The Battistelli ‘revolution’ is just a gory mess
Reference: Joseph-Ignace Guillotin
Summary: The gradual destruction of the European Patent Office (EPO), which was once unanimously regarded as the world’s best, by a neo-liberal autocrat from France, Benoît Battistelli
THE extremely unpopular Battistelli regime at the EPO has turned the entire institution (or Organisation, not just the Office) into a laughing stock. We used to think it paled in comparison to the USPTO (about a couple of years ago), but after publishing more than a thousand articles about the EPO it seems evident that the EPO sets the standards for abuse at international bodies (worse by far than WIPO and broader in terms of scale). Right now there are attempts to blame low-level staff for this.
Due to Team Battistelli, the Office is rapidly losing public support. It took more than 40 years to gain credibility and Battistelli ruins it all in just a few years if not as little as months. He even harms the very function of the Office by killing patent scope and patent quality. Dr. Glyn Moody retweeted Stephen Curry regarding an article we mentioned the other day in relation to the EPO; the situation with regard to patent scope has gotten him upset enough to say “this is yet another reason why we need to abolish patents…” (we presume he meant as a whole because these patents serve to discredit the system’s goals).
Yesterday the EPO was trying to associate itself with aerospace, even though the EPO is run by a right-wing politician who knows zilch about science and detests people who are scientists. He treats the Office like a crude production line and it shows. At the same time the EPO is inherently rotten from the top down (the rot comes/starts from the head) and it is all crooked when it comes to bidding and tenders. Watch the latest nonsense from the EPO. They try to give an impression of transparency and accountability when in fact, as one comment put it today (emphasis is ours):
US becoming an EPO memberstate says…
BB [Battistelli] appoints A. Keyak [sic] a US national based in Washington as a “EPO Delegate to the United States” furthermore he gets carte blanche to establish a network within the Office to support him in his future role.
It is clear that DG5 again has not read the EPO Serv. Regs, as to who can be appointed by the EPO and at what distance he has to reside from the EPO buildings,… home working on a permanent basis from Washington and not being a national of one of the EPO Member states is clearly something for the IU or are some Chinese, Japanese delegates to come as well? … furthermore should the AC not be informed about BB’s industry lobbyist activities behind the scenes for attracting foreign investments to France.
Keyack’s bizarre role was last mentioned yesterday and we wrote a lot more about him before [1, 2]. How on Earth does Battistelli keep his job in the face of all those scandals? The answer is, total lack of accountability; what used to exist of it (or left of it) has been deliberately shut down by Battistelli, with a supine, cowardly Administrative Council consenting to it.
Judging by the latest propaganda from the EPO, it’s all business as usual. Watch the latest publicity stunt which they promoted in Twitter, their Web site (warning: may be trackable) and even the European authorities’ platform. To quote the last of these (pertaining to patent scope or patents on seeds and plants):
The Community Plant Variety Office was pleased to host a workshop with many officials of the European Patent Office (EPO) in Angers on 21 and 22 September.
Martin Ekvad, President of the CPVO and Heli Pihlajamaa, Director Patent Law at the EPO, welcomed the fruitful and very useful workshop for both organisations and look forward to further cooperation.
The organisation and participation of the two organisations in conferences, courses, workshops and other meetings of mutual interest with the aim of maintaining high quality decisions in both institutions will complement this cooperation.
So the EPO is lobbying in Parliament and the Commission (recall what happened and who attended Battistelli’s hugely expensive lobbying event) while at the same time claiming immunity from both and denying the rules as they were put together in the EPC (e.g. exclusion of software patents*).
Here is Barker Brettell LLP speaking about how the EPO is entering a phase of turbulence by basically making a mockery out of the patent examination process, rushing it all as if speed can be attained without compromising quality. To quote this new article: “The European Patent Office (EPO) brought in new guidelines on 1st July 2016 which aim to simplify [sic] the opposition procedure and deliver decisions faster. Here we report on the impact of the new guidelines. Full details of the changes and a useful animation can be obtained via the EPO website.
“The opposition procedure provides third parties with the opportunity [sic] to challenge the validity of European patents centrally, by filing an opposition within nine months of grant. After the opposition deadline has passed a third party must undertake separate national invalidity proceedings, which can be more costly, complex and time consuming. As such, the opposition procedure is popular and approximately four per cent of all granted patents are opposed. According to the EPO annual report (2015) 31 per cent of opposed patents were revoked, 38 per cent were maintained in amended form and 31 per cent survived unamended.”
Given the systematic marginalisation of the appeals process by Battistelli, this has got to be some kind of a joke. It’s clear that Battistelli just wants to rubberstamp everything very quickly, leaving little or no opportunity for in-depth reassessment. It’s truly a recipe for disaster and possibly the end of the EPO as we know it. Some time soon we shall provide more details from the inside, shedding more light on how terrible things have gotten. █
* CEN and CENELEC would like to help poison Europe with FRAND, based on this recent publication. They want to advance patents you cannot work around and must pay for, even when they’re likely invalid in Europe.
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Team UPC has no sense of shame or humility because it wants more money and power
Summary: Without even consulting the British public or the European public (both of whom would be severely harmed by the UPC), the flag bearers of the UPC continue to bamboozle and then pressure politicians, public servants and nontechnical representatives
THEY JUST NEVER give up, do they? Perseverance is therefore required from both sides.
Team UPC, a small group of self-serving patent law firms, is trying to steal democracy and hijack the law in a truly undemocratic if not antidemocratic move. They brainwash public officials, throw incentives at them, and then pressure Battistelli's British photo op mate, Lucy.
“Team UPC, a small group of self-serving patent law firms, is trying to steal democracy and hijack the law in a truly undemocratic if not antidemocratic move.”IP Kat (whose staff/writers include Bristows LLP staff who exploited the platform for UPC lobbying for a number of years now) published this piece in the afternoon. It must be like the hundredth so-called ‘analysis’ of Brexit and the UPC (we put analysis in scare quotes because these are typically composed by Team UPC or think tanks/pressure/interest groups like CIPA).
As we have demonstrated here many times in the past, the UPC is extremely undesirable to the vast majority of European businesses and after a Brexit referendum it is dead and buried, no doubt about it at all. Unless… Team UPC can pull some dirty tricks that they have up their sleeves, hence our eternal vigilance.
“So,” says IP Kat, “while it may be legally possible for the UK to overcome the requirements of Opinion 1/09 by a new agreement, it could still be very politically sticky to sell a treaty which proposes the ongoing supremacy of EU law over the UK – even within the relatively limited context of patent disputes before the UPC.”
“They brainwash public officials, throw incentives at them, and then pressure Battistelli’s British photo op mate, Lucy.”In other words, any attempt to ratify the UPC right now would be extremely antidemocratic and flirting with “corrupt”.
Meanwhile, as pointed out to us by one reader, one of the latest so-called ‘analyses’ of the UPC and Brexit came from Edward Nodder from Bristows LLP (attempting to rebrand as “Bristows UPC” in order to capitalise on change/transitions induced by their own lobbying). The wording is extremely revealing and it piggybacks Battistelli cronies like Margot Fröhlinger [1, 2, 3, 4]. The villainous Bristows (Team UPC) dare say “that not only will the pressure for UK ratification of the UPC Agreement continue, but [...] a decision is wanted within weeks.”
So they play dirty. Bristows has, all along, been a major contributor to this dirty play.
“Nodder did not dare point out that not a single person at AIPPI (which he wrote about) believed the UPC would happen (based on a quick straw poll at the event).”To quote further: “Despite universal agreement that the UPC would be better with UK participation, there is an unwillingness, in some quarters at least, to wait for the UK. Dr Froehlinger said that under the EU principles of sincere cooperation, the UK should either ratify or withdraw from the UPC Agreement. She said that under streamlined procedures other countries could make modest amendments to the existing Agreement and re-ratify quickly – within months – and hence go ahead without the UK. Thierry Sueur believed the unitary patent and UPC system to be important for innovation and growth in Europe. In such a new regime London would lose the pharmaceutical branch of the UPC’s central division, but Dr Froehlinger would not be drawn upon whether the political negotiations on the fate of this branch (which city or cities would host it) would involve only France and Germany, or other countries, nor would she speculate on how long such negotiations might take.”
Nodder did not dare point out that not a single person at AIPPI (which he wrote about) believed the UPC would happen (based on a quick straw poll at the event). Bristows are enemies of European interests and they will definitely continue to fight for the UPC. It’s their project (along with few other law firms and EPO facilitators). It’s our project to ensure they do not succeed as it would undermine Europe for very few people’s enrichment and power hoard. █
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On the same night as this, maybe for similar reasons:
Summary: The longstanding propaganda campaign (framing staff as happy or framing unhappy staff as a disgruntled minority) is out and the timing of the release is suspicious to say the least
THE ABOVE SCREENSHOTS, taken from the first phase of a propaganda campaign (to culminate with a so-called 'conference' intended to influence the Administrative Council), would not be exactly shocking to EPO staff. It’s part of an effort by Battistelli to dismiss and discredit any claims that he abuses staff, strategically at a point when the Administrative Council brings up the subject. It is an infamous politician’s trick (see what the US government did on the very same day as the debut of the film “Snowden” and simultaneous calls for Presidential pardon).
“The quick summary: Blame the staff for all the problems.”Lots of EPO coverage is planned for this weekend and we decided to begin by getting this propaganda out of the way. It wasn’t — as far as we are aware — expected to come out last night, which makes one wonder. If this propaganda about the social climate was released prematurely late on a Friday, then maybe they try to bury or distract from something. Are they trying to suppress discussion about it? Has Team Battistelli lost its mind again? Why did the social study appear on the intranet at such strategic timing (when few would even notice the release)? Why has nobody covered it yet? Journalists are obviously away for the weekend (see what the FBI has just done, as Wikileaks pointed out 19 hours ago). It’s a big document, no doubt, and staff might be taking it home for the weekend. The Financial Study and Occupational Health and Safety Risk Assessment have appeared also.
The quick summary: Blame the staff for all the problems. Expect us to say more about it in the near future. The above is just somewhat of a preview. █
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Next photo op: puppies?
Summary: Benoît Battistelli continues to make the EPO look like Europe’s biggest laughing stock by attempting to tackle issues with corny photo ops rather than real change (like SUEPO recognition, diverse hiring, improved patent quality, and cessation of sheer abuses)
ONE of the many things that EPO management is routinely criticised for is lack of diversity (both gender and race). Today, tactlessly enough, Benoît Battistelli published himself posing for photo op with a black boxer. It’s like US politicians who pose for photos with black baseball/basketball/football players (or other athletes) to ‘prove’ they are not racist and thus attract votes/consent from the black population/community. Remember that Battistelli is inherently a politician, so he has these tricks/routines up his sleeve. These tricks might be effective in charming the general population, but EPO examiners are not this gullible. It’s embarrassing for them. It’s like the EPO has become a political party. Employees of the EPO are not sure whether to laugh or sob. Not too long ago Benoît Battistelli did a photo op along with Cambodia (with zero patents at the EPO!).
“It’s like US politicians who pose for photos with black baseball/basketball/football players (or other athletes) to ‘prove’ they are not racist and thus attract votes/consent from the black population/community.”We expect a Battistelli photo op with Neelie Kroes (with Bahamas shell companies) and José Manuel Barroso (Goldman Sachs revolving doors) next… because photo ops can supposedly solve all issues (ask FFPE-EPO which helped Battistelli create a perception of peace with ‘unions’). █
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How ‘professional’… media repurposed as a shadow EPO platform
Summary: Another look at convergence between media and the EPO, which is spending virtually millions of Euros literally buying the media and ensuring that the EPO’s abuses are scarcely covered (if ever mentioned at all)
THE previous post about the EPO bemoaned poor press coverage that merely propagated lies of the EPO. Stakeholders were not at all contacted as part of fact-checking. That’s churnalism, not journalism.
“As rebutting/debunking the lies requires some basic knowledge of this system and also no professional loyalty to it, Techrights is often alone in responding to such misinformation.”In this second part we plan to tackle some more of the same things and bring to light unexplored issues pertaining to the EPO under Benoît Battistelli.
AIPPI World Congress
James Nurton (aforementioned EPO ‘stenographer’ of sorts) attended the AIPPI World Congress and wrote a bunch of articles. As we don’t think these relate directly to the UPC we won’t dig into each one of these, but MIP (Managing IP, Nurton’s employer) omitted disbelief that the UPC will become a reality from its reports, as we already noted the other day. Agenda by omission? Nokia, based on this new report from WIPR, shares this view on UPC disbelief. To quote:
The UK’s ratification of the Unified Patent Court (UPC) Agreement is politically “very unlikely” at the moment, according to Nokia’s head of European litigation Clemens Heusch.
He was speaking in a session yesterday, September 20, at the 2016 AIPPI World Congress in Milan about the implications of Brexit on the UPC.
Heusch said that instead, negotiations were likely to play out over two years once article 50 of the Lisbon Treaty has been invoked.
Commenting on the negotiations, Heusch said it was essential for the UK to stay in the common market or some form of free trade agreement, so the talks will be a great chance to include the UPC.
Sadly though, on UPC among other topics, the IAM and MIP staff are just megaphones amplifying the EPO’s liars like Margot Fröhlinger [1, 2, 3]. See IAM’s “The UK risks losing current UPC goodwill if it dithers on ratification for much longer, warns Froehlinger”. We already wrote about these appalling lies from Battistelli (alarmists for UPC), but it doesn’t bother those who have an agenda to sell or drive. It would be rather saddening if people had actually read these sites and believed everything they say. As rebutting/debunking the lies requires some basic knowledge of this system and also no professional loyalty to it, Techrights is often alone in responding to such misinformation.
Puff Pieces Become the Norm
Going back to MIP, “Meet AIPPI’s first Chinese President” was published and an interesting discussion developed around this tweet. “Here’s EPO and Managing IP in the same bed,” I said. “Soon, another Battistelli puff piece (lies) [is going to come] from them (re “social”),” I added, knowing what Nurton said in part 1 of a so-called Battistelli ‘interview’. “I hope you’ll consider fact-checking before publishing a piece which claims (outright lies) EPO staff is happy,” I told them. “A lot of EPO staff are on the verge of suicide and deem it a nightmare to work there; many quit, life over money.”
As one person put it, “”communications duets” are old-PR-style stuff – don’t hv to declare ad interests on soc med.”
One person (maybe an insider) said s/he was “waiting for the explosive amba interview.”
“We are still waiting for a response from AMBA,” MIP replied, so there has been no progress.
“Sadly though, on UPC among other topics, the IAM and MIP staff are just megaphones amplifying the EPO’s liars like Margot Fröhlinger.”“I would not be AT ALL surprised,” I told them, “if they fear even replying (for fear or retribution); the contrary would shock me; You do a sterling job covering some issues, but please don’t become another Battistelli ammo against EPO staff; you would not only be on the wrong side of history but also, to some degree, potential contributor to future suicides; in case you ever wonder why you made yourself ‘the’ story, it’s because you picked a side, and it’s the wrong side of history; Yes, journalism requires hearing the other side, even if not independent and still under fear from Battistelli.”
So certainly it seems like MIP will continue to be Battistelli’s platform, unless they change their mind after public criticism [1, 2, 3, 4]. Don’t they know that AMBA is afraid? Therein lies the core of the story they should write.
Hardly Even Trying to Look Separable Anymore
“Thanks @ManagingIP,” the EPO wrote, “for the highlights from the #AIPPI2016. See what the EPO President pointed out: http://www.managingip.com/Article/3586954/Read-the-highlights-from-the-AIPPI-World-Congress.html …”
It’s like MIP is now cooperating with the EPO and watch the article the EPO cites, with an image of Battistelli (accompanied by his lies) on the right-hand side. We previously highlighted similar signs of cooperation/coordination between those two (part 1 of the interview).
“So certainly it seems like MIP will continue to be Battistelli’s platform, unless they change their mind after public criticism.”In the mean time, the EPO itself has just promoted (in Twitter) Battistelli’s self-congratulatory puff piece (warning: this is a link to the EPO’s site which they can use for tracking/harvesting IP addresses). The “EPO’s Early Certainty initiative” that Battistelli speaks of is basically a way of ensuring lowered patent quality, i.e. the very opposite of what the EPO needs.
Repeating anything Battistelli says, Annsley Merelle Ward from Bristows is still pushing/promoting the UPC for her employer, as usual [1, 2]. Here are the relevant parts of from what she published this morning: “The core theme running through EPO President Benoit Battistelli’s address was the importance of quality and efficiency at the EPO in the face of an increasing quantity and complexity of applications. [...] Alongside these efforts, M. Battistelli described the “Early Certainty from Search (ECfS)” scheme which requires that all incoming searches are issued with written opinions within 6 months and for which the backlog of searches was cleared in mid 2016. Importantly, as of 1 July 2016, the Early Certainty scheme was expanded to cover examination and opposition as well. The aim is for timelines by 2020 of 6 months for a search and its opinion; 12 months on average for examination; and 15 months for a standard opposition.”
Absolutely terrible. We shall say more about it some time soon (with accompanying documents). it’s a rat race, or a race to the bottom.
“A lot of the IP-centric media — rather than help expose the abuses of the EPO (Merpel is hardly active anymore) — chose to play along with Team Battistelli.”“Finally,” she added, “M. Battistelli touched on the Unitary Patent (UP) and stressed his view that despite Brexit the UP will happen – it was just a question of when. If the UK ratifies (which he believes is legally and politically possible), the EPO expects to grant the first UP next year; otherwise it will be delayed several years as it will not be possible to launch the UP until after the UK has left the EU. In the Q&A session, in response to a question about his vision for 2025, he said (with only a touch of irony) that he hoped the UP would finally be a reality by then!”
Yes, that says 2025! Battistelli might be nearly 80 by then (and maybe deceased).
But anyway, never let a good opportunity to “build relationships” with the EPO, right? A lot of the IP-centric media — rather than help expose the abuses of the EPO (Merpel is hardly active anymore) — chose to play along with Team Battistelli. That’s where the big money is. █
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Battistelli’s Ministry of Truth is no reliable source of information
Summary: A survey/review (or an overview) of recent articles about the EPO and why they’re wrong (mostly because they parrot the official lies from Battistelli’s department)
THE Battistelli campaign (or coup d’état) recently entered a new phase. A year ago we noted that the EPO had begun deliberately lying both to journalists and to staff. It’s inexcusable and it causes irreparable damage to the EPO both as a service and as an employer (or prospective employer). Battistelli appears to have become a man without accountability; he’s liable to nobody, except Sarkozy perhaps. What a joke the EPO has become under this man’s so-called ‘leadership’. Even IP-centric circles lost respect for him, but they have to keep pretending that he’s President even when the staff pretty much disowned him and Board 28 views him as a liability. How this man managed to maintain his position might one day become the subject of some incredible book! Eponia is an autocrat’s fantasy land.
Today we would like to counter or respond to several reports we saw. Some of them are so shallow that one starts to wonder if the EPO directly paid for them (we already know that the EPO pays publications to print out puff pieces).
Façade of Independence
A couple of months ago we wrote about how Battistelli (in part) would be appointing another one of his cronies, in order for this crony to be framed as "independence" for the appeal boards. Earlier this week we found this article titled “EPO seeks to allay independence fears with new appointment”; problem is, they don’t mention who makes this appointment and why it’s merely an illusion of independence, as explicitly pointed out by AMBA. To quote this report:
The European Patent Office is seeking to appoint a president of its boards of appeal, a newly created post aimed at addressing longstanding independence concerns.
In a notice published on its website, the EPO said the appointment would ‘foster autonomy and efficiency’ at the appeal boards, which are responsible for hearing appeals against examination decisions.
Under the European Patent Convention, the framework that instituted the European Patent Office, the 28 boards of appeal are supposed to be independent from the rest of the office and only answer to the EPO’s supervisory body the Administrative Council.
But in 2014, their autonomy was thrown into doubt when EPO president Benoit Battistelli (pictured) placed a ‘house ban’ on the then head of the enlarged board of appeal.
Those who have paid close enough attention know that by various means Battistelli is crushing these boards while merely maintaining the illusion that he is not doing so (maybe because of the EPC).
Repeating EPO sound bites like “foster autonomy and efficiency” is a disservice to truth. It’s the repetition of lies. We’re not sure why the Law Gazette decided to issue such a shallow piece while neglecting to highlight the other side of the story — the side which is not merely lying to save face.
Façade of Patent Quality
Patent quality will certainly be a big topic in the Administrative Council’s next meeting which is only a month away (based on document we saw), so Battistelli and his cronies have begun lying about it and planting puff pieces in the media (whether by collusion or by finding ‘useful idiots’ who would play along for free we are not sure).
This new article, like many others, compared EPO to the USPTO, quite frankly as usual. It’s not as though the USPTO has high patent quality. “This is part of what the US Patent and Trademark Office (USPTO) and European Patent Office (EPO) have to consider in order to determine” who will sink to the bottom of the barrel and accept widely-rejected patent applications. We heard theories about how Battistelli was trying to attract really bad applications by lowering the acceptance bar. That would be a terrible mistake which drains or squeezes out everything that’s left of the EPO’s 40+-year reputation.
James Nurton, the favourite poodle of Battistelli (doing so-called ‘interviews’ to prepare puff pieces with him), repeats the EPO’s lies this week. It’s not journalism but churnalism and it does nothing to highlight the terrible patent quality we have been hearing about and writing about. Low patent quality might be fine for attorneys in the short term (more business), but what happens to society as a whole?
Yesterday we found this new article about the “English approach to obviousness” of patents and the comments were revealing. To quote both of them:
For some time it has seemed to me that the UK courts’ approach to obviousness makes little overall commercial sense. Obviousness is a difficult, fairly subjective question, based on a number of legal fictions. The UK court approach leads to massive expense in terms of gathering evidence to try to definitively demonstrate points that are not real but are wrapped up in the legal fictions.
So is the current UK approach in fact causing massive expense to arrive at a fairly artificial, one might say arbitrary result?
It seems that the current approach leaves little certainty and it is hard to advise (especially without all the evidence that the current approach seems to demand) – as this case/blog suggests.
To me adopting, say (or whisper..) an EPO style approach might make more sense. Yes justice might be rougher. But it would be much easier to know the likely outcome, and the cost of litigation could be massively reduced.
Wouldn’t better certainty, reasonable cost and a likelihood of a reasonable result (most of the time) be attractive to business?
Hear him, hear him. well said Herr Faulkner.
Given that, for determination of obviousness objectively, the addressee is the hypothetical skilled person, it is well to set up his or her hypothetical task to match. The EPO PSA rubric does that. The skilled person is given the objective technical problem (OTP), and required to scroll through the state of the art for a hint or suggestion how to crack it. Isn’t that what real researchers do, in real life?
As to the OTP, that is determined by Applicant. Full faith and credit for what the application as filed states to be the technical field and the technical problem solved by the invention. Nothing fairer, than that, or simpler to explain to the patent litigation community.
When granting a patent an office (or examiners) doesn’t need to consider business needs of the applicant and his/her lawyer but rather the inventiveness. Battistelli, being a business type rather than a scientist, is turning the Office into a production line. Examiners don’t benefit from it, specialist patent judges (like those at the boards) certainly don’t benefit from it, and the whole spirit/principles that made the EPO a world leader become just history.
It’s truly a problem that Battistelli and his loyalists now frequently resort to lying (to the public and staff) about what they do. It’s costly in the long run because trust is eroded and applicants will sooner or later find out that the EPO is just an expensive (overpriced) rubberstamping exercise/operation. Battistelli will soon find out that his chronic lying needs to stop. Even when he and his cronies say the truth people won’t believe the EPO anymore.
“They don’t care about costs,” one insider told us. “Obviously Battistelli is ready to reach his goals by any means necessary. SUEPO dismissal=collateral damage [...] Someone should tell IAM that there are also dodgy social studies initiated by the EPO to mislead the press and politicians ;)” (comment regarding the upcoming ‘Social Conference’).
“We shall see if IAM has the integrity to engage in journalism when the EPO lies about the social climate,” I told them, after IAM slagged off Professor Bessen, saying: “Someone should tell Mr Bessen there are academics who’ll take cash to produce dodgy studies for corporates seeking to change patent laws ;-)” (says the site that takes money from the EPO's PR agency that receives over a million Euros per year from the EPO).
“For what it’s worth,” the insider added, “they don’t have the guts to object King Battistelli and his thugs. Fear of repercussions?”
He or she later explained: “Distraction form actual problems and distortion of the truth and the facts is Battistelli’s footprint and tactics in this dirty game!”
“As a former EPO examiner, and current practicing attorney, I had to bite my tongue not to scream a nasty expletive when I read that.”
–AnonymousBattistelli is trying to appeal to US businesses by rubberstamping almost everything while his friends at IAM propagate his talking points, namely: “Battistelli told the audience that this was “a clear sign that there is a growing interest from you in the EPO and the European innovation market”. To help manage that growing interest the EPO has appointed its first attaché to the US, hiring Albert Keyack who previously served as the USPTO’s attaché for South America.”
We wrote about Keyack before [1, 2] and explained why it’s rather alarming. Quality control before Battistelli was reasonably OK, but EPO insiders tell us they’re mortified at how sharp a decline they’re seeing. We shall cover this in depth another day. Battistelli basically exploits the image created or defended by his predecessors while shifting policy in the opposite direction.
“The European Patent Office (EPO) has argued that Berkeley’s initial, provisional application does not adequately describe the invention because it fails to mention the importance of certain DNA sequences, called PAM sequences,” according to this new article from Nature. It’s an article about patents on life and the outline/outset says:
Geneticist George Church has pioneered methods for sequencing and altering genomes. He has been called a founding father of synthetic biology, and is probably the world’s leading authority on efforts to resurrect the extinct woolly mammoth.
Now, a battle over who owns the patent rights to a revolutionary gene-editing technique could hinge, in part, on whether Church’s scientific skill could be considered ‘ordinary’.
Such are the arcane and often bizarre issues the US Patent and Trademark Office (USPTO) must consider in the fight over CRISPR–Cas9 gene editing. But the proceedings, which could drag out for years, have taken an ugly turn from scientific minutiae to accusations of impropriety. “There seem to be a number of allegations of bad actors and bad faith,” says Jacob Sherkow, a legal scholar at New York Law School in New York City. “It’s aggressive.”
Once upon a time it was really hard to be granted an EPO patent, but now it’s somewhat of a joke (even to insiders who are patent examiners). They’re rightly concerned because a shoddy (rushed) job would cost them their job in the long run.
“Well, the UPC Preparatory Committee is the very core of Team UPC and it’s basically a bunch of self-serving propagandists and lobbyists.”“As a former EPO examiner,” wrote this one person the other say, “and current practicing attorney, I had to bite my tongue not to scream” (at EPO lies).
The specific part which angered this person was: “Alfred Spigarelli, European Patent Office (EPO), disagreed with the trade-off premise, and stated that at the EPO, a focus on quality results in productivity.”
Complete nonsense. A symptom of what the EPO has become under Battistelli.
Façade of UPC as Inevitable
Based on this tweet from yesterday, CIPA and the EPO will soon converge in London (we’re guessing to push and lobby some more for the UPC after Brexit, among other things). We previously explained the role of CIPA in all this, including the push for the UPC.
Here come some alarmists from Team UPC. Cohen & Gresser LLP say “Brain Drain? How Brexit may affect intellectual property rights in Europe” (hardly a problem as long as the UK has its own office, UK-IPO).
Another new article asks (in the headline), “Where Next For Patents In Europe?”
It’s actually UPC promotion by proxy (embedded in the article), as for patents in Europe the British people can still use the EPO, albeit the EPO hardly hired any Brits anymore (maybe they don’t even bother applying, as we showed last month). Here is what the article says:
An experienced patent lawyer, commenting on the basis of anonymity, believes the UK patent landscape has changed decisively post Brexit: “The Unified Patent Court [in the UK] and Unitary Patent [in the UK] will almost certainly now not go ahead. There is some talk of them still happening, with various permutations being suggested, but I think it is unlikely as it would be politically odd to sign up to a European court with such wide powers so soon after the vote”.
Alexander Ramsay, Chairman of the UPC Preparatory Committee is slightly more optimistic “For the time being the United Kingdom remains a Member State of the European Union and a Signatory State of the Unified Patent Court Agreement and an integral player in its preparation”. However he concedes, the referendum result raises questions “…in particular as regards its possible impact on the UK participation and on the UK ratification of the Agreement”.
“They built their portfolio or career on the premise that the UPC would become a reality, so they’re pushing for it by all means possible, even if everyone but Team UPC antagonises the UPC (most people know nothing about it, but they would be harmed by it).”Well, the UPC Preparatory Committee is the very core of Team UPC and it’s basically a bunch of self-serving propagandists and lobbyists. They built their portfolio or career on the premise that the UPC would become a reality, so they’re pushing for it by all means possible, even if everyone but Team UPC antagonises the UPC (most people know nothing about it, but they would be harmed by it).
The “consequences of Brexit on the UPC amongst many in the patent community (especially by the EPO) is naïve at best,” says the following new comment, which also notes that any “attempt [to] proceed with UPC also ignores a critical voice which is that of the user”. Here is the comment in full:
I agree with the previous post. Unfortunately the reaction to the consequences of Brexit on the UPC amongst many in the patent community (especially by the EPO) is naïve at best and wilfully blind at worse. To be clear UK participation in the UPC is dead, and the UPC itself is seriously wounded -perhaps fatally so. UPC will not happen any time soon. I appreciate this is frustrating given it came so close. But it does not serve the interests of UK based applicants or those who desire UK patents to pretend otherwise and to do so is in danger of making a bad situation much worse.
I comment as a passionate European and patent attorney who has worked in house for many multi-national patentees. I have spent many years living in the EU as a UK ex Pat. After recently returning to live in the UK, I was bitterly disappointed by Brexit, which I believe will be a disaster. However UK ratifying the UPC notwithstanding the June result (even if possible) would simply play into the hands of those who voted to leave as it would be an illustration of elitist arrogance which rather makes their point for them.
UPC won’t happen with the UK as the political obstacles to UK participation in UPC are insurmountable. The patent community just doesn’t have the political clout to persuade the UK government to take the political risks and use up their limited political capital in Europe by doing so.
For the UK to attempt proceed with UPC also ignores a critical voice which is that of the user. The UPC was always a solution looking for a problem. Even before Brexit, despite the EPO propaganda, I did not sense a large push for industry to use the UPC, who were largely ambivalent at best. Indeed the risk of pan EU injunctions was as much a potential huge downside for EU industry from UPC as it was an opportunity.
The present post grant arrangements have largely worked well for 40 years. As a very low proportion of EU patents are ever litigated, I always felt UPC was a post grant tail wagging a pre-grant dog. The UPC has always been a political not economic project based on questionable assumptions and statistics from EPO, and did not properly reflect what industry or most users wanted.
The critical risk from Brexit (and for that matter the UPC) is prolonged uncertainty. For the UK to ratify UPC now will merely heap yet more legal uncertainty on top of a massive post Brexit legal black hole. Who is to say that any fudge that allows UK to join UPC, however cleverly thought through, would be confirmed by the CJEU, given their intense suspicion of the whole endeavour? Why would any applicant take the risk of obtaining UPC patents, if their UK patent rights may be at risk at some unknown point in the future?
For UK to ratify UPC now could drive applicants who desire UK protection away from the EPO to file direct at the UKIPO. It may even put at risk EU patents outside the UK thus making the UPC even less attractive for all users. Worse case it might deter all applicants from using the EPO at all, if they are forced into a system based on legally shaky foundations.
The only sensible option is to pause, wait until the UK leaves the EU and then introduce a revised UPC to cover the remaining EU states who still wish it. Of course a UPC without the UK is less attractive to applicants and a disaster for the UK patent profession. It means no UK based court. But that is one of the very many unfortunate consequences of a poor decision to leave the EU. Revision of the UPC agreement may indeed open up debate that will question the merits of the UPC at all – no bad thing given the rushed and poor quality debate in the EU parliament. However the UK is on our way out, that is no longer our concern and we can have no say on this. Again this is the harsh reality of what leaving the EU means, a lack of influence of UK stakeholders in EU affairs.
But to follow the UPC to the bitter end without pause could seriously weaken a supranational patent granting system in Europe that has worked effectively and served applicants well for many years.
Dr Ingve Björn Stjerna, a longtime antagonist of the UPC, has a new paper about the UPC in light (or shadow) of Brexit. His summary says: “The majority vote of the British electorate in favor of leaving the European Union has delivered a serious blow to the European patent reform. The usual protagonists nonetheless immediately started advocating for an instant ratification of the Agreement on a Unified Patent Court (“UPCA”) by the UK, now even deeming possible the participation of a non-EU member which so far, due to CJEU opinion 1/09, was held to be excluded by the same people. When looking at the situation from a less biased perspective, a UPCA with the UK may only be possible after a structural revision of the Agreement.”
In our next post we shall tackle some more of the EPO’s lies. █
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Ignoring the bulk of cases or inter partes reviews in order to advance their agenda
Summary: Amid the gradual collapse of software patents in the United States there are disingenuous efforts to bring them back or maintain a perception that these patents are still potent
FOLLOWING the CAFC-level McRO case we have seen a new wave of software patents lobbying. We last wrote about it in yesterday's sole article and prior to it we showed how McRO got exploited for software patents agenda by the patent microcosm [1, 2, 3]. We estimated that we would probably see it lasting for weeks in the media and indeed, even a week later we still see new examples. Fenwick & West LLP of Bilki Blog is promoting software patents using this decision and watch this sensationalist and misleading headline from Paul Hastings LLP (a truly gross generalisation). They are intentionally extrapolating/generalising while ignoring all the court outcomes that they don’t like (because it disproves their claims/marketing).
Judging by the article “Alice Ruling Limits Patentability of Business Processes”, David Kappos is still at it. He is a software patents lobbyist (he used to be an official, namely USPTO Director, but he is taking money from Microsoft and IBM these days). He bemoans Alice at every turn and here’s the latest talking point from him:
David Kappos, a former director of the patent office, is quoted by Bloomberg Businessweek saying that invalidation of patents is “out of control” and has “definitely gone too far. Important software innovations that are highly technical are being deemed unpatentable. You can get software patents allowed in both China and Europe that aren’t allowable in the U.S. anymore.”
Other proponents of software patents, sites like IAM for instance, cherry-pick data (in this case focusing on “most frequent filers”) to make PTAB progress look like it’s stalling, even when figures from MIP suggest otherwise. Fun with statistics; they’re being shaped based on one’s desired conclusion.
The loudest proponent of software patents, Gene Quinn, wrote many articles bashing PTAB and insulting PTAB. He also published quite a few article celebrating McRO and now he helps the coordinated effort to [cref 95347 belittle abuse (even fraud) by the USPTO. Such is the modus operandi of people with such an agenda. If only more Web sites bothered pointing this out… █
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Summary: Microsoft-connected patent trolls like Larry Horn’s MobileMedia are still attacking Microsoft rivals and Microsoft wants more money from Korea, after it attacked Linux with software patents over there (notably Samsung and LG)
“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).
How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).
Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”
A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.
“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”
Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:
(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.
MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”
MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.
In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:
The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.
Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.
When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).
Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █
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