When people in power simply disregard whatever ruling they don’t agree with
Summary: An article from Nieuwsuur which provides the words of Liesbeth Zegveld (for SUEPO) and Guillaume Minnoye (for the European Patent Office), reaffirming the EPO’s bizarre notion that it is above the law, even in the face of human rights violations and a court ruling against the EPO
SUEPO has uploaded this English translation
[PDF] of an article in Dutch. Below we highlighted some bits of interests which are rather unique to this article:
How far does the immunity of the European Patent Office reach?
Marijn Duintjer Tebbens
From tomorrow, the most senior judges in our country will consider the conflict between the Management of the European Patent Office and the staff union. It’s all about the question of whether the office can hide behind its immunity, even if it is guilty of human rights violations.
Nieuwsuur speaks to Guillaume Minnoye, Vice President of the Patent Office, and lawyer Liesbeth Zegveld, who is representing the trade union, among others.
The European Patent Office, based in Rijswijk and with 2500 employees, was established to protect the rights of inventors. It is an international organisation and therefore has immunity, which means that it is actually inviolable for a Dutch court.
Last year, however, the Court of Justice in The Hague ruled that the immunity does not apply in a conflict with the staff union. The court also judged that the Patent Office is violating the human rights of its employees through its obstruction of this trade union.
The office refused to accept the court’s verdict and brought the ruling to the Supreme Court. The Supreme Court must now rule on the question of how far the immunity of international organisations such as the European Patent Office reaches.
Despite the judgement of the Court of Justice, the European Patent Office believes it does have full immunity.
Lawyer Liesbeth Zegveld
The Management and the trade union of the Patent Office have been in conflict since Frenchman Benoit Battistelli began to call the shots. Battistelli is implementing reforms that have met a lot of resistance, resulting in major internal tensions.
According to Battistelli, he is the victim of a targeted campaign by his own staff, aiming to block the reforms. “An orchestrated campaign, the objective of which was to destabilise and discredit the organisation,” he said in October in the newspaper Het Financieele Dagblad.
The staff union, represented by lawyer Liesbeth Zegveld, believes that the top boss of the Patent Office is going beyond all the boundaries in his dealings with the union. And that he is therefore abusing his immunity.
“Despite the court ruling, the Patent Office still believes that it does have immunity,” says Zegveld. “But the Patent Office has no immunity when it comes to protecting fundamental human rights. This is what it is now being sued for.”
She thinks the office is acting as though the law does not apply to it. “The law doesn’t work here. I’ve never actually seen this before. There is no law here.”
European Patent Office Employees take to the streets
This afternoon, European Patent Office employees are taking to the streets. The employees are protesting against the poor working atmosphere within the organisation and the culture of “fear and intimidation”, as some describe it.
The direct reason behind the demonstration is the dismissal of two employees and demotion of a third. Among them the chair of the staff union, Elizabeth Hardon, from the Netherlands.
You’re acting as if we live in a lawless paradise. That’s not the case.
Guillaume Minnoye, Vice President of the Patent Office
“You’re acting as if we live in a lawless paradise. That’s not the case,” the Vice President of the Patent Office, Guillaume Minnoye, responds, in Nieuwsuur. According to Minnoye, the Court of Justice did not take sufficient account of the fact that the Patent Office has its own legal procedures, which ensure that complaints from the trade union can always be heard and that submitting an objection is always possible.
The Dutch state is on the office’s side. The government is indeed concerned about the social situation at the Patent Office, but states: “Whether it is accused of human rights violations or other violations of international law does not affect whether or not an international organisation receives immunity.”
Minnoye has done a poor job because he helped reinforce the idea that the EPO is arrogant and overconfident. It vainly believes that no matter what crimes it commits, it’ll never be subjected to any scrutiny because it is exempted from the rule of law. We wrote about Minnoye’s attitude before and also reposted some comments on the matter. Just posted was the following anonymous comment that says:
Vienna Convention on Diplomatic Relations
Done at Vienna on 18 April 1961
1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.
It seems too risky a gambit for Minnoye to just pretend that it’s OK for the EPO to ignore courts at The Hague rather than spin it some other way. Later today we intend to publish some rebuttal to the latest EPO spin in the Netherlands. █
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Part of a broader push (lobbying) for software patents in Europe
Summary: Anti-Free/Open Source software (FOSS) talking points and FRAND (anti-FOSS) lobbying groups in Brussels as seen by proponents of FRAND, who also worked for Microsoft
THE EPO‘s Brussels lobbying activities and close connections to Microsoft, which the EPO is stressed enough to threaten bloggers about (for just mentioning it) are of much interest to us. Several months ago we uncovered a new network of Microsoft lobbyists who wish to use FRAND against FOSS. It’s just ACT by another name/mask.
Florian Müller, who had done some work for Microsoft (when he was promoting FRAND), mentioned this nymshift of ACT at the time, elaborating by saying: “The new FairStandards Alliance is based in Brussels, the de facto EU capital. Its website says: “We are friends of FRAND” [i.e. we are enemies of FOSS]” (FOSS and FRAND cannot coexist). This morning Müller wrote more about this ‘alliance’ (lobbying effort), which was mentioned a lot at the end of last year [1, 2, 3]. Suffice to say, as made evident only days ago, the EPO now openly pushed for software patents.
The push for software patents in Europe never ended or stopped. █
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Turf wars: Megacorporations typically seek further protectionism for their dominant positions
Summary: A quick roundup of some of the latest spin and paid-for (bought) coverage that helps introduce a distorted patent system whose beneficiaries are not European (or even people)
THE EPO is starting to focus more and more on propaganda and lies [1, 2], as we noted in our previous post. Truth does not support the EPO’s actions, so reality distortion becomes imperative. We are going to spend a lot of today responding to lies disseminated by EPO managers and their unethical PR team.
“The rules are being changed in favour of lawyers’ biggest clients and patent trolls, much to the detriment of Europeans who are not patent lawyers.”There was a reminder on a Sunday (unusual for IAM) of an EPO-funded pro-UPC propaganda event. This one angle of spin is rather telling. The EPO is liaising with patent lawyers in an effort to change the rules. The rules are being changed in favour of lawyers' biggest clients and patent trolls, much to the detriment of Europeans who are not patent lawyers.
The EPO’s PR team finally decided that publishing only in German is rather tasteless (we mentioned it to them), so it now has an English version of an article originally published in German alone (warning:
epo.org link), piggybacking a patent maximalist to help glamourise the EPO, as we noted at the time (patent maximalists serve to reinforce the narrative/mythology that more patents necessarily mean more innovation). Here is the EPO’s PR team again taking advantage of cancer on World Cancer Day despite its activities which harm cancer patients.
“”Several days ago we wrote about EPO price hikes that harm SMEs. Shortly thereafter, as one commenter jokingly put it: “The increased fees are not for patent examination but for essential EPO business like spying on employees and members of the public, buying favorable press reports, organizing inventor of the year events, providing “technical” support to obedient member states, subsidizing private companies like Control Risks or FTI Consulting. To the benefit of European society.”
Does anyone think it’s acceptable for the EPO to waste nearly $1 million (in just a year!) on some US-based PR firm? How about the use of so-called economists to help generate propaganda regarding the economics of patents?
“Regarding examination or not,” one person wrote, “there are several patent systems possible, each with its advantages and drawbacks. But as long as the EPC requires that examination be carried out and as long as the EPO takes a nice fee from the applicants for doing an examination, it is not within mr. Battistelli’s competence, nor within that of the AC, to “take us” to a different system, however modern that may be.”
Battistelli is now lobbying for the UPC, which in no way helps the European SMEs. That’s why FTI Consulting, which is paid by the EPO, now pays publishers for pro-EPO propaganda. As another new comment put it today:
“Isn’t that the cost-saving, modern and efficient way to go? Is that not where BB is taking us all?”
That may well be so.
It’s abundantly clear that he is intent on shutting down the EPO Boards of Appeal.
He has more or less said so publicly on a few occasions or at least it can be read between the lines of some of his propaganda.
But the question in the back of many people’s minds is where is his mandate coming from ? Paris ? Brussels ? Washington ?
BB [Battistelli] is not a “visionary”. He is a technocrat. He is implementing somebody else’s vision. But who is or are the puppet-masters pulling his strings ?
Based on leaked documents, Battistelli prioritises large corporations, even foreign ones. Emanating from our work here, including Spanish translations, is some media coverage in Google News and days ago Juve published another article, titled “Kommentar: Warnschuss für EPA-Präsidenten Battistelli” (we kindly ask readers to help us publish an English translation of it). Battistelli and his mob try to ‘revolutionise’ the system at the behest of large multinational corporations, at the expense of Europe. Should they be allowed to get away with it? Why isn’t Parliament stepping in? Silence is complicity in this context. █
“When the mob gains the day it ceases to be any longer the mob. It is then called the nation.”
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EPO spinners sharpen their propaganda machine and rewrite history
Summary: The out-of-control EPO management is trying to fool the media by blaming staff representatives for getting fired, simply because they stood up to a highly abusive and megalomaniacal dictator
SUEPO lawyer Liesbeth Zegveld, whom we mentioned here before (e.g. in [1, 2, 3, 4, 5]), spoke to Dutch media about EPO abuses. Zegveld knows these abuses quite well as she was actively involved even a year ago; she defended Hardon personally and wrote some letters on her behalf, too.
Today we present this SUEPO-provided translation
[PDF] of this recent press article. It is similar to other articles which were previously mentioned here. It mostly repeats similar facts (it’s relatively accurate) but adds some propaganda from the EPO's PR team. They pretend that change, not abuses, is the real issue here. They pretend that aversion to change is what it all boils down to. See the part under “Consequences” and also some noteworthy bits highlighted in yellow.
Thursday 28 January 2016, 6:17am
Employees protest against ‘intimidation’ at European Patent Office
RIJSWIJK – Employees of the European Patent Office (EPO) in Rijswijk are taking to the streets on Thursday afternoon. The employees are protesting against the poor work atmosphere within the company and the culture of ‘fear and intimidation’, as some describe it.
An immediate cause for the protest is the dismissal of two colleagues and the demotion of a third. The location of the patent office in Rijswijk is the largest international organisation in the Netherlands, with around 2,700 employees.
Those who were fired and demoted work at the EPO headquarters in Munich. They all work for the organisation’s own union. Last week, the sanctions led to a major protest in Germany, with an estimated 1,300 participants. But the upheaval has now reached Rijswijk as well.
The staff claims that the punished employees are facing the consequences of the fact that they dared to criticise the ‘tyrannical’ head of EPO, Frenchman Benoit Battistelli. One of the fired employees is the Dutch chair of the union, Elizabeth Hardon. “It’s outright intimidation,” says the union’s lawyer Liesbeth Zegveld.
An EPO spokesperson says that Battistelli is in the middle of a major reorganisation to modernise the company. “And of course, that can lead to reactions among the staff. Everyone has trouble with changes.” He also says that the head of the company would very much like to enter into a dialogue with the employees to repair the relationship.
Governments have to intervene
Thursday’s protest march will go from the French to the German embassy in The Hague. The disgruntled employees hope to get the governments of both countries and that of the Netherlands to intervene.
Employees of EPO in Rijswijk speak of a ‘culture of fear’ within the company. People are only willing to speak out anonymously, for fear of reprisals. They are saying that people who like posts on Facebook that criticise the organisation, for example, can count on sanctions. ‘Censorship, threats. Working here is no fun anymore,” one of them says.
‘No culture of fear’
The EPO spokesperson denies the culture of fear. He says the company will not accept that people who have great working conditions speak poorly of the company they work at.
The Dutch cabinet has yet to make a clear statement on the issue. In response to questions from the House of Representatives, Minister Lodewijk Asscher (for Social Affairs and Employment, and member of the PvdA (Labour Party) previously underlined that part of the problem is that the board of management of the European Patent Office has legal immunity. That means, among other things, that the Dutch Inspectorate SZW cannot be granted access to the offices in Rijswijk as long as Battistelli does not allow it.
Cabinet must take action
The PvdA and SP (Socialist Party) in the Dutch House of Representatives want State Secretary Martijn van Dam (for Economic Affairs, and member of the PvdA) to take action. He is to mediate and meet with his European colleagues to make sure the ‘legal loophole is closed,’ according to MP Sharon Gesthuizen (of SP).
The European Patent Office is currently building a new office in Rijswijk costing €205 million. Prime Minister Rutte helped Battistelli lay the first stone in the summer of 2014. Protestors also marched in Rijswijk when the first post was driven into the ground.
What shocks us in many of these articles is that despite a track record of sheer lies (recent examples in [1, 2]), the media continues to print the words of EPO management without any fact-checking. To say that it’s the fault of staff representatives that they got fired because they antagonised change is like saying that millions of Russians/Soviets lost their lives simply because they opposed the ‘change’ by a brutal new regime. It hardly qualifies as legitimate defense.
Later today we are going to rebut some lies from the EPO, whose expensive PR strategy is far too easy to bust given enough time. █
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The ‘magic’ of abstract patents is gone
Summary: The potency or the grip of software patents in the United States is quickly eroding, but the EPO continues to act as though software patents are legitimate
PATENT lawyers in the United States cannot sigh in relief. Their business prospects are being diminished as the USPTO is pressured to reassess examination guidelines (never mind the cheeky loopholes), in lieu with court rulings on software patents. It’s becoming harder to get software patents and even if one gets granted a patent on software, the likelihood of a court honouring such a patent is slimmer.
Patent lawyers who have long relied on the USPTO issuing patents on software are still disseminating tips for getting around the rules and patent software. The following new example, calling the domain “cybertech” (buzzword for computer security) is all about software and it says (courtesy of greedy patent lawyers): “Cybertech companies regularly struggle with the question of whether to patent core algorithms. If those algorithms are discoverable by anyone who examines your product, patent protection is the way to go. Also, your products contain many sub-features. Consider patenting only those aspects that will drive product sales. While most people think of patents as technical documents, really, they are business tools. A patent is only valuable if crafted in a way that prevents others from interfering with your business objectives. Therefore, it is best to strategically consider your innovations by asking: “How necessary is this feature to my prospective competitor?” You should patent only those features that provide strategic advantage to the company.”
Actually, increasingly, companies find that US courts, including the most pro-software patents courts and districts (like CAFC and Texas), simply deny software patents. Here is the latest example that we found last night (there are many other such examples, some of which we covered before):
OpenTV patents ‘abstract’ under Alice
OpenTV’s data communication patents in the US are invalid under the Alice Corp decision, a district court has ruled in the Swiss TV technology company’s spat with Apple.
The US District Court for the Northern District of California held on 28 January that the patents were abstract under the Supreme Court’s 2014 Alice Corp v CLS Bank ruling and lacked an inventive concept.
The subsidiary of Kudelski Group, OpenTV, filed the lawsuit against Apple in May 2015, arguing that the iOS and OS X operating systems infringed patents for securely communicating data between devices.
Apple sought to prove that the claims of the patents were abstract and filed a motion to dismiss the case.
US patent lawyers (and full-time software patents propaganda source) say “people like Inventors Digest contributor and patent attorney Gene Quinn, and Jay Walker, who has millions of dollars invested in patent software and related businesses, completely disagree with Cuban.” Mr. Cuban turned from investing in a notorious patent troll to fighting against patent trolls and against software patents (explicitly so). He’s definitely not a patent troll. Jay Walker, on the other hand, became little more than a patent troll (we wrote several articles about it) and Gene Quinn we often referred to as “Patent Watchtroll” because he had defended patent trolls, not just software patents. It’s rather revealing that patents lawyers and trolls (or people who profit from trolls) are rather anxious.
The United States undeniably moves away from software patents, so when the EPO promotes software patents in Europe it seriously discredits itself. It last did this on Thursday (i.e. three days ago) in Twitter, linking to what we criticised three days ago. The EPO is truly out of control and it needs to be stopped. Patent scope is just one of many dimensions of abuse. █
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Battistelli’s secret weapon in the fight against economists who prove him wrong (e.g. on UPC)?
Summary: With strings attached (like string puppets of Battistelli in various units including the Investigative Unit), can the new Chief Economist, who is French and paid by Battistelli, ever be trusted?
THE EPO‘s Team Battistelli, which is basically Battistelli and his inner circle, appears to be growing. Battistelli's days at the European Patent Office may be numbered, but not only he is the problem. There is entryism going on. Team Battistelli is so convinced that it is above the law and soon it will be able to manufacture its own supportive ‘research’ (in support of the lies).
“Team Battistelli is so convinced that it is above the law and soon it will be able to manufacture its own supportive ‘research’ (in support of the lies).”At the EPO, patents are not for SMEs, no matter what the PR team says. The patents are for large businesses, including many that are not at all European. According to this new article from IP Kat: “The Office of Chief Economist at EPO typically runs as fixed-term appointment from as short as one year to as long as nearly six. The appointment has always been external and the career profile has thus far been civil servant, academic or consultant. Most previous post holders have had strong ties with France or Belgium. Yann, a French national, will be the fifth Chief Economist.”
We mentioned this several days ago and we are gratified to see that commenters at IP Kat (many of whom work at the EPO) respond similarly. They point out some of the obvious problems, including influence in Brussels, lobbying, and so on. One commenter said: “Congratulations with your nomination, Yann. Here are three things your new boss might not have told you yet:
- Battistelli nominated nearly exclusively french staff in top positions at EPO, hence the negative comments as to your nationality.
- One of your predecessors Prof. van Pottelsberge was quite critical towards the patent system, for example: http://bruegel.org/2009/06/lost-property-the-european-patent-system-and-why-it-doesnt-work/
- Your challenge will be to prove Battistelli is right, while most believe he’s not.
Another commenter wrote: “what a coincidence : another frenchman ! It is like the staff reps sanctioned : all suepo officials… another coincidence like VP1 recently said in an interview for Dutch Nieuwsuur” (more on that soon).
Here is a similar comment that says: “Oh, look! Another French appointment to the highest ranks of the EPO. Along with BB’s almost-entirely-French inner circle. I thought the EPO was a multinational organisation? Surely it is time for a chief economist who does not have “strong ties with France or Belgium”? Perhaps someone with a more Anglo-Saxon or Frankfurt-school view of economics, just for a change?”
“Strong ties with Belgium should come as no surprise,” added another person, “given that it’s the location of the European Commission. Paris has the OECD, where Dominic Guellec is now, and also produces some excellent IP and innovation economists. That said, there are plenty of good IP centres through the member states. For example, Nikolaus Thumm is in Spain at the Commission’s Institute for Prospective Technological Studies, and there are some excellent economists at Bocconi in Milan and Max Planck in Munich – to name just a few. A perhaps more glaring lack of diversity is that fact that all five appointees are male and white.”
“Oh, look! Another French appointment to the highest ranks of the EPO.”
–AnonymousResponding to Nicola from IP Kat, who decided to focus primarily on the gender rather than nationality or ethnicity, one person wrote: “I agree with half of your statement but the other half has no bearing on the matter. The proportion of non-whites in Europe is insignificant.”
Another person told Nicola: “It’s hardly surprising is it ? In case you had not noticed the EPO is governed by a white male European geronotocracy. A good exemple is the Suisse delegation headed by the “honorary chairman” of the Admin Counsel (an innovative made-up position invented by the current EPO President when he was chair of the Admin Counsel). http://www.epo.org/about-us/organisation/administrative-council/representatives.html#ch The alpha male in question has retired as head of the national IPO and was replaced by a female (coincidentally a white European one):
http://kluwerpatentblog.com/2015/07/06/dr-iur-et-lic-rer-pol-catherine-chammartin-new-director-general-of-swiss-federal-office-of-intellectual-property/ Despite being well past his sell-by date he still continues to hog the seat on the Admin Counsel. And as for Mr. Minnoye and Mr. Lutz, just do not get me started on that track …”
“Perhaps someone with a more Anglo-Saxon or Frankfurt-school view of economics, just for a change?”
–AnonymousAnother person added: 1. Whether you have a man or a woman at the top you won´t be able to see a difference in the way they lead a company. Yes, a woman will not assault chambermaids like Strauss-Kahn but from the point of view of managerial decisions being a woman is irrelevant. 2. Women have enjoyed a lot of privilege in the EPO, see the latest example of Elodie Bergot, with her spectacular jump from A3 to A6.”
We wrote about this leap from Bergot before (see part one, part two, part three, and this final part). She is the wife of Battistelli’s ‘protégé’ from INPI days. She was under-qualified.
“To Nicola,” one person wrote: “It is not that a discussion of gender or racial bias is out of place. It is that the real problem is somewhere else: all of Battistelli close men come from the same background: they are French, they come from the same universities and they are all freemasons. The fact that none is of a different race, gender or nationality is a consequence of that: the special political club to which they belong is only open to white males. So: your observation is true, but it is the symptom of a much bigger problem than you think.”
As far as I know, Battistelli is not in freemasonry (common misconception). He’s from a prestigious school which some say is more powerful a network.
“Women have enjoyed a lot of privilege in the EPO, see the latest example of Elodie Bergot, with her spectacular jump from A3 to A6.”
–Anonymous“Thank heavens you didn’t mention the following mysterious connections,” responded another person, linking to this article from Techrights.
After Nicola had said that “more glaring lack of diversity is that fact that all five appointees are male and white” one person responded with: “To be honest, the situation at the EPO in respect of gender diversity is not such bad: amongst the union members severely sanctioned lately, there are two females and only one male.”
“While Europe is ethnically homogenous compared to other parts of the globe,” another person added, “the proportion of non-whites is not insignificant (in neither statistical or colloquial senses.) The non-white population of London alone is roughly 3.3M, which is bigger than many EPO member states. I fail to see how geographical/gender diversity has bearing but race/ethnicity doesn’t.”
“I guess that the EPO being a non-tax organisation, there is no need for the tax fiddling skills illustrated by certain multinational companies.”
–AnonymousOne more person said: “I agree that in a broader context that the fact that all five appointees are white and male is a glaring lack of diversity. However, this appointment surely must also be viewed in the much narrower context of the current management situation of the EPO. The upper echelons of the EPO appear to in the process of being stacked with French nationals. So the appointment of yet another French national (regardless of gender or race) to such a position appears to be a much greater immediate concern than the, present but perhaps less immediately relevant, issues about gender and race.”
The point about race and gender misses a much more important point. It probably serves to distract from the debate people really ought to be having.
“C’mon Nicola,” said one more person, “that’s probably just another EPO ‘coincidence’,,,,,,,isn’t it???,,,. I can’t imagine for a minute that a thoroughly modern model European organisation like the EPO has a diversity glass ceiling that is potentially treble glazed and armour plated, can you?”
Another person added sarcastically: “I guess that the EPO being a non-tax organisation, there is no need for the tax fiddling skills illustrated by certain multinational companies.”
Here is a person making fun of President Battistelli’s qualifications in another thread (referring to INPI as “FPO”):
How kind of Madhouse to write in and say that I am “rather wrong”.
In fact, Madhouse confirms what I said, that the FPO indeed does not examine for patentability, bearing in mind that the key issue for patentability in 90% of cases is obviousness, which the FPO doesn’t go anywhere near.
Mr Moody you will perhaps already have grasped, that whether claimed subject matter is or is not novel is more or less a black and white issue, whereas whether or not it is obvious (within the meaning of the EPC) though, that is a judgement that requires years of specialised education, professional training and experience, of which President Battistelli has none.
Well, some people claimed that INPI just grants patents without examination. This is untrue. In any event, watch how a discussion that should have focused about Battistelli’s inner circles and vested interests/agenda got turned into a debate about feminism or political correctness. It’s unhelpful given the real (or core) issue at the EPO.
As a side note, economics shouldn’t be mistaken for a science. Economists are often hired to write a seemingly (on the surface) technical analysis to support an agenda of someone (or a business or a government), with omission where it doesn’t suit the required outcome/conclusion/hypothesis. Quantifiable measures in the economic sense/context are beyond the scope of this post, but there is plenty of literature out there about why economics are a sort of pseudo-science where money buys ‘results’.
If the new Chief Economist is as loyal to Battistelli as all staff must be (examine the evidence which is the vocation of people not 100% on Battistelli’s side), then Battistelli just got himself a lobbyist, not an analyst. █
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Summary: The UPC, which is designed to aid patent trolls and aggressors (and their lawyers), is still being advanced by the EPO and some misinformed (but loyal to these former groups) politicians
THE Unitary Patent Court (UPC) is not a step forward but a step backwards. Here is what Glyn Moody (not a patent lawyer or a patent troll) made of the UPC last week, in page 6 of his very detailed article: “EPO’s spokesperson mentioned… [UPC] … as an important reason for revising the EPO’s internal rules” (the context being an attack on staff). Moody filed this under the section “Trolls get ready for the unitary patent,” alluding to a fact that we so often revisit here. The Unitary Patent would work quite well for software patents and for patent trolls, even from abroad. It would not be beneficial to Europe. In this post we explore some recent developments in the race towards UPC, where the main racers are patent lawyers and their biggest clients (large and rich corporations).
Jane Lambert recently had an online dispute/debate. It started with her saying: “Looking forward to my talk on the unitary patent and the Unified Patent Court at 17:00 today in chambers” (UK).
As I pointed out to her, the UPC is not about helping SMEs but about destroying them, by allowing Europe-wide litigation against them. Lambert, who is based in the capital of patent lawyers, London (later Honley), responded with: “I see the UPC as levelling the playing field between SME in the UK and the Mittelstand in Germany and rest of the continent. UPC litigation still much cheaper than litigation in England and Wales alone (see table on page 50 of http://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/d/contra_vision_ltd_336_p4_163kb.pdf)” (see with context).
“If one wrongly assumes,” I responded, “that: 1) more/broader litigation is good. 2) companies only sue, never get sued.”
“Cost of litigation never includes EU-wide damages,” Benjamin Henrion added.
It’s a matter of simple economics. The public interests should be factored in.
The matter of fact is, trying to explain this to patent lawyers, who make money from disputes, can be an exercise in futility. Lambert said “UPC makes sense in cost savings even for litigation between 2 UK companies over a European patent designating the UK.”
“Those same companies will easily get sued,” I replied, “by other companies from ~30 countries around Europe. Good for lawyers.
“UPC is a recipe for an epidemic of litigation. Good for patent lawyers, even FANTASTIC for them.”
Henrion then added that “litigating/defending patents is simply out of reach for most of small companies, upc or not http://ur1.ca/ogv4q”
He also asked, “patents are a moving target then?”
Lambert then said this was “better than their being sued in several jurisdictions for essentially the same cause of action. Good for business.”
They wouldn’t be sued like that because the incentive to sue is low. Less money for lawyers. At this point we soon realised that nothing would convince lawyers that the UPC is bad because the UPC is not bad for them. The patent lawyers want what’s good for patent lawyers and their biggest clients (income source).
Lambert later added that “that’s exactly what happens already and it’s the start-ups and other small businesses that suffer the most under present system,” to which I responded with: “Startups are the ones reluctant to sue, and UPC won’t improve that for them. It’ll make them the victim of MORE lawsuits.”
Lambert concluded: “yes it will. The costs of litigation will be so much less than in this country. It will also be easier to obtain IP insurance.” Lambert later added: “Fragmentation of Europe is an enormous barrier to innovation in EU.”
Fragmentation is not the right word. It wrongly assumes that patents need to be global or universal. This clearly isn’t the case. Well, generally speaking, the UPC — like TTP, TTIP, ACTA and more confusing acronyms the public isn’t intended to understand — are hinged on a big pile of Big Lies. They empower multinational corporations and attempt to convince the public that this is somehow better for everyone. The UPC is similar to ISDS in the sense that one helps large businesses sue lots of businesses in one fell swoop. The latter lets them sue nations.
Wouter Pors, a patent lawyer whom we mentioned here several times before, was recently quoted as saying: “Wouter Pors @ #UPP2016 on strategic use of #UPC and #unitarypatent: strong patents more suitable to opt-in?”
When patent lawyers say “strong patents” they don’t mean strong innovation, it’s all about strong (high) profit for strong (rich) companies. Economists are needed here, but not ones who are funded (salaried even) by the EPO. As one shrewd comment put it the other day regarding the EPO’s new French economist (we shall write about that more in a separate article):
Perhaps Yann can turn his attention to the financial impact of the UP upon not only the EPO, but also European businesses?
Darren’s amusing piece (hypothetical discussion with a client) from 20 April 2015 points to reasons why the level of the official fees levied means that advent of the UPC might not be beneficial for all – particularly SMEs.
However, in addition to the issue of official fees, that is the equally important issue of advisory fees.
A little bird tells me that national governments may well be relying upon Article 149a to sanction what would otherwise amount to contraventions of Articles 2 and 64 EPC – i.e. to allow national patents, non-unitary EPs and unitary EPs to all have different effects when it comes to infringement.
On top of this, we have the possibility (now seeming much more like a certainty) that different Participating Member States (PMSs) of the UPCA will have different national laws. Thus, it seems that the process of determining whether a patent application that is eligible for unitary protection will be infringed by actions in country X will now comprise the following steps.
1. Has unitary effect been requested?
2. If so, who was the original applicant?
3. Did the (an) original applicant have a residence / place of business in a state that is a PMS for the unitary patent concerned?
4. If so, determine the applicable national law under Art. 7(1) and (2) of Reg. 1257/2012 (and if not, the applicable law is that of Germany).
5. Seek advice from an expert of the national law determined under step 4.
This is a much more complicated and expensive procedure for determining infringement than we have under the current system. And things just get worse if you are trying to determine freedom to operate in country X and you have identified several potentially relevant patent applications. This is because:
- the above, 5-step process will have to be repeated for each application;
- different applications may have different applicants (giving increased burden for steps 2 to 4) and may therefore be subject to different national laws (giving significantly increased costs in step 5); and
- it will not be possible to provide a definitive answer for step 1 until up to 3 months after the date of grant of the application concerned.
The last point could be particularly galling for clients. This is because it could mean that, whilst they will have to bear the burden of significantly increased costs for FTO, they will be presented with an equivocal conclusion (as there can be no certainty until well after grant of all of the relevant applications).
This might all be OK if the differences between national laws was such that the conclusions would be essentially the same under all potentially relevant laws. But that is certainly not how things appear to be shaping up for indirect infringement and, crucially, for “Bolar” / experimental use.
Will all of the above in mind, any comprehensive analysis of the economic impact of the UP system really ought to take account of the “hidden” costs of advice. If this is done, then I believe that there is certain to be a negative impact upon at least some (if not most) European companies.
Here is another new comment that alludes to the UPC:
I come back to your view, Madhouse, on what constitutes “examination” of patentability.
As we are now, the Enlarged Board of Appeal of the EPO is the commodore of all the ships in the fleet, the fleet I mean being the fleet of national Supreme Courts of the EPC Member States, when it comes to the substantive law of patentability in Europe.
But now we have a new Commodore, the UPC.
And if the UPC has put DG3 out to grass, why should the EPO attempt any longer to issue any decision at all on obviousness? Why should it ever refuse any application for a patent for the reason that the claimed subject matter, even if new, is clearly obvious. Why not save a ton of money and have it merely do a search and issue an advisory EESR opinion on obviousness, and leave it at that.
You know, like INPI does. And like the UK Patent Office used to do until 1978. Isn’t that the cost-saving, modern and efficient way to go? Is that not where BB is taking us all?
Right now we see all sorts of patent “professionals” (usually lawyers) encircling UPC critics like a group of vultures. They even have their own events in favour of the UPC (the EPO funds its own in participation with lawyers' firms). There are even some gullible politicians who are helping patent trolls and aggressive corporations from abroad harm Europe with the UPC, making foolish statements such as: “The new unitary patent will help Europe’s businesses to flourish” (the opposite is true).
“Enforce patent rights across EU with a single, streamlined proceeding may become very attractive to trolls,” Henrion noted, linking to a 2-page PDF on the subject (“MCC INTERVIEW: Dr. Christian Paul & Alastair J. McCulloch / Jones Day – EU Poised to Overhaul Its Patent System – New unitary patent and court are likely to shake up global patent dispute strategies”). This is cited by one of the sections below, which are precede by the following instruction: “On the heels of patent reform in the U.S., the EU is preparing to dramatically shift its approach to patent disputes. A new EU-wide unitary patent to supplement country-by-country patents and a new court system, with jurisdiction that makes it almost as big as the U.S. system, mean big changes ahead. In this interview, Jones Day patent litigators Alastair McCulloch, who leads the firm’s IP team in the UK, and Dr. Christian Paul, who is qualified as a lawyer and graduate chemist in Germany, discuss the likely impact of the new system and what Jones Day is doing to prepare clients for the changes ahead.”
A lot of politicians have a very twisted version of the UPC in mind because they’re being lobbied/greased up by patent lawyers and their clients. They seem to think that broader is better, just as they often think that more (e.g. patents) is necessarily better. Not just trolls but patent aggressors like Apple and Microsoft would benefit from patent maximalism, which augments scope and breadth, both in terms of domains covered and nations covered. Big businesses and their lobbyists, lawyers, paid politicians etc. are passing the UPC without any public debate or input, crushing anyone who stands in their way. The closest analogy we can think of right now is the TPP. Consider this new article titled “They promised us a debate over TPP, then they signed it without any debate” (published 3 days ago).
It says: “The Trans Pacific Partnership is a secretly negotiated agreement between 12 countries, including the US, Canada and Japan, which establishes punishing regimes for censoring and controlling the Internet, as well as allowing corporations to nullify safety, environmental and labor laws that limit their profits.
“The corporations and governments that backed TPP dismissed criticism of the secret negotiations process (even members of Congress and Parliaments were not allowed to know about the substance of the negotiations, though corporate lobbyists were), promising that there would be a “debate” after the TPP was finished (that is, when it was too late).
“Early this morning (US time), representatives of 12 countries gathered in New Zealand to sign TPP. We never got the debate.”
Also see TechDirt‘s “Countries Sign The TPP… Whatever Happened To The ‘Debate’ We Were Promised Before Signing?”
“As we discussed yesterday,” TechDirt wrote the following day, “the TPP was signed by all participating countries yesterday in New Zealand (though there’s still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we’ve raised over the years — but the first issue that drew our attention to it was the intellectual property chapter. For years, we’ve questioned how it could possibly make sense to include intellectual property in a so-called “free trade” agreement, as intellectual property is the exact opposite of free trade. It’s a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property.”
The EFF subsequently wrote: “Top officials of countries involved in the Trans-Pacific Partnership (TPP) are convening in New Zealand today to sign the final agreement. But really this ceremony is just a formality. We knew since November, from the day they announced a completed deal and made the text public shortly thereafter, that they would do this. These officials have not been accountable to the public. They have remained steadfast in excluding public participation and ignoring all calls for transparency over the more than five years of TPP negotiations. Because of this opaque process, trade negotiators were able to fill the agreement with Hollywood and Big Tech’s wish lists of regulatory policies without having to worry about how they would impact the Internet or people’s rights over their digital devices.”
According to the press in New Zealand:”Protesters in Auckland were estimated at more than 5000 at their height and a rump gathered outside SkyCity for several hours after the signing.”
Politicians who represent mega-corporations, i.e. not people, want the TPP to become a reality and the same typically goes for the UPC. Here in the UK the government treats ‘IP’ as a matter of threat. MIP connects this to the UPC as follows: “Purpose of reform includes Unitary Patents The existing law is said to be inconsistent (especially with the civil pre-action procedures) potentially harmful to competition and unclear. The reform seeks to harmonise the law across the relevant IP rights and will be extended to Unitary Patents and European patents…”
When the EPO, patent lawyers, politicians who promote the interests of large corporations and so on call for immediate introduction of the UPC we must remember their motivations. This has nothing whatsoever to do with Europe’s interests or even science and technology. It’s to do with power and domination by a bureaucracy or international oligopolies/monopolies, which often depend on this bureaucracy. It is a power grab. █
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Publicado en America, Europe, Patents at 5:13 am por el Dr. Roy Schestowitz
El Alto Costo (incluso para partes inocentes) del maximalismo de patentes motivado por figuratismo y avaricia
Sumario: Demasiadas falsas patentes que no deberían haber sido otorgadas en primer lugar y fraudulentes jucios de patentes que terminan en favor del acusado sirve para mostrar el costo externo (o externalidad) cuando set trata de un bajisímo sistema de patentes que se esfuerza en otorgar muchas patentes irrespectivamente de su mérito.
El año pasado escribimos extensivamente acerca de las patentes de software en Europa, incluso en las cortes de Alemania, donde Apple había estado tratando de bloquear Android/Linux (Alemania es clave para mucho de estos juicios). Bueno, de acuerdo a esta interesante pieza de IP Kat, ¨la Corte Federal Alemana de Patentes (parcialmente) invalida 80% de patentes litigadas¨ y aquí hay otros números por patentes de software: ¨Por patentes de software y telecomunicaciones, el ritmo de invalidación es incluso más alto aún 88% (58% TOTALMENTE INVALIDAS, 30% PARCIALMENTE INVALIDAS, 12% MANTENIDAS). A los patentadores les va un poquito mejor en apelaciones, ya que el grado de victorias contra decisiones invalidatorias de patentes es alto (60%) que el grado de ganancias de apelaciones contra decisiones de mantener una patente (40%).¨
“Es de gran importancia cuando las patentes s son declaradas invalidas en las cortes por que ello significa que las oficinas de patentes simplemente han FALLADO EN HACER SU TRABAJO ADECUADAMENTE y como resultado muchas compañías tienen que gastar mucho dinero que NUNCA recuperarán (incluso cuando ellas sean absueltas).”Mucha gente leyó esto y dentro de poco tiempo muchos comentarios allí aludiendo a la OEP. Mucha gente tiene sentimientos encontrados acerca de esto. Es de gran importancia cuando las patentes s son declaradas invalidas en las cortes por que ello significa que las oficinas de patentes simplemente han FALLADO EN HACER SU TRABAJO ADECUADAMENTE y como resultado muchas compañías tienen que gastar mucho dinero que NUNCA recuperarán (incluso cuando ellas sean absueltas). Esto es una seria INJUSTICIA. Sirve también para mostrar el costo real de las oficinas de patentes que asocia el número de patentes con ¨innovación¨ (embarcandose así en una fiebre del oro de patentes).
Como fué revelado el otro día en un blog de maximálistas de patentes, patentes fueron declaradas invalidas en las corte sólo en apelaciones (i.e incluso más costos por cargos legales) porque los examinadores las otorgaron fácilmente (o fueron presionados para otorgarlas por la gerencia, si el ejemplo de la OEP otorgando Philpott fuera generalizado). El mismo blog también hablo acerca de trolls de patentes con patentes de software. Escribimos mucho acerca de la defensa de NewEgg contra tales trolles en los últimos años (NewEggs merece felicitaciones por su política en esta materia). Para citar del blog ¨en apelación el Circuito Fedearal notó -esta vez, que NewEgg estaba en una posición inrazonable -demandando una revisión nueva de las decisiones de la corte del distrito a pesar del precedente de la Corte Suprema al contrario. Sin embargo, el Circuito Federal siguio su práctica habitual requiriendo a cada parte solventar sus propios costos en la apelación.¨
“Las oficinas de patentes necesitan someterse a una examinación.”Así que de nuevo esta en apelación y los costos legales no seran devueltos. El costo de fraudulentos jucios de patentes (patentes inválidas) es pasado al acusado, quien incluso sea probado inocente todavía pierde (un montón de dinero). ¿Qué clase de justicia es esta? La UPC puede potencialmente traer mucho de esto a Europa y dadas las estadísticas (de Alemania) no deberiamos tolerarla. Las oficinas de patentes necesitan someterse a una examinación. Al presente no tenemos en Europa una efectiva supervisión, la cálidad es difícilmente impuesta desde el exterior, excepto desde la Corte Suprema, the EPC (vieja), y así. ¿Porqué son tantas falsas patente otorgadas en primer lugar? La OEP nos amenaza con llevarnos a juicio por la evidencia que hemos mostrado, algo permanece considerado.
Consideren este nuevo análisis de un sitio de abogados de patentes. Es titulado ¨La patente de Mosanto sobre el Melor Resistente a Viruses es Revocada¨ y dice: ¨La patente fue solicitada en la OEP el 21 de diciembre de 2006 y el otorgamiento fue efectivo el 4 de mayo de 2011. La patente ha sido opuesta por inter alia, numerosas NGOs (Agencias Non Gubernamentales).¨
¿Necesita persistente política presión de las NGOs actuar como supervisión para codiciosas oficinas donde hay insaciable aspiración para incrementar el número de patentes, incluso para no éticamente ampliar la esfera de patentes (ejemplo en formas de vida)? █
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