Bonum Certa Men Certa

These Terrifying Comments From Patent Practitioners Suggest They Too Believe UPC is Intended to Make EPO Virtually Obsolete

Filing centre (de facto registration), not a patent examination office... as we had warned for years, even before SUEPO did

"When asked by Ars, the EPO's spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO's internal rules..."

--Dr. Glyn Moody

Summary: EPO stakeholders too believe that the EPO is heading towards a collapse, whereupon they press for action although it may be too late (the crisis is deep and many EPs have been granted in error)

TEAM UPC is a truly dangerous bunch. It is pushing the same agenda as Battistelli -- to the point where earlier today we joked that if IP Kat does yet another UPC lobbying piece (lots of that recently), then we can call it "Katistelli".



Some of the biggest forces behind the UPC have just promoted their own people's actions (the so-called Committee which is actually wolves guarding sheep). "The UPC Prep Committee has published the latest draft Rules of Procedure for the Unified Patent Court," one of them said and Kluwer Patent Blog joined in, spurring the following new comment on it:

Kluwer Patent Blog; new RoP UPC:

New blog post about the UPC Rules of Procedure. The new draft ‘is yet to come under scrutiny by the European Commission on the compatibility of the Rules of Procedure with Union law€´... Really, all allegations that the UPC is not a EU legal construction are difficult to believe when reading that the Preparatory Committee is running its provisional papers along the European Commission for approval.

Yes, these people get paid for improving all they can before the start of the UPC, but they must feel like riding a dead horse. With the BrExit running, their work looks like it'll never be used...


More interesting comments, however, are coming out of this series from Thorsten Bausch (also at Kluwer Patent Blog), whose latest and last part has attracted some truly nuclear comments about the UPC. We believe that every EPO employee must read these to better understand what is going on at the EPO these days. Comments are copyrighted but assigned to their posters (typically anonymous), so we have decided to reproduce them below with emphasis added:

Readers I offer two possible explanations, A and B, for the bizarre behaviour of the EPO President.

A: in the interests of the Paris-based UPC getting a flying start, he wants to disable Munich-based DG3.

B: Currently, the Americans are re-stocking the numbers of judges at the USPTO, with staggeringly large numbers involved. But an Enarque can show the Americans what business efficiency looks like, and BB is the man to do it. Every time there is a meeting of the Group of 5, the bosses of the world’s 5 biggest Patent Office, BB is there with ever more impressive statistics to show the other four how, but only during his watch, the EPO has squeezed more output out of the Organisation, with ever higher “quality” and at the same time, ever-reduced costs.

Is there anything in explanations A or B?



Here is a response to that:

To me it is more option A which is valid (80%), whereby option B is not to be neglected as it pushes the ego of mr president ever higher.

In any case it is disgusting to transform a well working and reputable institution in a work floor churning out patents in a form and in a way which is not desirable for its users.

EPO looks more and more to industry as it was known in the former Eastern European countries! Ignore what the customer desires, but adhere to the plan as strictly as possible. We all know were planned economy led to.

I do not wish the EPO to end up in a disaster, but with the present management it will sadly end up in a disaster.


A good friend of the Boards wrote:

It is an absolute disgrace that the backlog in appeals has, by the own figures published by the Boards, increased. The reason is due to a chronical understaffing of the Boards. This chronical understaffing is a deliberate action of the president by not presenting to the administrative council new members and chairpersons in order to replace those leaving. Even the renewal of actual members was put on hold….

Here, like in DG1, emphasis is made on quantity and not on quality. For the president the members of the boards are simply too lazy and need a good push. Have you seen in any country the judges being obliged to give a minimum number of decisions per year in order to retain their job? This is what will happen with the new rules for renewing the contract for members.

The carrier of member of the boards has also been made unattractive, as there is no salary increase in the five years of a contract. A renewed contract will only be granted, and a corresponding increase in salary given, if the performance of the member has been considered “adequate”, not to use a worse word.

I fully agree that the sending of the Boards to Haar will not improve the situation in the slightest. On the contrary it will degrade it. The reason is very simple: the building is too small since it does not have enough rooms for the Boards to hold oral proceedings on the premises. Especially the number of rooms with simultaneous interpretation is anything but commensurate with the needs. So the boards will have to come back to the Isar building in order to hold their oral proceedings. Where is the gain in efficiency?

By now it should abundantly clear that all the actions against the boards and especially the sending of the boards to Haar is a nothing more than a revenge of the president over the boards. The enlarged board has not accepted to simply dismiss a member of the boards as the president wished. It has not accepted that the president has simply disregarded the separation of powers. This is however a basic requirement of any properly working society, which is not governed by an autocratic leader.

In this respect the administrative council, at least some members of it, have been truly accomplices of the president’s endeavour. When one looks at the vote in the administrative council, it is a majority of countries filing hardly any European applications, and hence having hardly refusals or oppositions, which made it possible to take the decision to change the carriers of the members and on top of it to send the boards to Haar. One wonders why?

That some boards apply the rules of procedure, or remit under Art 111, in way which allows to raise eyebrows, has however also to be said. But they are in a similar position as the examiners, and their position can be understood.

That in any system, a judicial institution is not in a situation to cover its costs, should not be taken against the boards of appeal of the EPO. The idea of simply increasing the appeal fee to ludicrous levels is also an attack on the users of the system. If the fee is too high, then the number of appeals will decrease. Is this rendering justice?

The boards of appeal are not any longer allowed to decide on their rules of procedure. The rules of procedure can only be adopted by the administrative council after the Boards of Appeal committee (comprising no members of the boards) has approved them and the President of the EPO had an opportunity to comment……. The only body in which members of the boards are represented is the presidium of the boards, and this body merely advises the President of the Boards of Appeal on proposals for amendments to the Rules of Procedure. Is there more to say?

I can only encourage readers of this blog to have a good look at the changes of the structure of the boards. On the paper, they look more independent, but on reality the contrary is true.

In my opinion the whole attack on the boards, is part of a long strategy. It is to weaken them so that in the long run everything will be dealt with by the UPC. Examination will consist in a quick look at prior art, followed by a quick grant, and any dispute afterwards will come before the UPC. The boards of appeal having more or less disappeared, there will also not be any risks of conflicting case law. Is this not wonderful?

By acting like this the president of the EPO and its followers are not only cutting the branch on which the staff of the EPO is sitting, members of the boards included, they also cut their own branch, and more worrying, they are cutting the branch on which the whole profession is sitting, at least as far as prosecution is concerned. Those firms also doing litigation will suffer much less. And look at the firms who have pushed the UPC through. No surprise…..



A sceptical one writes:

Of course, another way to help reduce the rate of growth of the backlog would be to improve the quality of decision-making at first instance. I don’t mean the EPO’s much-trumpeted “quality” ratings, but *real*, high-quality decision making. Speak to any attorney in private practice and you will find anecdotes by the bucketload confirming the increasing frequency of rushed, slapdash search and examination reports, incomprehensible or unreasoned objections, and opposition decisions taken by evidently inexperienced Opposition Divisions. I have the utmost respect for the EPO examiners and know that they are capable of doing a very thorough job, but it seems that the current focus on conflating speed with quality is severely detrimental to the real quality of work. Bad decisions lead to more appeals: it is as simple as that.

I am sceptical about the rumours that the Boards are being deliberately downgraded to pave the way for the UPC, however. For inter-partes proceedings the UPC can indeed, in principle, take the place of the boards. But the UPC will not have jurisdiction to review ex parte cases in the event of unjustified refusal of a patent application.



In response to that, notice what is said (honestly) about SMEs:

I agree with you about the fact that ex-parte procedures might be reviewed by the boards which cannot be the case of the UPC. But then, it should remain accessible also from a financial point of view.

Why should the appeal fee steadily grow up to a few thousand € just because some manager has decided that the boards should be self-sustaining? In no contracting state of the EPC the judicial authorities are self-sustaining. On top of a high appeal fee, there are also the costs for a representative.

It can become rapidly prohibitive for a SME, but no, the whole system is to help the SMEs, isn’t it?


Here is a very important observation by "Observer":

‘Appointments’ this time was actually a single external legal member (MC?) appointed to the EBoA. All others announced were re-appointments.


Thorsten Bausch himself was stunned by this, as apparently he was not aware; he had been misled by the Liar in Chief. He then wrote:

Whow. What a big disappointment. So if this true, even the language of the communiqué (“The Council made a number of appointments (…) to the Boards of Appeal”) is wrong and misleading. I would really like to know what is going on in this “Administrative Council” and why they do not care more about a functional European Patent Office.

The UPC will clearly not be a solution to this problem. Firstly, it will be unaffordable for and has not been designed to serve the interests of SME. Secondly, the territorial scope of its decisions will not nearly match the territorial scope of an EPO decision, which covers all EU members without exception in addition to several important non-EU member states (Turkey, Switzerland, Norway to name but a few). Why do the AC members of at least these states not stand up and protest against the President’s inactivity?

Thirdly, if the UPC had to deal with more than 1000 new cases per year, as the BoA currently have to, the entire system would very quickly break down completely. We cannot allow this to happen.



Then it veers off in another direction:

Slarti thinks that top quality decisions at first instance (ED or OD) will take the pressure of cases off DG3. I disagree.

However good the decision at first instance, whenever the case is important the loser will appeal (and then perhaps try harder to settle with the other side). No way is there going to be any diminution of the flow of new cases to DG3.

In England only one in three losers appeal though. How can that be? I say it is for reasons that don’t apply in civil law jurisdictions like mainland Europe.

What are those reasons. Fact-finding under English law is not usually appealable. With judges at first instance who do not get the law wrong, and with the facts not alterable on appeal, it is pointless. In addition, it’s horrible expensive.



And watch the response:

With respect, Max, I disagree to some extent.

Let me say at the outset that I completely agree that the understaffing and excess pressure on the Boards is nothing short of a complete scandal and it is both baffling and concerning that the AC continues to tolerate this.

However, let’s take as a proposition that many European patent applications are being (erroneously) refused due to undue pressure on the Examining Division leading them to cut corners and fail to consider applications properly. I’ve had several where I’ve been through a frustrating round of prosecution where the Ex.Div. simply keeps reiterating old objections without telling me why they disagree with my counterarguments. In such cases a final refusal can be expected and the only way to get the case looked at properly is by filing an appeal. If the pressure on the Ex.Div. and the “managerialism-by-numbers, high turnover equals high quality” is dropped, fewer applications will be wrongfully refused and so there will be no need to appeal against such refusals.



Finally, there's this:

Slarti, you say nothing about oral proceedings before the ED. Some say that this is the first time that the work of the First Member gets scrutinised properly. Engage with all three ED members? Does that ever work?

But I am inclined to agree with you, that management these days in DG1 thinks that efficiency dictates making the decision (allow or refuse) early, indeed when issuing the EESR. Then, if it is to be a refusal, one should get the case out of DG1 and onto DG3’s docket as soon as possible



"Michel" said this, in the absence of criticism from stakeholders until it was too late to salvage the EPO:

You are perfectly right, but your complaints come much too late. Why did you not put pressure on the German representative before the vote? Germany did not vote against this disaster, did they? And, incidentally, why did epi not protest at all?

Unbelievable as this may seem, whenever I discuss with German attorneys, they appear to discover that there might be a problem. Is the whole profession asleep? You get what you deserve.


They too recognise that this system is rotting if not collapsing. Who would suffer as a result? It's almost a rhetorical question. This is why we spent so much time covering these scandals.

Comments

Recent Techrights' Posts

Two Risks to Companies: The Microsoft Culture and the Microsoft Tools
Novell was killed by a form of "social engineering" by Microsoft
It's Hard to Trust People Who Worked - Not Only Those Who Still Work - at Microsoft
Bryan Lunduke is just what people would call an "arsehole of a person"
Links 06/07/2025: Climate Change and "The Right to Criticise"
Links for the day
The Mainstream Media Took 4 Days to Realise Microsoft Shut Down Its Operations in Pakistan and Fired Everybody
We estimate that Microsoft has had about 29,000 layoffs since January
“Twibel” Actions Against Comedians (and Why It's a Truly Low Blow)
they try to make up in quantities for a lack of merit or quality
 
[Video] "Copyleft Isn't a Bug."
"Copyleft isn’t a bug. It’s a feature. GNU GPL forced the world to treat code like a public good."
Being in Social Control Media Means Exposing Oneself to Heckling
Richard Stallman does not (either himself or directly) post to any social control media
Links 06/07/2025: Airlines Perils, Scams, and Breaches
Links for the day
For the Second Time, Bryan Lunduke From Microsoft is Siccing Racist Trolls and Vandals at Me
You're only reinforcing the point we made yesterday
Links 06/07/2025: End to End Encryption at Risk, Reuters Twitter ("X") Account Withheld in India
Links for the day
Gemini Links 06/07/2025: Tinylog and Certification Rotation
Links for the day
PCLinuxOS Sites Coming Back, Gradually
let's just be patient
Social Control Media, Even If Based on Free Software, Still Has Many Problems
a distraction from what actually mattered and still matters
IBM is Not Your Master
IBM makes friends with people who exclude the majority of the population: women
Help Fund the Free Software Foundation (FSF)
If you have some dollars to spare, go support the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 05, 2025
IRC logs for Saturday, July 05, 2025
A Short History of Attacks on Techrights (and Boycott Novell Before That)
good opportunity to tell again the story of several (not all) attempts to silence us
Leadership in Free Software
Don't let IBM lead. It's a terrible flag bearer.
Linux Foundation Apparently Flirting With Slop (Marketing by LLM-Generated SPAM)
The Web is in a really bad state!
COVID-19 Sped Up Site Improvements in Techrights
A few months later we created our very own IRC network
Gemini Links 05/07/2025: Negative Questions and 'Touching Grass' (Going Outside)
Links for the day
Links 05/07/2025: Dalai Lama Succession as 90th Birthday Approaches, 40 deg C in China
Links for the day
Links 05/07/2025: Hungary and US Defecting to Russia, "Google's Hotseat Hypocrisy"
Links for the day
Gemini Links 05/07/2025: 4th of July 2025 and "Zig Roadmap 2026"
Links for the day
How to Combat the Exploitation and Abuse by Microsoft GitHub
Not to mention corruption and crimes against women
Bryan Lunduke is Actually Sending His Audience to Attack People
"[Lunduke] is actually sending his audience to attack people."
Even The Right Wing is Rejecting Bryan Lunduke
no wonder he became so irrelevant and marginal
Microsoft's MSN Helps Microsoft Spread Lies About the Layoffs' Scale (Well Over 25,000 People Laid Off This Year)
There seem to be monopolies on lies and on truth
The Death of X Has Been Greatly Exaggerated (by Compromised Media)
X.Org Server is alive and well
Rewriting Things in Rust
How far would you go?
In 2025 Everything is "AI". Remember Blockchains?
Talk about what companies and things (services, products, software) actually do, not the labels they use
Julian Assange Has Been Free for a Year
Julian Assange and I disagreed on some things
Monopolies and Scalping
Monopolies gravitate towards price hikes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 04, 2025
IRC logs for Friday, July 04, 2025
Microsoft's August Layoffs Wave: "August is Confirmed for Additional Performance Based Cuts"
"August is confirmed for additional performance based cuts from the recent connects along with additional organizational cuts."
What Microsoft Reputation Laundering (With a Weaponised Law Degree) Looks Like in a Foreign Continent
You would expect this in uncivilised and primitive countries
Slopwatch: LLMs 'Write' Fake or Distorted 'News' About "Linux"
LLM slop disguised as news
Links 04/07/2025: Google Replaces the Web With Slop, "AI Might Kill Us All"
Links for the day
Gemini Links 04/07/2025: Mindfulness and F1
Links for the day
Weeks After Microsoft Bankruptcy in Russia the Company Shuts Down in Pakistan, Too
Last month Windows' share in Pakistan fell to an all-time low
Rob Musial's June 2025 Additions of Malware in Proprietary Software
Via the GNU Web site this week
Links 04/07/2025: Microsoft's H-1B Visa Applications Show Another Crisis Unfolding, Many More Deep Cuts and Shutdowns Revealed, Complete Microsoft Exits
Links for the day
Gemini Links 04/07/2025: A Day To Remember and "Stop Killing Games"
Links for the day
Crime and Corruption at Microsoft GitHub Cannot be Covered Up by SLAPPs in Another Continent
We'll write about this for a long time to come
Slop Videos Are Disappointing Garbage, Nothing New, Just Brute Force up on Display or a Pedestal of Slop
Slop videos aren't a new thing
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 03, 2025
IRC logs for Thursday, July 03, 2025
The War on Local Storage (People Hosting Their Files Locally and Privately)
There's nothing wrong with controlling one's computing
What Digital Independence Means
Independence in the digital realms means abandoning platforms like GitHub, not just rejecting proprietary software
NVidia is a Bubble
they temporarily see fortunes and wrongly assume perpetuity thereof
Fedora Does Not Care About Diversity and Inclusion, It's About Optics (Corporate Image)
any notion of inclusion is superficial and misleading
Don't Buy the Excuses for Microsoft's Mass Layoffs
Back in the 90s, Microsoft bought a lot of companies to get and stay ahead