No, it’s not happening unless one is gullible enough to believe EPO-funded media
Summary: Another long installment in a multi-part series about UPC at times of post-truth Battistelli-led EPO, which pays the media to repeat the lies and pretend that the UPC is inevitable so as to compel politicians to welcome it regardless of desirability and practicability
THE UPC-CENTRIC EVENTS that we are seeing these days, some of which are organised by MIP (Managing IP) and IAM with support from the EPO, are a symptom of a rogue operation. Kluwer Patent Blog, part of Team UPC, continues to lobby for the Unitary Patent in the UK, even when it’s neither doable nor desirable, for reasons we are covering in this long series. Yesterday’s article from Kluwer Patent Blog was titled “Judge Grabinski: ‘Involvement UK is very positive for Unified Patent Court and Unitary Patent’” and it has attracted responses like “No democracy: such amendment would not need a revision of the UPC but could be implemented by the Administrative Com” or “Administrative Committee to replace the role of Parliaments to adapt the UPC in case UK leaves, pretty insane…”
Another part of Team UPC is joining this echo chamber. They are blogging about themselves under the heading “UK signals green light to Unified Patent Court Agreement”. But can they actually do this? No. Not really.
Earlier today we we covered yesterday's so-called 'roundtable' of the USPTO, noting the effect of having events or panels that are stuffed with just one side, barring any opposition from entering or at least speaking. This is what Team UPC has been doing for a long time and many examples were covered here over the years, predating even the name “UPC”. UPC hopefuls write about Brexit and the UPC, but the two are still incompatible. Watch what Darren Smyth, a booster of the UPC, wrote only days ago. Who is he kidding? Following all the misleading coverage from press paid for/bought directly and less directly by the EPO, some people still piggyback the false perception that the UPC will certainly come to the UK. Sorry, that’s not going to happen. Stop living in your bubble, UPC hopefuls…
All those sham debates like the one we wrote about this afternoon may make Team UPC feel confident, but they’re in for a surprise.
“Too many patent lawyers to my taste,” Henrion wrote to us regarding yesterday’s USPTO ’roundtable’. He watched the whole thing and said “Nader was there, but not even a[ny] software developers among the panels.”
Did we ever see any software developers at UPC events? Nope. Just lots and lots of lawyers and sometimes large businesses and executives who hire these lawyers. The EPO also dispatches Margot Fröhlinger to lie to the audience these days. Talk about preaching to the choir… what a pointless exercise in lobbying (to guests like politicians).
“UK government’s intention to ratify the UPC Agreement,” MIP wrote the other day (“Unitary Patent and UPC: A progress report” by Kingsley Egbuonu in London). But that is just meaningless if it cannot be done (it can’t). Here is how Egbuonu summarised it:
The German Federal Ministry of Justice updates Managing IP on Germany’s ratification timeline; IP Federation, BioIndustry Association, EPLAW and the UPC Preparatory Committee respond to UK government’s intention to ratify the UPC Agreement (UPCA); and some of the developments we expect in the coming months
Need we remind readers that MIP, Egbuonu’s employer, is virtually in bed with the EPO? We wrote about half a dozen articles about MIP’s UPC advocacy and relationship with the EPO. Do they really think that the public isn’t seeing this? Do they honestly believe they’re seen as objective observers?
Germany is still needed for intent to ratify the UPC. As Steve Peers put it last week: “UK & DE ratification will bring Unified Patent Court treaty into force treaty: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2013.175.01.0001.01.ENG&toc=OJ:C:2013:175:TOC … ratification: http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=2013001 … https://twitter.com/BrunoBrussels/status/803260415425843202 …”
It’s not as simple as that at all. In fact, if it ever gets this far, the population will quickly learn about what’s going on and then point out that these agreements are not constitutional and that the public is not being informed. It’s going to end up like ACTA and TPP.
Even UPC boosters like Darren Smyth wrote: “This does rather increase focus on the question of where is the German ratification? Are they ready to ratify yet?”
See this first comment on Darren Smyth’s cheerleading a week ago: “”pretty much a certainty” is a pretty bold claim in today’s world Darren!”
Here is another comment addressed at Darren, the UPC pusher (see his role in UPC propaganda events nowadays):
Sorry Darren, but “proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA)” does not mean the UK will ratify the UPCA. The ratification is anything but certain.
The move is simply to gain time and to try to have a better bargaining position when the actual Brexit negotiations are starting.
The day UK will sign the protocol on immunities, I will believe that ratification is on its way. Before this, it is just gobbledygook.
In clear it means UPC is further delayed. As long as UK threatens to ratify the UPC, but actually does not do so, the UPCA will be held in limbo. It is meaningless to continue with the preparations if there is no clear will to ratify. The present statement is anything but a guarantee for ratification.
And even if UK would ratify, could any sensible representative advise his clients to go for a unitary patent when it is not clear what the future of the UPC will be once UK has left.
A proper decision on the ratification will not become before the start of negotiations under Art 50 Lisbon. It should be by March 2017, or even later when taking into account the legal battle about the involvement up front of the parliament.
The situation created by this statement is not very pleasant for the remaining contracting states, but that is not to be a surprise. It is like the participation in the EU: we want to participate, not for the sake of being a member, but simply to insure that nothing can happen which goes against our interests.
The only way for the other contracting state to get out the deadlock is to give a time limit to the UK for deciding whether they want to ratify or not.
And it goes on, without exception. Nobody in IP Kat comments has expressed any optimism about the UPC in a post-Brexit UK. The next comment says:
As some other commentators have remarked already, the government statement should not change much for the moment.
Bearing in mind the history of the UPCA and its contents, it is a rather bold claim to say that the UPC was “not an EU institution”. On the other hand, this is pretty much along the lines shown by the UPC proponents from the patent profession. Also, we have repeatedly seen such formalistic sharade being applied in the very same context, e. g. when it comes to the solution on Art. 6-8 or the position of the EPO in relation to unitary patent protection. It is rather characteristic of the project as such, that a government obviously sees itsef forced to rely on positions as weak as these.
Anyhow, the announcement should bring the German ratification procedure back to life shortly. Should it be completed smoothly (which is not certain), I would expect that at least the German ratification instrument will not be deposited until there is a binding solution of the UK ratification issue instead of cloudy declarations of intent.
“I’m forging ahead with my castle-building program for my goldfish,” one person said with the help of a parable, “even though it has been floating on its side for a week.”
“The one about building a castle for my dead goldfish is my favourite,” Tufty the Kat wrote about it in Twitter.
Many people already realise that the UPC bubble is about to burst, no matter what Lucy ("in the Sky With Diamonds") says. Just look at this tweet which seemingly agrees with the comments in IP Kat, even though it comes from Christopher Weber, a self-serving UPC proponent from Kather Augenstein. Recall Lucy with her photo op next to Battistelli -- one that she publicly bragged about. It basically sums it up, does it not? Those two were already pretty close, and one seems to have taken the role of “pawn”. Here is another visual reminder as a photo (or picture) is worth a thousand words:
Dr Luke McDonagh’s remarks in Twitter are also quite noteworthy. Here he says: “PM May: “The UPC is not an EU court. Let’s ratify.” Baldrick: “But the UPC is bound by EU law & CJEU.” PM May: “Shhh, Farage may hear us!””
We know some people who have already contacted UKIP about this and UKIP is aware of the issues. That won’t go down well, will it?
The UPC simply won’t (probably can’t) be ratified in the UK once businesses and people realise what it is and what it can do to them (not for them). McDonagh added: “But leaves UK in a position more enmeshed with EU law than before June 23rd ref; makes hard Brexit yet more awkward…”
“Postpone the difficult questions for later,” one person wrote to explain what May and Lucy do for Battistelli here.
Here is another comment about this unexpected and bizarre move:
What a pointless exercise.
Why should the UK ratify an agreement it may well be forced out of during Brexit negotiations? Is the UK really so naive as to think that the EU is not going to look after itself first?
Without a guarantee the UK should sit still and let the negotiations play out…..
Another person said: “This is beyond exciting. The wheels are still on the bus. It remains to be seen if there is sufficient fuel in the tank to reach the next service station, let us hope the journey is largely downhill and without too many red lights.”
And here comes another: “Wow! A case of the UK sacrificing its UK litigators to help smooth Brexit negotiations? Ratify so as not to block the UPC and then hope (or rather desperately wish) that some fudge deal will be found to allow the UK to participate at some point in the future when no longer an EU state.”
Another one: “Bonkers. Absolutely bonkers. How can we be signing up to the UPC whilst simultaneously leaving the EU and ending the jurisdiction of EU courts over the UK? Nothing about the way Brexit is being pursued by HMG makes sense, but then I guess we shouldn’t expect differently when HMG has been set such an impossible task.”
Like we said earlier, not a single comment is optimistic about this. “So we are going to have UE rights in force across Europe (in the UK) at the time of Brexit,” one person wrote hypothetically. “Will we also get transitional provisions to turn those into UK patents?”
The answer to this rhetorical question is “no”. It makes no sense whatsoever.
“I fear that this is the worst of both worlds for the UK profession,” wrote another person. “I had watched my Trade Mark colleagues who are today in an EU system and who are faced with the prospect of exiting it with a certain smugness until today. Now we have contrived to enter a system that we may need to leave.
“Blinding negotiation tactics too Neville-Rolf!
“Of course it is what CIPA appears to have been pushing for (although who knows what they have been doing really as they move in mysterious ways), either because they are skilled tacticians or terribly naïve. Time will tell which it is.”
Another person called it “Astonishing!”
“Perhaps the conclusion is that this improves the UK’s negotiating position,” this person added, “especially if the court gets well “embedded” in London?
“Not the best outcome for patentees, though. Even more uncertainty added to the UPC (which creates a great deal of uncertainty on its own – particularly during the transitional period). Should be fun working out all of the permutations for this one!”
Now quoting Theresa May herself to highlight the contradictions:
Theresa May. October 2016. Conservative Party Conference.
“Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end.”
“We are going to be a fully independent, sovereign country – a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts.”
“But let’s state one thing loud and clear: …. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen.”
So again, May is contradicting herself. She’s trying too hard to appease CIPA and some law firms.
Then came the epic comment that mentioned Michel Barnier‘s role in the UPC and it is pretty great an observation:
And the roller coaster continues…wow, just wow, haven’t had this much excitement in years, please pass the paper bag, I’m feeling a bit queasy. So according to our illustrious representative for IP, the UK is continuing with its efforts to sign up to a deal that will force sovereignty of the EU court system on its national courts even if it is no longer a member of the EU – can’t imagine how that will go down with the erudite population that so loudly voted to “take back control”…and, in passing, one in the eye for the greedy Italian governement though, eh, thinking its day had come to shine and bask in European institutional glory ? I wonder what Michel Barnier thinks of all this, he was after all, the mouthpiece of the political rationale to cajole the various EU states into agreeing to the UPC in the first place – the mind boggles !
Here is another good comment:
It seems Britain really does want everything: to leave the EU but to remain part of an important new EU patent system (which most of the Europeans outside Germany, France and UK didn’t want anyway). How can it think to ratify the UPCA when is has voted not to be part of the larger EU?
Isn’t this a case of the bureaucratic machinery wanting to plough on when the field has already disappeared in the storm?
Madness indeed and probably a waste of tax payers money..
Sorry to say (as a UK ex-pat lawyer) but the UK government behaving like a big kid that wants to eat the cherries and cream on the top of the cake but has already refused to eat the sponge layers….
A good parent would say, sorry Sweetie but you can’t have it all…
“This is just a pressure release valve,” explained a person, “they had to say something so they’ve said we’re going to keep going. No timescale on actual ratification, or even a commitment actually to ratify.”
And in reply to the above:
I too spotted the absence of a firm commitment to ratify.
If this is simply playing for time, however, it would have been better if the IPO had avoided statements such as “It [the UK] will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible”. If that is not intended to mean what it so clearly implies, then the UK will end up burning a lot of bridges… which would not be the best of starts to exit negotiations with the EU Member States!
So the media, some of it funded by the EPO, missed all these comments from actual insiders who know this stuff. “These are truly astounding news,” remarked a commenter, “that deserve a much wider circulation than the cozy club of patent specialists. But will anyone care in these times that some call “post-truth”?”
Another person asked: “Which department would ratify the Agreement? Is Neville-Rolfe’s or Boris’s?”
Well, they cannot pretend it’s not an EU thing, as the following comment points out:
Perhaps she hasn’t read the opening paragraph of the brochure on the UPC web site helpfully called “An Enhanced European Patent System”
“In December 2012 the Council of the European Union and the European Parliament agreed on two regulations laying the foundation for unitary patent protection in the EU. Shortly afterwards, in February 2013, 25 EU Member States signed the Agreement on a Unified Patent Court (UPC).”
I know she has been busy lately…
Later on another person wrote: “The UPC refers questions to the EU court. So will EU decisions have two incarnations – one ignoring the EU court decisions, and one for continental Europe?”
Still, they cannot simply pretend it’s unrelated to the EU. In the words of another commenter (most are completely anonymous, so there’s no fear or retribution for being honest):
From the official news release: “The UPC itself is not an EU institution, it is an international patent court.”
Ah, sure. Except that Art. 20 of that very agreement you intend to ratify explicitly says that the UPC shall apply European Union law in its entirety and shall respect its primacy, and Art. 21 adds that decisions of the Court of Justice of the European Union shall be binding on the UPC.
I knew we had now entered the post-truth era, but we are now into post-logic territory as well…
What would be funny now would be if Germany started dragging its feet on ratification, to get some extra leverage in the Brexit negotiations…
This UPC-related “announcement was devised by little Baldricks,” said the following, “completely clueless…”
I’m with the commenter “do not pull my leg”.
The announcement was devised by little Baldricks, completely clueless how mainland European minds work, who think they know how to “game” the forthcoming BREXIT negotiations, who have their cunning little plans how to come out of it with the best “deal” for England.
To those infected by wishful thinking I would suggest that the announcement reveals no HMG commitment whatsoever, just more playing for time, by an Organisation that hasn’t a clue what to do next.
Another response to the same post called it “bullshit beside reality!”
A longer direct response said:
our comments suggest that you believe that mainland European minds and English minds work differently? At best that sounds like some mild racism, or possibly you adhere religiously to national stereotyping? Without even appreciating which nations are involved: “Brexit means UK exit”. At least for the time being, the little Baldricks are meant to be devising cunning plans for the best “deal” for the UK.
I entirely agree that the little Baldricks don’t actually have any cunning plans and that HMG hasn’t a clue what to do next. Otherwise we wouldn’t need any announcement before actual UK ratification. Perhaps some political justification was required for the continuance of the ongoing UPC project at Aldgate Tower in London?
Responding to the above, one more person wrote: “Actually, it’s much simpler. HMG needed to give a firm decision at yesterday’s Competitiveness Council, because otherwise other European countries were planning to go ahead without us.”
So the consensus seems pretty clear in IP Kat comments. It’s a shame that the media, led by EPO-bribed publications, missed the real story and instead parroted publications like the Financial Times, obviously unaware of its financial ties to the EPO.
IAM has meanwhile been trying to shame Germany into the UPC. It has done this quite blatantly for a while and Benjamin Henrion wrote that they are “working on a Constitutional appeal in Germany. CETA was in the same process.”
“To the extent that the British public cares,” noted another observer, “this is going to be tricky to explain #UPC,” later noting “I say tricky, I mean it’s going to be highly entertaining to see the intellectual contortions necessary.”
“All [?] legislation for participation in #UPC has passed,” this person said later, “so no time for awkward questions in Parl’t”
Actually, there is plenty of time. Just a statement on some Web site is hardly enough to propel the UPC into a reality.
“This is true,” wrote the mouthpieces of Team UPC (MIP), “although it’s hard to think of a lobbying group that would push the anti-UPC case in UK at this time.”
Wait and watch…
It was the same in the days of battles over software patents.
“So Brexit means Brexit,” IAM wrote, “but maybe it’s going to be a bit softer than the rhetoric suggests. UK’s UPC ratification will create much goodwill.”
For who? IAM and its readers? On a separate occasion MIP wrote “UK to ratify UPC. Huge news for Europe, for global patent litigation & maybe an indication that whatever the rhetoric Brexit will be softish” (either way, Brexit means that UPC would be tricky if not impossible to start/maintain).
There were also some responses from other countries (“#EUCouncil #Compet Good news – UK about to ratify the unitary #patent agreement”), but these fail to take into account practical limitations. Who is this good news to? Patent law firms? Patent trolls? Patent bullies? All the above? At whose expense? And are they just building false hopes?
The real casualty here is the media, which Battistelli continues to corrupt as we wrote this morning. No wonder so many people fell for the delusion seeded by the Financial Times (financial ties to the EPO). █
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Confer recent paper from Professor Joshua Pearce, "A Case for Weakening Patent Rights"
A Case for Weakening Patent Rights
[PDF] (shown above are the first five pages among 70 in total)
Summary: A rebuttal to some new articles about patents, especially those that strive to increase patent-related activities (usually for personal gain)
THE scope of patents in the US has been tightened by the US Supreme Court under Obama, but there is a growing threat — and belief among patent maximalists — that things will change under Trump (perhaps premature to speculate about this). PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).
According to this new article, the “Supreme Court Patent Cases Haven’t Hindered Diagnostics Innovation, Preliminary Data Suggest” (article behind paywall). They might be referring to cases like Mayo (Supreme Court) and they need to stop conflating patents with innovation. In some cases, not only do patents contribute nothing to innovation but they actually harm innovation.
“PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).”Gary D. Colby, writing for the New Jersey Law Journal (behind paywall), has just published and repeatedly pushed an article titled “Software Patent Eligibility May Be Informed by Copyright Law”. The summary/outline says “Dissents in two recently decided cases suggest that patent eligibility of “intangible” inventions finds analogies in copyright eligibility.”
Well, software developers want only copyright to protect their code. Many polls/surveys keep showing this, yet the patent microcosm ignores the findings and pretends that software patents are desirable (to the litigation industry they are definitely desirable, but at whose expense?).
As soon as the week started the patent microcosm started commenting on PTAB and “inventorship” (something the lawyers never did, they only speak about it). To quote the concluding part, “until the PTAB rules definitively that inventorship error is not a ground on which PGR may be based, it is our view that failure to raise that ground in a petition will most likely lead to an estoppel on the issue. See 35 U.S.C. § 325 (e). Thus, for now, any PGR petitioner that thinks it might have a possible basis for challenging inventorship better raise that ground in its PGR petition or risk being estopped from later challenging the patent on that basis.”
“Well, software developers want only copyright to protect their code.”The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship. These sorts of fairy tales that are perpetuated ad infinitum in legal blogs do a lot of harm and software patents propagandists (who do not even know how software works!) call reformists the “patent infringer lobby” because they are trying to undermine Alice and the likes of it. See this disgusting latest article from Watchtroll for example. What is this? Is Watchtroll some kind of a troll? A spokesperson for patent trolls?
One last article worth noting was published by Jason Rantanen about the Court of Appeals for the Federal Circuit (CAFC) and it said this:
As expected, for the fiscal year ending on October 31, 2016, the Federal Circuit docketed more appeals arising from the U.S. Patent and Trademark Office than from the district courts. This result will almost certainly hold true for the calendar year as well: from January through October of this year, the Federal Circuit received 471 appeals arising from the district courts and 560 appeals arising from the PTO.
That’s because of PTAB, which is a growing force after AIA (the catalyst that introduced it). Some patent maximalists now use this as an excuse to weaken or lobby to altogether eliminate PTAB, bemoaning the ‘flood’ of appealed PTAB cases (examinations/IPRs) as though it justifies anything but more (new) hirings at CAFC. As is the case with programming (code), sometimes it requires more work to actually remove code than to add/write new code. In this case, what the USPTO needs is less patents, not more patents. It’s worth investing money in invalidation of bad patents. Sometimes less is more (or better quality of patents, higher certainty and so on).
“The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship.”The US is currently in the process of cleaning up a mess created (or culminating) in the David Kappos era and thankfully we now see software patents being invalided by the thousands and patent lawsuits (including the majority of which that are filed by patent trolls) in a freefall.
It’s good for everybody. Except the patent microcosm… █
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Imagine one of those infamous panels about poverty and hunger in Africa, where not a single person on the panel is African…
Excluding voices so as to include more patents (wider scope)
Summary: A look at yesterday’s “Roundtable on Patent Subject Matter Eligibility,” which lacked involvement from those actually affected by patents rather than those who sell, trade, and exploit these
ABOUT 24 hours ago the USPTO tried to pretend to be transparent by broadcasting a debate which was barely open to participation (read only, not read/write). As can be expected from such an event, key voices or views were prominently and conspicuously absent. “HAPPENING NOW,” the USPTO wrote in Twitter“, was a “talk on #patent subject matter eligibility until 4 pm ET today. Watch the livestream…”
“Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm?”How about actually speaking with them rather than being mere spectators? Were there any “real software developers [...] on the panel?” That’s what Benjamin Henrion rightly asked them because, as he later put it, “if you can follow the live stream, not many developers around.”
Daniel Nazer from the EFF quoted Jeffrey Dean of Amazon as saying that Alice invalidates patents that “remove more from public domain than they contribute to the public store of knowledge.”
“It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect.”We remind readers that Amazon is among the pushers for software patents. Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm? Where are the actual developers? Their voice does not seem to matter at all when laws that apply to them are discussed. Henrion asked Nazer (not a developer), “are you on the chat?” Nazer never responded, but we’re generally used to this kind of conceited (high horse) attitude from EFF lawyers.
Either way, Henrion streamed the debate into a file and proceeded to YouTube uploads because “[t]he videos don’t play in Chromium, maybe MP4 patented format is to be blamed.” (which would be ironic!)
See herein the debate as it was uploaded, having been divided into four parts:
“Loved the slide with the big prime numbers multiplication,” Henrion remarked.
It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect the most. To the organisers, that’s a feature, not a bug. Bias by design/composition. We see a lot of that in UPC panels/events/debates/consultations and here we have it when patents on software are at stake. Published earlier today by Juristat (targeting “patent lawyers”, based on its own account description) was this slide about “pros and cons of software patents”; well, judging by their Twitter activity, Juristat is more like a Trojan horse that would not tell the complete story about software patents as there are “many more arguments against them,” to quote Henrion’s response, than there are for them (profitable to patent lawyers etc.), as any software developer can probably tell. █
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EPO chair and budget for personal agenda. Not only Eponia is being ruined by Battistelli but also the integrity of media.
pwn3d by Eponia
Summary: The lies about the Unitary Patent are now being broadcast (Battistelli given the platform) by the publication that Battistelli pays
“SMELLY” behaviour from Battistelli has become so mundane or banal that it usually isn’t worth reporting. It doesn’t merit special attention, but Les Échos is a special case which we wrote about many times before, e.g. in:
“The UPC Scam” series will resume later today and Battistelli’s role in it is clear and is growing.
Here is the latest “blog” post of Battistelli (warning:
epo.org link), promoted by the PR people and lying about the prospects of the UPC, as usual. The Liar in Chief took the time to spread UPC misinformation, doing so several days after the very misleading coverage from publications that he bought/paid for directly and less directly. They did this last week, as we mentioned in last week’s articles, and Les Échos too participated in this misleading coverage.
Apparently, one misleading article wasn’t enough as the EPO wants to gets its money’s worth, so now they hand over to the Liar in Chief, again with false predictions (as before, regarding 2016). They are using self-fulfilling prophecies as a method/trick for compelling officials to sell out (wrongly assuming inevitability) and make promises they cannot even commit to (due to constitutional limitations, among other limitations). “Another Mouthpiece EPO Funded Propaganda published by Les Échos,” one EPO insider called it.
Les Échos should be ashamed of itself for being a tool of a vindicative thug, a serial bully, a chronic liar, and the person who is right now the biggest embarrassment to France, according to a growing number of French politicians. █
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‘Damage control’ from the most damaging (to the EPO) President ever!
Click for large version
Summary: A look at Battistelli’s response to the latest from the International Labour Organisation (ILO), exceptionally delivering two decisions at the very end of last month
THE ILOAT recently slammed (albeit politely) the Internal Appeals Committee of the EPO. It has been a sham for a long time, the Tribunal found. This means there was no Rule of Law or justice (no functional access to real justice) at the EPO under Battistelli. Presidential decrees and legal harassment/bullying by the President turned the Office into a laughing stock all across Europe and even the world.
As expected, late on a Friday (the usual) Battistelli responded with more of the usual lies and hogwash. The EPO is experiencing a post-truth era, so why not again? The response can be seen at the top. But it’s all wrong.
Note that in July of this year the EPO, in Judgment No. 3694, was already reminded of the importance of a properly-formed Internal Appeals Committee. The present formation of the Appeals Committee, with the two “volunteer” Staff Representatives, was preceded by a short period where there were no Staff Representatives on the Committee at all. In Judgment No. 3694
[PDF] the ILOAT sent a case complaining about that arrangement back to the EPO “so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal.”
Here is some background from the CSC side — a publication from 2014 (four pages).
It’s not too hard to see why the EPO feels as though needs to lie again. It got caught in a scandal — one in which cyclical lies are essential (like the Watergate Scandal). When asked for its response by IP Watch, which wrote an article on the subject, “The European Patent Office has emailed some gobbledygook in response to the article of IP-Watch,” as one person put it.
Earlier today we wrote about the quarrels Battistelli has with French politicians and the latest comments in The Register further reinforce the observation that Battistelli tarnishes the image of France. One person even called it “typical French behaviour” and alleged something to that effect; “I would say Battistelli is a typical Frenchman,” the comment says, “arrogant, does not listen to critique, believes he is superior to the rest of the world. France in a nutshell.”
A new comment in IP Kat says, “according to my info Battistelli also left the office of the German Minister Heiko Mass, with a “connard” (loud enough to be heard by the Minister Maas who speaks FR) – he also clashed with the NL state secretary, with the head of USIPO and JPIPO. to be continued…. Hey bro’ who’s the boss in da EPO ?”
“Let’s hope the AC delegates act before it is too late.”
–AnonymousA tongue-in-cheek comment said: “Currently being rolled out in the EPO is a PRISMA information security policy, it is not about information theft prevention but information manipulation on a scale never seen before! … BB’s chiefs, HR and the IU are taking key positions and use information control tactics to gain ultimate control over Eponia and any opposition. Let’s hope the AC delegates act before it is too late.”
Look what has become of what used to be the pride of Europe. Time for Battistelli to resign rather than continue his charade of lying and finger-pointing. █
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Remember that the EPO under Battistelli spends over a million Euros per year just manipulating the media
“[Microsoft's] Gates is trying to make sure that he has a proprietary position in controlling the tools that allow you and me to access information. And that’s profitable by definition. How would you like to own the printing press?”
–PaineWebber Media Analyst Christopher Dixon
Summary: Our observations regarding the apparent media disinterest in EPO scandals, especially at the very core of the EPO (principal host country)
LAST year, this year [1, 2, 3], and to some lesser degree even 2+ years ago we explained why German media barely covers EPO scandals (which happen right next door), being connected to beneficiaries of this whole arrangement in Munich and Berlin. Last week we also noted that the media in tiny Luxembourg wrote more articles about EPO scandals (in German!) than the German media itself. This is not acceptable. It’s almost as though it has got to be intentional. There is no lack of interest among the public, maybe cautiousness among media owners. Based on threats we received from the EPO (with wrong name in one of the letters), the EPO bullies other publications critical of the EPO (German-sounding names in the recipient’s template). We have more evidence that serves to reinforce a SLAPP culture under Battistelli, whose Vice-President has a history (proven track record) doing this for years in Croatia. Baseless legal threats induce self-censorship. Don’t forget that the contract with FTI Consulting targets Germany in particular. “Battistell & Clique must be stopped,” one reader told us, “and brought before court (like Volkswagen and other gangsters. Mafia).”
The EPO was covered quite widely in Dutch media this past week, and it’s not good news for Battistelli. But where was any of the German media?
Here is one new article from NRC. To quote the Dutch text: “De bedrijfscultuur bij het Europees Octrooi Bureau (EPO), gevestigd in Rijswijk, is nauwelijks verbeterd. Dat blijkt uit een brief van staatssecretaris Martijn van Dam (Economische Zaken, PvdA) aan de Tweede kamer. „Er is sprake van een wij-zij cultuur, gebrek aan wederzijds vertrouwen tussen management en personeel en een gebrek aan gedeelde waarden”, schrijft Van Dam. De kritiek van vakbond SUEPO, die de helft van het personeel vertegenwoordigt, is dat de Franse EPO-president Benoît Battistelli een autoritair bewind voert. In strijd met een resolutie van de raad van bestuur is in Rijswijk onlangs opnieuw een vakbondsbestuurder ontslagen, bevestigt Van Dam. De Hoge Raad besluit in januari of het EPO als internationale organisatie „immuun” is voor het Nederlandse arbeidsrecht.”
“Same story as this but shorter,” Petra Kramer told us about it. “Van Dam wrote a letter about EPO to the House.” We have already published Kramer's translation of the longer story.
Another large news site in Dutch covered these events a few days ago. To quote: “De hervormingen bij het Europees Octrooibureau (EOB) moeten worden voortgezet. Er zijn goede vorderingen gemaakt, maar er is nog te veel niet goed geregeld bij de instelling.”
And here is yet another new article in Dutch. We welcome translations.
Even some IP Kat comments mention the Dutch, e.g.:
It is tale telling that Ms Esther Ouwehand from the Dutch Animal Party has to take up the cause of the endangered species – the officials of the EPO. They are beyond hope, like the elephants
“The EPO was found guilty of infringing Human Rights by a second instance Dutch court,” a provocateur is being told in another comment:
The EPO was found guilty of infringing Human Rights by a second instance Dutch court. The case is now pending at the highest court.
You mention money, working conditions, etc. Do you really believe this entitles the EPO to infringe on Human Rights?
You somehow missed the point that moving the Boards is pointless.
Increased appeal fees will render the European Route very unattractive and pave the way for abuse from the part of the EPO/the examiners. The future of the UPC is uncertain, and certain EP member states are not and will probably never be members of the UPC (e.g. Switzerland, Turkey).
Please, cool down your emotions and consider carefully what you intend to post.
Regarding the UPC, we have a lot more to say about it. A petition against it may be on its way very soon.
The following new comment mentions the “Dutch Press”:
An AC storm is brewing! …
It is becoming more apparent to the outsider that we see in the EPO a more systematic use of staff rep dismissals instead of an isolated incident or coincidence as stated by the VP1 earlier in the year and in the Dutch Press. This is a clear indication for a toxic management style at work and EXTREMELY WORRYING!. Additionally the working methods of the Investigation Unit and the need for excessive security measures has been unprecedented and its financing for 2016 unexplained.
Where’s the German media? Pretending nothing happens? Even though the latest ‘action’ is centered at The Hague, certainly it’s of relevance to Germany. Heck, even the British press covers it (more and more regularly).
Frustration among Germans about this media blackout sometimes relates to or gets compared to “political correctness” censorship (on racial/religious themes) in the German media, but this one is purely financial, not fear of offence.
“I kindly ask you now to contact the GERMAN leading magazine DER SPIEGEL,” one reader told us. It’s pretty amazing that these large publications rarely if ever mention the EPO, especially amid all this turmoil. “DER SPIEGEL has not yet covered this story of fraud, abuse of power, arrogance of power, arrogance and abuse of diplomatic immunity,” our reader added. “I want however to bring this specific management policies to the SPIEGEL, and to the courts: They (The EPO) are operating in a (in my view, illegal but apparently casted-into-imperfect-contracts) vacuum, and current world issues (refugees crisis, Turkey crisis, #Trumpgate, #dieselgate ….) are playing in favour of Battistelli & clique……….”
Why no coverage about the EPO?
We therefore ask readers, especially German-speaking readers, to contact their press, including Der Spiegel. Get them interested in the story. Coverage of this is long overdue. There are no valid excuses.
“The most suited lawyer would be WOLFGANG KALECK (Berlin),” our reader told us, “by incident, his office is very close to the Berlin Suboffice of the EPO!!! KALECK is also Snowden’s lawyer in Germany, in the CITIZENFOUR movie a short sequence is shot with Ben Wizner (ACLU attorney) in his office close to the EPO suboffice in Berlin…”
Here is how to securely contact Der Spiegel (“USE ENCRYPTION,” our reader stressed, “PGP key via this page“).
We have already contacted Der Spiegel (in English), but have received no reply. Perhaps if more people do the same (pressuring editors) they’ll actually start caring and maybe even ending this appalling media blackout.
Suffice to say, Battistelli’s unprecedented campaign of manipulating and muzzling the media is itself a massive scandal. The BBC was going to cover it but eventually spiked the story, perhaps proving the very point it was going to write about. █
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Summary: Team UPC, a collective of self-serving patent lawyers who produce nothing of substance, hopes that some time tomorrow the UPC will miraculously be revived in Britain even though it’s extremely unlikely
THE Unitary Patent (or UPC) will quite likely have its death reaffirmed tomorrow. Don’t expect Team UPC to admit this though. The UPC-centric bloggers from Bristows will carry on (now there’s “EQE roundup”) and so will the bloggers at Kluwer Patent Blog. We kindly remind readers that these people have a track record of even advertising false jobs, so don’t believe Team UPC and the EPO (chronic liars). It’s their wallet/agenda that speaks.
Thankfully for us, Battistelli cannot quite ‘buy’ the vote (or bribe) the UK for UPC ratification (it would require too big a gift), so the UPC is going nowhere here. Kluwer Patent Blog, a huge proponent of the UPC, cited Bristows (an integral British part of Team UPC) to come up with a bizarre headline that says “Announcement expected about participation UK in Unitary Patent and Unified Patent Court” (as if they already know in advance what will happen). To quote:
According to a Bristows report, ‘the UK Minister of State for Energy and Intellectual Property, Baroness Neville-Rolfe, will state how the UK intends to proceed regarding its participation (or not) in the system’.
Since the Brexit vote, the future of the UP system has been clouded in uncertainty. Ratification by the UK of the UPC Agreement is mandatory for the launch of the system, but after the Brexit vote it seemed this requirement could kill the UP, as it wasn’t sure at all the UK would still be prepared to remain in the new patent system.
There are no signs that Lucy Neville-Rolfe will override British democracy, so we don’t expect much to happen. As for Kluwer Patent Blog, watch the headline it produced two days earlier (merely a quote), seemingly giving instructions from self-serving firms in Italy so as to save the UPC.
Truth be said, the UPC is in a limbo or in a death spiral/crawl. As we saw in TTIP and TPP, nobody in the “inner circles” wants to admit the death until it’s finalised and truly irreversible. Unless it’s redesigned completely, it has no chance. “EU Software Patents future will be decided tomorrow,” Benjamin Henrion wrote, “in the EU Council with the fate of the Unitary Patent,” but nothing will change. The UPC (as we know it, after several other names) is dead and endless lobbying by Team UPC has changed nothing at all, it just exposed Team UPC’s crudeness and disdain for democracy.
“More Brexit foot shooting,” one person wrote, “as UK now excludes itself from EU wide patent court due to start work in London. Bad news for patent lawyers…”
Henrion asked, “any link to an official source?”
This seems to contradict the optimism from Bristows, who have spread falsehoods (attempting to spread self-fulfilling prophecies) for at least a year. “A big day for the European patent systems,” wrote an anonymous EPO observer, but as we wrote over the weekend, we expect nothing substantial to change. The “UK [is] set to announce its UPC position tomorrow,” IAM (presumably Joff Wild) wrote. “We have worked through a few scenarios…”
“It seems that the future of the #upc #unitarypatent will be decided on Monday,” another person wrote, but IAM responded with: “This is most likely, but don’t rule out a delayed ratification after safeguards are established for UK’s post-Brexit position.”
Don’t trust IAM so much. Remember it organised pro-UPC propaganda events (even abroad) with support from the EPO and funding from the EPO's PR firm. Also, IAM is still not good at disclosures* and there is another such event coming soon.
Shooting down the UPC is not “foot shooting” as the above put it, unless of course the British economy boils down to just a handful of greedy patent lawyers seeking to maximise profit by patent battles. Right now, as before, some patent law firms in Italy hope to snatch this business and according to this, “A. M. Pizzoli [was] talking about #UnitaryPatent at #FICPI Sweden meeting: Swedes still optimistic in spite of Brexit-related issues” (by “Swedes” he means some Swedish patent lawyers, not Swedes at large).
The UPC would obviously sacrifice patent quality, bring patent trolls from the US patent system, and probably serve as a weapon against the EPO‘s Boards of Appeal, especially judges. No doubt they're essential, but they are crushed by Battistelli. There were a couple of articles from patent law firms in the media this past week, both of which spoke about the Boards of Appeal of the EPO. Here they are:
1. Exceptions to reformatio in peius at the EPO
In T 2129/14, the EPO Boards of Appeal applied the exception to the prohibition of reformatio in peius established in G 1/99 to allow the patentee, as respondent, to make an amendment which extended the scope of protection of the patent in question compared to the scope of protection maintained by the Opposition Division.
The prohibition of reformatio in peius set out in G 9/92 is the principle that in appeal proceedings a decision must not be reached which puts a sole appellant in a worse position than if they had not appealed. Thus, where a patent is maintained in amended form by an Opposition Division and only the opponent appeals the decision, the patentee, as respondent, cannot amend the claims such that the scope of the patent after appeal proceedings is broader than after opposition proceedings.
2. Admissibility at the EPO’s Boards of Appeal – a change in practice?
The practice of the Boards of Appeal of the European Patent Office (EPO) in recent years (following decision T 1067/08 (High-activity phytase/BASF); and discussed in detail in the Case Law of the Boards of Appeal, 7th Edition IV.C.1.3.3) has been not to review discretionary decisions made during first-instance proceedings. By way of example, if an Opposition Division has taken a decision not to admit a document (eg new evidence or a new claim request), the Board of Appeal will generally not overrule that decision if it concludes that the Opposition Division had the right to exercise its discretion.
The following too got published: EPO Practice Infringement of Second Medical Use Claims in Europe
It is possible to obtain a patent from the European Patent Office (EPO) based on a new medical use of a known drug. The claim can be directed to using the drug to treat a different disease, or using the drug in a new method of treatment, such as a new route of administration or a new dosage. The EPO has wellestablished requirements for the patentability of these so-called “second medical use” claims, but it does not consider issues of patent infringement. Infringement in Europe is currently assessed on a country-bycountry basis by individual national courts.
Although these second medical use claims have been available in Europe since the 1980s, until recently it has been unclear how the manufacture and sale of a drug for a patented use can be distinguished in practice from the manufacture and sale of the same drug for a non-patented use. The English Court of Appeal has now clarified how infringement of such second medical use claims should be assessed in the United Kingdom.
Our main concern, as we noted here very recently, is that patent scope and thus patent quality at the EPO is compromised for the sake of patent maximalism — the same kind of thing that Team UPC strives to introduce. One might even dub it patent radicalism, not maximalism. █
* To give one new example of missing disclosures from IAM, watch what it said about patent troll MOSAID, a.k.a. “Conversant” (after the rename that helped dodge negative publicity), just a few days ago. Nowhere does the article mention that Conversant paid IAM. Instead it’s all just promotional language, e.g.: “Conversant IP Management has acquired a patent portfolio from Panasonic, according to an assignment recorded with the USPTO earlier this week. The transfer represents a new foray into the Japanese patent marketplace for the Canadian NPE after its role in managing the Elpida portfolio ceased earlier this year.”
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They believe that if they keep saying that it’s inevitable, then it will certainly happen
Reference: Self-fulfilling prophecy (a dirty tactic routinely exploited by businesses)
Summary: A quick look at some of the latest misinformation regarding the Unified Patent Court regime, which is essentially at a dead end after British people voted to leave the EU
THE EPO‘s management and Team UPC are in the same bed. They both strive to create more of a patent mess in Europe, as they don't care about Europe, they just care about how much money they can make in the short term. One might call them “Enemies of the People,” to reuse an infamous recent headline from the British press.
Suffice to say, UPC proponents want us to think that the UPC is doing fine because they would profit from it (if it ever becomes a reality at all). It’s a nasty strategy of wishful optimism, which involves even advertising job openings that do not exist!
The other day we noticed a headline that’s a quote from someone in Milan who stands to benefit from the UPC (if it ever becomes a reality). “Unitary Patent system is better off with UK, but worthwhile even without the UK,” said the headline. But not possible without the UK. To swap London for Milan would require going back to the drawing board, maybe even radically reshape and rename the UPC. Suffice to say again, the article came from Team UPC and here is a portion from it:
The best way forward for the Unitary Patent system after the Brexit vote of 23 June 2016 is to find a way to keep the UK inside the system. That is the opinion of Francesco Macchetta, director IP of the Bracco Group, a healthcare multinational with headquarters in Milan. But if the British don’t stay in, Macchetta thinks Milan would be a logical new location for the London branch of the Central Division of the Unified Patent Court (UPC), he said in an interview with Kluwer IP Law.
Another common booster of the UPC, Laura Ercolim from Italy, wrote on November 3rd that:
The impact of the Brexit referendum on Unified Patent Court preparations is starting to be felt as the UK government fails to give clear signs of taking steps to leave the European Union; so is an immediate deposit of the instrument of ratification of the Unified Patent Court Agreement the best option for Italy?
Italy and Milan are not England and London. In fact, many professionals continue to stress that the skills in the area of patents are not equitable and a UPC without the UK in it would simply not be appealing. The “EU Competitiveness Council,” according to this tweet, apparently wants to ensure patent trolls come to Europe (that’s what the UPC would entail), making it less competitive. The UPC “is listed in the EU Competitiveness Council agenda for 28 November 2016″ (link
This has been known for a while. If these people have dignity, then they will lay aside this dead piece of text and accept that with Brexit in the making (or at least in discussion) there’s no point to it.
IAM, incidentally, has just advertised another UPC-centric event. Does this one too get money and support from the EPO (again)? Among the points listed by IAM:
The latest, post-Brexit developments concerning the Unified Patent Court regime
There’s no post-Brexit UPC because without the UK it’s no longer a “UPC”; it might become something else altogether. But, as usual, if one believes EPO liars like Margot Fröhlinger with her UPC advocacy [1, 2, 3, 4], then one can believe anything! According to this tweet from the IP Summit, “Margot Fröhlinger Principal Director for Unitary Patent European and International Legal Affairs EUR. #PATENT OFFICE will speak on Dec 1st…”
That’s just a few of days after the above and very shortly after ILO unleashes a potential bombshell (or two) on the EPO. █
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