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01.14.20

It’s Only Factual and Truthful to Point Out That About Half of the EPO’s Management Committee Are From the President’s Nation (and Many Are Underqualified Friends of His)

Posted in Europe, Patents at 6:51 pm by Dr. Roy Schestowitz

The (dual) French-Portuguese national only exacerbated the nepotism stigma

French EPO

Summary: The patent-granting extravaganza of what a reader and contributor of ours likes to call “Club Med” will result in great pain (not just for the Office but for Europe as a whole); pointing out who’s to blame (the culprits) is an exercise in practicality

THIS morning we quoted an anonymous comment that spoke of “hispanoportofrench friends” of the President of EPOnia. It was hardly racist or bigoted. It was a factual, accurate observation.

“When assessed outside the EPO (where judges are still being terrorised) all those abstract patent are void, null and bunk…”There’s lots to be criticised at EPOnia, even on purely technical grounds (what we did until 2014). Here’s one new example. Having highlighted this latest instance of advocacy for software patents in the European Patent Office (EPO), Benjamin Henrion said there’s a “WIPO deadline for comments [which is] c14 feb,” quoting the fragment “Computer-assisted inventions and their treatment under patent laws have been the subject of lengthy discussions in many countries around the world” from this document [PDF] that alludes to “computer-assisted inventions” (like computer-generated stuff or patents that are granted on such generative processes).

When assessed outside the EPO (where judges are still being terrorised) all those abstract patent are void, null and bunk; No honest law firm would advise clients to pursue any, knowing the EPC and 35 U.S.C. § 101 in US courts (the USPTO sees many of its recently-granted patents perishing there).

“It’s a money-grab. It’s a bubble. It will implode.”Team Campinos/Battistelli is a clueless bunch of non-scientists and all they seem to ‘understand’ is that they want as many patents to be granted as possible (and as quickly as possible because sooner or later stakeholders will realise the futility of European Patents). It’s a money-grab. It’s a bubble. It will implode. They won’t return their bonuses when that happens.

Not too long ago “MaxDrei” could be seen responding to an apparent EPO insider who is sick and tired of EPO nepotism, kakistocracy, and lies. He said:

I regret the reference in that last contribution to “hispanoportofrench friends”. Reflect on the point that the poster known as “Attentive Observer”, perhaps the most vociferous critic ever of the (French) immediate past President, might also be from that part of the world. Please don’t imply that there is one bucket in which all “hispanoportofrench” people fit. The distress is when an admirable, expert and socially valuable institution (such as a large hospital or Patent Office) becomes victim of a coup by a self-serving and incompetent managerial class that is interested only in pleasing its “make hay while the sun shines” ignorant, blinkered and greedy investor employers.

That said, I seriously regret a loss of balance in the EU, resulting from the withdrawal of the UK from Europe. An OD or a TBA composed of three active members is perhaps the safest way to get to sound decisions. Any “rogue elephant” can be guided onto the right path, but only if there is an elephant one on each side of the rogue.

In the EU, the Big Three were, until recently, DE, FR, GB. With the departure of GB, there is increased likelihood of the EU taking a succession of wrong turns, thereby bringing about the demise of the whole thing

Then there’s this response: “You are so right Maxdrei. All hispanportofrenchs do not belong to the same bucket. By the way I am and EPF too. Unfortunately (luckily?) most of us are not among his ‘friends’ saving the world. We are rather easy to spot: you can find us in front of a PC, trying somehow to make the EPO functioning, against all odds. Good luck everyone!”

“One reader and contributor of ours likes to call the collective “Club Med”.”That stigma about Mediterranean counties is an extension of what used to be a stain on France’s reputation (by admission from several French politicians on the record). One can debate if Iberian Portugal counts as Mediterranean (it faces the Pacific Ocean) and whether Corsican Battistelli is Mediterranean as he lives and works up north (Paris area and now Strasbourg). One reader and contributor of ours likes to call the collective “Club Med”. The term “hispanportofrenchs” seems to have combined some of the familiar faces in top EPO management, more so than ever after Campinos brought lots of buddies.

Stranger Than Fiction: Team UPC’s Mental Condition

Posted in Europe, Patents at 5:41 pm by Dr. Roy Schestowitz

2015: UPC coming next year. Closes eyes; 2020: I've already said. Next year.

Summary: Team UPC’s delusions continue to unmask UPC proponents (in 2020) as totally and entirely detached from reality

THE people at the top floors of the European Patent Office’s (EPO) building in Munich must be getting a little nervous. Battistelli‘s career is practically over, António Campinos sees patent quality plunging, and he is meanwhile lobbying for software patents in Europe, seeing that — as per reports from JUVE — demand for European Patents is decreasing. By ignoring the law and kicking aside 35 U.S.C. § 101 the U.S. Patent and Trademark Office managed to fabricate ‘production’ (more monopolies granted), but as per this week’s news (more in Daily Links), SCOTUS continues throwing all these patents to the curb, as do Federal Circuit judges and the Patent Trial and Appeal Board (PTAB). The trend has been rather clear; a very small proportion of patents tested in courts manage to withstand factual scrutiny (witnesses, experts, testimonies etc.). It’s considered a crisis of confidence (in patents) and certainty (in litigation).

“It’s considered a crisis of confidence (in patents) and certainty (in litigation).”Patent law firms see the writings on the wall, so they’ve attempted a sort of entryism in the courts system (people like Judge Rader). But it won’t work, it only serves to alienate people and Rader’s court was consistently overturned by SCOTUS. As Benjamin Henrion put it earlier today, “if Boris [Johnson] has the CJEU as a redline, he will have a hard time defending UK staying in UPC. Cameron was heavily lobbied by GSK to remove the CJEU as having the last word on patent law. In the US, the match SCOTUS vs CAFC shows those patent courts are deviant: 8-0 !”

CJEU would be a key part of UPC, as envisioned/codified in UPCA. Cameron’s UK stance on that matter may be revisited in the future (we’ve heard stories).

So in a matter of about a fortnight the UPC might be squashed for good. But never mind facts; the EPO certainly doesn't let facts get in its way. We find it unsurprising but still absolutely hilarious that Bristows‘ Richard Pinckney has just published “EPO confirms it is ready to grant unitary patents” (I can also confirm I am ready to receive a trillion dollars. I confirm, so…)

“Berlin would not go ahead, irrespective of the BVerfG’s decision, if there’s Brexit. It looks like imminently there will be.”No words can describe how those posts from Bristows make the firm look. Even Team UPC ridicules Bristows. These people are beyond delusional; they’re mentally defunct.

Bristows admits that “[a]lthough the EPO’s report of the meeting refers to hope that the BVerfG’s decision will allow Germany to ratify the UPC Agreement and calls for the speedy implementation of the UPC system, it does not refer to the potential effect of Brexit on the system.”

Berlin would not go ahead, irrespective of the BVerfG’s decision, if there’s Brexit. It looks like imminently there will be Brexit.

Funnily enough even a loud Team UPC proponent has just tweeted: “DE Constitutional Court: Acc to the Court, of the 37 cases listed to be dealt with by the 2nd Senate in 2019, 10 were resolved. #UPC #ListOfLies Bundesverfassungsgericht – Jahresvorausschau 2019 https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2019/vorausschau_2019_node.html …”

“Team UPC needs to screw its head back on if it wants to have any credibility left when nobody even mentions the UPC anymore.”Yes, “ListOfLies”…

Way to alienate the court…

“Don’t despair,” I responded. “UPC is “Ready to Roll” because Team Campinos bought some wine and stored it at the top floor’s cellar. Bristows says “EPO confirms it is ready to grant unitary patents”…”

Team UPC needs to screw its head back on if it wants to have any credibility left when nobody even mentions the UPC anymore. In 2020, saying “UPC is coming” is like saying that “Saddam has weapons of mass destruction” (in hindsight it was a massive liability to claim so). Several law firms will have their reputation tarnished and clients upset (over false promises) when all this UPC jingoism turns out to have been a lie, orchestrated principally to make “sales” (based upon wrong assumptions).

Systematic Abandonment of the Independence of Judiciary at the EPO (or Collective Amnesia)

Posted in Europe, Law, Patents at 7:07 am by Dr. Roy Schestowitz

Derk Visser at EIP

Summary: The ‘constitution’ or the convention upon which the EPO is based (known as EPC) is routinely violated and nobody seems to care anymore; the EPO governs itself and conducts itself without as much as a fundamental legal text

European Patent Office (EPO) President António Campinos has done absolutely nothing to undo Battistelli‘s attacks on the autonomy of EPO judges. Nothing! To make matters worse, Campinos is already meddling in upcoming/ongoing cases, including one that shapes EPO policy on software patents in Europe. So one might say that Campinos is no different — or potentially worse — than Battistelli.

Isn’t it fascinating that EPC experts aren’t saying a darn thing anymore? Does that seem normal to them? In the age of Donald Trump have we buried the fundamental tenants of “separation of powers”?

In the blog of a company that pays him, the famous Derk Visser (author of a famous book) and the EPI (they like to make it all lowercase) push for more patent maximalism through the besieged boards that are illegally bullied by the Office (an EPC violation). Yesterday he published “When is a sub-range novel?”

The December issue 4|2019 of the journal epi Information contains four interesting contributions to the discussion on the novelty test for sub-ranges as used by the EPO.

The EPO has a special novelty test to determine whether a claimed numerical sub-range of a known broad range is novel over the known range. A sub-range must comply with each of the three criteria of the test. The criteria are, that the sub-range (i) must be narrow compared to the broad range, (ii) be far removed from known examples within the broad range, and (iii) is not an arbitrary specimen of the prior art but another invention (purposive selection, new technical teaching).

The test was formulated in 1985 by the technical board of appeal in decision T198/84 and subsequently used broadly within the EPO. Recently, several articles have criticized the test. In 2013 Thomas Leber of the EPO regarded compliance of the three criteria with the EPC questionable (see JIPLP, vol. 8, issue 7, July 2013, pages 561-565). More recently, I argued that the three criteria are incompatible with recent EPO case law on novelty (epi Information, issue 4|2019, page 27-33).

The latest edition of the Guidelines for Examination in the EPO, which entered into force on 1 November 2019, has removed the purposive selection criterion from the test (see section G-VI, 8(ii)). However, the latest edition of the book Case Law of the Boards of Appeal of the European Patent Office, 9th edition, published July 2019, still mentions the three criteria of the test (see chapter I.C.6.3.1). In addition, the book mentions a large body of contradictory case law about the purposive selection. Roel van Woudenberg argues in his recent article, that the purposive selection criterion should be kept in the test, as being consistent with the disclosure test used for novelty (see epi Information, issue 4|2019, page 34-39).

[...]

The above course of events shows that only because the President of the epi had written a letter to the EPO, did users of the EPC learn about the development of the case law and the adoption of the two-part test by most boards of appeal. If the President of the epi had not submitted his request, the users of the EPC would still be unaware of the development of the case law and, as a consequence, would still be uncertain about what test for novelty of a sub-range to use in appeal cases.

“The latest edition of the Guidelines for Examination in the EPO,” as Derk Visser calls it, contains serious violations of the EPC, e.g. allowing illegal software patents under the guise of “HEY HI” (AI). Derk Visser should understand this better than anyone, but maybe he’d rather look away. It helps sell more copies of his book.

These patent maximalists aren’t honest. They’re profit-driven and they know what kind of system brings them more money. For instance, they like to tell us all that rich countries are rich because of patents but in practice they reverse cause and effect. It’s because they’re rich they come up with protectionism and monopoly mechanisms (to maintain inequality, imperil competition). The EPO does so-called ‘studies’ to perpetuate these lies. They (mis)use words like “property”, “assets”, “right” and “invention”…

Now, citing the famous Derk Visser, whom we recently mentioned here (like a month earlier and past years), IP Kat‘s patent maximalist Rose Hughes (there are a few of them who 'took over' the feline blog in recent years) does a “me too”. It is mere repetition. Does the European Patent Institute (EPI), a front group of litigation companies, control the EPO’s decision-making process nowadays? This is insane. But the connections between EPI and EPO go quite a long way back (like exposing whisleblowers and quelling dissent).

Here’s what the AstraZeneca attorney wrote:

According to the European Patent Institute (EPI), the law on the novelty of selection inventions is unclear, given the diverging opinions of the Boards of Appeal. In view of this purported lack of clarity, the EPI president (Francis Leyder) wrote a letter to the President of the EPO requesting the President to refer the issue to the EBA. The President of EPI cited a number of recent Boards of Appeal decisions that did not apply the “purposive selection” criteria (including T 1233/05, T 1131/06, T 230/07, T 1130/09, T 2041/09, T 378/12 and T 1404/14) and a two recent decisions that did (T 66/12 and T 673/12). In the view of EPI “[i]t is clear from the above that there are clearly two incompatible lines of Board of Appeal decision as to what are the criteria to be used in deciding whether a sub-range is novel”. The President of EPI therefore suggested a referral from the EPO President to the EBA, that might ask the following question:

“What are the criteria to be used in assessing the novelty of a claim where the allegedly distinguishing feature of the claim relative to a prior art document is a sub-range of a broader range disclosed in that prior art document”.

[...]

It seems that proponents of a referral with respect to selection inventions can now only hope for a referral by a Board of Appeal (Article 112(1) EPC). Indeed, EPI urges parties in appeal proceedings who find themselves involved in a case where the use or not of the “purposive selection” criteria is influential to the case, to request the Board to refer the issue to the EBA. The opposing view is that a referral is not necessary, as the Boards of Appeal do seem to be following the approach now set out by the guidelines. Indeed, Roel van Woudenberg could be said to be pushing the issue merely because he disagrees with the removal of the purposive selection criteria (as argued his article cited by EPI).

Selection inventions have always been a hotly debated issue. In another article cited by EPI, authored by Derk Visser, it is argued that all three criteria listed in the guidelines are inconsistent with recent case law on novelty. As with second medical use inventions (another form of selection invention), critics are keen that an inventor should not “get something for nothing” by salami slicing (or as some-would have it, “sashimi slicing”) the prior art. The boarder question surrounding the EPI recent request for a referral on sub-ranges is whether the EPO is currently striking the right balance on selection inventions. What do readers think?

As usual, comments are a tad better (for the few who still comment there or have their comments approved). MaxDrei would be better off pointing out that EBA at EPO lacks independence now, by its own admission. It’s compelled to allow violations of the EPC by the Office. But he tackled this from another angle:

Robin Jacob has been known to advise audiences that “We can learn a lot from the Americans. Watch carefully what they do. And then make sure not to make the same mistake that they did.”

Observing what the Supreme Court of the USA does to patent law, one might think that, over here, a reference to the EBA can sometimes be premature.

As here, I think. The case law of the EPO emerges like Darwinian evolution. I mean, survival of the “fittest” line of legal logic. Is that not how the best EBA case law has emerged, over the last 40 years? It will do so here, I would think.

Sometimes patience is called for. Given time, things will all work out for the best. Meanwhile, our advocacy skills will decide which of the rival lines will prevail. For me, the “seriously contemplate” test can be reconciled with the Gold Standard, and makes a lot of sense.

The EBA and the other boards (BoAs) still lack their independence. Even with the UPC in its deathbed we remain stuck with courts that don’t have the ability to properly enforce the EPC and nobody talks about it anymore (IP Kat in 2020 has no connection to IP Kat of 2015. Different people!), so we ought to change that.

The next comment, “In reply to MaxDrei,” says, “I think that the proponents of a referral have a different conceptual view of law, namely as a system where there is some correct answer “out there” to any legal question (that just needs to be divulged by the judges, the Enlarged Board in this case). This correct answer is then not affected by the pleadings of the parties or our advocacy skills, such that there is also no such thing as a premature referral. Any delay just increases legal uncertainty for parties (and EQE candidates, perhaps), in this view. The epi President indeed uses “lack of clarity” a few times in his letter. Perhaps the proponents of a referral have a somewhat Dworkian view, whereas the wait-and-see attitude of the EPO fits with the Hartian view.”

This “lack of clarity” nonsense is used routinely by the anti-35 U.S.C. § 101 lobbyists in the US. So-called Section 101 ‘reform’ is a joke. Coons et al took bribes/money from litigation firms and have attempted since 2017 — always in vain — to sell laws for those who bribed them. It’s corruption. EPI just does more of the same thing here.

There are a couple more follow-ups there this morning, including mentions of evergreening:

Thanks to egna for that suggestion of a contest between Dworkian and Hartian schools of thought. I must say, that had not occurred to me but I daresay he has his finger on the point.

egna also flags up the difficulties faced by EQE candidates. Quite right too. But in the greater scheme of things, we are talking about the rather short 18 month period covered by Art 54(3) and industry uncertainty about prior art generated within that brief period. That’s not the largest source of legal uncertainty in patent law in EPC land, is it?

Personally, I think the bigger mischief lies in deciding obviousness according to a rubric written differently in the Supreme Court of each separate national jurisdiction of the 38 EPC Member States. Why can’t they all accept the established case law of the Boards of Appeal of the EPO, as they do (more or less) already on other repercussions that derive, directly and unambiguously, from acceptance the EPO’s “Gold Standard”.

Well that’s indeed the thing, isn’t it, Attentive. Consider the skilled person, interested in the “disclosure” of a document, wanting to milk it for everything derivable from it. The Gold Standard limits the “disclosure” to that which is “derivable” directly and unambiguously, from the document. But the imaginary addressee has at its disposal, to assist in the task of deriving stuff, all the common general knowledge that can be imputed to the hypothetical skilled person. Under those conditions, what the skilled person is deemed to seriously contemplate during the contemplation of the document can be seen as within the ambit of that which the skilled person derives, directly and unambiguously, from the document.

Or, to put it another way, when one deems the skilled person to be the possessor of an enormous reservoir of common general knowledge, one necessarily imputes to that imaginary being subject matter that it cannot help but “contemplate” seriously and inevitably, when performing the task of deriving disclosure from the document.

Or, to put it another way, is not the “implicit” disclosure and what the reader will “seriously contemplate” two ways of expressing much the same thought?

After all, we here in Europe do need a pragmatic solution to the “Art 54(3) art” problem which balances the need for fair protection, as between the earlier and the later Applicant, with reasonable legal certainty for the public. The AIA solution in the USA, in making all 54(3) art available for obviousness attacks, fails that test by giving too much power to the first filer. Rendering nugatory any 54(3) attacks on later filings awards too much protection to the later filer, and enables anti-social evergreening by bulk filers. A golden middle way is needed.

Going back to the whole “lack of clarity” nonsense, we’ve just seen more of that from Bloomberg’s Decker. It’s that latest spin by the patent maximalists, in relation to this new article about SCOTUS not wasting time on fake patents such as software patents. Decker decided to spin it like this: “Solicitor General in both Berkheimer and Hikma v Vanda (a method of treatment case) had said SCOTUS had created confusion over 101 but neither was good venue, perhaps because CAFC had upheld some claims in each case. Athena was suggested as an alternative.”

The Solicitor General advised against SCOTUS revisiting the issue. We covered this before. Benjamin Henrion’s response was: “SCOTUS Justices on Monday also rejected appeals to clarify the rules regarding software patents. The Supreme Court’s action leaves it to Congress to resolve an issue that’s created a legal gray area for such discoveries…”

No, that has nothing to do with Congress, but on goes Decker by tweeting: “The three software cases are HP v Berkheimer (scotus had asked for SG a year ago; SG said perhaps Athena a better area); Garmin v Cellspin and Power Analytics v. Operation Technology.

The Solicitor General (SG) actually took an OK position. And nothing is going to change. Coons et al haven’t made progress since 2017. Coons et al are hardly even mentioned by the media anymore.

Going back to Europe, nothing has changed at the EU/EP since summer. They made a statement on European Patents which pertain to and cover life/nature. They oppose these.

Recently, the EPO entertained the possibility of allowing automatically-generated patents, but perhaps foreseeing the chaos this would entail it ‘bailed out’ (albeit there’s an appeal on its way, based on press reports).

Earlier this week SS Rana & Co said:

In a landmark ruling, the European Patent Office (EPO) has rejected two patent applications[1] wherein request was lodged with the EPO for designating machine (Artificial Intelligence) as an “inventor”[2].

The ground cited for rejecting the aforementioned patent applications is that the patent applications did not meet the requisite requirement as enumerated under the EPC that an inventor designated in the application should be a human being, not a machine.

The above artificial intelligence inventor namely, “DABUS” has been in news ever since patent applications were filed with the EPO on behalf of DABUS. DABUS has been invented by Dr Stephen Thaler, Founder & Board Chairman at Imagitron, LLC.

But the EPO still allows illegal (as per the EPC) patents on software provided they’re wrapped up as “HEY HI” and that’s a very serious problem. As recently as this week KEI explained this whole “HEY HI” thing to the USPTO when it said: “In Europe the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist. The second option, that of giving authorship to the programmer, is evident in a few countries such as the Hong Kong (SAR), India, Ireland, New Zealand and the UK. This approach is best encapsulated in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states: “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” Furthermore, section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. The idea behind such a provision is to create an exception to all human authorship requirements by recognizing the work that goes into creating a program capable of generating works, even if the creative spark is undertaken by the machine.” (more on that in the upcoming installment of Daily Links).

The Media’s Obligation is Not to Repeat the Lies of EPO Management, But Money Changes Things

Posted in Deception, Europe, Patents at 6:32 am by Dr. Roy Schestowitz

“There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the government.” –Benjamin Franklin

I've heard the EPO does bad things. For 100,000 euros we'll quit talking about those things.

Summary: The ridiculous lies about prospects of the Unified Patent Court are now spreading to EPO-friendly publishers — few powerful people to whom truth isn’t valued as much as the customers (their subscribers and sponsors are law firms)

THE European Patent Office (EPO) wants us to think that it’s imperative to believe anything it says.

António Campinos is a ‘master class’ deceiver — more so than Battistelli, a brute whose general discourse serves to alienate a lot of listeners (his English is also relatively weak).

Quite late on Friday (the latter part of the day) the EPO issued another bundle of lies [1, 2]. All the comments we’ve seen about it are negative. All of them. When I called them out on it — as I dud — my tweets were even “liked” by Team UPC people; yes, even they must have been bemused by what the EPO said.

“Quite late on Friday (the latter part of the day) the EPO issued another bundle of lies.”But the media?

Haha, the media…

That’s another story altogether.

World Intellectual Property Review (WIPR) is relaying EPO propaganda again. WIPR used to have some decent writers who checked facts (the same thing that happened to IP Kat, which we’ll deal with separately in our next post). World Intellectual Property Review (WIPR) has ‘rebranded’ the headline “EPO hopeful that Unified Patent Court will be operational this year”; now it is just “EPO ‘confident’ of 2020 UPC resolution” (still misleading propaganda amplified, not fact-checked). Over in the ‘corporate’ media, IAM is pushing jingoistic EPO talking points, which have been relayed or spread in more sites (having received money to do this; Lexology is connected to that same money now).

“World Intellectual Property Review (WIPR) is relaying EPO propaganda again.”It has become super hard to find proper journalism on patent matters (as opposed to lobbying by litigation thugs, trolls and lawyers). The ‘Banana’ blog is still just copy-pasting everything the EPO publishes, passing it on as fact under the heading “IP News Center” in Google News (“EPO and other representatives hold meeting to implement Unitary Patent package”).

Where are the actual investigations? Where is the balanced journalism that used to exist?

As an anonymous commenter (EPO insider by the sound of it) put it 3 days ago: “One way to – temporarily – survive at this disaster is to avoid getting into contact with anything published from EPO management” (and Team UPC).

Here’s the full comment:

You see, your problem is that you keep reading such announcements and taking them seriously, genuinely believing that the ones who made them have at least a faint idea of what they are talking about. Guys, this is not the case anymore.

One way to – temporarily – survive at this disaster is to avoid getting into contact with anything published from EPO management. It is a pity that posting screenshots is not allowed here. 90% of the announcements appearing in our Intranet – and forwarded to hundreds of displays installed everywhere in the office – are:
– condolences to colleagues who suddenly died. Every single time using exactly the same identical words.
– congratulations to new EPO directors who keep arriving, at a pace of one per week, directly from the EUIPO,
– advertisements from our pres and his hispanportofrench friends smiling, visiting places and helping the world.
If it was not a disgrace it would almost be funny.

Yes, 10% or the announcements are still useful and related to patents, but “we are confident that the necessary steps can be accomplished in time for the Useless Posts package to become operational at the end of 2020”.

The article it’s attached to is not 100% bad, albeit it does relay many of the EPO’s lies without bothering to refute these. Benjamin Henrion quoted some bits, especially replies as they’re miles better than puff pieces from these UPC advocates. Among them [1, 2, 3, 4]: “UPC lies: “As 2/3 of the applications stem from outside the EU, the big beneficiaries are US, Japanese and other Asian countries, and not Europe. How stupid to give those countries the possibility to have one point of attack when starting litigation in EU” [...] When Downing Street makes clear that the CJEU will not have any influence in UK, it looks bad for the London Section of the Central Division [...] Why has the basic fee for infringement be set at 11 000EUR, and the basic fee for a nullity action or a counterclaim for nullity set at 20 000EUR? There is a clear advantage for the patent proprietor. Why this disproportion? To help SMEs? [...] Why have countries like Poland and the Czech Republic decided not to join the UPC? If the perspective for their industry would be as rosy as is pretended by those people, they should have jumped at the possibility to join the UPC…”

“When we leaked these documents or at least published for those who had leaked these documents the media in Germany and elsewhere in Europe did cover the underlying issues. But since then the EPO has systematically paid some of the critical publishers, whereupon they self-censored and quit covering EPO leaks.”Yesterday the EPO tweeted a bunch of stuff about SMEs and “startups”. Their own leaked documents show discrimination against them. When we leaked these documents or at least published for those who had leaked these documents the media in Germany and elsewhere in Europe did cover the underlying issues. But since then the EPO has systematically paid some of the critical publishers, whereupon they self-censored and quit covering EPO leaks.

Back in 2014 we started receiving leaks about the EPO, way back when the European Patent Office had a relatively good reputation (still). People were eager to make it publicly known that things weren’t as rosy as it might seem. We still cover the subject a lot. 6 years later we still watch these matters very closely and we still receive a lot of information. The work/output speaks for itself, we believe, but one aspect relevant to the above is that the media got threatened and bribed (they tried this several times on us too). Nowadays, nobody covers these issues but us.

“People were eager to make it publicly known that things weren’t as rosy as it might seem.”Most EPO workers (about 7,000) read Techrights for real understanding or EPO affairs, for verified information, not ‘waffle’ and PR.

We’re the only site the EPO blocked (they temporarily blocked IP Kat and things have never been the same since). But workers can read the site outside work.

The EPO has not sent us any kind of threat since 2016. Maybe their lawyers realised that their intimidation tactics would merely backfire. Here we are about 3,000 articles later. We still report on these issues. With the collapse of 3 or 4 other blogs that used to frequently cover EPO abuses (their staff changed or the sites ceased operating), we’re likely the only ones left to cover these issues without repeating all the self-serving lies of litigation professionals.

01.12.20

EPO Management Already Meddles in (Illegally and in Clear Violation of the EPC) BoA Cases. Now It Does the Same to Bundesverfassungsgericht (FCC, Germany’s Constitutional Court).

Posted in Europe, Patents at 6:08 am by Dr. Roy Schestowitz

Judges afraid of me? OOPS!

Summary: Germany’s Federal Constitutional Court (FCC) cannot be left alone by Team UPC, its media front groups (or pressure groups with publication as a weapon) and the EPO’s active ‘harassment’ of those assessing legality; this merely reinforces many people’s negative views (the EPO operating outside the rule of laws which govern it)

THE recent setbacks for the UPC must have gotten the litigation firms in Munich (or its suburbs) rather nervous. More and more of them now realise that the UPC will never come about.

“That’s like the U.S. Patent and Trademark Office (USPTO) lobbying SCOTUS by lying to it on the (non)issue of 35 U.S.C. § 101. What would the judges think and feel?”European Patent Office (EPO) President António Campinos is already meddling in a case regarding software patents in Europe, which are illegal. He has leverage over the already-terrified judges, who were collectively bullied and punished by Battistelli, the man who gave Campinos this job. Their location in Haar doesn’t give them safety, it merely gives them a warning (from the President of the Office). You’re one stone-throw away from a “difficult legacy”

Looking at the latest replies to one article about the truly ridiculous late Friday press release, we now see “The Convention watchdog” stating:

The wishes expressed by the EPO and its Administrative Council which outcome they expect from pending proceedings may influence the Boards of Appeal in their decisions. This approach will certainly not work with the Bundesverfassungsgericht.

That’s like the U.S. Patent and Trademark Office (USPTO) lobbying SCOTUS by lying to it on the (non)issue of 35 U.S.C. § 101. What would the judges think and feel?

Another comment alludes to the EPO’s repeated lies about SMEs and the UPC’s effect on them:

High costs and lengthy proceedings make the EPO route objectively challenging for SMEs. There are reasons for the continued reliance on national filings and alternative tools when they are available, such as utility models in Germany.

If the EPO really wants to be on par with other prominent patent systems in terms of attractiveness for SMEs, why not look at a 50% reduction of all fees for SMEs and individual applicants, as in the US ?

“MaxDrei”, apparently a retired patent attorney, already envisions the UPCA process being rebooted, this time without the UK (this can take years; drafting, discussion, ratifications and so on — in the face of growing resistance in more EU member states):

Just a thought, but could it be, that departure of the UK from the EU will ease re-negotiation of the UPC, allowing it to come into force sooner rather than later (or not at all).

I mean, lawyers in England find it so hard to reconcile their system of law with that on the European mainland. And civil law practitioners from the remainder of the EU, in discussion with nit-picking English lawyers, find it hard to appreciate where those English lawyers are “coming from”.

True, the Republic of Ireland also has English law but RI is a relatively small EU Member State, with no delusions that it is the true carrier of the flame, the fount of all logic, and all nations in Western Europe should follow its lead.

So, from now on, legal discussions between the 27 remaining EU Member States, on all legal issues, not just patents, should proceed more smoothly and efficiently. That would go wider, extending for example to any legal discussions between the EU and any or all of China, Japan, Korea.

Meanwhile, lawyers in England will be more free to get into a warm and self-congratulatory huddle with their cousins in the USA.

Based on documents published by Corbyn (they had been published elsewhere beforehand) just before the latest election, the US has some plans.

All these issues aren’t properly explored by IP Kat anymore; the team there has changed profoundly. It’s not hard to see that today’s EPO is lawless and it disregards the EPC in a lot of ways, but all IP Kat had to say this past week boiled down to book promotion — a book called “A Practitioner’s Guide to European Patent Law”; is the law even followed? “The book’s approach consists of summarizing national and EPO case law for each of the 14 (plus one, see below) topics,” it said, “and identifying the common principles. To make the task manageable, the book limits the analysis to four (arguably the most influential) European jurisdictions: England and Wales, France, Germany and the Netherlands.”

Yesterday we saw also IAM, which had been paid by the EPO to promote and lobby for UPC, saying that “The EU should not contemplate abandoning the Unified Patent Court system” (that’s just typical IAM).

Joff Wild posted as “opinion” these thoughts:

Earlier this week the UK Prime Minister Boris Johnson played host to the new President of the European Commission, Ursula von der Leyen. As is usually the case with such meetings, it was followed by an official communiqué from the British government giving its account of what was discussed. The document issued totalled a few paragraphs, one of which read:

The PM was clear that the UK would not extend the Implementation Period beyond 31 December 2020; and that any future partnership must not involve any kind of alignment or ECJ jurisdiction …

Only a day or two later the EPO issued the ridiculous press release, which has so far received nothing but condemnation in comments we saw about it. It’s delusional.

01.11.20

‘Artificial’ ‘Growth’ (in Number of Fake Patents)

Posted in Europe, Patents at 5:28 am by Dr. Roy Schestowitz

'Artificial' 'Intelligence'

Summary: The attitude of patent offices that measure their performance in terms like number of monopolies signed off leads to retardation of science, but they couldn’t care any less, they just change their messaging or marketing (buzzwords can help, e.g. “intelligence” and “revolution”)

European Patent Office (EPO) President António Campinos boasts ‘growth’… (as Battistelli did)

The Director of the U.S. Patent and Trademark Office (USPTO) likewise…

But a growth in what?

Talent pool?

“What exactly are they measuring?”Quality standards?

Satisfaction rates (staff and applicants)?

What exactly are they measuring?

If the EPO can flagrantly violate the EPC, then it can grant a million or a billion patents a day? If not enough applicants exist, write some computer programs to automatically generate applications.

Then… brag about ‘growth’.

A growth in number of applications…

“If 99% of those granted patents are denied or dismissed by the courts, should the patent offices worry?”A growth in number of patents…

After all, handing over some piece of paper corresponding to a monopoly isn’t too expensive, is it?

Unlike court costs.

If 99% of those granted patents are denied or dismissed by the courts, should the patent offices worry?

As the old saying goes, “not my department!”

Nowadays, the EPO is shameless about granting software patents in Europe. It even told examiners that if an applicant mentions “AI”, then it’s a very special thing. They formulated this nonsense in the examiners’ guidelines two months ago. They actually have buzzwords and weasel words inside formal guidelines. Maybe later this year they’ll issue new guidelines about patents with “smart” in them, with “app” in them, with "assistant" in them…

“It’s very relevant because “4IR” is a buzzphrase that the EPO actually paid the media to promote (convenient way to bribe media which previously criticised the EPO’s management).”If “4IR” is a ‘thing’, why not?

It’s very relevant because “4IR” is a buzzphrase that the EPO actually paid the media to promote (convenient way to bribe media which previously criticised the EPO’s management).

Nowadays WIPO constantly promotes the ridiculous “HEY HI” (AI) hype because they want machines to help generate loads of monopolies, creating further chaos that only lawyers will profit from. They also promote software patents under the guise of the same buzzword while law firms are promoting their nonsense from their own site (“Artificial Intelligence (AI) Patents – Will the Patent Office Change the Rules?”; found via Janal Kalis) as recently as days ago. Watch the “HEY HI” (AI) hype again being misused to promote bunk abstract patents that courts continue to throw out, citing 35 U.S.C. § 101 a lot of the time (sometimes obviousness or prior art, instead or in conjunction). Here they go with a buzzwords and hype wave braindump:

The number of patents for inventions based on artificial intelligence, machine learning and deep learning continues to grow rapidly. Some of these inventions relate to AI technology per se, and some relate to the use of AI in specific applications, including many in healthcare, financial services and blockchain, among other industries. The USPTO has addressed various aspects of intellectual property issues with these technologies in various ways, including in an event it hosted entitled “Artificial Intelligence: Intellectual Property Policy Considerations (January 2019).” Due to some of the unique issues with these technologies, the USPTO is considering whether it should make any changes to how it handles examination of these applications. As part of this analysis, the USPTO issued a request for public comments on protection and examination of these inventions. Last fall, the USPTO issued a Federal Register Notice, 84 Fed. Reg. 166 (Aug. 27, 2019) entitled, “Request for Comments on Patenting Artificial Intelligence Inventions.” Soon after, the USPTO issued another Notice, 84 Fed. Reg. 210 (Oct. 30, 2019) entitled, “Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation,” which expanded the scope of its inquiry (from just AI patents) to further cover copyright, trademark, and other intellectual property rights impacted by AI. In a third notice, the PTO extended the comment period until January 10, 2020.

That’s yesterday. How many of these granted patents would withstand a challenge in court? What proportion? And at what level? If only 10% of these stand a chance at the Federal Circuit or even at the Patent Trial and Appeal Board (PTAB), does that mean that real ‘production’ of the Office is an order of magnitude lower?

Going back to the EPO, yesterday it tweeted:

What can you patent in biotech?

It takes too much time/space to tackle — here or elsewhere — mere “tweets” or so-called ‘tweets’ (they're a dime a dozen and not journalism; the EPO does about 50 of them per week).

“It seems rather clear that here in Europe and also in the US the patent offices are given the freedom/liberty to just grant lots of legally-invalid patents, even if just to fake ‘growth’ at times of economic pressures if not depression. Those who benefit the most are companies valued at more than the total GDP of entire countries, at the expense of SMEs that cordially employ and respect their staff.”When the value of a company depends on some monopoly from the EPO, as in this new case of Auris Medical (new press release and report [1, 2]), that does not necessarily mean such patents are desirable. There are ramifications for competitors. It seems rather clear that here in Europe and also in the US the patent offices are given the freedom/liberty to just grant lots of legally-invalid patents, even if just to fake ‘growth’ at times of economic pressures if not depression. Those who benefit the most are companies valued at more than the total GDP of entire countries, at the expense of SMEs that cordially employ and respect their staff.

The Moment That EPO ‘Club Med’ (Nepotism Galore) Pretends It’s Actually Elected Officials and Lawmakers

Posted in Europe, Law, Patents at 1:37 am by Dr. Roy Schestowitz

Antithetical to science and to fact-finding, an insult to the concepts of democracy and separation of powers (private corporations and their unelected proxies as both executive and legislative branches)

You need to obey the law. Listen, Sonny. We don't obey no law! We are the law!
The EPO is like a family business or the Mafia (in countries controlled by their underworld)

Summary: The EPO has let the mask slip off yet again, exposing itself or unmasking itself as little but an extension of Team UPC (i.e. a cabal of litigation firms, not scientists)

READERS of Techrights hurriedly contacted us yesterday regarding this typical late Friday fluff (warning: epo.org link) from European Patent Office (EPO) management or Team Campinos/Battistelli. It looked shallow on the surface and indeed it turned out to be just a statement on the subject of UPC, merely a “parade of suits”. No substance, only lies. Corrupt people do corrupt things and want to corrupt courts (to protect themselves), whereupon they strive to violate constitutions and so on…

“Corrupt people do corrupt things and want to corrupt courts (to protect themselves), whereupon they strive to violate constitutions and so on…”So okay… what was actually said there? The summary (below the shallow headline/title) states: “António Campinos, President of the European Patent Office (EPO), and his team met today with the Chair and members of the executive group of the Unified Patent Court (UPC) Preparatory Committee, as well as with the Chair of the Unitary Patent Select Committee, to take stock of the state of play of the preparations to implement the Unitary Patent package.”

So they had… a meeting! Wow. Shocking. That Team UPC is in bed with the EPO (one might say steers the EPO) is hardly a secret. This coup goes quite some time back. Also notice some of the people named there; they’re indebted to Battistelli, for reasons we mentioned before. Aside from loud proponents of software patents in Europe we seem to be seeing rather openly corrupt officials and now they want to enforce/impose their corrupt and illegal acts on the court system, too.

“That Team UPC is in bed with the EPO (one might say steers the EPO) is hardly a secret.”Will they get it? Naaaa… incredibly unlikely. They know it themselves (deep inside they’ve nearly given up), but they fake positivity and enthusiasm. It’s their lobbying strategy.

The EPO then tweeted : “EPO President Campinos: “We are confident that the necessary steps can be accomplished in time for the Unitary Patent package to become operational at the end of 2020.” More on today’s meeting on the status of the preparations of the #UnitaryPatent here: https://www.epo.org/news-issues/news/2020/20200110.html …”

This was “liked” by CIPA and others (the ‘usual suspects’).

“…they want to enforce/impose their corrupt and illegal acts on the court system, too.”So I responded (which I rarely do directly, i.e. in direct response form): “There’s not much to be said about ‘unitary’ patents and EPO granting any as nothing actually happened but a photo op, a group photo op, with text to accompany the lobby. The usual nonsense. This is the first time in a long time something is said about the subject and they may have dragged into people who aren’t even associated with it just to give fictional scale, an illusion of broad support…”

It didn’t take long for Benjamin Henrion to respond separately and independently: “CJEU won’t have a say on patent law, how foolish is that?”

He had elsewhere stated: “If no-CJEU is Boris redline, i wonder how it plays with biotech patents and the UPC London court, where the CJEU has the last word.”

Of course they don’t wish to talk about CJEU; it’s one of several elephants inside their room.

“Of course they don’t wish to talk about CJEU; it’s one of several elephants inside their room.”I later pointed out “the law does not exist in today's EPO. It’s violated as a matter of routine. They moreover have kangaroo courts to justify Battistelli's illegal acts and media is being bribed to not report on that. [...] JUVE reported that the number of applications decreases and all the good examiners are leaving or have left. Institutions die when the people who run them abandon.”

Ask EPO insiders. They know it. They’re aware. They admit it. They’re rightly concerned. SUEPO’s “January 2020 press articles” (posted yesterday or thereabouts) has in it “The 10 most popular articles in 2019: EPO guidelines, EPO unrest, SPCs and UPC” (Kluwer Patent Blog).

“Ask EPO insiders. They know it. They’re aware. They admit it. They’re rightly concerned.”Ulf Leckel and other cheerleaders for the litigation agenda ended up copying the ridiculous headline of the EPO (“The EPO and representatives from EU Member States call for the speedy implementation of the Unitary Patent package”), which isn’t just assertive but also somewhat delusional.

Delusion you say?

Yup.

Over at Kluwer Patent Blog, “Kluwer Patent blogger” (usually Bristows) said that “[t]he meeting made it clear that the EPO is ready to register the first Unitary Patents and that the Preparatory Committee has advanced its work as far as possible.”

Delusional much?

“What on Earth has happened to the EPO? It’s behaving like a government of a very primitive and brutal country.”Team UPC has quoted from that: “Maybe Campinos, Ramsay, Debrûlle wanted to convey a message of hope to supporters of the UP system, but leaving out any reference to these 2 elephants in the room will not help to convince that the UP & Unified Patent Court will really start functioning at the end of this year.”

So even Team UPC is aware that it’s unrealistic. First comment quotes: “Our users – and in particular SMEs – will strongly benefit from it because it will make Europe more competitive in relation to the United States and Asia.”

The commenter said it “reminds me of “War is Peace. Freedom is Slavery. Ignorance is Strength.” Honestly, how on earth could the UPC be beneficial to SMEs? Do these people really believe that nonsense? I can imagine the UPC to benefit quite a few parties, but the SMEs are not among them to be sure.”

Jan Van Hoey then said: “After Brexit, the AETR caselaw will kick in. AETR was used during the EPLA discussions to legally exclude non-EU member states like Switzerland. Italy should use the AETR to reclaim the London court in Milan. And this EPO and other NPO press release looks like “We want the unitary renewal fees in our pockets”. The UK cannot stay in UPC, it has to be renegotiated so that art6-8 (supremacy of the CJEU) is reestablished.”

As Henrion told me (quoting the above or paraphrasing): “the latest EPO article on UPC can be seen as “UPC will give us renewal fees in our pockets”..”

“It’s totally embarrassing and it tarnishes Europe’s image.”These people are totally insane and corrupt. They crush our laws and constitutions for money.

What will they tell us on January 31st? For at least 13 years they've told us that UPC was just around the corner (consider this article from 7 years ago, as it did not age well, under the headline “The unitary patent: coming soon to a European country near you”)

Define “soon”…

Aside from the delusional press release and tweet from the EPO we saw (on Friday) more greenwashing and other tweets that are lies, myths, bluff and fluff, decorated with wind power photos (stock photography for greenwashing). What on Earth has happened to the EPO? It’s behaving like a government of a very primitive and brutal country. It’s totally embarrassing and it tarnishes Europe’s image.

01.10.20

Missing in Action: Investigative Reporting About the European Patent Office

Posted in Deception, Europe, Patents at 2:11 am by Dr. Roy Schestowitz

Recent: Journalism in the Area of Patents and the Domain of Patent Litigation is Dead

Leaves

Summary: It’s difficult to see any effort whatsoever going into investigation of EPO affairs, including the recent vote for a strike; EPO payments and threats may have played a big role in this apparent indifference

THE YEAR has barely started for the European Patent Office (EPO). No press releases, only rather mindless and unoriginal 'tweets', no press articles…

We suppose that António Campinos prefers it that way. Battistelli failed to duck negative press quite to the same extent (even if nothing has changed since!).

“Patents aren’t a physical thing but a monopoly, granted temporarily in exchange for publication/disclosure.”This does not mean that the EPO is no longer mentioned anywhere. It’s just that nothing at all is mentioned about internal affairs and scandals. They pretend it’s all “business as usual”. Even IP Kat does that. AIPPI’s and patent maximalists’ event has just been promoted by Bristows (one of the IP Kat editors now, after the 'great shuffle') and by other patent zealots. There are also some press releases such as “Cellmid (ASX:CDY) midkine patents granted in the U.S. and Europe” and “Cellect Biotechnology Strengthens IP Portfolio; Receives “Intention to Grant” Patents from European and Israeli Patent Offices” [1] (‘Intention to Grant’).

There’s also this article (self-promotional) [2] about “Protecting AI at the EPO – Two dimensions of technical character” and it’s about getting software patents in Europe by disguising them or their true nature with buzzwords.

This is the kind of thing we’ve been seeing lately; there’s also this widely-circulated press release [3,4] about EPs. It uses lots of misleading propaganda terms such as “property” and “assets”; they’re lying even to themselves. Patents aren’t a physical thing but a monopoly, granted temporarily in exchange for publication/disclosure.

Is there not a single journalist in Europe interested in EPO scandals? Have they all been muzzled? The EPO is Europe’s second-largest institution.

Related/contextual items from the news:

  1. Cellect Biotechnology Strengthens IP Portfolio; Receives “Intention to Grant” Patents from European and Israeli Patent Offices

    Cellect Biotechnology Ltd. (Nasdaq: APOP), a developer of innovative technology which enables the functional selection of stem cells, received official communication from two jurisdictions, the European Patent Office (EPO) and the Israeli Intellectual Property Office, regarding their intention to grant European Patent Application No. 14851547.1 and Israeli Patent Application No. 244982, respectively. These patent applications include a cell-based product and a method of manufacturing a stem and progenitor cell population with enhanced activity by short incubation with an apoptotic ligand.

  2. Electronics Newsletter – December 2019

    Many users of the European patent system rarely use the appeals procedure. However, a recent revision of the Rules of Procedure of the Boards of Appeal (“the RoP”) that comes into effect on 1 January 2020 has implications which extend beyond the appeals procedure into examination and opposition proceedings, and therefore is of importance to all users.

    [...]

    The European patent office (EPO) is keen to let applicants know that it is open for business when it comes to protecting inventions around AI. This may at first sight seem surprising: much of AI can be considered to be solutions to problems embodied in mathematical models, and Article 52 of the European Patent Convention tells us that mathematical methods are not patentable, at least to the extent that a European patent application relates to the mathematical model as such. So, how can you prevent your AI invention being considered as a mathematical method as such?

  3. Microbot Medical Receives Intention to Grant from European Patent Office for a Patent Application Covering its Self-Cleaning Shunt

    Microbot Medical Inc. (MBOT) has received an official communication from the European Patent Office (EPO) regarding its intention to grant European Patent Application No. 11795301, covering the Company’s Self-Cleaning Shunt (SCS™). Globally, the Company now has 36 patents issued/allowed and 16 patent applications pending worldwide.

  4. Microbot Medical (MBOT) Receives Intention to Grant from European Patent Office for Patent Application Covering its Self-Cleaning Shunt

    “We have always maintained that a strong and growing intellectual property portfolio is one of our strongest assets and will enable us to maintain a sustainable competitive advantage while establishing barriers of entry to future competitors” said Harel Gadot, Chief Executive Officer, President, and Chairman. “We will continue to expand and seek protection for our unique innovative platforms. This provides the foundation for the establishment of a multi-generation product portfolio, including our latest introduction of the LIBERTY™ Robotic System, the world’s first fully disposable robotic system for use in neurovascular, cardiovascular and peripheral vascular procedures.”

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