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12.04.19

Europeans Still Need to Save the European Patent Office From Those Who Attack Its Patent Quality

Posted in Deception, Europe, Patents at 4:35 am by Dr. Roy Schestowitz

It’s a collective responsibility for the betterment of society and the sciences. The public awareness (of these underlying issues) continues to grow, but solutions aren’t there yet.

Patent quality paper
Screening for Patent Quality: Examination, Fees, and the Courts

Summary: Patent quality is of utmost interest; without it, as we’re seeing at the EPO and have already seen at the USPTO for a number of years, legal disputes will arise where neither side wins (only the lawyers win) and small, impoverished inventors or businesses will be forced to settle outside the courts over baseless allegations, often made by parasitic patent trolls (possessing low-quality patents they don’t want scrutinised by courts)

BACK in 2006 when this site was born (I had already been writing about patents for a number of years before that) our focus was on software patents in the US and their impact on GNU/Linux. In 2007 we broadened our scope a bit; we looked at USPTO-granted patents that affected not only GNU/Linux and covered various other threats to GNU/Linux, for example OOXML (proprietary, pseudo ‘standards’). It was only in 2007 that we started talking about software patents in Europe, in light of the 2005 directive (predating this site) and whatever followed. Back then the UPC (not yet known as UPC) was a concept, not an actual thing. It became known (renamed) as “EU”/”Community” Patent and later came words like “unitary” and “unified” (who would ever oppose unity, union, unison and so on?). In 2008 we started focusing on what Brimelow had done, especially loopholes “as such”; seeing the great harms caused by software patents in the US, we were baffled by this policy. It wasn’t until Battistelli came to the helm that software patents were granted in droves. António Campinos may call them “AI” or “4IR” or whatever, but we know what these are. Even the US would not allow such patents (35 U.S.C. § 101 would prevent them going far down the legal pipeline).

“Even the US would not allow such patents (35 U.S.C. § 101 would prevent them going far down the legal pipeline).”The decline of patent quality in Europe isn’t a problem but a growing crisis. Some of the most ridiculous patents motivated us to start a European “stupid patent of the month” series — a series we didn’t keep going for very long (lack of time and resources are to blame). Fake patents are being granted by the European Patent Office (EPO) — maybe more so than by NPOs — and in Germany some of these patents are proving to be of use to nobody but lawyers. They also have negative impact on climate. Renewables Now covered what we had seen in 4 sites beforehand (including a press release) when it said (earlier this week, yesterday to be precise):

A court in Germany has handed a victory to Huawei Technologies Co Ltd in one patent infringement case brought by Israel-based photovoltaic (PV) inverter supplier SolarEdge Technologies Inc (NASDAQ:SEDG), while deferring the hearing for another case due to insufficient evidence.

The Chinese company informed last week that the Mannheim regional court had dismissed SolarEdge’s lawsuit against Huawei over infringement on the patent regarding optimiser and inverter architecture.

It had to actually go to court. That’s extremely expensive. Huawei Technologies can easily afford that, but maybe not SolarEdge Technologies. SolarEdge staff must have thought they had real “gold” in their hands, only to realise that they had been granted a fake European Patent (EP) or Invalid Patent (IP). Remember that all these patents on energy efficiency may mean fewer companies/products/people will be energy-efficient (without breaking the law or infringing patents, assuming these patents are legitimate in the first place). Yesterday we saw this article entitled “Chesco company takes patented attic energy efficiency product international” and it mentions the EPO. Shouldn’t there be some exemptions where public interest (e.g. climate crisis) conflicts with patents? Surely the lawyers want lots of patents in every area (here for example we have the patent maximalists celebrating PPH and EPO broadening scope/reach of impact), but at what cost? Or whose cost?

“Shouldn’t there be some exemptions where public interest (e.g. climate crisis) conflicts with patents?”The EPO is rapidly becoming INPI — an NPO that doesn’t bother with examination. SUEPO warned about this as long as 3 years ago. Now, with CQI, the EPO is getting closer to this. When all applications are presumed valid the majority of European Patents may prove to be presumed invalid. Francois Pochart, Lionel Martin and Thierry Lautier (August Debouzy, France) have just published this piece about “Implementation Of Opposition Proceedings Against A French Patent”. Promoted in Mondaq, the piece says that “[a]s it stands, those opposition proceedings [are] at the crossroads between the EPO opposition proceeding (reserved for EPO professional representatives)…”

Here’s how it works:

From a strategic point of view, the opposition will be an additional tool for third parties. We will therefore be able to consider the best choice to make against a French patent: (i) file an opposition before the French PTO, (ii) bring an action for a declaration of invalidity before the Paris First Instance Court or (iii) wait to be summoned for infringement before the Paris First Instance Court to file a counterclaim for a declaration of invalidity. In this respect, it may be noted that, as it stands, the action for invalidity would take precedence over the opposition (the opposition being suspended if an action for invalidity is pending, Article R. 613-44-7, 2°) and that it is not yet clearly provided that the alleged infringer may intervene in a pending opposition (Article R. 411-32 only refers to a “voluntary intervention” at the appeal stage, but without regulating it). It may also be noted that the parties would have the opportunity to jointly request the suspension of the opposition proceedings for a period of one year (more precisely, “for a period of four months renewable twice”, Article R. 613-44-7 paragraph 2), which could be used to negotiate – this is the cooling-off period that is already known in trademark matters.

It can already be noted that the proposed proceedings provide a strong incentive to oppose French patents through a straw man, preferably located abroad. Indeed, an opposition via a straw man, made possible by the absence of interest to act (Articles L. 613-23 and R. 613-44), allows the real opponent to avoid an authority of res judicata in the event of subsequent action for invalidity (Article R. 615-1 A). In addition, the fact that the straw man resides abroad also allows the real opponent to artificially extend several delays in the opposition proceeding by two months (Article R. 411-43).

With regard to the transitional provisions, while the entry into force of the provisions relating to the opposition proceedings is scheduled for 1st April 2020, the taking into account of inventive step during the examination proceedings should only take place on 22 May 2020 (i.e. one year after the promulgation of the PACTE law). This means that only patent applications filed on or after May 22, 2020 will benefit from an inventive step examination. Given the usual time limits for examination before the French PTO, the first French patents granted after an inventive step examination will therefore probably be granted from 2023 onwards. Consequently, French patents granted before 2023 – without examination of inventive step before the French PTO – could be the subject of an opposition including inventive step as a ground for opposition. For a patent whose written opinion attached to the preliminary search report (delegated by the French PTO to the EPO) mentions a lack of inventive step, it would then be “easy” to file an opposition on the basis of the preliminary search report alone. To avoid such a case, applicants ought to “regularize” the scope of their securities, either by amending the claims or filing a divisional application just before grant 5, or by filing a request for limitation shortly after grant (being specified that opposition proceedings would then prevail over limitation).

In other words, both potential opponents of French patents and patent holders – and especially the latter – must prepare now for the implementation of those opposition proceedings.

Well, the opposition proceedings are like a late safety net and one that cannot quite compensate for rushed or erroneous examination. Proper examination can take a lot of time and effort — hence the relative ‘slowness’ of the EPO before the Battistelli era. It’s better not to grant a patent at all than to grant one in error, but to those who profit from litigation — including totally baseless and frivolous lawsuits — any patent will do, even invalid patents (IPs).

Suffice to say, to EPO patent zealots (the management) and the litigation ‘industry’ the courts are an ‘obstacle’ because they throw out all those IPs, thereby reducing clients’ confidence in EPs and in litigation (foreseeing low chances of success).

“UPCA languished to its death.”So what have EPO zealots and litigation zealots been pursuing? An alternative legal system where judges can be appointed for lenience and presumption of EP validity.

Thankfully, as of this moment, all these efforts have failed rather badly. Seeing the low quality of patents and lack of legal oversight at the EPO (in Haar, not even Munich anymore), progress has been halted since 2017. UPCA languished to its death. Dr. Thorsten Bausch has just said that “the UPCA would have to be amended in order to allow the UK to still become (or stay) a member. Even Margot Fröhlinger, who can certainly not be accused of being overly UPCA-sceptic, conceded that much…”

Is she still around at all? Fröhlinger’s name shows up just about nowhere anymore. She lied to people all around the world for many years, speaking the two famous lies about the UK and even worse. Bausch has also compared UPC promises to Berlin Airport, as we did last week. Here’s what he said earlier (yesterday evening): [via]

Yet perhaps it is possible that a court “common to the Contracting Member States” may also be common to the Contracting Member States and the UK, at least if and when the UK accepts that it is “subject to the same obligations under Union law as any national court of the Contracting Member States” to the extent that patents are concerned. And in any case, there is no doubt that where there is a political will, there will be a way. A report by the Policy Department for Citizens’ Rights and Constitutional Affairs, which was commissioned by the JURI committee of the European Parliament also came to the conclusion that „it seems not per se legally impossible that the UK can stay within the UPCA, even when not an EU Member State“. Of course, there are some ifs and buts, but the big message of this opinion work is clear – nothing is impossible.

But would a UPC including judges from non-member states, domiciled in part outside the EU and established by an international treaty not again be “an international court which is outside the institutional and judicial framework of the European Union” which the CJEU rejected in its opinion C1/09? Well, let’s leave this question for another day and consider instead the (political) realities of the day.

It seems to me that all adamant supporters of the UK’s participation in the UPCA should now better be busy canvassing for their respective most promising local candidate of Labour, LibDem, SNP or the Green party to avoid the worst, and I have no doubt that many of them will. But if they are unable to convince the majority of their countrymen that Brexit is not such a great idea and the Conservatives win the general election in December, then the odds are indeed that the UK will leave the EU on 31.1.2020. Which means, at least in my view, that the UPCA would have to be amended in order to allow the UK to still become (or stay) a member. Even Margot Fröhlinger, who can certainly not be accused of being overly UPCA-sceptic, conceded that much, and the literal wording of Article 1 leaves no other option, as I think.

[...]

Thus, the UK intends to stay part of the UPCA during the “implementation” (transition) period, which ends on 31.12.2020 according to the currently agreed version of the UK Withdrawal Agreement. But what will happen thereafter? Beyond this is subject to negotiations does not sound to me like a very strong commitment. And who knows which surprises the UK-US negotiations about a much desired Free Trade Agreement will still bring us. In view thereof, would it really be sensible for Germany to ratify the UPCA in early 2020, provided that the Federal Constitutional Court dismisses the constitutional complaint? In this case, the Mr. Ramsay and the UPC Preparatory Committee would resume its preparations, judges, including judges from the UK, would be appointed etc. – and just about when the court is ready, the UK might (have to) exit the UPCA again, namely if the “negotiations” alluded to by the UK representative fail. And then we have the salad.

I consider that it is exactly such a nightmare scenario that has prompted the German Ministry of Justice to state that Germany will ratify the UPCA “in a responsible fashion”. Which can only mean that we first need clarity about the political will in regard to the UPC from both the EU side and the UK side post Brexit (if Brexit happens at all – hope dies last), before Germany will (or at least) should deposit its instrument of ratification. Any other procedure would be pretty hazardous.

Therefore, I would now be bold enough to dare bet that the new Berlin airport will open before the UPCA enters into force. Just to recap: The opening of the BER airport was originally foreseen for 2011, which date has meanwhile shifted to 31.10.2020. Conversely, the UPCA was signed on 19 February 2013, thus I would not be surprised if we were to see the UPC’s opening around 2022, perhaps even later. It might still open earlier than Stuttgart 21, though, if this is a consolation for any one. The opening of Stuttgart 21 was originally planned for 2019, which date first shifted to 2021 and now to 2025.

There are already some comments of interest, but Bausch’s articles tend to be no worse than the comments (unlike his colleagues at that blog). “Concerned observer” called it a “balanced article on the UPC.”

He or she is absolutely right on point when asserting that a lot of coverage on this topic has been what China, the Democratic Party and then Trump dubbed “fake news” (in that order; the concept is not new). This is why we’ve spent so much effort responding to Team UPC’s lies over the years. To quote the whole comment:

It is sad to say that the UPC is a topic upon which one hardly ever sees balanced reporting. Without wanting to be too cynical, I have noticed that an awful lot of the “unbalanced” (ie speculative and/or presumptuous) reporting derives from quarters that have a direct financial interest in the success of the UPC project. Whilst this is perhaps to be expected, I find it extremely disheartening that those outside of such quarters (including individuals and organisations that only really have an enthusiasm for the IDEA of a unitary patent and court) tend not to recognise the “unbalanced” reporting for what it is. For example, my experience is that wildly optimistic (and presumptuous) predictions regarding the timing and content of the BVerfG’s ruling on the constitutional complaint have largely been reported / accepted without even the slightest suggestion of a raised eyebrow.

Looking back on earlier UPC-related articles on this blog, it strikes me that the strategy adopted by UPC proponents has been remarkably similar to tactics adopted by many modern politicians: namely, keep going with arguments that suit your cause even in the face of developments and/or overwhelming evidence which mean that your arguments do not hold water. The main argument that I am thinking of here is the alleged ability of the UK to participate in the UPC post-Brexit… where is has long been evident to me that the proponents of the UPC simply have no answer to questions relating to compliance with EU law (and, in particular, Article 267 TFEU and the principle of sincere cooperation). Given the refusal to engage with such questions, despite the alarming implications of those questions for the viability of the UPC system, I can only conclude that the strategy adopted by UPC proponents aims not at winning hearts and minds but instead at establishing a fait accompli that they hope the CJEU will be reluctant to dismantle… irrespective of the threats posed by the UPC to the integrity of the EU legal order.

Perhaps I can inject a note of realism here.

Firstly, the BVerfG has not yet decided the four EPO-related cases that have a higher rank in the 2019 list of cases to be decided by the 2nd senate. All of those cases were listed for decision in 2017 and 2018 (and two were listed for decision in 2016). Given their relevance to the case relating to the UPC, it would make sense for the BVerfG to decide the EPO-related cases first. Since 2016, of the cases assigned to Dr Huber, only between one and three appearing on the preview for a particular year have been decided in that year. Assuming that the BVerfG will decide the cases in a logical order, and at its customary rate, it is reasonable to conclude that even the prediction of someone as well informed as Dr Huber should be taken with a pinch of salt (ie as perhaps more of an optimistic than a realistic prediction). Thus, a decision within the first quarter of 2020 cannot be guaranteed.

Secondly, if Mr Johnson secures a majority in Parliament, it is safe to say that he is very unlikely to request either a further extension to the Article 50 deadline OR an extension of the “implementation period”. In practical terms, this outcome would significantly increase the likelihood of a “no-deal” Brexit, either in February 2020 or January 2021.

Especially given the glacial pace of the BVerfG, as well as the current position of the German government, does anyone seriously believe that the UPC will be up-and-running BEFORE January 2021? Last I checked, not even Mr Ramsey was that optimistic (http://patentblog.kluweriplaw.com/2019/11/28/if-german-complaint-is-dismissed-unified-patent-court-could-be-operation-early-2021/).

Thus, upon a realistic assessment, the chances of the UPC ever opening for business are not as high as some might (still!) be trying to lead us to believe. However, as you note, it seems that only pedants such as you and I worry about the legality of retaining the UK in the UPC system post-Brexit. I can therefore make a prediction relating to the UPC in which I have almost 100% confidence … namely, unless and until the constitutional complaint is upheld, the majority of the patent profession in Europe will continue to hold an unrealistic view on the prospects for the UPC. I await with interest to establish whether this prediction proves to be accurate.

If one counts the very earliest proposal of a UPC-like system, it probably goes back to 2005, i.e. about 15 years ago. We’ve spotted mentions as old as 13 years ago, but we know prior ones exist (just need further digging/researching). The way things stand, the EPO continues granting loads of IPs instead of EPs and courts throw these out — a similar situation to what happened in the United States and continues to this date.

12.03.19

‘Priceless’ Tickets to the EPO’s Back End and Team UPC

Posted in Europe, Patents at 5:29 am by Dr. Roy Schestowitz

These tickets don’t even name the price of the workshop

CIPA's ticket

Summary: CIPA’s and the EPO’s event (later this week) is more of the same; the EPO exists not to serve European businesses but a bunch of law firms and their biggest clients (which usually aren’t even European)

THE leak we've just published shows what goes on behind the scenes at the European Patent Office (EPO). The funny thing is, it would not have to be leaked had EPO not worked in the dark. António Campinos is very secretive; how many of his opaque decisions are open to outside scrutiny? Think about it…

“This is no laughing matter because these policies can break (or fail) Europe’s industry, which has lots of SMEs.”The U.S. Patent and Trademark Office (USPTO) does not gamble with its money the way the EPO does. It receives Federal budget and it has reports; it can also be sued (as habitually happens). Opaque selection of venues (like European award ceremonies) and people (like Breton as head jurist for such events) can be confronted by FOIA lawsuits. But not at the EPO.

“Judging by the program (London), it is — as usual from Research and Markets — patent maximalism, complete with the UPC nonsense.”The US is openly debating 35 U.S.C. § 101/Alice (biased debates nonetheless, but the public can see these and scrutinise, accordingly), whereas the EPO rationalises software patents in Europe privately, using false ‘economics’ from people who lack a technical background. This is no laughing matter because these policies can break (or fail) Europe’s industry, which has lots of SMEs.

Yesterday the EPO posted some more tweets about SME something. But we already know, based on leaks, that the EPO is run for (and by) large multinationals. It’s hardly European and patents granted to the US aren’t far behind (in number) Europe’s.

“At the cost of what? It does not say. So I filled in a mock registration (to see what SMEs would need in order to participate).”We’ve just noticed that the Dublin-based Research and Markets does European Patent Office (EPO) indoctrination, under the umbrella of “the European Patent System,” and markets this a year in advance. “This two-day seminar for Administrative Staff in the Patent Profession on how to competently prepare an application for filing before the EPO,” it says. “Providing an introduction to the European patent system and how to proceed with an European patent application an much more.”

“They’re conspiring to violate the EPC and push the UPC.”Judging by the program (London), it is — as usual from Research and Markets — patent maximalism, complete with the UPC nonsense. Suffice to say, that’s very bad for SMEs. Later this week the EPO will be in London alongside CIPA, which is a front group for patent zealots and trolls. They’re worse than hedge funds. The EPO retweeted this yesterday: “Come and join us and the @EPOorg at @TheCIPA in #London on 5 or 6 Dec. We will be providing an update on our latest and upcoming online service developments.”

At the cost of what? It does not say. So I filled in a mock registration (to see what SMEs would need in order to participate). There’s a special relationship between CIPA (major component of Team UPC) and Team Battistelli. Remember this photo op:

CIPA meeting with Stephen Jones
Stephen Jones (former IP Kat chief, after the founder’s retirement) standing next to Battistelli while lobbying for UPC

The above photo op is especially damning considering the context of it. They’re conspiring to violate the EPC and push the UPC. As “Proof of the pudding” put it in IP Kat comments yesterday (in relation to this):

An interesting question.

Article 2(2) EPC provides that “The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise”.

It seems to me that most EPC Contracting States, including the UK, view “subject to the same conditions” as meaning that the substantive conditions of patentability for an EP patent must be the same as those for a national patent.

There are clearly examples of EPC Contracting States taking different views on the level of harmonisation mandated by the EPC … and not just in connection with the definition of the relevant prior art (ie the grace period). But does that justify the UK ignoring its obligations under the EPC in connection with such a crucial provision as novelty?

I guess that how one answers that question will depend upon how comfortable one is with the EPC becoming a Convention that is honoured more in the breach than the observation… of course bearing in mind that the EPC provides the foundations for the UPC Agreement.

Well, the UPC Agreement (UPCA) is failing because the EPC is routinely being violated. The EPO has become totally shameless about it. As recently as yesterday the EPO bragged about giving illegal patents using “latest trends”. It’s like this almost every day.

“Well, the UPC Agreement (UPCA) is failing because the EPC is routinely being violated.”“Millions of people use Espacenet,” said the EPO in yesterday’s tweet. “How come less than a handful use the forums? They probably just exaggerate/make up the figures,” I responded. These forums are truly pathetic. “Now it’s got new features and functions,” the EPO said, “Haven’t seen them yet?”

We very much doubt MILLIONS of people browse such documents. There aren’t even that many patent lawyers in the whole world. Then again, the EPO regularly lies to everyone. It’s 10:30 here already, so the EPO must have posted some more lying tweets about “SMEs” by now. Gotta run!

New EPO Leak Shows That the Rumours and Jokes Are Partly True and We Know Who ‘Runs the Show’

Posted in Europe, Patents at 1:46 am by Dr. Roy Schestowitz

Those remnants of Battistelli

EPO change

Summary: Europe’s second-largest institution is so profoundly dysfunctional, a reprehensible kakistocracy of tribalism, money-grabbing career-climbing autocrats and possibly major fraud; today’s leak looks at what motivated and enabled the formation and latest incarnation of “Team Campinos”

THE European Patent Office (EPO) is work in progress. An experimental neoliberal laboratory of outsourcing, privatisation, union-busting and of course… immunity. “Get back to the factory, you working class pleb,” said the master to the ‘underclass’. Certainly feels like the Renaissance… of feudalism.

Welcome to the future of work (and workplaces).

New organisational structure for the holidays? You bet.

As we noted back in June, the EPO very quickly transformed into something akin to a political party (leader brings family, even literally in the age of Donald Trump and Boris Johnson!)

Team Campinos

That’s “Team Campinos” until October 2019.

Notice there are lots of former colleagues of António Campinos. Here’s one way to put it (Team Campinos nepotism):

Team Campinos nepotism

And here’s Team Campinos from November 2019 onwards:

Team Campinos November 2019

Notice the changes, in particular w.r.t. past associates of Campinos.

Whose decision was it to enable this? Let’s take a look. Spring 2018 (click to enlarge):

EPO Working Group spring 2018

It certainly looks like some kind of organisatinal coup, using procedures — likely in violation of the EPC and its spirit — to gradually oust dissent, as leaks published earlier this year very well showed. Many people are already working at limited time/capacity; they can be ousted without even a firing (or firing a single shot).

Here’s how it was presented to the staff in the EPO intranet (wishy-washy hogwash):

EPO reorg under Campinos 1

EPO reorg under Campinos 2

EPO reorg under Campinos 3

EPO reorg under Campinos 4

“As usual, don’t expect the media (what’s left of it, including blogs of the patent microcosm) to report on any of this.”We’ve been hearing all sorts of things over the past year and a half. A common Office joke goes, Bergot and her husband run the Office. To some insiders it certainly feels or seems like the employer is nowadays run by the supremely under-qualified (wife of Battistelli’s old colleague) Mrs. Bergot rather than Campinos. We’re not saying it’s true (or false), we’re just relaying what the grapevine insinuates. This is insane if true. Bergot’s past makes this almost unbelievable. we have loads of leaks and information about her, but maybe we’ll save those for some other time (those are far from flattering). As usual, don’t expect the media (what’s left of it, including blogs of the patent microcosm) to report on any of this. There’s some kind of deliberate ‘media blackout’ and motivations for it were explained here before. I saw newsrooms spiking EPO stories and even removing them after they had been published (due to machinations behind the scenes). Other situations such as these often involve sexual abuses of very high-profile people and sometimes pedophilia (implicating people in positions of power), as reported in the media in recent years (after years of suppressions). Europe needs to hold its institutions accountable and impose transparency on them; instead it gives them immunity and thus impunity freewill.

12.02.19

13 Years of UPC Promises

Posted in Deception, Europe, Patents at 12:22 am by Dr. Roy Schestowitz

Summary: The anatomy of UPC ‘fake news’ or lobbying tactics along the lines of self-fulfilling prophecies and false predictions

UPC in 2007

2007 (EU): coming in 2012! Pinky promise!

UPC in 2011
2011: Richard Stallman sounds the alarm

UPC in 2011, CIPA

2011 (CIPA): it’s coming, it’s coming! Yes, it’s true, we support software patents (and UPC)

UPC in 2012, Sept.
2012 (EU Commission): coming soon! Real soon!

upc-2012-sept

2012 (law firm) slight delay. Don’t panic. Coming soon.

UPC in May 2014
2014 (UK-IPO): coming soon

UPC in 2014

2014 (Bristows): coming soon (next year)

UPC in 2015

2015 (EPO): Unitary Patent ready to go

2020 is only a month away.

12.01.19

Is Water Wet?

Posted in Europe, Patents at 11:29 pm by Dr. Roy Schestowitz

The EPO's President du jour. Buzzword. Is this a software patent?

Summary: The criteria for patent eligibility reduced only to this question: will allowing these patents increase ‘production’ (number of patent grants)?

The EPO’s President Admits He’s Illegally Granting Software Patents (CII, 4IR, IoT, AI and Blockchain Mean Software Patents at the EPO)

Posted in Europe, Patents at 11:15 pm by Dr. Roy Schestowitz

EPO on blockchains

Summary: The EPO’s chief liar is openly and proudly promoting software patents using buzzwords and hype waves (and mysterious acronyms that are rather meaningless but spread by the media in exchange for money received from the EPO)

THIS OLD video of European Patent Office (EPO) President António Campinos is awesome for a lot of reasons. He’s so shamelessly promoting software patents in Europe and admitting so in public. It’s illegal, but what does he care about the law? He had only been at the Office for a few months at that point, approximately a year after a scandal at his previous employer.

“…he’s not a programmer but a liar and he still pushes the lie of 3 examiners being involved (this has long not been the case; see CQI for instance).”So the President speaks of “inventors and programmers” (yes, programmers), citing “changes and trends” (because it’s all about buzzwords and hype waves), admitting that “blockchain inventions are computer-implemented inventions” (see above; this is what EPO calls software patents), and reassuring about 300 people in the audience (the patent microcosm) that they’re pressuring examiners to grant (“competencies”) these illegal patents in violation of the EPC. It is a pretty damning video; he’s not a programmer but a liar and he still pushes the lie of 3 examiners being involved (this has long not been the case; see CQI for instance).

He is meanwhile meddling (i.e. pressuring judges) in a Board of Appeals case regarding the matter.

Maximalists Cherry-Picking the So-Called ‘Corbyn’ ‘Leak’ for Their Patent Agenda While the US Lobbies Britain for Software Patents and Worse

Posted in America, Europe, Law, Patents at 3:30 am by Dr. Roy Schestowitz

Not Jeremy Corbyn’s and not a leak, either

Some buzzwords for algorithms
Let’s examine the originals. And more importantly, let’s look at the right part (about a dozen pages out of nearly 500 pages) and what it tells us about software patents in Europe as seen by the US, where 35 U.S.C. § 101 restricts the USPTO like the EPC is supposed to restrict the EPO (they use buzzwords as loopholes and workarounds)

Summary: A quick look at what last week’s media coverage may have missed and what patent maximalists don’t want to tell us about confidential trade-related documents

THE European Patent Office and US Patent and Trademark Office are both interested in software patents. What’s not to like? More income!!! António Campinos (like Battistelli) continues to undermine the EPC and the EPO nowadays brags about getting the US to adopt software patents using a bunch of nonsense like “hey hi” (they both use the same tactics, as we’ve shown here many times before).

The ‘leaks’ often attributed (in last week’s media reports) to Corbyn were not actually his or his party’s. They had been posted to Reddit weeks ago. They were published under the title “Great Britain is practically standing on her knees working on a trade agreement with the US” (seems apt).

We’ve made local copies of these files for longterm preservation purposes. There are six PDF files in a compressed archive.

Here’s the relevant stuff:

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

UK-US policy leak

Points 25-26 in page 124 are of much relevance. Is the US pushing for software patents and patents on life/nature in the UK and Europe as a whole? It certainly seems so. Those parts deal mostly with patent scope. USTR is pushing corporate agenda of Big Pharma and other large multinational monopolists.

“The ‘leaks’ often attributed (in last week’s media reports) to Corbyn were not actually his or his party’s.”Let’s look at what patent maximalists and UPC boosters like AstraZenecaKat aren’t telling us. As we said last week, the United States found itself baffled by UPC moves of the British government and the issue was raised days later by AstraZenecaKat, only to attract a bunch of interesting comments that we quoted here yesterday. Revocator wrote:

I’ve read the papers (well, the IP-relevant bits), and there was one tidbit regarding the US position on the grace period that intrigued me hugely. Namely, the US negotiators appear to have noted that SOME EPO member states do have such a grace period. The British seem to have essentially retorted that those countries may be small and irrelevant enough to get away with that, but that the UK would jeopardize its position within the EPC if it did the same. Now, does anyone know which EPC countries do that (if any)?
On another, entirely different subject, left unmentioned by the IPKat, it comes as no surprise that the US negotiators were particularly insistent in registering their displeasure with the EU’s PGI system…

“Revocator,” MaxDrei replied, “could it be that the USA is eying the 10 year term petty patent/utility model GBM system in Germany, with its 6 month grace period? After all, in the USA they call Registered Design rights “Design Patent” rights so it’a easy for them to suppose that GBM’s are utility patents with a grace period and the EURD is a 25 year patent with a grace period.”

“In summary, the US ‘bullies’ an already-embattled Britain (due to that controversial referendum) into granting the US corporations endless powers, protectionism and codified monopolies.”I’ve quickly read all the above. There’s no need to rephrase things. It’s pretty clear as it is. In summary, the US ‘bullies’ an already-embattled Britain (due to that controversial referendum) into granting the US corporations endless powers, protectionism and codified monopolies. They’re bargain-hunting. This is what happens when one negotiates out of position of considerable weakness. As the old saying goes (or hashtag), “Well Done Brexiters…”

Donald Trump lobbied for Brexit (before and after becoming President, before and after the referendum as well) and now he’s eager to pocket the UK. Media has mostly focused on the US-centric privatisation of the NHS, casting aside almost everything else.

11.30.19

Management of the EPO is Afraid of Scientists and Judges

Posted in Europe, Law, Patents at 8:22 am by Dr. Roy Schestowitz

Cuno TarfusserLast year: It Wasn’t Judges With Weapons in Their Office, It Was Benoît Battistelli Who Brought Firearms to the European Patent Office (EPO)

Summary: Lawlessness prevails at Europe’s second-largest institution as the managers (i.e. people with connections, not skills, some with notorious military background) try to suppress both science and justice (much like the Trump administration across the ocean); this has become a parasites’ paradise and a bottomless pit for graft (theft)

THOSE who follow our series about Thierry Breton will be very well aware that Breton accomplished most things because of people who knew rather than things he knew. He left a destructive tail behind him (many dead people, too) and there are lots of parallels/overlaps with the EPO, as we noted in part 17 yesterday.

“Not many people were enraged; sites/sides owned and controlled by patent maximalists viewed Battistelli as a liability and were happy to accept just about anyone but Battistelli (even if it’s another Battistelli).”Battistelli managed to rig the process and spurn the judge (Cuno Tarfusser) who wanted to become President of the European Patent Office (EPO), instead ‘fixing’ the appointment process for a longtime friend and compatriot, António Campinos. Not many people were enraged; sites/sides owned and controlled by patent maximalists viewed Battistelli as a liability and were happy to accept just about anyone but Battistelli (even if it’s another Battistelli).

“EPO management carries on as if nothing happened.”Things have not changed at the EPO and a strike is likely imminent (5 out of 6 workers voted in favour a couple of days ago). We are grateful to each courageous person — usually examiner — who votes for a strike. The EPO needs to be fixed to avoid total collapse and great economic harm to Europe (the US is a cautionary tale in this regard).

EPO management carries on as if nothing happened. A day after the vote for a strike it was ‘business as usual’ and retweeted by EPO on Friday was this UK-IPO tweet that said: “Come and join us and the @EPOorg at the @TheCIPA in #London on 5 or 6 Dec. We will be providing an update on our latest and upcoming online service developments.”

“All they want is litigation, litigation and more litigation.”So EPO management is once again mingling with patent and litigation zealots instead of scientists. CIPA is a very integral part of Team UPC, lobbying our politicians by endlessly lying to them. All they want is litigation, litigation and more litigation.

There’s meanwhile that rekindled ‘debate’ (fake news) about UPC, manufactured by CIPA’s friends at Managing IP. Don’t fall for it. They’re pestering judges in Germany, as usual. These people couldn’t care any less about the law and about the Constitution. They’d burn the Magna Carta on Bonfire Night if they could.

“The latter two men are both parked elsewhere at the moment; one heads a law school (yes, a criminal heading a law school!), whereas the second is meanwhile creating a private firm in Zagreb.”The UPC will never exist, but in the meantime the Office relies on a panel of terrified judges, whose colleague was driven close to insanity after years of bullying by Battistelli and his Croatian Mafioso. The latter two men are both parked elsewhere at the moment; one heads a law school (yes, a criminal heading a law school!), whereas the second is meanwhile creating a private firm in Zagreb. What they’ve made of the EPO’s tribunal is a sordid mess in Haar. The judges there have repeatedly complained — even in public — that they lack autonomy/independence. But their decisions, likely made in violation of the EPC (not the judges’ fault!), are still being adopted as de facto EPO practice. Just promoted in Mondaq (shortly before the weekend) was this article by HGF Limited (law firm) regarding a Technical Board Of Appeal decision:

Inherency is not relevant to the novelty of a “purpose-limited product claim” filed in accordance with Article 54(5) EPC.

The EPO’s Technical Board of Appeal 3.3.09 in T0694/16 has clarified that claims to purposively selected patients for treatment with a known drug is novel over the prior art treatment of a broader and/or overlapping patient group with the same drug.

If there is a functional relationship between one or more biomarkers and responsiveness to treatment with a drug, and the claim defines the drug for use in the treatment of a patient defined by said biomarkers, then the presence of this functional relationship confirms that the purposive selection of the patients is an essential technical feature qualifying the claim(s), and this must be taken into account when assessing novelty.

In a separate thread from the latest one that concerns the EPO “The Convention Watchdog” wrote about the Boards Of Appeal (BoAs):

Labelling the co-applicants approach an EPO approach appears somewhat misleading. Requiring that co-owners of the priority right exercise their right in common has been widespread practice in the member states to the Paris Convention outside the US and is present practice in the EPC Contracting States as exemplified by the recent decisions in the UK HTC v Gemalto , [2013] EWHC 1876 (Pat), at pt. 131 f., confirming Edvards v Cook, [2009] EWHC 1304 (Pat), at pt. 99, and in Germany, BGH – Drahtloses Kommunikationsnetz, GRUR 2019, 271, at pt. 60ff. The co-applicants approach is an expression of the general legal principle that jointly owned rights have to be exercised in common. It protects the co-owner of the priority right against the exploitation of this right without his participation.

There’s an upcoming BoA case regarding software patents in Europe and Campinos already meddles in the case to get the ‘desired’ (by him and patent maximalists) outcome. The EPO is so broken that it’s not even sad; it’s almost infuriating as they also seem to be defrauding the public and their staff.

Imagine what would happen if Tarfusser, a former International Criminal Court (ICC) judge, was given the top position. How many EPO officials past and present would face the court and be arrested?

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