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12.12.17

PTAB Haters Fail to Guard Bogus Patents, But They Still Try

Posted in America, Apple, Courtroom, Patents at 7:54 am by Dr. Roy Schestowitz

Related: The Patent Trial and Appeal Board (PTAB) is Utilised in Fixing the US Patent System and the Patent Microcosm Loses Its Mind

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC
The latest in Oil States (Oil States Energy Services, LLC v. Greene’s Energy Group, LLC), which is very unlikely to stop PTAB but rather reinforce PTAB based on the above oral hearings

Summary: Three Affiliated Tribes probably won’t enjoy sovereign immunity from PTAB, Dennis Crouch won’t manage to slow down PTAB, and patent litigation will stagnate as bad patents perish before they even land in a lawsuit

THE USPTO’s Patent Trial and Appeal Board (PTAB) has come under various attacks from the patent microcosm. We’ve lost count of the number of attempts to discredit or extinguish PTAB, but the Three Affiliated Tribes "scam" is one that we wrote about quite recently. Sovereign immunity loopholes are being closed by Federal courts and politicians. Seeing all this, Apple now takes aim at patents which were asserted against Apple. The PTAB bashers from IAM explain this as follows:

The debate over the use of sovereign immunity to protect patents from post-issuance reviews at the USPTO’s Patent Trial and Appeal Board (PTAB) has taken another turn. Late last week Apple filed an IPR against a patent held by MEC Resources, an entity owned by the Native American Three Affiliated Tribes, which had previously filed an infringement suit against the iPhone maker in a California district court.

Sovereign immunity as an IPR defence has become one of the patent stories of the year. It was used first (successfully) by several state universities and more recently has been claimed by a number of tribes including the Saint Regis Mohawk, who have taken on patents owned by pharma company Allergan and tech entity SRC Labs.

Allergan has been embroiled in a number of disputes with generics businesses over patents relating to its blockbuster drug Restasis and has been targeted in numerous IPRs filed by generics manufacturer Mylan. The patents assigned to the Saint Regis tribe from SRC have since been asserted in separate lawsuits against Microsoft and Amazon.

MEC Resources and Mohawk/Allergan will both fail to guard these patents (at least from scrutiny). It’s becoming crystal clear that it’s all just a ploy, as a Federal judge put it (“scam” is a more common term than “ploy” and the judge called it a “ sham”, which sounded similar to “scam”).

“MEC Resources and Mohawk/Allergan will both fail to guard these patents (at least from scrutiny).”Irrespective of one’s feelings about Apple, the patent case above is one where we ought to support Apple’s side as it also shields PTAB.

Incidentally, last night Dennis Crouch revisited PTAB in his PTAB-bashing blog. He now bashes PTAB for not giving the right of appeal. To quote:

While the inter partes review (IPR) was ongoing Ariosa/Roche filed a set of three ex parte reexamination requests and the PTO determined that they collectively raised 18 substantial new questions of patentability. However, after siding with the patentee in the IPR, the PTAB also terminated the three pending reexaminations – finding that Ariosa had delayed unreasonably in filing the reexam requests and that the petitions were duplicative of the IPR. This was apparently the first time that the PTAB had ever collaterally terminated an ex parte reexamination. (Remember here, that reexaminations are handled by examiners not by the Board).

[...]

PTAB has the right decision here (I think), but I continue to struggle with the no-appeal result. The argument for no right to appeal here is two-fold: (1) in an IPR only the final written decision can be appealable, and the decision here was separate from that paper; (2) A third-party has no right to appeal dismissal of an ex parte reexamination. What we don’t know is which of these (if either), the Federal Circuit would adopt.

This seems like Crouch's old pattern of trying to slow PTAB down by making the whole process more expensive and cumbersome. Shaming tactics along with Watchtroll. ‘Scholarly’ lobbying… soliciting briefs, too.

“The bottom line is, many more legal disputes are now being ‘settled’ (resolved) without pricey legal proceedings.”PTAB fees have already been raised, potentially accounting for a relative decrease in IPR filings. Does Crouch want them over-encumbered/preoccupied with appeals too? Probably. He also pressured Federal judges to issue written decisions for possibly thousands of PTAB appeals. Easy for him to say, having never written a legal decision; it takes a great deal of time and scales badly/poorly when it comes to the volume of IPRs. He knows that. He has an agenda…

The bottom line is, many more legal disputes are now being ‘settled’ (resolved) without pricey legal proceedings. PTAB typically invalidates low-quality patents before they even reach the courtroom. This is a good thing, not a bad thing. It’s a feature for actual companies, but it’s a “bug” for the litigation ‘industry’. To them (the latter), litigation is just a “product” to be sold. But it’s not a market, it’s a parasite. It’s not an industry but a nuisance. Watch yesterday’s press release which said “growth of the global litigation services market can be attributed to the rise in investments in R&D and for filing patents by organizations in the automotive, FMCG, pharmaceutical, and healthcare sectors.”

“Wanda publicly brags about getting software patents that are null and void (most likely) after Alice.”They say “litigation services market” as if it’s now a real “market”. Ask Crouch about it. Maybe he has actual investments in this “market”, not just amicable relations with that “market”.

And speaking of low-quality patents, see this press release from yesterday [1, 2]. Wanda publicly brags about getting software patents that are null and void (most likely) after Alice. It reads like a a couple of algorithms, one for “Searching of Stationary Datasets” and another for “Detecting Activities and Anomalies in Time Series Data” (they just sneak in words like “Apparatus” to make it appear less abstract than it really is). Worry not, PTAB is very quick to throw away such patents even if they somehow slipped through to the USPTO‘s database.

Team UPC’s Tilmann Defends Rogue Vote at 1 AM in the Morning With Just 5% of Politicians (Those With Vested Interests) Attending

Posted in Deception, Europe, GNOME, Patents at 6:58 am by Dr. Roy Schestowitz

What sort of intellectually dishonest person would attempt to defend political corruption followed by cover-up (names of who voted)

Constructive vote of no confidence
Reference: Constructive vote of no confidence

Summary: Just when German democracy is being stolen by a legislative coup (in the dead of night when 95% of politicians are absent/asleep) there’s someone ‘courageous’ enough to rear his ugly head and attempt to justify that coup

A WAVE of autocracy sweeps across Europe, including some elements inside the Bundestag.

Team UPC is just about as crooked and dishonest as the EPO. We have not heard of Tilmann in a long while (he was still very active last year), but moments ago a UPC booster, Thomas Adam‏ (his Twitter handle is dedicated purely to UPC, it’s “UPCtracker”), wrote this: “Tilmann in GRURInt 2017, 1177 quite sceptical about merits of Constitutional complaint, submits in summary: Constitutional complaint cited a “qualified breach” of German Constitution leading to a change of the constitutional identity in order to gain momentum. (cont‘d) [] Such change of constitutional identity Bundestag could not even decide by a 2/3 majority (Art. 79(3) GG). He compares the UPC project to a rationalisation measure “comparable to the merger of the patent district courts of Hamburg and Schleswig-Holstein”. [] UPC merely centralized tasks decided based on identical subject-matter, facts&law by national courts. ProfT argues this “demonstrates the disproportionate nature of the attack on a project that does not even touch the constitutional identity of the German Constitution from afar”. [] Rather, UPC, in the words of the ECJ and recitals 24 & 25 of the UPC regulation, was of fundamental importance for ensuring the proper functioning of the Unitary Patent, consistent case law and, consequently, legal certainty and cost-effectiveness for patent holders. (end)”

“It’s showing that Tilmann publicly but quietly mocks the rule of law in Germany, just like the EPO does… he tactlessly attempts to justify what happened at 1:30 at night…”Some other hardcore members of Team UPC have embarrassed themselves by writing about it in blog posts, only to be harshly criticised in comments. Tilmann has instead chosen to quietly speak to the courts (deadline is end of this month). This is truly laughable because to attempt to defend the UPC on this basis is to mock democracy itself. Thanks to Thomas Adam, we now know what Tilmann has been up to. It’s showing that Tilmann publicly but quietly mocks the rule of law in Germany, just like the EPO does… he tactlessly attempts to justify what happened at 1:30 at night (or morning, as it’s defined as morning by some). Everyone was asleep. This was the plan.

“The President of the Boards of Appeal has a connection to the UPC, as we noted a year ago when he was appointed.”Another German, Thorsten Bausch, has been rather shocked to see all this. He is rightly concerned that in the name of self interest German law is being ripped apart. Among the latest comments in his blog we see Paul Tauchner, who wrote: “It seems that this affair is a prime example of the way determined dictators in various countries have in the past increased their power, with the rather despicable complicity between control organs (the IC) acting either indifferently or even with incompetence and the leaving President. We may now indeed expect more scandals to become public as it recently happened (in a different context though) with the growing “Me Too Campaign”. Let us hope this will bring satisfaction to those who have suffered from injustice.”

And another person wrote: “Good to hear that at least the President of the Boards of Appeal takes proper account of ILO decisions. A great pity Battistelli has been able to manipulate the Administrative Council so effectively over the years. Let’s hope the Admin Council takes note of the criticisms in the judgments of the ILO.”

The President of the Boards of Appeal has a connection to the UPC, as we noted a year ago when he was appointed. But unlike Tilmann he has not (so far) made a mockery of simple rules. In fact, he appears to be the only person who opened his door to Judge Corcoran.

The Mask Falls: Lobbyist David Kappos Now Composes Pieces for the Patent Trolls’ Lobby (IAM)

Posted in America, Asia, Deception, Patents at 6:07 am by Dr. Roy Schestowitz

Not only speaking at IAM events and receiving celebrity treatment from IAM

David Kappos
Source: David Kappos 2013 interview

Kappos PAI

Summary: David Kappos, a former USPTO Director who is now lobbying for large corporations that derive revenue from patent extortion, is writing for IAM even if his views are significantly biased by his aggressive paymasters (just like IAM’s)

THE patent trolls’ lobby (IAM) once again boosts lobbying/lobbyists of patent bullies, courtesy of David Kappos, who used the “China!” scare tactics to pressure for patent maximalism. What’s seemmingly unique this time is that IAM doesn’t just mention Kappos but gives him the entire platform.

Here is the introduction (the rest is mostly copy-paste of his comment on a speech/talk):

David Kappos, who was President Obama’s first USPTO Director and is now a partner at Cravath Swaine & Moore in New York, has put together a brief opinion piece for us on the Delrahim speech. Although he served under the previous administration, Kappos is in no doubt that in its second term, at least, it favoured users of IP over those who created it. Delrahim’s speech, he states, signals that at the DoJ that will now change …

It is very troubling when former USPTO officials (not just Kappos) are proceeding to using their “access” (connections) to get clients in the lobbying sector. Kappos has taken that to new extremes, which reinforces the perception of USPTO corruption.

Also published on the same day was this IAM blog post which debunks Kappos with his China-baiting (examples covered earlier this year). The latest twist in the Veeco tale simply shows how US patent law undermines US companies as they already rely a great deal on Chinese suppliers. By attempting to sue in the US it provoked litigation elsewhere and it has backfired badly. The “US company’s stock [is] falling,” basically because it become overzealous and litigious.

In a patent dispute that seems tailor-made for the Trump era, a US semiconductor company says a Chinese competitor has relied on IP infringement and government subsidies to significantly undercut its business. But although New York-based Veeco won a key preliminary injunction battle in front of a US district judge last month, a court in China hit the US company with an injunction of its own four days ago, causing one analyst to surmise that its patent enforcement campaign has badly backfired.

Veeco makes equipment used to manufacture LEDs, and until recently had about 60% market share in a technology known as MOCVD reactors. It makes the reactors itself, but has licensed German company SGL to manufacture a specific component called a wafer carrier. SGL also supplies wafer carriers to Advanced Microfabrication Equipment (AMEC), a new Chinese player in the MOCVD space.

[...]

It is not clear whether the China injunction is a preliminary or permanent one, or what the next steps are, but Veeco claims the decision was handed down “without providing notice to Veeco and without hearing Veeco’s position on alleged infringement” – which suggests it could be the former. The NASDAQ-listed company told investors that it will appeal the ruling, which it affirned applies only in China and only to some of its products in that market.

China has become fast and loose with embargoes and trolls. This is exactly the sort of thing Kappos wants back in the US, failing to recognise how ruinous it is for small businesses, i.e. not his clients (in his capacity as a lobbyist).

The EPO Protest Tomorrow Isn’t Just About Judge Corcoran But About the EPO as a Whole

Posted in Europe, Patents at 2:51 am by Dr. Roy Schestowitz

The Administrative Council has been complicit and the Boards of Appeal (as well as the EPC) are at risk/under an existential threat

EPO Protest in Munich
EPO protest in Munich last year

Summary: EPO staff is about to protest against the employer, pointing out that “Battistelli is still showing a total and utter lack of respect not only for his staff and their rights but also for the Administrative Council and for the Tribunal”

AS we already said last week, yesterday and again this morning, there’s another EPO protest lined up and it will take place tomorrow, in order to coincide with the meeting of the Administrative Council (we’ll be personally away those days and thus unable to cover many of the developments therein).

Following the announcement in German four days ago there is now a similar (but shorter) one in English and it says that “SUEPO Munich calls for a demonstration in front of the Isar building on the first day of the meeting of the Administrative Council on Wednesday 13 December at 12:30 in front of the Isar building. The aim is to signal to the Council that their governance is needed – if they want to avoid further criticism from the Tribunal.”

There’s also an accompanying document which sheds light on the legal bullying from Battistelli and his ‘bulldog’:

DEMONSTRATION

Wednesday 13 December at 12:30 Isar building

On 13 and 14 December the Administrative Council of the EPO will meet in Munich. The agenda can be found in micado as CA/105/17.

The meeting is likely to be tense:
- Mr Battistelli and Mr Topic have repeatedly accused a Member of the Boards of Appeal of defamation. They even introduced a private complaint for “Beleidigung” (insult) in a German court. The court dismissed the complaint as time-barred. In the second instance the German second instance court, apparently annoyed with the complaint, went further and also dismissed the complaint on the substance. A similar complaint filed in Croatia by Mr Topic has been withdrawn by the accuser, who presumably feared a similar fate.

- The suspended Member of the Boards of Appeal filed several complaints at the ILO-AT. The first two have now been decided. The Tribunal found that the President had a personal interest in the case and was partial. It further stated that the Administrative Council erred in not finding that the President had a conflict of interest in the matter.

- The Tribunal ordered the Office to reinstate the Member of the Boards of Appeal and lift the house ban imposed upon him with immediate effect. The problem: his contract expires at the end of the year and has not been renewed so the “reinstatement” will in practice be for less than two weeks.

- The case is on the agenda of the Council as point 1.7. It is a “C” point meaning that it will again be discussed behind closed doors, again solely on the basis of information provided by the President, including confidential documents that have not been shared with the accused, and without the Board of Appeal Member being heard.

Mr Battistelli is still showing a total and utter lack of respect not only for his staff and their rights but also for the Administrative Council and for the Tribunal.

SUEPO Munich calls for a demonstration in front of the Isar building on the first day of the meeting of the Administrative Council. The aim is to signal to the Council that their governance is needed – if they want to avoid further criticism from the Tribunal.

SUEPO Munich

It’s rather hard to imagine if/how the Boards of Appeal at the EPO can properly function. They’re not independent anymore. Battistelli gave them a death blow. He killed the EPC too, at least in the process.

There’s this new article from last night regarding the Boards of Appeal and it fails to mention that the Boards of Appeal are at a point of unprecedented crisis after several attack from Battistelli (the Boards are also grossly understaffed).

A guest post at Managing IP has said:

As previously discussed in this column, the Boards of Appeal of the EPO have a few tools at their disposal, which they use to conduct EPO appeal proceedings efficiently. In particular, Article 12(2) of the Rules of Procedure of the Boards of Appeal (RPBA) requires appellants to provide their complete case in their statement of grounds of appeal or response to an appeal.

Using this Article, the Boards of Appeal can choose not to admit evidence or amendments to a patent that are filed late in appeal proceedings.

It has generally been accepted, however, that late-filed evidence or claim amendments could be admitted into appeal proceedings, if they are a response to a filing or argument made by another party. So, for example, if a patentee-appellant files new data with their appeal to support an invention, an opponent-appellant should be able to submit counter-evidence, for example in the form of experiments. In effect, a late-filing needs to be justified by a change in circumstances.

How much of this cumbersome process can be afforded now that these Boards have been pushed to the edge and denied resources they need? Incapability/lack of capacity to audit patents (a form of quality control) granted by the Office is a serious peril to the whole Organisation. Shouldn’t that be noted by more writers of/from the patent microcosm? Shouldn’t they be fighting to restore the EPO’s integrity? Apparently they don’t care enough…

Unusually, Marks & Clerk decided to speak out about something rather extraordinary last month. It appeared in at least three places and we mentioned it before. It still circulates among EPO staff as evidence of what Alberto Casado is up to. “This article first appeared in Intellectual Property Magazine,” it notes and it then says that “third parties who may be significantly disadvantaged.”

“Presumably,” it notes, “all deferred applications will be removed from the statistics on average examination time, allowing the EPO an opportunity to drive down the numbers without actually doing any further work.”

Had the Boards of Appeal enjoyed real independence (and sufficient capacity), they would probably be able to say something about it. From Stephen Blake’s article:

An innovative economy is something to be celebrated, but increased numbers of patent applications can cause problems for intellectual property offices tasked with examining them. It has long been known that the European Patent Office (EPO) has a large backlog of patent applications to examine, with applicants waiting years to receive a first examination report. At the meeting of the EPI Council last week in Warsaw, I learned of a new proposal presented to Council by Alberto Casado, Vice President of the EPO, for tackling this backlog. If implemented in its proposed form then it is likely to have implications for applicants, but most notably for third parties who may be significantly disadvantaged.

In recent times, the EPO has introduced a number of initiatives known collectively as “early certainty” initiatives with the aim of speeding up the prosecution of European patent applications and the opposition proceedings for granted European patents. One of these initiatives is that the EPO aims to give preliminary opinion on patents within six months of filing the application. While the EPO has seen success under this initiative, a further initiative to reduce the average time for examination to 12 months has been less successful – the current average time for examination is just under two years. The EPO has therefore considered further measures to alleviate the backlog. One such measure is a proposal to defer examination at the EPO for up to three years on request from the applicant. I understand that the EPO thinks this will mean less time is spent examining applications that the applicants are not too concerned about. Presumably, all deferred applications will be removed from the statistics on average examination time, allowing the EPO an opportunity to drive down the numbers without actually doing any further work.

This whole “early certainty” spiel is a travesty which evades the very principles of patenting; rushed examination is typically as good as no examination at all and patents granted at haste/hurry should be treated with great caution/suspicion.

What ever happened to the Boards of Appeal which used to guard Europe from low-quality (and invalid) patents? Why is Battistelli fighting them tooth and nail? Probably because he has plenty of mischief to hide…

Battistelli is covertly creating another SIPO or INPI. Quality matters no longer…

Claim: Judge Corcoran to Be Put Under Benoît Battistelli’s Control in DG1

Posted in Europe, Patents, Rumour at 1:33 am by Dr. Roy Schestowitz

Would you trust this man near judges?

Mafia Battistelli

Summary: Benoît Battistelli, who openly disregards and refuses to obey judges (while intervening in trials and delivering ‘royal decrees’ whenever it suits him), may soon gain direct control over the judge he hates most

THE EPO is in shambles and we welcome Dr. Thorsten Bausch’s criticism of this whole situation. If only more of his colleagues and others in his professional domain found the courage to speak out…

Yesterday Bausch published “Quo usque tandem, Battistelle,” soon to be recommended or at least also cited by JUVE’s Mathieu Klos‏ and Dr. Luke McDonagh, who wrote (and cited the Irish Times along with Bausch’s post): “The European #Patent Office’s labour practices have become incredibly controversial: of interest to the #ECHR (via a complaint made against the Netherlands by its trade union) and the International Labour Organisation (#ILO)…”

Nobody is happy about it. We saw one personal attack on a dismissed staff representative (the typical pretense that EPO staff is rich and spoiled), but everything else is very unflattering to Battistelli and the EPO. Bausch said that Battistelli “is a powerful person, no doubt. But he is not above the law, and he should not be. It must be possible that courts or tribunals set limits to his powers and at times even vacate decisions that he has made. The same is true for the Administrative Council. Both the President and the AC are bound by the European Patent Convention, which has to be interpreted, as the case may be, by an independent court or tribunal.”

More from his article:

If a recent report by JuVe is correct – and they are normally well informed – then Mr. Corcoran has not only won his cases before the ILO, but also before the Regional Court of Munich and the Office of the State Prosecutor in Munich. This is at least what Mr. Corcoran’s attorney told JuVe: “Denn durch die beiden ILOAT-Urteile und diverse Entscheidungen des Landgerichts München und der Staatsanwaltschaft München wurde nun von dritter Seite zweifelsfrei bestätigt, dass die Vorwürfe von Herrn Battistelli gegen meinen Mandanten unbegründet sind” (in English: “The two ILOAT judgments and several decisions of the Regional Court of Munich and the State Prosecutor of Munich have confirmed without any doubt that Mr. Battistelli’s accusations against my client are unfounded.”) – If the EPO has different facts to report, then let us hear them. Otherwise I hope that the decisions by the Munich court will become public some day. They could be interesting.

In any case, the plot seems to thicken. Maybe Mr. Battistelli is really a case for „Krampus“. If he does not change course now and if he continues refusing to do what the ILO ordered the EPO to do, he should be sacked. Otherwise, the Administrative Council risks a serious loss in reputation of the European Patent Office, and I cannot imagine that the German Federal Constitutional Court would firmly close its eyes to such a breach of the constitution and the EPC. Let it not be forgotten that the rule of law is the fundament of the EPO member states’ constitutions and the European patent system as a whole.

And, ceterum censeo, dear Administrative Council, please finally fill the gaps in the technical members of the Boards of Appeal! There are still more than 20 unoccupied positions shown in the business distribution scheme and the duration of appeal proceedings has become truly unbearable.

Someone in the comments then pointed out, correctly, that “ILO decisions in re Judge Corcoran probably mark the beginning of Mr Battistelli´s end.”

To quote:

The recent ILO decisions in re Judge Corcoran probably mark the beginning of Mr Battistelli´s end.
A number of cases of harassement and violations of fundamental rights by him and his minions against various victims are still pending before the Tribunal of the ILO, which expressly justified the extraordinary public announcement last Wednesday by the fact that it would apply the very same considerations in several decisions to come.
The decisions also illustrate how Mr Battistelli made a fool of the AC, bringing both the EPO and the UPC to a point of rupture, with disastrous consequences to be expected from the pending constitutional complaints before the GCC.
Any new proposal from Mr Battistelli in his last months of service is therefore likely to be dumped immediately by the AC.
And once he will have lost power, influence and intimidation capacity, expect dozens of new stories and scandals to emerge. Has he for example really got the Chair of the CEIPI Board tby virtue of his outstanding legal knowledge and brilliant achievements in intellectual property matters rather than perhaps by massively threatening the CEIPI to put a brutal end to EPO´s cooperation and substantial financial support, if he was not elected?

We wrote about CEIPI in the following posts:

Teachers at CEIPI were complaining about Battistelli’s appointment before they even knew about the ILO judgments.

Thorsten Bausch told the above commenter: “Then let us just hope that this reinstatement will also be accepted by the President of the EPO, not just the President of the Boards of Appeal. If so, it would be good news for the rule of law.”

Battistelli and the Office, as we've just noted, have said nothing whatsoever about it. Only Carl Josefsson did.

But mind the next comment, which adds new information/speculation (highlighted in yellow below):

Mr Corcoran was today in Haar (DG3) but it is still unclear whether he can enter other EPO premises (eg Isar, Pschorr Höffe)

I just heard from usually well informed sources that the plan is to now let Mr Corcoran in DG3 until 31.12.2017 and from 01.01.2018 to have in [sic] (him?) back in DG1 under Battistelli !

Suspended 3 years, charges with nothing, a professional life and a reputation totally destroyed by a system incapable to acknowledge its own mistakes plus, cherry on the cake, the brilliant demonstration of the “independence” of the DG3 : Merry Xmas Mr Battistelli !

Can anybody verify/confirm the highlighted text above? We do need independent verification.

Over at The Register many of the comments are not on topic (as usual), but here’s one that is:

Does the ILO’s court have the ability to hand out contempt of court rulings and fines?

Does the ILO’s court have the ability to hand out contempt of court rulings, fines and to jail those individual persons who ignore or unduly delay enacting its rulings? You know, like real courts can do.
If so, then now is the time it is the time for the ILO’s court to start putting individual people in jail until the obey its rulings.
Benoit Battistelli
Benoit Battistelli’s blindly obedient servant, the head of the EPO’s security*
And if that doesn’t do it, then next week the EPO’s executive committee
* Since when did, “I’m just doing what my boss told me to do” justify refusing to obey a court order?

See this reply:

I thought the procedure was that the recipient of the decision could go to the national court to enforce it. In that case the immunity of the organisation would not apply. I could be wrong. Of course the EPO has won a case before the Dutch Supreme Court which was partly based on the EPO’s recognition of the ILO as being a legitimate source of justice for the staff (contrary to the staff’s assertion to the practical application of the right). Failure to apply the ILO decision could well bring that decision back to the table, particularly as the staff Union is currently appealing it to the higher European court for human rights. Ultimately it may rely on the national government (Germany, country of the EPO Chairman) taking steps with regard to the immunity. A ridiculous diplomatic conflict may ensue?
For the want of a nail…

It is going to be interesting to see the ramifications/knock-on effect at ECHR.

Some of the comments are even less polite and suggest law enforcement ought to get involved:

The guy should turn up with a couple of friendly policemen in tow and the minute he is refused access, the police should arrest and handcuff anyone who stops the guy.

Start with the security oik and when he says he has been told to do it, go arrest the person who issued the instruction. Cart them off to a holding cell and remind them that if they repeat it, then they will be arrested again.
Proceed ad finitum until the cops run out of handcuffs and the organisation gets the hnt.

Imagine that. And read the reply:

Except… the EPO buildings are inviolable so any police raid would lead to a call from the EPO to the Ministry of Foreign Affairs for back-up. Could lead to a stand-off. And don’t forget BB has personal bodyguards.

Insiders have told us they believe things will get nasty pretty soon. It’s also hard to believe that Corcoran under direct control of Battistelli (and his circle) will be in safe hands. We’re less optimistic than SUEPO and deem Campinos to be an extension of Battistelli’s “circle” (or “swamp” as they nowadays call it across the pond).

The European Patent Organisation Refrains (For Nearly a Week) From Speaking About Battistelli’s Abuses as Judged by ILO Tribunal

Posted in Europe, Patents at 12:59 am by Dr. Roy Schestowitz

When they have nothing good to say it seems they’ll say nothing and instead pay the media to say something positive

Be quiet

Summary: The EPO’s silence on the matter of Patrick Corcoran is deafening; to make matters worse, the EPO continues to pollute media and academia with money of stakeholders, with the sole intention of lobbying and misleading news coverage (clearly a disservice to these stakeholders)

THE European Patent Office (EPO) is moving from one scandal to another and from one embarrassment to the next. There is, however, a PR/media strategy.

“Not a single word from EPO (at least not yet) about the epic ILO loss or even the UPC setbacks.”Yesterday, for example, the EPO continued with its #IPforSMEs charade (latest tweets to that effect [1, 2]), which is based on a lie because the EPO got caught discriminating against SMEs and they found out.

There was also this puff piece (warning: epo.org link) and accompanying tweet about more bogus ‘studies’ (commissioned by the EPO, as usual, as if it’s a lobbying organisation).

Not a single word from EPO (at least not yet) about the epic ILO loss or even the UPC setbacks. The EPO just simply ignores anything it does not wish applicants to be aware/informed of. This is a symptom of authoritarian regimes, incapable of self-assessment and honesty.

“The EPO just simply ignores anything it does not wish applicants to be aware/informed of.”The latest ‘study’ continues a disturbing pattern. The EPO keeps passing money to media and academia, essentially corrupting both at the expense of applicants. The so-called ‘study’ was done “in co-operation with Handelsblatt Research Institute,” the EPO wrote. We don’t suppose that Handelsblatt (news site which covered EPO scandals in the past) will be covering the latest real news then. The EPO has already passed money to many more publishers (we showed examples and even extracted admissions from journalists).

What a waste of budget. So EPO management pays for some bogus ‘study’, in order to ‘create’ puff pieces about it from WEF; yesterday the EPO retweeted this and linked to this puff piece; as far as we’re aware, William New is the only other person who wrote a puff piece about (or for) this. It’s basically a salad of buzzwords, as usual.

“Is the EPO a real patent office or just a mouthpiece for Battistelli?”It’s worth noting that the EPO has officially said absolutely nothing about the dispute with the judge. Nothing!

It found time to write about the last Patent Information Newsflash webinar, it pushed the UPC ‘study’ at around lunchtime (Monday), and it said that “EPO offices [would be] closed from 23.12.2017 to 1.1.2018,” citing this page (warning: epo.org link) which said: “Please note that all our offices will be closed over the holiday period from 23 December 2017 and will open again on 2 January 2018. During this time no user support will be available, but you may continue to use our contact form to send us an enquiry.”

Well, the EPO already canceled so many holidays this year (at least 3, to take effect soon), so will Christmas be recognised next year? If so, how many days off will staff be given? What kind of break will they receive? The above makes it sound as though staff will get only 6 (working) days off. That’s very little compared to ‘industry standards’. It gets worse over time.

Either way, we still patiently wait for the Office to make any statement whatsoever regarding ILO. It did this before (when it got its way), so why not now? Is the EPO a real patent office or just a mouthpiece for Battistelli?

Carl Josefsson Lets Judge Patrick Corcoran Come Back to Work at the EPO

Posted in Europe, Patents at 12:21 am by Dr. Roy Schestowitz

Carl Josefsson of EPO
Photo credit: Bird & Bird, 2015

Summary: After initial reluctance to obey/respect the rulings from the ILO (security staff declining access) there is official permission for Patrick Corcoran to enter and resume work (following 3 years of injustice against him)

ONE year ago Carl Josefsson was put in charge [1, 2] of the appeal boards at the EPO. Josefsson, as we noted a day ago, is said to have brought Judge Corcoran back in (at least into Haar; “Not clear about other sites,” a source told us).

We now have the text related to this. To quote:

In a post on the internal page of the Boards of Appeal, dated today, the following can be read:

11.12.2017
Execution of ILOAT judgements

The President of the Boards of Appeal has reistated a member of the Boards of Appeal as of Monday, 11 December 2017, in execution of the judgements No. 3958 and 3960 of the Administrative Tribunal of the International Labour Organisation of 6 December 2017.

Carl Josefsson
President of the Boards of Appeal

There was another article related to this which was published yesterday and said:

He had alleged that the Administrative Council had imposed several measures on him in relation to an alleged misconduct. These included suspension, a “house ban”, a blocking of his EPO user ID, and a request for him to relinquish all EPO property.

The ILOAT awarded the suspended EPO member material damages in an amount equal to the deductions from his remuneration, and moral damages.

It also ordered the EPO to immediately allow the complainant access to the EPO premises and resources, to return any EPO property it requested him to hand over and to unblock his user ID.

So after some pressure there was apparently compliance, too. It remains to be seen if the contract is renewed. Yesterday SUEPO published an outline of this case (and others) in the form of a PDF, which we’ve converted manually to HTML:

11 December 2017
su17024hp

Analysis of the EPO cases issued during ILO-AT extraordinary session of December 6th 2017

Judgment No. 3972

This involved a case where a staff member on certified sick leave was charged, inter alia, with unauthorised absence, failure to cooperate with medical procedures and to be present at normal place of residence as constituting misconduct. After an in absentia disciplinary proceeding, the staff member was dismissed from service.

On appeal, the Tribunal held that the staff member’s actions and behaviour may have been manifestations of a medical condition. The Tribunal specifically noted that the medical evidence before the Disciplinary Committee (and the President) clearly pointed to a conclusion that, at least by the time the Disciplinary Committee was deliberating, the staff member was suffering from a serious medical condition.

Under such circumstances, the Tribunal held that the EPO had a duty of care to order a medical assessment of the staff member’s health condition, so as to determine a nexus between that condition and the staff member’s actions. The EPO’s failure to do so amounted to a breach of duty of care and its response was held by the Tribunal as being inadequate.

Based on the following, the Tribunal has sent the case back to the EPO with instructions for the DC to consider whether the alleged misconduct can be entirely explained by the staff member’s health condition (which the DC ought to do by requesting a medical assessment). EPO has also been asked to assess whether the staff member was entitled to benefits based on an invalidity stemming from the medical condition and service with the EPO. The staff member has been awarded 20,000 Euros moral damages for the moral injury suffered on account of the unlawful dismissal. Costs were awarded at 1000 Euros.

Judgments No. 3958 and 3960

These involved the cases of a member of the Boards of Appeal being suspended and his suspension being extended, pending the completion of disciplinary proceedings against him. These proceedings were in respect of allegations of misconduct which, inter alia, related directly to the President (such as allegations


of spreading defamatory statements against the President). In arriving at these decisions, the Administrative Council was advised by the President, who was involved in the decision making process.

The Tribunal stated that the question of the President’s conflict of interest represented a threshold substantive issue in this case. The Tribunal stated that a conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest.

In the present case, there is a conflict of interest on the part of the President. This stemmed from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the President’s impartiality. Considering the whole situation, the Tribunal held that a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved.

To the President’s participation in the procedure against the complainant citing the EPO internal laws which provide for his participation in the Administrative Council’s decision, the Tribunal held that the question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Therefore irrespective of what the internal laws provided for, there was a clear conflict of interest on the part of the President.

As for the house ban against the complainant, the Tribunal held that the President was wrong in stating that he was the final authority in imposing house bans. In so far as it relates to an employee appointed by the Administrative Council, that authority rests with the Council alone and not the President.

The Tribunal quashed both the decisions of the Administrative Council (the suspension, the extension of the suspension, the house ban, the relinquishment of EPO property previously at the complainant’s disposal and the blocking of his UserID). It has ordered that the Complainant shall be immediately reinstated in his former post. EPO has been ordered to immediately allow the complainant access to the EPO premises and resources, return to him any EPO property it requested him to hand over pursuant to his suspension and immediately unblock his UserID. EPO has also been ordered to pay the complainant material damages in an amount equal to the deductions from his remunerations, together with interest at the rate of 5 per cent p.a. Moral damages in the amount of 25,000 Euros (for both cases) and costs in the amount of 10,000 Euros (for both cases) have also been ordered.

Claims relating to Circular No. 342 and Data Protection Guidelines violations, as well as procedural violations during investigation, were held as being irreceivable, as they did not relate to a final decision.

Judgments 3895 and 3896

In Judgments 3694 and 3785, the Tribunal sent back the cases to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal. The decision was founded on the fact that the Appeals Committee was not composed in accordance with the applicable rules, in force at the time, set out in Article 36(2)(a) and 111(1)(a) of the ServRegs. The EPO amended Article 36(2)(a) of the ServRegs regarding the competence of the CSC as one of the measures to implement Judgment 3785. The Complainants filed an application for interpretation of Judgment 3785, interpretation and execution of Judgment 3694. They requested the Tribunal to clarify whether ‘the applicable rules’ as referred to are to be understood as the rules that were governing the composition of the Appeals Committee at the time of the internal appeal or when the judgment was delivered. The Tribunal has held that this refers to the procedural rules in force at the time of the execution of the judgment (i.e. the new examination of the appeal). In saying this, the Tribunal did not express a view about the lawfulness of the new provisions. The important question was therefore clarified. Otherwise, the applications were dismissed. The consequence of these decisions is that when cases are sent back to the EPO to be heard by the Appeals Committee, they will be heard by the Committee constituted under the new regulations in force. Whether the rules themselves are lawful still remains to be seen.

Benoît Battistelli and his friend Mr. Campinos have meanwhile received a copy of an open letter to the Council (top delegates to it) and here is the full thing, which makes the obvious observations:

To the Heads of Delegations of the
Administrative Council

To the Heads of Delegations the Board of
the BFC

OPEN LETTER

Should future reforms be left to a President having this record of performance?

Date: 07.12.2017

Dear Heads of Delegations,
On 6 December 2017, the ILO Administrative Tribunal delivered Judgments 3958 and 3960 in which it ordered the immediate reinstatement of a suspended member of the Boards of Appeal (BoA). With the early public delivery of these judgments in an exceptional session, in advance of the regular publication date of 24 January 2018, the Tribunal wanted to stress their significance for the Organisation, especially the Administrative Council (AC), just before the AC meeting on 13-14 December.

The Tribunal set forth that the AC based its decisions on the reasons provided by the President of the Office, who had a conflict of interest casting a doubt on his impartiality, and also that “the Administrative Council erred in not finding that the President had a conflict of interest in the matter”1.

We cannot help but interpret the judgments both as a massive motion of no confidence in the President of the Office and a warning letter to the AC.

A decision on disciplinary case D1/15, concerning the now reinstated member of the BoA, is tabled, as a confidential session item, on the agenda of the December AC meeting. It transpires from the judgments2 that the Council was misled about essential points when it relied on the proposals of the President of the Office. It also transpires that the Council should have been aware of this. Deciding case D1/15 on the basis of

____
1 See consideration 13 of Judgment 3958 and consideration 7 of Judgment 3960
2 See considerations 3 and 5 of Judgment 3960


documents and proposals originating from the President of the Office (but without his presence, as ruled out in the judgments) will certainly be a challenge.

We have repeatedly warned against the content and pace of major reforms which have been pushed through without genuine consultation. These reforms have resulted in staff resistance, even up to the point of flooding the Tribunal3. The Tribunal has now announced that some aspects of the reforms will be scrutinised after the AC has made a decision on the disciplinary case 4:

- reform of the Boards of Appeal, especially the crucial issue of the independence of the members, as enshrined in Article 23 EPC5;
- reform of the justice system, including lawfulness of the investigation procedures; and
- data protection.

The AC decision in case D1/15 will also have consequences in pending national proceedings before the German Constitutional Court (Bundesverfassungsgericht) which concern the EPC and the standing and independence of the BoA.

The judgments do not address the governance problem. In March 2016, the AC adopted resolution CA/26/16 asking for “reinforcement of the AC secretariat and a clarification of its position in terms of governance”. We respectfully suggest that the AC reflect again on this as soon as possible and act accordingly, with the highest priority.

The President of the Office is currently trying to force further decisions on the AC “au pas de charge”, namely:

- new Investment Guidelines of the European Patent Office (CA/F 18/17 Rev.1) for the treasury money (€2,4 billion!) and
-de facto replacement of permanent employment (as enshrined in Article 33 EPC) by chains of fixed-term employment periods, with a so-called “modernisation of the employment framework” in CA/121/17.

Prior to the publication of the judgments, the President of the Office managed to convince the AC to convene two exceptional BFC meetings6
_____
3 The Chair of the AC declared that Mr Battistelli had been “heavy-handed” when pushing his reforms.
4 See consideration 14 of Judgment 3958
5 See consideration 9 of Judgment 3960
6 See B28/10/17


2/3in order to enable him to get his latest proposed reforms approved before the end of his reign in June 2018.

The ball is now with the AC, which urgently has to answer the following question: should these reforms be left to a President and team having such a record of performance?

Yours sincerely,

Chairman of the Central Staff Committee

cc.: Mr Benoît Battistelli; President of the EPO
Mr Antonio Campinos; President-elect of the EPO Council

There’s an EPO protest tomorrow. If anyone takes photos, please consider sending these to us (to accompany our coverage with them and document the unrest). We process the images to guard sources.

12.11.17

Bristows is Being Hammered With Negative Comments For Its Unitary Patent (UPC) Lies

Posted in Deception, Europe, Patents at 7:37 am by Dr. Roy Schestowitz

Bristows typically deletes comments it does not like, but too many people would notice if Bristows overdid it

Alan Johnson

Summary: The Unified Patent Court (UPC) is practically dead in the UK and Ireland; Bristows, nevertheless, continues with its desperate spin

THE EPO barely mentions the word/term “UPC”. Neither does the media. It’s dead.

Bristows keeps pushing UPC agenda into blogs other than its own, even on a Friday night; we expected criticism to be selectively deleted, as usual (it happened before), but some of it is starting to show up. On Monday morning someone wrote to us: “Kluwer, where have all the comments gone?”

“Did you notice that there are almost no comments (published) on this piece since it was put online on Friday evening although similar posts in the past attracted a lot of feedback, mostly within hours? Why do you think this is?”

Looking at Kluwer Patent Blog this morning, we actually find 3 more critical comments, namely:

RIP

When the UPCA was drafted and signed, the UK’s involvement and the establishment of part of the central division in London were key feature. That the agreement could be open to non-EU members had never been envisaged.
Brexit radically undermines these fundamental elements and, at best, the terms of the agreement need to be changed in a yet undefined way.
So how can it be that the ratification of an agreement that has become obsolete and no longer reflects the will of its authors is still a topic in those countries that have fortunately not yet done so?
And why on earth should the GCC submit such an outdated agreement to the CJEU in the circumstances?

Then someone from France (based on the URL/TLD) posted:

Dear proponents of the UPC and the post Brexit membership of UK,

When I see the problems which have led to an enquiry of of the Justice Sub-Committee of the House of Lords’ EU Committee, see

http://ipkitten.blogspot.fr/2017/12/role-of-cjeu-post-brexit-to-be.html

with respect of UK courts, I would like to hear why there are no problems with the UPC, which first, does not exist yet, and, secondly does not seem concerned by the enquiry, as it is not a UK court.

Please abstain from the standard reply: because it is an international court. If difficulties are foreseen in respect of enforcement for UK courts, it is hard to understand why an international would not be exposed to the same difficulties post Brexit.

The Lords seem to be concerned by legal certainty. Where is the legal certainty for the UPC?

It does not seem that the UPC was mentioned in Phase 1 negotiations, so it is unlikely to be mentioned in Phase 2 negotiations, which should start soon. Quo vadis UPC?

And one last comment (for now):

I am interested in your comment that “It rationalised correctly, however, that the UPC was an international court”. Am I correct to interpret this as meaning that you agree with Gordon & Pascoe’s characterisation of the nature of the UPC (as an “international court”, as opposed to a Benelux-style “court common to the (EU) Member States”)?

If so, could you please explain to me how the UPC can possibly refer preliminary questions to the CJEU? As I understand it, a court is only able to access the procedure under Article 267 TFEU if it is “a court or tribunal of a Member State”. If the UPC is an international court, then this would appear to take it out of the ambit of Art. 267… which would then appear make the UPC non-compliant with EU law.

I may be missing something here, and so any clarity that you can help to bring to this situation would be much appreciated.

But that’s not it. There’s even more from Bristows staff at IP Kat this morning, attracting the following comment:

Worth reading and linking together are the article on Kluwer and the comments posted on that article.

http://patentblog.kluweriplaw.com/2017/12/08/brexit-deal-means-unitary-patent-system/

IP Kat‘s/Bristows’ SPC advocacy (covered here yesterday) is also being mentioned:

For me, SPC law is more important than the UPC. The interpretation of the SPC as absorbed into UK law must still follow the EU approach until it is re-written by parliament. Likely, UK judges will rely on CJEU judgments, both existing and post-Brexit. Referrals to the UK Supreme Court may be required, but may be unwise as there is not even a part-experienced patent judge on the panel. Referrals to the CJEU, if not possible, would leave UK judges to make up their own minds – not a bad thing, possibly.

Team UPC/Bristows is then being called “zealots”:

It appears clearly the their Lordships are worried about legal certainty after the Brexit, and hence their enquiry. This applies to U.K. courts, especially their relationship with the CJEU and in matter of enforcement.

Not a word about the UPC! As it does not even exist, no wonder.

Could at least one of the UPC zelotes explain where they find any form of legal certainty in the post Brexit participation of the UKin the UPC, especially when it comes to enforcement? Please do not come up with the worn out argument it is an international court, and the Administrative Committee of UPC will fiddle a bit, so that everything will be honky dory!

Apparently no word about the UPC in Phase 1 negotiations, so nothing about the UPC in Phase 2.

As another blogger said, the UPC is barely a blip on the government radar.

Dear zelotes, wake up to reality, it is better for you. It will hurt, that is the only certainty.
My grand father used to say, that if you stick your head in the ground, do not be surprised that you then get your bottom smacked!
Still valid today.

Notice how every single comment is hostile. Readers know they are being lied to.

Regarding the UPC, the FFII’s President has asked: “Do they have a constitution in the UK? At least I heard there was a constitutional court #upc #rule_of_law”

With news about the Irish judge rising to the surface last night and earlier this morning (it looks like they’re letting Judge Corcoran back in; a source of ours cites “[t]he President of the Boards of Appeal as of Monday 11 December in execution of the judgements 3958 and 3960 of the administrative board of the ILO of 6 December 2017.”) it’s also worth quoting this new comment about the UPC situation in Ireland, an English-speaking country which indefinitely postponed the UPC referendum. “Ireland has to have a referendum on this patent court and granting if jurisdiction as it clashes with our constitution,” said the comment. “I’ll be thinking long and hard about what I’ll be voting for, that’s for sure.”

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