “President” but acts like the world’s worst boss, whose words are less than worthless. Some believe that he was intended to morph the EPO into the French model, which would basically render all the examiners redundant. The worst case scenario is, the guy is a ‘liquidator’ of the EPO. He’s put in charge to destroy it.

“The analysis is particularly relevant now that the President is advertising our quality all over the world.”
      –Internal document
A few days ago we saw this article in German about patent scope at the EPO. “European Patent Office discussed the objection of doctors in the world against the patent for the hepatitis C drug Solvaldi / decision on 5 October expected,” says the automated translation. Also recall those letters regarding patents against cancer patients. If someone can prepare a translation of this article, that would be appreciated. Mathieu Klos from Juve has also just published an article in German for which we could use a translation. It’s Battistelli talking points in ‘interview’ form and the summary is automatically being translated as: “The European Patent Office has reformed its Boards of Appeal in July. Until the beginning of 2017, the reform must be implemented. For a new Board President must be found. Critics complain that the reform does not bring enough independence for the EPO-court. JUVE interview EPO President Battistelli Beno it take a position and explains why the renewal fees for the EU patent reduce not necessarily when the UK, the EU and thus the new European patent system should leave.”

We could use an English translation, so if someone can provide an outline or a complete translation, that would be great. Automated translations just aren’t so reliable and there is room for misunderstanding that might impact our credibility.

Without the Boards of Appeal we can expect patent quality to decline even further without that decline being publicly acknowledged. This may be one plausible explanation for Battistelli’s attack on these boards. An EPO mouthpiece has this new article which speaks about one particular aspect of European patents. It says: “The grounds of opposition are set out in Article 100 EPC. To paraphrase, these include that the subject-matter of the European patent is not patentable under Articles 52 to 57 (novelty, inventive step, industrial application, specific exclusions and non-inventions), that the patent is insufficiently disclosed and that the subject-matter of the patent extends beyond the content of the application as filed. The only substantive pre-grant criteria for patentability which is not also a ground for opposition is that of Article 84 EPC (that the claims shall be clear, concise and be supported by the description).”

“Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls.”Under Battistelli, as we have shown here before, oppositions are being suppressed (made more expensive, time being prohibitive, and so on), so obviously the quality of patents will decline, without this decline even being detectable.

Why does this matter? Two main reasons:

  1. Businesses are willing to pay the EPO a lot of money in order to properly check if their patent, once scrutinised in a court, will be upheld, in which case all the pricey legal proceedings will bear fruit and monetary compensation for patent infringement will be granted
  2. Small businesses are afraid of being falsely accused of patent infringement (i.e. attacked by a patent that should never have been granted in the first place) as to them it can be a matter of life or death (bankruptcy)

The latter case is more relevant to us because it alludes to the plea of the vulnerable and the powerless, whereas in many cases (1) above is applicable to large companies that stockpile or hoard patents by the thousands. Legal fees are very high (too expensive for most, who would rather settle quickly) and even if the accused is found not guilty (e.g. of patent violation, as the patent is ruled invalid) the financial cost is enormous and can never be redeemed from the accuser/plaintiff (except in rare cases like NewEgg’s). Here is a new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP. The headline is “EPO: Unjustified Threats Bill; What is it?” (the EPO did it to me, misusing defamation law) and here is what it says:

Provisions exist in the United Kingdom to prevent unjustified threats of legal action relating to infringement of patents, designs and trademarks. The provisions were originally conceived with the intention of stopping the holder of an IP right from damaging a person’s business by threatening their customers or distributors with an infringement action of the IP right. The current provisions, however, are inconsistent across different forms of intellectual property and are worded such that an innocuous communication from an IP rights holder may be interpreted as an actionable threat. This results in an increased risk of litigation proceedings between the parties. This is contrary to the overriding principle enshrined in the UK’s Civil Procedure Rules, which encourage pre-action correspondence and negotiation in order to ensure that disputes are dealt with at proportionate cost.

The UK’s government issued a draft Bill setting out proposals to address some of these issues. The Intellectual Property (Unjustified Threats) Bill 2016 would update legislation relating to unjustified threats to provide greater consistency and clarity.

For example, the Bill proposes positive definitions for “permitted communications” to provide a safe harbor to allow rights holders to communicate with potential infringers, without running the risk of a threats action. In this way, parties should find it easier to comply with the Civil Procedure Rules by exchanging information prior to the start of any litigation.

Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls. See what is going on in the US, where the USPTO blessed almost every application. Lots of litigation and now a lot of invalidations (at a very high cost to the accused).

Battistelli Locks EPO Staff Union Out of Social Conference So That He Can Lie About the Union and the Social Climate

Posted in Deception, Europe, Patents at 8:23 am by Dr. Roy Schestowitz

The liar has quit pretending to even be capable of handling the truth

Battistelli liar
Source (original): Rospatent

Summary: The attacks on staff of the EPO carry on, with brainwash sessions meticulously scheduled to ensure that Administrative Council delegates are just their master’s voice, or the voice of the person whom they are in principle supposed to oversee

LATE on a Friday (one week ago) the next stage/phase of new EPO propaganda began, with the release of 3 documents commissioned to help Battistelli lie to the Administrative Council and the entire world. A fortnight from now another stage/phase will begin, namely a so-called 'conference', probably decorated or accompanied by shallow media coverage (planted puff pieces*). EPO management does a good job demonstrating that it’s not only a chronic liar but also a manipulator of the media, at huge expense to the EPO (other than growing reputational cost).

SUEPO sent the following letter to Battistelli earlier this week, with a copy sent to the Delegations of the Administrative Council:

27 September 2016
su16116cl – 4.6

“Social Conference” of 11 October 2016

Dear Mr Battistelli,

We refer to the letter addressed to you on 20.09.2016 from SUEPO The Hague on the subject of the Social Conference, which remains unanswered.

SUEPO, who represents about half of the EPO workforce, has not been invited.

Over the past two and half years you have consistently threatened and/or heavily sanctioned the majority of the elected officials of a Union you called in public a “mafia like organisation”. In the circumstances, we will obviously not attend voluntarily. (If you want to oblige any of us to attend as “members of Staff Committees”, we would only participate under duress)

We truly regret seeing that, rather than fostering social dialogue by respecting the terms of the March resolution of the Administrative Council (CA/26/16), you have chosen to continue persecuting SUEPO and its elected officials, most recently in The Hague, cf. minutes of the Board 28 meeting of 8 September.

We also regret that you do not seem to take seriously the requirements of a bona-fide social conference. If its aim is to launch a program to restore social peace, it is inconsistent for you to refuse to discuss the results of the Technologia survey, or to consider our counterproposal for a framework agreement between the EPO and SUEPO.

Yesterday morning we published leaked Board 28 documents. As we noted at the end, these demonstrate that the Board (i.e. Kongstad et al) are ever more complicit in Battistelli’s abuses. Team Battistelli, we should remind readers, is said to be buying votes or buying (one might say “bribing”) the delegates. As one new comment puts it, the “AC representatives [delegates are] being showered with “gifts” by the very body that they are supposed to oversee” (source).

Here is the comment in full:

AC representatives being showered with “gifts” by the very body that they are supposed to oversee? If this is true, and if there is concrete proof of the same, would that not mean that the representatives concerned would need to declare a conflict of interest and step aside?

Oh, I forgot. There is no one to call them to account. And there would be no one to replace the representatives if they did step aside. Hardly a model of good governance, though. One might even go as far as to say that it is a model of governance that could easily be corrupted if undesirable types managed to secure powerful positions within the Organisation. God forbid that this ever happens!

As the Administrative Council and the Board (overlapping entities) have become ever more complicit in Battistelli’s abuses and the likely destruction of the EPO (for their short-term personal gain), we are planning to expose some unpleasant truths about the Administrative Council next week.
_____
* Managing IP, an EPO mouthpiece nowadays, was planning to help Battistelli lie about the social climate at the end of this month, using a placement in the form of an ‘interview’ with Battistelli (part 2), but this has not happened and they failed to get a response from AMBA, which is understandably scared. Yesterday they began speaking and spreading the falsehoods about the EPO's crushing of the boards (under the guise of “independence”). Haar is somewhat of a suburb quite some distance away, so saying that “Boards will remain in Munich” is a lie. To quote further: “In addition to predictable concerns among users of the EPO as regards preservation of quality and independence of appeal decisions, the EPO’s ambitions with regard to cost coverage are seen as problematic by many due to the future increase of the appeal fee. A four- or five-fold increase of the appeal fee may well prove prohibitive to appeals, even in respect of clearly flawed first-instance decisions, or may put a heavy economic burden on parties to proceedings in respect of cases which are subject to multiple appeals in respect of the same patent or patent application.” We should remind readers that payments and working conditions are eroding, motivating what’s left of staff at the Boards to simply leave, giving the impression that these Boards are dying naturally on their own.

Unprecedented Levels of UPC Lobbying by Big Business Europe (Multinationals) and Their Patent Law Firms

Posted in Deception, Europe, Patents at 7:45 am by Dr. Roy Schestowitz

Business Europe on UPC
Original: Business Europe on UPC [PDF] (we wrote about Business Europe, which is a front group, several times before [1, 2, 3, 4, 5])

Summary: A quick look at some of the latest deception which is intended to bamboozle European politicians and have them play along with the unitary [sic] patent for private interests of the super-rich

THE EPO and Team UPC, along with their largest clients, try to take over Europe and rewrite the law.

Kingsley Egbuonu from MIP (close to the EPO) continues his Unitary Patent and UPC “progress [sic] report”, this time noting that “EU Ministers reiterate support for the system; legal opinion on UK’s participation; The Netherlands ratifies UPC Agreement; legislative process for ratification underway in Italy; new Italian course added to list of UPC representation qualifications for European Patent Attorneys; official timetable for launch of UPC may be revised; Unitary Patent system ready and UPC preparations to continue” (all sounds incredibly optimistic).

“The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe).”Judging by this “progress [sic] report,” one might be led to believe that the UPC is inevitable and only a matter of time; but it’s far, far from it. “We understand,” Egbuonu notes below, that the “UK IP Minister Baroness Neville-Rolfe did not make any statement on the UK’s position, considering the UK government is still deliberating over Brexit strategy, rather she commended the preparatory work done so far.”

The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe). Everyone seems to know it except Team UPC, which invested so much in this change (de facto theft of democracy) that all resources are now being thrown at lobbying. Take Bristows and its self-nuking statements for instance. Bristows is still lobbying to have its talking points interjected into ‘news’ papers which the EPO paid for PR. Here they are saying: “Milan challenges London for patent court – Our Alan Johnson comments on the @FT https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4 … pic.twitter.com/DyqpSJfFBA” (FT was paid by the EPO for this kind of bias).

It seems as though the UPC will be officially dead next month, but Team UPC is working super-hard at the moment. It includes ‘hijacking’ the media for their own selfish purposes. Bristows is being amplified (almost the entire piece is Bristows) by WIPR and an article composed by Bristows staff keeps getting referenced as ‘proof’ that “European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting” (utterly misleading headline).

“Usual suspects sent letters to lobby for UPC, wait until we send our letters too.”
      –Benjamin Henrion
What Bristows means by “European business” is just “Business Europe”, which is a misnomer. Here we have Bristows lobbying for itself and meddling. To quote: “Views on UPC expressed ahead of today’s Competitiveness Council meeting.”

Competitiveness in Europe would require demolishing the UPC, but international monopolies and oligopolies want the opposite of competitiveness; they just want protectionism to cement their market position and marginalise competition (e.g. by means of patent lawsuits or threat thereof).

Looking at some of the latest junk from Bristows (relying on front groups and generalising based on them), one can see dissent in various other new comments about the UPC; these comments are not sharing the sentiments of Bristows’ propaganda (about 5 more such comments yesterday). One of them said that selective “letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry.” Writing about “Business Europe” (Big Business Europe and Multinationals with Branches in Europe), here is the complete comment:

That all firms having been heavily involved in the preparations of the UPC want it to come alive is understandable, be it only because of the time and efforts invested in it. That their might not be a return on investment is bitter for all of those them. But c’est la vie.

The letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry. Did you expect that Air Liquide would be against the UPC?

On the other hand, we were always told that the UPC is primarily there for the benefit of the SMEs.

I do not see any federation of SMEs, but the French CGPME having participated in such a plea. The CGPME being one among the plenty members of the UJUB, even if it had a restrictive opinion, it would be overthrown by all the other members.

I get the feeling that lots of people have lost track of the political reality. How can a sensible person advocate immediate ratification by the UK of the UPC Agreement when the terms of the Brexit are not even known? There might be ways for UK to continue its participation, but this means accepting EU law. I dare think what the EuCJ will have to say if UK participates to the UPC after Brexit and does not fully accept EU law supremacy. But then why the Brexit?

Why on earth push for something which nobody knows how it will end up? That UK participation would be good is certain, but as somebody in charge in the UK said Brexit means Brexit.

It is clear that if the UPC does not enter into force because of the lacking ratification of the UK, it will be delayed for a while. And then the can of worms will be opened again. But that is a reality which is tangible and which should be accepted.

Whether we like it or not, it is time to look at reality and not hope for something which has been lost.

The “Big Business Europe UPC letter,” Benjamin Henrion remarked, is “not supported by CEOE, the Confederation of Employers and Industries of Spain” (Spain is generally against the UPC, to its credit, but language has a lot to do with this opposition). “Usual suspects,” he added, “sent letters to lobby for UPC, wait until we send our letters too.” He told me that he was unable to find any video stream/access to the proceedings (the perception of transparency) and later added: “Is there any video recordings of EU Ministers Council meeting of today?”

We have seen nothing of that sort yet. Team UPC has no sense of shame and no respect for democracy at all. Sometimes it feels like politicians are on the same bandwagon.

Here is a timely new comment about UPC (found this afternoon):

That’s the problem with the UPC, it is not counter-balanced by an elected parliament, such as the European Parliament.

It is an undemocratic monster.

If the UK is out, the bare minimum would be to reintroduce art6 and art8.

It’s not just an “undemocratic monster” but an antidemocratic monster. It must be scuttled.

09.29.16

Team UPC is Interjecting Itself Into the Media Ahead of Tomorrow’s Lobbying Push Against the European Council and Against European Interests

Posted in Deception, Europe, Patents at 10:35 am by Dr. Roy Schestowitz

Also see: European Digital SME Alliance: Unified Patent Court (UPC) “Unconstitutional”, Harms SMEs, Brings Software Patents to Europe, “Should be Based on EU Law and Not on an International Agreement.”

European Digital SME Alliance

Summary: A quick look at the growing bulk of UPC lobbying (by the legal firms which stand to benefit from it) ahead of tomorrow’s European Council meeting which is expected to discuss a unitary patent system

THE EPO has been paying various media companies, including British giants that continue to produce UPC propaganda ahead of the big day tomorrow (embedding talking points from Team UPC). This is beyond a disgrace and should be a very major scandal, but somehow the EPO managed to paralyse the media, including so-called ‘IP’ ‘media’ (trying to play nice with the EPO by simply being silent when catastrophic mistakes are being made). FTI Consulting much?

Reluctantly, as we prefer to make allies rather than foes, earlier today we published a rant about IP Kat, which had become somewhat of a Bristows platform for Bristows' shameless lobbying for the UPC. This afternoon, much to our regret, WIPR did something similar. An article titled “European Council to discuss unitary patent system” got published and it’s little more than a copy-paste job of Bristows talking points. Here is a fragment:

As the UPC is listed as “any other business” for this week’s meeting, there is not likely to be any substantive discussion, according to law firm Bristows.

[...]

Alan Johnson, partner at Bristows, told WIPR: “Everyone has to accept that the result of the UK referendum will delay the commencement of the UPC—and not just by a few months. It is unrealistic politically to expect the UK to ratify as if the vote had never happened, but also without some real certainty that the UK can continue to participate post-Brexit.

“The main question for me is whether the other states involved will be patient and try to work with the UK to find a solution which would allow continued UK participation. It’s not enough, no matter how well-meaning, just to offer words of reassurance that a solution will be worked out in the future if we sign up now.”

He added: “It’s better to get on immediately with the work required to put a modified system together. This is not starting again, but a question of working out a new legal arrangement which the Court of Justice of the European Union will find lawful. If the UK knows exactly what it needs to sign up to, and has the certainty that it will be lawful, it can then take a decision.”

Johnson continued: “I really hope the other states will wait for the UK and work toward this, but if they won’t, that is their choice and there is probably not much the UK can do to stop them. And it should be remembered that if the other states do go down this route, they still have work to do to reach a replacement agreement excluding the UK, including resolving the political question of where the London branch of the central division should go.

“Plus they would have to go through a new round of ratifications, and I can’t see that being a particularly quick process either.”

Hey, who needs the media anymore? Just paste a link to Bristows’ own Web site and be done with it. WIPR should know (and probably does know) that Bristows isn’t a mere observer when it comes to the UPC; it is still interjecting itself into the media for agenda and it’s not alone. Bird & Bird do this as well and this afternoon we found another example. Some patent firms are still fantasising about the UPC that will probably never become a reality (ever!). Well, even from IAM comes a response to this tweet, saying “Well, it’s not likely to be London anymore!”

So clearly, as before, IAM does not believe the UK will ratify anything related to this. Why does Bristows keep fighting? Because it bet the farm on it. It even rebranded accordingly, with its silly Bristows UPC blog (as if it’s trying to ‘own’ the UPC).

In responses to the previous Bristows lobbying, which got published yesterday, commenters are nowhere as optimistic as the Bristows lobby. Virtually all the comments are pessimistic. Here they are in full (so far). Here is the first comment:

Finally, people seem to be addressing the elephant in the room that so far seems to have been almost completely ignored by all interested parties including the EPO, CIPA, and big business: regardless of the pros and cons the current political reality in the UK is that the government will not sign the UK up to any system that requires the acceptance of the supremacy of EU law over UK law. The sooner this is accepted the better. Then people can start working on the practical reality of the situation, no matter how much they dislike that reality.

And then:

I don’t know whether you’ve noticed: nobody seems to know what the political realities are.

So far, the fat lady has not sung – and the thin lady is simply saying Brexit means Brexit and telling the three Brexiteers to keep schtum.

The question of who can trigger Article 50 is a live issue before the UK courts.

Uncertainty reigns and chaos beckons.

Fine, but here it is not supremacy of EU law. It is supremacy of an international agreement over national law, which is quite widely accepted.

Any international agreement, be it on free trade or on the privileges of diplomats, usually has supremacy over national law.

You may well be right on the current political reality, but it is besides the point.

“I think that the UPCA will never enter into force,” one person added, “unless of course the UK decides to remain.” Well, it seems very unlikely at this point and there’s not much time left to decide, either.

Legally speaking, it is absolutely impossible for a non-EU UK to stay in the UPCA (see e.g. art. 1), unless the agreement is amended with an unanimous vote (art. 87.3).

Since the UPCA has been already signed by 26 EU States and ratified by 11 States, I think that the UPCA will never enter into force, unless of course the UK decides to remain.

This is why we’re likely to see nothing emanating from this:

This is from Counsel’s opinion on the UK joining the UPC:

“The Unitary Patent Court is required to “apply Union law in its entirety and … respect its primacy” (Article 20). Union law must therefore be applied in preference to the other sources of law mentioned in Article 24.”

Article 24 specifies national law as an other source of law. That is, the UPCA explicitly requires acceptance of the supremacy of EU law over UK law. The current government may not be pressing full-steam ahead with Brexit at the moment but they certainly aren’t going to ratify any agreement, international or otherwise, that requires this.

And finally (for now):

It is not just any international agreement. It is signing up to an agreement, the rules of which are outwith your control. If the UK does leave the EU, eventually, it will effectively be an observer who recognises and implements the EU laws. That would place it in the position of EPC validation states such as Morocco but still having to participate as a court. That isn’t run of the mill.

In the next 24 hours we should expect a lot more lobbying, timed strategically for tomorrow’s meeting. Bristows has already expressed intent to publish some more of their tripe today (at IP Kat). Don’t let them steal democracy for their own selfish motivations (profit through increased litigation that would be ruinous to SMEs).

IP Kat is Lobbying Heavily for the UPC, Courtesy of Team UPC

Posted in Deception, Europe, Patents at 6:48 am by Dr. Roy Schestowitz

Not news; mostly agenda in disguise, courtesy of Battistelli’s “useful idiots” and collaborators

Bristows LLP and EPO

Summary: When does an IP (or patent) blog become little more than an aggregation of interest groups and self-serving patent law firms, whose agenda overlaps that of Team Battistelli?

THE EPO no longer comes under scrutiny from IP Kat, as we noted late last night. But to make matters worse, when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform. They hopefully, at the very least, realise this and can acknowledge this.

“…when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform.”It is no secret that the UPC would harm SMEs; their representative groups even say so explicitly. But they’re looked down upon by patronising self-serving elements which claim to speak about what’s good for them, if not falsely speak on ‘their behalf’. This is outrageous.

Part of the problem is Team UPC, which includes Bristows that’s a major lobbyist for the UPC, even saying something to that effect (very blatant disregard for democracy). Annsley Merelle Ward from Bristows has been exploiting IP Kat for a weekly (if not more frequent) UPC lobby. Yesterday was no exception. Her headline is a lie, the ‘article’ is just more lobbying with selective evidence, and this was promoted in Twitter yesterday.

“The countdown has seemingly begun again,” she wrote, “but the stakes seem to be even higher. The IPKat will be back tomorrow to report on the Competitiveness Council’s session tomorrow and future debates on this topic.”

“Has IP Kat become UPC Kat? Or Bristows Kat?”So now it’s a daily lobbying spiel? Has IP Kat become UPC Kat? Or Bristows Kat? When a writer is using the blog for her employer (she’s not the only writer there from Team UPC) we can’t help but feel that we’re seeing very low journalistic standards and basically alignment with at least a certain element at IP Kat with Team Battistelli.

Bristows lobbying for the UPC is not limited to IP Kat. We are seeing more of the latest Milan talking points in Bristows’ own blog. It is evident that this firm continues to stomp over British and European democracy with this abomination known as UPC, noting in Twitter that “UPC EPLC Rules amended to include additional Italian qualification, by @Liz_Cohen_” (they’re pushing in this direction, essentially meddling in politics). In another new post they are quoting other members of Team UPC, i.e. the echo chamber, arguing that “DAV says UK could still participate in the UPC system after Brexit and ‘a quick decision of the UK is needed’” (again, they’re trying to rush British officials into an unacceptable trap, using panic and trauma).

We have come to expect this dirty playbook from Bristows, but why has IP Kat been dragged down like this? Why does IP Kat keep pushing for the UPC under the guise of news while no longer criticising the EPO? Here is a recent example where they say “To be, or not to be?”

“They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).”Well, it’s clear that the UPC cannot happen in the UK after the Brexit vote. Why even make it seem like a probability? “Post #Brexit everyone is lining up their bargaining chips,” one member of the patent microcosm wrote the other day. “the UPC is just one of those.” (reporting from a CIPA event)

The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money. The EPO helps them for obvious reasons and the public is never being consulted at all. This is the kind of behaviour which motivated Brits to vote for Brexit in the first place. I have personally written about the UPC (in previous incarnations) for nearly a decade; I’m not unfamiliar with it. They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).

“To say [the UPC can] “take years to build” is optimistic,” I told Bastian Best last night, as “my bet is, it’ll never happen, just be rebranded, repackaged” (remember EU Patent, Community Patent and other names).

“The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money.”WIPR‘s David Brooke, in the mean time, writes about “Opportunities after Brexit,” having just published this article. Team UPC must recognise that Brexit was the winning side (I was against it by the way) and that UPC won’t happen; neither in the UK nor in the rest of Europe (Spain for sure). We’re disappointed to see what IP Kat has turned into quite recently. When you know you’re misleading people and people call you out on it, why carry on? It’s an exercise in futility when one writes for one’s greed and self interest; or whenever speaking ‘on behalf’ of the public, hoping that nobody will pay attention or reject/refuse the obvious deception. When the only criticism of the UPC can be found in IP Kat comments rather than in IP Kat articles you know someone is suppressing one side of the argument (the side which represents the interests of more than 99% of the European public).

Team UPC are very, very sneaky. They pretend things will happen even before they happen (and they never happen). Remember those UK job advertisements for the UPC? How did that work out for applicants?

09.27.16

After the EPO Paid the Financial Times to Produce Propaganda the Newspaper Continues to Produce UPC Puff Pieces, Just Ahead of EU Council Meeting

Posted in Deception, Europe, Patents at 5:38 pm by Dr. Roy Schestowitz

Remember what they did right before Brexit?

Financial Times on UPC

Summary: How the media, including the Financial Times, has been used (and even paid!) by the EPO in exchange for self-serving (to the EPO) messages and articles

THE EPO gives over a million Euros per year to a US-based and rather notorious PR firm. The EPO is essentially corrupting the European media at the expense of EPO budget, i.e. taxpayers and/or fee payers.

A very core part (if not flag bearer) of Team UPC, Bird & Bird, gets a platform or gets embedded in a new article (behind paywall) and then brags about it by saying: “Our @twobirdsIP partner, Rob Williams, speaks to the @FT about the effect of Brexit on the Unitary Patent Court” (“speaks to” means it’s a puff piece in the form of an interview, like those puff pieces that Managing IP has been doing with Battistelli, after prefiltering questions based on what some other journalists told us the EPO likes to do — a form of sanitisation).

The Financial Times was paid (one might even say bribed) by the EPO for UPC puff pieces several months ago, with a huge budget at Battistelli's disposal derived or extracted for lobbying purposes. The EPO gave money to media companies including the Financial Times and it even did this at a strategic time, almost certainly in order to influence the British referendum. Political meddling from such an institution should, in its own right, be a major scandal.

Regarding the piece itself (behind a paywall, so we must go by clues), based on the headline it’s once again the Milan fantasies, pretending that Milan can magically become London. It’s utter nonsense.

A more realistic take on the UPC came today from Dr. Glyn Moody. Unfortunately, his main citation points to CIPA, which has been working closely with the EPO on this (to undermine/steal democracy). Here is a portion of his article, which links to IP Kat:

It will still be possible for the UK to participate in the pan-EU Unified Patent Court (UPC) system after Brexit, according to a new legal opinion, but only if the UK is willing to “submit itself to the supremacy of EU law in the field of patent disputes.” Once established, the UPC will rule on cases involving unitary patents, which proponents say will reduce the costs of using and litigating patents in the EU.

Before the Brexit referendum, the UK was one of the main supporters of the idea of setting up the UPC. The UK government has already signed a lease for the London section of the Central Division and the UK Local Division of the new court system. Whether or not it can still participate in the UPC is therefore a crucial question.

A post on the IPKat blog explains that the legal opinion was put together for the Chartered Institute of Patent Attorneys (CIPA). The institute has been “lobbying for positive participation in the UPC after putting in so much work in advance of preparing the system,” and therefore is keen for the UK to remain a part of the UPC system even post-Brexit.

Benjamin Henrion already told him, “too bad you did not mention Stjerna paper. And Council meeting in 2 days.”

Based on Bristows of Team UPC (update today): “The UPC Preparatory Committee is meeting on 10 October 2016 in Paris. Regarding the Competitiveness Council, as the UPC is an ‘AOB’ item for this week’s meeting there is not likely to be any substantive discussion; the Council’s next meeting is on 28/29 November 2016.”

The “EU Council [is] to meet this Thursday, 29 September to discuss UPC and unitary patent,” they noted separately. As a reminder, Bristows of Team UPC is scheming to undermine both British and EU democracy. All it cares about are its own selfish interests. More patent litigation would mean more business for Bristows and its ilk (companies like Bird & Bird)

Here, incidentally, is a person in favour of the UPC saying that the UK should not ratify and explains why. The following comment was published today (“Meldrew” seems to be a British patent attorney):

I agree with Meldrew that it is better to be in the system than out – but otherwise disagree. Ratifying now creates problems we do not currently have (and we have plenty as it is) – it could lead to the UPC and UP commencing when it is uncertain whether the UK can or will remain in the project. If it can’t, but the UK has ratified in the meantime and the system commences, the situation for UPs covering the UK, the existence and locations of the UK local division and central division branch, the position of the UK judges and the enforceability of UPC judgments handed down pre Brexit are all unclear. None of these are sensible uncertainties to create in the hope that it will all be sorted out through some pragmatic political discussion. Nor do I believe the remaining EU member states will somehow reward the UK for being neighbourly in allowing the UPC to commence without delay, or punish us for not doing so – it is likely to be an irrelevance in the overall negotiations.

This doesn’t even touch on whether ratification now of what is a treaty between EU member states (even if technically not an EU instrument), which requires recognising the supremacy of EU law (in general, not expressly limited to patent law), is politically possible. It is impossible in my view to reconcile ratification with the referendum vote (which went the wrong way, as far as I am concerned), at least until the Brexit terms are known and agreed (and are such that it is politically consistent to ratify).

I am a realist. And sadly, the pragmatic – and sensible – thing to do is simply not to ratify, then wrap the whole UP/UPC/UK discussion in with general Brexit negotiations. This of course means delay since it is difficult to see how the remaining member states can actually proceed without the UK while it remains an EU member state and a signatory to the UPC Agreement. If we end up out, then the UPC can go ahead without the UK at that point, if the momentum remains. If we are in, so much the better, though I see dragons and lions in the path there.

And for what it’s worth, I am a supporter of the UPC/UP system even though I do not believe it to be quite as good or as “necessary for industry” as many have said it is.

Don’t be fooled by the UPC fantasies. The UPC isn’t happening, but Team UPC wants us to think otherwise so that guards are taken down and opposition reverts back to defeatism.

09.26.16

The Moral Depravity of the European Patent Office Under Battistelli

Posted in Deception, Europe, Patents at 7:28 am by Dr. Roy Schestowitz

Workers of the EPO can no longer even speak publicly, not without a 100% assurance of anonymity after Control Risks Group (CRG) got contracted (former Stasi staff from Desa hired)

Anonymous mind

Summary: The European Patent Office (EPO) comes under heavy criticism from its very own employees, who also seem to recognise that lobbying for the UPC is a very bad idea which discredits the European Patent Organisation

THE EPO is not an ordinary institution. People have come to assume that it’s supranatural and all-seeing. Fear dominates. It has become epic in terms of its abuses (against its very own staff, just like in WIPO), even if the corporate media does not cover the subject like it covered FIFA. Lobbying events and corrupting influence over the media might be playing a role here because the corporate media did use to occasionally cover the subject (but not anymore, not recently).

“PwC looks very much like EPO,” writes one person (probably an examiner judging by the signature). “Is any official recognition of burnout at EPO? Of course not,” he or she added in relation to the ‘social’ ‘study’ released late on a Friday. To quote the whole comment, which contains link about the so-called ‘study’ and its preparation (commissioned by Team Battistelli):

EPO Social Study by PwC? Just released this Friday.
Look who’s talking:

https://www.glassdoor.com/Reviews/Employee-Review-PwC-RVW6640457.htm

https://www.glassdoor.com/Reviews/Employee-Review-PwC-RVW9485971.htm

https://www.glassdoor.com/Reviews/Employee-Review-PwC-RVW1377116.htm

http://offbeatchina.com/25-year-old-auditor-at-pwc-shanghai-worked-to-death-time-to-rethink-work-life-balance

http://www.newindianexpress.com/cities/bengaluru/Bengaluru-Techie-Jumps-to-Death-From-9th-Floor-Flat/2016/04/17/article3384729.ece

PwC looks very much like EPO.
Is any official recognition of burnout at EPO? Of course not (http://www.huffingtonpost.com/2013/07/30/worker-burnout-worldwide-governments_n_3678460.html).

Dumb and Dumber Examiner

Another person is obviously “uncomfortable by the fact that the EPO appears to be lobbying strongly” and asks if others are equally uncomfortable, in a thread which is stuffed with comments from the patent microcosm (they too are lobbying, e.g. via CIPA). Here is the comment in full:

Is anyone else left feeling very uncomfortable by the fact that the EPO appears to be lobbying strongly for the UK government to take prompt and decisive action in connection with the UPC agreement (ie to either ratify or withdraw)?

The EPO is a non-governmental, international organisation that was created by, and is controlled by, the EPC contracting states. The UK is one of those contracting states. In my view, it therefore beggars belief that the servant is telling one of its masters what to do.

I would have thought that the EPO really ought to be scrupulous in maintaining political neutrality. This is because being seen trying to exert influence over decisions made by a national government (and over which that government has sole authority) would surely raise questions about whether the EPO employees in question were acting beyond their remit. There would also be questions about whether such lobbying could be seen as undemocratic.

Perhaps BB is so used to obedience from the members of the AC that he has mixed up the identities of master and servant. However, if the lobbying efforts of the EPO come to the attention of Brexiteers within the UK government, I have no doubt that they will waste no time reminding him of the natural order of things.

The UK government has a difficult decision to take. As made clear by the Gordon and Pascoe opinion, participating in the UPC post-Brexit could have profound consequences (including signing up in perpetuity to the supremacy of EU law in a significant number of areas) that may well be unpalatable for many of those in government, let alone the electorate. Whilst I am certainly no Brexiteer, my firm belief is that the UK government should be left alone to mull over these consequences and to reach a decision in its own time. If the other contracting states to the UPC agreement cannot wait the time this will take, then so be it.

Meanwhile, this new press article was released at the start of the week and the first section covers the EPO in light of Brexit. There is no issue at all, except for Team UPC. To quote the relevant parts:

The good news is that Brexit will have no effect on European patents or patent applications. European patents are granted by the European Patent Office (EPO), which is not an E.U. institution. E.U. membership is not a condition of membership in the EPO, and non- E.U. member countries, such as Switzerland and Norway, have long been EPO members.

As a result, you will continue to be able to validate your granted European patents in the U.K., and European patents that have already been validated will continue in force. Similarly, U.K. patent attorneys will be able to continue acting as representatives before the EPO.

We certainly hope that politicians won’t get bamboozled by Team UPC. “Stjerna,” as Benjamin Henrion put it (pointing to a long paper which we mentioned the other day), suggests that the Unitary patent and court system is like “squaring the circle after the Brexit vote” (impossibility).

We certainly hope that nothing will change with regards to the UK’s membership in the EPO, but judging by the alarming recruitment figures (the EPO nearly halted hiring British staff and many of them left) one cannot rule this out. The UK might eventually be left out of both UPC (which will likely never happen anyway, with or without the UK) and the EPO. The UK-IPO, based on British sources of ours, gave them better services than the EPO (where quality can no longer be assured, only the high fees are a certainty).

The EPO is in trouble. EPO insiders know this very well.

09.25.16

Software Patents Propped Up by Patent Law Firms That Are Lying, Further Assisted by Rogue Elements Like David Kappos and Randall Rader (Revolving Doors)

Posted in America, Deception, Patents at 10:57 am by Dr. Roy Schestowitz

It’s not alleged infringers who resort to foul play but those who game the system to classify everyone and everything “infringer” (so as to tax everyone and everything)

Randall R. Rader
Photo from Reuters

Summary: The sheer dishonesty of the patent microcosm (seeking to bring back software patents by misleading the public) and those who are helping this microcosm change the system from the inside, owing to intimate connections from their dubious days inside government

“The district court found all of Sprint’s asserted claims invalid as indefinite under 35 U.S.C. § 112, ¶ 2.”

This is one among various new stories which speak of the tightening of patent scope in the USPTO or outside of it, i.e. the kind of stories that patent law firms don’t want the public to see. It’s not good for lawyers’ business. The stories patent lawyers refuse to cover are notably stories where CAFC smashes software patents to pieces with Alice (or §101) as the basis (it happens almost all the time). How can they overlook so many cases which involve either PTAB or the courts? Are they that biased and dishonest? Yes, apparently they are. Here is another case covered this past week by Patently-O. It says that CAFC “affirms that Affinity’s challenged claims invalid as directed to an abstract idea. when “stripped of excess claim verbiage”, Claim 1 of U.S. Patent No. 7,970,379 “is directed to a broadcast system in which a cellular telephone located outside the range of a regional broadcaster (1) requests and receives network-based content from the broadcaster via a streaming signal, (2) is configured to wirelessly download an application for performing those functions, and (3) contains a display that allows the user to select particular content.” Slip opinion.”

“Even today, on a weekend, McRO still pops up in news feeds.”A few articles that we mentioned before, e.g. [1, 2], continue to resurface in news feeds along with others (new ones [1, 2, 3, 4]), serving to distract from cases like the above. The patent microcosm in the US is still trying to resurrect software patents and misleading or selective coverage seems to have become the means, as was the case earlier this year with Enfish. The cherry-picking involves even two patent lawyers at Watchtroll — a site which blasts the UN for what it calls an “Attack on Patents”, dubbing the UN’s report “fundamentally flawed” because it’s not good for maximalists. We’re not sure whether to laugh or cry because in the eyes of these people patent scope is just a nuisance or a travesty, rather than the thing which serves to legitimise the patent system and sometimes even protect investment in research (not the case when it comes to particular domains). At the middle of the month we said that software patenting proponents can go on for weeks milking McRO [1, 2] and this is exactly what is still happening (for nearly a fortnight now). Even today, on a weekend, McRO still pops up in news feeds. Why just McRO and why not the many other CAFC cases which deemed software patents invalid? That’s part of their propaganda tactics. It’s sad and we challenge anyone out there to prove that it’s untrue.

“Just more wishful thinking from patent maximalists looking for the right moment to stack statistics and issue some self-serving, deceiving statements.”A patent attorney who promotes software patents (and confronted yours truly on the subject before hiding behind a block) relies on small sample set of just 4 (yes, four!) to lie about the status quo. The other day he wrote: “Over the past 2 weeks, District Courts have denied motions to dismiss patent infringement cases based on 101/Alice 3X and granted 1X.”

Based on that tiny sample set he said: “We may be seeing the beginning of the end of the patent slaughter by Alice. It will take awhile for the USPTO to catch up.”

Are these patents (on software) coming back? Not by a long shot. Just more wishful thinking from patent maximalists looking for the right moment to stack statistics and issue some self-serving, deceiving statements. Same as Team UPC (see proponents of the UPC having a go again this weekend, e.g. in the IP Kat‘s comments [1, 2, 3], copying in their Google Plus posts into IP Kat while repeating the old tired talking points).

“They hope to attract more business, i.e. patent applications, litigation, etc.”The patent microcosm (both in the EU and the US) continues to lobby for its own interests and lies about all sorts of things. This leads us to the assumption that patent lawyers can be dishonest to the extreme and that their assessments of the status quo are more like shameless self-promotion, not objective advice. They pretend not to see what they prefer not to see. They are not helping clients, they are misleading them. They hope to attract more business, i.e. patent applications, litigation, etc.

The McRO hype one sees in the media this month is in vain; it was the same with Enfish. It barely changed anything at all. Even proponents of software patents (for many years now) — those who do not necessarily gain financially from them (as they just write about the topic) — go with the headline “Despite the CAFC’s recent 101 decisions don’t expect a deal frenzy or rapid rises in patent values”. To quote this article from the end of last week:

Over the summer, the Court of Appeals for the Federal Circuit (CAFC) issued three decisions in software patent cases which, collectively have resolved some of the questions hanging over just what is eligible for patent protection. The most recent decision, McRO (dba Planet) v Bandai Namco Games America which was issued last week, has made arguably the biggest impression on the patent-owning community. Microsoft’s IP head Erich Andersen declared in a blog post that the decision “strengthened the law related to software patent eligibility under Section 101 of the Patent Act”.

Now bear in mind that’s what IAM says. It is typically amplifying Microsoft and their former ‘IP’ people (heck, their entire online system is heavily/purely Microsoft-based, which is rather unusual in this area of computing). Even IAM does not believe that McRO is going to change much. Regarding the person they cite, we have mentioned the above from Erich Andersen at least thrice since the McRO decision, noting that it proves just how much Microsoft pushes for software patents (even paying a lobbyist, David Kappos, for this purpose). Has David Kappos already registered as a corporate lobbyist? If not, he should. It would embarrass the USPTO for sure, but disclosure requirements for public officials are imperative. Is the USPTO’s pension plan so appalling that former officials need to turn into lobbyists for money (corrupting influence)?

“Even IAM does not believe that McRO is going to change much.”Speaking of corrupting influence, Randall Rader, the corrupt CAFC judge (we wrote about it before), joins the industry after he left (or was ejected) in disgrace. Systemic corruption doesn’t get any worse than this…

Here is what IAM wrote about the subject:

It’s all happening at China’s latest high-tech darling LeEco – one of the country’s fastest growing brands. Recently, it has pulled off a series of apparent coups as it continues to shore up its IP credentials ahead of expansion at home and abroad. But it also seems that one high-profile name has left the company after a matter of months.

Randall Rader, former chief judge of the US Court of Appeals for the Federal Circuit and one of the world’s most renowned IP jurists, signed a “strategic cooperative agreement” with LeEco while visiting the company’s headquarters in Beijing, according to a report yesterday from Beijing-based IP agents firm Sanyou.

Speaking to IAM, a spokesperson for LeEco’s IP department confirmed that Rader will be formally collaborating with the firm, but could not give further details; so, we’ll have to wait for more information on his role. When Rader quit the CAFC back in June 2014, China, and the Asia-Pacific region more broadly, featured significantly in his post-retirement plans. What exactly he will bring to the company isn’t clear. Perhaps his participation points to a belief on the part of LeEco management that they could potentially be involved in a lot of litigation once they enter the US market in earnest. Alternatively (or additionally), Rader is well-known as an IP teacher, so could be working with LeEco IP personnel to bring them up to speed with key international issues and doing in-depth training.

Recall articles of ours like "The Corrupt Judge Rader (of CAFC) Still Pursuing Bad (More Aggressive) Patent System in the US" and "Judge Randall Rader Redefines “Patent Troll”". Expect to hear more about this scandalous figure in years to come, this time due to his capacity inside the private sector (like revolving doors).

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