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12.13.18

The European Patent Troll Wants as Much Litigation as Possible

Posted in Europe, Patents at 1:58 pm by Dr. Roy Schestowitz

…And as many granted European Patents as it can get away with

António Campinos FTI

Summary: Patent quality is a concept no longer recognisable at the European Patent Office; all that the management understands is speed and PACE, which it conflates with quality in order to register as much cash as possible before the whole thing comes crashing down (bubbles always implode at the end)

THE European Patent Office (EPO) does not intend to improve patent quality. It does not even acknowledge such an issue. António Campinos is happy enough to personally promote software patents in Europe (even in his blog) and tell concerned stakeholders such as law firms that he just wants to remove the cause/source of criticism rather than properly tackle the issue. Kluwer Patent Blog wrote about it last month and commenters were understandably upset. Who does today’s EPO serve? As we put it some weeks ago, "António Campinos is Working for Patent Trolls at the Expense of Science and Technology" (the original purpose of the Office was to advance science).

Just more than a day ago the EPO was retweeting epi as saying: “Visit us at the EPO Vienna, 5 Feb 19 for the “Opposition & Appeal” seminar supported by the EPO. You get an intensive and practical overview of all relevant legal & practical issues concerning opposition and appeal proceedings before the @EPOorg. https://patentepi.com/r/Opposition_Appeal_seminar …”

As a reminder to our readers, epi very belatedly protested EPO abuses and the same goes for EPLAW [1, 2], whose latest think tank was boosted by IP Kat yesterday. Annsley Merelle Ward from Bristows was boosting this event of patent maximalists looking to sue anyone they can (for profit, for ‘sport’); she quotes colleagues, as usual, which makes the blog look like it has been reduced to ‘mouthpiece’ status of litigators (Team UPC and others). “EPLAW was formed in 2001 to strengthen the network of experienced patent litigators in Europe and to work towards a more harmonized European patent litigation system,” it says. This is what the bullies from Team UPC want. And watch what it says towards the end: “The afternoon concluded with a report from Kevin Mooney (Simmons & Simmons, UK) and Pierre Véron (FR) on the latest progress and recent developments for the UPC and a report from Daan de Lange (Brinkhof, NL) on the highlights of the Judges Conference in Venice.”

So it’s that ‘obligatory’ UPC promotion. Mooney keeps telling lies about the prospects of the UPC in the UK, so we have mentioned him a lot lately.

An article by Abhai Pandey and Joginder Singh (proponents of software patents at LexOrbis, India [1, 2]) has also just been published to promote PPH, a litigation ‘highway’. It mentions the EPO. Lawyers love it when patent quality gets abandoned for the sake of their biggest ‘product’: litigation. “Hurry up,” they say, “you lazy examiners need to issue us patents to sue with! To hell with prior art search and all that ‘nuisance’!”

We have also just noticed this new article by Shelston IP Pty Ltd’s Gareth Dixon. These people are aggressive proponents of software patents and they’re constantly attacking/discrediting anyone in NZ whom they don't like, irrespective of the underlying facts. This article too mentions the EPO. All they want is to sue, sue, sue… that’s where the “Big Money” is.

Speaking of litigation and the EPO, IAM (the patent trolls’ mouthpiece) has just published this piece about a “decision in Monsanto’s appeal against the revocation of a key patent” in India. An article that was supposed to be about India suddenly turned into this (all about EPO):

In view of the absence of any definition for the terms “parts of plants or animals” or “essentially biological process” in the Patents Act, there is no clear statutory guidance for the same. While the DHC relied on the decisions of the European Patent Office (EPO) Enlarged Board of Appeals striking down the so-called “Tomato” and the “Broccoli” patents, it failed to consider that the new varieties of tomato and broccoli were not transgenic and that there was no recombinant construct being introgressed to prepare these varieties with improved traits.

The European Patent Convention (EPC) and Directive 98/44/EC (the Biotech Directive) also exclude “essentially biological processes” from being patented. Article 2(2) of the Biotech Directive, as well as Rule 26(5) of the EPC, state that “a process for the production of plants or animals is essentially biological if it consists entirely of natural phenomenon such as crossing or selection”.

Further, Article 4(1)(b) of the Biotech Directive excludes from patentability essentially biological processes for the production of plants or animals. Article 4(3), however, clarifies that Article 4(1)(b) will be without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process. Article 53(b) of the EPC echoes the same.

Thus, methods of making transgenic plants using novel recombinant DNA constructs and even transgenic plants are patentable in Europe. Interestingly, the Board of Appeal of the EPO has just ruled that Rule 28(2) EPC as amended by the Administrative Council in July 2017 is void as it is in conflict with Art 53(b) EPC as interpreted by the Enlarged Board in G 2/12. Thus, as per this latest ruling, even the plants produced by essentially biological processes are now patentable in Europe. We hope that these new developments are brought to the attention of the Supreme Court for the European perspective.

Suffice to say, litigation firms love it. Managing Intellectual Property (another trolls-friendly blog) has just written about it (yet again, this time Patrick Wingrove) and said:

In-house counsel say the EPO Technical Board of Appeal’s conclusion that plants made from essentially biological processes are patentable could usher in another decade of protection uncertainty in the industry

In-house counsel reveal that uncertainty has grown in the agricultural industry after a controversial decision on plant patents from the European Patent Office (EPO) last week.

This tragedy at the EPO is actually a threat to the EPO's reputation (which is already severely damaged for many other reasons), but patent lawyers focused on litigation certainly like it; more lawsuits, more monopolies to feud over…

As some people are rightly point out (not the patent maximalists), one must wonder how much degree of freedom the judges really had. Ellie Purnell (HGF Ltd) echoes the patent maximalists’ line, whereas this insider’s blog (EPO) noted again that “dismissal of a DG3 member [Judge Crocoran] was also political in nature. President Battistelli simply could not accept that they were independent of him, as everybody understood from his later actions.”

Here’s the full post: (we’re assuming not many of our readers are subscribed to Märpel as well)

The December council meeting is upon us and Märpel heard that there was little progress on the disciplinary cases. Remember: Laurent Prunier, Elisabeth Hardon and Patrick Corcoran.

Laurent Prunier and Elisabeth Hardon were dismissed together with other prominent union representatives. Even if the official word is that the disciplinary measures were only grouped on prominent union representatives because of “mere coincidence”, everybody working in the office knows that President Battistelli wanted to bring staff representation to their knees. Apparently, this is what they teach in France at the ENA and the recent events show the results of that policy.

The dismissals were political in nature. It comes therefore at a surprise that President Campinos was able to stall the procedure concerning Mrs Hardon and convince the office internal “independent” disciplinary court to wait for him to negotiate. How convenient that he can tell the Council tomorrow that he is “negotiating”, with full powers to stall the proceedings for as long as he wishes. And is there anything to negotiate when your sole offense was that you were head of the staff union?

The dismissal of a DG3 member was also political in nature. President Battistelli simply could not accept that they were independent of him, as everybody understood from his later actions. Yet, Mr Corcoran was reintegrated to DG3 for a week and has not been seen in the office since that time. Rumour is that he is seriously ill. The council washed their collective hands, satisfied that “justice was done”. Whether the Federal constitutional court shall come to the same opinion remains to be seen.

It is already being suggested that the attack on Corcoran was a warning sign (to judges); so was the attack on staff representatives, which reminded everyone that purely political ‘cases’ can be made up (out of thin air) to punish anyone — especially a staff representative — who ‘rocks the boat’ a little, e.g. by pointing out corruption.

SUEPO has not spoken about patent quality for a long time. It’s not improving, but the gag on SUEPO seems to have improved. The Office sends threatening letters not only to SUEPO but also the CSC when publications get issued. As we noted at the very start, Campinos is working on gagging critical stakeholders as well. In just a couple of months Campinos became what took 2 years (or 3 years) for Battistelli to become. Not a good sign, right?

Here is the EPO promoting software patents in defiance of the EPC — its very founding document (de facto ‘constitution’). Yesterday it wrote: “If innovation is for the benefit of society, there should be as much incentive as possible for innovators to disclose AI innovations. That’s one conclusion from our recent conference on patenting #artificialintelligence: http://bit.ly/AIpatents” (“AIpatents” are just a kind of software patents). It was then followed by: “Steep rise in patent applications for self-driving vehicles at the EPO.” (many of these are computer vision, i.e. a kind of software patents).

Steven M. Shape, Malte Köllner and Cary Levitt (Dennemeyer Group) have also just published this buzzwords salad: “Examiners have to cope with the emergence of multidisciplinary, new and potentially disruptive technologies (eg, internet of things, artificial intelligence, connectivity, big data and blockchain technologies).”

These are just kinds of software patents, ‘dressed up’ in buzzwords. They said this in relation to the EPO.

We certainly hope that EPO examiners realise/understand the underlying concepts and who came up with them. In some cases marketing departments are responsible for these terms.

Addressing the subject of litigation system fragmentation (which UPC would only make worse, e.g. legal/court proceedings in a foreign language), Renate Rieder (Maiwald Patentanwalts und Rechtsanwalts GmbH) explains why, once the EPO granted false patents, it’s incredibly hard and expensive to show they’re void and invalid. In her own words:

In contrast to the numerous infringement proceedings, national court decisions regarding the validity of European patent EP 1 313 508 B1 – which was maintained as granted in the opposition proceedings before the European Patent Office – are rare. In the UK and Swiss proceedings mentioned above, validity was not challenged. Validity was challenged in Germany, but not in the above-mentioned proceedings. Due to the so-called bifurcated system, validity of a patent and patent infringement cannot be dealt with in the same proceedings in Germany. Lack of validity has to be raised in separate proceedings before the German Federal Patent Court (FPC). In July 2018, the FPC revoked the German part of EP 1 313 508 B1 (case no. 3 Ni 23/16 (EP), judgment of July 17 2018). The reasons for this decision were published in November 2018. According to the FPC, the combined use of pemetrexed disodium and vitamin B12 for inhibiting tumour growth is obvious in view of the prior art.

Just think what that means to granted software patents and how terrible things would get if litigation got ‘unified’ in the UPC sense, with an EPO-centric court where judges are pressured to accept abstract patents. There’s a discussion related to this. One person wrote some hours ago:

Proof of the Pudding, I completely agree with everything you have written, but I would also point out the broader set of events that happened. The Enlarged Board ruled that products of essentially biological processes were patentable. The EU Commission disagreed. The EPC rules were changed to comply with the Commission’s view. This is power politics at play, and a reflection of the hard reality. The EU is an ongoing project which is ever-expanding and patents are something it has an interest in. The EU will ultimately not allow the EPO to dissent in any substantial way. Whilst ‘legally’ speaking you are correct, I fear that ultimately the EPO will end up being an EU institution at some point because it does not have the power to resist. The EU has recently proposed changes to SPC rights (http://europa.eu/rapid/press-release_IP-18-3907_en.htm). At some point or other it is bound to review patent protection and perhaps how validity is determined, and that will inevitably require the EPO to comply with whatever the EU wants.

“I also agree that the EPO will continue to ensure that, as much as is possible, it acts in accordance with EU law,” said the next comments, but the EPO breaks many laws and then brags that it’s immune from prosecution. Here’s that comment in full:

If by “power politics” you mean a breach of democratic norms (including the separation of powers between the executive, legislative and judicial branches), then I agree that this is what is currently in play.

I also agree that the EPO will continue to ensure that, as much as is possible, it acts in accordance with EU law. However, I believe that their compliance on this point will be motivated by self-interest, namely avoiding a situation arising where the CJEU holds the EPC to contravene EU law.

From this perspective, I continue to believe that it is extremely unlikely that the EPO will be converted into an EU institution, as the circumstances are unlikely to arise where the pain caused by such a change (which would almost certainly include restricting membership of the EPO to EU states only) wold be seen as “worth it” by all stakeholders.

The comparison to SPCs is inappropriate. EU-wide SPC protection was created for the first time under EU law. The same is not true for (more or less “harmonised”) EU-wide patent protection. We have a well-established (and largely well-functioning) system that exists under international law. The consequences of the EU creating an entire patent system under EU law would therefore be far more profound and unsettling (as well as potentially unpleasant).

The above was said in relation to disagreements over patentability of plants/seeds; the same could be said about software patents. Even though the EU objects to such patents, to the EPO it’s only “as such” (so it keep granting such patents anyway, even when national courts repeatedly reject such patents).

António Campinos Turns His ‘Boss’ Into His Lapdog, Just Like Battistelli and Kongstad

Posted in Europe, Patents at 1:03 pm by Dr. Roy Schestowitz

And the ‘brand new’ management is still a censorship operation

Battistelli and Kongstad

Summary: The European Patent Organisation expects us to believe that Josef Kratochvíl will keep the Office honest while his predecessor, the German who failed to do anything about Battistelli’s abuses, becomes officially subservient to António Campinos

EARLIER THIS week the European Patent Organisation (EPO) made the decision to choose a particular new Chairman of the Administrative Council, seeing that in a matter of weeks António Campinos turns his 'boss' into his assistant. It’s just as ludicrous as that sounds and it says a lot about the lack of oversight at the EPO.

“Suffice to say, the European Patent Office won’t be bossed by him but will boss him, as usual, as it’s a rogue institution where Campinos, according to insiders, seeks to have even greater powers than Battistelli.”They wrote in Twitter that “Josef Kratochví [is] elected Chairman of the Administrative Council of the European Patent Organisation,” pointing to a page from the prior day (warning: epo.org link).

Suffice to say, the European Patent Office won’t be bossed by him but will boss him, as usual, as it’s a rogue institution where Campinos, according to insiders, seeks to have even greater powers than Battistelli. Look no further than the fact that his former ‘boss’ will be bossed by him very shortly; but there are other aspects to this power grab, other than this uttertly gross reversal of roles.

“Next month we’ll have a lot to say about the Croat who made corruption at the EPO not only banal; it encouraged the Office to aggressively block and punish anything and anyone who dared bring up the subject.”To quote the EPO: “The Administrative Council of the European Patent Organisation today elected Josef Kratochvíl (CZ) as its Chairman. Mr Kratochvíl succeeds Christoph Ernst (DE) who, in October, was appointed Vice-President for Directorate General Legal and International Affairs of the European Patent Office. Mr. Kratochvíl is currently Deputy Chairman of the Council and is also the President of the Industrial Property Office of the Czech Republic.”

Separately, the EPO wrote about (warning: epo.org link) and later cited an item about a week-long office closure. One week’s closure sounds like loss of ‘productivity’, no? Isn’t it the only major holiday Battistelli did not shorten or altogether cancel? “Please note that our offices will be closed over the holiday period from 24 December 2018 to 1 January 2019 inclusive,” the EPO said.

We’ll be migrating our site to a new server around that time. Suffice to say, we’ll still be blocked by the EPO, under Kratochví and Campinos. Censorship policies at the Office have not changed; virtually nothing has changed other than PR. Next month we’ll have a lot to say about the Croat who made corruption at the EPO not only banal; it encouraged the Office to aggressively block and punish anything and anyone who dared bring up the subject.

12.12.18

EPO Trust, Leadership and Commitment

Posted in Europe, Patents at 5:37 am by Dr. Roy Schestowitz

Summary: “Trust, leadership and commitment” is the latest publication from EPO insiders, who in the absence of free speech and freedom of association for the union/representation are an essential spotlight on EPO abuses

THE FOLLOWING publication was made available yesterday. Here it is in HTML form.


LIFER

11 December 2018

IFLRE

EPOFLIERNo. 45

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict

Trust, leadership and commitment

The president recently announced1 that the Office will run a staff survey in early 2019. That’s good news. The plan is for the survey to measure staff’s level of engagement (commitment). The results, to be published in March 2019, complement the president’s one-to-one meetings with staff members. Regular further staff surveys are planned for the future.

The skills, talents, creativity, innovation, and passion of its people can be the difference between organizations achieving exceptional performance or wallowing in mediocrity. In order to come out on the winning side of this challenge, organizations must connect the dots between trust, leadership, and engagement. Trust is the foundation, leadership is the driver, and engagement is the goal.

Randy Conley2

Trust is the foundation

Randy Conley says that in organisational life, trust simultaneously acts as the bonding agent that holds everything together and the lubricant that keeps things moving smoothly2. According to Will Campbell, trust is like a workplace currency, it is given and received, and convertible into higher productivity and increased staff engagement3.

Unfortunately, Mr Battistelli’s administration destroyed the staff’s trust in their employer4,5. This is not Mr Campinos’ fault, but it leaves him with a herculean task to rebuild it.

How to build trust

According to a global trust survey by PR giant Edelman, employees and executives agree that ‘treating employees well is one of the most important things a company can do to build trust.’”3

Leaders can build trust using “trust boosting” behaviours, such as asking for and receiving feedback openly, admitting mistakes, acting honestly, ethically and legally, and being consistent in word and deed, writes2 Randy Conley. That way, they “cultivate an environment where employees feel safe and want to invest their discretionary effort2.

Further trust-building elements are transparency3, consistent and transparent communication6, the recognition of employee’s contributions6 and providing opportunities for involvement6. Research has also indicated that the leading factor influencing an employee’s engagement is his relationship with his direct manager2.

Trust – where do we stand?

While the president’s one-to-one meetings with staff members may help to build trust, there are currently enormous deficits in many areas.

When the president announces that the Office will focus on quality, for example, COOs, line and team managers pass on the message to their staff that the knowingly7 overambitious and unrealistic production targets set by the Office must be met by all means8. Here, the Office is not consistent in word and deed. The new president recently told the delegations that president and Administrative Council must speak with one voice9. We agree. And we think that this should also apply to the EPO management (COOs, HR, directors and team managers).

Staff members’ contributions are often not recognised. The new career system is a lottery. Not even everyone who has reached his target gets a reward. It’s as if the system was designed to reward the top-producers, punish the under-producers and ignore the vast numbers of colleagues in-between, who work honestly, diligently – and unspectacularly – day in, day out. Can management expect trust to build on such uncertainty?

One of Mr Battistelli’s mantras was that employees need to be pushed to produce more by making them feel uncomfortable. Intimidation became – and still is – a management tool at the EPO. As production and productivity targets rise, increasing numbers of colleagues who fail to reach them are at risk of being classified as “incompetent” and dismissed10. Managers do not always act honestly, ethically and legally under these conditions. Some are using threats to push individuals to increase their output. But if Randy Conley is right2, only employees who feel safe will fully commit themselves to their tasks. Warigon and Bowers11 say that employees managed by intimidation will “not be sufficiently motivated to give their best or walk extra miles.” Staff who experience chronic work stress are at risk of a suffering from a wide spectrum of diseases12. And intimidation techniques are definitely not compatible with the president’s announced13 goal to increase the service quality, since employees whose adrenalin levels are driven up by fear will not be able to focus on their work a prerequisite for delivering high quality intellectual services14.

The legal system has also become a lottery. Staff can neither rely on a fair internal appeal system, nor on the ILO Tribunal to stop abuses of the administration4,15,16.

The uncertainty for the staff has meanwhile spread to the applicants and the public, where it has materialised as legal uncertainty through low quality patents17, and led to a loss of trust18.

The staff representatives are still being obstructed in their communication. The president has only made cosmetic changes19 to the total ban on mass emails from staff representatives introduced by his predecessor. The total blocking of staff union emails is still in place. Staff committees can now send two (2!) mass emails per year, and only when inviting staff to general assemblies. All staff committee papers must still get prior approval from the Office before they are published20. While the average DG1 directorate size is about 70, individuals can send emails to a maximum of 50 persons.

While social dialogue seems to be slowly resuming, there are still deficiencies in transparency and in providing opportunities for involvement to staff committees and staff unions. To name an example, a new circular on performance management, which will enter into force on 1 January 2019, is being prepared in a rather opaque manner21.

How can trust and engagement be improved?

Without knowing the results of the upcoming staff survey, it is already clear from the above that the Office management needs to do much more if it wants to regain the staff’s trust.

But there is more. The survey provider says that engaged staff “believe in where we’re going” and are “proud to work at the EPO1. For staff to believe in where we are going, management must first indicate where it wants to go. The president needs to define a clear and transparent overall Office strategy, and the individual staff members must know their role in that strategy. They must also be able to rely on their management to stick to the strategy it has defined. For staff to be proud to work at the Office, they must identify with its mission and feel valued for their contribution.

For staff to be engaged, they need to trust their management and their organisation. And for that trust to emerge and grow, there must be a high level of certainty for them. That certainty can only be provided by fair rules and a reliable justice system which staff experience as fair.

After eight years of destructive management, the EPO workforce is exhausted. Staff are thirsty for genuine leadership whose cornerstones are honesty, consistency and fairness. Their hopes for swift improvements must not be disappointed. If the president wants to energise the staff, meeting them face-to-face for 15 minutes alone won’t do the trick. Concrete actions are required.

Take care of your employees and they will take care of your business. It’s as simple as that.

Richard Branson, founder of Virgin Group22

www.epostaff4rights.org

1 Communiqué “Update on the planned staff engagement survey” (28.11.2018)

3 Why Trust Is The Core Of Employee Engagement (Will Campbell, 22.11.2015)

4 Destroying trust – for a long time. (SUEPO The Hague, 05.03.2018, monthly password required)

5 EPO FLIER No. 36 “Trust is broken & quality in decline” (16.03.2018)

7 Patent quality has fallen, confirm Euro examiners (Kieren McCarthy, The Register, 15.03.2018)

8 An example are two recent and rather contradictory messages from one of our COOs. One of them addresses her staff, requesting them to improve the quality of patent grants, the other one was sent to her directors and team managers, pushing for higher production. See “New EPO messages reveal quality decline and ‘confuse’ staff“ (Barney Dixon, IPPro Patents, 4.10.2018), “Act Now? –YES, please!” (SUEPO Munich, 8.10.2018, password needed)

9 Report on the 121st meeting of the Budget and Finance Committee (CSC, 31.10.2018)

10 Which recently happened: EPO dismisses employee under new controversial ‘incompetence’ provisions(Barney Dixon, IPPro Patents, 06.09.2018)

11 Why management-by-intimidation can never work long-term in IT (Scott Robinson, Tech Decision Maker, 18.12.2011)

12 Such as burnout, heart disease, diabetes, and infectious diseases as the immune system becomes compromised; see Burnout Prevention and Treatment (helpguide.org), the Whitehall study, and What ails us? – Or: what the Whitehall study tells us about the relationship between work and health (CSC, 14.11.2005, password needed)

13 Communiqué “Moving forward with quality” (8.10.2018) and EPO FLIER No. 41 “The Price of Quality” (15.10.2018)

14 ”Impact of Management by Intimidation on Human Capital: is it destroying you organisation?” (Slemo D. Warigon, Betsy Bowers, see College & University Auditor, Vol. 50, No. 2 / SUMMER 2006, pages 5-10)

15 EPO FLIER No. 38 “The ILO Tribunal – Is it still worthy of our trust?“ (12.06.2018)

16 EPO FLIER No. 42 “Status of EPO disciplinary cases” (7.11.2018)

17 EPO FLIER No. 39 “Reputation and patent quality after eight years of Battistelli: ruined” (26.06.2018)

18 The EPO’s Vision (V) – Trust (Thorsten Bausch, Kluwer Patent Blog, 31.03.2018)

19 EPO partially ends staff rep email ban (Barney Dixon, IPPro Patents, 13.11.2018)

20 In February 2018 the Office refused permission to publish a CSC paper it didn’t like: EPO staff committee argues against publication review (Barney Dixon, IPPro Patents, 14.03.2018)

21 At a staff general assembly on 15.11.2018, called by LSCTH, staff were informed that minutes of a recent working group meeting were not taken since the matter was considered “highly confidential” by HR management.

22 Virgin Group Ltd. controls more than 400 companies with approximately 71,000 employees.

12.11.18

With ‘Brexit’ in a Lot of Headlines Team UPC Takes the Unitary Patent Lies up a Notch

Posted in Deception, Europe, Patents at 11:20 am by Dr. Roy Schestowitz

Bristows EPO

Summary: Misinformation continues to run like water; people are expected to believe that the UPC, an inherently EU-centric construct, can magically come to fruition in the UK (or in Europe as a whole)

THE lies told by Team UPC are nowadays pathetic. The European Patent Office (EPO) seems more reluctant to lie after António Campinos started his term, so the EPO basically says almost nothing.

Funnily enough, even the biggest liars have been mostly silent. Bristows LLP, for instance, barely posts anything on the matter (since the summer) and when Alan Johnson mentioned the UPC a few days ago it wasn’t even about the UPC but about SPCs. It seems as though his employer is now paying to spread its nonsense elsewhere (from its marginalised blog that is barely active anymore). We took note of it at the time.

“They don’t want people to publicly call them “liars” (even implicitly) when they lie. They believe that massively repeating the lies ad infinitum will help these lies stick and thereby shape perceptions. At the same time they attack their critics, albeit only anonymously.”An article by Alistair Maughan, Wolfgang Schönig, Sana Ashcroft, Robert Grohmann and Jana Fuchs (Morrison & Foerster LLP) promoted the same old UPC myths earlier this week. UPC was also mentioned here yesterday. They don’t seem to care about facts. It’s just that same old nonsense about Britain joining something that does not even exist and that it cannot technically join anyway. Team UPC’s Wouter Pors wrote about it first thing in the morning; he carries on with the infamous UPC lies (citing as sources other Team UPC fantasists). These ‘unitary’ patents do not exist and will never exist; they’re just fantasies. They’re staging a legislative coup for self enrichment and in order to succeed they increasingly attempt to rely on lying to politicians, e.g. Wouter’s claim that “if it [UK] does leave the EU, it can still remain part of the UPC, which at least in my view is an honourable cause.”

No, it profitable for you, Wouter, it’s harmful to the UK, and technically it is not even possible. Deep inside Wouter knows it.

Even though they ‘sanitise’ comments to remove dissent (to the UPC) from this blog, Concerned observer’s first and sole comment soon thereafter appeared (one must remember that these commenters have to be exceedingly polite to not have their comment deleted at the back end). To quote:

Wouter,

With all due respect, I think that the above analysis misses one or two key points.

Firstly, it is important to note that Opinion 1/00 included the following conclusion:
“Therefore, the mechanisms for ensuring uniform interpretation of the rules of the ECAA Agreement and for resolving disputes WILL NOT HAVE THE EFFECT OF BINDING THE COMMUNITY and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law incorporated in the agreement”.

In other words, rulings on provisions of EU law in connection with the ECAA Agreement (in common with rulings of the EFTA Court) would NOT be binding on any EU Member States, and so would not threaten the autonomy of EU law. By way of contrast, the UPC Agreement purports to make rulings of the UPC binding upon the Participating Member States. This is a highly significant difference, meaning that it is IMPOSSIBLE to draw any positive conclusions from Opinion 1/00 (or either of Opinions 1/91 and 1/92) when it comes to the question of compliance of the UPC Agreement with EU law.

Secondly, I do not believe that paragraph 26 of the CJEU’s ruling in Wightman and others has any significance for the UPC. The key part of that paragraph reads as follows:
“it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court”.

In essence, the CJEU is saying that it is up to the national court to determine the need for a preliminary reference under Article 267 TFEU. However, the CJEU’s answer is based upon the undisputed assumption that the national court in question was a “court or tribunal of a Member State” in accordance with Article 267 TFEU. Given that the UK’s future participation in the UPC appears to hinge upon that court being classified an INTERNATIONAL court (ie NOT a “court or tribunal of a Member State”), there is at least a prima facie reason to doubt that the CJEU would accept any preliminary references from the UPC.

In other words, the ruling of the CJEU in Wightman and others simply does not address the key point of contention for the UPC.

One final point: the combination of the above two points could well provide reason to doubt Prof. Tilmann’s assertion that the UK’s loss of EU membership is not a fundamental change of circumstances within the meaning of Article 62 VCLT. This is because a potential consequence of that change is the conversion of the UPC to the status of an international court, the rulings of which could then threaten the supremacy and autonomy of EU law. Thus, whilst it is clear that the CJEU is prepared to entertain arguments based upon the VCLT, I do not believe that this would be the end of the matter for the UPC.

One might assume that other comments have been posted or will be posted albeit removed before anyone can see them. Such is the nature of this blog and such is the nature of Team UPC in general (it censors other blogs too, as we’ve demonstrated for a number of years). They don’t want people to publicly call them “liars” (even implicitly) when they lie. They believe that massively repeating the lies ad infinitum will help these lies stick and thereby shape perceptions. At the same time they attack their critics, albeit only anonymously [1, 2].

The EPO Not Only Abandoned the EPC But Also the Biotech Directive

Posted in Europe, Law, Patents at 10:38 am by Dr. Roy Schestowitz

Like outlaws still run the Office

Topić France

Topić letter

Summary: Last week’s decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there’s still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place

EUROPEAN Patents (EPs) which threaten lives and software patents that are EPs were mentioned in our last post. How far is António Campinos willing to go? How far will Iancu at the U.S. Patent and Trademark Office (USPTO) go?

How about patents on life itself?

It is widely known that this subject is ‘controversial’, by which we mean on one side we have large corporations like Monsanto and on the other side virtually everyone else, i.e. the public (those not striving to ‘own’ all lives using bizarre patents).

Last week there was some disturbing development/news which made one wonder if judges had been having dinners at Bayer or something like that. There has been no word on this decision from the EPO’s Twitter account, which has been unusually quiet lately (the past few days). Those who covered the decision have been almost without exception patent maximalists; the same goes for comments. Apparently all that matters is how much they can profit from it, not how much sense it actually makes. Miquel Montañá wrote about this yesterday (“The Political Dimension of Tomatoes, Broccoli and Peppers”); it’s about the incredible stance of the European Patent Office’s (EPO) Board of Appeal (BoA), which decided that patents on seeds, pigs, plants etc. are acceptable as if people “invented” these. Does the EPC not matter anymore?

Here’s a new comment on the connection between the EU and the EPO:

In response to ‘EPO is not EU…’, please see http://patentblog.kluweriplaw.com/2018/05/08/eu-bring-unitary-patent-system-control/

Already the economic and academic arguments are being made as can be seen in that article. The EPO is being entrusted with the Unitary Patent, but that will bring the responsibility of harmonising with EU. It does not make sense to have 2 different sets of appeal systems in Europe (The EPO Boards and the CJEU). A single system of control is sensible, and I am sure will come into being at some point.

“Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law.”

Here’s another comment of interest:

I would like to address a number of inaccuracies in (implied) statements in your comment from 7 December.

Firstly, it is the Member States that are bound by the Biotech Directive. The role of the courts is to interpret that legislation, ie to determine the meaning of rules that bind the Member States (and other individuals / entities towards which those rules are directed).

Secondly, only the CJEU is able to provide a binding interpretation of the Biotech Directive. Whilst the views of the Commission and of the Member States may be of interest, they are meaningless if they do not align with the CJEU’s interpretation of that Directive.

Thirdly, there has already been national litigation (in the Netherlands) on relevant claims. Contrary to what you asserted would be the inevitable result, those claims were held by the Dutch court not to be excluded from patentability.

Finally, as has already been pointed out, Opinion 1/09 closes the door to the EPO becoming an EU institution. Indeed, it is not 100% clear whether the EPO as it currently stands is compliant with EU law. In this respect, a positive aspect of the Board of Appeal’s decision is that it avoided an outcome that would have been a blatant example of non-compliance with EU law (specifically, with Article 267 TFEU, which is essential to preserving the autonomy and supremacy of EU law).

If the Biotech Directive does not matter and the EPC does not matter either, what does that make the EPO? An outlaw organisation? An organism? If it’s an organism, maybe people can apply for a patent on it.

“There is a large uncertainty regarding patenting of plants and animals exclusively obtained by means of essentially biological processes in Europe,” Valea AB’s Joanna Applequist and Karolina Wiktorson wrote earlier this week. Over at Mondaq, J A Kemp (promoter of antibody patents) seemed rather happy to see this. “We understand that, at an oral hearing held on 5 December 2018 in relation to case T1063/18 concerning an application entitled “New pepper plants and fruits with improved nutritional value”, EPO Technical Board of Appeal 3.3.04 held that Rule 28(2) EPC introduced in July 2017 is in conflict with Article 53(b) EPC. Once confirmed, this will have important implications for EPO practice regarding inventions in the field of plant (and animal) breeding as in principle the Rule can no longer stand or be used to reject patent applications if it does not conform to the Article it is supposed to implement,” J A Kemp’s Andrew Bentham wrote.

Patent propaganda site Managing IP chose a headline that says “Plants patentable in Europe”. How misleading. It’s not actually over yet. Moreover, as we explained some days ago, the EPO is simply enraging farmers, who have already protested such moves. The ramifications remain to be seen, but for a patent office that just strives to increase so-called ‘production’ this may seem (artifiically, on the surface) like a positive development. At what cost?

Patents on Abstract Things and on Life (or Patents Which Threaten Lives) Merely Threaten the Very Legitimacy of Patent Offices, Including EPO

Posted in Europe, Patents at 9:42 am by Dr. Roy Schestowitz

Limits are necessary

Low maximum speed

Summary: Patent Hubris and maximalism pose a threat or a major risk to the very system that they claim to be championing; by reducing the barrier to entry (i.e. introducing low-quality or socially detrimental patents) they merely embolden ardent critics who demand patent systems as a whole be abolished; the EPO is nowadays a leading example of it

Disguising/framing bogus, invalid software patents as “AI” isn’t so hard anymore. António Campinos, who has no grasp of the concept (he’s not a scientist but a former banker), thinks of the term like it’s pixie dust that miraculously makes everything “innovative”.

As IPPro Magazine put it yesterday: “According to Khan, the US has seen the most AI-related patents granted, but it is the European Patent Office (EPO) in which he sees some difficulty in terms of filing.

“They don’t even use the term “AI” in its classic/traditional sense; they just call almost any ‘clever’ algorithm or computer “AI”.”“He described the EPO’s take on the excluded subject matter in its guidelines relation to AI inventions as “easy to overcome” but warned that the inventive step aspect will be the opposite of that, likening it to pole-vaulting.”

The U.S. Patent and Trademark Office (USPTO) also started to adopt this buzzword more recently, quite likely in pursuit of tricks by which to overcome (at least at the Office) 35 U.S.C. § 101 (SCOTUS). They don’t even use the term “AI” in its classic/traditional sense; they just call almost any ‘clever’ algorithm or computer “AI”. This is what happens when nontechnical people are put in charge of leadership roles. Law firms run the asylum.

IP Kat‘s Neil Wilkof has just written about how Singapore deals with trademark maximalists while lawyers who produce nothing pocket lots of money.

“…letting such patents persist simply delegitimises the Office in the public eye…”IP Watch‘s article from yesterday (“Singapore IP Office Grants First Accelerated Patent Under New FinTech Initiative”), relating directly to what we wrote about yesterday, speaks about Singapore accelerating the granting process for some bogus/abstract patents and uses the buzzword “FinTech” to justify that. In their own words: “This accelerated patent application-to-grant process comes at no additional cost and is open to any FinTech enterprises from anywhere in the world who file through IPOS.” The European Patent Office (EPO) has a similar program, notably PACE although PPH and Early Certainty also relate to so-called ‘speed’ (shortcuts rather). It’s to do with backlogs really (the U.S. Patent and Trademark Office (USPTO) obsesses over it) and the EPO doesn’t seem to care much about 9,000+ appeals in the pipeline, addressing for the most part erroneous or controversial grants, not rejections. Some of these patents have many lives at stake. There are some notable examples of these, e.g. as covered by a propaganda site for patents on nature and life, Life Sciences Intellectual Property Review, as recently as yesterday:

Six organisations have appealed against the European Patent Office’s (EPO) decision to uphold a patent for a key hepatitis C drug.

The appeal, which concerns Gilead Sciences’ patent for sofosbuvir, was filed on Wednesday, December 5, by Médecins du Monde (MdM), Médecins Sans Frontières (MSF), AIDES (France), Access to Medicines Ireland, Praksis (Greece) and Salud por Derecho (Spain).

According to a statement released by MSF, the EPO should revoke Gilead’s patent (EU number 2,604,620) for sofosbuvir because “it does not meet the requirements to be a patentable invention from a legal or scientific perspective”.

We wrote about it several times last week. As we put it some days ago, letting such patents persist simply delegitimises the Office in the public eye; we’ll say more about this in the next post.

12.09.18

Florian Müller’s Article About SEPs and the EPO

Posted in Europe, Patents at 9:51 pm by Dr. Roy Schestowitz

Summary: Report from the court in Munich, where the EPO is based

THE writings of Florian Müller have become more frequent lately. He used to write about the European Patent Office (EPO) after he had campaigned — quite famously in fact — against software patents in Europe.

His latest article, which deals with “standard-essential patents” (SEPs), may be of interest to EPO insiders. Here’s a portion:

While “standard-essential patents” (SEPs) is one of the most common terms in the tech sector, it would sometimes be more accurate and inclusive to refer to “standard-essential intellectual property rights” (SEIPRs). That collective term would include both SEPs and SEUMs: standard-essential utility models. Utility models are a German specialty, basically a second-class type of patent with a shorter term but instant registration (no substantive examination). This blog covered a utility model case years ago when Apple asserted a slide-to-unlock utility model against Samsung in Germany; that case got stayed over validity concerns and never went anywhere. Beyond German utility models, the collective term “SEIPRs” would cover any other IPRs that may exist in other jurisdictions and are like patents, but aren’t called patents.

Yesterday I went to the Munich I Regional Court to watch a standard-essential utility model case, Netlist v. SK Hynix and HP, over German utility model no. DE2020100185017, which was derived last year, in preparation of this lawsuit as counsel for Netlist explained, from a pending European patent application, EP2454735 on a “system and method utilizing distributed byte-wise buffers on a memory module.” From what I’ve been able to find out, this patent was declared essential to a JEDEC memory standard.

An EPO patent examiner rejected the application, though Netlist is still trying to persuade the EPO to grant a patent. But in parallel to that effort, they quickly took out a utility model, with claim language drafted specifically for the purposes of the lawsuit against SK Hynix and HP, and sued in Munich.

Wrong patent grants can have devastating effects not just for large companies but also individual engineers/developers. This is why we so aggressively campaign for patent quality at the EPO. Granting patents isn’t the equivalent of growing fruit because patents are essentially monopolies, not products.

EPO Vice-President Željko Topić in New Article About Corruption in Croatia

Posted in Europe, Patents at 9:30 pm by Dr. Roy Schestowitz

Kuterovac Topić WIPO 2010

Summary: The Croatian newspaper 7Dnevno has an outline of what Željko Topić has done in Croatia and in the EPO in Munich; it argues that this seriously erodes Croatia’s national brand/identity

An article about Željko Topić, a Vice-President at the European Patent Office, recently appeared in the Croatian newspaper 7Dnevno. We mentioned it at the time.

Below we’re including an English translation of the part of the article which pertains to Željko Topić.

CORRUPTION AND PEDOPHILIA AS A CROATIAN BRAND

Published by Tomislav KOVAČ – November 30, 2018

The Republic of Croatia has a recognizable tourist and sport brand, but it should be creating its own strong and positive national brand because it offers a key competitive advantage over other countries. Regarding the emphasis of the importance of creating an image and branding, Croatia as a country has not built up a sufficiently recognizable image to strengthen its position either vis-à-vis other states nor within international relations in its entirety. In addition, Croatia does not have a clear and quality system to build and manage a national brand. And, in our country, there is not enough developed awareness of the importance of branding as a tool for strengthening the competitiveness of the Croatian economy within the world context. The words are those recently addressed to the public by Croatian President Kolinda Grabar – Kitarović on the round table under the title “Identity and the Trademark of the Republic of Croatia”.

FIRST SHE BRANDED ONLY HERSELF

What is a brand? The brand is a set of associations that a product or service has in the consumer consciousness, and the branding process makes any product, service or individual recognizable based on its visual identity, the way of communication, and the entire content that is attached to that brand. In the branding process it is most important to define the visual identity (logo, name and typography) and the entire content that will be linked to that brand. When we talk about content, we mean everything that will be published with respect to that brand, from texts, photos, visuals, or video content. However, the visual identity is like a person’s personal identity card of a brand, and the communication message as well as the tone of the communication, are very important and indispensable parts of the brand. Starting from herself, it could be concluded that KGK (Kolinda Grabar-Kitarović), when she arrived in Pantovcak (e.g. the residence of the the Croatian President), began her personal branding, which was observed by the domestic and international media (https://www.bbc.com/news/world-europe-30765822) but she did not do much, or almost anything, for the branding of the state of which she is the leader. After all, and judging by her behavior so far, and especially by making a home for a stay dog (Kike), she is purely opportunistic with the intention of gaining sympathy from the general public.

As noted above, the result of today’s recognizability of the Republic of Croatia in the world lies in the individual endeavors and activities of individuals in entrepreneurship or science, i.e. collectively in tourism or sport. In the latter, it is necessary to distinguish the activities and expenditures of state funds available to the parasitic promoter from the HGK (Croatian Chamber of Economy) and safari hunter such as Nadan Vidošević (e.g. former chief of the Croatian Chamber of Economy) in the so-called campaign “Let’s Buy Croatian” or the self-effacing and modest Janica Kostelić (e.g. a famous Croatian skier with several Olympic medals). Based upon these facts, the president has been running around in the wrong wardrobe, in that she doesn’t know, or is unfamiliar with all of the features and charms hidden within the patent community in the Republic of Croatia and beyond, which are in a direct or causal relationship with the person (e.g. Former President Ivo Josipović) whom she defeated in the 2014 presidential election.

THE STATE INTELLECTUAL PROPERTY OFFICE AND THE SYNERGY OF CORRUPTION

Unfortunately as a consequence, the subpar results, in the case of the present-day branding of the Republic of Croatia, can be read in the work of a national patent institution which has a rather nebulous name – the State Intellectual Property Office (SIPO), and particularly regarding the people in charge of that institution.

The State Intellectual Property Office of the Republic of Croatia is a state administrative body that carries out activities in the area of ​​the protection of intellectual property rights. The activity of SIPO in the legislative and professional domain includes the area of ​​copyright and related rights. Apart from the legislative work, an important part of the SIPO’s work is information and service activity, as well as cooperation with other institutions for the enforcement of intellectual property rights and support for innovation activity, as well as cooperation with economic and scientific research entities!? So, any person, like our president or a legal entity, who wants to brand and protect something is directed (whether or not they want to be) to SIPO. Administratively, there’s no dispute that this domestic institution of the last few decades has been handled by suspicious people just based upon their character and professional qualities. This deals with Mr. Željko Topić and his successor (and mistress by the way), Ljiljana Kuterovac, are labeled as highly corrupt people with a judicial dictionary. Mr. Topić is a former director, and Mrs. Kuterovac is the current Director of SIPO, or at least she appears to be, although sources from the Government of Croatia explicitly state that she has never been confirmed by them. So, Mrs. Kuterovac is issuing patents (or branding) on the “black market”. Contrary to her, Mr. Topić, although in the majority of the scientific community, was prominently known for his fake master’s degree, has advanced as the vice-president of the EPO in Munich because of his corruptive services. The duo have an unbridgeable synergy in the corruption of the Republic of Croatia at least in the question of the state foundation of branding which KGK advocates. Randomly or not, both as well as most of the SIPO staff were recruited from ZAMP, which is a phantom company with parafiscal charges, whose former leader was the loser of the election with KGK, the gentleman with the white collar, Dr. Ivo Josipović. According to the declared revenues of ZAMP, it seems that crime in Croatia is profitable. In such circumstances, the long-standing failure and obstruction by the SDP’s (e.g. Social Democratic Party) hawk, Željko Jovanović, former, but also present president of the National Monitoring Council for the Implementation of the Anti-Corruption Strategy (NVPPSSK) of the Croatian Parliament, is of particular significance. Namely, regarding the journalist’s inquiries as to whether the Ministry of Science, Education and Sports, as the supervisory body of SIPO for the Republic of Croatia, informed EPO or OLAF regarding criminal charges against Topić, were met with silence from the Ministry of Science for many years. However, former Minister Željko Jovanović and Chairman of the NVPPSSK (http://www.sabor.hr/nacionalno-vijece-za-pracenje-provedbe-strateg-9) used to say that Željko Topić has the protection of former President Ivo Josipović. The EPO, which is based in Munich, is one of the institutions of special importance in the EU, which has offices in The Hague, Berlin and Vienna (e.g. and Brussels) and employs about seven thousand people. The fundamental role of the EPO is to regulate and strengthen cooperation among European member states in the protection of patents. In comparison, the WIPO organization, which has headquarters in Geneva, deals with the protection of brands on the world level.

PATENTED BALKANS GANGSTER

By coming to EPO, Mr. Topić stated in his CV that he worked on establishing a national system of intellectual property, i.e. the Croatian legislation, which is untrue, because it was done by the lawyers of the SIPO, and not by him. He stated that he was the initiator, coordinator and chief contributor to the National Strategy for the Development of the Intellectual Property System in the Republic of Croatia, but this was a document he never respected, which was proved by his ignorance about public lending rights, a new right of importance to writers, which is why they were financially irreparably damaged. He further stated that he was the national coordinator for intellectual property in the EU accession process, but that was Professor Siniša Petrović from the Faculty of Law in Zagreb. He also lied and stated that he was a Croatian patent and trademark agent, but he had no such role in SIPO. The question is whether KGK was informed within the institutions of the Republic of Croatia about the actions of Josipović’s intimates, which resulted in the inaction of the competent institutions in the Republic of Croatia, where Željko Topić has no immunity, and has resulted in 5 suicides of employees within the European Patent Organization (EPO). Željko Topić currently works there (e.g. in EPO) as one of the vice presidents and as a vice president he has immunity, resulting in, among other things, the action before the European Council for the removal of immunity in international organizations such as the EPO, which was extensively written about by Petra Sorge, the award-winning Berlin-based journalist. We also don’t know whether the President of the Republic of Croatia has been informed that Zeljko Topić, Romana Matanovac Vučković and Ljiljana Kuterovac have been charged with jointly committing criminal offenses regarding unlawful changes in the structure of the state administration and the abuse of office and authority. At the same time, the current director of SIPO, which the Government of A. Plenković hasn’t yet confirmed, is currently under the investigation of USKOK (e.g. Office for the Suppression of Corruption and Organized Crime) due to her damages to the state budget. In such circumstances, of particular concern, according to unofficial sources from SIPO, is the possible return of the Balkan criminal from Munich to the position of Director of SIPO in Zagreb.

Croatia’s accession to the EU poses an open question: is there a relationship of corruption between the structures of Croatian state institutions, politics and the domestic public prosecutors’ lobbies? These questions have so far avoided the credible verification from the Ministry of Justice, MUP (e.g. Ministry of Interior Affairs), DORH (e.g. Public Prosecutor of Croatia) and USKOK, the bodies responsible for protection of the legal framework and legal security of the Republic of Croatia which have been provided for within the constitution of the Republic of Croatia. Therefore, it is no surprise that our country is at the top spot for corruption in the world, according to the latest international research, and as one of the major Croatian export-oriented brands we are offering unacceptable and deviant social behavior in the form of intellectual corruption. So, with the proposal of the new rebranding of the Republic of Croatia by the recommendation and on the initiative of KGK, it is ultimately the responsibility of the state, which is not acting responsibly, and because of that we have been brought to where we are now.

Because the rest of this article isn’t relevant to the subject of Željko Topić, whom we focus on, we will discontinue the translation here.

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