08.12.16
Posted in Europe, Patents at 5:09 pm by Dr. Roy Schestowitz
FTI Consulting helps the EPO ‘manage’ Dutch and German media (new contract recently signed), but that does not always work
Summary: The mass media is catching up with Battistelli’s alienation, segregation or isolation of the boards of appeal as part of his plan to phase them out of existence and maintain systematic exacerbation of patent quality for production’s sake, where “production” is inaccurately and improperly measured
THE media has been rather quiet regarding the EPO recently. The only “EPO” we see in the news is actually the drug, typically in relation to doping in the Olympic games.
“For your information,” told us one of several readers who alerted us about Süddeutsche Zeitung, the local paper “finally breaks the silence on the EPO…”
It is an article composed not by one of the more familiar writers (who ought to be quite familiar with EPO matters) and several people told us about it.
“I noticed the following article which has just appeared in the Süddeutsche Zeitung,” one reader told us. “It is mainly about the planned move of the EPO Boards of Appeal to Haar and it refers to the recent coverage of this story on Techrights.” (see for example [1, 2])
It is good to know that they follow Techrights. We typically get the stories here earlier than the corporate media.
“Battistelli’s plans to send the Boards of Appeal into “exile” in Haar are eerily reminiscent of the methods employed by Željko Topić during his time at the Croatian SIPO,” told us this reader, “as previously reported by Techrights” (see for example [1, 2])
“The difference,” continued this reader, “is that in his previous role Topić could only inflict damage on the IP system in Croatia. It seems that with Battistelli’s backing he has managed to manoeuvre himself into a position where he can now operate on a European scale.”
This is pretty bad as it brings what we once saw dubbed “Balkan standards” into the whole of Europe. We previously made note of exactly the above point (similarity to Topić’s history in Croatia).
These problems at the EPO are real and there is no solution in sight for them (not in summertime anyway). European Inventor Award 2017 (EIA2017) is already being planned as if everything will be fine for another year to come and the PR people are 'spamming' for it (there have been yet more examples of that since, albeit not as much if anything at all after we published the article). “Inventors who aren’t European nationals but have been granted a European patent can also be nominated for this Award,” the EPO stated in relation to EIA2017. It’s not “European Inventor Award 2017″ just as “European Patent Office” is not really European, I’ve told them, considering the fact that there is even discriminatory prioritisation which puts small European businesses at the back of the line.
“I would replace “in Europe” by “at the EPO”,” wrote Benjamin Henrion in response to software patents advocacy in Europe. I told him that that EPO “is not European, it just has the word “European” in its name, like Federal Express which isn’t Federal.” The EPC does not permit software patenting either, but that does not exactly prevent EPO management from trying to work around the exclusions.
A lot of the above relates to how detached from the EPC Battistelli’s EPO has gotten. It’s jaw-dropping that he managed to get away with it. The EPO now has a Brexit-like 'Constitutional Crisis' (dealing with deviation from founding documents like EPC and EU/Lisbon Treaty). Apparently, with help with his marionette called Kongstad, there is something Battistelli can do. A discussion about it is buried inside a very long, multi-page comments thread (the only remaining suitable place as IP Kat barely covers EPO these days). To quote the latest in this discussion:
Hmmm. Not sure I agree that the founding fathers “made arrangements” for arbitration. For example, they failed to provide a description of how arbitration should work, and who should be the arbiter.
At best, the PPI merely provides for the possibility of arbitration. However, there are many practical barriers to that possibility being exploited. For a start, there is the complete apathy upon the part of the representatives to the AC (who, it must be remembered, come from national offices whose income from renewal fees will increase if examination standards at the EPO are lowered). Then there is the total absence of any formal procedure for initiating a dispute.
So who do you see “getting the ball rolling” in this context?
Read Article 24 of the PPI.
I keep posting the text of the Article but the comment doesn’t seem to get through …
http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ma5.html
There is a very detailed description of how the arbitration is to take place.
The President of the ICJ has a role in selecting the committee.
It’s all there in black and white.
You just need to RTFM …
Do not overlook Article 23 (2) PPI:
If a Contracting State intends to submit a dispute to arbitration, it shall notify the Chairman of the Administrative Council, who shall forthwith inform each Contracting State of such notification.
That is how the ball starts rolling.
A notification is sent to the Chairman of the AC.
It’s that simply.
Thanks. You are quite correct, of course. Interesting that Art. 24(2) PPI states that “This panel shall be established as soon as possible after the Protocol enters into force and shall be revised each time this proves necessary”. This implies that the relevant panel should have been established almost 40 years ago. So which panel is it? And what rules of procedure for that panel have been established according to Art. 24(4)? Or are those yet further provisions of the EPC that the AC has neglected to follow?
I suspect that this could very well be the case.
To the best of my knowledge the details of the “panel” – if it has been established – have never been published.
Normally one would expect that kind of information to appear in the Official Journal. However there does not seem to be any explicit requirement for publication of the membership of the panel.
From that I conclude that either the provision has been ignored or else it’s a well-kept secret.
Can Battistelli simply bend the rules and make up new rules to justify his abuses retroactively? If some time in the past he simply broke the rules, as he did as far back as 2014 (if not further back), why does he get to keep his job and astronomical salary? EPO mouthpieces have certainly helped that and based on internal documents we saw, Battistelli still cites these same mouthpieces for ‘evidence’ and ‘support’ regarding patent quality. He is fooling the delegates at times when they growingly express concerns about patent quality. Battistelli is a chronic liar. Maybe he does this without even realising (the hallmark of sociopaths, learning to believe one’s own lies and reject critical voices). █
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08.11.16
Posted in Europe, Patents at 8:27 am by Dr. Roy Schestowitz
Declaring de facto Martial Law in defiance of the spirit of the Office, in order to seize additional powers
Photo credit: Edwin Espejo
Summary: The Benoît Battistelli-run EPO is not run like a professional institution anymore and it does not even obey the rules of the founding fathers of the EPO
Several years ago we took note of a steep decline in patent quality at the EPO, whereupon we started writing not only about software patents at the Office but also its general policy. Some signs of wear could first be seen towards the end of Brimelow’s term (see our articles from around 2008). A lot of patent examiners knew about it, but with hypothetical stuff like the Community Patent over the horizon at the time (just another name like EU Patent, EPLA or UPC) there was probably hope that there was some “greater good” somewhere along the way. Well, now we know better that compromising patent quality and inviting malicious actors like trolls (entities which are creating nothing, effectively predators that prey/run over others for quick gains through racketeering) would be an inevitable side effect of such a patent regime. Not only would that hurt European businesses; it would also harm patent examiners and their families, pensions, sense of pride etc. Like ISDS inside treaties such as TPP, the goal is not to promote some public interests but to advance corporate interests through their lobbyists, lawyers, etc. Don’t we already know how it typically works after defunct efforts like ACTA? Don’t we have a collective responsibility to put an end to that? For me, as a software developer and researcher (medical biophysics is my specialty), the EPO looks increasingly daunting especially because of the phasing in of software patents inside Europe. I wish to develop software and deploy software in peace, without having to fear threatening letters from patent trolls, not to mention threatening letters from the EPO. A lot of people feel the same way. They share the concerns that I do; that is why many software developers are in general strongly against software patenting, not just in Europe but everywhere in the world. For those who wonder about my motivations (sometimes because they try to malign and discredit me), there are no personal grudges against EPO managers (they are not my employers and I have nothing to fear from them personally), it’s just that the EPO is heading down a really bad path and everyone — including EPO insiders — are assured to suffer from this. My goal is to help redeem/save the EPO, not to destroy it. When a lot of people try to fix the EPO it’s likely that this fix will be an inevitability. One tyrant cannot defy the motivations of the majority of his staff. It’s as simple as that. These are highly-skilled workers that aren’t disposable and not easily replaceable (for recruitment of docile/loyal ‘drones’ such as scabs).
“These are highly-skilled workers that aren’t disposable and not easily replaceable (for recruitment of docile/loyal ‘drones’ such as scabs).”The more we learn about the EPO and the deeper we delve into its top-level operations (Team Battistelli and their corporate masters), the uglier things look. How did it get this bad? Maybe this has been brewing for a number of years, but mostly behind closed doors. Now that doors are opening a lot of ‘dirty laundry’ comes out and the stench is overwhelming. FIFA was nothing compared to this.
“Discuss the importance of EP protection for US industry here,” the EPO wrote yesterday. Yes, it seems like the EPO is prioritising US conglomerates now, even at the expense of European businesses. It’s easy to see that the EPO does not give a damn about SMEs, no matter what it said this week about them. It’s all hogwash. Under Battistelli, those who bring more income receive better treatment and that’s just morally and professionally wrong. It’s unprofessional.
Watch the EPO linking to a “Boards of appeal” page which says “Discussion of mock trial” as if they are talking about the Judge Battistelli attacks and defames. More “mock trials” were mentioned yesterday by a Bristows blogger. It’s basically promotion of EPLAW (guess who’s behind EPLAW).
In this other new article from her IP Kat ‘colleague’, Mark Schweizer, some are still floating the UPC, saying that a CJEU “case is interesting because the Preparatory Committee for the Unified Patent Court has suggested the adoption of ceilings on recoverable costs [...] whether and when the UPC will ever become a reality is anybody’s guess” (probably never).
Another rename/rebrand for the UPC is likely, especially if the UK remains a major barrier. Watch this new IAM “REPORT” (i.e. advert) titled “Impact of Brexit on US IP owners”. Surely they know that as long as Brexit stands, there is virtually no way for Lucy to ratify the UPC (even for a friend like Benoît Battistelli).
Expect the Battistelli-led EPO to continue its race to the bottom. It’s pushing for the bottom low of patent quality for the sake of so-called ‘production’ and earlier this week we mentioned the effect on the EPC with the relevant document added later [1, 2]. Quite a few comments came up about it, even some which cite Techrights. One person wrote in IP Kat:
A leaked copy of that presentation would be much appreciated. If the EPO is planning to change such a fundamental as the law / standard that it applies during examination, then this issue really needs to be debated in public.
Of course, given what has happened at WIPO (where the Member States are being denied access to a report: that they commissioned; which concludes that WIPO’s director knowingly flouted UN sanctions; and which has been passed to the direction in question despite containing sensitive details of whistle-blowers who testified against him), it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC.
“A leaked copy of that presentation would be much appreciated,” the above says and if anyone who reads this saw the presentation and has a copy of the slides, please consider transmitting these to us.
The following IP Kat comment is responding to someone who (as quoted above) said “it is an open question as to whether there is any measure that could be taken to force the EPO to follow the EPC.”
Check the Protocol on Privileges and Immunities:
Article 23 (1)
Any Contracting State may submit to an international arbitration tribunal any dispute concerning the Organisation or an employee of the European Patent Office or an expert performing functions for or on its behalf, in so far as the Organisation or the employees and experts have claimed a privilege or an immunity under this Protocol in circumstances where that immunity has not been waived.
“As I have said before,” added another person, “crap patents are fine, as long as everyone understands they’re crap.”
The principal danger is that, over time, more people will realise that EPO patents are of low quality and won’t be willing to: 1) pay for claims without challenging them in courts; 2) take an EP at face value and haul companies into court; 3) pay a high fee for application/renewal/appeal.
Here is the comment in full:
From the SUEPO document posted on Techrights, it seems that the EPO strategy is not sinister. The aim is merely to reduce the quality of examination, and thereby increase the throughput, or possibly the other way round. Nothing wrong with that. As I have said before, crap patents are fine, as long as everyone understands they’re crap. Whether applicants will still be interested in paying top dollar, and whether the EPO will find intelligent engineers willing to churn out crap day after day, is another question. OK, two questions. And questions which must presumably have been considered at length by the EPO’s indisputably enlightened management.
Another person wrote:
So it looks like the answer to the open question is “no”. There would have to be a “dispute” in the first instance (question: how could a such a dispute come about?), and then there would need to be an arbitration tribunal willing and able to take this on (question: would ILOAT have the competence, or even the inclination, to take on a dispute concerning compliance of EPO examination policy with the EPC? And if not the ILOAT, then who else?).
In relation to Brexit one person wrote this morning about the EPC/EPO/UPC that “[i]t’s like BREXIT. The procedure exists (on paper). Somebody just needs to start the ball rolling. It’s all in the PPI. The founding fathers foresaw that there could be disputes and accordingly they made arrangements for arbitration.”
That’s like people in the US justifying the abolishment of the Constitution or Amendments “because of terrorism” or something to that effect. The only emergency at the EPO right now may be fiscal/financial — a subject we shall cover another day. █
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Posted in Europe, Patents at 7:17 am by Dr. Roy Schestowitz
Unprofessional PR:
Summary: The EPO’s PR people are getting desperate for attention and resorting to borderline spam (as before, e.g. [1, 2])
THE EPO’s Twitter account, presumably run by the PR team, is rather comical at times. These people are warning the public about scams while Kongstad's people fall for it themselves and there are strong rumours of financial scam/fraud inside the EPO.
“When the EPO is getting this desperate, pathetic and even shameless it’s hard to deny that something is profoundly wrong.”What’s more comical however is the pathetic effort to appease Battistelli. “You can even nominate yourself!” they say. Nominate oneself for Battistelli’s very expensive lobbying event? What’s the use? It’s a low point for the EPO (even the USPTO does not have such a charade which elevates one patent over another and carries liability/risk).
With a deadline apparently approaching they have gotten pretty desperate for attention — to the point where they have begun ‘spamming’ lots of people and institutions (like the USPTO) with a request to submit nominations for the lobbying and PR campaign [1, 2, 3, 4, 5, 6]. When the EPO is getting this desperate, pathetic and even shameless it’s hard to deny that something is profoundly wrong. █
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08.09.16
Posted in Europe, Patents at 8:20 pm by Dr. Roy Schestowitz
Summary: New document questions the legitimacy of patent policy under Battistelli — a policy which strives to maximise grants and bypasses a lot of quality control so as to achieve high ‘production’ (measured using a self-serving yardstick which retroactively devalues all patents)
NO wonder Battistelli is so afraid of SUEPO. As a sort of watchdog representing half of all EPO staff, it has highlighted legitimate concerns shared by a lot of the staff, which believes Battistelli steers the EPO into a registration system (like early certainty) a lot worse than even the USPTO.
A lot of people have already seen the document below and someone decided to leak it to us. We have decided that, as IP Kat comments already speak about it, it’s worth presenting in full:
Getting there faster, a case of unclarity?
An Efficiency Presentation has been given in a number of administrative directorates in Berlin during the recent weeks. It was based on a power point presentation titled “Getting there faster” and was further complemented by individual remarks by administrative as well as examining staff.
It has come to the Berlin staff committee’s attention that some parts of this presentation appear to have been misunderstood by many technically qualified examiners in Berlin who felt that those parts of the presentations in their respective directorate lead to undue interferences, be it from interested circles outside or inside the Office, with the responsibilities directly vested by the Contracting States in Examining Divisions (Articles 15 and 18 EPC) to which these examiners are administratively assigned. The title as well as some remark was understood as a prompt to ignore some of the Examining Divisions’ responsibilities in order to more quickly grant patents on European patent applications. Apparently, the following messages were perceived:
(a) the requirements under Article 84 EPC, especially clarity, were often less essential for the quality of the granted patent
(b) the description and figures should be employed, together with the claims, to determine the subject-matter for which protection is sought with the procedure up to grant
(c) clarity of the claims was no ground for opposition, and lack of clarity as such should thus not be the basis to refuse a European patent application
(d) the procedure up to grant should be a co-operative and an interactive process involving essentially the entrusted examiner and the applicants’ representatives as partners, preferably via telephone conversations instead of oral proceedings
(e) a benefit of the doubt on the part of the entrusted examiner should lead to a proposal to grant
(f) the other members of the divisions should follow the entrusted examiners’ proposals to grant
(g) the proposal to grant should promptly be signed by the other members when their own merely administrative checks have been done, i.e. without their own assessments of the requirements e.g. for patentability.
Examining staff thus defied the Berlin staff committee to take position on these issues, and the Berlin staff committee is prepared to dispel any doubts:
The Berlin staff committee finds the title “Getting there faster” as unclear as the title of the Office’s “Early Certainty” presentation in the Patent Law Committee (CA/PL 7/16), because both the term “there” and the term “Certainty” are not unambiguously defined in the presentations. For pending examination procedures (Articles 94 and 97 EPC), the applicants as well as third parties have the right to get in due time a legitimate decision of the Examining Division, be it grant or refusal pursuant to Article 97(1) respectively Article 97(2) EPC (see e.g. point 1.2 of T1131/12, or point 7 of T1515/07). It would thus be illegitimate to understand these terms in the manner that “there” or “Certainty” merely meant grant, even if some parts of the presentations rather apply only to grant. Any bias in this direction does not come as a surprise to the Berlin staff committee, however, since more and more patents are granted directly without any objections, or directly after the applicants answer to any objections, and the percentage of refusals has thus become marginal in most of the technical domains, compared to direct grants.
A grant cannot legitimately be decided by a responsible Examining Division before the patent application and the invention meet all the requirements of the EPC (Article 97(1) EPC), and knowingly skipping any requirement thus amounts to not discharging the responsibilities vested in the Examining Division (e.g. the Catchword and points 2.5 to 2.8 of T0075/09, or point 3 of T1849/12). For a legitimate refusal, on the other hand, a failure of the applicant to comply with a single requirement is sufficient (e.g. Headnote of T0005/81) unless the EPC provides for a different legal consequence (Article 97(2) EPC), i.e. inter alia unless procedural violations are to be overcome (e.g. point 2 of T2411/10), e.g. meeting the principles of party disposition or of the right to be heard (Article 113 EPC, e.g. point 8 of T1969/07). In effect, examination procedures up to grant of a patent in the mean drastically differ from examination procedures up to refusal.
Clearly, not discharging the responsibilities of the Examining Division is often much more “efficient” and “timely” than trying to get from the applicant’s representative a grantable request which meets all the requirements, and this without any procedural violation. And not spending any time and effort for a point, or for the paid search and examination fees, would drastically reduce the beloved “unit costs” and the Office’s liabilities (e.g. point 7 of T1515/07). It was therefore very fortunate that Examining Divisions at least were legitimately able to successfully propose minor amendments to the text in a proposal for grant (in the “Druckexemplar”) in order to overcome minor objections and thereby discharge the responsibilities of the Examining Divisions in a somewhat more efficient manner (e.g. point 14 of T0121/06).
Whereas the staff representation thus certainly supports all legitimate measures to keep and improve the timeliness of the EPO’s services, this end cannot justify illegitimate decisions, i.e. illegitimate grants or refusals, since a lack of discharge of the Examining Divisions’ responsibilities cannot ensure the functioning of the Office in the sense of Article 10 EPC. The Berlin staff representation should thus take position with regard to the misunderstanding as follows:
(a) Article 84 EPC comprises an enumeration of requirements which should be met by the text of the claims proposed for a grant, since these claims define the subject matter for which protection is sought. The wording of Article 84 EPC (“shall”) does not involve any discretionary powers of the Examining Divisions to skip any identified objections (e.g. the Catchword and points 2.5 to 2.8 of T0075/09). Valid objections thus simply need to be overcome by amendments, as submitted or agreed by the applicants, in order to meet the principle of party disposition enshrined in Article 113(2) EPC (e.g. point 14 of T0121/06). A level of “sufficient quality” as promoted for a grant is thus not commensurate with the EPC, since merely ignoring identified objections, thereby not even informing the applicants about them at all, simply amounts to a violation of the principle of party disposition, and it is harmful for third parties, the public as well as the patent system as a whole when examining divisions fail to fully discharge their responsibilities.
(b) Article 84 and Article 97 EPC make no difference between major and minor clarity objections, and they do not define essential or inessential clarity objections which must or must not be communicated to the applicants and considered for the decision to grant or to refuse. The EPC rather is built on the assumption of due administration which does not encompass arbitrary decisions, or decisions tainted by partiality of the (members of) Examining Divisions, and deviations from due administration thus amount to a violation of the EPC.
(c) The claims shall define the subject-matter for which protection is sought, not the descriptions nor the figures. They additionally (“and”) shall support the clear claims. Article 69 EPC, together with the Protocol on its Interpretation, is not applicable to the assessment of the text of the claims proposed for a grant (e.g. point 3.3 T2613/11) and inappropriately assessing the clarity of the claims by invoking the description for the claims’ interpretation, instead impinges upon third parties’ rights to oppose illegitimately granted patents, since lack of clarity of the claims is no ground for opposition (Article 100 EPC, “only”) nor can it be employed for revocation in national proceedings (Article 138(1) EPC, “only”). Other grounds for opposition or revocation are indeed not always suitable to make good for any negligence on the part of the Examining Division in glossing over an instance of lack of clarity, and the public is thus merely left with ill-defined claims under these circumstances. If an applicant does not submit or at least agree to amendments overcoming the identified lack of clarity, the responsible Examining Division cannot legitimately grant a patent.
(d) The procedure up to grant is essentially defined in Part IV of the EPC as complemented by the common provisions governing procedure (Part VII EPC). As regards examination by the Examining Divisions, the procedure before the examining division shows all essential elements of a quasi-judicial administrative procedure leading to collective decision making within the Examining Divisions. It is furthermore based on the legal principles of party disposition, of parties’ right to be heard, and of reasoned administrative decisions. The Examining Divisions have been vested by the Contracting States with discretionary powers pursuant to Articles 94(3) and 116(1) EPC in certain cases or situations only, namely to object in writing “as often as necessary” and hold oral proceedings when “expedient”. These discretionary powers should be duly applied by the responsible Examining Divisions when deciding on the course of the procedure. Informal contacts between certain representatives and individual officers, whether members of the responsible Examining Division or not, are not foreseen at all in the EPC, can easily raise issues of suspicion of partiality or lack of independence in the sense of Article 14 ServReg, and suspicion of breach of the principle of collective decision making (e.g. point 2 of T1251/08). The suggested co-operative and interactive processes merely involving the entrusted examiner instead of the responsible Examining Division thus merely enhance the risk of illegitimate grants but hinder and postpone legitimate refusal decisions (e.g. point 3 of T1101/05, or points 3 and 4). It is observed in passing that the Office’s administration has tried more than once to convince the Contracting States of examination procedures involving merely one examiner (most recently in connection with automatic communications and reimbursement of examination fees, see inter alias points 84 and 85 of the minutes of the 42nd meeting of the PLC, CA/PL 13/12). The attempts were refused by the representatives of the Contracting States.
(e) In the proceedings before them, the Examining Divisions shall examine the facts of their own motion, cf. Article 114(1) EPC, and the members shall thereby come collectively to the Examining Divisions’ decision pursuant to Article 97 EPC. Pursuant to Article 97(1) EPC, the Examining Division thus shall be “of the opinion” that all requirements are met before a legitimate grant can collectively be decided. The Examining Divisions’ collective opinion is thus crucial in accordance with the principle of free evaluation of evidence and the measure of proof according to the balance of probabilities. The Contracting States did not vest in the Examining Divisions any discretionary power to disregard any deficiency or to apply a benefit of the doubt (e.g. point 3 of T0622/02, page 11 of T0869/06 or T0075/09, T1849/12), while the legal concepts of the distribution of the burden of proof and the benefit of the doubt rather apply in inter partes procedures.
(f) The other members of the responsible Examining Divisions thus have a duty to contribute to the collective decision making within the Examining Divisions, if necessary by taking votes, and they cannot legitimately follow the entrusted examiners’ proposals to grant when they have identified any requirement that has not been met, and thus come to a different opinion. Rather, it is their duty to determine the Examining Divisions’ collective opinions and correspondingly follow the legitimate procedure.
(g) The Examining Divisions’ appointed members shall collectively decide for the Examining Divisions (Article 97 EPC), and the authentications of all appointed members thus confirm the approval of the collective decisions (Rule 113 EPC). Merely signing without approving the collective decision thus amounts to a procedural violation since the collective decision has not been taken at all if the other members have not duly made an assessment of their own (e.g. points 1 and 2 of T1538/05 or point 1 of T2076/11). Each member is thus individually responsible that her/his own authentication legitimately approves the Examining Divisions’ collective views. Any Guidelines, PPNs, Internal Instructions and other individual instructions can only be understood in accordance with the Contracting States contractual will as enshrined in the EPC. The Berlin staff committee is thus convinced that legitimate timeliness requires fewer administrative interferences with the responsible Examining Divisions, balanced and unbiased examination procedures which are appropriate for both final results, i.e. refusal as well as grant, fewer informal procedural steps which furthermore should be left at the discretion of the responsible examining divisions, and more collective decision making skills which are essential for the legitimate functioning of the EPO.
The Local Staff Committee Berlin, 23 July 2016
Techrights has some more EPO material in store and will resume more frequent updates later this summer or in autumn. █
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Posted in Apple, Google, Oracle, Patents at 11:31 am by Dr. Roy Schestowitz
Summary: Patents, especially software patents, continue to pose a threat to progress where innovation is a lot faster than in most scientific domains
SEVERAL years ago I developed software designed to help cars navigate. It was a research project funded by the EU. I did not pursue patents, nor did I look up any. In the USPTO — unlike in the EPO — ‘pure’ software patents exist (for now at least) and there are software patents on driving, not just on miniature computing systems that distract from the task of actually driving (the buzzword these days is “infotainment”).
“In our daily links we’ve recently included many news items about the dangers associated with autonomous cars (bugs, back doors, lack of human judgment and no communication — verbal or body gestures — with other drivers).”According to this news, “Google Self-Driving Car Director Chris Urmson Hits Exit Ramp To Pursue Other Projects,” which says a lot about market prospects. In our daily links we’ve recently included many news items about the dangers associated with autonomous cars (bugs, back doors, lack of human judgment and no communication — verbal or body gestures — with other drivers). If Google is having issues with this endeavor (as does Tesla reportedly), who would pursue moving from theory (or even from patents) to reality/practice? My project’s supervisor at the time worked part time for Google (primarily a university professor) and he too wasn’t optimistic about the work. It’s just a very hard task, not just because of lack of patents or anything like this. For similar reasons, voting should not be done by machines (there is extensive literature about the drawbacks) and patent examination cannot be done by machines (no matter what Battistelli and his clueless circle believe or hear from the opportunistic private sector looking for outsourcing).
According to a pro-software patents author, patents on “infotainment” are being pursued not so much by Google and Apple but by automakers. To quote one bit:
According to market research reports, the market for in-car infotainment systems is expected to rise from $14.4 billion in 2016 up to $35.2 billion in 2020.
Putting aside the fact that drivers should focus on driving rather than phonecalls and Internet browsing, it’s not entirely accurate to say that Google stays out of it because Google is pursing a lot of patents on things inside the car, including the driver (which Google hopes to replace with a machine). Cars that are entirely autonomous may be a distant dream, but partial mechanisation — like vocal/visual assistance while parking — is already here and there is nothing innovative about it (it’s actually extremely simple to implement).
“Cars that are entirely autonomous may be a distant dream, but partial mechanisation — like vocal/visual assistance while parking — is already here and there is nothing innovative about it (it’s actually extremely simple to implement).”Speaking of Google, in this new article Florian Müller says that “Google’s integration of Android into Chrome makes a third Android-Java copyright trial 100% inevitable,” even though APIs are not copyrightable (there was a ruling on that a few months back, but there were also patents thrown into the mix). He told me “[i]t’s not about ARC but about the full integration of the Android Marshmallow APIs into Chrome.” Well, as long as there is no copyright on APIs (as the latest judgment acknowledged), Oracle would just be wasting its money and become even less popular.
Regarding Apple-Android/Google (or Samsung being one OEM of several) disputes, Müller didn’t imagine that “Apple would entirely fail to garner support from companies” in its patent wars using design patents, but he later corrected his article and said: “An earlier version of this post was based on the (false) assumption that last week’s widely-reported amicus brief by 111 designers and design educators was the only amicus brief supporting Apple. This misperception was due to the delay with which both the court’s own website and the SCOTUSblog get updated. Actually, a total of 10 briefs were filed in support of Apple. Furthermore, the first version of this post noted an “artsy font” used on the title page of the designers’ brief. However, that font was only used in the version published on Apple’s website.” (links in the article)
These petty patent wars between Apple and Android OEMs are clearly far from over. Apple is losing market share to Android pretty rapidly, so it hopes to simply tax Android rather than beat it (artificially raising the price of Android, henceforth becoming a little more competitive). Well, such is the legacy of dumb patents on every stupid thing. Battistelli has proven to be totally clueless about Apple's patents at the EPO (these were found invalid in the courts after they had been granted by the Office). █
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Posted in Europe, Finance, Patents at 10:47 am by Dr. Roy Schestowitz
Benoît Battistelli is wasting money and is driving the EPO into a wall
And with the UK’s diminishing hopes of UPC, what would he have left to show for it?
Summary: Based on the latest financial statements of the EPO, Benoît Battistelli would have to declare bankruptcy if he wasn’t so unaccountable and dismissive of accounting
THE EPO does not appear to be doing too well under Battistelli’s management, even from a fiscal point of view. He made his contract a closely-guarded secret with some saying that he doubled (or more) his salary (a massive salary in the context of any public office in the EU), he is wasting millions of Euros on his ludicrous lobbying events, he hired PR agencies even from the US (over a million dollars on that alone for just one year), and he pretends all is well and the money flows in like water while many senior examiners take early retirement to escape him.
“Benoît Battistelli will surely be remembered as one who crashed the EPO as we once knew it, emitting lots of worthless patents in haste like Robert Mugabe printing lots of worthless banknotes…”Extensive surveillance (Control Risks) and militarised forces including unnecessary bodyguards that cost a fortune are among other ‘luxuries’ of Battistelli, even if some of these defy European laws. Then there are the massive contracts without tenders (even tens of millions of Euros for each contract), the terrible IT spendings that make it into a black hole, and other budgetary issues that we have covered here over the years.
Suffice to say, those who will pay the price are past and present (and maybe future) employees; none of that stuff, as listed above, is free/gratis after all. Battistelli runs the EPO like Bush ran the US (into debt, into totally avoidable war, and into the ground on grounds of credibility). Here is a comment that showed up today, claiming (with evidence) that “the EPO shows an operating loss (of EUR 145 million), largely due to an increase of over EUR 260 million in “Employee benefit expenses”.” Here is the full comment:
What do you mean by a surplus? I am no accountant, but it appears to me that the latest financial statement (for 2015) produced by the EPO shows an operating loss (of EUR 145 million), largely due to an increase of over EUR 260 million in “Employee benefit expenses”.
http://documents.epo.org/projects/babylon/eponet.nsf/0/6C4CC693A4FAA752C1257FE2004A2CE8/$File/financial_statements_2015_en.pdf
I know that the figures presented need to be taken with a pinch of salt, especially due to the lack of oversight in the preparation of the figures. However, even the “sanitised” figures show what appears to be a huge hole in the pension fund. That is, there are liabilities of EUR15,828 million relating to “defined benefits”, which completely dwarfs the EPO’s current equity of less than EUR8,000 million. It also dwarfs the current assets of the pension, which were reported as just under EUR6,600 million.
I would be keen to know what “Remeasurement defined benefit obligations” means, though. This is because the EPO appears to have found over EUR4,750 million down the back of the sofa in 2015 thanks to that little accounting trick.
This does raise an interesting question, though. Has BB been brought in to deal with the black hole in the pension fund? Can the major effects of his policies be understood as being aimed at maximising current operating profit and minimising pension liability? If so, it would appear that EPOnia is a microcosm of society at large, with current workers (and users of the system) effectively paying the price for the over-generous benefits awarded to the generation that preceded them.
A lot of these expenses are associated with early departures — something which, as we pointed out yesterday, happened a lot in the past two years because of Battistelli and his ‘reforms’.
Benoît Battistelli will surely be remembered as one who crashed the EPO as we once knew it, emitting lots of worthless patents in haste like Robert Mugabe printing lots of worthless banknotes (“231 million percent peak hyperinflation in 2008,” according to Wikipedia). █
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Posted in Europe, Patents at 12:44 am by Dr. Roy Schestowitz
Under Battistelli, the European Patent Office (EPO) simply neglects examination and turns examiners into machine operators
Context: “The Luddite movement emerged during the harsh economic climate of the Napoleonic Wars”
Summary: Benoît Battistelli is breaking to pieces the world’s leading patent system, which took decades to build and refine, in order to increase what he foolishly labels ‘production’ (a race to the bottom)
THE EPO, based on insider knowledge, is not just repeating the mistakes of the USPTO but becoming even worse than the USPTO. Patent quality, say workers, is declining to the point where things will become irreversibly grim. “Apparently,” one person wrote yesterday, “the EPO is quickly turning into a registration system,” which means that Battistelli has killed the EPO as an examination office. Do people high up in Europe even care? Do they realise how much damage this would cause? The PR drones are keeping Battistelli in house and calling, now on a daily basis (sometimes several times per day), for European Inventor Award 2017 nominations. It is a wasteful lobbying event which promises to do nothing but empty the EPO’s coffers for publicity points (scored by Battistelli himself, at the expense of the EPO). They are also propping up a dead forum and advertising an event organised in “close co-operation with” a think tank/lobbying group (warning: mouse-clicks can be spied on by EPO) that is in favour of software patents and is connected to the world’s largest trolls (like Intellectual Ventures). It’s the same IPO (not to be confused with UK-IPO) which was against patents in ACTA and is against Alice. “This high-level event is organised in close co-operation with the Intellectual Property Owners Association (IPO),” the EPO says. What does that tell us about the EPO’s neighbourhood now? Patent trolls, proponents of software patents, and US businesses that favour software patents? The EPO does not care about patent quality and scope anymore. All it cares about is so-called ‘production’, even if that means fudging the figures and throwing away quality control (including the appeal boards, which are being thrown overboard).
Sooner of later all this ‘cheapening’ of patents will result in garbage quality and people may start asking questions like, “was your EP a pre-Battistelli or post-Battistelli one?” (in other words, is it of high quality of just rubberstamped for quick and temporary gains?). As one person put it yesterday:
The private suepo web site can only be accessed from within the office, so I had no access during my holiday. Back to work, I checked the post from Berlin and can indeed confirm what “BoardMember” has cited.
Apparently, the EPO is quickly turning into a registration system…
Well, Battistelli has killed the old EPO and created a new kind of monster. Would people be willing to pay the high fees anymore? If so, for how much longer? Here are some more details from SUEPO Berlin, which resemble the vision of people replaced by primitive machines for vastly inferior prior art search and for corporate profits through outsourcing:
Back to work, I checked what people think about the future of the united patent. Apparently, management is still confident that they can push the UK to join before the end of the year.
How do they think they can achieve that, I do not know. But we have had so many surprises in the past year, that I would not take a bet either way.
Something else: there is a rumor that the EPO will change their examination ways. It is true. It is on the Berlin suepo website and there is a powerpoint around, which will be presented to the examiners. Basically, the examiners are supposed to run an automatic search, not object clarity, send one single communication to the applicant if there are doubts about novelty or inventive step, simply accept the response and grant. All this within a year. The other members are instructed not to check any more and they will get warnings if the granted file lingers too long. Management wants the complete backlog gone in 4 years.
There will also be an assessment center for recruiting new examiners (not sure about that, decision is not out yet). Apparently, some directors are refusing to recruit many candidates for lack of competence and recruitment cannot meet their targets. Therefore the responsibility of recruiting will be taken from the directors and put into the hands of the new assessment center.
It is a completely different Patent Office that is being created under our eyes. What I don’t understand is where the money will go: at present, the EPO is producing a plus of several hundred millions Euros a year (and that with the costs of a new building in the Hague). If we are suddenly producing many more patents a year, the surplus will shoot to the roof. That, and we are paying the new examiners a lot less and nudging the more expensive older ones to early retirement and retirement benefits will be cut massively. In 4 years, when we have no stock left, how much will the surplus be? A billion a year or more? Maybe that is how Battistelli plans to convince the UK to stay?
It sure looks as though patent examiners now share the same concerns we have (for a number of years now). Patent lawyers get their way by lowering the bar and as noted yesterday, a post by a Bristows employee (i.e. part of Team UPC which lobbies the British government along with Battistelli) said that “The Intellectual Property Office [the other IPO] responds to Brexit, highlighting that EU-derived protection is still in place while the UK remains a Member of the EU, and that the UK is looking into various post-Brexit options.”
This is about attempts to ratify the UPC in spite of Brexit and in spite of UPC being squarely against the interests of British citizens, not just British engineers.
There is a lot of nefarious stuff going on these days and the EU is piggybacked to advance the interests of few shadowy groups, essentially by legislative laundering. SUEPO, as of yesterday, expresses concern about revolving doors and systemic corruption in the EU. “The USF issued a Communiqué on 20 July 2016 in which they reproduce an open letter (EN, FR) sent to Mr Jean-Claude Juncker, President of the European Commission about the Barroso case,” SUEPO wrote. Here is the original in full:
An open letter to: Mr Jean-Claude Juncker, President of the European Commission
Re: The Barroso case
Mr Juncker, is the « last chance » you gave to this Commission being used up?
The recruitment of Mr Barroso by the sadly notorious Goldman Sachs investment bank sent a shock wave through European public opinion.
As several Press media have pointed out, this shameful move is further widening the gap between two worlds, of the elites on the one hand and the citizens on the other and is likely to strengthen and consolidate the persistent –and most recently highlighted by Brexit– blame thrown on the EU institutions: that of acting in collusion with global finance to the detriment of the European citizens’ interests.
According to Article 245 of the TFEU, the Members of the Commission give a solemn undertaking that, “both during and after their term of office, they will respect (…) the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits”. The case of Mr Barroso is so blatant that no internal document, such as a ‘Code of Conduct’, besides introduced by Mr Barroso himself, can be relied upon to defeat a clear and unconditional Treaty provision.
Union Syndicale Fédérale1 requests President Juncker that his Commission –“the last-chance Commission”, to put it in his own words– proceed without delay to the preliminary acts in view to applying to the Court of Justice.
It will then be for the European Court to judge whether Mr Barroso, by accepting a position of responsibility with Goldman Sachs, has broken or not his “duty of discretion” required by the Treaty and to determine possible consequences (including loss of the right to a pension).
Bernd LOESCHER, president USF
Over the years we wrote quite a few articles about Goldman Sachs. If entities like these get access to EU corridors through the likes of Barroso, why wouldn’t US businesses be able to gain access to institutions like the EPO, where discriminatory practices are already rampant under Battistelli (after Microsoft pressured the EPO)?
The EPO is under attack. It’s under attack from Battistelli and his masters, who are evidently not European taxpayers or European SMEs. █
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08.08.16
Posted in Europe, Patents, Rumour at 5:13 am by Dr. Roy Schestowitz
Summary: Willy/Guillaume Minnoye (VP1) was at one point rumoured to be on his way out, so maybe that is still the case
THE EPO is probably Europe’s most notorious institution these days (worse than FIFA). This isn’t the fault of patent examiners but of top-level management which decided to treat examiners like an enemy and impose unreasonable demands.
“For a person his age, it would not count as early retirement but as late retirement (he was never supposed to have this post in the first place).”Working for Battistelli is difficult enough as an examiner, but even for those working for him at top-level management it has become hard and stressful. Recently, as we wrote earlier this summer, Ciaran McGinley resigned (set to retire early). As Principal Director of Patent Administration, his departure is a very big deal, but he’s not alone. Many people are leaving the Office and there are ways for retrieving some statistics; there are staff changes published every month and anyone in the office can read them. Based on these, one can easily see the increase in retirements over the last couple of years (we don’t know if anybody has already done that) and some people told us that it is indeed the case. Several sources told us the same thing and some people wrote anonymous comments about it online.
Earlier this year we learned that Principal Directors were starting to scrabble around with an eye on the VP1 post (that would be Minnoye’s post, around the time he embarrassed himself on Dutch TV). It was premature at the time to circulate rumours that Minnoye might be leaving and in fact he did not leave*. Given his age (past retirement age), maybe it’s just a matter of time. For a person his age, it would not count as early retirement but as late retirement (he was never supposed to have this post in the first place). █
_________
* “Mrs Elodie Bergot has apparentlly [sic] resigned,” one person claimed at the time, but it turned out to be false. We never published this rumour; we refuted it.
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