Money in circulation, self-serving agenda everywhere one looks…
Summary: The “Community patent” or “EU patent” or whatever euphemism those who created it (the architects) use these days (now it’s UPC) is threatening to engulf Europe without the European public ever being consulted about it (the ‘threat’ of democracy overcome by the rich and the powerful)
“It’s hard to see UK making any UPC-related decisions before result of the Brexit referendum is known on 24th June.”
These, surprisingly enough, were the words of IAM’s official Twitter account (based in the UK). We would go even further than this; as the UK is the only large English-speaking country in the EU (Ireland aside), what would a UPC look like without the UK? Would it be accessible to firms from the US? What about British? The language barrier is just one issue among many. The UPC fantasy is anything but a certainty; its proponents hope that by talking about it they’ll make it happen. There’s even a push to practically prepare the UK for it (ahead of any approval, vote, consultation with the public etc.) and UPC propagandists are being quoted by other UPC propagandists as saying that Brexit means nothing at all to UPC, not even to UPC inside the UK. What a farce!
Money can also change a person’s view.
Sadly, as we have pointed out here for a number of years, the debate about UPC is dominated by the few who stand to benefit from it at everybody else’s expense.
The other day Merpel started talking about the UPC in relation to the UK and already leaped to a debate about “UK Patents Court judges”, almost as though the UPC is inevitable and already here to stay. It never even arrived at all. Well, if it ever becomes a reality at all, there’s no guarantee it will reach the UK. Merpel wrote: “It would be misfortunate to squander this available experience, especially in the critical early days of the UPC. The success of the UPC will be determined by the quality of its decisions and, thus, the experience of its judges. Without experienced judges from one of Europe’s widely recognised and frequently used patent jurisdictions, the strength and attraction of the UPC as a competitive venue for European patent litigation will be depleted. A subsidiary issue is that, without the participation of the UK’s Patents Court judges, the attraction for litigants to use the UK’s local division to commence patent infringement actions would also be weakened (thus curtailing the positive benefit to UK’s economy). Such a state of affairs seems completely nonsensical given how hard the UK Government fought to secure a seat of the Central Division in London for exactly the same reasons (i.e., beneficial to the UK economy, key role in the stake and success of the UPC, etc etc etc).”
The UK ‘produces’ not that much other than services, and this includes software services. What kind of economic benefit/edge would the UK have if the UPC became a reality? Patent trolls are already starting to gather in London. Do we need even more of that? I, as a software professional, am growingly worried about these prospects.
The comments on Merpel’s post have mostly come from patent lawyers and attorneys, as one ought to expect given the blog’s audience. Some of the comments rightly point out issues. To quote some comments (copyright assigned to their posters):
Highly unlikely. Even if the UK is still around for the UPC and the UPC does in fact take off and this were to happen -unfortunately,the UK, France, Germany and Italy will be outnumbered by the non patent nations on the UPC. So you can start complaining now about the quality of the judgments to come like you do about the CJEU. In fact, the CJEU never pretended to be nor indeed was required to be a specialist court for patents but the criticism meted out to them about not getting it right whenever they dealt with the SPC Regulation was enormous -although on the other hand they always had a good stab at the Biotech Directive whenever they dealt with it.
As one comment put it:
If there’s a Brexit, game over.
Whilst I am not a Brexit proponent myself, many people are. We shall wait and see what happens. Another commenter says: “Given that the UK has (seemingly unlike almost all other countries ratifying the UPC Agreement) gone to the trouble to specifically create a national law applicable to EPUEs, it would be a terrible waste if there were no UPC judges who were qualified to interpret that law” (the remainder of this comment is added below).
If there are no UK judges in the UPC’s first intake, what will the UPC do about Articles 5(3) and 7(3) of Regulation 1257/2012, as applied to EPUEs filed by UK-based applicants?
That is, who will explain to the other judges how to interpret the national law of the UK that is “applied to European patents with unitary effect”?
Given that the UK has (seemingly unlike almost all other countries ratifying the UPC Agreement) gone to the trouble to specifically create a national law applicable to EPUEs, it would be a terrible waste if there were no UPC judges who were qualified to interpret that law.
Presumably, interpretation of the relevant national law is an issue upon which (due to Art. 5(3) of the UP Reg) questions could be referred to the CJEU. Could be interesting seeing how the CJEU handles that one!
Watch the enormous costs associated with it; one way or another these costs will be passed in the form of tax to a lot of Europeans, more so than to foreign corporations:
Its my understanding that the biggest problem is that a salary of EURO 11,000 per month is a deterrent. Very few in the UK seem to be interested in such a paltry remuneration, whereas in Germany they apparently already have over 1000 applicants!!
Some things are hard to believe:
1000 applicants from Germany? Twaddle as the application process hasn’t started yet (read the article).
Now the EPO is brought into it:
Will there be any full-time UK Patents Court judges in the UPC? Forget it, Judges. It’s the EPO. By the way pay no attention to that man behind the curtain!
Anon, anon was probably referring to this campaign:
Then comes up the problem associated with languages, which are already a problem at the EPO (we covered this before). To quote:
the key issue here is languages, what French or German language UK judges speak??? will them be able to take a case in German? or French? will a month or two in the Budapest training centre suffice for acquiring French and German language skills ?? the perfect candidates for these judge posts are members of the EPO Boards, however these people have a salary much higher than the 11.000 Euros net per month, so who will apply? I agree with some comments, above, the non Patent important UPC member states…
11.000 euros is half of the salary of an ECJ judge and 3 to 5 thousand euros less than an average member of the Boards of Appeal, who will leave aside its house, the children and the spouse job for this salary and for a non-permanent job of 6 years?.
It looks like representation would not be as diverse as people were led to believe:
Hire a couple of high profile patent judges from each of the main countries, and be sure they will fight for years trying to impose their own national practices and legal traditions in respect of hundreds of issues from the formal requirements to be met by a party´s request, to the admissibility of new arguments or the way orders should be formulated and decisions drafted. Less prominent candidates might be more prone to finding reasonable compromises.
And again a discussion about the waste of money:
Ah yes, but some have been preparing for this for some time (years in some cases)-sorting out their references,sending CVs to key persons, hobnobbing with civil servants from their MS,making sure they write articles on patents etc.
And don’t sniff at the 11,000 EUR tax free which does not include the massive list of benefits paid on top. For example, EU civil servants get an education allowance for their kids until age 26 (negotiated by the Germans over 50 years ago as German kids stay in higher education until then easily and so do British kids increasingly except there are increasingly no Brits left in the system and the Brits wanted to get rid of this).
How many people might even be qualified? Here is an educated guess:
At a conference in Strasbourg on the proposed UPC – memorable for having started the day that Icelandic volcano blew – the subject of judge’s qualifications for this role came up. It was estimated that the number of active judges who met the requirements was about – 20. Perhaps 50 at a push. Not official of course, but not very optimistic. And apparently not much improved upon since.
There is not much room at all for British judges anyway:
The numbers of judges initially required is probably relatively low. Given the number of proposed local divisions and allowing a bit of flexibility probably around 50 legally qualified judges are required almost all of whom would only be acting on a part time basis. However, if the response to the expressions of interest are representative, that is just as well since only 171 of those who expressed an interest had the qualifications and experience in patent litigation to be a legally qualified UPC judge without additional training.
At minimum, each local division will need at least one local judge, with the local divisions in UK, Germany, France, Italy and the Netherlands having two local judges. So there will necessarily be a spread of nationalities and at least 2 UK judges.
You would have to ask the existing UK patent judges whether or not they intend to apply but given the political capital that has been invested in the project, it is unlikely that the MOJ would prevent UK judges from serving on the court on a part-time basis.
Merpel’s post aside, we were rather disturbed to see a colleague from Bristows pushing the UPC in the same old fashion, first relaying UPC lobbying in a Microsoft-sponsored conference for patent maximalists who wish to influence policy (even Microsoft-funded lobbyists were there to promote software patents), then posts like this one and several others. “On a bleak Friday afternoon in London,” she wrote, “with the rain soaking into her paws and the wind messing with her perfectly coiffured fur coat, the AmeriKat was warmed by receiving an e-mail from Joan Scott of the European Crop Protection Association (ECPA) on one of her favorite topics – Supplementary Protection Certificates (SPCs). Prompted by her report of Margot Fröhlinger’s presentation on outstanding issues in the UPC at this year’s Fordham IP conference (see here), which included the need to iron out details on SPCs based on unitary patents…”
This Bristows (LLP/UPC) employee later wrote about Claire Phipps-Jones of Bristows LLP (notorious here for UPC promotion) and proceeded to some more of that. There is so much UPC promotion at IP Kat these days, usually courtesy of Bristows LLP staff. What is this, another corporate blog (for some contributors)? One way or another, EPO management must be happy. We are slowly led to believe that the UPC is almost here in the UK or is already here. This is far from the truth. Secrecy around UPC makes it hard to know exactly what’s happening (see this recent complaint about it). Like all sorts of so-called ‘trade’ agreements, it is a conspiracy of the rich and powerful against the rest. It’s usually large corporations and their lawyers and/or lobbyists.
“Unitary Patent Select Committee keeps meeting,” noted this one frequent critic (Francisco Moreno), “but transparency is not invited. Distribution key, anyone?”
Transparency for the UPC? They try to ensure that virtually nobody except UPC proponents even knows what this thing is about. Here is what Moreno wrote, having asked the EPO last year about the UPC [1, 2]: “An agreement has been reached but no details are provided: what is the % corresponding to each pMS? Or what is the formula that takes account of the GDP and the number of applications filed to fix the distribution key?”
Well, obviously, look who lobbies for the UPC and recall who benefits from it. Korenberg is quoted (paraphrased) as saying that “one rationale behind unitary patent court in Europe, decrease prohibitively costly enforcement for smaller companies,” but this is a lie. The UPC does exactly the opposite by exposing SMEs to more patent lawsuits and fees. It is in no way beneficial to the small firms, or even to European firms. It is also terrible for Spain [1, 2, 3] (Moreno should know this), so no wonder it opposes the UPC, in spite of lots of pressure, even economic blackmail. Conveniently enough, as some care to notice, UPC propaganda ‘forgets’ to mention that any SME which gets a patent faces lots of lawsuit threats from many more other companies. There are two sides to this coin and those who pocket all the coins are usually patent lawyers. According to this very recent update, citing a dubious report: “The 2016 annual report of the European Patent Office (EPO) pointed out that China maintains the most fast-growing European patent filer. With a patent filing number of 5,721 (22.2% increase compared to the data in 2014), China ranked the eighth among all the countries. The EPO stated that strong growth of the Chinese economy has become an important driving force in European patent development.”
So imagine how many patent lawsuits can come from China alone, never mind all those patent trolls from Texas.
The Bristows posts attracted comments too, just like the post from Merpel. Yet another response, in another thread, said that one should be “very uncomfortable with the EPO gaining control of the examination” while Battistelli is killing the Boards of Appeal and reduces quality of patents for the sake of superficial gains. Here is the comment in full:
use the EPO? Are you serious? That is one sure way of losing all of the collective knowledge of the national offices that has been gained over the last 20+ years regarding how to examine SPCs. How about we instead try to improve upon what already exists (e.g. by creating a virtual body), rather than throwing out the baby with the bathwater?
Another thing – unless and until a way is found to improve the governance of the EPO (including ensuring full compliance with fundamental principles of employment legislation in the EU), I would be very uncomfortable with the EPO gaining control of the examination of yet another highly valuable IP right.
Here comes a criticism of the prospect of the UPC, citing immaturity factor:
Come on: back in 1978 the EPO had 0 experience with patent examination. Yet it could start and flourish because it hired experienced examiners from national offices, and because it built on the Institut International des Brevets in Rijswijk.
The same holds for the UPC: when it starts, it will have 0 experience itself. Yet, nobody needs to be afraid of silly judgments because the UPC judges will be drawn from experienced national courts.
So, no doubt that the EPO will do just fine if it were (t)asked to examine SPC applications.
Governance will be the big issue with any virtual office: it will need real governance structures. Especially when you consider appeals: any decision from the appeal body will have to be implemented by the first instance, so again real governance is needed to ensure that this indeed happens.
So, it is better to involve a real body rather than a virtual one.
The EUIPO is an EU organization, that is true, but it has no knowledge of patents and technical things. Would that really be a more preferable solution for handling SPCs?
The employment issues at the EPO do not prevent it from examining patent applications as usual. Also, the EPO Board of Appeal issues are irrelevant for unitary SPCs if SPC appeals are handled by the UPC rather than by the EPO Boards of Appeal,just like the UPC handled administrative unitary patent appeals.
The EPO, in the mean time, keeps pushing for the UPC, effectively lobbying for a corporate takeover of Europe over at Twitter. Battistelli is the lobbyist in chief and the UPC sets up a “webinar on the Unitary Patent”, later stating: “IPO EU trademark regulation entered into force last month. Hopefully #unitarypatent package will be next”
They are referring there to EUIPO and the picture becoming clearer. They’re putting things under a common umbrella (like a corporate takeover) and readers may already recall the relation between the EUIPO and EPO, as we covered it several times in recent weeks [1, 2, 3]. Going back to the comments we have:
I should add that there are already not enough experienced SPC examiners to go around, and so it would be a disaster if the EPO were to hire a significant number of them.
For various reasons, national SPCs will be with us for a long time yet (perhaps indefinitely). Thus, the national offices will continue to represent important venues (perhaps the most important venues) for SPC applicants. To eviscerate their examining capability would therefore be doing applicants a serious disservice.
The alternative (a virtual body) would make the best of what already exists, whilst allowing national offices to retain their skilled staff. What’s not to like about that?
Anon, you argue that “The employment issues at the EPO do not prevent it from examining patent applications as usual”. However, handing responsibility for uSPCs over to the EPO at present would be akin to rewarding a problem child for appalling behaviour.
The discussion about SPC continues here:
This virtual body looks silly. Why not a real body like the EPO, with any appeals being handled by the UPC, but just like appeals against EPO decisions in unitary patent matters.
A basis in the EPC for doing so can easily be found, see Articles 63(4), 143 and 149a(1) EPC. Note that in Article 149a(1) EPC, whatever follows “such as” is non-limiting and can be skipped.
As regards fees and costs, the EPO should get its costs reimbursed, following the principles of Art. 146 EPC. For the remainder, the fee income can be distributed by the EPO among the participating states in the same way as their share in the unitary patent income.
As regards the law to be applied, changing the present SPC regulations will just result in long delays. So, it is better to accept the preset SPC regulations, and to look for any improvements later on.
The above could easily be handled in a relative small amendment of the unitary patent regulation 1257/2012, as it is a logical consequence of the decision to allow a subgroup of EU states to cooperate in unitary patent matters. Doing so would automatically result in jurisdiction for the UPC to handle appeals under Article 32(1)(i) UPC Agreement.
Just like with unitary patents, the new SPC provisions in the unitary patent regulation would be supplemented by decisions of the Select Committee.
And below that:
As an EU organisation, the EUIPO would appear to be better suited to the task than the EPO. One wonders why they were not chosen to handle the unitary patent registration procedure.
A cynic might suggest, based on the above, that Battistelli’s goal is to demolish the EPO in favour of the UPC (in whatever form it takes), then become the UPC’s head, get close to EUIPO, and maybe form or shift name to make up an umbrella organisation that’s EU-sanctioned (unlike the EPO that dates back to the EPC). Is this vision of the UPC starting by taking boards (of appeal, not Board 28) out of their job, then automating the job of examination with algorithms that do a shoddy job at examination, as we noted earlier today? Whatever it is, this is not looking good and secrecy creates more suspicion. To quote further comments:
An alternative would be to allow an applicant to request an SPC before any patent office of an EU state with this then extending to the EU as a whole in the same way that a national court can act as an EU court in design matters.
you have clearly failed to grasp the perils of throwing the baby out with the bathwater when it comes to experience in examining SPCs. Starting at ground zero with the EPO really would be a disaster for applicants – especially given the complexity of the (case) law.
Your perspective is so pro-EPO, can you please confirm whether you are on BB’s payroll before commenting again? As you may guess, I can confirm that I am not.
Notice the corrupting impact of the EPO paying vast amounts of money to a PR firm. Many people are often presumed to be on Battistelli’s payroll.
Speaking for myself (personally), I have been rather disappointed with IP Kat‘s coverage about the EPO as of late. There’s omission of so many important stories and developments. When was the last time IP Kat and notably Merpel even touched the EPO scandals? Maybe Battistelli got his way after he threatened some bloggers. They’re silent on it all. Several months ago I confronted IP Kat over its deletion of (refusal to approve) comments about the EPO, after people had reported this to me.
There is more UPC promotion in IP Kat these days than there is a mention of Battistelli and his latest scandals. And look who’s behind all the UPC promotion. It’s usually the Bristows staff. Where does UPC promotion come from? Those who would gain from UPC. Now that the UK is under a de facto coup (from EPO management, patent lawyers, and other opportunistic profiteers) we need the voice of opposition to at least be aired somewhere and that somewhere is not IP Kat.
It has become increasingly clear over time that not only is the UPC orthogonal to the interests of European citizens but one should also regard it as an active danger to anyone including those who work for the EPO as patent examiners. As for patent lawyers, the benefits of the UPC may depend on the kind of clients they have. But whether the clients are large or small, and whether they use patents offensively or defensively, the legal fees are still unavoidable, thus for a lawyer it is important to have as much patent confrontation as possible. This, except patent applications (sought in an aggressive/defensive atmosphere), is what ‘brings home the bacon’, so to speak. If the UPC causes more legal uncertainty and makes it more affordable to go to court even on a tight budget, then it means more legal action overall, hence more business to patent lawyers. █
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What is a patent office if not a collection of competent patent examiners? Battistelli is trying to break a mechanism that’s already working, presumably for corporate gains or increased profit/reduced salaries (the École nationale d’administration mindset)
Context: “The Luddite movement emerged during the harsh economic climate of the Napoleonic Wars”
Summary: The unscientific approach of today’s management of the EPO and the dangers of outsourcing EPO jobs to other entities or even to highly flawed algorithms
BATTISTELLI has done a fine job driving away some of the Office’s best talent and his job is not done yet, despite the ongoing brain drain [1, 2, 3, 4] which seems unstoppable. Patent examiners are the very heart of any patent office; without them it’s just a bunch of clueless bureaucrats like Battistelli and their secretaries. How could they overlook this simple fact? According to this new report from MIP, “Michael Fröhlich has joined the European Patent Office as head of the Directorate European and International Legal Affairs” (not to be confused with Herbert Fröhlich, who was actually a legendary scientist). It often seems like all the EPO strives to be right now is a bunch of people in suits with a high-budget peripheral PR agency in the US (far more people there, based on the budget, than in the in-house PR department). We had enormous respect for the EPO back in the days, but what has it become and what is it still becoming?
Based on this new comment, “EPO examiners and BoA members have no concept of what a thorough analysis is like. How could they? Unless you have experienced the rigour of a multi-million euro invalidity or infringement suit, you probably think that the EPO procedure is pretty nifty.”
That’s somewhat of an unfair comment, but then again consider limitations on time, which got a lot worse under Battistelli because of policy changes that favour large corporations. Here is the comment in full:
The EPO has a unique position in juridical terms. It is just an administrative body tasked with taking administrative decisions – but with no judicial oversight. This wouldn’t be tolerated in any other branch of public administration I can think of, and it surprises me that the member states continue to connive in maintaining the conceit of a fair and thorough patent granting system.
Because it isn’t fair, and it certainly isn’t thorough.
It’s not fair, because the process can result in applicants being denied a patent which would be upheld as valid in a court of law. There is no mechanism for detecting, let alone righting, such injustices.
And it’s certainly not thorough. Most EPO examiners and BoA members have no concept of what a thorough analysis is like. How could they? Unless you have experienced the rigour of a multi-million euro invalidity or infringement suit, you probably think that the EPO procedure is pretty nifty. It isn’t. At best, it’s a good first approximation, but not more than that.
A response from a lawyer or attorney, taking or borrowing the term “thorough analysis”, said:
Are your comments based on a thorough analysis?
My experience (and the generally taken view) is rather that on average the analysis of BoA is more accurate and consistent than what you may get from national courts.
Of course there are exceptions such as your multimillion infringement suit (I am not sure as to what you mean as multimillion invalidity).
I sincerely hope that the UPC will reach the same standards as the BoA
We previously showed how the BoA swatted a software patent. This was a job well done and it involved a thorough analysis. It’s not fair to nitpick or generalise, making the examiners or judges seem as though they should bear responsibility for failures which go all the way up to the top. Overworked examiners surely cannot function and to expect output to improve this way would be unrealistic. A long response then said:
Ah! So that’s your point, Demut. A lack of symmetry. If the Technical Board of Appeal finds your issued patent (or patent application pending at the EPO) devoid of merit, you die without recourse to a Supreme Court of a contracting EPC State. Whereas, if you don’t get wiped out by DG3, you can go on asserting your rights all the way to the Supreme Court in each of 38 EPC Member States.
Perhaps not coincidentally, we see currently a huge ruckus about whether the USPTO can revoke patents it already issued. Does that lie heavy on your mind too?
But GATT-TRIPS promises a judicial review of an administrative decision and that’s what you get at the EPO. If you don’t like it, you can shun the EPO and file your patent application country by country.
I fully understand the grief of a patent practitioner who thought that the claim he drafted was good enough for the BGH and is outraged when DG3 revokes his client’s patent and the client demands to know why he is left empty-handed and deeply out of pocket. But that’s because the BGH chooses to paddle its own canoe up a different creek from the one defined by the established case law of the Boards of Appeal, which every other Member State finds persuasive.
Or are you from England, and outraged that the EPO does obviousness differently than in England?
Childishly crying “It isn’t fair” though, that doesn’t cut the mustard, sorry.
I’m curious though, what justifies your assertion that at the EPO thoroughness is lacking. I presume you hanker after full discovery, like the USA still does but which has been done away with in patent litigation in England. Of course, adversarial English legal procedure is big on cross-examination of witness evidence. If you were to argue that fact-finding is more rigorous under English law than under the civil law procedures used everywhere in the world, I would agree with you. But please don’t write off the EPO as “not thorough” because it does fact-finding like everywhere else in the world except the English common law countries. If there is any thoroughness lacking at the EPO, it is amongst the profession of representatives, who prepare their cases as if for a home fixture, in line with their particular domestic jurisdiction, and not thoroughly enough in line with an away fixture with the Rules of the Game as practised on the turf in Munich. The judges can only play what’s put on the table for them to consider.
I am reminded of the excuse every politician offers when losing an election: A communication failure, it was. We were not quite imaginative and creative enough, to get our winning message across to the voters.
But reply, do. What do you mean by “not thorough enough”? Are those guys in DG3 just not reading your stuff thoroughly enough for your liking?
There’s a bit of a withdrawal at this stage:
I apologize, I thought that your point was about the quality of the BoA decisions.
Now that I understood you better it seems that the difference is that I consider the BoA as a court and you don´t.
If however you take my position the system is lopsided as any other national system. Also there, once you get a refusal and go through all the available court levels, the final decision can be challenged in case of a positive decision in nullity proceedings but cannot be further challenged in case of a negative decision.
Or maybe the point is that in the EPC the number of available instances is rather reduced, because the BoA are already the final one. But I am not sure whether the users would like a different situation.
The picking on DG3 and the BoA carries on, with comments such as these:
The commentator eine gewisse Demut has an axe to grind, and would do well to confer with members of national judiciaries who have served on the EPO’s Enlarged Board of Appeal. Sir Robin Jacob, for example. For him, there is no doubt that the necessary GATT-TRIPS-compliant judicial supervisory function for the administrative work of the EPO is delivered by DG3.
…on average the analysis of BoA is more accurate and consistent than what you may get from national courts
True, but this is not the point I was making. The point is that the system is lopsided. The owner of a granted patent has full access to the legal process, while the owner of a refused application has none. Nobody can tell you how big this lopsidedness is, because there is no way of measuring it. It’s just an inherent feature of the EPC.
…would do well to confer with members of national judiciaries who have served on the EPO’s Enlarged Board of Appeal. Sir Robin Jacob, for example.
The quality of DG3 decisions is again not the point. The point is that their positive decisions are regularly tested in court, whereas their negative decisions are not. Incidentally, Sir Robin Jacob has written and spoken often about the lopsidedness problem.
Finally, as one person points out:
The quality of BoA decisions is probably the best that’s possible under the circumstances.
You’re right. The number of instances is reduced by at least two in the case of a negative BoA decision.
As regular readers ought to know, Battistelli crushes them now. He’s on some kind of war against the boards of appeal, despite them being the last sort of independent resort. They did, several years back, even took on the question of software patentability.
Speaking of software, guess what the EPO under Battistelli may be planning to do. Inevitably, as the Office is run by a clueless non-technical President, there’s some delusional thinking along the lines of replacing examiners with machines! You can’t make this stuff up! the whole point of having patent examiners is to have a manual operator(s) dealing with tasks that cannot be automated, require human interaction, literature surveys, and so forth. Here is how someone put it not too long ago:
The automatic examiner
In his last conference in The Hague, Mr Battistelli explained that in the future, examiners would get more support from their computer. Could it be that the Office is in the process of automating searches? In the age of Google, it is natural that our management is asking the question of automation. Computerised searches used to be the domain of a few selected database specialists, but nowadays everyone who types a few words into a search engine expects to find the relevant documents. It would thus appear that typing a few keywords into an artificial intelligence system should be sufficient to find all the “X” documents in a patent search. Or, even better, if one would directly feed the application in that system, it would extract the keywords, classify the application and spit out the “X” documents. Is that likely to work? Unfortunately, the answer is probably “no”. First, this is not at all what Google does. Google appears to use keywords but is a very different system internally: Google actually indexes the relationships between documents. To speak in examiners’s jargon, Google is more similar to ..combi than to ..xfull. The reason is simple: the creators of Google quickly realised that a pure keyword search does not work very well. Could we then imitate Google and use an automatic system that is similar? Unfortunately, again the answer is probably “no”. We already have automatic tools (like ..combi) using links between documents, but part of the problem is that new documents do not have links. Google has the same problem with new pages, which are very slow to enter their system. It is not clear how a patent office – that primarily deals with new documents – could overcome this problem.
Patent offices have a further specific problem: our users are not necessarily honest – if they all were, we would not need an examination system. In fact, Google and patent offices have exactly opposite problems: whereas Google advertisers want their pages to be found, some patent applicants may want to hide their application from their competitors. The “page rank” of Google is a valuable commodity. Top pages will be clicked more often than the bottom ones and clicks directly translate to sales. This is a real problem for Google, as some users try to play the system e.g. with “link farms”: collections of senseless pages designed to generate more links. Patent applicants (at least some of them) may not want their applications to be found. They also may not want us to find relevant documents. Some applicants try to obfuscate their application by avoiding keywords customary in the field. In such a situation the computer will fail to find relevant keywords and hence fail to find the relevant prior art. And this is presuming that the invention can be described in keywords, which is not necessarily the case either. Often the relevant information is in the drawings or in the arrangement of the features. For a human examiner all this is not a major problem. From an obfuscated application, he (or she) can still extract the information and knows how to rewrite the content in common keywords. A skilled examiner can extract the relevant information from drawings, tables, lists etc. He knows what is custom practice in his field, at what time in history and how various technologies developed. And he knows what documents he can find at which place in the classification.
Google is a commercial giant. It puts in a lot of effort in its search engines. For this it employs the world’s best IT experts. The effort comes at considerable cost. Unless the EPO thinks it can do better than Google, it may be wiser to rely on human examiners to design its patent searches rather than on IT experts.
Battistelli’s love for commercial giants has turned into an abhorrent, corrupt mess. Not only does he treat them favourably as applicants (UPC in its own right is beneficial to them) but he also gives them massive contracts without any transparency or as much as a public tender. Patent examiners aren’t Luddites and boards or appeal aren’t replaceable by some ludicrous, impractical system like that envisioned by UPC proponents.
If Battistelli stays in power for another year or two, nothing of value will be left at the EPO. He and his management team (many of whom are under-qualified buddies of his) ruin the Office and the misguided policies permeate and spread everywhere, even spilling to the outside (e.g. the boards). █
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Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us
Summary: Software patents are not as scary as they used to be (because many are effectively found to be of no value, or ruled invalid by US courts), but patent aggressors including IBM and Microsoft work towards a software patents comeback, aided by well-connected officials such as David Kappos (above)
THE reality behind software patents in the United States (or patent policy in general) isn’t just shaped by the USPTO, which grants patents too sparingly, but also by the courts, which increasingly demonstrate that the USPTO isn't doing its job (which should be examination and thus elimination of weak applications).
“Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all).”According to this new examination of upcoming SCOTUS cases, there is no imminent challenge to Alice. Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all). “Following its April 15 Conference,” wrote Patently-O, “the Supreme Court denied certiorari in a set of cases, including Vermont v. MPHJ; Limelight v. Akamai; Hemopet v. Hill’s Pet Nutrition; and Tas v. Beachy. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2).”
It seems like very good news, unless you’re some patent lawyer or patent aggressor such IBM or Microsoft (they both pay the former Director of the USPTO to discredit SCOTUS rulings and restore the fangs of software patents by altering § 101). Over in Texas (capital of patent trolls, see yesterday's article to that effect) the press now bemoans Alice, i.e. the death of many software patents in the United States. The article was composed by patent lawyers (surprise surprise!) and it says:
Yes, we’re being a bit dramatic here but Alice has been killing patents, and especially software patents, at an impressive clip. In this case, Alice refers to the 2014 U.S. Supreme Court opinion Alice Corp. v. CLS Bank. In that opinion, the Court announced a new two-step process to determine whether an idea is patentable and, ever since, this two-step process has been applied by courts and the Patent Office to disallow patents at an unprecedented rate. Law360 calculated that courts are granting around 70 percent of Alice motions. In raw numbers, there were more patents killed in the 14 months after Alice than in the five years before it.
It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas. Decline in proactive activity which invalidates software patents in the US has just been reported by MIP. To quote: “A total of 118 petitions were filed at the Patent Trial and Appeal Board (PTAB) in March, down from 150 in February but up on the 99 in January. In contrast, 145 petitions were filed in March 2015.”
“It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas.”Perhaps — and we are only guessing here — after Alice-led challenges (which ultimately killed patents at the knock of a gavel) more companies realise that software patents would not survive the courts anyway. It means that there’s less incentive to sue at all. Suing can lead to loss of patents. As MIP put it in another article, “Patent Trial and Appeal Board (PTAB) petition filing in the first three months of 2016 fell to its lowest quarterly figure for two years.”
What matters, however, is rate/ratio of invalidation.
So less than two years after PTAB’s formation it seems to have become less necessary because the core issue, which is patent scope (or quality), is being addressed/tackled by Alice.
FOSS Force, a site which deals with Free/Open Source software (FOSS) matters, has just run a poll about software patents and here is what it came up with (see charts in page). To quote the author: “In recent years software patents haven’t been nearly as much in the news as they once were. This is partly due to the Supreme Court’s ruling in Alice Corp. vs. CLS Bank which took a slew of patents off the table. Also, thanks to the efforts of companies such as Newegg to duke it out in court instead of rolling over and settling, many patents that had been successfully leveraged by the trolls for years have been invalidated.”
“Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.”It sure seems like things are improving in the US, but don’t take that for granted. Companies like IBM and Microsoft (or more recently Apple) hire lobbyists in an effort to restore the old state of affairs, enabling more patent extortion against small companies. Recall what Microsoft is still doing against FOSS distributors (using patents on software for coercion and taxation) and then consider IBM's controversial joining. Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.
As we noted here some days ago, having maliciously destroyed Yahoo, Microsoft might now go after Yahoo’s patents, which MIP says aren’t that expensive anyway. To quote: “It identified 2,000 US patents currently assigned to Yahoo that are active and in-force. Yahoo’s 2015 10-K reveals the company reported almost $300 million in gains related to patent sales between 2013 and 2015.”
As for IBM, there’s some new patent propaganda (just published for IBM marketing), femmewashing its patents and wrongly equating them with “invention”.█
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Weapons of mass distraction
Summary: The European Patent Office (EPO) keeps rotting under Battistelli’s leadership and the campaign of defamation against truth-tellers (shooting the messengers) within the Office/Organisation is made more apparent
THREE days ago we became aware of lawsuits against the EPO. We actually knew about this for longer than that, but it took a while to get a translation of an article which covered it (with quotes directly from those involved). It actually turned out to be bigger than we had imagined.
SUEPO has translated
[PDF] this recent article from the German media and also highlighted this new article in French. This is about “France’s patent&™ office complaining about EPO’s delays,” Hugo Roy from the FSFE told me. There have been complaints from British stakeholders as well, regarding not just delays but also miscommunication and unprofessional handling of applications. Brain drain [1, 2, 3, 4] taking its toll? We wrote about this last week in the context of Patent Administration staff.
Anyway, the latest interesting article says it all really, and we have highlighted the important bits below.
Criminal charges at the Patent Office Uprising in Paradise getting worse
By: Jan Keuchel
Date: 06.04.2016 10:57
Still no ceasefire: The European Patent Office won’t calm down. Management and staff are sniping at each other, and the Munich State Attorney is pursuing criminal charges – a lot of them.
Dispute with the staff getting even worse.
Düsseldorf. The European Patent Office (EPO), one of the most important starting points for the protection of inventions, has been tearing itself apart for months in a bitter dispute between the President and sections of the staff. At issue are new promotional and sick leave arrangements, union rights, internal investigations, and sackings.
On 15 March, one day before an important meeting of his Administrative Council, President Benoît Battistelli suddenly started sending out peace signals. According to the Frenchman, 2016 will see a “general review of social rules and regulations”.
In the light of rumours that the Council might dismiss him from office due to the conflict, his overseers may have forced Battistelli’s hand. But only under certain conditions: The squabblers would have to get together and “conscientiously and honestly work towards finding a solution”.
But now things start to become clearer: The much heralded peace turns out to be nothing more than a ceasefire. According to information available to Handelsblatt, the conflict at the EPO has actually involved the Munich I State Attorney’s office since as far back as 2013, and there are still a good number of unresolved criminal cases being pursued.
EPO boss Benoît Battistelli
“Bullying and defamation causing massive disruption”
Benoît Battistelli is the boss of a public authority that is actually one of the most important for the entire European economy: The Patent Office. Critics call him the “Sun King” or “Stalin”. In an interview he speaks for the first time about the accusations made against him. More …
The first of the charges was laid by Battistelli’s Vice-President, and was aimed at a person or persons unknown. The main issue was an accusation of slander and defamation, as Munich I State Attorney’s office confirmed when asked. The charge evidently related to the issues surrounding an Irish patent judge, whom Battistelli had suspended.
At the end of 2015 the Irishman himself then laid charges against Battistelli, on the grounds that his honour has been besmirched. There have been more criminal accusations made against unknown persons, among them by the sacked union executive Elizabeth Hardon. All those involved deny the accusations.
The EPO has been conducting internal investigations against the judge and Hardon since 2013. The Office suspected both of them of having waged a campaign against the President and his deputy.
According to an internal report, among other things, the judge was found to have defamatory letters in his possession. The EPO investigators also found in his office a number of clubs and suspected Nazi material, such as brochure bearing a swastika and entitled “Ich kämpfe”.
Since then, the man concerned has stayed at home. Battistelli later also dismissed Hardon, the chief executive of the staff union Suepo, which he does not recognize. The accusation against her was of threatening non-union members.
Innovation-friendly Europe Development of patent applications
165 000 160 022
Applications received in 2015 by sectors
Medical technology 12 474
Digital communications 10 762
Computer technology 10 549
Electrical engineering/mechanical engineering/energy: 10 198
Handelsblatt Source: EPO
The attorney acting for both of them, Munich-based labour lawyer Senay Okyay, disputes the accusations, contending, among other things, that the clubs which the Irishman had were for gymnastic exercises. The grounds for the criminal charges laid by her client were the wrongful and defamatory accusations that he was a Nazi.
As well as all this, an application for criminal charges has also been made against persons unknown due to the EPO investigation report having allegedly been leaked to various media. “The group of persons entitled to receive this strictly confidential report is restricted to my client, the Administrative Council, and the President of the Office”, says Okyay. Hardon has also sought to lay criminal charges against unknown persons due to her private E-mail account having allegedly been searched in the course of the investigations.
The EPO is unwilling to comment on the charges brought by the Vice-President. With regard to the judge, the word is that they became aware of this after Easter. The State Attorney’s office will know how to deal with such things.
The State Attorney’s office is emphasising that at present all the accusations are being looked into, and no further information can be forthcoming.
Squabbles at the European Patent Office
Uprising in Paradise
Allegations of death threats, a judge with clubs in his office: The European Patent Office is being crippled by internal brawls. The Office is already overdue with thousands of cases, and that is something the economy simply cannot afford. More…
Whatever the outcome, the criminal charges have been stirring things up even more with regard to the issues of social peace at the Office. One particular issue is what the Administrative Council knew about these events when it accepted Battistelli’s peace offering on 16 March.
At the EPO the word is that the Administrative Council has been kept “regularly informed of all relevant events”. The Chair of the Council, Jesper Kongstad, has no comment to make. Perhaps he’s saving his voice. The next Council meeting is in June.
The above contains plenty of new information. It also serves to reinforce the claim that Battistelli (which is referred to above as “Stalin”) has been witch-hunting staff, including (in particular) those who said the truth about Željko Topić (staff calls him “Putin”), about whom we have an ongoing series of articles this week.
As a side note, we no longer make local copies of SUEPO PDFs, but when the EPO management actively censored SUEPO’s Web site (using legal threats) the management basically encouraged us to do so, which meant that things management found embarrassing ended up spreading further and wider. It’s the Streisand Effect. The harder the EPO tries to silence the truth, the worse things will get. █
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Summary: Croatian media coverage about some of the scandals as they were seen 4 years ago (around the time Battistelli snatched Topić out of Croatia to become his right-hand man)
IN part one of this series we looked at how EPO Vice-President Željko Topić got accused of forgery. We are not suggesting that it was indeed forgery; we are just presenting what is/was known and who says/said what.
“We are not suggesting that it was indeed forgery; we are just presenting what is/was known and who says/said what.”“These matters were reported in the Croatian press at the time,” told us a person who is responsible for translating some reports, or for putting together some translations. “See for example the article dated 26 April 2012 which was written by the journalist Ilko Ćimić and published in Index.hr.”
Original Croatian text can be found here and below is the English translation with highlights in yellow:
Index reveals – Jovanović investigates the SIPO: Where did the million kuna go? Who was driving the (overly) expensive cars?
Željko Jovanović, Minister of Science
Author: I. Ćimić
Date: 26 April 2012
Index is in a position to reveal that Željko Jovanović, the Minister of Science, Education and Sports, recently sent a request to the Ministry of Finance for a budgetary audit of the State Intellectual Property Office (SIPO), for the period from 1 March 2008 to 22 December 2012 in order to look into a series of allegations about the actions of the controversial SIPO Director, Mr. Željko Topić. The Ministry of Science also found a number of irregularities during their investigation of SIPO’s operations and has requested the assistance of the State Inspectorate and the Labour Inspection! While the Ministry was in the process of investigating the actions of the controversial Director against whom criminal proceedings are pending before the Zagreb County Court, SIPO officially announced that he was stepping down from the position of SIPO Director to take up the position of Vice-President at the European Patent Office based in Munich!
SIPO was responsible for the oversight of ZAMP
For the moment, the question seems to be how much the European institutions really know about Mr. Topić’s track-record as SIPO Director and whether or not they were informed of the charges pending against him. It would also be interesting to know to what extent the credit for his appointment can be attributed to Croatian diplomatic lobbying conducted by the Pantovčak [i.e. the Office of the Croatian President].
We wish to remind our readers that the SIPO is the official institution responsible for the oversight of the Croatian Composers’ Society and its professional service ZAMP. However, it was recently established during the handover to the new government that for years nobody has properly supervised the operations of the SIPO itself. The role of the Director Topić is of key importance here because it was he who responded to a query from the Ministry of Finance as to whether the business operations of ZAMP were actually carried out by a private company Emporion. At the time, Topić claimed that everything was done in accordance with the law.
The Ministry will specifically check the diploma of Director Topić
According to a document in the possession of Index – which can be seen in the picture gallery – Jovanovic’s Ministry carried out its own investigation into the work of SIPO to follow up on some of the allegations against the controversial Director.
The document itself does not contain any spectacular revelations, but it raises a number of questions about Topić’s management of the SIPO as it shows how assistance is being sought from other government agencies such as the State Inspectorate to shed light on Željko Topić’s controversial reign as SIPO Director.
Amongst other things, Mr. Jovanović’s Ministry questioned whether Topić had the educational qualifications needed to lead the SIPO. It was established that the Office which deals with the protection of industrial property and copyright and related rights is managed by an economist who claims to have graduated from the Faculty of Economics in Banja Luka with a master’s degree. Topić sent to the Ministry only a copy of his master’s diploma without the date of issue, and such evidence was considered insufficient so the Ministry requested the Faculty in Banja Luka to kindly send “relevant documents and a statement regarding the academic qualifications of Master of Science, Mr. Željko Topić”.
Disputed payments of around HRK 1m for “unnecessary” work
The Ministry also investigated allegations concerning the expenditure of around one million kuna, which the SIPO paid for intellectual and personal services. It was discovered that some of the money was paid as compensation for participation in organizing professional examinations for authorized representatives in the field of industrial property rights. The problem is that the candidates only paid 4,000 kuna in fees for these professional examinations whereas the total gross compensation paid to the chairman, deputy secretaries and members of the examination committee exceeded the amount that was paid by the candidates.
Another part of the disputed expenditure was on payments for service and copyright contracts which appear not to have been in accordance with the regulations. According to the opinion of Jovanović’s Ministry, the amounts paid for translations are also controversial given that this work should have been performed by SIPO employees [as part of their regular duties].
Sanader approved the purchase of the cars
The Ministry has also found a series of errors in service contracts and has requested special supervision by the State Inspectorate and Inspectors from the Ministry of Labour.
Concerning the controversial purchase of vehicles, including an Audi A6 TDI Quattro Tiptronic B worth 80,000 EUR and a Mercedes E 280 CDI worth 70,000 EUR, which was also subject to investigation by the Ministry, it was established that Topić had the permission of the Government, headed by Prime Minister Ivo Sanader, for the disputed purchase of these vehicles.
Ivo Sanader is now in prison and the local press habitually calls Topić "Sanader's protégé", which helps Topić’s case not at all.
“The reporting in the Croatian press seems to have annoyed Mr. Topić,” we got told, “who had in the meantime been appointed as a Vice-President at the EPO and had moved to Munich.”
In future parts we are going to step deeper into this affair and also cover Topić’s and the EPO’s response. █
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His only ‘crime’ (which brought/attracted publicity punishment) is that he sought patent reform
Photo in the public domain, via Wikipedia
Summary: Darrell Issa (photographed above) comes under attacks from boosters of software patents, apologists of patent trolls (often funded by them), and patent maximalists because he correctly insinuated that (most) plaintiffs are like patent trolls in the United States
In the US, a lot of plaintiffs are patent trolls. These patent trolls use software patents that would be ruled invalid if brought before the courts. There’s no denying it, just look at the widely available statistics and then consider money extracted outside the courts (like ‘protection money’) and without the media even being informed (secrecy demanded by the racketeer). The USPTO keeps granting twice as many patents as one decade ago. No quality control seems to be in place, at least no effective control of quality (92% of applications wind up being accepted). These new figures from Patently-O, which cover a particular kind of patents, reinforce this. They completely reaffirm or fit the pattern and as IP Kat has just put it, “the patent system is inimical to innovative activity, at a time where innovation is seen as in decline.”
“These patent trolls use software patents that would be ruled invalid if brought before the courts.”The US patent system is now dominated more by parasites than by innovators. It’s a real issue. But those who insinuate this or ‘dare’ to point it out come under severe attacks, especially if they’re influential. Blowhard Gene Quinn (whom we often called WatchTroll for various reasons) leads the pack in these attacks.
“Congressman Issa calls patent trolls and plaintiffs interchangeable during ITC hearing,” he wrote in Twitter, linking to an article with the same headline. This whole article is based on a small spoken portion which said, “for purposes of my opening statement ‘plaintiff’ and ‘troll’ will be interchangeable.”
This seems like convenient framing for abbreviation when time is limited (a hearing), but watch how far Gene Quinn took this, defending the ITC’s embargo policies and defending patent trolls by targeting Darrell Issa, i.e. the messenger. These are the expected personal attacks on him from Quinn (for ‘hypocrisy’), in the same way he attacked Mark Cuban (over Vringo investment), who’s trying to demolish software patents.
“The US patent system is now dominated more by parasites than by innovators.”“Finally we get the truth,” IAM wrote (Gene Quinn being praised by IAM says a lot about IAM). “According to reform proponents a patent troll is any entity that seeks to enforce a patent” (because patent maximalists, propagandists, and proponents of software patents have agenda, which includes top enforcers of software patents, namely patent trolls).
Soon to join the above was a Bristows [1, 2] employee (UPC and software patents booster) who wrote: The Subcommittee is Chaired by Congressman Darrell Issa (R-CA), who has been an outspoken advocate for the need for more patent reform in order to provide relief from those he believes are abusing the patent litigation system — those sometimes called patent trolls. Indeed, from the start of the Thursday’s hearing, the debate regarding patent infringement at the ITC was couched in the language of the patent troll debate. For example, during his opening statement Congressman Issa rather imperiously stated: “for purposes of my opening statement ‘plaintiff’ and ‘troll’ will be interchangeable.”
“There is an agenda to drive and combing/cherry-picking the words of this agenda’s antagonists is a commonly-used tool.”The strategy of nitpicking a brief statement (where brevity was achieved in the above-stated fashion) is rather common these days. There is an agenda to drive and combing/cherry-picking the words of this agenda’s antagonists is a commonly-used tool. I frequently saw it done online to incite against Techrights (misrepresentation of the site’s positions).
Incidentally, and not too surprisingly (it was inevitable), IAM ‘magazine’ joins the lobbyist David Kappos (funded by IBM, Microsoft, Apple etc.) in attacking challenges to software patents in the US. To quote an article from this weekend (insisting that “something needs to be done about [section] 101″:
Earlier this week former USPTO Director David Kappos doubled down on his long-time criticism of the recent case law and called for the abolition of 101. Speaking at the Federal Circuit Judicial Conference he reportedly compared the situations in the US with Europe and Asia. “It’s time to abolish Section 101 and the reason I say that is that Europe doesn’t have 101 and Asia doesn’t have 101 and they seem to be doing just fine in constraining patent eligible subject matter,” he commented.
Such is the uncertainty around 101 in both the high tech and biotech fields, thanks to the Supreme Court’s decisions in a series of cases including Alice Corp v CLS Bank and Mayo v Prometheus, that Kappos’s concerns are shared by many patent owners. His worries around 101 have evolved over recent years. On a panel at the AIPLA annual conference in 2014 he claimed that the case law had moved far beyond the original meaning of the statute. He strengthened his arguments in a speech he gave at the LeadershIP event in 2015 when he noted that despite the uncertainty, 101 reform did not feature in the debates around patent legislation.
IAM is a mouthpiece for patent lawyers, large corporations that rely on software patents, and basically those who are paying IAM. Megaphone for those interests is what IAM has become. It’s not a news site. It’s agenda dressed up as ‘news’. █
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