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05.14.19

Q2 Midterm Weather Forecast for EPOnia, Part 2: Meet the Kötters

Posted in Europe, Patents at 11:33 pm by Dr. Roy Schestowitz

See part one

The Kötters
Friedrich P. Kötter and his sister Martina Kötter

Summary: An introduction to the Kötter Group, the private security conglomerate which is lined up for the award of a juicy EUR 30 million contract for the provision of security services at the EPO

Kötter SE & Co. KG Security is part of the Kötter Group, Germany’s largest family-managed security services provider. It is no. 2 in the industry overall with 90 branch offices at more than 50 locations across Germany. The Group operates as an independent family business and is currently managed by Friedrich P. Kötter and his sister Martina Kötter, the third generation.

The Kötter Group sees itself as a “universal services provider” and its activities include the provision of security services and technology as well as cleaning and and facility management. Over the last decade or so they have expanded to offering services in the field of “integrative judiciary solutions” and “support for non-jurisdictional responsibilities” which seems to be jargon for the “private prison industry”.

Amongst other things, Kötter is involved in providing security services for the Central German Lignite Mining Company (MIBRAG mbH) which is based in the eastern part of Germany. It used to be the state-owned East German VEB Braunkohlenkombinat Bitterfeld. After privatisation in 1994 it came into the ownership of US investors – Washington Group International (Boise/USA) und NRG Energy Inc. (Minneapolis/USA).

As its name suggests, MIBRAG’s main line of business is open-pit lignite mining and its operations have often been a subject of controversy.

For example, ongoing protests and objections from many quarters have been triggered by its plans to bulldoze the 700-year old medieval hamlet of Pödelwitz, near Leipzig as a part of an extension of its mining operations in the eastern German state of Saxony.

MIBRAG Pödelwitz

The opponents of the planned demolition of Pödelwitz include Greenpeace which has supported the setting up of a climate activists’ camp in Pödelwitz.

Pödelwitz

Greenpeace

Protest camp Pödelwitz

It goes without saying that protest actions like this are a “goldmine” for private security companies like the Kötter Group whose agents are often to be seen monitoring the situation from a safe distance.

Kötters mibrag Pödelwitz

Kötter is well-known – not to say “notorious” – among environmental activists in Germany because it has a well-established track-record of providing security services for dealing with such protest actions.

In 2008 and 2009, Kötter was active in the Frankfurt area where activists occupied part of the Kelsterbach Forest which was marked for clearance in connection with the construction of a new runway for Frankfurt Airport.

Kelsterbach wald

A video of the Kötter agents in action at Kelsterbach in January 2009 can be seen here.

More recently, Kötter has been active for the energy conglomerate RWE supporting its attempts to fell last 200 hectares of western Germany’s ancient Hambach Forest near Cologne. This is another case of a planned expansion of open-pit lignite mining operations which has generated a lot of public protest.

Kötter agents are regularly observed on patrol in the Hambach Forest and surrounding areas.

Kötter Hambacher Forst

Kötter Hambacher Forst 2

The next time you see someone in a “yellow vest” at the EPO just be aware that it may not be a disaffected French staff member engaging a protest action but it might in fact be one of the EPO’s new security team.

Kötter are also regularly engaged by RWE to perform guard duty at its shareholders’ AGM which normally takes place in Essen where both companies have their corporate headquarters.

Kötter RWE AGM

In the next part we will cover a number of further controversies in which the Kötter Group has been embroiled in recent years and look at its questionable labour market practices and strained relations with German trade unions such as Verdi.

Q2 Midterm Weather Forecast for EPOnia, Part 1: Urgent Shitstorm Alert

Posted in Europe, Patents at 4:31 am by Dr. Roy Schestowitz

Guest post

Shitstorm coming

Summary: Experts at the European Patent Office’s (EPO) weather observation station have just issued an urgent alert warning about a major shitstorm looming on the horizon

Experts at the EPOnia weather observation station have just issued an urgent alert warning about a major shitstorm looming on the horizon. There are signs that a routine tendering procedure is about to turn into Operation Charlie Foxtrot for Team Campinos.

“There are signs that a routine tendering procedure is about to turn into Operation Charlie Foxtrot for Team Campinos.”The first signs of the predicted shitstorm were noticed a few weeks ago when document CA/F 10/19 was released on 17 April in the middle of a “slow news” month in EPOnia when most people were already off enjoying the Easter break or getting ready to go on leave.

So it wouldn’t be surprising if the contents of CA/F 10/19 have slipped under the radar of most of the EPOnian peasants – or campinos (with a small “c”) as they are known in Portuguese!

“…the contents of CA/F 10/19 have slipped under the radar of most of the EPOnian peasants – or campinos (with a small “c”) as they are known in Portuguese!”At first sight CA/F10/19 is a completely unremarkable document with the rather mundane and prosaic title “Award of Agreement 2019/3055 pursuant to Article 58(1) FinRegs for the provision of Security Services for EPO buildings in Munich”.

The document was prepared by the President of the European Patent Office for submission to the EPO’s Budget and Finance Committee for decision.

The BFC is due to meet later this month on 21 and 22 May so it is important to be aware that the matter hasn’t been finally decided yet.

However, in the normal course of events it can be expected that the BFC will sign off on the decision which will then be officially rubber-stamped by the Administrative Council when it meets on 26 and 27 June. If this happens, insiders are confidently predicting that a major shit-storm could break loose.

A shitstorm brewing

According to informed sources it’s still not too late for Campinos to take preventative action to avert what promises to be a major PR disaster but it’s by no means certain that he and his team have sufficient “nous” to react in time.

“…insiders are confidently predicting that a major shit-storm could break loose.”Whether or not he realises it, Antonio the Unready is walking towards a PR minefield.

Or to put it another way, he is in great danger of falling victim to unexploded ordnance UXO. This term refers to those “explosive remnants of war” that lurk beneath the surface or in the undergrowth until they surface by chance causing mayhem and disruption as the bomb-disposal experts quite literally try to “defuse” the situation.

An unexploded bomb

It has to be admitted that there are no overt signs of potentially explosive material in CA/F 10/19 but appearances can be deceptive.

This document reports in dry-as-dust technocratic language on the outcome of a tender procedure for the provision of security services for the EPO’s Munich buildings.

The current contract with a local Munich-based company Bewachungsdienst Dipl.-Kfm. Helmut EHRL GmbH is due to expire on 30 September 2019.

“Subject to extension over a total of five years, this contract has a potential value of close to EUR 30 million.”During the bidding procedure for the new contract, EHRL offered the highest price, whereas a rival bidder going under the name of Kötter SE & Co. KG Security offered the second lowest price out of the 5 contenders considered technically capable and also scored the second best in the technical evaluation with the best references.

And so CA/F 10/19 informs us that it is proposed to award the new contract to Kötter. Subject to extension over a total of five years, this contract has a potential value of close to EUR 30 million.

Viewed through the eyes of a technocrat like Campinos, the choice of Kötter as the most “competitive” bidder undoubtedly makes perfect sense.

The price is right and what else counts in today’s fact-moving globalised world? So far so good. It all seems to be just another non-story.

“But in the enigmatic looking-glass world of EPOnia the real story is often buried beneath the surface and it is necessary to dig down deeper to get to it.”In fact, you can almost hear Team Campinos shouting from the sidelines: “Move along now folks, nothing to see here…”

But in the enigmatic looking-glass world of EPOnia the real story is often buried beneath the surface and it is necessary to dig down deeper to get to it.

In Part 2 we will take a closer look at the Kötter Group.

Patents That Were Gleefully Granted by the EPO Continue to Perish in Courts

Posted in Europe, Patents at 3:42 am by Dr. Roy Schestowitz

Putting in doubt the collective legitimacy of such patents.

EPO delivery

Summary: The decreasing quality of granted European Patents already becomes a growing problem if not a crisis of uncertainty

THE European Patent Office (EPO) very well knows that it is granting a lot of fake patents or IPs (Invalid Patents) rather than European Patents. Like the USPTO, especially in recent decades (35 U.S.C. § 101 has slowed things down a bit), the EPO does not seem to mind patent quality, only raw numbers. António Campinos even promotes illicit software patents in his blog.

“In the European courts, citing the EPC as usual, more European Patents turn out to be invalid.”Years ago we heard stories about European patent examiners who had granted Apple patents against their will (management’s pressure), knowing that Apple is a “big client”, so even though evidence suggests applications ought to be rejected patents get granted anyway. Yesterday a Web site dedicated to Apple patents said this:

Earlier today Patently Apple discovered a patent application from Apple in the European Patent Office database. Digging deeper into the documentation I discovered that Apple had acquired the entire worldwide right, title and interest in the listed patents from Tueo Health Inc. as noted in-part from the document presented below.

Some corporate media then followed, e.g. this one from CBS (ZDNet, a tabloid covering technology):

Apple has acquired a new patent which describes technology able to monitor your health conditions while you are asleep outside of a standard mobile device or smart watch.

As spotted by Patently Apple, a patent registered by the European Patent Office (EPO) reveals the acquisition of a design from Tueo Health Inc.

Part of it is software, but notice how they say “mobile” and “smart”. Innovation, right? What other buzzwords can be added? “Insight for searchers and patent information professionals focuses on AI,” the EPO wrote yesterday. Whenever the EPO says “AI” it typically means invalid/bogus software patents that must not be granted (they would be in violation of the EPC). Sometimes “AI” refers to search (of patent databases), but only sometimes…

“One thing isn’t in doubt though; the lawyers are loving it because they profit from the war.”Another term the EPO likes to name-drop (in the context of search or patenting) is “blockchain” and for this too — like “AI” — the EPO set up a whole event featuring patent trolls. Speaking of trolls, Watchtroll continues to pretend — as recently as yesterday in fact — that software patents are magically OK if one rides hype waves like “blockchain”. And also on the subject of trolls, the patent trolls’ boosters from Bristows (Annsley Merelle Ward) are again pushing the agenda of a Microsoft-armed patent troll (in IP Kat yesterday), MOSAID/Conversant. She gave away her bias in a recent blog post. They — like the EPO — want the trolls of the world to come to Europe; it’s not their problem when innocent parties get dragged into court. The more litigation, the better, irrespective of the underlying merits (or lack thereof).

In the European courts, citing the EPC as usual, more European Patents turn out to be invalid. Vidal-Quadras & Ramon’s Oriol Ramon has just given this example:

By virtue of a Judgement dated 29 March 2019, the Court of Appeal of Barcelona upheld the Judgement of 20 February 2017 ruled by the Commercial Court No. 1 of Barcelona that revoked the Spanish part of European patent EP 1 379 220 (EP’220).

The plaintiff filed proceedings for revocation of EP’220 due to lack of novelty and inventive step.

In the reply to the revocation suit, the patentee did not defend the patent as granted by the EPO but filed a counterclaim based on Article 138.3 EPC limiting the patent and requesting the revocation action to be dismissed and the patent to be maintained as amended.

The plaintiff then petitioned the counterclaim to be dismissed because the patent in its limited version did not meet the requirements for added subject-matter (Article 123.2 EPC) and inventive step (Article 56 EPC), as, according to the prior art, it was still obvious to a person skilled in the art.

[....]

Neither the Order dated 15 October 2018 nor the Judgement mentioned hereby assessed a further issue: Whether a voluntary request for limitation of a European patent can be filed in the national patent offices or whether it must be filed in the EPO in order to preserve, when possible and as a general principle, the unitary text of the European patent (Article 118 EPC). In fact, the Act revising the EPC introduced a central procedure for administrative limitation by the EPO (Article 105 bis EPC): “At the request of the proprietor, the European patent may be revoked or be limited by an amendment of the claims. The request shall be filed with the European Patent Office in accordance with the Implementing Regulations”.

The judgement is not yet final as an appeal in cassation and an extraordinary appeal for procedural infringement have been lodged by the patentee with the Supreme Court.

How much money has already been wasted and will be wasted in the future because of these dubious patents? One thing isn’t in doubt though; the lawyers are loving it because they profit from the war.

05.12.19

Professionally Incompetent EPO Management

Posted in Europe, Patents at 6:58 am by Dr. Roy Schestowitz

Anonymous comment claims “massive numbers of “professional incompetence” for examiners.”

Egg

Summary: The EPO remains an awful employer, with top-level management largely responsible for the loss of talent and even money

The EPC is at the European Patent Office (EPO) what 35 U.S.C. § 101 was reduced to at the U.S. Patent and Trademark Office (USPTO) under Iancu. Laws are being ignored and rules disrespected. The ramifications go much further than our original (old) concerns about software patents in Europe as staff too is affected. The EPO disregards the law at all levels and as we noted yesterday, there seem to be pretty incredible crimes in the mix. Why aren’t there any arrests? Immunity we suppose.

“There was also a finding about low validity rate of granted European Patents — a subject tackled by SUEPO but buried by EPO management (they’re incapable of accepting criticism of any form).”Things are not improving and staff is becoming weary, growing impatient. As we said a couple of months back, “the EPO’s management (Bergot, Campinos and others) uses terms like “professional incompetence” it actually alludes to examiners who are professional and competent in properly dealing with patent applications.”

“Anonymous” posted this comment some weeks back to say:

Seems that management is doing exactly the opposite of your 4 points:
1: targets have been raised 5-10% for 2019
2: no news from dismissed suepo members
3: Bauteil 7 is to be sold, so that Bautel 8 (which cannot be sold) is occupied by examiners and not by dg3
4: massive numbers of “professional incompetence” for examiners.

But after the study, management is worried that staff does not trust them… so they want a series of meeting for better explaining their views. As if staff did not understand them well enough already.

Money it to be wasted on construction while many empty rooms exist.

We previously wrote about these so-called ‘studies’, including the latest one which they tried hard to spin positively. It did not impress critical thinkers, who wrote a letter to António Campinos about it. There was also a finding about low validity rates of granted European Patents — a subject tackled by SUEPO but buried by EPO management (they’re incapable of accepting criticism of any form).

05.11.19

Did Battistelli ‘Steal’ ~$100,000,000 Euros From the EPO?

Posted in Europe, Patents at 10:18 am by Dr. Roy Schestowitz

97 million euros plus salaries and bonuses

Blatterstelli and FBI

Summary: While enjoying diplomatic immunity the thug from CEIPI (who is back at the EPO as a jurist) passed millions if not billions (over the long run) in liabilities; this was done with total and inexcusable impunity, no effective oversight

MANY RECENT scandals suggest that the former President of the European Patent Office (EPO) belongs behind bars. We often wonder quite genuinely, why is this man not in prison with Benalla and instead on top of a law school (CEIPI)? It’s a slap across the face to the very occupation. Remember what we wrote a year ago about toxic loans? Here’s a reminder and index:

As we pointed out only days ago, more money is being wasted by the hundreds of millions with little or no oversight and only a couple of months ago we found out about Battistelli trashing 223 millions (of stakeholders’ euros) on a system that destroyed the Office and helped fake ‘production’ by promoting illegal software patents in Europe while ruining examiners’ life (and job).

“It doesn’t take a genius to figure out where this money came from and who it is cushioning.”It was only days ago that we recalled Battistelli siphoning millions, sending them to his colleagues at his own theatre in Paris. What level of criminality will be necessary to hold criminals accountable when their crimes are committed under diplomatic immunity?

The following new post from an EPO insider (published this morning) spoke of an apparent coverup by Team António Campinos (a former banker from a notoriously corrupt Portuguese bank). Under “Zero-sum game” it says:

A few days ago, the financial status report was published. Within that report, the following gem was found:

In 2018 the Office transferred its legacy bonds portfolio to the EPO Treasury Investment Fund (EPOTIF) which holds the funds in line with the Strategic Asset Allocation approved by the BFC. As at the end of 2018 the total value of EPOTIF units was € 2 460m, which includes a revaluation loss for the year of € 97m.

Just after two days that sentence was redacted, it now reads:

In 2018 the Office transferred its legacy bonds portfolio to the EPO Treasury Investment Fund (EPOTIF) which holds the funds in line with the Strategic Asset Allocation approved by the BFC. As at the end of 2018 the total value of EPOTIF units was € 2 460m.

Märpel is confident that the readers will spot the difference. Hint: it involves 97 millions Euros.

That amount of money was lost between mai and December 2018. Or, more precisely, it was lost for the EPO. Short term speculation is usually a zero-sum game: when somebody loses, somebody else wins. Why do you think that President Battistelli absolutely had to get EPOTIF approved just one month before he left the Office?

It doesn’t take a genius to figure out where this money came from and who it is cushioning. See the series about the toxic loans in Paris and who systematically profited at taxpayers’ expense. This is truly criminal. Crime is like a sport to these people.

The Biased EPO Does Not Want to Hear From Anyone Except Those Who Pay the EPO

Posted in Europe, Patents at 9:20 am by Dr. Roy Schestowitz

The EPO nowadays resembles the worst of cults [1, 2]

Wikileaks on Scientology

Wikileaks on Scientology and DNC

Summary: The EPO’s corruption and violations of the law are a threat to everyone in the world; the EPO only ever listens to those who pay for “access” or those who embrace the “religion” of the EPO

THE EPC does not matter to the European Patent Office (EPO); it is routinely being violated or ‘danced around’, just like 35 U.S.C. § 101 in today’s USPTO. António Campinos hasn’t blogged in months, but his most recent blog posts advocate software patents in Europe. They disguise that using familiar buzzwords. In addition, Campinos is ignoring clear directions from European politicians by allowing patents on nature and life, not just maths. It’s outrageous.

Patent quality (or scope of patenting) does not seem matter when offices knowingly grant so many patents which they know to be fake patent monopolies (not in compliance with the EPC) that merely attack the innocent and enrich lawyers. Today’s EPO has gotten so badly-behaved and so utterly out of touch with the law (it breaks many laws routinely and casually) that it is granting patents on plants, seeds (yes, it's as bad as that sounds) and algorithms.

“ZBM Patents & Trademarks” (i.e. the patent microcosm) published “EPO Plant patentability” in Lexology the other day. It’s the same old controversy:

Decisions G2/12 and G2/13 of the Enlarged Board of Appeal (EBA) of the EPO (Tomatoes II and Broccoli II) allowed the protection of plants per se…

EBA is not independent (from the Office President), unlike those other rulings that tackled this issue. Over at Mondaq, another site of patent maximalists, Matthew Handley (Venner Shipley LLP) has just spoken of the EPO “President’s decision to refer the matter to the EBA,” saying it “is highly controversial and has been widely criticised.”

By who? It’s not as controversial as patents on nature. To quote Handley’s article:

The President of the European Patent Office (EPO) has submitted questions to the Enlarged Board of Appeal (EBA) which relate to the patentability of plants exclusively obtained by essentially biological processes and to T1063/18, a Technical Board of Appeal decision of December 2018.

In T1063/18, the Appeal Board disregarded an amendment to Rule 28(2) EPC, thereby undoing what was effectively an amendment to the Implementing Regulations to the Convention on the Grant of European Patents initiated by the European Union (EU). This decision has been widely seen as underlining the independence of the EPO’s Boards of Appeal from the EU, an important and timely reminder for everyone grappling with the impact of Brexit on IP in Europe.

The President’s decision to refer the matter to the EBA is highly controversial and has been widely criticised. The referral is described by the President as being necessary to restore legal certainty, but commentators have argued that rather than alleviating uncertainty, the President is adding to it by asking the EBA to revisit a question that they have already considered.

The decision issued in T1063/18 was an appeal against an Examining Division objection under amended Rule 28(2) EPC. The amendment to Rule 28(2) EPC was deemed void and the application, relating to pepper plants with improved nutritional value, was remitted to the Examining Division for further prosecution.

[...]

Nevertheless, the decision of T1063/18 was very warmly received by applicants in this field and news of the President’s referral will be of concern to companies that filed European patent applications based on the G2/12 and G2/13 decisions, and generally to patent applicants in the European agricultural sector. In the meantime, however, the EPO has returned to granting patents in respect of plants or animals exclusively obtained by means of an essentially biological process. It is also worth emphasising that plants and plant material obtained by a technical process are unquestionably patentable.

It is not clear when the EBA will decide on the President’s referral, but in the meantime it is worth noting that the decision in T1063/18, and the President’s subsequent referral to the EPO’s Enlarged Board of Appeal, sends a clear signal that it is the EPO’s Appeal Boards that decide how to interpret the European Patent Convention for the purpose of granting patents, and not the EU or individual national governments.

Handley’s colleague, also in Mondaq, has just promoted patents on maths. Paul Misselbrook (Venner Shipley LLP) uses ridiculous buzzwords like “Smart Patents” and latches onto another buzzword/phrase, “4IR” (sometimes “Industry 4.0″ instead), which EPO made up, spread (e.g. by paying large German publishers), then exploited in order to grant illegal European patents on software. As if a “revolution” is upon us, hence we must welcome abstract patents.

To quote:

The patent system is credited as the crucial legal foundation from which the first industrial revolution was built. Milestone inventions such as the steam engine, power looms, the Cotton Gin and many more were all granted patent protection and by providing manufacturers with legal rights to prevent copying, innovation and industry flourished.

Using words like “revolution” he’s equating/associating software with things like “the steam engine”. This is the kind of propaganda the EPO likes to see.

Yesterday the EPO published this nonsense (warning: epo.org link) titled “Search Matters 2019: Insight for searchers and patent information professionals focuses on AI” (when the EPO says “AI” it typically means software patents which are not legal but are granted anyway, even in clear defiance of the laws of Europe). To quote:

The EPO has held its annual Search Matters conference at its headquarters in Munich. The three day event, which has run for 31 consecutive years, offered training to patent search professionals from around the world. The programme focussed heavily on search strategies and techniques used by the Office.

The event was multi-faceted and comprised various learning formats, including at-the-desk sessions, interactive workshops as well as plenary lectures provided by EPO examiners and external experts. For the first time in the history of Search Matters, the programme featured a panel discussion that delved deeper into artificial intelligence (AI) and its implications in searching.

This echo chamber focused on “AI” in the context of search rather than patenting, but usually — as per prior events — they intentionally conflate the two.

We have meanwhile learned that the EPO isn’t really interested in what the public has to say. And as this leak proved 4 years ago, you need to be a billionaire for the EPO to change the whole system for you.

“Trying to submit a contribution to the public consultation which ends today,” Benjamin Henrion (FFII) wrote yesterday after the EPO had stated: “It’s your last chance to give us your feedback on our draft Strategic Plan 2023. Take the opportunity to share your thoughts with us…”

“EPO’s 2023 consultation is already biased,” Henrion wrote, “simply in the list of categories, there is no space for a simple “company”, I am forced to pick the box “other”, as they maybe consider that all companies are “patent applicant: company” [] Last day to participate in the EPO public consultation, who is pushing for the extension of its toxic software patents to other parts of the globe…”

The EPO “does not want your opinion unless you’re biased,” I told him. It is literally paying people for opinions that favour its agenda and blocking critical voices. The EPO has blocked Techrights (since 2014 we believe) because it provides true, accurate information which the EPO does not want people to have access to. It’s like a cult. Scientology warns people to not even consider opinions other than its own (or be punished for it). The very act of reading/assessing/searching for refutation is treated as an offense.

“When a multiple “choice” sheet feels like you’re in the GDR,” he wrote, “it’s the @EPOorg.”

Here’s what he showed:

Biased EPO

He has meanwhile added: “It seems the “Open Source Ecology eV” is gone now from the template of EPO’s public consultation…” (a day after we mentioned it)

Team UPC Has Run Out of Arguments, So Now It’s Just Writing Anti-Brexit Rants With Testicles in the Headlines

Posted in Deception, Europe, Patents at 8:04 am by Dr. Roy Schestowitz

The three Frenchmen

Summary: Nothing has worked for firms that crafted and lobbied hard for the Unified Patent Court (UPC); after necrophilia a new low is being reached

I MYSELF am not pro-Brexit, but this isn’t the point. Many people who oppose the UPC and oppose corruption at the European Patent Office (EPO) are pro-EU and against Brexit. It’s actually very likely that the majority of such people, typically better educated folks, won’t conflate the two matters. Last year Bristows tried to associate opposition to the UPC with the far right. It’s an old trick that won’t fool anyone.

“So they’re international litigation people — just what the UPC caters for.”In a recent article (dated 29.04.19) about Brexit a law firm speaks about the UPC very succinctly. Who wrote it? “Beverley Potts is a senior professional support lawyer and David Stone is a partner in the London office of Allen & Overy; Joachim Feldges is a partner in the Munich office; Keren Livneh is a senior associate in the New York office; and David Shen is a partner in the Shanghai office.”

So they’re international litigation people — just what the UPC caters for. Here is what they wrote: “There is continuing uncertainty about when and if the Unified Patent Court (UPC) will come into effect. Some of that uncertainty stems from Brexit but there is also a pending challenge to the legality of the system in Germany. If and when the unitary patent and the UPC come into force, there is debate about whether the UK may still qualify as a member state under the Agreement on a Unified Court. For the time being, patent owners are waiting for the further development of the UPC and, in particular, for the decision on the German constitutional complaint (judgment still pending).”

“Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up.”Notice that familiar pattern with the two famous lies. Britain cannot participate in a system (that does not exist anyway) regardless of its status and the court observes a variety of factors (about 4 of them). So UPC is basically a non-starter.

We’ve meanwhile noticed a shift in the strategy of Team UPC. Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up. They’re liars, not lawyers.

Failing that, half a year down the line, they’ve turned to discussions of Brexit itself. We’re supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party.

“We’re supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party.”IP Kat’s Team UPC (Annsley Merelle Ward, Bristows) amplifies Team UPC (AIPPI) and the colleague Alan Johnson has nothing left to say about the dead UPC, so now he’s just ranting about Brexit in a patent blog (which oughtn’t be about Brexit Party/Nigel Farage but about patents). Even the headline is immature: “Brexit Party or “Bollocks to Brexit” – will the EU Parliamentary elections make any difference?”

Watch what Kluwer Patent Blog has been reduced to by Bristows. Words like “Bollocks” in titles. Colloquially, in plural form (as above) it means testicles.

A non-Bristows author at Kluwer Patent Blog (and not Team UPC either) pointed out as recently as 4 days ago that “[a]ccording to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018).” The context of this post is slowness of German courts, especially in nullity (of patents) procedures that are often settled outside courts and thus mask the really appalling rates of patent validity. To quote the relevant portions:

Will your response be: “Well, well, well, but is this such a big problem? Each patent has at least been thoroughly examined by either the German or the European Patent Office. So don’t these well-examined rights deserve being respected?” – Hmmm. The validity of this argument obviously depends on the quality of the patents granted by the respective offices. And here lies another serious problem. The EPO, for example, has almost doubled the number of granted patents over the past 5 years. According to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018). This means that compared to 2013, each examiner now has half the amount of time available to examine and judge each application. And given that it is easier to comply with applicant’s wishes than to write a decision of refusal, you can guess what this trend means for the average quality of the search and examination process.

But even if the quality of the granted patents had miraculously stayed the same for the last 5 years, this does not mean that examination by the EPO or GPTO makes a patent fire-proof. On the contrary, the percentage of total or partial invalidations by the Federal Patent Court is significant.

[...]

The impression you might get from these statistics is that only a relatively small (in 2018, 24% + 16%) proportion of patents is wholly or partially revoked, whereas the rest is maintained. But this is not so. In fact, the BMJV’s statistic is – apologies for being so outspoken – quite misleading. This is because most cases before the Federal Patent Court are not “disposed” by a contentious judgment, but by withdrawal or some other sort of settlement. In particular, patentees may wish to settle a nullity action – e.g. by granting a free license – when they know their patent is of doubtful validity. Thus, while the number of “disposed cases” is somewhere from 200-250, the number of actual decisions per year is only in the order of 100. For example, in 2015 there were 93 judgments, of which 47 (50%) ended with total revocation, and 32 (34%) with partial revocation. The patent was maintained as granted only in 17 (18%) of all cases!

This trend has not significantly changed over the last 5 years. One simply cannot assert that even the simple majority of patents that are seriously attacked before the FPC will withstand nullity plaintiff’s challenges

Imagine something like the UPC, connected to the EPO, being put in charge of assessment of European Patents. Will judges lose their jobs (contract not renewed) for throwing out “too many” European Patents? Therein lies some of the very substance of the UPC complaint in Germany’s FCC. Let’s hope the decision takes another couple of years to arrive (there haven't even been oral arguments yet) because the UPC was a terrible idea all along and it’s unconstitutional in many member states for reasons such as languages among others. Brexit delays also further contribute to the demise of the UPC, as we explained several times before. Bristows’ UPC blog is more or less dead, so now they ruin others’ blogs.

Making the Patent System About Productive Actors (Again), Not a Bunch of Law Firms and Trolls

Posted in America, Europe, Patents at 6:31 am by Dr. Roy Schestowitz

Law firms like the one Iancu (on the left) came from, after it had worked for Donald Trump (on the right)

Trump and Iancu

Summary: The US patent system is going out of shape and out of tune, just like the EPO when Battistelli came to it, dismantling the rule of law and even judges whom he did not like

TECHRIGHTS has often focused on EPO scandals, USPTO reforms, and in recent years the new Director, whose agenda is similar to that of António Campinos. President Campinos, appointed by Battistelli (through pressure on the Council), pushes hard for software patents in Europe (under misleading buzzwords), whereas the latter, Iancu, keeps acting like Battistelli by ignoring 35 U.S.C. § 101 caselaw (similar to EPC being shunned) while pushing buzzwords. There’s a growing similarity if not overlap across the Atlantic. It got a lot worse when Trump gave Iancu this job under controversial circumstances (nepotism). He wrongly assumes that he can assert control over judges and ignore input from USPTO stakeholders, who strongly oppose his position and policies. When we say stakeholders we don’t mean law firms but actual companies and creators, engineers, designers etc. (those were, after all, the intended stakeholders of the USPTO when it was set up).

“When we say stakeholders we don’t mean law firms but actual companies and creators, engineers, designers etc. (those were, after all, the intended stakeholders of the USPTO when it was set up).”Where do we go from here? Well, we must observe and respond to the situation. The eventuality isn’t predetermined and may very well depend on what the public does. Iancu, for instance, is already coming under fire from stakeholders and even courts. As our readers certainly know, the EPO comes under weekly/daily fire even from its very own staff (salaried by the EPO).

At the moment, in 2019, the US patent office and the main European patent office, the EPO, are both controlled by clueless and dishonest people. One need only consider what events they attend and who they speak to. They don’t care about science and technology. They wrongly assume that their offices exist just to grant as many patents as possible, giving rise to as many lawsuits as possible. Just before the weekend, for instance, we saw Christian Camarce and Karen Wong-Chan (Sterne, Kessler, Goldstein & Fox P.L.L.C.) celebrating PPH, the Patent Prosecution Highway. In practice, putting patent trolls on the “highway” (PPH) so that they can blackmail more people more quickly and more efficiently isn’t what science and technology need; quite the contrary. The risk associated with rushed patent examination (and prosecution) discourages investment and causes greater uncertainty. As this law firm itself has explained:

The Patent Prosecution Highway (PPH) program accelerates examination among participating patent offices. The PPH program first began as a trial program between the U.S. Patent and Trademark Office (USPTO) and the Japan Patent Office (JPO) in 2006, to avoid duplicate work efforts and expedite patentability decisions between patent offices. [1] Since then, the program has grown to include over 40 patent offices, including the European Patent Office (EPO), Korean Intellectual Property Office (KIPO), China National Intellectual Property Administration (CNIPA), and Canadian Intellectual Property Office (CIPO). This article discusses a brief overview of the PPH program and surveys PPH activity in participating patent offices.

[...]

The above discussion indicates that the patent offices with the most PPH activity are the JPO and USPTO, with the JPO being the office of earlier examination receiving the most PPH requests and the USPTO being the office of later examination receiving the most PPH requests. The EPO, KIPO, CNIPA, and CIPA also receive a significant number of PPH requests. Thus, for applicants seeking patent protection in these jurisdictions, the PPH program may be a viable vehicle to obtain patents faster than by standard examination.

But at what expense? Accuracy of course. There’s less time for appeals and objections, for instance. In the age of 35 U.S.C. § 101, moreover, American examiners are eager to also allow patents that ought not exist in the first place. Iancu is egging them on, making leeway for ignoring caselaw.

“At the moment, in 2019, the US patent office and the main European patent office, the EPO, are both controlled by clueless and dishonest people.”Just before the weekend, Josh Landau (CCIA) spoke of “working to ensure that unclear patent claims—claims which fail to serve their intended purpose of providing public notice—are considered invalid.”

Landau, like his implicit EFF allies, is growingly upset at Iancu’s lies and distortions. Here’s the context of this latest rant of his and some conclusions:

Amgen’s patent required a process with three separate steps. Sandoz’s process was a single step process that performed the same general function. But Amgen claimed that Sandoz infringed under the doctrine of equivalents, a patent law doctrine that allows a patent owner to assert infringement that goes outside of the literal scope of the claims.

[...]

Even if a patent claims one way of doing something, not just the result, if the language of the claims is unclear or impossible to understand—or even to understand easily—then members of the public are faced with the choice of either avoiding an area of technology they might well be entitled to use, or else engaging in that area and running the risk that they do infringe a valid claim.

USPTO Director Iancu often refers to “certainty” and “predictability” when discussing § 101. But those same concerns—the ability of the public to have certainty and predictability as to what a patent means—are far too often not part of the discussion. This week, the Federal Circuit again highlighted this problem. Their future case law should do the same, working to ensure that unclear patent claims—claims which fail to serve their intended purpose of providing public notice—are considered invalid.

None of the above is yet unheard of; we’re seeing more and more arguments like these and ours predate the actual appointment of Iancu (when he was only nominated and way before his attacks on 35 U.S.C. § 101 back in January). Yesterday, perhaps belatedly, Patently-O wrote about the case that we had included in daily links for quite some time, asking (in the headline) the famous old question, “What happens when Patents Are Later Invalidated?”

“Iancu is egging them on, making leeway for ignoring caselaw.”It’s about 35 U.S.C. § 101.

The huge industrial and societal cost of fake patents being granted (and there’s never justice at the end; only the lawyers benefit at everyone’s expense) is described in the context of this case, even in the words of patent maximalists:

The basic question here is whether the late-stage invalidity in T-Mobile can be used to cancel Sprint’s adjudged liability. So far, the courts have sided with Sprint, although it was important for Sprint’s case that it took pains to slow-walk its post-appeal activity (request for rehearing and petition for certiorari) so that the case still had some life by the time the T-Mobile decision was released.

June 23, 2017 – the Federal Circuit invalidated the patents in the T-Mobile decision. June 27, 2017 (two business days later) – Sprint filed a R.60(b) motion for Relief from Judgment based upon the Federal Circuit’s binding authority “that the patent claims underlying that judgment are invalid as unpatentable under 35 U.S.C. § 101.” The district court complied and set-aside its prior verdict and the Federal Circuit affirmed — finding no abuse of discretion.

As part of the Sprint timeline, it is notable that the Federal Circuit issued its mandate in May 2017 (before the T-Mobile invalidity decision). After the T-Mobile decision, Sprint unsuccessfully requested that the Federal Circuit recall the mandate. However, the court did issue a statement that recall was “unnecessary” because the “mandate does not alter how the district court should decide the preclusive effect of the T-Mobile ruling, which did not exist in May 2017.”

Another important element here a big question about whether the T-Mobile invalidity applied to all of the claims at issue in Sprint (the Federal Circuit retrospectively said yes).

Will the cost of this injustice be taken into account or only USPTO revenue? SUEPO very well grasps the idea/impact of externality and has spoken about it publicly for a number of years. We very much appreciate SUEPO (i.e. European patent examiners) for that. Why don’t USPTO examiners/patent clerks do the same?

“SUEPO very well grasps the idea/impact of externality and has spoken about it publicly for a number of years.”As pointed out by Benjamin Henrion last night, far too many patents are being granted. “China just allows patents on pretty much everything,” I responded to him. “My longstanding theory is that they flood the system of WIPO with junk so as to discredit it, making it obsolete (almost 1.5 million filings per year! More than the world COMBINED!)”

Henrion had also responded to another dumb piece from Watchtroll, titled “Independent Inventors to USPTO: We Are All Underrepresented in This Patent System”

“They labeled all software patent owners as patent trolls,” he quoted from it, adding: “Rightly so. Software developers deserve freedom of programming, not interference from the state in between them and their keyboard [] Small software patent trolls says they don’t have a voice at the USPTO: “Like many software patents post-2014, my first attempt to enforce my rights was defeated this past October.””

“Blogs sympathetic to the agenda of Iancu are running out of steam and it’s no wonder that the supposed ‘bill’ or ‘fix’ from Coons et al (against PTAB and Section 101 etc.) hasn’t been mentioned in a long time. It’s silently dying, just like in past years.”When Watchtroll’s Eileen McDermott talks of “Independent Inventors,” I’ve told him, she means not inventors but people who have a patent and want to sue someone who actually does, not says, something. The term “inventor” became wildly misused like “patriot” and other nonsense. Giving them something like PPH is only exacerbating matters.

We don’t want to link to Watchtroll. We stopped doing that about 5 months ago. We’re still adding new cases and case outcomes to daily links, without necessarily commenting (for lack of time mostly). Like we said last week, many blogs have become inactive. Remember Docket Report? It suddenly stopped completely (last summer). There are other such examples. Blogs sympathetic to the agenda of Iancu are running out of steam and it’s no wonder that the supposed ‘bill’ or ‘fix’ from Coons et al (against PTAB and Section 101 etc.) hasn’t been mentioned in a long time. It’s silently dying, just like in past years.

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