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12.17.17

Raw: “Experienced Examiners Can Examine Anything.” (Even Not in Their Field!)

Posted in Europe, Patents at 7:38 am by Dr. Roy Schestowitz

Guarantee for decline in patent quality and decrease in the number of filings (now a reality at EPO), causing “over-capacity” all across the board and putting the EPO as a whole at risk

EPO over-capacity

Summary: An internal document shows how the EPO handles imbalance in filings, in essence shifting examiners to fields they are not familiar with

The Office’s solution to over-capacity and how to do better.

Summary:
Despite official figures showing an overall increase in filings, some technical fields see the number of patent application decrease. As a solution to the over-capacity, managers are encouraging volunteers to leave their field and work as examiners in other, widely remote areas of technology. If not correctly handled, this could lead to serious problems not only for the individuals concerned but also for the Office.

Background

The overall number of applications increases but the clusters biotechnology and PAOC are suffering from a shortage of filings. In management terms, this is called over-capacity. Both clusters have been informed that two examiners per directorate will have to move to other technical fields such as polymers or mechanics. The official mantra: “experienced examiners can examine anything.”

Insufficient support and personal consequences

“Incentives” or “rewards” have not even been mentioned. Examiners who would consider a transfer are merely told that their new PD will probably provide the necessary support in terms of training and learning curve. The Office unfortunately has a track record of not providing sufficient support to staff transferred to new jobs. As a consequence it is likely that at least initially neither their quality nor the quantity of the newly transferred examiners will be at the level reached in their previous field, with the obvious consequences of less favourable staff reports and a prospect for promotion that will be close to zero.

Quality and the consequences for the Office

The Office introduced the AoCs alleging that increased specialization would result in increased quality. More recently the Office launched advertisement campaigns for the recruitment of examiners claiming that only the best candidates would be recruited. Transferring examiners with little or no relevant expertise into a given technical field makes a mockery of such claims. With its PCT share suffering and its quality under attack, the Office can hardly afford taking any further risks to its reputation.

Can we do better?

The better options available seem to be two-fold, namely:
a) providing proper support and training for the examiners concerned, and
b) providing alternatives to transfers.

a) The Office should allow examiners transferred to technical fields that are remote from their original field to follow external courses (university or other). Alternatively or additionally, sufficient time for self-study should be allowed, as well as a guarantee that the change will not have a negative impact on the examiner’s staff report for a period of e.g. 3 years. Ideally a positive impact, e.g. through a mark-up for “attitude” could be considered.

b) The Office should limit the loss of expertise by encouraging other options for reducing the available capacity through unpaid leave, parental leave or (temporary) transfer to other DGs (with a guarantee to return to the original position), internships (e.g. exchange with the patent profession) and/or voluntarily reduced working time. In the context of the latte, we remind the administration of a long-standing and cost-neutral claim of the staff representation to allow staff working part-time to top-up the missing pension contributions themselves so that no loss of pension ensues. Favourable offers for early retirement (e.g. along the lines of those offered to a former VP4) could also be considered.

Andrei Iancu in Charge of the United States Patent Office (USPTO) Would be a Patent Microcosm Coup

Posted in America, Patents at 4:18 am by Dr. Roy Schestowitz

Andrei Iancu

Summary: The progression of Andrei Iancu’s nomination/appointment is a reason for concern; it is, for a fact, a reason for optimism among patent extremists

THE patent question isn’t exactly partisan or even political. Not in the sense that patents are a “left” wing ‘thing’ or a “right” wing ‘thing’ anyway; it’s a vertical thing (top-down, class, economic).

“Trump too goes along with a man who was born in the Soviet Union. Will he be in charge of the USPTO?”The USPTO isn’t political either. But its leadership might be, especially because nominations are made by political figures. As we noted here before [1, 2, 3], a Putin-connected official (as per Panama Papers) put forth a potential Director for the USPTO. Trump too goes along with a man who was born in the Soviet Union. Will he be in charge of the USPTO? The trouble isn’t his ethnic background (we won’t entertain the McCarthyist angle) but his professional background. He’s from the patent microcosm. He won’t even deny it. A few days ago we learned that “[t]he [US] Senate Judiciary Committee has approved President Trump’s nomination of Andrei Iancu as USPTO Director and Under Secretary of Commerce (unanimous consent). The nomination now moves to the Senate Floor where no roadblocks are expected other than the difficulty in having the Senate focus on any particular item.”

“The very fact that sites of the patent microcosm — including front groups of patent trolls — are satisfied with Iancu is a warning sign.”Well, shouldn’t the United States Patent Office (USPTO) put in charge men and women of science, preferably US-born too? What do they expect him to do if not prop up his former employer/s? Iancu is certainly not neutral. Many conflicts of interest come to mind.

We worry that a lot of patent progress can be undone. Some groups are too ‘diplomatic’ to openly express scepticism, but they too know that Iancu presents a threat. The very fact that sites of the patent microcosm — including front groups of patent trolls — are satisfied with Iancu is a warning sign. Even patent radicals have already backed him.

The Latest IAM Puff Pieces That Launder the ‘Reputation’ of Patent Trolls

Posted in Europe, Patents at 3:35 am by Dr. Roy Schestowitz

Funded by patent trolls, promoting trolls’ agenda

IAM logo and friends

Summary: The creeping threat of patent extortion (litigation from companies that are empty shells with nothing but patents) does not worry IAM; instead, this is the vision IAM wants to actualise, having been paid by stakeholders in such a nefarious outcome

THE previous post dealt with the EPO‘s promotion of software patents in Europe under the guise of or by misusing new buzzwords. There’s a growing threat — and already a reality in Germany — that patent trolls will thrive in Europe. Sites like IAM work hard towards that and a couple of days ago IAM’s latest recruit wrote that the Dutch “Health Minister has hit out at “absurd” drug prices, suggesting that the use of compulsory patent licensing might be one solution. This comes shortly after Germany’s highest court upheld a landmark decision forcing a life sciences innovator to license a key patent to a competitor.”

“There’s also a profound controversy over universities (which receive public funds) spending time and money pursuing patents that are then give to notorious trolls such as Intellectual Ventures.”In the area of life sciences there are many ethical/moral issues associated with patents; it’s not just about advancement and prosperity but life and death. There’s also a profound controversy over universities (which receive public funds) spending time and money pursuing patents that are then give to notorious trolls such as Intellectual Ventures. IAM has just published this sponsored piece that whitewashes the practice.

Here in Europe we already have some patent trolls like Avanci, which is a patent troll that preys on carmakers. Having recently groomed this troll, IAM has just done another puff piece for it. “Avanci,” it wrote, “the platform headed by former Ericsson CIPO Kasim Alfalahi focused on licensing wireless technology into different verticals in the Internet of Things (IoT), has published its royalty rates for car companies.”

“Ericsson has already birthed some patent trolls other than Avanci and they ‘operate’ (i.e. sue) in Europe, even in London.”Here’s that buzzword again, “IoT”. We wrote about it a moment ago. It just alludes to any device with a TCP/IP stack on it, i.e. nothing new. And guess what the troll is after. It’s ‘protection’ money. Ericsson has already birthed some patent trolls other than Avanci and they ‘operate’ (i.e. sue) in Europe, even in London.

Last but not least/latest from IAM is this puff piece regarding AST, which is feeding patent trolls. It’s not the first such puff piece. In IAM’s own words: “In October we ran a story following a comment from AST’s CEO Russell Binns that the patent market was due to see 30,000 assets for sale in 2017. “It seems like everyone is trying to clear house at the same time,” he commented at that time.”

And pass patents to trolls, just like Ericsson has been doing.

The EPO Has Found ‘Creative’ New Ways to Bribe the Media and Promote Software Patents

Posted in Europe, Patents at 2:04 am by Dr. Roy Schestowitz

When they speak of “IoT” and “fourth industrial revolution” they allude to a patent thicket comprising many software patents

Industry 4.0

Summary: From Computer-Implemented Inventions (CII) and “Industry 4.0″ the EPO is moving to creative new misnomers for carriers of software patents, SEP (patents-encumbered ‘standards’), so-called ‘FRAND’ etc.

THE EPO ended the year with another big scandal — one that most of the media conveniently ignored; instead, the media covered EPO PR, which involved the EPO’s management actually paying the media (not from its own pocket but stakeholders’). Some of it was pushed during the weekend (e.g. [1, 2]) by the EPO’s Twitter account. Working on a Saturday?

We remind readers that our criticism of the EPO over the years was purely about software patents. We are not against the EPO and certainly not against patents in general. In fact, our intention over the past few years was to save the EPO from the litany of patents and the tyranny/dictatorship of Battistelli. Patent quality matters. Examination matters, not so-called ‘production’. If only the EPO stayed true to its sloganeering…

The patenting of software in Europe remains a problem. We recently wrote about Microsoft and the EPO doing all this under the framing/guise of "IoT" — a trend that can be seen perpetuated in the latest EPO ‘study’ (with other buzzwords/terms like “fourth industrial revolution”). Some sites of lawyers carried EPO agenda as recently as Friday and there was also this press release about a company that “specializes in the creation of Internet of Things (IoT) and Artificial Intelligence” (the title is “Gopher Protocol, Inc. Files Patent Application in the European Patent Office”).

What we basically have here are some new tricks or loopholes for software patents in Europe. They just refer to these in different terms, big words other than “CII”.

Also on Friday, Thorsten Bausch said that “[t]he Federal Court of Justice held that a patent application is to be rejected if its subject-matter extends beyond the content of the application as originally filed and if this deficiency has not been rectified by the applicant upon request by the examiner (following FCJ X ZB 17/73 Regelventil).”

This isn’t about software in particular, but noteworthy here is the insistence of the court (which isn’t motivated by ‘production’ but law/accuracy). Too many times or oftentimes we see public advocacy by law firms for loopholes that enable patenting the patent-ineligible. This is particularly true in the domain of software.

Will software developers ever be able to coexist with software patents? It’s unlikely. Programmers neither want nor need such patents. A couple of days ago (also on Friday) Simon Phipps from the Open Source Initiative published this article and asked: “What if software patents were used in a way that made using software patents unthinkable? A kind of “Patentleft”?”

That, in part, has been tackled by GPLv3 (copyleft), but here is what Phipps proposes:

The word “copyleft” arises from a clever hack by Richard Stallman who used the laws relating to copyright — a statutory device to incent creativity by granting limited monopolies to creators — to create a world where creators are incented to share instead of monopolise their work.

Since the Berne Convention makes all creative works the automatic sole property of their creator, the only way others can use it in any way until the monopoly expires is with the express permission of the creator of the work, who is said to hold the copyright. Copyleft grants everyone receiving the work an unlimited license to use, improve and share it, but only on the condition they grant the same conditional rights to every recipient. Copyleft thus makes more and more works freely usable as more and more people improve them.

Could we do the same thing to subvert patent law? It seems that’s at least part of the motivation behind the use of a controversial combination of the BSD open source copyright license and a broad patent grant by Facebook. A few years ago they silently standardised on releasing all their open source projects — including popular codebases like RocksDB storage engine and the React.JS user interface framework — under the venerable 3-clause BSD license supplemented by a unilateral grant to any of Facebook’s patents necessary to use the software.

As we shall show later today, the US is moving further and further away from software patents, drifting away from patent trolls in the process. Will such a ‘post-software patents’ world (or post-Alice world) materialise in Europe as well? How about China, possibly the last safe haven for such patents? The sure thing, activism in this domain remains necessary, and activism depends on vigilance.

12.16.17

EPO Busy Distracting From Miscarriage/Abuse of Justice at the EPO (Both Office and Organisation)

Posted in Europe, Patents at 12:25 pm by Dr. Roy Schestowitz

Summary: The European Patent Organisation continues to be a vassal of the Office (Christoph Ernst is defending Battistelli) and justice is not being honoured; it’s being discarded in the darkness (in secret meetings)

A LOT happened while I was away. The EPO was trying pretty hard to distract from an eventful scandal, having issued 3-4 ‘news’ items in just a couple of days (it typically posts only 1 or 2 per week, sometimes 0 for a whole month).

On Thursday and Friday it kept ‘banging’ on with lots about the latest nonsensical ‘study’ (passing money to the German media), as well as #IPforSMEs. Nothing was said about the meeting in Munich (Wednesday until Thursday), except the obvious distractions/face-saving tweets we’ll come to in a moment. On Thursday Battistelli’s latest photo op was released (warning: epo.org link). It can be found via this tweet too. ISO is corrupt enough that it can afford a handshake with Battistelli (one can bribe for or ‘buy’ standards at ISO, as we showed a decade ago).

Battistelli also shared a new photo op of him (warning: epo.org link) signing papers with a country that facilitates his abuses, more specifically INPI which looks as though it engaged in entryism against the EPO (just look at members of staff at the top-level management).

To quote: “The EPO and the French National Industrial Property Office (INPI) have signed a three-year bilateral co-operation plan. The agreement, which provides a framework for collaboration in areas such as IT projects and training, was signed by EPO President Benoît Battistelli and INPI Director General Romain Soubeyran in Munich yesterday.”

Does that say where Battistelli came from and brought much of his management team from? That in itself is a scandal and they put this photo op in INPI’s Twitter account too, only to then (very soon) get retweeted by the EPO. It’s like an “evidence of the crime” photo op, but Battistelli got too accustomed to being above the law. He just doesn’t care.

Then came another “news” item, this one with Christoph Ernst, who is complicit by inaction. This latest one (warning: epo.org link) is quite revealing. (promoted with the photo op in Twitter). He’s taking photo ops with Lutz just to metaphorically spit on the graves of victims at the Boards of Appeal. Perhaps he fails to realise just how bad that makes him look. The EPO had said nothing about the Boards of Appeal other than this tweet which states: “The application deadline for the 2018 judicial internships at the Boards of Appeal session is 9 January” (internships are not jobs and the Boards are massively understaffed).

Obviously nothing about ILO, the protest, the scandal associated with the judge etc. Just anything to shift attention away from that…

SUEPO, in the meantime, is accusing Ernst of embracing Battistelli’s lies and it politely slams the Council Ernst chairs for backing violations of the law. Here is the page from SUEPO Munich and an HTML version of the PDF:

DEMONSTRATION
Wednesday 13 December

On 13 and 14 December the Administrative Council of the EPO meets in Munich. The agenda can be found in micado as CA/105/17. SUEPO Munich called for a demonstration in front of the Isar building on the first day of the meeting of the Administrative Council. The aim of the demonstration was to signal to the Council that their governance is needed.

While Mr Battistelli still pretends that “all is well” and tells the Council that he is making good progress with the social dialog, some 700 colleagues provided living proof of the contrary – see below.

Isar protest

Mr Ernst, the new chairman of the Administrative Council had been invited to meet the staff in front of the building to see (and hear) for himself what the real situation is. Mr Ernst did not accept the invitation. He apparently preferred to rely on Mr Battistelli’s “alternative facts”.

The same seems to apply to the majority of the delegations in the Council. The disciplinary procedure against the Member of the Boards of Appeal who was kept suspended for 3 years is on the agenda of the meeting as point 1.7. It is “C” point meaning that it will again be discussed behind closed doors. At the time of writing the Board Member has still not been invited. He has also not been informed of what is in the confidential documents that are on the agenda. This means that whatever decision will be taken is again based solely on information provided by Mr Battistelli. This is in gross violation of the principles of due process, as pointed out by the ILO Tribunal in its recent Judgments No. 3958 and 3960

In those Judgments the Tribunal the EPO was ordered to reinstate the Member of the Boards of Appeal, lift the house ban imposed upon him, return any EPO property seized before and unblock his UserID with immediate effect. Mr Josefsson, President of the Boards, has given him access to the Haar building, but he is still denied access to the other Office buildings. Moreover: contrary to the Tribunal’s orders he has not been provided with a computer or a telephone. Under the circumstances he is still de facto suspended.

With this Mr Battistelli and the Administrative Council once again show a total and utter lack of respect not only for his staff and their rights (“due process”) but also for the Tribunal and the Rule of Law.

SUEPO will continue to denounce such behaviour and organise actions as long as necessary to bring respect for the Rule of Law back to the Office.

SUEPO Munich

As we expected all along, Ernst is akin to his predecessor, “his master’s voice.” The Council has a serious stain; there are many career climbers like Ernst, speaking nonsense (e.g. about patent quality) and knowingly spreading lies about the situation. They probably even lie to themselves about it.

JUVE’s Mathieu Klos‏ wrote that the “AC finished its Meeting. As JUVE understands AC made a decision on the disciplinary case of EPO judge Corcoran. According to sources he has been reinstated but not reappointed. Neither the AC nor @EPOorg have confirmed this so far. More details soon on http://www.juve.de”

Another person (a UPC booster) remarked: “I would say I’m surprised, but… So, they’ve adhered to the letter but not the spirit of the ILO rulings? And soon he’ll be back in DG1. How long until some sort of spurious disciplinary investigation starts, do you think?”

That’s what everybody says.

Regarding the underlying process in that meeting, it was highly cryptic, but the most detailed accounts were made available in this report from Thursday:

One answer of sorts has come with the leak of the Administrative Council’s agenda for its meeting this Wednesday and Thursday. Discussion of Corcoran’s tribunals have been given a confidential status, meaning that only government and EPO management representatives can be present, with no staff or observers allowed.

In addition, a last-minute revised version of the agenda demonstrates that three documents produced for discussion and decision on the Corcoran case have been changed or replaced just hours before the meeting was due to start.

Initially, the issue was due to be discussed with references to three documents numbered 16, 17 and 19. On Tuesday, those documents had vanished and were replaced in a revised agenda with documents 21, 22 and 24. We do not know what is contained in either set of documents, nor have they been provided to Corcoran: their subject.

EPO insiders say that such a last-minute change is almost certainly the result of revisions from EPO management, and that if that’s the case, the changes would have been approved personally by Battistelli.

Or, in other words, having been publicly criticized for personally involving himself in a dispute in which he had a clear conflict of interests, the EPO president’s response was to personally direct the proposal put in front of the Administrative Council for approval, despite the EPO officially claiming to have left the issue entirely up to the council.

Such behind-the-scenes manipulation of the EPO’s processes and procedures is commonplace at the organization, staff complains, and stems from a culture of secrecy and lack of accountability that goes unchallenged (and is sometimes fed) by the representatives of European government on the Administrative Council.

Indeed, it was the council’s willingness to accept EPO management’s proposals without question that led to it being criticized by the ILO for failing to consider the obvious conflict of interest in Battistelli involving himself in the Corcoran case.

[...]

Corcoran’s case is not the only one. Battistelli and his management team have targeted a number of EPO staff, particularly union leaders, to the extent that they have repeatedly broken German and Dutch law (and then claimed immunity), distorted the organizational appeals process (and had two years’ of appeals thrown out), and even undermined the EPO’s Boards of Appeal to the extent that it forms a key part of an argument in front of the German constitutional court for stopping the introduction of a European Unitary Patent Court.

This article has attracted plenty of comments about Battistelli. For example:

Someone comes along and just does exactly what they want and no-one stops them.

Blair, Campbell, Putin, Blatter, etc, etc.

Its strange how this chap seems to have immunity from real criticism and heads up a fairly important organisation.

Are these the sorts of people the EPO wishes to be associated with?

Here’s the latest in Kluwer Patent Blog:

Just heard that Mr Corcoran is back in DG1 from 01.01.2018.

So much for independence of DG3

And then:

In DG1, i.e. under the direct authority of Battistelli.

The bets are open: how long before Battistelli will find an excuse – any excuse, to fire him?

I don’t give him more than 6 months.

Poor guy.

Yes, we don’t expect that to last long. This, perhaps, was part of the plan (even if contingency).

The following comment said, “let us not forget what Mr. Corcoran wrote about Mr. BB: that he is abusing his power at the EPO.”

Battistelli does a fine job demonstrating that Corcoran was correct. Here is the full comment:

that may wll be, but then the internal decision if the accusations are right have not been finalised yet, therefore this was not a decision he could appeal at ATILO yet. Therefore ATILO could not decide on substance.
Furthermore, ATILO only very rarely checks these kind of matters. They are an administrative tribunal, and therefore preferably only check whether the rules have been followed. This time they even avoided deciding whether the rules are legal or have benn legally correctly createf…. They found this decision sufficient to get the case off their table, without looking at the remaining elements of the appeal.

And let us not forget what Mr. Corcoran wrote about Mr. BB: that he is abusing his power at the EPO.
This decision by ATILO actually confirms this.
(source: https://www.theregister.co.uk/2017/12/06/euro_patent_office_commanded_to_reinstate_nazi_judge_it_attacked/ fourth paragraph from the end of the article)

Someone wrote the following reply:

He hasn’t been found innocent by the ILO because they weren’t asked to do that. They are only an administrative tribunal anyway.

I note that his lawyer has claimed that the facts have been presented to German courts without success for the plaintiffs.

I agree there may be a breakdown in any working relationship but that is almost always the case of a whistle-blower which may be what was effectively the case is here. I haven’t seen the evidence but understand that court documents were presented which had relevance in some way. Perhaps the procedure you suggest may also involve assessing their value? Would a CEO or other c-level position be able to avoid that? Perhaps the innocent man was right??

There are disagreements in there regarding guilt. Among them (not all):

Yes, of course Mr Corcoran is innocent.

I thought that the principle of “innocent until proven guilty” was a universal one – it appears not. If Mr Corcoran had not been proven guilty after due process of law, then we MUST presume he is innocent. Some comments seem to assume that he is guilty until proven innocent.

The ILO-AT found that due process was lacking in this case. Therefore we must presume he is innocent.

In my opinion, the many violations of due process in this case (and the President’s partiality is just one of them) are indicative of attempts to secure a conviction by dubious means. Why not do things by the book if your case is sound?

Whilst many comments may focus upon specifics, a common thread can be found, namely disbelief about the EPO’s apparent disregard for the rule of law.

Unless you think that it is OK for a patent office to disregard the laws that are supposed to bind it, I suggest that in future you keep your snide comments to yourself.

Therein lies the problem. It’s particularly bad for the EPO to become a lawless place because it’s all about patent law and if it cannot obey simple law (or even court orders), what does that say about this institution’s potential or capacity for justice?

On why EPO problems could/should signal the end of the Unitary Patent:

Juducial independence, or lack of it, is quite a meaty topic, I would have thought. And perhaps the Bundesverfassungsgericht (German Constitutional court) thinks so too as it has blocked German ratification of the UPC in order to consider objections on this and other grounds.

Someone then said this:

So, just to inform everyone here,

Judge C is now AGAIN. suspended , this time by the AC without battistelli !,,,!!

We’re not sure if this is true; did he really get suspended again? No source is mentioned and the punctuation looks bad enough to damage the poster’s credibility/intent.

Going back to the underlying case, one person then said:

I thought that the principle of “innocent until proven guilty” was a universal one.

At the EPO the presumption of innocence only applies to officials appointed under Article 11(1) and (2) of the EPC.

For all others the presumption of guilt applies.

There’s also the reference number, just in case someone wishes the chase the text:

The file number for the case at the Landgericht München was 24 Qs 18/17.

Anybody who is interested can apply for a redacted copy of the decision of 6 November 2017 at the court.

Landgericht München I
80316 München

https://www.justiz.bayern.de/gerichte-und-behoerden/landgericht/muenchen-1/kontakt.php

The document will of course be in German.
There may be some administrative charge for photocopying etc.

SUEPO has just published this translation of the recent report in German. According to Mathieu Klos, who wrote it before the secretive meeting, Senya Okyay is Corcoran’s lawyer and he insists that “[t]he Administrative Council now no longer has no reason to draw the proceedings out any further” (translated from English to German and back to English, so there might be discrepancies).

Here is the full article:

Slap in the face for Battistelli: Suspended EPO judge wins court victory right down the line

The judge of the Board of Appeals at the European Patent Office (EPO) suspended three years ago is to be reinstated, under a decision yesterday by the Administrative Tribunal at the International Labour Organisation in Geneva (ILOAT) (File Refs. 3958 and 3960). The supreme labour court for employees of international organisations also awarded the EPO judge, in two separate rulings, a total of some 40,000 Euro in compensatory payment for moral damages and compensation for loss of earnings.

The decisions are likely to increase the pressure enormously on the Administrative Council of the Patent Office to bring the disciplinary proceedings to a close and to reinstate the judge. The judge had made recourse to the ILOAT due to his suspension and its extension imposed by the Council.

“The ILOAT has ruled”, said the judge’s lawyer, Senya Okyay, “that Mr. Battistelli was biased in these proceedings, and has a conflict of interests. The tribunal accordingly decided in my client’s favour.” The ILOAT criticised the fact that EPO President Benoît Battistelli had featured in the internal Office disciplinary proceedings both as a party as well as an advisor to the disciplinary structure relating to EPO judges. There were accordingly doubts as to the impartiality of the President. The judgment also indirectly implied the accusation that the President and Administrative Council had not respected an adequate distribution of power with regard to the disciplinary proceedings.

This accusation has been lurking in the background ever since the case first began in December 2014. At that time, Office supremo Battistelli imposed a ban on the judge entering the EPO, and pushed through his suspension by way of the Administrative Council. According to the EPO statutes, the Administrative Council is exclusively responsible for disciplinary matters relating to members of the Boards of Appeal.

The reason for the suspension was the accusation of dissemination of unpublished information and critical expressions of opinion about the activity of the Boards of Appeal, as well as the beleaguered EPO Director Željko Topić. The judge was also accused of having uttered accusations and threats against the EPO and its staff. By way of evidence a USB stick belonging to the judge was confiscated. According to information provided to JUVE, this was found to contained, among other things, critical articles about Topić. These did not derive from the judge himself, however. Whether this is a contravention of EPO regulations has been a matter of dispute right to the bitter end.

Explosive material

The case became incendiary because of the issue of the independence of the Boards of Appeal from the Office itself. Last year the Administrative Council undertook a further separation from the EPO Court. As well as that, the disputes surrounding the manner in which disciplinary matters are dealt with at the Office became more heated. Specifically, in formal terms an EPO judge can only be suspended by the Administrative Council if the Enlarged Board of Appeal recommends such a measure. Last year, however, the Court rejected this, after Battistelli intervened in writing in the ongoing proceedings. The Enlarged Board of Appeal regarded this as a massive exertion of influence, and ended the proceedings without a recommendation.

Experts then regarded the Administrative Council as being under an obligation to reinstate the judge. This did not happen. Added to that, Topić and EPO President Battistelli took out private prosecutions against him before courts in Munich and Croatia. According to the EPO Statutes, these prevented a decision in the disciplinary matter if it had not yet been resolved. According to information provided to JUVE, however, these actions have in the interim been terminated, either because they were withdrawn or because the courts rejected them as unfounded.

“The Administrative Council now no longer has no reason to draw the proceedings out any further”, said Senay Okyay. “They must now reinstate my client as a member of the Boards of Appeal. By way of the two ILOAT judgments and various decisions by the Munich Regional Court and the Munich State Attorney’s Office, it has now been confirmed by a third party beyond any doubt that the accusations made by Mr. Battistelli against my client are unfounded.”

Showdown coming up

The Administrative Council will in all probability make a decision in the matter next week, when the representatives of the 38 EPO Member States will gather for their last meeting in Munich. The issue is already on the agenda. Some observers are of the view, however, that this may not necessarily be a decision based on facts of law, because the Administrative Council is, above all, a political body. During the weeks leading up to the ILOAT decision, there were rumours circulating at the EPO that the Administrative Council could reject a reinstatement, and instead put the judge back to work in his former position as a patent examiner. This would once again make Office boss Battistelli his direct superior.

That would add fuel to the fire. The situation at the EPO is already very tense. Parts of the EPO staff, among them the main staff union SUEPO and a number of EPO judges are locked in a bitter dispute with Battistelli. This is why the new leader of the Administrative Council, Dr. Christoph Ernst, made it clear in a JUVE interview in November that the restoration of social peace in the Office is one of the primary goals of the supervisory body for the future. The Administrative Council is setting a great deal of hope in this situation on the EPO chief executive designate, Antónios Campinos, who will be taking over from Battistelli in July 2018.

“The Administrative Council will be examining the decision thoroughly, and drawing the necessary conclusions such as the situation calls for”, was how Ernst responded to an enquiry from JUVE. (Mathieu Klos)

We eagerly await more input as it typically comes a week after such end-of-year meetings. The EPO will no doubt continue to distract from it until Christmas, hoping that by the time people get back to work it will have escaped people’s memory/attention span. Also, by next year (or end of this year), Corcoran’s contract will have ended. They want him to just disappear as though he never existed.

Bristows LLP/IP Kat Carrying on With Dead UPC Jingoism

Posted in Deception, Europe, Patents at 11:27 am by Dr. Roy Schestowitz

Bristows EPO

Summary: The same old tune from Bristows not only gets played in Bristows’ ‘alternate reality’ blog but also in other blogs where Bristows staff is ‘contributing’ (to confusion and misconceptions)

EARLIER this year we pointed out — quite a few times in fact — that Bristows had sort of taken over IP Kat is the sense that many posts regarding patents were posted by Bristows staff to promote Bristows’ agenda. That coincided with cessation of criticism of the EPO.

“Don’t fall for or get sucked into the illusion that the UPC still has any feet in the UK or elsewhere.”Earlier this month we wrote about the misleading posts of Bristows staff in their blog, in Kluwer Patent Blog and in IP Kat. They just can’t help themselves and it happened again just before the weekend. The ‘Kat’ seems to be stuck in ‘Bristows’ mode, not informing readers about the many barriers to UPC but instead pushing Bristows talking points. Thankfully, the sole comment there states the obvious already:

Even if the UK ratifies before Brexit, where is the legal certainty that it can stay in the UPC after?

All those saying yes have vested interests in the matter, so any news helping to foster this hope is good enough to be trodden out.

It is high time to come down to Earth and not live in Dreamland.

This new is not worth a lot!

Don’t fall for or get sucked into into the illusion that the UPC still has any feet in the UK or elsewhere. Team UPC has been using these tactics for many years. It’s how they manipulate politicians and bamboozle clients for revenue. Only a deeply misled company or person in the UK would currently pursue ‘unitary’ anything.

12.14.17

Patent Trolls Are Going Bust in the United States (Along With the ‘Protection’ Racket Conglomerates)

Posted in America, Patents at 2:39 am by Dr. Roy Schestowitz

RPXSummary: RPX continues its gradual collapse and patent trolls fail to find leverage now that software patents are kaput and patent opportunists struggle to access Texan courts

THE demise of patent trolling in the United States is measurable, e.g. based on number of filings/lawsuits. Nobody disputes that patent trolls were on the decline even before TC Heartland, which will further accelerate this demise. Quite a few trolls went bust. We wrote about that.

The collapse of several major trolls means lack of demand for so-called ‘protection’ (for the rich) from trolls. In fact, by its very nature, RPX requires a climate of fear and litigation in order for it to gain money, so it’s no surprise that RPX has been dying for a while. Executives were leaving. There was turmoil. Now, based on IAM, RPX is up for sale. It’s not good news for RPX; rather it’s indicative of a failure, shortly after RPX pondered China as a contingency plan. To quote:

Amster was replaced by former General Counsel Marty Roberts amid a spate of senior changes at the company including former executive vice president Mallun Yen’s elevation to the board.

[...]

In 2016 the company’s leadership was thrust into the spotlight when activist investor Mangrove Capital Partners wrote an excoriating letter to RPX’s board criticising management and calling for significant cost-cutting measures. Mangrove’s letter also referred to RPX’s 2015 acquisition of discovery management business Inventus Solutions for $232 million as a “costly mistake”. At the time of RPX’s offer, Inventus was the subject of private equity interest and some critics privately contend that the patent business paid too much. That might mean that any successful bidder would look to quickly dispose of the Inventus business to free up some cash to pay down acquisition debt.

The demise of software patents means the end of various patent trolls, many of which rely purely on such patents. RPost is the latest example (a patent troll that had products many moons ago) and here’s a new report about its loss in court:

Scottsdale-based GoDaddy Inc. received a final win today in a lengthy patent infringement case that sets a precedent for similar “patent troll” claims against other technology companies.

The win came after the U.S. Supreme Court declined to hear a patent litigation case this morning between GoDaddy and RPost Communications Ltd., the Los Angeles-based creator of the RMail secure and certified electronic communications company that also is a patent-holding company.

RPost claimed GoDaddy’s email marketing product infringed on a broad patent regarding how email works, including how email bounces back when sent to an address that is no longer active.

We expect — as already noted at the top — TC Heartland to have a profound impact and to deal a final blow to practices such as these. Relying purely on patents (when there’s no product to offer) makes one a troll and offers no benefit to society or even to industry.

12.13.17

IBM’s Manny Schecter is Wrong Again and He is Attempting to Justify Patent Trolling

Posted in America, IBM, Patents at 6:42 pm by Dr. Roy Schestowitz

Published last week: Famed Journalist Dan Gillmor Calls IBM the Inventor of Patent Trolling

Trump alternative facts

Summary: In yet another dodgy effort to undermine the US Supreme Court and bring back software patents, IBM’s “chief patent counsel” (his current job title) expresses views that are bunk or “alternative facts”

TECHRIGHTS used to be very supportive of IBM. In fact, IBM used to be helpful to Free software, open standards, and GNU/Linux (especially at the back end and high-performance computing). But that was IBM a decade ago, managed by other people and adhering to different principles/strategies.

Do not be misled by what IBM used to be.

“In several areas/domains of technology IBM does nothing but patent predation.”IBM is attempting to attack/discredit Alice. It’s doing it like no other company does. IBM’s Manny Schecter, who is in charge of patents, says Alice is bad “because if the company fails, the investor must leverage its patent assets to return the investment.”

“Because if the company fails, it has to be turned into a troll” is how the FFII’s President translated/interpreted that. Yes, a troll. Like IBM right now… even some veteran technology journalists now call IBM a “troll”. In several areas/domains of technology IBM does nothing but patent predation.

Manny Schecter is an exceptionally harmful public face. It’s no good for IBM. Even if his tweets and talks he is attempting to distance from his employer, his expression of his own views is a projection of IBM policies. He’s not a low-level engineer; he’s management. Top-level management.

“How low is IBM willing to sink in an effort to shore up software patents?”IBM rapidly became a liar of a company. It’s so eager to blackmail new/small companies and its Patent Chief (or whatever they call him these days, putting aside fancy job titles) just makes them look vile. We used to support IBM, but now we just hope that IBM goes bust soon. The sooner, the better. Its activities on the patent front are ruinous and they concern a growing number of developers.

Regarding IBM’s (or Schecter’s) position, well… first of all, for a massive company to pretend to care for and speak for small companies is laughable or at least dubious. IBM attacks several such companies. Secondly, Alice made many such companies safer from trolls, hence a safer investment. Thankfully, WIPR decided to assess Schecter’s claims. Unfortunately, the article is quoting/citing extremists.

Here are portions from that article:

The number of venture capital (VC) investment rounds in technology companies has nearly halved, according to merchant bank Magister Advisors, sparking debate about the causes behind the decline.

Some commentators have discussed whether Alice v CLS Bank has played any role in this.

Citing data and research firm PitchBook, Magister Advisors noted that since 2014, the number of VC rounds in technology companies worldwide has fallen from 19,000 to 10,000.

For Manny Schecter, chief patent counsel at IBM, this decrease may correlate with the US Supreme Court’s 2014 decision in Alice. The decision led to an increase the number of patents being invalidated under section 101.

In early December this year, WIPR noticed a tweet from Schecter, who linked to a TechCrunch article written by Magister Advisors’ Victor Basta, and decided to investigate.

[...]

Chris Behrenbruch, CEO of radiopharmaceutical company Telix Pharmaceuticals, who replied to Schecter’s tweet, offered a different view.

“I don’t think it’s nefarious—it’s just fund-raising cycles. A lot of VC was raised back in 2006-2008 and then the impact of the financial crisis significantly reduced capital raised during 2009-13,” he said.

It’s rather sad that a company which prides itself on science cannot get something so fundamental right. In fact, even on the surface alone these claims that it’s Alice which harmed investment smell funny.

How low is IBM willing to sink in an effort to shore up software patents?

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