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10.12.19

The EPO’s Universal Patent Injustice Concealed With Polyglottic Tricks

Posted in Europe, Law, Patents at 10:08 am by Dr. Roy Schestowitz

French management, German language, English-speaking applicants?!

From left to right: Benoît Battistelli, President of the EPO; Michel Barnier, European Commissioner for Internal Market and Services; Antonio Campinos, President of OHIM

Summary: The EPO is fooling nobody; it’s desperate to hide the very simple fact that Battistelli did something illegal and over the past few years every decision issued by the EPO was legally invalid (as per the EPC)

THERE are officially three languages at the European Patent Office (EPO), French, English and German. That in its own right is a controversial subject because Spanish is spoken by a lot more people and Spain is in Europe. Most member states can deal with English, some (like Belgium) feel OK with French and for 2 states as well as one to the west and several to the east German might be of some use (without fluency). But it’s clear that English is the most important language. The EPO’s Web site, for example, speaks English by default. As only the minority of European Patents are actually European (assigned to people of European nationality) that sort of makes sense. So how come the EPO selectively releases particularly important decisions in languages other than English? And only the spin (summary) is presented in English? It’s pretty clear that the EPO is trying to bury something, as it did when that one particular case (G2/19) was going on. The EPO went out of its way to produce media noise and distract from criticism, as we noted at the time. G2/19 isn’t just some ordinary case; if ruled in the particular way it could void many hundreds of prior decisions. It also concerns the crimes of Battistelli, gleefully perpetuated by his ‘butler’, António Campinos. This same court will soon decide on matters such as software patents in Europe. Shouldn’t we know whether the court’s decisions are legally valid? Considering the fact that the judges too (something through AMBA) complain about loss of autonomy? Shouldn’t European people (or businesses) be permitted to see what goes on behind this veil of secrecy? How rogue is the EPO willing to become? This dam will burst one day and it won’t be pretty.

“Shouldn’t European people (or businesses) be permitted to see what goes on behind this veil of secrecy?”Criminals tend to go out of their way to hide their crimes. The EPO’s managers are no exception. Why would they make it simpler for the public to observe their abuse? Instead of twisting, spinning, misleading etc. while making that come across as compliance with transparency policy/regulations?

The EPO’s attempt to suppress publication of this case has been chronicled here for months. Media of the patent microcosm mostly played along, as we noted around the time of this case. Riana Harvey wrote on Thursday: “Rose Hughes reports on case G2/19, which the Enlarged Board of Appeal released its full reasoning for. The appeal related to a case in which a third party had submitted observations pursuant to Article 115 EPC that a patent application lacked clarity.”

Go back to the original and notice the sole comment on that original: “Another possibility would be to learn German.. oh wait, what did they say about Britain? “Learning a foreign language is considered as flamboyant as wearing a crown in a bus”… well…”

“…it’s very clear what the EPO is doing.”How many Brits can speak German? How many people around the world in general have a grasp of the language? Maybe one percept of the world’s population can speak that at mother’s tongue level! Combine the population of Germany and Austria, as a fraction of about 8 billion people.

As we noted not so long ago, it’s very clear what the EPO is doing. It’s very clear why. To limit audience/people who are able to read the decision it was published only in German and as J A Kemp has just put it, weeks down the line there’s still no English translation, month after the decision itself (“currently only available in German”).

To quote “Decision From The Enlarged Board Of Appeal In G2/19″ (published before the weekend):

The EPO has issued a press release (see here), which summarises the full decision (currently only available in German here) from the Enlarged Board of Appeal in G2/19.

[...]

The second answer relates to the relocation of the Boards of Appeal to Haar from Munich. Interestingly, the Enlarged Board indicated that it was only required to rule on this matter insofar as it was related to the possible infringement of the procedural right of a party. The Enlarged Board concluded that holding oral proceedings in Haar does not infringe a party’s right to be heard and that mere perceived inconvenience does not injure the right to be heard.

Although they considered it unnecessary, the Enlarged Board did nevertheless also consider the effect of Article 6(2) EPC, which states that “The European Patent Office shall be located in Munich. It shall have a branch at the Hague.” It had been argued by the appellant that Haar is not in Munich and thus locating the Boards of Appeal in Haar contravenes Article 6(2) EPC. The Enlarged Board did not accept that argument, commenting that as the main EPO body responsible for granting patents is in Munich, the requirements of Article 6(2) EPC are met. The Enlarged Board also observed that separating the Boards of Appeal geographically from the EPO administrative departments in Munich highlights the independence of the Boards of Appeal and, in view of this, it is not necessary to limit the location of the Boards of Appeal to the city of Munich itself. The Enlarged Board also noted that the Boards of Appeal in Haar are “only located slightly outside the boundaries of the city of Munich”. It therefore seems unlikely that any future challenges to the location of the Boards of Appeal in Haar will succeed.

That last sentence is key: “It therefore seems unlikely that any future challenges to the location of the Boards of Appeal in Haar will succeed.”

This is the message that the EPO wanted to get out there. “We did something illegal to capture the courts; and don’t dare challenge the legality of it anymore!”

10.10.19

Azure Apparently Losing Money and Microsoft Lies to Shareholders, in Effect Breaking the Law

Posted in Deception, Finance, Law, Microsoft at 1:35 pm by Dr. Roy Schestowitz

Reprinted with permission from Mitchel Lewis

Azure

Summary: Decades down the line Microsoft continues to lie about its financial performance, as it did before, according to a former insider

New lines of business are seldom profitable out of the gate. Some take years to break even and cloud solutions are not exceptions to this. Although Amazon was able to extend its existing infrastructure to its customers with AWS which kept their break-even to a minimum, others such as Microsoft were not equipped to do the same with Azure and had to break new ground to meet would-be demand. As a result, Microsoft incurred substantial infrastructure and development burdens which dramatically extended Azure’s break-even to 5+ years.

However, Microsoft wasn’t only tasked with having to build out or lease new data center space to meet this demand. They also had to consider future demand and capacity restraints since it takes approximately 3 years to develop an enterprise-class data center beginning to end that meets today’s stringent compliance requirements. Although leasing space allows them to get up and running faster than building new, 9 months on average, it creates another man in the middle which eats away at precious margin and does not accrue equity over time, unlike the property that they own.

If Microsoft undershot on these projections and didn’t build enough data centers, then they’d have to lease out additional space and extend their break-even. But if they overshot, then they stood to lose margin building unnecessary data centers which would take years to offset while also extending their break-even just the same. Needless to say, even a small oversight on this tight rip could prove to be anywhere from profit prohibitive to completely self-defeating.

To do this successfully, Microsoft had to hit a moving target while being in motion themsef. Not only did they have to build out new data centers, they also had to build them in accommodation with hardware that didn’t exist yet in an effort to maximize efficiency and profit. Since server technology is constantly evolving to do more with less of a footprint as time goes on, Microsoft would be able to leverage newer iterations of their old servers to a great benefit. They naturally would be denser with memory and processor cores while reducing their footprint as time goes on. But that understanding alone wasn’t enough and Microsoft needed to know how much space they would need to achieve these efficiency gains.

In order to anticipate future core density and project the efficiency gains associated with them, Microsoft and presumably others banked on Moore’s Law in 2012 which predicted transistor and core density to double every two years. As such, Microsoft projected how core-dense racks of servers could be 2–4–6–8 years in advance just as they have done successfully in the past. While a single 1×20 rack of servers could provide Microsoft with 10,400 cores to sell on Azure in 2012, Moore’s Law projected that this same amount of rack space would be able to host 20,800 cores by 2014, 41,600 cores by 2016, 83,200 cores by 2018, and 166,400 cores in 2020 (roughly). But this did not happen.

Processor improvements were already stagnating by 2012 which continued midway through the decade and the predictions made by Moore’s Law were falling short with no end to this on the horizon. Many were beginning to realize that it wasn’t a law at all, but an observation instead. While racks of servers became more dense over time, they indeed achieved greater efficiency with regard to their energy burden and their reduced footprint but this was nowhere near the rate predicted by Moore’s Law. Consequently, where Microsoft was anticipating being able to host 83,200 sellable cores in a 1×20 rack in 2018, they were only able to host roughly 28,000 cores, less than 1/3 of their projections.

As a result of undershooting their projected capacity by such a large margin, Microsoft was way off on their capacity projections with Azure and only built roughly 1/3 of the data center capacity that was actually necessary. Consequently, they had to over-provision their existing data centers to the point of tripping the breakers and rapidly fill the gaps with an excessive amount of leased space to meet the demand that they projected. All of which effectively doubled the amount of leased space in their portfolio from 25% to 50%, extended their break-even to nearly a decade, and killed their hopes of profitability any time soon.

While an honest mistake and not being able to foresee the future is forgivable, knowingly omitting a mistake of this magnitude is criminal when considering how much Microsoft is hedging its future on Azure. On top of supplying misleading revenue metrics in their quarterly 10K filings to fortify a position of strength and being second only to AWS, Microsoft seems to be wary about reporting Azure’s individual performance metrics or news of these failings that would enable investors to conclude this for themselves. Instead, Microsoft appears to be averaging out Azure’s losses with their legacy mainstays that are profitable by reporting its revenue within their Intelligent Cloud container instead of itemizing it.

Their incentive for hiding such a failure is obvious since much of their future is hedged on Azure. If it was proven to be woefully inefficient and unprofitable, then clients would expect price hikes and an influx of hidden costs on the horizon along with the potential burden of having to migrate away prematurely. Hosting services on an inefficient platform also puts companies at a tactical disadvantage in comparison to those hosting their services on more efficient platforms. That said, I can see why Microsoft would prefer to keep this quiet and why Amazon isn’t in tears when their competition opts to host their workloads on Azure instead of AWS.

Names/email addresses have been redacted

Between these capacity failings and its embarrassing ARPA relative to AWS, it’s difficult to see how Azure could be profitable at the moment. Microsoft seems to be attempting to bury this by omitting statistics while relying on financial containers that serve no purpose other than being a means of deception. Whether this is lying by omission and misleading investors on matters regarding major mistakes that threaten the long-term viability of their investment or simply creative accounting practices at work is ultimately up to the SEC. As an engineer, I can only report my findings to them and offer speculation to the three people reading my blog; done and done.

10.09.19

EPO a Hostage of Law (Litigation) Firms

Posted in Europe, Law, Patents at 5:01 am by Dr. Roy Schestowitz

Like the media that covers topics such as patents

Fleeing
No wonder experienced patent examiners (scientists) are fleeing

Summary: Today’s EPO has nothing at all to do with science and technology; it’s designed to accomplish just one thing, which is to grant as many patents as possible, spurring activity in the litigation ‘industry’

European Patent Office (EPO) President António Campinos has managed to fool a lot of people, at least in the media. Those who berated Battistelli do not even mention Campinos, who is doing no better than Battistelli (same policies and worse).

“What have they ever done to represent their states? They represent the NPOs, not the states.”What about the Administrative Council? It has done nothing to revert or undo illegal policies. Nothing! It’s composed mostly of just heads of national patent offices (NPOs), i.e. it’s merely a virtual structure that represents patent maximalists. The EPO has just mentioned “representatives of the member states on the Administrative Council” because contact details have changed. What have they ever done to represent their states? They represent the NPOs, not the states.

“These aren’t the sorts of people the EPO is supposed to help. It’s like law firms staged a coup and won.”The EPO is itself like a giant NPO (multinational with immunity) whose main objective is serving trolls and law firms. The EPO is working with LESI, a front group for patent trolls and patent extortion operations. Yesterday it mentioned André Clerix, Sandrine Guillermin and Alison Orr. Check their bios. These aren’t the sorts of people the EPO is supposed to help. It’s like law firms staged a coup and won.

Two weeks later the EUIPO/EPO are still not tired of pushing these paid-for lies that are laughable. Yesterday the EPO tweeted: “Intellectual property rights-intensive industries generate 45% of total economic activity (GDP) in the EU, amounting to some €6.6 trillion a year.”

“That says a lot about the state of ‘journalism’ these days…”What ridiculous numbers! And companies that have toilet facilities generate close to €20 trillion a year. So what? This sort of propaganda line was parroted in some EPO-connected media, including WIPR. That says a lot about the state of ‘journalism’ these days… (side story: when WIPR wrote a story about the EPO threatening to sue me the writer got reprimanded and the story was quickly pulled down)

Mitscherlich PartmbB’s Sebastian Roth has also just commented on software patents in Europe disguised as something else; “Computer-implemented inventions have recently moved into focus at the European Patent Office (EPO),” he wrote through Lexology. To quote:

Technical Character of Data Structures

[...]

The recent EPO Board of Appeal decision T 2049/12 is concerned with the technical character of data structures, and thus their patentability. The Board establishes in the decision that a data structure has itself a technical character, if it maps to technical features in a technical system: (https://www.epo.org/law-practice/case-law-appeals/recent/t122049eu1.html).

Computer-implemented inventions have recently moved into focus at the European Patent Office (EPO). For instance, the 2018 edition of the Guidelines of Examination has been
substantially revised, with computer-implemented inventions a major focus. One important revision concerned data retrieval, data formats and data structures (Part G, Chapter II, 3.6.3 of the guidelines).

To patent a data structure – like for software inventions – the claimed subject matter has to clear two crucial hurdles: patent eligibility (Art. 52(1) EPC) and inventive step (Art. 56 EPC). To overcome the eligibility hurdle, the claimed subject matter needs to have a technical character, i.e., it has to include at least one technical feature. To overcome the inventive step hurdle, the claimed subject matter has to include at least one non-obvious technical feature (only technical features are taken into account for assessing inventive step, e.g., T 0641/00).

The EPC does not allow software patents, but the EPO Board of Appeal does not enjoy independence. It admits so. There’s an upcoming high-profile case (simulation in software) in the foremost Board of Appeal and Campinos is already intervening in favour of software patents, looking to tilt the outcome to retroactively justify loads of illegal European Patents. Even the EPO’s Boards of Appeal themselves have repeatedly stated that they lack independence. Campinos reaffirms this observation of theirs, albeit ‘politely’ like a ‘shy’ man.

The US Supreme Court (SCOTUS) Once Again Staying Away From 35 U.S.C. § 101 Cases

Posted in America, Courtroom, Law, Patents at 3:57 am by Dr. Roy Schestowitz

In effect maintaining a de facto ban on software patents (courts quite consistently reject these)

Just ignoring the calls
Justices are just ignoring the calls for reconsideration (since Alice in 2014)

Summary: Nothing irritates patent maximalists (notably patent litigation firms but not exclusively) more than judges who repeatedly stress that patents on mental concepts and processes aren’t or weren’t patent-eligible in the first place

THE PATENT maximalists have gone ‘bloody bonkers’. They’re dangerously deranged as they make racial insults directed at Federal Circuit judges and make serious accusations against Patent Trial and Appeal Board (PTAB) judges whose decisions on inter partes reviews (IPRs) they dislike, usually the denial of some bogus software patents.

“Do they seriously think that insulting judges will get these judges on their side?”Watchtroll has come up with a new court- and judge-bashing approach. The latest headline of Burman York (Bud) Mathis III: “It Is Time for Federal Circuit Judges of Good Conscience to Call Out Their Colleagues”

These people are crazy, but they’re calling themselves “Patent Masters™” (this is what Gene Quinn calls his ilk, as recently as yesterday, with the trademark symbol included).

Do they seriously think that insulting judges will get these judges on their side?

SCOTUS remains decided on 35 U.S.C. § 101 and isn’t touching any further cases to that effect; “I had expected those to be filed by this week,” Dennis Crouch wrote yesterday, “they are not yet filed.”

“Carry on you, “Patent Masters™”, attack the judges! Show your true face. Show us what you are.”No cases dealing with § 101 are being admitted, so patent zealots are melting…

At the start of the year (January) the EFF made it sound like software patents were making a "comeback" — a claim that we rejected, seeing the nature of things (having covered it for nearly a decade and a half). Now, as winter is approaching (early October), it seems hard to believe anything to that effect will have happened by year’s end. All we’ll see is so-called “Patent Masters™” attacking and insulting judges.

Carry on you, “Patent Masters™”, attack the judges!

Show your true face. Show us what you are. Look at you!

10.08.19

The Injustice at the EPO Deepens, From Examination to Oppositions/Appeals and From BoA to Courts (UPC Prospects)

Posted in Europe, Law, Patents at 6:11 am by Dr. Roy Schestowitz

The patent system in Europe has been reduced to a litigation pipeline that breaks the law, besieged by law firms that are science-hostile and self-serving

Large gavel
Will private companies get the gavel, too (‘contractor’ judges)?

Summary: The concept of justice at the EPO has become so ridiculous that it’s rather incredible some people view Unified Patent Court (UPC) prospects as reasonable (putting courts at the hands of private companies such as Serco)

IN OUR latest Daily Links we put some links regarding the U.S. Patent and Trademark Office (USPTO). Not much has happened there except the usual FRAND-pushing, 35 U.S.C. § 101-bashing Iancu and troll-pushing Gilstrap down in Texas. Seeing that it’s the same old tune (more or less), we’d rather focus on EPO affairs, not just because it’s “closer to home” (to me personally) but because of the urgency associated with software patents in Europe, promoted by both António Campinos and his ‘poppa’ Battistelli. They’re also cozying up and liaising with front groups of patent trolls; it’s perfectly clear what their priorities are (whose financial agenda).

“…this is the sort of causality analysis we’ve come to expect from nontechnical EPO leadership that bribes scholars and media for shameless, unaccountable propaganda operations.”The EPO seemingly ceased caring about its reputation or its scientific credibility because there’s nothing left to guard. Together with EUIPO it has been issuing this infamous pile of lies for a number of years (since Battistelli). They have repeatedly cited, on a daily basis for two weeks now, this pile of lies despite many rebuttals and debunkings showing up. Yesterday they wrote: “Our latest study assesses how industries that make intensive use of intellectual property rights contribute to EU economies.”

So do industries that have toilets. That does not in any way mean that the contributions can be attributed to this one thing. But this is the sort of causality analysis we’ve come to expect from nontechnical EPO leadership that bribes scholars and media for shameless, unaccountable propaganda operations. Notice their use of the term “intellectual property rights” — a term that contains at least two lies in it. There’s no such thing as “intellectual property rights” (it’s a lawyers’ propaganda term), so it’s clear whose side the EPO is on. They’re also collaborating with a front group of patent trolls, as advertised as recently as a day ago, together with the term “intellectual property” (IP). This is what they wrote: “Are you interested in informal one-to-one meetings with IP and business experts at our event for #startups and technology business decisionmakers in Dublin?”

“Did you know that the EPO offers free or cheap access to tools and databases for retrieving and analysing its patent data?”
      –EPO
It’s a LES/I event. They’re actively collaborating if not cooperating with thugs or corporate bullies — exactly what it takes to embolden this system’s critics. LESI is fronting for so-called ‘businesses’ whose sole/principal operations are going after real companies with demands of ‘protection money’ (so-called ‘royalties’).

The EPO then said: “Did you know that the EPO offers free or cheap access to tools and databases for retrieving and analysing its patent data?”

But many of these patents are not valid as courts would throw them out. Focus on improving patent quality instead of scuttling the messenger.

The EPO’s oppositions division or EPO Opposition Division as it’s formally called is buried under a growing load of petitions. Haseltine Lake Kempner LLP published some paper with numbers and graphs; the number of oppositions nearly doubled in a very short amount of time, restricting the capacity and thus quality of reassessment like the quotas do examination (everything is being rushed at all levels, limiting the breadth of prior art search, assessment of triviality and so on). As StreetInsider as just shown in this new press release, here we have a European Patent in the domain of pharmaceuticals. This patent withstands scrutiny for a change (albeit not in a court) — not quite the typical outcome these days because challenged ones often turn out to be fake. To quote:

Tonix Pharmaceuticals Holding Corp. (Nasdaq: TNXP) (Tonix or the Company), a clinical-stage biopharmaceutical company, today announced that the European Patent Office’s (EPO) Opposition Division has upheld the Company’s European Patent 2501234B1 with claims covering compositions containing the active ingredient in TNX-102 SL, cyclobenzaprine, for use in treating the development, initiation, consolidation, and perpetuation of posttraumatic stress disorder (PTSD) symptoms following a traumatic event. This patent was originally granted by the EPO in September 2017 and an opposition was filed against the patent in June 2018.

The U.S. counterpart to the European patent is U.S. Patent No. 9,918,948, the validity of which is not being challenged. In addition to these patents, Tonix owns patents covering TNX-102 SL and its use to treat PTSD in the U.S., Europe, and other countries. Together, these patents protect the use of TNX-102 SL in Europe and elsewhere.

They basically say something along the lines of, USPTO is OK with this patent, so EPO needs to accept it as well. The patent was granted under Battistelli and the opposition was filed one month before he left. We don’t know the details of this opposition, but it doesn’t take a genius to see that the Opposition Division is being buried under a growing load of oppositions and rising quotas, imperiling individuals’ ability to assess patents as thoroughly as courts would.

Published at the start of the week through/in Mondaq was this Haseltine Lake Kempner LLP piece on EPO oppositions. There should be hundreds of thousands such oppositions, but the EPO cannot handle these and years ago took steps to suppress them (we covered the methods at the time); it’s a patent-granting machine and any oppositions ‘interferes’ with that machine. Here’s what the article said, citing some words from Isobel Finnie (partly responsible for the above-mentioned study):

The seminar began with an EPO case law update which was given by Isobel Finnie and Robert Margue and covered topics including the admission of Auxiliary Requests into the opposition appeal proceedings, insufficiency and the possible “unusual parameter” practice coming to Oppositions and Opposition Appeals.

[...]

After a short break in the sun, and time to grab a coffee and pastry, we began the second half of the seminar with a talk on “Strategic opportunities and pitfalls in the interplay of Oppositions with UK litigation” from Richard Kempner and Brian Whitehead, two of our patent litigation experts. They provided an overview of stays of proceedings, what happens to remedies/costs if patent is subsequently revoked/amended by the EPO and inconsistent evidence in EPO and national courts.

The final session of the day was a panel discussion on the new Rules of Procedure of the Board of Appeal hosted by Joe Lenthall and with Christopher Rennie-Smith and David Brown. As someone who helped to draft the current Rules of Procedure Christopher has a great insight into this topic and was able to provide thoughtful and interesting information on the subject.

So they then moved on to the Boards of Appeal — the EPO’s courts that cannot quite do their job because they’re oppressed and intimidated. Some time very soon they’re supposed to deal with the question of software patenting (e.g. simulation in software), but they’re not equipped to make up their minds based on the EPC, only the EPO’s zeal (O as in Office, if not Organisation as well). We’re meanwhile becoming ever more accustomed to seeing the EPO framing software patents as the buzzword du jour. Getting illegal software patents from the EPO by masking them as "hey hi" is a popular trick. The EPO keeps linking to tips to that effect (in its tweets). Just call your algorithm “hey hi” and the job will be done by examiners (whose new guidelines strongly insist on allowing a patent on such ‘innovative’ ‘inventive’ ‘invention’). FRKelly’s Paul Keane has in fact just published an article about it and it was promoted in Lexology. Check this:

When building a portfolio of AI patent assets, one should take a strategic approach with the vision that current legislation in the various jurisdictions may change. Further patent case law may evolve to catch up with the AI revolution, where technological advances are often years ahead of legislative change. A long term patent strategy in the AI field must take account of how the IP5 patent offices (USA, EPO, China, Korea, Japan) are currently examining AI patent applications and, more importantly, consider how they may examine AI patent applications in the future. Whether a patent strategy is focused on building a portfolio of AI patent assets for future cross-licensing deals or a bunker for defensive assets; the same approach applies. It is imperative that AI patent applications are carefully drafted to allow different generations of claimed AI inventions to be harvested from a single application when the time is right. The following discussion considers how such a strategy could be implemented at the EPO.

Notice how many times Keane says “hey hi” (8 times in the above paragraph alone); they typically refer to computer, algorithm, or just automation. Not even machine learning algorithms, which are themselves statistics/maths. How about this new EPO tweet about so-called ‘machine translations’ (fancy name for something else) that have no legal legitimacy and no validity whatsoever?

“In this age of social media and instant gratification and an attention span of not more than 10 seconds, is our precious representative democracy (separation of powers, Rule of Law) more or less, sooner or later, doomed to be etched away to nothing?”
      –Anonymous
“EPO lawyer Britta Kley talks about machine translations in grant and opposition proceedings,” the EPO wrote. Those have no legitimacy in a court, so opposition proceedings too ought not rely on the gobbledygook that comes out of them. This is hype and buzzwords at play, in the name of “efficiency”. People tend to believe that one language neatly translates into another without nuance and connotation issues because people who know multiple languages usually know closely related ones (like Italian and German, not Chinese and Arabic). My wife speaks 5 languages and can tell the paradigm shift going from one to another. Brits and Americans (as in US, not Canada) can barely speak more than one language. Automated translations are lousy, misleading and sometimes offensive (not intended, due to errors or loss in translation). How can the EPO seriously pretend that examination decisions and oppositions are to be decided based upon some crap spewed out from Google algorithms? What does that say about application of law? Do some lousy algorithms that chew text now replace judges?

It is quickly becoming rather evident that the EPO is rogue and that it’s granting illegal patents using semantic tricks, much to the chagrin of law firms. Thankfully, as far as we’re aware, the FCC in Germany (Bundesverfassungsgericht) takes note. It can see more or less what’s going on; it would be an epic embarrassment to Germany if the EPO 'franchise' was allowed to extend to the court system. As mentioned by SUEPO and Team UPC, Thorsten Bausch (Hoffmann Eitle) has resumed his complaints about lack of independence in the Boards of Appeal — an issue he has been commenting on for years. He now focuses on what that means to the FCC:

Most importantly, the Bundesverfassungsgericht has so far mostly managed to stay above the political trench warfares and is remarkably little politicized, even though many of its decisions have political implications and repercussions. This may be helped by the peculiar mode on how its judges are appointed, which (in the final stage) requires a 2/3 majority in the Bundestag or Bundesrat (each of which elects 4 judges per Senate; there are two Senates each composed of eight judges). Compare that with the way Supreme Court judges are appointed in the USA with very small partisan majorities, and you see the obvious advantages of a system driven by the desire and need to compromise and balance.

Another thing of which no one would dare accuse the Bundesverfassungsgericht is undue haste with its decisions. The most beloved topic on this blog, i.e. the constitutional complaint against the UPC, has meanwhile aged well over two years and is very unlikely to be decided this year. I would expect that the Bundesverfassungsgericht will first decide on the compatibility of the EAPP (Expanded Asset Purchase Programme) with the Basic Law, as it held oral proceedings about this case in July. Which of the other “big” cases pending before the competent department of Prof. Huber will be next is a matter of conjecture. The Court has a choice between the constitutional complaints against insufficient legal protection against decisions of the EPO Boards of Appeal (four cases pending since 2010 (!), 2013, 2015 and 2016), constitutional complaints against CETA (the free trade agreement between the EU and Canada, pending since 2016), a referral decision by the Administrative Court of Bremen whether the Bremen state law prohibiting the transhipment of nuclear fuel in Bremen ports, is incompatible with Article 71, Article 73 (1) No. 14 of the Basic Law and the principle of federal loyalty (pending since 2015), municipal constitutional complaints whether certain obligations of cities and municipalities enshrined in a federal law are compatible with the right to local self-government guaranteed by the Basic Law (pending since 2012), and, last but not least, Dr. Stjerna’s constitutional complaint against the UPCA which was filed in 2017 and thus is a comparatively recent case, though (the only) one where the Bundesverfassungsgericht asked the President not to sign a ratification law passed by Parliament.

[...]

I am of course aware of Art 13 EPC stipulating that employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, and I have written about the Boards of Appeal and the problem of their independence before. However, even if legal protection by the Administrative Tribunal of the ILO were perfect (which it is not for several practical and legal reasons – in particular the AT-ILO is not an independent instance of fact) and if the Boards of Appeal were indeed completely independent of the Office President (which they are not), there would still be a lacuna, because the AT-ILO only hears cases in labor law, whereas the Boards of Appeal substantially only hear patent cases, with the exception of the Enlarged Board of Appeal, which also has the competence under Art 23 EPC to propose the removal of an Appeal board member from office if there are serious grounds for such removal, but so far the Enlarged Board never made such a proposal. This leaves most areas of law substantially court-less. It would then be for the Administrative Council to exercise its disciplinary authority over senior EPO employees, which it has under Art 11(4) EPC.

However, there are at least two problems with this oversight function of the Administrative Council (AC). The first is that the AC is ill-equipped to actually perform the function of an independent supervisory body. It consists of two envoyees of each of the EPO member states, who are mostly heads of their national patent office and/or ministry officials. To my knowledge, they have very few expert staff of their own and are as such not well suited to independently check e.g. the EPO’s financial accounts independently or form an informed opinion of whether e.g. the move of a part of the office to Haar makes sense from a financial or organisational point of view, or whether HR matters are managed well within the EPO. On top of that, they are also not really independent of the management of the EPO. Quite on the contrary, they tend to elect the EPO President and Vice Presidents from among themselves. While this may be acceptable in a constitutional system that includes independent courts as a control instance, it is very problematic where there is no such independent third power and where members of the AC who want to improve their own financial situation via an attractive position in the EPO management may be lured into not being too critical with the Office.

Let me give you two (of course, completely hypothetical) examples of the difference between a national patent office and the Eponia world. Assume the President of a national patent office received a bill or a fine due to some personal wrongdoing, such as, e.g. misbehaving in the public under the influence of alcohol or other drugs. Assume, furthermore, that this President would then submit the bill to the accounting department of his/her patent office, requesting them to pay it. What would happen? I assume that a President of a national patent office would not get very far with such a request, and if they were, they might encounter pretty serious problems later, if and when the payment is uncovered. In Germany, such a President might even have to face an action for embezzlement and abuse of trust (Sec. 266 DE Penal Code).

To quote one comment:

When one reflects on the immunity vs impunity point urged on us by one commentator here, the current antics of Johnson in London and Trump in Washington DC, the outrageous effrontery of the immediate past-President of the EPO, the spineless behaviour of the AC, and the public opinion pollings that suggest that both Trump and Johnson would get re-elected if they were to stand today for re-election in a General Election, one wonders about the capabilities of ordinary voters in any representative democracy to comprehend even the most simple aspects of what you have written.

In this age of social media and instant gratification and an attention span of not more than 10 seconds, is our precious representative democracy (separation of powers, Rule of Law) more or less, sooner or later, doomed to be etched away to nothing?

“EPO is not responsible in front of a court for its acts,” the subsequent comment said, “this is not compliant with the rule of law principle. This is one of the pending constitutional complaint in Germany, where EPO examiners preferred going to watch the football world cup instead of doing their job.”

“Carl Josefsson explains what is being done to ensure the boards’ independence and says new rules of procedure can help reduce the “untenable” backlog…”
      –Managing IP
They’re actually entitled to holidays. It’s part of their set of rights (except the EPO denies those rights). Surely the higher courts can see that and they can also see that the EPO lacks independence, as this recent case served to show. It’s brought up in the comments and there’s this new interview (this time behind paywall) with Carl Josefsson, whose initial words focused on massive backlogs of cases (that was outside the paywall). Even Carl Josefsson himself does not have independence, so the whole lot is rogue; it’s not the judges’ fault that EPO corruption engulfed the courts, coercing judges who want to keep their job (and not be dragged out of their office at the middle of the day only to face false accusations and years of slander).

“Carl Josefsson explains what is being done to ensure the boards’ independence and says new rules of procedure can help reduce the “untenable” backlog,” says the summary, alluding to over 10,000 impending cases (yes, that number is not a typo!) because no court can deal with such a backlog, especially not when threatened constantly to harm impartiality and intentionally understaffed to make it less potent. From the limited publication:

Carl Josefsson is clear on one thing when we ask about the EPO Boards of Appeal’s new procedural rules: in order to work, they will rely on better case management and a potential increased workload for first instance divisions.

Remember that when this publisher (Managing IP) previously planned to speak to AMBA, i.e. the Boards of Appeal’s representation, it was denied permission from the EPO’s management. So much for separation of powers. What kind of ‘justice’ is it when the subject (or target) of these cases intimidates/silences the judges?

10.07.19

EFF Ought to Focus on Software Patents — Maybe EPO Scandals Too — Instead of Awarding (Publicity Stunts) and Rewarding Privacy Abusers

Posted in EFF, Law, Microsoft, Patents at 1:52 am by Dr. Roy Schestowitz

EFF on patents

Summary: Taking money from and giving awards to privacy-abusing corporations won’t help the EFF, at least not in the long term

THIS quick post concerns a matter that we mentioned last night, albeit only in passing. The EFF is changing and in our view not for the better. It does not write about patents as much as it used to. That’s 21 articles/posts so far this year (a lot less in recent months because Nazer left) compared to about 50 last year. What’s more, they’re losing sight of key issues and they still ignore EPO abuses (while having seemingly endless resources to tackle copyright policy in Europe). What is going on? Months ago they took Google money and people have used that to accuse the EFF of fronting for Google, in essence a surveillance company. Weeks ago the EFF (over)saw an award given to a person complicit in mass surveillance of Microsoft. Again, what the heck is going on? And check who the sponsors were: “Special thanks to our sponsors: Airbnb; Dropbox; Matthew Prince; Medium; O’Reilly Media; Ridder, Costa & Johnstone LLP; and Ron Reed for supporting EFF and the 2019 Pioneer Award Ceremony. If you or your company are interested in learning more about sponsorship, please contact nicole@eff.org.”

“Weeks ago the EFF (over)saw an award given to a person complicit in mass surveillance of Microsoft.”¿Qué?

Can’t the EFF sponsor (fund) its own ceremonies? Please don’t become another Linux Foundation.

What do Airbnb and Dropbox do there? They’re listed as forefront sponsors (the list is not alphabetical). The EFF surely knows about the surveillance (NSA PRISM), which was mentioned many times by the EFF itself in the wake of Snowden leaks. Dropbox is “coming soon” (in 2013) to PRISM and Airbnb is a privacy dump.

“Condy Rice on the Board and NSA PRISM don’t seem to prevent the EFF from taking money from Dropbox to glorify privacy abusers from Microsoft.”In our view, what EFF does here is what Lessig likes to call “leaning to the green” (money). Condy Rice on the Board and NSA PRISM don’t seem to prevent the EFF from taking money from Dropbox to glorify privacy abusers from Microsoft. Will the EFF take the risk of condemning Dropbox for privacy abuses in the future? Maybe. People might always wonder.

What would Barlow (founder) have said? He died last year and it would be a shame if the EFF’s credibility died with him.

10.02.19

EPO Releases Decision Regarding G 2/19 (the ‘Haar Question’) in a Language Only About 10% of Member States Speak

Posted in Europe, Law, Patents at 2:37 pm by Dr. Roy Schestowitz

What a classy move!

Document dump
Reference: Document dump

Summary: The European Patent Office (EPO) discloses its controversial judgment in a relatively minimal form and in a language that suits people in Germany and Austria; they don’t want people to notice that all EPO judgments for a number of years were likely illegal (in defiance of the European Patent Convention (“EPC”))

THE PREVIOUS POST ended with a mention of the “Guidelines for Search and Examination at the EPO,” by which the EPO hopes to grant software patents through buzzwords. But there’s an even worse aspect; the judges of the EPO lack independence and the EPO isn’t doing anything to correct this.

“…the judges of the EPO lack independence and the EPO isn’t doing anything to correct this.”Promoted via Lexology was this new article by Potter Clarkson LLP’s Tony Proctor. He wrote about the EPO’s Boards of Appeal, which have no independence whatsoever (this whole system is rogue now), and this is what he had to say about “Changes to the Rules of Procedure of the EPO Boards of Appeal”: (notice nothing at all is being done regarding much-needed autonomy)

The rules governing the appeals process at the European Patent Office are being changed, with the aim being to speed up the appeals process and the expected effect being to reduce flexibility for appellants. Here we discuss the expected knock-on effects on first instance proceedings, particularly oppositions, as well as on existing and new appeals.

There’s still high-level EPO corruption that ensures judges are indebted to (and afraid of) the Office — the very authority that they were created to scrutinise rather than guard. Just published in German was this decision with “full reasoning in G2/19″. Why only in German? Big Phrama blogger Rose Hughes (Patent Attorney at AstraZeneca) wrote: “This Kat is therefore currently forced to rely on the EPO summary.”

The EPO is, as usual, making it harder for people to see its coverup of sheer corruption, subversion of justice and so on. When the case went on the EPO posted a whole bunch of distractions. The EPO was gaming the media and nobody but us covered it at the end. “The appeal was considered inadmissible,” as noted below:

The EPO has announced the issue of the Enlarged Board of Appeal’s full reasoning in referral G 2/19. As previously noted on IPKat, the Enlarged Board of Appeal (EBA) had previously released their decision in G 2/19 but had not published the decision (EPO press release).

The referral originated from the Board of Appeal decision T 831/17. The appeal related to a case in which a third party had submitted observations pursuant to Article 115 EPC that a patent application (EP2378735) lacked clarity. Clarity is not a ground for opposition. The third party was therefore not able to oppose the subsequently granted patent on the same ground.

In order to pursue their clarity objection to the now granted patent, the third party filed an appeal against the decision to grant. The appeal was considered inadmissible. The Board of Appeal also referred the question to the EBA of whether the right to oral proceedings in appeal proceedings is limited if the appeal is evidently inadmissible. The referral also asked the question of whether the relocation of the Boards of Appeal to outside Munich contravened a party’s right to be heard.

Prior to the decision, the Haar/Munich aspect of the referral was covered by IPKat here, and the oral proceedings issue was covered in more detail here. The referral attracted a number of amicus curiae, including submissions from EPI and CIPA.

[...]

The G 2/19 decision is currently only available in German. This Kat is therefore currently forced to rely on the EPO summary. Stay tuned to IPKat for further commentary once an English translation becomes available.

This is pretty astounding. For a number of years the EPO issued a lot of judgments in a court whose existence (in this particular form) violates the EPC and they refuse to even deal with that issue.

“The EPO bullies its staff. The majority of them have rather severe stress, many need to seek professional help and a large proportion develop physical problems that are chronic.”This is typical EPO. It’s a bully, a thug, and a foe of justice. Just ask its own staff; no, not the mythical staff the EPO has just promoted (“How do our #patent examiners work?”).

The EPO bullies its staff. The majority of them have rather severe stress, many need to seek professional help and a large proportion develop physical problems that are chronic. The EPO is no place to work and it’s not hiring. It’s also outsourcing the jobs.

Incidentally, retweeted by EPO a short while ago was this tweet from Saudi Arabia: “The bilateral meeting between @SAIPKSA and the European Patent Office(EPO)was held today in Geneva.The two sides reviewed aspects of cooperation in the field of patents and the opportunities of enhancing the strategic partnership between the sides.”

“Even EPO staff that complains isn’t being listened to. It’s like these people don’t matter because they interfere with ‘Big Litigation’ agenda.”I responded by saying that it makes perfect sense for EPO to have alliances with countries that chop people like me to pieces and put them in tandoori ovens (for speaking about injustices like those in EPO).

Sadly, most if not all of the above issues are no longer discussed by the media. The EPC being violated should be front page news, but somehow that’s being ignored. What do so-called ‘law’ firms speak about? Nothing but marketing or shameless self-promotion; in this particular case we have Paul Calvo and Fei Sha (Sterne, Kessler, Goldstein & Fox P.L.L.C.) citing the EPC as if it still matters at the EPO. But it doesn’t. They would be wiser to point out EPO violates the European Patent Convention (“EPC”) every day. From their new article:

The Guidelines for Examination in the European Patent Office (EPO) permit the use of post-filing experimental data in a limited manner to support the scope of objected claims. However, reliance on post-filing data differs when claims are objected to for insufficiency of disclosure or lack of inventive step.

Sufficiency of Disclosure

Article 83 of the European Patent Convention (“EPC”) requires European patent applications to “disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.” A single example may suffice, but for claims that cover a broad field, a patent application must disclose multiple examples or describe alternative embodiments or variations extending over the technical area encompassed by the claims. If a patent specification lacks disclosure of tangible proof that the claimed concept can be put into practice, post-published documents can confirm the teachings of a patent application, but cannot be used to “cure” an insufficiency in disclosure.[1]

For example, if a patent disclosure provides no guidance as to how to perform a particular aspect of a claimed invention, post-published documents that later show how such performance is accomplished cannot “cure” the insufficiency.[2] In addition, if a patent specification provides only a vague indication of possible medical use for a yet-to-be-identified chemical compound, post-published documents containing details as to the identity and medical use of the compound cannot remedy the insufficiency of disclosure.[3] However, where an application lacks such explicit data, but discloses a technical concept that is plausible in view of common general knowledge at the relevant filing date, post-published documents may be used to support sufficiency of disclosure.[4]

Notice how they examine little details while ignoring all the big questions and the severe issues; this has become so typical that it’s almost sickening. Even EPO staff that complains isn’t being listened to. It’s like these people don’t matter because they interfere with ‘Big Litigation’ agenda.

The EPO Keeps Breaking the Law While Trying to Legalise What’s Illegal

Posted in Europe, Law, Patents at 1:39 pm by Dr. Roy Schestowitz

Map

Summary: The ‘new’ and ‘improved’ EPO isn’t trying to obey the law but instead to justify breaking it; this renders the concept of European justice cursory or symbolic at best

THE LAWLESSNESS of the European Patent Office (EPO) is becoming a liability for the EU because EU officials — not only former ones like António Campinos — actively participate in it. Battistelli started much of this toxic culture or put it on steroids; Campinos maintains that same supply of steroids, in effect perpetuating the same culture and abuses.

“Battistelli started much of this toxic culture or put it on steroids; Campinos maintains that same supply of steroids, in effect perpetuating the same culture and abuses.”As one might expect, the EPO is still repeating a bunch of laughable lies along with an EU agency, EUIPO, as recently as today and yesterday [1, 2]. For over a week now the EPO has been repeating its Big Lies every single day. So did EUIPO. The latest tweet to that effect: “How do trade marks, patents, registered designs, copyright and other IP rights impact Europe’s economy and employment? Read our new study for further insights…”

Notice they’ve added “copyright” to the mix; neither the EPO nor EUIPO deal with that. But let’s not let such pesky facts get in the way…

“It’s that same old nonsense from Managing Intellectual Property (Managing IP).”One of the EPO’s megaphones has just published this piece about “the IP Corporate Strategy Summit in London” (lawyers reconvene with new buzzwords and lies, trying to justify illegal software patents and such nonsense in the litigation capital of the world).

See the text: “AI, IP finance…Industry 4.0…”

It’s that same old nonsense from Managing Intellectual Property (Managing IP). IBM too played a role, being the software patents lobbyist it has long been in every single continent (sans Antarctica; nobody to blackmail/sue there). To quote:

“There is a fair amount of scepticism, however, when you talk with Francis Gurry at WIPO about AI,” she said.

Panellists also discussed the possible use for blockchain in IP. Kevin Fournier, IP lawyer at IBM in Winchester…

How very typical of IBM. As we noted yesterday, the EPO keeps using these buzzwords to promote software patents and IBM plays a considerable role in it. Here comes a Tuesday reminder that EPO is formalising and facilitating such illegal rules that enable illegal patent grants. “The Guidelines for Search and Examination at the EPO as PCT Authority 2019 are now available online for preview. They enter into force on 1 November 2019,” it said.

In the next post we’ll explain and show how the EPO basically ‘legalises’ what’s illegal and unconstitutional (in violation of its founding document, the EPC).

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