09.12.16
Posted in Europe, Patents at 12:20 am by Dr. Roy Schestowitz
While Battistelli effectively uses FFPE-EPO and unskilled recruits on limited contracts as scabs or strike-breakers
Summary: The war on the staff union of the EPO (SUEPO) has apparently resulted if not culminated in a formal warning to Joachim Michels, President of SUEPO Central
GRIM time at the EPO is already public knowledge. The very existence of the EPO as we know it is at stake now, thus the competitiveness of Europe. Patent examiners are rightly worried.
“The very existence of the EPO as we know it is at stake now, thus the competitiveness of Europe. Patent examiners are rightly worried.”Based on a new letter we saw — an open letter in fact — Jesus Areso has been warned and so has Joachim Michels. This is significant because Joachim Michels is (or was, as of last Christmas) the President of SUEPO Central. A more recent letter lists him as Chair of SUEPO Central. SUEPO is a very large staff union, representing most staff having already enlisted as registered members about half of the entire Office (all branches).
The context in which we found out about the status of Michels is a letter addressing the fact that ILO is overloaded by EPO complaints. We wrote about this many times before, including in the following articles:
We recently wrote about the case of Laurent Prunier, who is likely — if Battistelli gets his way — to be the first staff representative in The Hague to be dismissed based on what Prunier called cref 95210 “demonstrably fabricated accusations”] (we have seen this pattern before and covered it). This is how bad things have become and the following Open Letter to the President (Benoît Battistelli) rightly bemoans the lack of juridical oversight, rendering the EPO a lawless place that’s run by a crazed autocrat. They put it more politely though:
European Patent Office | 80298 MUNICH | GERMANY
Mr Benoît Battistelli
President of the EPO
ISAR – R.1081
Open letter:
Reform of the internal justice system
Dear Mr President,
Recently1, the Administrative Tribunal and its Governing Body have expressed concerns about the internal justice system at the EPO and the negative consequences of its dysfunction on the caseload of the Tribunal.
The Tribunal has also found in Judgment No. 3694 that, considering the quasi-judicial functions of the Appeals Committee, its composition was fundamental. The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and by the staff representation, is a fundamental guarantee of its impartiality. Accordingly, the Tribunal has ordered (re-)examination by an Appeals Committee composed in accordance with the applicable rules.
When making appointments for the calendar year 2016, we had already expressed our intention to appoint members to the Appeals Committee in application of Article 36(2)(a) ServRegs as soon as issues in the appeals system are addressed satisfactorily.
We have already identified problems to be solved in order to establish internal means of redress seen to be fair by staff. It appears that it is time to repeat our invitation to discuss with you our concerns and intentions and to devise ways to move forward.
We therefore respectfully ask for a meeting with you at your earliest convenience, preferably in September.
____
1 see on particular §§ 653 to 662 on pages 153 – 155 of the Minutes of the 326th Session of the Governing Body of the International Labour Office
We don’t know if a meeting will take place (or has already taken place), but one sure thing is that things are rotten at the EPO and staff representatives are under attack. The union-busting activities of Battistelli are still alive and well (these are often effective, especially when there’s no oversight as in the case at Eponia). █
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09.11.16
Posted in Europe, Patents at 11:37 pm by Dr. Roy Schestowitz
What would that mean for existing EP (European patent) holders who pay renewal fees (the financial lifeline of the Office)? What would that mean for domain gurus who work as examiners?
Summary: The EPO appears to be going in the opposite direction of the USPTO (post-Alice/Mayo) and becoming more like the French patent system, which is notoriously deficient in terms of quality because there is no quality assessment (or prior art search) at all
THE EPO, as we shall show later this month, has turned into somewhat of a nut house under Battistelli’s notorious leadership. It’s not because examiners have mental issues (they are very stressed, understandably so, and it's growingly worse as time goes by) but because the Battistellites think like neoliberals whose goal is to just maximise everything monetary by deregulating everything. They are burning down almost half a century of reputation, essentially squeezing the goose as if there’s no tomorrow.
We have already mentioned the French model here. We did so several times in the past. The French patent model is widely regarded as poor, but the following new paper lays out an explanation of what happens at the EPO under the mostly French leadership from INPI (the French patent office which Battistelli pulled former colleagues from):
The French Model for the EPO
Summary
When the EPO was created in 1977, its founding fathers decided on a patent system that would provide for a high degree legal certainty for the inventor (investor), the competitors and the public, through high quality searches and examinations, the whole backed up by an opposition procedure and a second instance in the form of the Boards of Appeal. That decision has largely remained unquestioned by subsequent Presidents until Mr Battistelli took over. Indications are that Mr Battistelli is currently trying to remodel the EPO according to the example of the French patent system – without informing anybody. This should worry not only staff, but also the users of the patent system and the public.
The French patent system then
Until 1968, in France patent applications were not examined but merely registered. All what the French patent office did was stamp a date (and time of day) on whatever documents the
applicants brought to them. Patent granted before that time bear the mention “S.G.D.G.” meaning “Sans Garantie du Gouvernement” (i.e. without a warranty of validity by the government). Granted patents were only looked at when the patent proprietors sought to establish their claims. At that point the patents had left the patent office and national courts were responsible.
There are advantages to a registration system, first and foremost that it is cheaper for the patent office because it saves work. The obvious disadvantage is a lack of legal certainty until the patent is actually examined – by the courts. The French system nevertheless worked reasonably well. Without the presumption of validity, the risk of having a patent revoked was relatively high. French applicants reacted by drafting their applications in the safest way possible, thereby producing mostly clear claims of relatively narrow scope.
The French patent system now
Things changed when law n° 68-1 of January 1986 came into force. Article 6 of law 68-1 introduced the concepts of novelty and inventive step. This is mirrored Article L611-10 presently in force, the first paragraph of which reads:
“Sont brevetables, dans tous les domaines technologiques, les inventions nouvelles impliquant une activité inventive et susceptibles d’application industrielle.”
Also the other articles resemble those of the European Patent Convention, so that at a first reading the French patent system now looks very similar to that of the EPO.
There is, however, a major difference: Article L612-12, point 5, makes it clear that an application will be rejected only when the application obviously is non-patentable.
We cite the Guidelines of the French Intellectual Property Office (INPI)1,2:
“La non-conformité manifeste aux conditions de brevetabilité peut donner lieu au rejet de la demande de brevet dans les cas suivants :
Est rejetée, en tout ou partie, toute demande de brevet…
4° qui a pour objet une invention manifestement non brevetable en application de l’article L. 611-16 à L. 611-19
5° dont l’objet ne peut manifestement être considéré comme une invention au sens de l’article L. 611-10, deuxième paragraphe ;
7° qui n’a pas été modifiée après mise en demeure, alors que l’absence de nouveauté résultait manifestement du rapport de recherche.
Dans tous les autres cas, la non-conformité aux conditions de brevetabilité ne fait pas obstacle à la délivrance du brevet. Elle peut toutefois être sanctionnée par la nullité du brevet prononcée par les Tribunaux.”
Lack of novelty and inventive step is excluded as grounds for rejection, as it is defined by Article L611-10 first paragraph (see previous page) and point 5 above only cites the second paragraph of L611-10 (exclusions of patentability), that is word for word equivalent of Article 52(2) EPC and lists non-patentable matter such as discoveries, scientific theories, mathematical methods etc.
What happens in practice is that the INPI3:
- sends the incoming applications to the EPO for searching4,
- sends the search report produced by the EPO together with the search opinion5 to the applicant, to which the applicant must respond within 6 months (3+3 months) when X or Y documents are cited, otherwise the demand is administratively rejected for lack of answer,
- the applicants amend the claims or files arguments supporting of the claims,
- in case of remaining obvious defects not concerning novelty or inventive step (Art. 611-10, para.2) a communication is sent. Otherwise a patent is granted.
The French patent system does not foresee a post-grant opposition procedure by patent examiners (i.e. technical experts) or an appeal procedure at a second instance within the patent office. Appeals against rejection by the examiner, opposition by competitors and other forms of patent disputes are all treated by a civil court: the “tribunal de grande instance” in Paris 6 . The members of this court are all lawyers. There are no technical members.
The lack of substantive examination and the outsourcing of searches to the EPO explains why the INPI has relatively few examiners, why it seeks to recruit only relatively non-specialised engineers as examiners (“ingénieur généraliste”), and why examiner salaries are relatively low.
The EPO towards the French model
[x] has on previous occasions pointed out that the reasons given by Mr Batistelli to justify his reforms (e.g. “remaining competitive”) do not make sense and asked him what the real plan is7. We never received an answer. Any analysis of what is happening at the EPO is furthermore hindered by the fact that Mr Battistelli tends to use a form of Orwellian “newspeak8” where what he says can be exactly the opposite of what he means.
By now the outlines are nevertheless becoming clear: Mr Battistelli may be trying to reshape the European patent system after the French model9. This is most easily seen by the changes in the examination practice: Mr Battistelli’s continued insistence on “early certainty”, on efficiency (“getting there fast 10 ”) and the ever-increasing individual targets for examiners necessarily led to a strong reduction in the time available per file. The most recent “early certainty” initiative foresees that the majority of applications will see only a single response of the applicants and then a final action, presumably a grant. Under the guise of “areas of competence” senior experts have actually been moved out of their technical fields to other domains. The planned reduction of the backlog foresees further technical “flexibility” of examiners.
The EPO now also seeks to recruit “generalists” instead of highly qualified experts. In doing so it has lowered the initial salaries for examiners, in particular for those with previous experience, making the job unattractive for highly qualified experts. The expected result of the above changes will be a more superficial examination, focusing mainly on formalities – like in France.
Mr Battistelli has been hostile towards the Boards of Appeal from the very beginning of his presidency. Last year Mr Battistelli stopped recruiting Boards Members, up to the point that some 27 of the about 170 posts were unoccupied. This obviously led to massive delays in appeals. The next step is a removal to under-dimensioned offices at the outskirts of Munich. The likely impact will be another brain drain. It very much looks like Mr Battistelli considers the Boards of Appeal “unnecessary”, while absent in the French system. In his “French model” their role could be taken over by the Unitary Patent Court.
Conclusions
[x] supported and still supports and examination model of the EPO that aims at delivering patents with a high presumption of validity (the “German model”), because:
- it provides legal certainty for the applicant who will know at an early stage whether the invention is likely to survive challenges by the competition and hence whether it is worth investing in its development,
- it brings legal certainly for the competitors who will know at an early stage whether to count with a monopoly or not and hence whether to negotiate a license or work around the invention,
- it reduces the risk of unfair competition not only by patent trolls, but also by big companies “squashing” smaller competitors with large patent portfolios and the threat of costly litigation.
Apparently the “French model” works in France. This may be in part because foreign applicants will mostly avoid the French route because of the language difficulties, and the thorough
examination by the EPO thus far protected France from abusive applications coming in via the EPO route. But with the quality of the search and examination at the EPO going down this may no longer be the case. The “French model” thus risks the introduction of a patent system, in France11 and elsewhere in Europe, wherein predictability is not based through a high presumption of validity but on financial muscle: the patent proprietor who can best afford litigation will win12.[x] does not believe that such a model would really support innovation in Europe.
Should, however, the original EPO model no longer be considered to serve the best interest of the European economy, then a change of direction should be the result of a democratic process following a public debate and not the decision of a President with a cultural bias and possibly an axe to grind.
____
1 https://www.inpi.fr/sites/default/files/directives_brevet_completes_0.pdf, bold-face added
2 Translation: Evident non-conformity to the conditions of patentability may give rise to a rejection of the patent application in the following cases: Applications
4. of which the substance evidently cannot be considered as an invention according to Article L. 611-16 to L. 611-19,
5. of which the substance evidently cannot be considered as an invention according to Article L. 611-10, second paragraph;
7. that have not been modified although the lack of novelty was evident of the search report.
In all other cases non-conformity with the conditions for patentability is not an obstacle to the grant of a patent. The lack of conformity may, however, lead to the invalidity of the patent being found by the courts.
3 http://www.sedlex.fr/brevets-francais/delivrance/lexamen-de-la-demande-et-delivrance-dun-brevet/
http://www.cours-de-droit.net/la-procedure-de-delivrance-du-brevet-a121605180
4 Before the EPO existed French patent applications were searched by the IIB, the predecessor of the EPO.
5 Before the EPO issued searches opinions French applicants were requested to react to documents marked X and Y in the search report.
6 Code de la propriété intellectuelle, article D631-2.
7 “A brave new EPO?”
8 https://en.wikipedia.org/wiki/Newspeak
9 There is still considerable diversity in European national practices. E.g. the grant procedure for national patent applications in Switzerland and Liechtenstein does not require a search and does not involve any substantial examination at all. The patent is granted provided that certain formal requirements are fulfilled. It is possible to obtain a search report during the procedure, but this is optional and has no effect on the decision to grant. See: https://en.wikipedia.org/wiki/Unitary_patent_(Switzerland_and_Liechtenstein)#Grant_procedures
10 see “Getting there faster – Timely and efficient examination”.
11 We note that the lack of substantive examination in the French system has been criticised within France itself See the paper by Prof. Bertrand Warufsel for the University of Lille: http://www2.droit.parisdescartes.fr/warusfel/articles/warusfelexamenfondbrevetfr.pdf
12 Strikingly, the US seems to me moving in the opposite direction: http://www.gao.gov/products/GAO-16-490
That last footnote speaks of GOA — the relevance which it (to the EPO) we covered here not too long ago [1, 2]. If the above is an accurate assessment, there should be an uproar/revolt from existing EPO stakeholders, including patent holders. █
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Posted in America, Courtroom, Patents at 8:50 am by Dr. Roy Schestowitz
Summary: New evidence suggests that software patents continue their plunge in the United States and those who make money from software patents cannot help shooting the messengers (in the media) and smearing those who simply do their job by applying the criteria agreed upon by the US Supreme Court
TECHRIGHTS has been watching very closely matters pertaining to software patents for about a decade (I’ve watched them much longer than that, predating this site’s existence). After so much activism we finally see tremendous progress; they’re dropping like flies and litigation involving software patents is so uncertain (for the plaintiff who takes a huge risk) that numbers indicate a sharp decline if not dampening. Only a fool would spend money pursuing new software patents; reckless patent holders would dare have them subjected to scrutiny by a court (the higher the court, the higher the risk, thus suing deep-pocketed players is riskiest).
“The number of some types of software patent lawsuits in the US has taken a nosedive since the 2014 decision in Alice v CLS Bank.”
–WIPRthe numbers are on our side. As WIPR put it the other day (note the use of the word nosedive): “The number of some types of software patent lawsuits in the US has taken a nosedive since the 2014 decision in Alice v CLS Bank.
“This is the finding of Patexia, an online patent research platform, which reported that software patent suits have declined heavily, although the fall was not equal across all software patent classification codes.
“Patexia identified 14 different US classes that describe some sort of software-related system or process.
“Patexia identified 14 different US classes that describe some sort of software-related system or process.”
–WIPR“These classes covered more than 14% of the 22,791 unique patents involved in patent suits from 2010 through to the first half of 2016.”
We are pleased to see that even insiders, such as Patexia, recognise the trend and write about it. Patent law firms prefer not to talk about it because it discourages their clients (or prospective/possible clients). Writing for “Canadian Lawyer Magazine”, one person gave 10 reasons you need a Canadian Lawyer (the real headline is “Ten reasons you need a Canadian patent”). This is an example of marketing/advertising in the form of an “article”. To quote from this — cough — article: “You may have heard that it’s not worthwhile to patent your company’s technology in Canada, with its smaller market, its conservative judicial remedies and its skepticism toward software-based patents.”
Well, recall i4i v Microsoft (Canadian company) and how things worked out [1, 2, 3, 4, 5]. They pretty much risked going out of business after wasting years in court bickering over software patents. They still have a Web site which is active (last news item was a week ago), but we have not seen them in the media for literally more than half a decade. Recently, another Canadian company chose to turn into a patent troll down in Texas. This failing company, falling back on its patents, is Blackberry. How has it worked out so far? Any better than Nokia, which is still arming patent trolls in pursuit of cash? A lot of these patents are totally worthless, more so after Alice (Nokia — or Symbian at the time — had a famous software patent case in the UK nearly a decade ago).
“A lot of these patents are totally worthless, more so after Alice (Nokia — or Symbian at the time — had a famous software patent case in the UK nearly a decade ago).”Lexology, a site for lawyers, has just reposted (verbatim) an analysis from Fenwick & West LLP. It’s an analysis which we mentioned and also cited here the other day, showing a trend of invalidation of software patents in the US. It’s not looking good for software patents and it’s not getting any better, irrespective of what patent law firms are trying to tell us (by blatantly selective coverage of events or overt cherry-picking).
Dealing with a particular CAFC case, a pro-software patents propaganda site (for a long time) says it’s “keenly awaited” (by the vultures maybe) and that it relates to Alice. Expect it to change nothing at all, even if it somehow ends up in favour of a software patent (like in Enfish). CAFC rules against software patents around 90% of the time, so there’s probably no more of Enfish in the pipeline. Two years and about 3 months after Alice it’s effectively the end of software patents in the United States. Wait and watch how patent law firms (and their media mouthpieces) continue to deny this, hoping to convince the readers (or clients) that all is “business as usual…”
It’s not.
“It’s not looking good for software patents and it’s not getting any better, irrespective of what patent law firms are trying to tell us (by blatantly selective coverage of events or overt cherry-picking)”When pro-software patents propaganda Web sites want to undermine the importance/relevance of Alice they typically resort to insulting those who apply Alice (even judges are insulted!). To quote IAM: “In December last year the Court of Appeals for the Federal Circuit heard oral arguments in McRO Inc., DBA Planet Blue v Bandai Namco Games America et al, a case that many, particularly in the software industry, hoped would bring some much needed clarity to the issue of subject matter eligibility.”
Nonsense. It has nothing to do with clarify, that’s just what lobbyists for software patents — people like David Kappos — like to say while they simply object to Alice and the Justices at the Supreme Court. Oh, the vanity!
To quote further from IAM: “As with any 101 case, in the McRO suit there’s not only the matter of the law but also of the Federal Circuit’s complicated relationship with the Supreme Court. A string of decisions from SCOTUS, which have reversed the lower court, has helped create much of the uncertainty around patent eligible subject matter. According to former CAFC Chief Judge, Paul Michel, the stark divisions that have clearly arisen between members of the judiciary, might be the reason for the delay in the McRO decision.”
“When pro-software patents propaganda Web sites want to undermine the importance/relevance of Alice they typically resort to insulting those who apply Alice (even judges are insulted!).”That’s another pattern of FUD we have come across. Proponents of software patents like to scandalise the status quo and pretend there is a fight — if not actually ignite one — between different divisions, courts, boards, etc. It’s typically a fictitious framing that seeks to discredit the system and shake/destablise Alice, making it seem too “controversial” a decision to refer to/cite as precedent.
These software patents proponents, usually patent law firms that never wrote any software, are actively trying to undermine the US Supreme Court. Shame on them for doing that. Watchtroll, with its big mouth, is attacking PTAB again (it won’t stop until they’re gone). They’re like a gang of hyenas. Writing about PTAB, MIP has two more articles on the latest trends. One is titled “Don’t Estop Me Now” and the latter is a subtle attempt to discredit PTAB by associating it with “patent trolls” (again, total fiction!). Making money by trashing patents granted in error by the USPTO (for quick monetary gains) does not make one a “patent troll” and it has nothing whatsoever to do with the definition of “patent troll”. Watch this headline, “Hedge funds and reverse patent trolls” (nothing to do with trolls).
“These software patents proponents, usually patent law firms that never wrote any software, are actively trying to undermine the US Supreme Court.”To quote MIP: “A big story last year was the emergence of hedge funds and other entities using the Patent Trial and Appeal Board. While Kyle Bass is seeing his IPRs through to final decision, other entities are acting as reverse patent trolls, a phenomenon that is predicted to gather pace” (again, nothing to do with trolls and probably a good thing that will compel the USPTO to do its job properly).
Patent lawyers and their mouthpieces reject the term "patent troll" (denying such a problem exists, a lot like those denying global warming), but suddenly, when someone kills bad patents, then they adopt the term and call the actors that. How pathetic and self-serving. Fish & Richardson P.C., which represents patent trolls, pretends patent trolling is all just a myth (published almost a decade ago, but revisited now via Patent Buddy, who is a pro-software patents attorney). To quote the author from Fish & Richardson: “A new breed of companies has emerged, and they are being called patent trolls. A patent troll is a person or entity who acquires ownership of a patent without the intention of actually using it to produce a product. Instead, it licenses the technology to an entity that will incorporate the patent into a product, or it sues an entity it believes has already incorporated the technology in a product without permission. The government, corporate America, and the media are fervently acting against these trolls. New proposed legislation, a blizzard of Supreme Court cases involving trolls, and endless newspaper and magazine articles are all trumpeting the same story line: Patent trolls are bad for society and must be stopped.”
Well, that is very different from those who use IPRs at PTAB to correct the USPTO’s errors (spurious granting of patents). But this kind of distortion of terminology certainly would not bother those with dishonest agenda.
“Put another way, they’re protesting against PTAB because to them — the patent microcosm — less litigation would be a corporate disaster (litigation is their most expensive product, whether as defendants or plaintiffs).”AIA (Leahy-Smith America Invents Act) gave us PTAB, which demolishes software patents by the thousands, so now it’s considered “trolling” to apply quality control to patents and prevent these from going to court? Here is a new Bloomberg piece (titled “Five Years In: The AIA’s Effects on Patent Litigation (Perspective)”) in which it’s stated upfront that “The authors are IP lawyers at a large law firm.” The article is by Daniel Zeilberger, Michael Stramiello, Joseph Palys, and Naveen Modi from Paul Hastings LLP. Their conclusion is as follows: “AIA-created post-grant proceedings are changing the landscape of patent litigation. Complaints and declaratory judgment actions are down. Potential cost savings for accused infringers are huge. And PTAB outcomes historically disfavor patent owners, who have appeared willing to settle a large percentage of disputes. It remains to be seen whether these trends will continue as PTAB practice evolves, guided by an expanding body of caselaw and potential legislative tweaks.”
Put another way, they’re protesting against PTAB because to them — the patent microcosm — less litigation would be a corporate disaster (litigation is their most expensive product, whether as defendants or plaintiffs). They might actually have to find another job — one in which they produce something other than paperwork for monopoly and litigation. One thing we have noticed is, the authors of pro-software patenting pieces are sometimes choosing to write anonymously. Apparently they’re too shamed of their self-serving lies that they want to hide behind pseudonyms or no name/s at all.
Expect more attacks on PTAB (which needs to be defended from them) and expect a lot more attacks on Alice. These attacks typically come from patent bullies, their lobbyists, and their law firms. “A decade of court decisions has shaken the basis of patent law,” says this new article, sending across the message that this is terrible news when fewer cases go to court. To quote:
Earlier this summer, the U.S. Supreme Court made it easier for patent holders to seek larger damage awards when their patents are infringed.
For patent watchers, however, the high court’s ruling was only just the latest in a particularly active decade of major patent litigation.
Beginning in 2006, the Supreme Court ruled that holders who license their patents cannot win an injunction to stop third parties from infringing on their patent. That lawsuit, eBay v. MercExchange, L.L.C., changed the way patent lawsuits could be waged, altering incentives along the way.
“eBay substantially changed the world of patent litigation by limiting almost every verdict solely to monetary damages,” Robert W. Morris and Michael R. Jones, attorneys at Eckert Seamans Cherin & Mellott L.L.C., wrote in March.
[...]
“The effect is harshest on individuals and smaller businesses that depend on the value of intellectual property for their livelihoods; these are the same inventors that have, for decades, produced many of our greatest technological advances,” MCM argues.
That last part promotes a myth, unless they speak of patent trolls. Those who benefit the most from the status quo are patent bullies like IBM and the only small entities to also benefit (as a side effect) are trolls, not startups that actually produce things.
“We hope that more people will recognise the problem with software patents and react accordingly.”In the area of militarism, arms manufacturers (or war contractors) have taken over the system and became a burden (or a parasite) inside it. The same goes for the area of patent, but the products are patents and lawsuits rather than weapons and wars. We hope that more people will recognise the problem with software patents and react accordingly. █
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Posted in America, Deception, Fraud, Patents at 7:16 am by Dr. Roy Schestowitz
Distracting from the accusations
Summary: The USPTO is found to have been burning taxpayers’ money and the patent microcosm, which profits from this entire sort of ‘racket’, is trying to defend or belittle these findings
THE USPTO has been dealt a serious blow which we mentioned here very briefly the other day (billing fraud, similar to what's alleged to be happening at the EPO).
It is no surprise that examiner misconduct and fraud is defended by IAM ‘magazine’, but having followed their sources we are left worried. Here is what IAM wrote to excuse/dismiss it all (the headline is “accusations against USPTO staff may have less meat than reported”):
But according to Matt Levy, patent counsel with the Computer Communications Industry Association (CCIA), the numbers from the OIG’s report should be put in context. Earlier this week, in a letter to the editor of the Washington Post, Levy claimed that the report exaggerated the scope of the problem. When broken down, he calculates that the waste amounts to an average of six minutes per examiner at the USPTO (he went into further detail in an IP Watchdog post here).
I reached out to Levy for a little more detail on his reasons for writing the letter. Here’s his response: “It seemed pretty clear that the OIG was making the problem look far worse than it was. I’ve written about the GAO’s report on quality, and I’ve been hopeful that it would garner some attention. Unfortunately, the scandal that the IG’s report created seemed likely to suck up all the oxygen. My goal was to bring a little perspective and, hopefully, help focus the conversation back on patent quality.”
Most patent owners would probably agree with Levy. That isn’t to denigrate the latest findings of the OIG but the more fundamental problem for the US patent system is the quality of the grants that it makes. That was certainly one of the main findings of IAM’s most recent benchmarking survey which was elaborated on by a more recent piece of research by Colleen Chien of Santa Clara University
Putting aside that last paragraph which is IAM's self-promotion (of propaganda), watch who they’re using to support their position. Remember which companies are behind CCIA, never mind Watchtroll (IP Watchdog) and other USPTO friends/buddies. It’s like a sort of coverup attempt because a lot of the above piggybacks Matt Levy from CCIA. It is a man whose wife works for the USPTO, i.e. his household receives a salary from the USPTO — something that should probably be mentioned (he personally asked me not to mention this again, but it’s hard given these circumstances and given that Levy gave away this potential conflict of interest himself, in his own blog). Watch what he wrote in response to the original piece (filed under “opinions”). His wife works for the USPTO, yet he does not disclose this in his letter to the editor (regarding the USPTO). How is one supposed to simply ignore this? The echo chamber in defense of fraud isn’t something that’s a minor detail that can be trivially overlooked. Found via this tweet are some vicious attacks on Florian Müller for bringing up the issue. A former IP Kat writer is slamming him for stating the obvious and he responds with: “Doesn’t matter due to fee diversion. Ultimately it is taxpayers’ money anyway.” Patent law firms too are against taxpayers now [1, 2, 3, 4]? Or implicitly in defense of billing fraud? How would that make them look? It is hard to explain to the patent microcosm its unwanted role (as it relates to practicing developers) [1, 2], but Müller did try and at the end he wrote a summary of his position as follows [1, 2, 3, 4]: “Some patent folks are being too emotional about USPTO fee diversion to think things through correctly. Let’s enlighten them now: Question was: if employees steal from USPTO, are taxpayers the ultimate victims? Yes. There are 2 independent ways to prove this. First, every $ less that the USPTO can send to Treasury (fee diversion) is a $ more that taxpayers have to contribute to pay for something. Second, fee diversion goes both ways: if theft contributed to a USPTO deficit, taxpayers would have to close the gap.”
“Slamming the watchdog isn’t easy (shooting the messenger which is independent) and if nefarious tactics are used to belittle the problem itself, what does that tell us about the accused (collectively) or their spouses?”I have exchanged quite a few E-mails about this subject since (Müller expressed some views) and it’s saddening to hear that patent law firms implicitly threaten alienation in retaliation for stating of the obvious. By doing so they probably risk only isolating themselves even further, turning software developers like myself and Müller into a foe.
For those who want to hear opinions from sites not run by software developers, consider reading “Patent office employees steal millions from American taxpayers”. To quote: “A new report from an independent watchdog found that employees of the Patent and Trademark office billed the government (AKA, the taxpayers) for 300,000 hours they never worked, costing the American people $18.2 million.
“Many employees work from home, and the report found numerous instances of time logged without any work being completed.
“The amount of wasted man-hours that could have been spent reducing the patent backlog is astounding, not to mention the millions of taxpayer dollars that were wasted paying employees for work they were not doing,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) told the Washington Post.”
Working from home for the USPTO is something which Levy’s wife has been doing. It’s a shame that he did not disclose that in his letter of response to this piece from August 31st (“Patent office workers bilked the government of millions by playing hooky, watchdog finds”).
Slamming the watchdog isn’t easy (shooting the messenger which is independent) and if nefarious tactics are used to belittle the problem itself, what does that tell us about the accused (collectively) or their spouses? █
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Posted in Europe, Patents at 6:41 am by Dr. Roy Schestowitz
The only way is down
Summary: The British people have already been divorced from the EPO — a trend which is likely to continue amid Brexit negotiations and because the Battistelli-induced crisis deepens by the week
THE European Patent Office has lost its appeal here in Britain and it has nothing to do with Brexit (or a vote for Brexit). For quite a while now we have been hearing (privately) from disgruntled British applicants at the EPO (those who already have UK-IPO patents) — people whose stories will be published in the future when there’s no chance of it compromising ongoing disputes. Basically, we are left with the impression that British inventors don’t feel like they get their money’s worth at the EPO under Battistelli. One of them even considered suing the EPO before he realised it would not be possible (because of the immunity).
“Basically, we are left with the impression that British inventors don’t feel like they get their money’s worth at the EPO under Battistelli.”The EPO no longer hires people from the UK, based on recent figures that we published a couple of weeks ago. Earlier this year we learned that there was a 80% reduction in recruitment from the UK, but things appear to have gotten worse since (depending on which internal source of figures one relies on). As far as the EPO is concerned, Brexit appears to have already started and the only thing “English” about the EPO is the official language (for communication with clients, court/appeal/tribunal hearings etc.); as Battistelli started a vicious war against an Irish judge, there might soon be too little diplomatic affinity between Ireland (the other English-speaking country) and the EPO. I’m no proponent of Brexit but merely an observer of how the EPO’s abuses (top-level management like Battistelli) contributed to the negative image of the EU here, potentially convincing more people to have voted “Leave”.
Based on the following new article from Battistelli’s ‘protégé’ James Nurton (softball questions as ‘interviews’), individuals and businesses from the UK now file for trademarks (maybe also patents) at the UK-IPO rather than EUIPO (equivalent of EPO for trademarks) and there is a statistically-meaningful difference. To quote MIP: “UK trade mark and design filings jumped by 33% and 95% respectively in August 2016 compared to the same month last year, according to figures compiled by the UK IPO at the request of Managing IP” (MIP).
“Insiders at the EPO, as we shall show later this month, recognise the erosion of the EPO’s reputation (still ongoing and exacerbating).”We imagine that figures for the EPO would be similar, but due to long pendency of patents, the ‘Battistelli effect’ and the ‘Brexit effect’ might take some time for us to truly notice. Since MIP is now seemingly in bed with the EPO, we expect reluctance to produce reporting on that.
Insiders at the EPO, as we shall show later this month, recognise the erosion of the EPO’s reputation (still ongoing and exacerbating). We find it truly pathetic when all a company can say about itself to its shareholders is, “look we have got a patent at the EPO!” (latest such example). It’s not as though today’s patent quality at the EPO is what it used to be.
“Now that Battistelli is doing photo ops with Cambodia, which incidentally has zero European Patents (in the past 8 years or so), it’s not hard to sympathise with EPO staff for choosing to leave.”Patent quality at the EPO has gotten so bad under Battistelli (more on that later as well) that staff with dignity and good education often decides to leave. The EPO hardly wants and needs examiners now; it just wants people who can do a superficial search and stamp quickly (or “early certainty” as it euphemistically dubs it). Watch this very nonsense from the EPO regarding software patents, which are not legal in Europe. Just before the weekend it wrote: “Check out this course to see how computer-implemented inventions are examined for patentability under Article 52 EPC” (if they are computer-implemented inventions — a weasel word for software patents — they should be rejected outright).
Meanwhile, the EPO is still 'spamming' universities (latest examples in [1, 2) and if it deems this a recruitment tool/push, then it doesn’t seem to understand what academics who are experts in their field are looking for in an employer. Now that Battistelli is doing photo ops with Cambodia, which incidentally has zero European Patents (in the past 8 years or so), it’s not hard to sympathise with EPO staff for choosing to leave. I, personally, would never wish to work for Battistelli, whose office already threatened me in spite of me not working for him (and I'm not even in the same country!). The only way is down (unlike the song) as long as Battistelli stays. █
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09.08.16
Posted in Deception, Europe, Patents at 11:19 am by Dr. Roy Schestowitz
Media as cheerleaders, not journalists
Summary: Managing IP (MIP), in addition to IAM, is pushing the EPO’s agenda, including the antidemocratic UPC, which MIP dedicated an entire event (even a couple) to
THE EPO is not a friend of Europe. Heck, it’s not even a friend of its own staff! See staff surveys about it.
Two days ago we wrote about MIP-EPO intersections (we refer to Managing IP as MIP for abbreviation) and earlier this week, just after Labor Day in the US (a long weekend), the EPO kicked off a series of propaganda (a seemingly new campaign). This means we’ll cover the subject more often and issue rebuttals more frequently than last month. We have a lot of material that we are eager to publish.
Battistelli is trying to grease up delegates/participants of the Administrative Council and pave the way to the UPC even if by truly nefarious tricks like entryism and lobbying. We won’t let him have his way. The guy is a liar. That’s an understatement actually. He’s thuggish, he’s manipulative and one might even say “corrupt” based on some of the recent appointments at the EPO’s management. The reason he has managed to keep his job (thus far, maybe until the term’s end) is a serious set of flaws in the EPC (which Battistelli ignores anyway) and the EPO’s detachment from national laws (Eponia makes up its own laws with no external review or discretion, then changes the laws as it goes along while management is allowed to break these laws).
Margot Fröhlinger (mentioned here for her UPC lobbying before) came from the EPO to MIP’s UPC advocacy event (there are actually two such events this week, for maximal impact). According to this MIP account (they have several), “Margot Fröhlinger believes UPC will go ahead with or without the UK. UK’s participation post-Brexit not a problem.”
Really? Will the EPO be lobbying with wishful thinking and self-fulfilling prophecy attempts? Again? Another tweet said: “Fröhlinger says there is a risk, no guarantees, but hopes CJEU will agree to UK participation in UPC.”
There’s also a photo in there. The EPO is a rogue organisation, so we are expecting it to game this debate and do whatever it takes to push forth such an antidemocratic UPC deal. It would push TTIP/TISA/CETA/TPP as well if it had to. ISDS would be very much in ‘the spirit’ of Battistelli.
Watch how MIP emphasises EPO views, which MIP entertains by setting up those two events. “That’s certainly one view,” it said. Well, good, so where are the opposing views? Oh, wait… that’s not part of the programme. They have essentially created a platform for EPO and UPC lobbying, trying to steer policy in the presence of people whom they try to influence. We saw that before in the US. We’ll get to that in a moment (IAM was responsible for that).
MIP then notes that “Winfried Tilmann of @HoganLovellsIP thinks if UK doesn’t ratify UPCA before Brexit, then door will be closed.”
Nice alarmism there from Winfried Tilmann, who is a Battistellite that mentioned earlier this year and at the start of the year. The truly ‘balanced’ panel of MIP sure begins to smell rather fishy. Is this a debate or an echo chamber? Maybe it’s more like a church where UPC is the undisputable religion.
“Lots of ‘different’ [sic] views on UPC,” claims MIP, but it just happens to be the case that all of them are in favour of the UPC, even though in reality the UPC would probably harm more than 99% of Europeans. No public interest groups are present (or speaking) at this event. When Managing IP says “Lots of different views on #UPC” it means it in the same way that Presidential Debates in the US, controlled and funded only by the two major parties, call the debates “different views” (it’s controlled, scripted, no hard questions and no absolutely public representation/intervention).
Going back to notable tweets, “George Moore of Sandoz: UPC without UK isn’t fatal.System beneficial. Cordula Schumacher: UK’s experience in early stages ideal” (assuming that passing the UPC would be “ideal”, which is in itself overly loaded and presumptuous a statement).
As expected, anti-FOSS and pro-software patents promotion creeps into this EPO-leaning event, in the form of FRAND. “According to Joachim Feldges, there is difference in opinion between German courts on Huawei v ZTE SEP FRAND guidance,” one tweet said. Another said: “Matthias Schneider of Audi: Needs to be clarity on what good value is re security & FRAND isn’t all about royalty rate.”
They are talking about SEPs, i.e. patents you are not allowed (or unable) to work around. We already mentioned how FRAND was on the agenda as well (before the event) and why it’s about software patents a lot of the time. “There is a view here that @EPOorg & @The_IPO are predictable on computer-related inventions. But be careful with drafting,” said another tweet. Just renaming software patents “computer-related inventions” won’t magically make them patentable, as software patents are clearly NOT legal in Europe. Here is what the FFII’s Benjamin Henrion said about it: “yet another quote to show that UPC is about swpats [software patents] after all.”
Mind the fact that the EPO is now promoting next week’s event about software patents (in part). The EPO is going to America! Yesterday it said: “Why is it important for US industry to protect its inventions in Europe? Find out at this event”
Today it said: “Join this event to find out about the differences between US & European practice for ICT patent applications” (“ICT” is just the latest weasel word/phrase).
Going back to the MIP event, this tweet said: “Here is what Graham Burnett-Hall of @marksandclerk thinks of BREXIT. He remains optimistic on UPC” (picture/photo included in there).
Wow, what a ‘diversity’ of views. Everyone is in favour of UPC (as intended), even if they know it’s unlikely to ever happen. Someone left the following comment in Techrights regarding this event, possibly conflating IAM with MIP, but here is what it said:
{i}[IAM]“We’re not in the business of promoting #UPC or #Unitarypatent – just providing a platform for discussion!”{/i}
Well, they’re right. They get paid for,prviding a meeting space for discussions among IP professionals.
The issue is extremely few want to discuss the advantages of “status quo”, which is incidentally also the current status “post-brexit-vote”. There is not more money for those advocating this position, but there may be more money in it for those who hope to profit from a change. So one side sees a chance to “invest”, the other sees no improvement in their position, so no need to invest, as any investment into defending “status quo” can never earn that money back.
So only one side will come in large numbers…
So of course the discussions will go towards one topic, and within that one topic be very one sided…
The IAM panels will include the “UPC will not happen” opinions, but those will usually be brushed aside for being “opposed to changes”…
Also, too me it felt like they do not want to have a look at real politics. The current brexit situation does not allow politics to do much in this regard right now, but this seemed to be out of grasp for their minds.
They want a change to happen, and find it difficult that politics sometimes cannot and will not listen to “expert”.
And the VolksWagen diesel scandal showed us where it goes when politicians listened too long to the opinions of “experts”…
Whoops, I am mixing topics again….
Yes, it wll be one-sided, but there will be a few who are of the opinion to stop UPC for the time being,and continue discussions once Britain has finally filed their article fifty notification or officially decided to stop the whole brexit discussion. But no discussion=no money for panel organisers. So IAM will continue holding panels. And advertise them. I just wishes they would try to attract a discussion starting from the other side.
E.g. “UPC is dead, what now?”
The discussion in situ may still go the old ways, but they would appear less biased.
Here we have Maarten Mooij of Nokia lying. It’s well established that the UPC would help patent trolls (they too know it!), yet this tweet said: “Maarten Mooij of Nokia doesn’t see a major change re NPE activity in Europe if UPC comes into force. Depends on case law though” (NPE is a euphemism for troll; Nokia itself helps patent trolls right now, as we last covered earlier in the week).
Jumping the gun again (as there's no UPC_, here is another UPC ‘genius’. “David Barron @GowlingWLG_UK: panel on SEP litigation in Europe, incl how it might play out in UPC (if)” (photograph in the tweet).
Nice propaganda event MIP has got going on for Battistelli in both France (his home country) and Germany (home of the EPO). Does all this lobbying pay well in attendance fees? Maybe favours in the long run? We don’t know for sure, but they’re now running a series of puff pieces with Battistelli. From the “litigation panel,” says this morning’s tweet, we have “Joachim Feldges @AllenOvery estimates there are about 100 SEP cases pending in Germany” (see what we wrote about SEP above).
That’s good for the patent litigation industry (patent law firms), no doubt about it. It’s also good for the patent mafia, firms like Sisvel that raid expos/events and confiscate (or steal) products “because patents!”
Is this the vision of Europe that we want? Where is the public in all this? What we have MIP presenting to us are very large corporations, their patent lawyers, and the EPO. Where are the rest of the European stakeholders? Maybe they cannot afford to pay over 1,000 Euros to attend a one-day event in which they cannot even speak (just listen). We wrote and complained about this a month ago.
Wise men and women are in the audience after all, but they’re paid to lie and promote the UPC. They can’t quite admit in public that the UPC is a sham. According to this: “In Munich for #EUPATENT16: no one in audience thinks that UK will ratify #UPC agreement”
Right…
Meanwhile in IP Kat Annsley Merelle Ward from Bristows (major UPC boosters) tries to create some more false hopes that UPC will happen, piggypacking David Davis and manufacturing a misleading headline (“Does David Davis want to ratify the UPC Agreement?”). Read the sole comment there from Ellie Wilson. It says: “I noticed that at the Managing IP European Patent Forum this week Margot Frohlinger of the EPO has suggested that UK could either join UPC via a separate agreement or under Article 142 of the EPC.
“This is not really news – in terms of the massive uncertainty, or the need for external agreement if the UK is to participate at all – as much as it is perhaps interesting because of the source.
“Maybe, maybe it justifies having a bit of optimism, but, like Amerikat, I’m not holding my breath.”
“No one except [the EPO's] Fröhlinger,” Henrion joked about (almost religious) belief in the likelihood of UPC. Fröhlinger is bossed by Battistelli who does not tolerate dissent (he has already proven this with extreme actions).
So what’s all this charade about and why are they not just going on stage (not audience) to acknowledge this pessimism? EPO and Team UPC (mostly self-serving litigators) will likely rename and redo UPC, then try to implement it without the UK. Nym-shifting or eternal morphisms isn’t new for for UPC. It has had many names and identities over the years, dodging criticism all the time. Battistelli has been promoting this since well before it was known as “UPC”.
Speaking of Battistelli, do rumours of a UPC based in Paris with Battistelli as its head not far-fetched after all? The above event is in France too and this tweet says: “Caroline Casalonga of Casalonga leading session on getting evidence in patent litigation in France/UPC” (photograph therein).
Here is why we think a lot of this charade is very closely connected to the EPO, and MIP isn’t just commissioning or organising such an event for spontaneous desires. The EPO retweeted its Managing IP puff piece (interview with Battistelli) a very short time after it had been published (maybe minutes). It’s like they had the whole thing timed and coordinated all along. Did it work as planned, Battistelli et al? An intersection between the event and this puff piece? They are going to cover the ‘social’ [sic] nonsense of Battistelli in future part/s. More lies, more money and power for Battistelli. Will some of this money ‘trickle down’ to MIP? The EPO certainly launched a well-executed (if not so shallow) propaganda campaign so we shall do a reactionary anti-propaganda series of posts.
Regarding claims that AMBA’s views were ignored by MIP (while Battistelli continued to lie about the boards), MIP responded (via) to one who asked: “I heard also you interviewed amba. Will you be soon publishing it?”
“We haven’t interviewed AMBA yet,” MIP replied, “but have written to request an interview – watch this space.”
Well, perhaps they need to ask the EPO for permission. After all, reality check with AMBA might interfere with Battistelli’s interview (the already-published part 1 in particular).
For those who think that the EPO’s latest wave of propaganda involves only MIP, think again. A self-selecting survey (just ~600 people who are already inside the IAM cult) is being used to spread EPO propaganda about patent quality. They are relying on a very small and biased sample set (population), as any scientist with the faintest clue about statistics should be able to immediately tell. The editor in chief of IAM published this piece, not disclosing the very close if not incestuous relationship with the EPO. “In order to get a better idea of why the EPO does so well and the USPTO lags behind,” he wrote, “earlier this year we worked with Professor Colleen Chien of the Santa Clara University School of Law, and a former White House senior IP adviser, to develop a follow-up survey designed to drill deeper into our readership’s opinions of both offices. During June readers were emailed and invited to take part. We got approximately 650 responses. Below Colleen Chien summarises some of the main findings.”
With “approximately 650 responses” from people who are self-selecting, how legitimate is this bound to be? Also, they are not even sure how many people exactly have participated (notice the word “approximately”)? What kind of survey is uncertain about th size of the data? it’s just very easy to rig such things, e.g. to select who to E-mail and how often, in order to get the desired outcome, never mind loaded questions or push-polling. Remember that IAM has EPO money on its table, so will it risk delivering an output that’s not desirable to the Battistellites? We very much doubt that. By spreading a lot of money through PR agencies, the EPO has polluted a lot of news sites and metaphorically poisoned the well. IAM is not a legitimate source of information about the EPO and we are going to show that behind the scenes Battistelli uses this propaganda from IAM, and occasionally drops citations into letters to “media partners” (i.e. paid-for coverage) of the EPO in support of his ludicrous claims, just like the most dishonest politicians out there.
Going back to MIP, they don’t take our criticism too well. They offer so much “balance” that their STARS account blocked me in Twitter. They don’t like opposing views, do they? They blocked me in Twitter not because I abused them (I didn’t even talk to them!) but because I highlighted their bias by linking to things they said. They want invisibility. They just don’t want me to see what goes on in their UPC events. As I put it yesterday, “Managing IP is going to learn, just like IAM, that blocking someone from visibility is 1) ineffective 2) increases criticism 3) futile” (someone then added: “4) a mark for very poor journalistic performance”).
With advocacy of the antidemocratic UPC and a human rights violator, Battistelli of the EPO, we cannot assume that information from MIP can be taken without a grain of salt. Earlier today we showed how it published a “Sponsored Post”. That was last night! MIP is rapidly going down the bin, along with IAM (it too does sponsored posts)…
The timing of EPO propaganda is perfect because they try to push several objectives/talking points ahead of October’s meeting of the Council. They not only dump Battistelli lobbying on all Twitter followers but they are also still 'spamming' universities. Here are the latest 5 examples [1, 2, 3, 4, 5]. They don’t quite realise how foolish it makes them look. They are wasting millions of Euros on this nonsense.
Regarding Battistelli’s “Social Conference”, one EPO insider sent us the following (to illustrate the attitude of staff towards Battistelli these days):
Dear Roy,
The mere thought of it makes me feel sick…
This is no joke: the EPO will organise in October a “Social Conference”. They dare! After having disciplined dozens of staff, fired staff representatives and union officials, downgraded others, put thousands under huge pressure, deny sickness to many, refuse promotion to pregnant women and soon (according to well placed insiders) stop granting social leave which are in the Codex with all sorts of “friendly advise” such as “think of your career….”.
The official EPO propaganda has it (quote verbatim):
“The conference will focus on all social-related aspects and will be based on the outcomes of the Financial Study, Social Study and OHSRA currently under finalisation. Themes to be discussed will be Social Dialogue, Financial sustainability and social package,
Well-being at the workplace, and Change management and readiness to change.
All interested stakeholders will be invited to participate: representatives from the Office’s management and staff, as well as members of the Staff Committees and recognized trade union, and delegates of the Administrative Council. To facilitate the discussions and interactions, general presentations by the consultants in charge of the studies will be followed by 8 to 12 thematic workshops.
The Social Conference will take place in Munich, Isar building, over the course of a full day on Tuesday 11 October. It is a unique opportunity for a wide range of participants to assess and discuss the challenges faced by our Organisation. If you wish to participate in the conference, please contact your line management by 14 September at the latest as places in the meeting rooms are limited.”
HERE THE RESULTS OF THE 2016 TECHNNOLOGIA OFFICE WIDE SURVEY (AFTER 2010, 2013 WITH THE SAME QUESTIONNAIRE)
https://suepo.org/documents/43311/54961.pdf
https://suepo.org/documents/43311/54951.pdf
So not only does the EPO ignore the Technologia survey (from a renowned French consulting which worked among many others on France Telecom’s debacle, the Renault Technopole one) but when they are about to sack Laurent Prunier, Central Staff Representative and SUEPO Official in TH (and perhaps others who too are in the death row, in particular in TH), they dare to write about “well-being at the workplace”.
Wicked!
Furthermore, to illustrate the attitude of staff towards Battistelli, one person has just come up with the following ode that spells out EULOGY:
E UREKA was the former in-house publication
U ncensored, informative and short of fabrication
L atest Gazette, lots of pictures of our Batters
O nce again Pravda style, credibility in tatters
G lorified half-truths, with a hand of sleight
Y es, only the obituaries seemed to be dead right
The “usual problem,” one person explained, is that “the EPO is not part of the EU…” (“…but a part of Hell!” added this remark about it). Here is a new comment from Tuesday. It too speaks about the structural deficiencies:
The AC has a clear conflict of interest, which under a different situation would be considered intolerable. But who cares about the EPO? It is a bit like putting the CEOs of Samsung, LG, Nokia etc. in the governing board of Apple. It is clear that this would not work to improve Apples success, and it is the same at the EPO.
The ILO does not respect the right to be heard, because she does not hold hearings even when they are requested, but this is apparently legally acceptable. Who cares?
I believe the drafters of the EPC were honest and upright men who could not envision that a generation would come after them who had a different moral standard.
The ILO is the only independent review employees of the EPO have when in dispute (the first two instances are internal and cannot be considered independent).
But hey, if you get paid a lot you should just accept being robbed of your rights…. so stop complaining, you are still not doing so bad. “We consulted you (according to the management of the EPO), even though the representatives did not agree to the changes requested, “so we can change your work contract, rules an regulations. WE only need to consult you, it is nowhere written that you have to agree for us to introduce changes which are detrimental to you”. In a national setting this would be unacceptable, and an employer would be taken to court. But not so with the EPO because the EPO has immunity.
But no immunity is absolute, and should never be, because absolute immunity corrupts.
We invite feedback and information regarding the EPO even through we already have plenty which we intend to publish soon. September is going to be a very busy month. █
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Posted in America, Courtroom, Patents at 9:31 am by Dr. Roy Schestowitz
“Look! Dead dolphins!” (how the patent microcosm tries to frame the demise of bad patents)
Summary: With the Patent Trial and Appeal Board (PTAB, part of AIA), the International Trade Commission (ITC), the Court of Appeals for the Federal Circuit (CAFC) and even the Supreme Court (SCOTUS) showing disdain for software patents time is running out for patent examiners and lower courts that still pretend such patents sometimes have merit
THE USPTO‘s examiners now face the challenge of PTAB. It’s professionally embarrassing to be proven to have granted patents in error, so the examiners cannot simply ignore Alice, not any longer. “On USPTO Oversight,” Patently-O wrote yesterday: “I am generally in favor of additional Congressional oversight of the U.S. Patent & Trademark Office – this is especially true because members of the House and Senate Judiciary Committees tend to be smart, well informed, and act with intention to improve the patent system.* Although partisan politics do come into play, much of the focus tends to be on real issues and real solutions. The oversight process forces additional USPTO transparency and is the standard mechanism for getting information from Executive Agencies. On this point, I will note that the information exchange is often done in the background lead-up to the actual hearing — thus, although a hearing might not be too exciting or informative, the associated deadlines force the new communications.”
We are overwhelmingly in favour of having oversight affecting examiners at every patent office, as otherwise the profit motive takes over and quality control is virtually abolished (until the late and expensive stage which is a lawsuit in the court/s). Management of every patent office too needs to be subjected to scrutiny. The USPTO’s former Director, for example, has become somewhat of a lobbying giant, disgracing not only the Office but the entire system (he is now lobbying on behalf of large corporations in favour of software patents and against Alice, i.e. against a Supreme Court‘s ruling).
“Management of every patent office too needs to be subjected to scrutiny.”According to Mr. Loney from New York, “143 PTAB petitions [were] filed in August, down from 157 in July and 2016 high of 176 in June. Monthly average for year now 140.8 petitions.” Here is his full analysis (partly behind paywall), showing that PTAB activity has been increasing over the years, throwing out a lot of software patents (which courts would throw out anyway). As time goes on it ought to become apparent also to holders of such patents (not just their rivals) that these patents are worthless piles of paper and not even PTAB will be needed to prove it, let alone the courts. “The number of Patent Trial and Appeal Board petitions filed in August was slightly above 2016 average,” Loney wrote. “The month also saw notable Federal Circuit decisions on common sense, motions to amend and claim construction [...] The 143 Patent Trial and Appeal Board petitions (PTAB) filed in August was down from 157 in July and the 2016 high of 176 in June. The monthly average for the year is now 140.8 petitions.”
Up-to-date statistics regarding software patent invalidations in the courts of the United States (mostly lower ones, i.e. friendlier to plaintiffs than CAFC) got published last night. “June, July and August showed an uptick in the number Section 101 decisions from April and May, the majority of these being motions to dismiss and judgments on the pleadings,” the expert notes (he has been tracking this closely for years). “The rates of invalidity holdings continue to be steady: 70% overall, and 66.3% in the district courts. Success on motions on the pleadings is up to 68.1%. We’ve recently started tracking ITC proceedings as well, as shown above in the last row. Three of the five holdings of invalidity recorded above involved direct competitors and counterparties, Fitbit and Jawbone. In March 2016, Fitbit invalidated Jawbone’s fitness tracking patents in an ITC proceeding brought by Jawbone (ITC 337-TA-963). In July, Jawbone returned the favor and successfully invalidated Fitbit’s patents (ITC 337-TA-973); the ITC judge in the latter decision even relied upon Fitbit’s arguments that it made in its own motion against Jawbone.”
“That seems like wonderful news, but sites of patent law firms portray that as terrible news (to them it is).”We previously covered these rulings from the ITC, which certainly seems to be software patents-hostile. According to this new article, “above 90 percent” of patents on payment technologies (such patents are a subset of software patents) are dead/dying. Thanks to Alice! “Since Alice,” says the article, “the reject rate for patents for payment technologies is above 90 percent. This is a development that many contend has been crippling the innovation in this space. However, one company CardinalCommerce has secured one, and according to many lawyers, if someone can manage to get an e-commerce patent in this environment, it is worth a lot.”
That seems like wonderful news, but sites of patent law firms portray that as terrible news (to them it is).
Here is a new paid-for article, published in MIP by the patent industry last night. Having seen MIP becoming somewhat of a Battistelli/EPO platform, we worry they’re going to do more of those “Sponsored posts” (at least this time there’s disclosure). This one particular article speaks of telematics patents post-Alice and says “the patentability of such inventions could be impacted by the Supreme Court’s 2014 decision in Alice Corp Pty v CLS Bank Int’l, because inventions that arguably can be performed by humans are not patent-eligible subject matter under 35 USC § 101 (134 S Ct 2347, 2354-55 (2014)).”
Well, so be it. These patents should never have been granted in the first place. If patents (applications) never get granted, then they cannot be used for litigation or even for shakedowns, where the accused fears having to go to court not because of the outcome but because of the legal fees, obviously prohibitive unless one works for a large company. █
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Posted in Europe, Patents at 8:46 am by Dr. Roy Schestowitz
Summary: A programme wherein the EPO gives huge amounts of data, but only at a price
THE EPO has no shortage of scandals. We just have a shortage of time to cover them all. Privacy scandals alone are humongous and we mentioned violations that relate to medical data protection very recently and again two days ago.
One reader drew our attention to this new article from Switzerland (“Sur le Net, les entreprises se montrent trop naïves”). Translations would be very much appreciated, but we got the gist of it. “A Swiss based company named Centredoc bought back in 2015, 90 millions of data from the EPO,” one person told me a couple of times. “En Suisse, Centredoc a acheté, en 2015, les 90 millions de données de l’Office européen des brevets,” put in another language. “In general,” this person added, “they talk about storage of sensible information related to patents” (sounds familiar).
I asked, “does it say what data? Could use a detailed summary…”
In general, we kindly ask readers to become familiar with the following articles (published around last Christmas, so not many people paid attention):
- Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
- Europatis: “Turnover of €211,800 and Zero Employees”
- Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
- Summary of the EPO-Europatis Series
- Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO
“Suffice to say, this favours deep-pocketed companies and countries like Switzerland.”Having asked for additional information about this article from Le Matin Online, we got told that the “EPO sells Patent Data” and received a copy of anonymised communication (with hypos corrected), namely:
Dear *****,
The EPO sells the data to data providers on a marginal cost basis. We have big hosts, SMEs and natural persons as customers. The EPO encourages the use of the data and is happy about an active patent information market. The strategy was not on exclusivity … AND I think that this right.
You can find the various products in the EPO price list: http://documents.epo.org/projects/babylon/eponet.nsf/0/0B52985F1EFEBCBBC12574EC00263E07/$File/epo_patent_information_price-list_08_2016.pdf
Most probably the mentioning is about the mother of the databases: DOCDB
Please contact if you want to know more about this….
Best regards
******
Suffice to say, this favours deep-pocketed companies and countries like Switzerland. What ever happened to patent neutrality? █
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