Bonum Certa Men Certa

'Constitutional Crisis' at the European Patent Office (EPO)

Declaring de facto Martial Law in defiance of the spirit of the Office, in order to seize additional powers

Rodrigo Duterte
Photo credit: Edwin Espejo



Summary: The Benoît Battistelli-run EPO is not run like a professional institution anymore and it does not even obey the rules of the founding fathers of the EPO

Several years ago we took note of a steep decline in patent quality at the EPO, whereupon we started writing not only about software patents at the Office but also its general policy. Some signs of wear could first be seen towards the end of Brimelow's term (see our articles from around 2008). A lot of patent examiners knew about it, but with hypothetical stuff like the Community Patent over the horizon at the time (just another name like EU Patent, EPLA or UPC) there was probably hope that there was some "greater good" somewhere along the way. Well, now we know better that compromising patent quality and inviting malicious actors like trolls (entities which are creating nothing, effectively predators that prey/run over others for quick gains through racketeering) would be an inevitable side effect of such a patent regime. Not only would that hurt European businesses; it would also harm patent examiners and their families, pensions, sense of pride etc. Like ISDS inside treaties such as TPP, the goal is not to promote some public interests but to advance corporate interests through their lobbyists, lawyers, etc. Don't we already know how it typically works after defunct efforts like ACTA? Don't we have a collective responsibility to put an end to that? For me, as a software developer and researcher (medical biophysics is my specialty), the EPO looks increasingly daunting especially because of the phasing in of software patents inside Europe. I wish to develop software and deploy software in peace, without having to fear threatening letters from patent trolls, not to mention threatening letters from the EPO. A lot of people feel the same way. They share the concerns that I do; that is why many software developers are in general strongly against software patenting, not just in Europe but everywhere in the world. For those who wonder about my motivations (sometimes because they try to malign and discredit me), there are no personal grudges against EPO managers (they are not my employers and I have nothing to fear from them personally), it's just that the EPO is heading down a really bad path and everyone -- including EPO insiders -- are assured to suffer from this. My goal is to help redeem/save the EPO, not to destroy it. When a lot of people try to fix the EPO it's likely that this fix will be an inevitability. One tyrant cannot defy the motivations of the majority of his staff. It's as simple as that. These are highly-skilled workers that aren't disposable and not easily replaceable (for recruitment of docile/loyal 'drones' such as scabs).



"These are highly-skilled workers that aren't disposable and not easily replaceable (for recruitment of docile/loyal 'drones' such as scabs)."The more we learn about the EPO and the deeper we delve into its top-level operations (Team Battistelli and their corporate masters), the uglier things look. How did it get this bad? Maybe this has been brewing for a number of years, but mostly behind closed doors. Now that doors are opening a lot of 'dirty laundry' comes out and the stench is overwhelming. FIFA was nothing compared to this.

"Discuss the importance of EP protection for US industry here," the EPO wrote yesterday. Yes, it seems like the EPO is prioritising US conglomerates now, even at the expense of European businesses. It's easy to see that the EPO does not give a damn about SMEs, no matter what it said this week about them. It's all hogwash. Under Battistelli, those who bring more income receive better treatment and that's just morally and professionally wrong. It's unprofessional.

Watch the EPO linking to a "Boards of appeal" page which says "Discussion of mock trial" as if they are talking about the Judge Battistelli attacks and defames. More "mock trials" were mentioned yesterday by a Bristows blogger. It's basically promotion of EPLAW (guess who's behind EPLAW).

In this other new article from her IP Kat 'colleague', Mark Schweizer, some are still floating the UPC, saying that a CJEU "case is interesting because the Preparatory Committee for the Unified Patent Court has suggested the adoption of ceilings on recoverable costs [...] whether and when the UPC will ever become a reality is anybody's guess" (probably never).

Another rename/rebrand for the UPC is likely, especially if the UK remains a major barrier. Watch this new IAM "REPORT" (i.e. advert) titled "Impact of Brexit on US IP owners". Surely they know that as long as Brexit stands, there is virtually no way for Lucy to ratify the UPC (even for a friend like Benoît Battistelli).

Expect the Battistelli-led EPO to continue its race to the bottom. It's pushing for the bottom low of patent quality for the sake of so-called 'production' and earlier this week we mentioned the effect on the EPC with the relevant document added later [1, 2]. Quite a few comments came up about it, even some which cite Techrights. One person wrote in IP Kat:

A leaked copy of that presentation would be much appreciated. If the EPO is planning to change such a fundamental as the law / standard that it applies during examination, then this issue really needs to be debated in public.

Of course, given what has happened at WIPO (where the Member States are being denied access to a report: that they commissioned; which concludes that WIPO's director knowingly flouted UN sanctions; and which has been passed to the direction in question despite containing sensitive details of whistle-blowers who testified against him), it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC.


"A leaked copy of that presentation would be much appreciated," the above says and if anyone who reads this saw the presentation and has a copy of the slides, please consider transmitting these to us.

The following IP Kat comment is responding to someone who (as quoted above) said "it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC."

Check the Protocol on Privileges and Immunities:

Article 23 (1) Any Contracting State may submit to an international arbitration tribunal any dispute concerning the Organisation or an employee of the European Patent Office or an expert performing functions for or on its behalf, in so far as the Organisation or the employees and experts have claimed a privilege or an immunity under this Protocol in circumstances where that immunity has not been waived.


"As I have said before," added another person, "crap patents are fine, as long as everyone understands they're crap."

The principal danger is that, over time, more people will realise that EPO patents are of low quality and won't be willing to: 1) pay for claims without challenging them in courts; 2) take an EP at face value and haul companies into court; 3) pay a high fee for application/renewal/appeal.

Here is the comment in full:

From the SUEPO document posted on Techrights, it seems that the EPO strategy is not sinister. The aim is merely to reduce the quality of examination, and thereby increase the throughput, or possibly the other way round. Nothing wrong with that. As I have said before, crap patents are fine, as long as everyone understands they're crap. Whether applicants will still be interested in paying top dollar, and whether the EPO will find intelligent engineers willing to churn out crap day after day, is another question. OK, two questions. And questions which must presumably have been considered at length by the EPO's indisputably enlightened management.


Another person wrote:

So it looks like the answer to the open question is "no". There would have to be a "dispute" in the first instance (question: how could a such a dispute come about?), and then there would need to be an arbitration tribunal willing and able to take this on (question: would ILOAT have the competence, or even the inclination, to take on a dispute concerning compliance of EPO examination policy with the EPC? And if not the ILOAT, then who else?).


In relation to Brexit one person wrote this morning about the EPC/EPO/UPC that "[i]t's like BREXIT. The procedure exists (on paper). Somebody just needs to start the ball rolling. It's all in the PPI. The founding fathers foresaw that there could be disputes and accordingly they made arrangements for arbitration."

That's like people in the US justifying the abolishment of the Constitution or Amendments "because of terrorism" or something to that effect. The only emergency at the EPO right now may be fiscal/financial -- a subject we shall cover another day.

Recent Techrights' Posts

Backlash and Negative Press After Microsoft Tells Diversity, Equity, and Inclusion (DEI) People to DIE
Follow-up stories
Microsoft's Bing Falls to Fourth in the Europe/Asia-Based Turkey, Share Halved Since LLM Hype, Now Only 1% (Sometimes Less)
Turkey (Eurasia) is another example of Microsoft failing with LLM hype and just burning a lot of energy in vain (investment without returns)
Censorship as Signal of Opportunity for Reform
It remains sad and ironic that Wikileaks outsourced so much of its official communications to Twitter (now X)
The World Wide Web Has Been Rotting for Years (Quality, Accuracy, and Depth Consistently Decreasing)
In the past people said that the Web had both "good" and "bad" and that the good outweighed the bad
Comoros: Windows Plunges to Record Low of About 6% in Country of a Million People (in 2010 Windows Was 100%)
Many of these people earn a few dollars a day; they don't care for Microsoft's "Hey Hi PC" hype
 
Links 18/07/2024: ORG Complaint to ICO About Facebook, Korean Double Agent Unmasked
Links for the day
Joel Espy Klecker & Debian on Joe Biden's health and Donald Trump's assassination
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 17, 2024
IRC logs for Wednesday, July 17, 2024
Links 18/07/2024: Hostname Pedantry and Retro Coding
Links for the day
Fedora Week of Diversity (FWD) 2024 Attracting 0.01% of the IBM Staff "Was a Success"
They expect volunteers (unpaid slaves) to do the PR for them...
African's Largest Population (Nigeria) Approaching 80% Android "Market Share" Amid Steady Monthly Increases While Microsoft Has Mass Layoffs in Nigeria
Microsoft- and Apple-sponsored Western (or English-speaking) media chooses to ignore that or treat it as irrelevant (a racist disposition in its own right)
[Meme] The Warlord's Catspaw
Thugs that troll us
Microsoft Misogyny Will be the Fall of Microsoft (Covering Up for Misogynists is a Huge Mistake and Highly Misguided Short-term Strategy)
Microsoft's undoing may in fact be its attitude towards women
Red Hat Keeps Behaving Like a Microsoft Reseller (for Proprietary Stuff!), Microsoft Employees as Authors in redhat.com
In some ways this reminds us of Novell
UEFI 'Secure Boot' Once Again Bricking PCs and Fake Security Models Are Perishing in Geminispace
Let's Encrypt has just fallen again
Links 17/07/2024: New Attacks on the Press, European Patents Squashed Even at Kangaroo Court (UPC)
Links for the day
Gemini Links 17/07/2024: Proponents of Censorship and New Arrivals at Gemini
Links for the day
Links 17/07/2024: School Budget Meltdown and Modern Cars as Tracking Nightmares
Links for the day
This Should Certainly be Illegal, But the Person Who Helped Microsoft Do This is Still Attacking the Critics of It
perhaps time for an "I told you so post"
[Meme] A Computer With an Extra Key on the Keyboard Isn't Everyone's Priority
(so your telling me meme)
Africa as an Important Reminder That Eradicating Microsoft Doesn't Go Far Enough
Ideally, if our top goal is bigger than "get rid of Microsoft", we need to teach people to choose and use devices that obey them, not GAFAM
Billions of Computers Run Linux and Many Use Debian (or a Derivative of It)
many devices never get updated or even communicate with the Net, so exhaustive tallies are infeasible
The Mail (MX) Server Survey for July 2024 Shows Microsoft Collapsing to Only 689 Servers or 0.17% of the Whole (It Used to be About 25%)
Microsoft became so insignificant and the most astounding thing is how the media deliberate ignores it or refuses to cover it
[Meme] Microsoft is Firing
Don't worry, Microsoft will have some new vapourware coming soon
More DEI (or Similar) Layoffs on the Way, According to Microsoft Team Leader
What happened shortly before Independence Day wasn't the end of it, apparently
Windows Down From 98.5% to 22.9% in Hungary
Android is up because more people buy smaller mobile devices than laptops
Microsoft Windows in Algeria: From 100% to Less Than 15%
Notice that not too long ago Windows was measured at 100%. Now? Not even 15%.
[Meme] Many Volunteers Now Realise the "Open" in "OpenSUSE" or "openSUSE" Was Labour-Mining
Back to coding, packaging and testing, slaves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 16, 2024
IRC logs for Tuesday, July 16, 2024
Microsoft Windows "Market Share" in New Zealand Plunges to 25%
Android rising
[Meme] Ein Factory
A choice between "masters" (or "master race") is a false choice that results in mass exploitation and ultimately eradication (when there's little left to exploit)
Links 17/07/2024: Open Source Initiative Lies and Dark Net Thoughts
Links for the day
SUSE Goes Aryan: You May Not Use the Germanic Brand Anymore (It's Monopolised by the Corporation)
Worse than grammar Nazis
Media Distorting Truth to Promote Ignorance
online media is rapidly collapsing
Gratis But Not Free as in Freedom: How Let's Encrypt is Dying in Geminispace
Let's Encrypt is somewhat of a dying breed where the misguided CA model is shunned
Android Rises to New Highs of Almost 80% in Cameroon
How many dozens of nations will see Windows at under 10% this coming winter?
Links 16/07/2024: TikTok Ban in Europe and Yandex Split
Links for the day
Gemini Links 16/07/2024: On Packrafting and on Trump Shot
Links for the day
[Meme] Firefox Users Who Think They Know Better Than Mozilla
Enjoy Firebook
Firefox Used to Have About Half the Market in Switzerland, But It Doesn't Stand a Chance Anymore (Chrome Surging This Summer)
Mozilla has managed to alienate some of the biggest fans of Firefox
Microsoft's Biggest Losses Are in Europe This Summer
Microsoft's ability to milk a relatively rich Europe is fast diminishing
How to Make Software Suck and Discriminate Against People at the Same Time
ageism glorified
Bing Was at 2.6% in Russia When LLM Hype Started. Now It's Down to 0.8% (for 3 Months in a Row Already)
The sharp fall of Bing may mean that exiting the Russian market won't matter to anybody
[Meme] Microsoft Seems to be Failing to Comply With WARN Act (by Refusing to Announce Mass Layoffs as They Happen)
since when does Microsoft obey the law anyway?
Microsoft Layoffs Are Still Too Frequent to Keep Abreast of and Properly (or Exhaustively) Classify
The "HR" department knows what's happening, but whistleblowers from there are rare
Bahamas Joined the "5% Windows" Club
statCounter only traces back about 1 in 20 Web requests to Windows
Links 16/07/2024: Salesforce Layoffs and Microsoft's DMARC Fail
Links for the day
Antenna Abuse and Gemini Abuse (Self-hosting Perils)
Perhaps all this junk is a sign of Gemini growing up
Possibly Worse Than Bribes: US Politicians and Lawmakers Who Are Microsoft Shareholders
They will keep bailing out Microsoft to bail themselves out
The Software Freedom Conservancy Folks Don't Even Believe in Free Speech and They Act As Imposters (Also in the Trademark Arena/Sense)
Software Freedom Conservancy was already establishing a reputation for itself as a G(I)AFAM censor/gatekeeper
Djibouti Enters the Windows "10% Club" (Windows Was 99% in 2010)
In Africa in general Microsoft lost control
GNU/Linux Share Doubled in the United States of America (USA) in the Past 12 Months
Or so says statCounter
Even in North Korea (Democratic People's Republic Of Korea) Google Said to Dominate, Microsoft Around 1%
Google at 93.26%
[Meme] The Red Bait (Embrace... Extinguish)
They set centos on fire, then offer a (de facto) proprietary substitute for a fee
Shooting the Messenger to Spite the Message
segment of a Noam Chomsky talk
[Video] Boston Area Assange Defense (Yesterday)
It was published only hours ago
Guinea: Windows Down From 99.3% to 2.7% 'Market Share'
Guinea is not a small country
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 15, 2024
IRC logs for Monday, July 15, 2024
What's Meant by "Antenna Abuse" (Gemini)
syndication is not a monopoly in Gemini and if one doesn't condone political censorship, then one can create one's own syndication service/capsule
Microsoft Layoffs and Entire Unit Termination: Diversity, Equity, and Inclusion
What an announcement to make just before Independence Day
Links 16/07/2024: Old Computer Challenge and One Page Dungeon Contest
Links for the day