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

IBM's Shares Fell Nearly 13% in One Day (Including After Hours)
its main product is false promises
European Patent Office (EPO) Series: "Operation Influencer"
Costa's political career was far from finished
GNU/Linux Usage Rising Among Gamers, But "Hardware Survey Data Not Available."
Not anymore, not for now anyway
Quantum Quantum Quantum Quantum (Pump, Then Dump)
What has IBM become?
KDE Has Long Used Dragons, and Dragons Come From Hatched Eggs
That Microsoft Lunduke tries to paint this as some "trans agenda" thing says a lot about Microsoft Lunduke and his COVID-19-damaged brain
IBM Announces 5 Billion Dollars "Invested" in "AI", in "Security", and 10 Billion Dollars for "Quantum", But IBM Does Not Have This Kind of Money (It's Fake News to Manipulate the Share Price)
IBM has fast-growing debt and liabilities, it does not intend to invest this kind of money, it's a smokescreen and false promises timed to alleviate the sagging share price (52-week low)
 
"Format Sovereignty" Can Only be Accomplished With LaTeX or OpenDocument Format (ODF) or Vendor-Neutral Standards for Editable Documents
Microsoft is, in effect, above the law
The Cyber Show on the Importance of Software Freedom and Why GNU/Linux Could Not be Stopped
an excellent article
Drew DeVault Can Still Redeem His Reputation. Revisiting His Attacks (and Attack Site) on Richard Stallman Might be a Good Start.
DeVault has openly apologised (this past spring)
The Register MS is Publishing Paid SPAM; Some of It is Designed to Prop Up the "AI" Pyramid Scheme
The Register MS participates in scams
SLAPP Censorship - Part 97 Out of 200: Garrett in Hiding (From the Simple Observable Fact He's Closely Connected to the Microsofter Who Strangles Women, Tells Women to Kill Themselves, and Worse)
They use one another; they are coordinating this via the SLAPP industry in another continent
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 03, 2026
IRC logs for Wednesday, June 03, 2026
Jumping Up and Down on the Shoulders of Giants, Never Talking About What Bill Gates Did
We're back to 2019
Despite LLM Slop or Chatbots, Our Traffic Has Doubled Since We Moved Everything to the UK (in 2023)
The demise of news sites was not what we thought it would be
Software Developers Attacked by Plagiarism Engines Because These Developers Can Teach People How to Exercise Control, Not Outsource to Monopolies of Slop and Back Doors
"Universities should be telling industry what is to be done next, not the other way about. Present education policy has the tail wagging the dog."
Communicating With Freedom - Part I - Developing “Quibble” and Improving GNU LibreJS in the Process
In the next part we shall examine where things currently stand
Quantum Computers Are "All the Rage" (35 Years Ago, What IBM Promises This Year is What People Promised When the CEO Was in His 20s)
"Quantum" hype is high on the agenda
How IBM Removes 15% of Its Staff Without Even Checking Performance of Staff (or Calling That "Layoffs")
Performance Improvement Plan (PIP) as veiled RAs
Links 03/06/2026: Mobile Systems, Openwashing, and New Antenna
Links for the day
Canonical as Reseller of Back Doors in "Ubuntu" Clothing
Microsoft is the antithesis of security and autonomy
Romania Used to be Windows Stronghold, But That's No Longer the Case
Windows was once upon a time so ubiquitous that institutions didn't bother supporting anything except it
When Science and Religion Are on the Same Side, United Against Slop Pushers
The "Mathematics Pope" (sometimes known as "Pope Pi") brought together science and religion, united against technofascists who are mostly college drop-outs who abhor women
Links 03/06/2026: "In Turkey, Criticizing a Corporation Can Land You in Jail" and "Court Bans X Account of Turkey's Oldest Newspaper"
Links for the day
Web Censorship Benefits the Corrupt and the Criminal
More so when corrupt politicians are in charge
Have a "Lifetime" Without Microsoft
The online rage over this is still ongoing
Internet Archive’s Wayback Machine Undoing Censorship of Corporate Wrongdoing
That won't go away anymore
"For Entertainment Purposes Only" But Everyone Must Adopt It for Work and Governance, Say Anti-Scientific Technocrats
"The present mentality around "AI" is like driving to the gym to use a treadmill - it's walking for people who hate fresh air and beautiful changing scenery."
Gemini Links 03/06/2026: Ian Murdock's Ex-wife Footprint in Debian and Alhena 5.6.1 Released
Links for the day
Irish Company statCounter Recognises It Overestimated Microsoft Windows' Market Share in Ireland
it seems like the Irish people are gradually moving away from Windows
Corporate Media Participates in the Lie That Mass Layoffs at GitLab and Loss of Geographic Footprint in More Than a Third of Countries is "AI" and Thus "Success Story"
There's no way to spin this as positive news
Slop Prompting is Not a Coding Skill and Slop Deserves Shunning
Red Hat is hypocritically shunning the very same thing it keeps promoting
IBM colleagues "handed out a PIP and then right after the end date they are gone"
Some go into early 'retirement' to save face
SLAPP Censorship - Part 96 Out of 200: When You Receive Death Threats From Anonymous Sockpuppets/Burner Accounts Connected to People Who Strangle Women and Tell Women to Kill Themselves
Women are not objects and my wife ought not be mentioned in "threats to kill" (how cops have described this)
European Patent Office (EPO) Series: A Tale of Two Antónios - Introducing the Other António
António Costa
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 02, 2026
IRC logs for Tuesday, June 02, 2026
Advertisements as Articles in The Register MS
Trust in media
Social Control Media Does Not Improve Reach, It Wastes a Lot of Time
many people still think that no presence in Social Control Media necessarily means invisibility
Links 02/06/2026: New York Times Debunks "Hey Hi (AI) Layoffs" (Excuse, False Narrative), Sheinbaum Publicly Bemoans US Meddling
Links for the day
Despite Mass Layoffs and Culls Dubbed "Buyouts" Google's Debt Doubled in a Year and It's Desperate for Money (to Pay Salaries and Bills)
Google and GAFAM in general have mass layoffs because they have no clear route towards profitability
Gemini Links 02/06/2026: Arch Linux WriterDeck and Papyrix Reader
Links for the day
Bloggers Still Have Considerable Impact on This Planet
Nowadays, in academia almost anywhere in the world, there's growing expectation that lecturers will spend not much of the time doing research or even teaching
The Firing Line Against Techrights
Tomorrow we'll tell a story about campaigns to intimidate us with death threats
The Cyber Show on the Fight Against Technofascism
It's very long (all combined), but nevertheless refreshing
What Efforts to Cancel Richard Stallman Ought to Teach Us About the Media, Including Very Large British Publishers
Richard Stallman is like a modern-age Alfred Dreyfus
After Threats to Greenland Northern Europe Seems to be Moving Away From Microsoft Windows Even Faster
The facts on the ground are, more people/businesses/institutions "get the message"
Claim of 500+ IBM Red Hat Layoffs With Termination Next Month
IBM is doing great... at hiding internal affairs
Slop Did Not Rewire Democracy, It's a Giant Flop
we already see slop giants accepting they'll never make money
The Register MS Embeds in Articles "SPONSORED LINKS" That Link to "AI" Ponzi Scheme/Scam
The circular financing giants are allocating budget for the spam, as do the banks (lenders)
Many Countries Divest From Microsoft
new numbers at statCounter today
European Patent Office (EPO) Series: A Tale of Two Antónios - On the Campaign Trail in Brussels
Part 1
SEO is an Acronym That Stands for Slop Engine Orientation
The Web changed a lot when Web directories, portals, and then social control media gained popularity
IRC Network OFTC is Shedding Off Servers
Down to 17
Julian Assange's Counsel Jennifer Robinson Has Just Won an Award
Jennifer Robinson is relatively young
Schweizerische Bundesbahnen (Swiss Federal Railways) and Richard Stallman
It seems like RMS is receiving endorsement or at least belated recognition from very high-profile institutions
Almost 30 Years After Rob Malda Made Slashdot It Still Inspires New Implementations
Maybe the issue isn't Slash per se, just the complexity of it (which SoylentNews complained about in the past)
Links 02/06/2026: "The Infosec Phrasebook", 'Perfect Randomness' and "Leaving the Tech World Professionally"
Links for the day
Faking Demand for Slop: Google's Search Prompt Becomes Slop Prompt (Bait, Switch, Fake Usage)
If there is no consent, then it's unsustainable
When You Give People (or Companies) Money to Buy Your Own Products and Then Call It "Revenue"
A lot of modern "economics" don't benefit ordinary people (all they get is high inflation rates); they're devaluing money by faking economic activity
IBM is Self-Detonating, the Cheeto-Infused Rally is Another Con by Don
pump and dump
"Quantum" as the "Next Big" Bubble
disappointing and delivering nothing
Links 02/06/2026: "$1.5 Trillion Defense Budget Benefits Billionaire Cheeto Mussolini Supporters", US "Plans to Criminalize Sleeping Outside"
Links for the day
Gemini Links 02/06/2026: Organising Oneself and Killing Off Distracting "Notifications"
Links for the day
SLAPP Censorship - Part 95 Out of 200: The Growing Risk of Tolerating Men Who Abuse and Physically Assault Women
FOSS should not be a "safe harbour" or "hideout" for criminals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 01, 2026
IRC logs for Monday, June 01, 2026