12.24.15
Posted in Europe, Patents at 8:14 am by Dr. Roy Schestowitz
Framing the relentless attack on an effective publisher as a matter of “women’s rights”
Summary: The first part of a series which looks at classic union-busting (or publication-silencing) strategies; how the EPO’s management exploits perceived (or sexed up) scandals to crush dissent or staff representatives (without it ever looking so)
CHRISTMAS is a lovely time of year that my wife and I enjoy every year, but it is also a hostage scenario (with ransom) for EPO managers. What kind of a sick organisation would take advantage of illnesses, holidays and even cancer as a pretext for some higher agenda? Well, the EPO is rather unique. It’s amazing that it has gotten away with it for this long.
“Our sources aren’t one single person but several anonymous sources who shared material with us and showed us the way they had been mistreated.”In the coming weeks we have two large series left to publish. One deals with private profits alongside the ‘public’ EPO, where the culprits are some of the highest level managers (or former managers). The second deals with the way in which, “with bad intent” as one of our sources put it, the EPO exploits tragedy (e.g. death in the family) to achieve certain objectives. It’s a brutal, merciless kind of behaviour — one that we have come to expect from the most ruthless regimes in Indochina. Our sources aren’t one single person but several anonymous sources who shared material with us and showed us the way they had been mistreated. There is a large degree of overlap in some of these stories, so there is occasionally room for fusion.
We never quite eliminated the ‘backlog’ of EPO articles. It keeps growing as fast as we publish, which has been very often in recent months. Some stories are institutional in nature and some are more personal. Some are high priority (meriting immediate publication), whereas some can wait for a while. Some are harder to write (requiring a lot of additional research) and some are rather trivial. The flow of information we receive may never finish or come to an end any time soon, especially considering the expansion in the number of sources we now have. Trying to organise/foresee the order of publication so as to fit a useful structural narrative has proven quite challenging. We do the best we can given the circumstances and the growing pressure.
“We will soon get around to writing about cancer among other topics that cause controversy within the Office.”At this moment of time the staff unions at the EPO are under severe attacks. Some of them don’t even realise it until it’s too late. SUEPO is at the front of the line because SUEPO is by far the biggest. Anything that helps amplify the message regarding union-busting at the EPO will, in our assessment, help protect the unions (including their representatives), so we encourage people to send us any material they have which may be related to this. It’s not about SUEPO, which we deem somewhat of a scapegoat at the moment (the management is making an example out of it to induce self-censorship and fear). Its strong responses to EPO management are largely reactionary, but EPO-funded media tries to frame SUEPO as combative, hence worthy of the way it has been treated (misinterpretation of the cycle of institutional violence). SUEPO isn’t evil like the EPO’s management wants the public/media (and maybe even gullible examiners) to believe. It’s on the receiving end of a massive PR campaign, as well as prosecutorial abuse (or misconduct). It’s both terrifying and worrisome; one might be discouraged from being/getting involved, mainly for fear of reprisal or personal retribution (even totally innocent people are not safe or immune to accusations). Nobody wants to become a target of the prosecutorial abuse apparatus. What the goons of Battistelli hope for right now is silence and apathy among staff (they’re not getting it right now), which then makes it simpler to dismiss ‘unwanted’ staff. The EPO’s staff currently makes this unworthy of the backlash (at the moment at least); it’s simply a hornet’s nest. But what happens if:
- An accused staff representative is demonised to the point of losing public support (see for instance Julian Assange) or
- Gets dismissed on the grounds of some totally separate and orthogonal ground (like hypocritical “harassment”, as in the case of Elizabeth Hardon), obscuring the real motivation for dismissal?
Wikileaks is already too ‘scary’ to offer help to; SUEPO is getting there too. That’s not because Wikileaks or SUEPO are thoroughly discredited; it’s because anyone who’s involved is massively attacked. Visibly attacked.
The EPO’s management seems to be doing something rather clever these days. Some details will be given in future parts of this series because there is a lot of information to be shared (too much to be digested in just one day). We will soon get around to writing about cancer among other topics that cause controversy within the Office.
“First of all I want to commend you for the courage to keep this blog,” wrote a patent examiner to us. “Few people are brave enough to oppose authority and regardless of the outcome one should take a stand whenever private or collective rights are abused by the ones in power. Battistelli has hijacked the office and turned the management into a mafia organization where the “capo” is surrounded by sycophants. The atmosphere is unbearable and the main topic of discussion everywhere is the abuse of the system by the president.”
“I would like to send you a letter signed by French director Yann Chabod,” we were told, “a member of the Battistelli inner circle, as a response to a demand by a lady suffering from breast cancer. The inhumanity of the response is unbelievable.”
We are waiting and hoping to be able to publish this letter soon, so anyone with access to it, please consider sending it to us (my PGP key is shown in every page on the right hand side). Part II of this series will most likely be published after Boxing Day. █
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Posted in Europe, Patents at 7:46 am by Dr. Roy Schestowitz
What leaders promise before signing is rarely what actually happens afterwards
NAFTA signing; original photograph is in the public domain in the United States
Summary: Amid EPO crisis and an effort to tilt the system in favour of large (and usually foreign) corporations some believe that “the future legal situation concerning patents in Europe is becoming extremely uncertain”
Concerns about UPC lobbying by the EPO don’t contribute much to the reputation of UPC(ourt), or to the Unitary Patent in general. Given the cheating and the lying from EPO management, can anyone actually believe a word that it says about the UPC? As we have been saying all along, benefiting from the UPC are mostly lawyers and large companies which big law firms represent (sometimes European firms representing non-EU companies).
As this one comment put it:
Why should BB and the AC trash DG3 like this? Do not underestimate the political influence (in Davos and Brussels) of the giant international Anglo-American patent litigation law firms, by lobbying to bamboozle Euro pols into supposing that the UPC will be an improvement, and by inducing BB to join their cause.
Fact is, that disputing patent validity at the EPO (for 38 jurisdictions) is cheaper by a factor of from one to a hundred thousand than litigating validity in the USA. For more than 35 years, these law firms have been spitting in frustration, that the work is done not by them but by European patent attorney firms. They want their full wad and, with the advent of the UPC, they’re gonna get it, OK?
Also regarding the UPC, one person writes:
Surely for the UPC to be a success the EPO needs to be granting strong patents. With the possibility of a UPC patent being revoked in all territories agents will need to consider whether to file for a single for a single UPC patent or several national patents. If the quality of a a UPC patent is poor national paten ts may be more appealing. Or is invalidating a UPC patent so expensive the quality doesn’t matter?
The UPC, for reasons which we outlined before, is beneficial to big businesses, and not even European ones. It marginalises those that are smaller and cannot sustain injuctions, large court cases (fees), high damages/royalty claims, etc. The bigger the system, the more beneficial it becomes to large players.
This one comment from what seems like a patent lawyer says:
As usual, the Americans do it better. When they say their patent system enables Little David to triumph over the Giant Goliath, they are correct. It does, every so often. I know. My small client won an injunction and 40+ Million USD damages from a Big Corp infringer of his US patent. His lawyer worked on a contingency fees basis, of course, betting on getting a cut of the 40 mill.
But when the Commission in Brussels sets up a pan-European patent litigation system, there is no way an SME can get anywhere with it. When was the last time an SME in Europe pulled 40 mill in damages?
The Commission’s answer? We know. But we need to set up a system by which an SME can insure against the costs of patent litigation. That will fix the problem.
If you don’t laugh, you would cry, at the level of ignorance and wilful blindness. At the moment, some national jurisdictions (NL, DE, GB) have systems that allow the Little Guy to prevail. That is not going to survive the advent of the UPC though, is it? Big Corp and ist lackeys are delighted. For them, it’s Mission Accomplished. Special thanks to BB and the AC.
George Brock-Nannestad, who recently wrote a long post bemoaning the money motive at the EPO (we've posted here the translation of his post) said the following in a comment which comes in two parts [1, 2]:
It is my impression that the present and in particular the future legal situation concerning patents in Europe is becoming extremely uncertain. In a world where we thought that responsible persons would cooperate to maintain a legal framework that is predictable, we see massive attacks on integrity and a future situation akin to those states that merely registered and did not examine patents and left all patent construction to the courts. All the good words and the work to preserve the balance between those who invented and those who could afford to litigate is now being put in question and deliberately destroyed.
A legal attorney, registered to practice as such in one of the member states of the EPC, is permitted to represent before the EPO without any proof of competence. Those attorneys who do precisely that will nevertheless have studied the EPC, the Guidelines, and the “Case Law of the Boards of Appeal of the European Patent Office” anyway. However it now turns out that these texts are not to be valid anymore. In the future it will be absolutely useless knowledge, because attorneys will begin to represent holders of doubtful patents against possible infringers, and they will need to transfer to litigation and the rules being developed there in order to assist clients. A European Patent Attorney does not have the same possibilities.
The massive reduction in the intellectual effort permitted by production goals in the EPO for examining applications will be felt in the Boards of Appeal as an extra workload in cases of opposition, which will become more frequent as individual companies and patent defiance associations will need to file them to match the onslaught of accepted but inherently defective European applications in their Unified Patent form. The present proposed change of status of the Boards of Appeal is in flagrant contravention of the EPC. But with the proposed changes it will administratively be made very difficult for the BoAs to reject an appeal, because that would be the end of the story. And it is definitely desired for the story to continue, and only an acceptance can ensure the survival of a patent that is useful for the UPC system. Alternatively, the time for opposition will be reduced to 3 months and the fee will be set at such a high and rising level that it may become cheaper just to give up the possibly infringing product line. Observations during examinations will be abolished because they endanger the patentability.
This is not the way to increase competition between the SMEs and big transnational corporations!
This type of development was already visible (or at least envisageable) in Peter Drahos’ book “The Global Governance of Knowledge. Patent Offices and their Clients”, Cambridge University Press 2010. Highly recommended reading for anybody who can afford to take the longer view. In all the discussions on IPKat on the EPO situation I have not seen one post or comment that has taken its inspiration from this perceptive book.
Actually one may see an outline also from a 2008 response to Joff Wild (an apparently unabashed promotor of all undertakings from the EPO administration), by SUEPO (document No. su08163cl), which was recently made instantly available by the Techrights blog. But as the Boards of Appeal have until now been independent, it was not in 2008 possible to envisage that they and their legal framework would be so completely degraded.
The system is beyond help — there is nobody to change the course. It is truly a situation where the foxes are in charge — or should we say we have an Orwellian ‘Animal Farm’? All the suggested admininstrative changes are doable because there is nobody to complain to.
The only way to combat the system would be for a united front to avoid using the UPC at all so that it dies of lack of funding. As we cannot expect conflicts to disappear, this would sadly lead to the general application of arbitration, which is characterised by not creating any jurisprudence others may learn from. However, in a rotten system, what good is jurisprudence anyway? And how do we re-create a good European examination system from the shards left over?
All the best from an observer of massive decline,
George Brock-Nannestad
As one response to the above comments put it:
Some of the more significant member states have told BB to behave. It is only natural that he decided to infuriate those member states even more.
Apparently he is confident, or gambling, that the three-quarters majority that is necessary to remove him will not be reached.
The EPC is on the verge of turning into a failed project.
The German media, according to this comment, finally has some coverage of it. “Here is a well documented article by Juve,” says the comment, “on the loss by the President of the AC´s support for the reforming of the boards of appeal” (pushing the envelope). To quote the summary (in German): “Die Reform, die zu mehr Unabhängigkeit der Beschwerdekammern des Europäischen Patentamtes (EPA) führen soll, verzögert sich weiter. Nach mehreren übereinstimmenden Berichten aus dem Umfeld der Münchner Patentbehörde verfolgt der Verwaltungsrat seit vergangener Woche offensichtlich einen neuen Reformvorschlag. Danach hätte das Aufsichtsgremium des Amtes seine Zustimmung zum ursprünglichen Reformpaket von Benoît Battistelli versagt. Bislang galt der Verwaltungsrat als die Machtbasis des umstrittenen EPA-Präsidenten.”
It would be useful to have a translation of the article into English. █
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Posted in Deception, Europe, Patents at 7:34 am by Dr. Roy Schestowitz
History rewritten by Sugar Daddies
Summary: The media and reputation laundering campaign seems to be working, as the trampling on the European Patent Convention (regional treaty) continues unabated
THE leadership of the EPO has long been defended by IAM ‘magazine’ [1, 2, 3, 4, 5] and we are delighted to find some comments online which increasingly highlight this fact (IAM is now paid by FTI Consulting, for example, which is funded by the EPO to the tune of nearly $1,000,000). If Techrights more or less represents the views of Europeans (including software developers and scientists who work as patent examiners), sites like MIP or IAM probably more or less represent the views of the EPO management and patent lawyers (the patent microcosm).
IAM organised an event for patent trolls (as covered here before) and next up there is a pro-UPC event. IAM’s articles as of late are quite revealing. See the earlier part of this week’s article which refers to trolls as NPE’s and says “NPE’s embrace Europe – During 2015, a number of NPEs enjoyed positive results in the European courts, while many more decided to give the continent a try.” We wrote about this before and it is nothing to be celebrated. More interesting, however, was the later section of this article. There’s some text about patent thickets (SEP) and then comes the odd part about the EPO, which (as one ought to expect) is an echo of the EPO’s position. To quote Wild: “Daggers drawn at the EPO – As has been the case for at least the last decade or so, senior management and staff union SUEPO were at loggerheads during 2015 over changes to examiner working conditions and pay structures.”
These aren’t the main or principal concerns. It’s not about pay. The EPO’s management likes to paint this as a dispute over money, but the issues are far greater than this.
Going back to Wild, he wrote: “During this year, though, things took a decidedly nasty turn with accusation and counter-accusation about human rights abuses, suicides and intimidation. Unfortunately, there is no sign of the discord coming to an end, even though up to now SUEPO has proved singularly incapable of preventing or even modifying management plans.”
This is patently untrue, unless one takes Battistelli’s words as fact. We have already shown how texts got modified at the 90th minute due to unpopularity.
Wild says: “Most important to users of the office, though, are the quality of its output and the independence of the boards of appeal; and while there are no indications that the EPO’s standards are slipping, there seems to be a fair amount of concern about reforms being proposed to the boards.”
There is a lot of misdirection here. Quality of patents is being compromised, the independence of the boards has only come under more attacks (threatening to send it elsewhere isn’t about independence, as noted by various respected parties), there is definitely indication of standards slipping (we gave some examples) and what’s being euphemistically called “reforms” (to the boards) is as much about reform as union-busting is an ‘investigation’.
Don’t take our word (alone) for it. The staff of the EPO, commenting anonymously due to fear, is rather upset seeing what’s being done to the boards and other persecuted sections. As one comment put it yesterday, “I see we have the repeated ‘quality is ever better’. My sources tell me that EPO staff can see that their balanced scorecard shows all quality numbers for DG1 are worse in 2015 than in 2014 and those are BB’s [Battistelli's] own figures. Perhaps someone can confirm? Certainly the motto that if staff reach my targets I can’t be doing anything wrong is a bit sickening. And the ‘it’s only a minority’ must surely be wearing thin…”
Wild says: “At times during 2015 it felt as if EPO president Benoît Battistelli was losing control of the narrative.”
The use of the word narrative is odd, as if Battistelli is in a theatre play and needs to convince spectators that some illusion is in fact real. Like the majority of staff being on his side, which is total nonsense.
Wild says that Battistelli “will need to get it back during 2016 in order to provide the necessary confidence that the EPO is fully prepared for the central role it will play as Europe prepares for the biggest shake-up of its patent system for decades.”
This is some more UPC promotion from Wild. It’s that talking point which justifies radical policies (like a takeover or a coup) by saying there is some kind of “greater good”.
“What is clear,” Wild says, “is that an organisation that was created by and for experts in a time when no-one outside of that world cared about patents needs to fully embrace transparency.”
No, not only transparency is an issue. When an entity blames poor communication or lack of transparency for bad press/negative publicity, then that’s just convenient, shallow spin.
“Right now,” Wild says, “there is just too much about the office’s functioning and performance that outside eyes do not get to see. For the agency’s own sake, as well as for the good of its users, that has to change.”
The implied message here is that only the “experts” (as in “created by and for experts”) know and truly grasp the “functioning and performance that outside eyes do not get to see.” See? It’s a secret recipe. We “non-experts” just cannot understand it. Just leave it all to the “experts”… like those geniuses from ÉNA.
Wild proceeds to a whole section in promotion of the UPC, shaming Germany again for not (yet) playing ball. “Progress towards the creation of the EU’s unitary patent and the UPC continued apace throughout the year,” Wild wrote, just before the section above. The #1 goal right now (at the EPO) is to make the UPC a reality without (or before) any public consultation. Consider this comment which alluded to the MIP interview and notes:
In the interview, President Battistelli characterizes DG3 as an administrative unit of the EPO, composed mainly of EPO examiners. He tells us that the EPC Member States deliberately chose not to create a judiciary body under the EPC but, rather, a mere administrative unit of the EPO.
Is this what the AC now thinks? Does this explain the unseemly rush to bury DG3? Has the thought taken root, at AC level, that all of the 38 EPC Member States are failing, still, even after more than 40 years of trying, to comply with GATT-TRIPS?
I don’t understand. I thought it was well settled, that DG3 is a judicial not an administrative instance. Is the EPO President so almighty that he can by fiat declare DG3 to be administrative and NOT judicial?
Or is all this just a manifestation of the pan-European political imperative, to jump start the UPC?
As one person wrote in response, “the reason is simple – DG3 is a cost burden on the EPO budget. The only way to reduce it is to reduce the size of DG3, either through not appointing new members, encouraging current members to leave, or “disciplinary” measures.”
Alluding to Battistelli’s background in ÉNA, one person opines:
Being an Ena-teque, I suspect BB sees everything as an administrative task with technical/judicial support functionaries. That reflects his treatment of staff in general. DG4 (HR et al) is the core and DGs 1 and 3 are support acts for the successful operation of DG4. While HR, IT etc. were previously the support, the system has changed and now examining and boards of appeal are downgraded to simple tasks which any non-ENA person can do.
Another comment says:
The President´s public statement that the Boards of appeal are an administrative and non-independent unit of the office amounts to a complete reversal of the position which had been successfully maintained for more than 40 years and had been absolutely paramount to the recognition of the European Patent System by national jurisdictions.
This is indeed a disastrous move, which might have dramatic consequences.
It looks as if the President, after having been discharged by the AC at its last meeting of any further responsability in the necessary institutional reorganisation of the Boards, had in his rage decided to broke the toy altogether. And beyond the Boards, it is now the AC which he attacks.
More refutations of Battistelli are as follows:
A short summary of the managing ip interview is here:
Battistelli defiant in interview about EPO reforms
The part about the BOAs only forming an administrative unit is not included.
BB suggests that the appeal fee should cover 20-25% of the cost instead of 4% as is the case now. (A similar if not much larger increase of the opposition fee is not difficult to predict. To justify such increases one only needs to compare with the UPC fees!)
BB says it is “short-sighted” to suggest the backlog of appeal cases has been created in the past few months due to positions being vacant (“few” being 18).
Yet another sign of intellectual dishonesty, as no one has suggested that the recruitment stop has created the backlog. The backlog was there already, but how is that an excuse for stopping recruitment.
BB appears to be not completely unwilling to make new nominations next year. We’ll have to wait and see what kind of surprise he has in mind.
BB still wants to move the BOAs out of his sight and to prevent BOA members from working in private practice after leaving their position. How is he going to do that, now that the AC is said to have taken the reform out of his hands? But of course he still controls whoever will draft the new proposal.
The responses to Battistelli’s claims include the following:
Battistelli seems to want be BoA to be self-financing and yet they are only an administrative organ rather than a judicial body. Will HR be equally self-financing? And, if so, how? Make your mind up!
Is sing members – 18 now but how many after end of year retirements?
New nominations? But no posts have been advertised for more than a year. There can’t be anybody ready beyond personal nomination by him?
Preventing from working by attacking their pension (rights)? Delaying payment of final allowances? Going to court – a single case would frighten a few? Playing hard ball with their new employers? You think he wouldn’t be creative?? (See you at the ILO in 10 years…)
Usefully enough, someone posted the relevant quote from this article (behind paywall) and it goes as follows:
We understand that you and the Administrative Council believe that the efficiency of the Board needs to increase, and the independence needs to be assured. Can you reassure people about that in the long-term but also in the short term, given concerns about the number of members of the Boards?
[Battistelli:] The first thing to bear in mind is that when the EPC was discussed, signed and ratified the member states decided not to create a judiciary body that would be separate from the EPO. They decided to create an administrative unit within the EPO with the task of reviewing EPO decisions on granting or not granting a patent. It is recognised there is some ambiguity there but this was the choice made at the time. There have been several attempts over the past 40 years to change the situation, and they have never succeeded.
So the situation is we have an administrative unit, composed mainly of former patent examiners, who are independent in the decisions they make but not in their legal nature.
In spite of the ambiguity during the past 40 years, the Boards of Appeal have built strong reputations for independence and expertise and have fulfilled their roles to everybody’s satisfaction.
Second, on independence, this has never been questioned. None of my predecessors or myself have interfered in any specific case. But there was a decision of the EBA [R2/14] that said because of the links there was a risk of partiality.
This decision obliged us to reconsider the links between the Boards of Appeal in general and the Office, so we started to reflect on a situation where we could increase the independence and the efficiency. I made some proposals to the Council, one of them to create a fully separate organisation, but this would imply a change to the EPC. The Council clearly indicated they cannot consider this option and asked me to make some proposals within the framework of the EPC.
It’s not easy because the EPC clearly gives the responsibility for the management of the Boards to the president of the Office. How can the president delegate this authority to someone else? We looked at creating a person with a new function of president of the Boards of Appeal, who would be the highest authority but also in charge of administration, like in many national courts. Somebody has to manage the Boards, and it cannot be the president of the Office as this would be understood as interference in their functioning. It’s legally not easy because it has to be compliant with the EPC.
We are also proposing to help the Council fulfil its duties by creating a subsidiary body composed of members of the Council and high level judicial people. This body will be consultative and will help the Council to fulfil its duties for the Boards of Appeal.
I’m confident that we could make some proposals in the first months of 2016 in order to go forward.
What Battistelli does here is pretty amazing because, as people repeatedly show, he is ignoring all the rules, probably in pursuit of his* “greater good” (the UPC). One person digs up old documents before commenting as follows:
BB’s interpretation is not consistent with what is recorded in the Travaux Preparatoires:
http://webserv.epo.org/projects/babylon/tpepc73.nsf/0/4ADD77A7756D6D23C125742700497086/$File/Art23eTPEPC1973.pdf
Quick ! Make a backup copy before they disappear online …
We have made a local copy just in case [PDF]. The document is dated 30th of September, 1973 (nearly a decade before I was even born). Having paged through it, I’m increasingly convinced it’s quite valuable in the sense that it enables detailed comparison between the original goals, rules and visions of the EPC to what Battistelli now claims them to be (revisionism). It’s not necessarily the EPC that’s misguided; it’s those who misinterpret or distort its message (or find loopholes) that put it to shame. █
_______
* Large multinational corporations’ actually, as the infamous new pattern serves to show.
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