Bonum Certa Men Certa

Death of European Patent Quality: The EPO Officially Sends the Appeal Boards to Exile Despite the UPC Going Nowhere

Something poetic about them being sent to Haar, supposedly for their 'freedom'

Prison



Summary: Directorate-General 3 (DG3) of the European Patent Office (EPO) is under attack, presumably because Battistelli wants to promote UPC in Paris, but EPO management is lying about it this morning

THE weekend was spent writing several more parts of Battistelli's Club Med at the EPO and some USPTO news, which we'll revisit in a moment. The EPO has generally been rather quiet, but this morning it published this tweet and "news" (epo.org link) to say about DG3:



Next week, the EPO Boards of Appeal will start work at their new location in Haar, Munich. The move from the EPO's Isar headquarters to a separate building is part of a comprehensive set of reforms adopted by the organisation's Administrative Council in June 2016 to strengthen the perception of independence and efficiency of the Boards.


The EPO has basically just told another lie. This does not "strengthen the perception of independence" but the exact opposite.

This, some believe, was done before Brexit under the false assumption that UPC would have started last year or early this year. Battistelli is just trying to put the board one kick away while "strengthen[ing] the perception" that he obeys the EPC (when in reality he blatantly violates it at every turn).

Not only did Battistelli illegally suspend (if not dismiss) one of the judges -- a move supported by Jesper Kongstad who as of Saturday no longer works for the EPO.

Battistelli's attacks on other staff are all well documented. "Another insider," one reader told us, "can confirm that they indeed mob staff who ever criticised the management, in several cases for many years. By instruments like C342 the Battistelli administration could target any critical staff and mob them out..."

Examples include "staff reps who were dismissed later (either formally or informally)."

The sad thing about it is that Battistelli is supported by aggressive elements of the patent microcosm, such as Bristows. Days ago Marks & Clerk (longtime UPC booster) also published another UPC puff piece that sucks up to EPO management. Here are some portions from it:

The European Patent Office has recently issued their guidance notes regarding obtaining, maintaining and managing Unitary Patents (UPs). Spanning to 40 pages, inevitably considerable detail is given. Some practical aspects of this note are discussed below.

[...]

Changes in the structure of the EPO


Changes for what? The UPC isn't even happening. In other words, Battistelli totally crashed the EPO in vain. Now it's stuck in the middle of nowhere, with a sinking number of patent applications and a stock that's about to run dry (rendering most examiners redundant and many EPs worthless because of their low quality).

Over the weekend in IP Kat someone left the following comment regarding the UPC and EPC:

Litigation is always a last resort, and any means to come to an out of court settlement is preferable to a long and tedious legal battle. I understand thus the reason for such a request.

If it is true that according to Council Regulation (EC) No 44/2001 there is no exclusive jurisdiction for patent infringement cases, then why do we need a UPC?

As far as validity is concerned, it could be decided by the EPO, provided the opposition period would not be limited to 9 months post grant. As the proprietor may limit its patent during the whole life of it, why should third parties bothered by a patent be limited to a relatively short period?

This arrangement would also avoid any clash between decisions on validity between the UPC and the Boards of appeal of the EPO. This is to me one of the potential drawbacks of the UPC.

the UPC will not be the only court dealing with infringement/validity in Europe. The EPC has more member states than the UPC, and their courts should not be belittled. There is no mechanism to resolve such conflicts, and claiming like Mr Arnold at the UPC conference in July in Munich, that the UPC will be the leading court in Europe is quite daring. The UPC will not be the only court dealing with infringement/validity in Europe as the EPC has more member states than the UPC, and their courts should not be belittled.

In Milan the parties and the case were not the same, so there was no res judicata. But deep down the problems were the same as in the UK.

If the applicant had made an effort in fighting for a mere general claim, then we would not have ended in the present situation. I can agree that a more general claim would probably have been possible, not as broad as originally, but limited to permetrexed ions and with at least one or two different examples, or the proof that it works for other ones than the one specifically disclosed.



"EPO President went on a crusade to shut down DG3 and, suddenly, it seems that DG3 is no longer independent," said the next comment. Here is the comment in full:



Attentive, you ask why the EPO cannot do the validity side of the litigation.

Of course it can. The Dutch courts used to ask the EPO for an opinion on validity.

The problem is though, that judges think they can do it better. In particular, they think they do obviousness properly. The "no nonsense" Problem/Solution Approach by DG3 is not for them. They like lots of nonsense.

And then there's bifurcation. Can't have one forum construing the claim for validity and another for infringement, can we now? Or perhaps we can, eh?

And then there's the independence issue. Never used to be a problem. But then the EPO President went on a crusade to shut down DG3 and, suddenly, it seems that DG3 is no longer independent.

What irony, when you imagine that Le President's shut-down of DG3 was all done in order to give the UPC in Paris a flying start.



A short while ago someone added this (also regarding DG3):

I have a question for the kind commenter who told me (above) over the weekend that a claim to pemetrexed would have got past not only the EPO but also the national courts, and should have been put forward and driven home by the Lilly attorney prosecuting the application at the EPO.

BUT: When prosecuting at the EPO, it can be seen as risky indeed, to put forward the claim you want, and then see it rejected, first by the ED and then by DG3. I often suggest to clients that to try for their wished-for amendment, and fail, might be worse (when it comes to acting against infringers) than not to have tried at all. In particular, the scope of "infringement by equivalent" is often likely to be broader with a clean EPO prosecution record, than one in which Applicant tried and failed to get the claim that matters.

Perhaps cases like this will help Big Corp to realise that, in a First to File world, it makes sense to invest in quality drafting.

Meanwhile, this litigation demonstrates (yet again) how much easier everything is, with the benefit of hindsight.



It's hard to believe that anyone out there -- other than trolls, bullies and their law firms -- genuinely wants the UPC. Battistelli too has his own selfish interests, just like Michel Barnier. It might even make sense for some circles in the French government to offer Battistelli 'protection'.

Recent Techrights' Posts

Teaser: The Next Series About the SRA, Which Would be Just as Effective as It Is Right Now If It Had Zero Employees
the lapdog (of the "litigation industry") that is meant to be perceived as a watchdog
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part I - Introduction
The SRA is a sham. Many people know this already, but we want to document our own experiences with it.
Live Simply, Live Better
Life isn't about "collecting" possessions; it's about doing things that matter and accumulating knowledge so as to make better choices
Now That XBox is Pretty Much Dead and There Are Mass Layoffs at Microsoft
This means our predictions about Microsoft (and XBox) are "falling into place"
The term FUD (fear, uncertainty, doubt) was created to describe IBM's tactics and IBM is doing it again
Rob Thomas or "RT"
Slop is Distraction
LibreWolf will never include any of this slop nonsense, no matter if toggled on or off
Cult inquiry: Parliament of Victoria, last chance to have your say
Reprinted with permission from Daniel Pocock
Still Lots of IBM Departures
It's not that we lack evidence of IBM layoffs. It's just that we have ample evidence of the press not doing its job (or barely existing anymore).
The Register MS Standards: Promote a Ponzi Scheme in Exchange of Money
Once upon a time it was a serious publisher. Months ago it was taken over by a Microsoft person.
Dr. Andy Farnell: Time to Pull the Plug?
insightful, as usual
 
The Mass Layoffs at Microsoft That Nobody in the "News Industry" Wants to Talk About (and TheLayoff.com Censored, Then It Censored the Evidence of the Censorship)
They basically cover up how they censored the news about Microsoft layoffs
Richard Stallman to Give at Least Three Talks in Switzerland, Starting This Week
No mention (yet) of the Bern talk
On Who 'Speaks for' Techrights
typically a case of misrepresenting the site
'FSFE' an Imposter in Europe, Paid by GAFAM to Represent GAFAM Interests
The Microsoft-sponsored 'FSFE', which violates the terms of use of its name, is causing confusion [...] formally-recognised institutions got tricked into thinking that the Microsoft-sponsored 'FSFE' is the FSF
Lots of Lies From the Slop Industry
The slop industry relies on fake news to give a notion or fake demand
Links 01/03/2026: American Plutocrats Buy American Media While American Constitution Shredded
Links for the day
Gemini Links 01/03/2026: "In the Spirit of OFFLFIRSOCH" and "Delete Patreon"
Links for the day
ACM Lowers Its Standards for Age of Autocracy
IBM is more than happy to work with autocracies
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 28, 2026
IRC logs for Saturday, February 28, 2026
Internet Relay Chat (IRC) Turns 37.5
Can IRC reach age 75?
Gemini Links 28/02/2026: Loadbars 0.13.0, IME (Input Method Editor), and ColorColumn in Vim
Links for the day
Two EPO Strikes in March (Maybe More)
As per the SUEPO diary [...] We still have an ongoing series about the EPO, with several more series to start later
Why We Are Concerned About the SRA's Failure and What That Means to the Profession of Lawyers in the UK
Unregulated industries will lose their credibility as there is a threat of growing perception that they operate outside the law rather than practice law
Over 10,000 Pages/Articles Per Year?
Probably my most productive month, ever
Keeping Techrights Online 99.99% of the Time
Some time later this year we'll tell a very long story about how extremists attacked our webhosts
Richard Stallman, Founder of the Free Software Movement, Will be Giving Public Talk in Bern (Switzerland) in Less Than 12 Days
We are still doing a series about him and his talks
Slopfarms' Demise Looks Like the Beginning of the End (Lowered Demand for Slop)
Slop about "Linux" has gotten hard to find this past week
Links 28/02/2026: "Tehran’s Two-Tiered Internet", "Internet Under Fire"
Links for the day
When an Entire News Site is About One Topic (and One Topic Only)
Tomorrow we start a new series for the new month
Links 28/02/2026: Bill Epsteingate Admits Sex With Young Girls, "Epstein Files Are the Horror That Keeps on Giving"
Links for the day
IBM: Where Companies Come to Perish
thelayoff.com is censoring stories
Tech Layoffs Are Not Because of Slop, They're an Effect of a Rotting Economy and Tech Giants Being Too Deep in Debt
Block is rapidly sinking in debt
The Slopfarms' Business Case (or Business Model) Never Existed and Nowadays, in 2026, They've Mostly Collapsed
Hopefully by year's end many slop suppliers will be offline and slopfarms that rely on them throw in the towel
March in London Today Against Slop's Harms to Society (and the Environment), Starting at 12:00 GMT at the Microsoft OpenAI Office
Today there is a protest in London (UK)
Microsoft Mass Layoffs Have Officially Resumed, Microsoft's Waggener Edstrom/Frank Shaw Lied
"The former employees say this was a mass layoff"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 27, 2026
IRC logs for Friday, February 27, 2026
Links 27/02/2026: Block Cuts 40% of Its Workforce While Blaming Ponzi Scheme, Netflix Backs Out of Bid for Warner Bros.
Links for the day
IBM CEO and CFO Make It Hotter in the Kitchen
Who's gonna leave the kitchen while they cook the books?
Gemini Links 27/02/2026: Unlearning Literacy (Slop) and Firefox as Slop-ware
Links for the day
It Looks Like Linux Chief Linus Torvalds Made a Good Call Regarding Kent 'Slop' Overstreet
Having never met or even chatted to Overstreet, I'm not in a position to judge him
Links 27/02/2026: Slop Incompatible With Nuclear Codes, Chinese Slop "Chatbots Censor Themselves"
Links for the day
Please Report the European Patent Office (EPO) to Europol for Cocaine Abuse and Tampering With Witnesses and Media to Hide This Cocaine Abuse
there are already police reports connected to the matter
Like a Mafia: Kris De Neef and Nellie Simon, Who Help Campinos Cover Up Cocainegate at the EPO (Substance Abuse at the Highest Office), Are Bullying EPO Whistleblowers
They're all in this together [...] At this point, undoubtedly, the EPO is run like an organised crime operation. Nothing more, nothing less.
pulltheplug.uk Says the Internet Harms Us, Will March in London Tomorrow
Maybe the site is down due to high access demand
EPO Management Trying to Hide Cocainegate, Silence/Discredit Whistleblowers, and Probably in a Panic Due to the Strikes
At the moment, Johannes' mates are receiving over 100,000 euros as a reward for doing illegal drugs
Jim Zemlin's 'Linux' Foundation is the Real Link Between Linux and Pedophilia
It's about the deeds, not the words
The GNU Manifesto Turns 41 in March (Next Week)
And RMS turns 73 next month
The Sister Site is Still Improving the Static Site Generator (SSG) We Use in Techrights
We have a common mission and every week we make measurable advancements
Techrights is 100% Disconnected From Cheeto's America, the Problem is Hired Guns in London Helping Violent Americans Attack Us Domestically
Not a new problem, not limited to us
Greenland Needs to Disconnect From United States Tech to Protect Its Independence
The more Greenland protects itself from Social Control Media, the more robust or resilient it'll be to regime change
Open Source Endowment (OSE) Looking to Raise Money for Free Software, But It's Hard to Know who Runs the Open Source Endowment Foundation
Their Web site does not (easily) show who the Board of Directors includes
Apple Doesn't Want Anybody to Ask What Happened to Vision Pro
They lost a lot of money
Solicitors Regulation Authority (SRA) on Slop and Breach of Confidentiality
They should absolutely not ignore this
If You Want More Verifiable (Auditable) Security, Use GNU Linux-Libre
GNU/Linux will never be 100% secure
Microsoft XBox Can't Stop Talking About Slop
Will we see more "prepared" (under embargo) Microsoft propaganda released simultaneously at 9PM tonight?
Rust Will Not Inherit the Earth, It Barely Deserves a Place on the Planet
Rust - like Haskell and many other short-lived fetishes - will come and go
Truth Versus Fiction: IBM's Collapse Due to Money Crunch, Not Slop Disguised as Code
core issue is financial
Almost 5,000 Known Gemini Capsules
It is now just 98 short of 5k
Priceless leaks found in crowdfunding campaign
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 26, 2026
IRC logs for Thursday, February 26, 2026