07.24.16
Posted in America, Apple, Asia, Europe, Patents, Samsung at 4:09 pm by Dr. Roy Schestowitz
“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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07.22.16
Posted in Europe, Patents, Rumour at 10:05 am by Dr. Roy Schestowitz
Wouldn’t that be metaphorical given Battistelli's plan (all along) for the boards and mistreatment of ill staff?
Reference: The Killing of Psychiatric Patients in Nazi-Germany between 1939 – 1945 [PDF]
Summary: Not only the Staff Union of the European Patent Office (SUEPO) is under severe attack and possibly in mortal danger; the increasingly understaffed Boards of Appeal too are coming under attack and may (according to rumours) be sent to Haar, a good distance away from Munich and the airport (half an hour drive), not to mention lack of facilities for visitors from overseas
SUEPO (the only dominant EPO trade/staff union) leaders must be busy with their legal cases against EPO management (one to start/resume upon appeal later this year in the Supreme Court at The Hague, the other one having just started exactly a week ago), so it is not saying much about the monumental injustices at the EPO, at least not publicly. Having said that, anonymous voices continue to appear at IP Kat‘s comments, in spite of lack of coverage there about the EPO’s situation (nothing for weeks now).
A few comments there are floating new rumours about the fate of the appeal boards after they got punished for disloyalty (to Battistelli, not to the Office or the Organisation). Much of this began with a discussion about the UPC, which all along threatened to make the appeal boards obsolete, in due time. The UPC was first brought up in light of the decline/demise of justice at patent courts, as we noted a couple of hours ago (tackling patent examination justice). To quote the whole comment:
What good will it be to them to have good patents if their competitors can shut them down with vague and broad patents at the UPC?
A very important fact has been forgotten in Merpel’s article: the president of the council did not distanciate himself from the interference from Battistelli. Look at the text of the decision. Basically, what this means is that both the council and Battistelli view the enlarged board of appeal as subordinate to them and not as independent. The council did not object in their latest session.
In plain words: the enlarged board of appeal was expected to simply rubber-stamp a decision already taken. Even if the investigation was fraught with problems as some of the earliest comments in this thread noted.
These are the standards of justice of Battistelli and, we now understand, from the council. That is basically what the decision says.
Now, the all new UPC is created behind closed doors by the very same persons. How high do you expect the judicial standards of the new court to be?
Bonus question: how do you expect your clients to protect themselves against future decisions of the UPC?
There is a direct response to the above concerns about the UPC. “The danger comes when a court (UPC or any other) starts with a presumption of validity, just because it’s a European patent,” the following comment notes, reminding us of what happens in the USPTO and US courts, especially the ones in Texas:
Not sure I follow the logic here. I’m not saying that the national route produces stronger patents. I’m saying that, whereas the EPO previously provided a useful due diligence service (search and examination), this has now been diluted to the point where the national offices offer a competitive and lower-risk alternative.
Crap patents are fine, just as long as everyone recognises that they’re crap. The danger comes when a court (UPC or any other) starts with a presumption of validity, just because it’s a European patent.
An anonymous response to this said:
Crap patents are not fine, even the USPTO is getting convinced. And if the UPC independence is of the same kind as the enlarged board of appeal indepence, that is not fine either.
The article above describes a very serious problem. In most countries, interfering with the independence of justice would trigger a constitutional crisis.
In response to that, once again, the Turkey analogies came up:
The article above describes a very serious problem. In most countries, interfering with the independence of justice would trigger a constitutional crisis.
Apart from Turkey where a constitutional crisis triggers an interference with the independence of justice … 
“The Boards of Appeal are now paying a very high price for asserting their independence,” noted the following commenter, correctly insinuating that this ‘exile’ (not as far as Vienna as feared last year) is a sort of punishment:
The Boards of Appeal are now paying a very high price for asserting their independence. Following the approval by the Administrative Council of the reform proposed by Mr Battistelli, they will firstly be exiled to a corner of the Munich area, viz. Haar, which is very well known for its psychiatric hospital, possibly a humorous touch introduced by the president.
Secondly, renewal of the members’ appointment every five years, which used to be the default (in fact, it has never happened that a member was not re-appointed) is now subject to, among other, a performance evaluation. Coupled with another element of the proposal, i.e. to increase the cost coverage for appeals from 6,3% to 20-25%, firstly by increasing the members’ productivity, there will now be a high pressure on members to focus on production if they don’t want to lose their job. And if they lose their job, taking up another job will now only be possible after approval by the Administrative Council.
Finally, Board of Appeal members will be excluded from “step advancements”, which are open to all other staff at the EPO, i.e. the members’ salaries will be frozen.
It was already known that if Mr Battistelli doesn’t like you, he will hit hard. He has proven this again with the reform package for the Boards of Appeal.
Here is more about the Haar rumour:
Do you have good reason for believing that the BoA will be moved to Haar?
EPO – CA-43-16 Rev. 1:
“As a main precondition, criteria like good traffic links and appropriate accommodation standards were taken into account”.
Although I do not know much about it, I doubt that Haar would satisfy this main precondition. For a start, there appear to be very limited hotel and restaurant facilities in the immediate vicinity of the S-Bahn stop, which is itself a significantly longer journey (by S-Bahn) to / from the airport.
Also, is there not going to be any consultation with users about this? If the decision is Haar, then I can envisage the users getting hopping mad about this – especially as they would be paying significantly more in appeal fees for the “privilege” of having an additional journey out of Munich centre to stay in hotels that may be unappealing to some. And all to address what the users have consistently argued was a non-issue, whilst no real progress (in fact, quite the opposite) has been made in addressing the substantive issues relating to the independence of the BoAs.
I know that a proposal for a new BoA location has to be put to the Budget and Finance Committee, but am unsure if the AC needs to take a formal decision upon that proposal. If so, then it looks like users will need to engage in intensive lobbying of AC representatives if the proposal really is for somewhere outside of Munich centre.
And responding to the above one person wrote:
Like someone wrote above, GET REAL.
What consultations were there in the first place regarding the so-called “reform” of the BoA? What was the public’s input in that hastily load of garbage pompously called a “plan”?
Were the outcries of the public, judges, etc. heeded when a BoA member was given the virtual sack for what was apparently a crime of lèse-majesté?
The latest comment was posted this morning and said:
If the rumours are true, it looks EPO will be gaining an office that is outside of Munich city centre and that (compared to the Isar building) is more difficult for visitors to Munich to reach and is by far less well supplied with hotel accommodation, restaurants and other facilities that such visitors will need.
If the EPO management were being truly practical about this, then they would decide that such an office really ought to be occupied by the department(s) of the EPO that receive the fewest visitors. Given that pretty much everything that the Boards of Appeal do involves summoning visitors to Munich, I am certain that it makes no sense whatsoever to move them to Haar.
With this in mind, if the EPO president really is determined to physically separate the two current residents of the Isar building, then logic dictates that it really ought to be the other resident (that is, the president himself) who moves to Haar. Anyone up for lobbying the representatives to the AC to vote for this alternative?
Well, “lobbying the representatives to the AC,” as the above put it, might be an exercise in futility given their demonstration of (almost) blind loyalty to Battistelli in the last AC meeting. One person earlier on wrote:
The Enlarged Board of appeal did not rubber-stamped the decision that the president and the council asked them.
Probably for this reason they are going to be moved, although several suitable buildings are available in Munich, to Haar, a village outside Munich mostly known for its lunatic asylum.
Next time they will think twice before taking a decision that does not please BB or the council.
So much for the judicial independence.
There is no judicial independence and there is no justice at the EPO anymore. To make matters worse, as one commenter put it:
It seems that some applicants have their offices in the same building complex.
The board members will improve their perceived independence by discussing the inventions directly with the inventors at lunch.
Yes, exactly. What a horrible move that would be. Instead of sending the boards to Haar maybe it’s time to send Battistelli to Haar. As one of the above comments noted, Haar “is very well known for its psychiatric hospital,” which sounds like something Battistelli could use. They can give him some toys to break rather than let him break people (and lives or even families as per the recent survey) at the EPO. █
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Posted in Europe, Patents at 9:19 am by Dr. Roy Schestowitz
Another French term in Benoît Battistelli’s EPO after his de facto coup d’état
Reference: The Intercept (among many more at the time)
Summary: Public responses to the role played by Albert Keyack on behalf of the United States inside the European [sic] Patent Office
TECHRIGHTS is not a political site in nature, but sometimes it’s impossible to avoid a little bit of politics. Half a decade ago we wrote about the Brazil-based US Ambassador Sobel (now Republican fundraiser) lobbying/working for Microsoft in Brazil in his capacity as a diplomat (Microsoft Brazil President at the time was Michel Levy) — a subject on which we expanded in later posts on the subject, citing diplomatic cables leaked by Chelsea Manning quite shortly thereafter. Corruption levels in Brazil are relatively high and some people try to capitalise on weak regulatory powers. It kind of sounds like Benoît Battistelli and his EPO cronies, but it’s not. We used to say that the only European thing about the European [sic] Patent Office is the staff, but right now even the (external) PR team belongs to a US company (meddling inside European media) and some of the staff — at partial capacity at least — is from the US.
Days ago we wrote about Albert Keyack's new role at the EPO (announced only internally). Keyack is not an EU national. The following comment cites Techrights and says:
Sovereign principality of EPOnia appoints consul to the United States.
My mind is so boggled that it’s becoming numb.
Well, Battistelli breaks the rules, including his very own Code of Conduct, so the above isn’t thoroughly shocking. What’s interesting are the following legitimate points about the sovereignty of the EPO and issues pertaining to loyalty. As one person put it, “could he rather be the US envoy to the province of EPOnia, like Rome or Imperial Britain” (as Battistelli serves the 1% and thinks of himself in Napoleonic ways, the analogy seems apt). Here is the comment in full:
Nomination of Albert Keyack als “EPO Attaché”:
Keyack was reporting from the US Embassy in Brazil as least as late as May 2015, and had an E-mail address from the State Department. That was only one year ago.
The tone of his report linked above reflects the orthodox US foreign policy on “IP”, and Keyack’s affiliation is given to be with the USPTO.
It is rather ironical that the President who wants to control for two full years the lives of anyone “disloyal” enough to leave the EPO actually hired someone whose was serving a “competing” patent office. Isn’t there a line somewhere in whatever is left of the Codex about not accepting any instructions from foreign governments?
Or is the fellow hired on a service contract concluded with an entity created ad hoc for this purpose?
Whose interests is he actually representing? Europe’s? (And then, what is that position, and who defines it?) EPOnia’s? (ditto) European or US industry? Small applicants?
Or could he rather be the US envoy to the province of EPOnia, like Rome or Imperial Britain sent governors to their vanquished peoples? (If then, why should he be paid by the EPO?)
The President does have a little leeway under the Codex to appoint staff under the EPC from states which are soon to become EPC signatories. Could the US accede the EPC? Is EPOnia about to be moved somewhere in Virginia?
Here is another comment which explains why it’s improper or inappropriate:
I thought the ServRegs forbid to hire nationals of non-EPC member states (actually, other way around: allows only hiring of employees with a nationality of member states)…. The last time I checked, the USoA was not a signatory of the EPC…
But then, this person is granted an easy income the next few years, for virtually nothing. Whatever he does will not influence filing strategies anyway….
And since he’s neither French, Corsican, or Croatian, nepotism seems to be less of a problem this time….
Man, I chose the wrong career… But then, I love my job…
Incidentally, in response to “Use of English as an official EU language” (by CIPA) Benjamin Henrion wrote “as long as other languages are not discriminated like for the horrible “automated translations” Unitary Patent deal.”
Well, the EPO’s management now brags about US stakeholders being dominant, even if no country in ‘mainland’ Europe has English as its main language (only a few islands do). MIP’s latest catchup with Canada on trademarks and patents speaks about “Brexit putting the brakes on CETA” and says (the complete summary of the latter part): “A dismissal of a suit against Pfizer indicating consumers cannot be compensated for expenditures on invalidated patents, the NAFTA arbitration hearing of Eli Lilly’s complaint against the government, IP agents getting confidentiality privilege, the Federal Court awarding Janssen nearly C$20 million, and Brexit putting the brakes on CETA were among recent Canadian patent stories” (Brexit also undermines the UPC, as we noted here many times before).
Well, even after Brexit (assuming it happens) the US is working to impose TTIP/ISDS on Britain, reveals the latest article from Dr. Glyn Moody. It’s not hard to see who often holds the leash. We’ll say more on that in our next post. █
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Posted in Europe, Patents at 8:25 am by Dr. Roy Schestowitz
Arrogant and abusive top-level management a major culprit
Summary: Public comments from anonymous insiders serve to highlight a growing crisis inside the European Patent Office (EPO), where experienced/senior examiners are walking away and leaving an irreplaceable bunch of seats (due to high experience demands)
THE EPO is in great danger because the people who now run it only care about short-term gains and are willing to destroy the Office (and the whole Organisation) in the long run if that personally suits them better. It’s a question of personal, institutional, and collective accountability. Both Benoît Battistelli and Willy Minnoye (hated even by the Directors, we've been told) are already in retirement age and accordingly, they were not supposed to be given the positions they now hold in the first place (as per the rules/guidelines).
What the heck is going on inside the EPO and what happened to the EPO so many of us were once so proud of?
The following comment makes the point that new recruits take a long time to be productive and for a long period of time they actually slow down their colleagues, meaning that they can either do very little (while on probationary employment period) of just grant lots of patents with minimal examination so as to satisfy Battistelli’s appetite for ‘production’ (as measured by number of grants, which is a terrible yardstick). Here is the comment in full:
Interesting timeline. When are the new recruits expected to start making a positive contribution?
In an area as complex as patents, my own experience teaches me that new recruits usually decrease productivity for quite some time (approx. 1 year). Assuming that it will take 6 to 12 months to recruit the numbers being targeted, that means that the management is effectively expecting the increased capacity provided by the new recruits to enable the backlog to be completely eliminated within about 2 years. Is that at all possible, do you think? Or is this just yet another indicator that quality will go out of the window?
On Wednesday the EPO made it rather apparent that it is unable to recruit the type of people it is looking for, having lost a lot of its talent (as insiders openly admit) and lost public respect. They’re actively lying to staff about it, but the truth of the matter is, the EPO is no longer an attractive employer. The EPO asks: “Know any engineers or scientists interested in joining an international team at the forefront of technology?”
Well, even if I knew of one, I would not recommend setting a single toe in Eponia, seeing the kind of mess Battistelli and his henchmen have sown there. It’s utterly scary and even SUEPO publicly warned about it. It said that the EPO’s management (or HR department) should be more honest/upfront about what it means to join the EPO (potentially ending up unable to find a job for years thereafter, under presidential sanctions).
Here is an EPO sceptic/apologist writing:
I see comments about overrecruiting, inflated production demands for newcomers, contracts for examiners.
It is a pity that there are no numbers attached to these allegations, no evidence.
Could any of you shed some light on this?
As I see it, the EPO has almost 4500 examiners who work, more or less, 30 years as examiner.
Doesn’t this mean that you have to recruit 150 examiners per year just to remain at constant workforce?
Has any examiner been employed on a contract already?
I think it is great that the EPO finally is doing the work they have already been paid for!
The following very detailed comment certainly comes from an insider or a former insider, based on the broad knowledge and in-house terminology. He or she explains why this policy dooms the EPO:
In order to correctly train people at the EPO you need at least three years, and this does not mean that the cost put into training are recouped. It needs in my opinion at least another two years. If the search backlog has to be down by 2020, which means in 4 years, provided the candidates are numerous enough to fill all corresponding posts. One should rather think of 3 years, as any present recruitment efforts will not bring the candidates into the office before 2017.
Creating overcapacity is always dangerous. The only way not to have a permanent problem is to give those people a five year contract. For examiners this is ludicrous for the reasons given above.
So by 2022 those people will have to leave the EPO if they are not fired before. Good scientists and engineers are getting scarce on the market. The perspective of going to The Hague/Berlin or Munich and having to leave again is very high and not encouraging. For sure no scientist or engineer having a good job will leave it for a stint at the EPO, as this also means to transplant the family. The possible candidates will be newly graduates. And for those the grass will be always greener on the other side.
One way to recoup the training costs quicker is simply to lower the training level. And request people to produce in the first year as much as 2/3 of what an experienced examiner produces. Before BEST, training in search and in examination was scheduled to be 3 years for search and 3 years for examination. When BEST came, which allegedly was giving a gain of productivity of 18%, the training time was halved. In three years an examiner has to be a good searcher and a good substantive examiner, i.e. a jack of all trades.
The quickest way to catapult the production/productivity is to use BEST as best as possible (sorry for the pun). Carry out a search with no results and then a direct grant is at the end. If this is in the interest of the applicants, even the big ones, is doubtful. It is certainly not in the interests of the so cherished SME’s by Battistelli and consorts.
And here you have your answer about the quality of what will come out. Skip corners in training and the quality goes inevitably down.
But by then VP1 who only has a faint idea of what a search is as he only ever searched in paper, will benefit from a super pension, and will have been congratulated by the AC for being an extraordinary manager, with probably an extra bonus on top.
On top of this the boards of appeal are wilfully destroyed thanks to Battistelli and consorts, with the help of an AC lacking any spine. One wonders if the AC could even be compared to a spineless shell fish. At least they have a shell. The AC seems to be nothing more than mollusc pushed around by Battistelli and consorts.
It is sickening!
Regarding decreasing experience of examiners and directors who ‘fake ‘production and were promoted for ‘loyalty’, the following comment says:
I am not an examiner, but I have understood that all reference numbers for production have been abolished. In other words: the number of files an examiner is told to produce is entirely decided by his or her director. The director gives you a number at the beginning of the year and the examiner must bring that output in december. There is a formal complaint procedure, but it brings out the same number anyway.
We have old school directors close to retirement who are trying to keep the numbers somewhat reasonable. We have newly promoted directors who have been chosen for “loyalty”.
Newly employed examiners are on a probation period. They get a set of formal courses and then they get a number of files to output till the end of the period. If they don’t bring out the number, they don’t get the contract. I would think that most of them bring out a fairly large output already in the first year. I would expect them to contribute significantly to the reduction of the backlog soon.
The problem will be to get them. Who will be desperate or ignorant enough to come to the office knowing that there will be “overcapacity” in 4 years, that you may be prevented to work for 2 years afterwards and that the Council may change any regulations (including retirement and insurances) whenever they want? The pay may be ok for someone fresh from University, but is not much higher than other places in Munich and whatever career opportunities examiners had (like being promoted to the board of appeal) has disappeared.
The issue with artificial “targets” for examination are brought up in this comment which asks for further information or brings up half-rhetorical questions:
Thanks for the info. Would you happen to know whether the “production” targets for newly-appointed examiners are significantly lower than those of their more experienced colleagues? It would be insane for new recruits to have (nearly) the same targets as experienced examiners, but you never know with the EPO these days…
The response to this was as follows:
I don’t know, but I imagine the number depends on the director. This is why the problem is not out: there are no official instructions, it just depends on the hierarchy being “loyal”. Of course, they were chosen accordingly.
What you should also realise is that the system works entirely in one direction: Minnoye thinks aloud the figures he wants (say: divide the stock by 4 for 4 years…) and the hierarchy pass them down. Reportedly, with the new style of “loyal” directors, some examiners were presented with figures much higher than last year. Tough luck, they just have to comply or face disciplinary sanctions. If I understood correctly, in the next council Battistelli wants to make these dismissals a simple administrative measure.
How do you think we were able to increase production 15% last year with less examiners?
What I don’t understand is how they expect to recruit any people at all, but Minnoye probably has a plan.
Well, with staff suicides and other bad news in the press (the EPO spends a fortune trying to change the media and dilute it with paid puff pieces), how would they attract skilled examiners?
Well, one day in the future we shall give an example of stories of people who favour the UK-IPO over EPO for reasons to do with sheer incompetence at the EPO. It’s too early to write about this because there’s a dispute ongoing and we don’t want to compromise or interfere with it. In light of that consider the following new comment:
Meanwhile, while the EPO has been eroding its USP (excellent search and examination quality), external parameters have changed, and the national route is increasingly attractive. Translation is now very cheap. You don’t need a middleman in each country (at least not in most EU/EEA/EFTA countries), and most importantly you don’t get tied up in fatuous, artificial arguments with examiners who haven’t had time to consider the facts and arguments properly.
To end it with somewhat of a joke:
Secret FAQ …
would like to reassure any applicant that every application will get the same high quality treatment as before, yet we’ll by give more responsibility to the Division (read: pressure to the Division) to bring a case to a conclusion (under pressure).
Early Certainty sooner than you expected.
We need a new thread for this.
Well, as leaked documents serve to show, pressure is put on examiners to grant to Microsoft faster (demonstrating that the above observations are definitely true in practice). Sadly, the EPO sent me a series of threatening legal letters on this matter alone, after my earlier leaks had caused huge backlash from stakeholders.
Today’s EPO is the kind of employer that anyone with a clue would not join (it’s different if one is already there), unless one is fanatic about the “following orders” mentality.
Battistelli, a French republican, has cultivated a culture of fear at all levels (examination, administration, management) and even outside the Office, e.g. appeal boards and delegations. He ruined the whole Office and time will tell if the ‘old’ (widely-respected) EPO can still be salvaged somehow. We sure hope so. █
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Posted in America, Europe, Patents at 7:28 am by Dr. Roy Schestowitz
“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”
–IP Watch on Professor Joseph Stiglitz
Summary: Various bits and pieces of news regarding patents and their fast-changing nature in the United States nowadays
AS WE wish to resume our EPO coverage (there is a lot more material on the way), we have decided to lump together various bits of news from the (primarily US) patent system, subdivided below and split into themes.
BlackBerry Still Dangerous
When Canadian powerhouse BlackBerry introduced not only one but several Android-based phones were were rather relieved, as at one point several years ago it seemed like BlackBerry was slowly transforming to become a patent troll or preparing to sell its very many patents to notorious trolls (or patent assertion firms/entities, PAEs for short). BlackBerry, which is still struggling based on the number of sales, may somehow be bound to become like a patent troll, judging by this new report which makes the company (now run by a Turbolinux executive who previously sold out to Microsoft on the patent front) sound like a PAE. “He also hinted at a future based around brand and technology licensing,” says the summary. Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia). They can always try to blame such aggression on “shareholders!”
China Comes Knocking, Not Knockoffs
“Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia).”Yesterday my wife and I had lunch with a businessman who is a distributor of goods from Hong Kong, Taiwan and the Philippines. He warned about Chinese protectionism via SIPO and spoke about unusual restrictions, such as the imperative registration (can take about a year) in order to proceed to the simplest of enforcement inside China (even purely defensive enforcement in the face of counterfeiting or cheap imitations).
Put old stigmas aside for a moment. China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals. It’s not just on the defensive and increasingly it’s on the offensive. “Knocking out Chinese patents may be a lot harder than you think,” IAM wrote the other day and Dr. Glyn Moody, citing his colleague (article from 6 years ago), says “Just As We Warned: A Chinese Tech Giant Goes On The Patent Attack — In East Texas”. So, how is it working out for multinational US companies which relied so much on the USPTO and faithfully (or blindly) trusted it for protectionism? “Techdirt,” Moody explains, “has been warning for years that the West’s repeated demands for China to “respect” patents could backfire badly. In 2010 [before Moody wrote for Techdirt], Mike [Techdirt founder] pointed out that Chinese companies were starting to amass huge patent portfolios, which were soon used as weapons against foreign firms operating in China, most notably Apple.”
“China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals.”Based on articles like this new one, not only Huawei is suing; it is also being sued, this time by Samsung (from Korea). Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone. IAM seems to have taken an interest in many east Asian markets recently; one new article is titled “Korea’s antitrust watchdog hints Qualcomm can expect another near $1b fine in patent probe” and another is titled “Transpacific denied Enfish lifeline as Taiwanese companies’ NPE experiment hangs in the balance”. These are IAM’s latest attempts to float software patents because of an old patent case involving Microsoft. To quote: “Sensing a glimmer of hope from the US Federal Circuit’s judgment in Enfish v Microsoft – which went some way towards clawing back patent eligibility for software inventions in the aftermath of the US Supreme Court’s ruling in Alice – Kinglite filed a motion asking that the Central California court to reconsider its decision on the invalidity of the ‘304 patent. However, this was rejected on the basis that Kinglite’s patent does not “disclose any of those mathematical algorithms that actually represent an application of the ‘abstract’ idea of securing the BIOS through authentication, nor a new concrete means of applying those algorithms… [unlike] the patent in Enfish which apparently disclosed a new method of building a database”.”
Enfish does not really change much, but IAM would use anything it can to promote the interests of its paymasters, often unproductive (or counterproductive) patent parasites like this one it has just written about.
USPTO Wants ‘Certainty’
“Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone.”Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried. Two more articles have been published about the efforts to trigger changes with a new memorandum [1, 2]. The latter says: “The extent to which these disparate analyses can be reconciled will depend, of course, on future case law, leaving the question of subject matter eligibility in its current state of uncertainty.”
When the author (patent maximalist who shamed even a SOCTUS Justice) says “leaving the question of subject matter eligibility in its current state of uncertainty” the simplest translation is “leaving the question of subject matter eligibility in its current state of denying software patents.”
This is a subject which was mentioned here the other day, especially in relation to IBM.
Dying Software Patents
“Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried.”Upon reassessment most software patents are invalidated these days. There are some exceptions like the BASCOM case and patent lawyers love latching onto those. An article from Jason Rantanen (Patently-O) is an example of this bias among professors as well. He wrote: “Since Alice v. CLS Bank, the Federal Circuit has issued four opinions rejecting a lack of patent eligible subject matter challenge: DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014); Enfish LLC v. Microsoft Corp., 2016 WL 2756255 (Fed. Cir. May 12, 2016); Rapid Litigation Management Ltd. v. Cellzdirect, Inc., 2016 WL 3606624 (Fed. Cir. 2016), and BASCOM v. AT&T, with the latter three coming the last few months.”
Well, still, those are clearly in the minority and they come from a crooked court which is responsible for bringing software patents to the US in the first place.
Another software patent has in fact just died, thanks to Alice again. Patent Buddy wrote that “PTAB Holds Lottery Patent Claims Invalid under 101/ Alice: http://assets.law360news.com/0819000/819445/cbm2015-00105_termination_decision_document_36.pdf …”
“Another software patent has in fact just died, thanks to Alice again.”PTAB is very much dedicated to elimination of such patents because it has no incentive to empower plaintiffs, unlike CAFC. The US needs a lot less of CAFC (or anything like CAFC) and more of PTAB. Don’t be misled by all those spinners who equate PTAB with “death squads”. Patent law firms, for instance, still conveniently cherry-pick cases that support software patents (see “Another Software Patent Survives an Alice Challenge” by Seyfarth Shaw LLP). They put “abstract idea” in quotes (probably scare quotes, depending on style) and even add the word “alleged”, certainly not hiding their bias too well. To quote this latest ‘analysis’ (marketing): “In a rather complex case, Yodlee again focused on the definition of the “abstract idea” by the defendant. Many times, defendants frame the alleged “abstract idea” too broadly to improve their 101 invalidity argument, and courts or the PTAB find the definition is too broad. Other times, defendants frame the abstract idea too narrowly and courts agree with the defendant on the definition of the invention, but find such a narrow definition to not be drawn to an abstract idea. Here, the defendant framed the abstract idea in a manner inconsistent with the claimed invention, and the court found no apples to apples comparison.”
Improving Patent Quality
In our previous post we praised the USPTO (or PTAB by extension) for at least working to improve patent quality somewhat. Professor Crouch says that a new U.S. Government Accountability Office (U.S. GAO) report alluded to patent quality. “Patent Office Must Define and Improve Patent Quality” says the headline and the body of the short article says: “Regarding patent quality, the GAO suggested that the USPTO’s standard of patent quality should focus solely on the basics: defining “a quality patent as one that would meet the statutory requirements for novelty and clarity, among others, and would be upheld if challenged in a lawsuit or other proceeding.” However, patent clarity must be an important element of that definition.”
“For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).”This is good news. Compare that to propaganda sites like IAM where there is a new “REPORT” (i.e. paid-for marketing placement for a firm) titled “International report – Federal Circuit distinguishes between tests for obviousness and patent-eligible subject matter”. For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).
GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.
Using Taxpayers’ Money for Patent Stockpiling
“GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.”We quite liked IP Watch‘s article “Patenting By Universities Unhelpful, Paper Says; WIPO Programme To Be Reviewed” [1]. It was published a few days ago, just in time for IAM’s ‘report’ on Harvard University’s use of patents (granted using public money) to sue the private sector. IAM wrote: “Late last month Harvard University took the very unusual step of filing two infringement lawsuits against semiconductor manufacturers Micron and Global Foundries over their alleged infringement of two patents that are owned by the Ivy League institution. That in itself is a pretty rare occurrence – combing the Lex Machina database I found that Harvard has been a co-plaintiff on just one other patent suit since 2011, so it seems that this is the only case in at least the last five years that it has been the sole plaintiff in an action.”
This isn’t the first time that we write about universities getting aggressive with patents, not just selling patents to trolls who become aggressive with these (like Intellectual Ventures). What they do here is extremely unethical and should be grounds or basis for revocation of government grants. When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.
“When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.”In other IAM propaganda this week, watch this spin on patent litigation decline in the US. So patent trolls, which rely on software patents more than most (and pay IAM), lose momentum. A cause for celebration or for sobbing? Probably for sobbing at IAM. Bezos-owned news site Washington Post meanwhile reports, somewhat contradictorily (in light of the latest figures from Lex Machina), that “Patent lawsuits swell and watchdog says the government is to blame” (they actually decreased year-to-year in the past few months). To quote:
Inventors are filing an exploding number of lawsuits against companies that appropriate their products illegally — and a new report puts the blame for these costly disputes squarely at the feet of the federal government.
The U.S. Patent and Trademark Office is so focused on rewarding its employees for the number of applications they review that the quality of patents they give out is in jeopardy, according to the Government Accountability Office.
The result is that licenses conferring someone’s sole right to an invention are “unclear and overly broad” and vulnerable to infringement by competitors.
“Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less.”Here again we have GAO saying what it has been saying for quite some time. Will anyone listen? Will the advice be taken seriously? See what happened after an Australian (almost) equivalent had said something to the same effect. Local patent law firms got rather aggressive.
Software Patenting in Europe Still Being Attempted
Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less. According to this article, there’s a Dutch dispute over a patented “superformula” (i.e. algorithm). As the author correctly notes: “Despite the noise being made by Genicap, there’s some question as to whether the company’s patent actually applies to No Man’s Sky. The European Patent Convention says directly that “discoveries, scientific theories, and mathematical methods” are not directly patentable, and US patent law also excepts “disembodied mathematical algorithms and formula” from patentability.”
“The Dutch people don’t need software patents; they’re usually just victims of such patents.”Well, such patents oughtn’t exist in the first place. The last time we heard of software patents in relation to the Netherlands it was Microsoft’s lawsuit against TomTom (Dutch company) and a Dutch developer who had his work killed [1, 2, 3] by a patent aggressor, Shazam. The Dutch people don’t need software patents; they’re usually just victims of such patents. █
Related/contextual items from the news:
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A new publication analysing the relationship between intellectual property and access to science explores ways countries have developed to counter the potential barriers created by IP rights, and says patenting by universities is counterproductive.
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Posted in America, Europe, Patents at 5:32 am by Dr. Roy Schestowitz
The pendency at the USPTO stands at around five years, as scrutiny has been increased
Image credit: Professor Dennis Crouch, Patently-O
Summary: While the EPO reportedly strives to eliminate pendency and appeal windows altogether (rubberstamping being optimal performance as per the yardstick du jour), the USPTO introduces changes that would strengthen the system and shield innovation, not protect the business model of serial litigants
PATENT systems across the world vary, but they’re streamlined/unified by various programs which enable litigation across nations and entire continents. We’ve covered some of these programs here before and half a decade ago we wrote numerous articles about the vision of a global patent system, at times citing leaked diplomatic cables that had been published by Wikileaks. ‘National’ patent offices are actually not so national and the ‘European’ Patent Office isn’t really about Europe (some of its member states, for example, are not in Europe). The same is true in the UK-IPO, which is going ‘to bed’ with Facebook right now (surveillance, censorship and propaganda site from another continent). Here is a new MIP article on patent litigation trends in Russia. It’s not often that we hear about Russian plaintiffs in European, Australian or American courts; domestic policy there probably does not incentivise pursuing patents in other countries (especially NATO members), either. As we shall show in a later article, China is increasingly going abroad for litigation, albeit it wasn’t traditionally the case (the West wrongly assumed all China could do was knockoffs or ‘piracy’ [sic] as the think tanks label it).
“It’s not hard to envision the beneficiaries of a global patent system and their actions.”Days ago IP Kat wrote about the Rhodia v Molycorp “patent jurisdiction tussle,” to quote the author’s headline. Here is some background for the uninitiated: “Rhodia is the exclusive licensee of the UK and German designations of a European patent entitled “Ceric Oxide and method for production thereof, and catalyst for exhaust gas clarification”. Rhodia commenced infringement proceedings in the English High Court alleging that the English domiciled Defendant, Molycorp, had infringed the UK and German designations of the patent.” Here we have a reminder of the unifying patent factor which does not even necessitate a so-called ‘unitary’ patent. Do we really need a ‘globalisation’ of patent systems? That is a rhetorical question of course. It’s not hard to envision the beneficiaries of a global patent system and their actions.
One country dominates the world’s patent systems (including the EPO where it’s ranked number one) and that country is not China, albeit it’s by far the largest population in the world. “In today’s free-trade environment, the USITC’s role is somewhat counter — protecting of U.S. industry,” Patently-O wrote the other day about the ITC, guardian of large US corporations, a nationalist body which has the word “international” in its name/acronym. To quote Patently-O, the “USITC Procedure sets up the USITC as the party prosecuting the case rather than the patentee. As such, the agency is the named respondent and will be represented by the Solicitor’s Office. I expect that the patentee BriarTek will also weigh-in. The patent at issue is U.S. Patent No. 7,991,380 and covers an emergency satellite communication system. The asserted claims were found invalid as anticipated and/or obvious. That holding was then affirmed on appeal by the Federal Circuit.”
“Suffice to say, calls to abolish CAFC altogether increased in recent years.”Well, the Court of Appeals for the Federal Circuit (CAFC), as we noted here repeatedly, is an exceptionally abusive court which not only bypasses constitutional issues but also works for large corporations and for patent lawyers rather than the public (or justice). Simply put, it’s corruptible. Suffice to say, calls to abolish CAFC altogether increased in recent years. And speaking of CAFC, MIP says: “The Federal Circuit has provided some guidance on the issue of 180 days’ notice of launch in a recent biosimilars ruling, in Amgen v Apotex, but practitioners say there will be a lot more litigation before the patent dance is fully clarified” (we are not optimistic).
About the USPTO Patently-O wrote that “Patent Filings Rising Slowly,” according to figures plotted by Professor Dennis Crouch. Is this a case of the more, the merrier? Well, for patent lawyers surely it is merrier (more profitable). Here is what Crouch wrote about it:
The chart above shows USPTO application filings for non-provisional patent applications as well as RCE’s. Both have been on the rise for many years. The filing numbers appear to have continued to rise since implementation of the America Invents Act, although at a slower rate (acceleration has slowed). The USPTO expects that applications filed today will receive a first action within 16 months.
America Invents Act (AIA), with PTAB in particular, has served to introduce some new quality control (potential slowdown and greater pendency to be expected), albeit at too slow a pace as PTAB needs to be expanded to be able to deal with more than just a couple of thousands of patents per year (such workload keeps growing fast).
Patently-O wrote another article exclusively about AIA in which it’s said:
Although more than three years have passed since the changeover date, most new patents still fall under the old-rule. This long transition period is explained by the reality that most patents that issue claim priority to a prior patent filing document such as a foreign priority filing, international PCT application, US provisional application or parent non-provisional US filing. Once the non-provisional application is filed, patent prosecution process still that typically takes around three years. This results in an average pendency from priority filing to issuance of around five years.
The chart there shows that, even though there's a patent litigation slowdown (we’ll expand on that in a later article), problems are far from over. There’s a capacity problem and there’s growing demand. An article by Zachary Kinnaird (posted on his behalf by Professor Jason Rantanen), a patent attorney with International IP Law Group, looks at the number of patent practitioners. He shows some fancy charts and notes: “The number of practitioners removed from the USPTO database reveals a practitioner percentage removal trend that can be seen as a retirement estimate for patent practitioners. This trend shows that the longer a practitioner has had a registration number, the more likely they are to have retired, or otherwise been removed, from the roster.
“The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines* (more on that later today) and human rights are routinely violated.”“The chart below shows the percentage of patent practitioners who still remain registered on the USPTO roster as a function of each practitioner’s year of registration. The further to the right, the more recently the practitioner earned their registration number.”
Not much can be deduced from this (the way it’s presented is not too helpful), unless one is interested in a sob story which serves the party line of the patent microcosm, or the industry associated with patent activity as opposed to production of merchandise, software, etc.
The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines (more on that later today) and human rights are routinely violated. As a European national I am sad and ashamed to see what was once the best patent system in the world becoming one of the worst and most notorious (unless one asks the EPO's mouthpieces). Battistelli tramples everyone and everything. █
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* Pressured examiners, unskilled (new) examiners and expensive appeals (short duration, very high fees) in an already-understaffed department make the entire process applicants-friendly at the expense of long-term reputation (which made the EPO appealing and worth the exceptionally high prices).
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07.20.16
Posted in Europe, Patents at 4:43 am by Dr. Roy Schestowitz
Patent maximalism (rubberstamping), low examination quality, fiscal preference for large corporations and much more
Summary: Conservative Benoît Battistelli is trying to impose on the European Patent Office various truly misguided policies and he viciously attacks anyone or anything that stands in his way, including his formal overseers
MYSELF and others at Techrights worry deeply. We worry that Battistelli (of UMP, the French conservative party) will turn the Office into another large corporations-leaning USPTO and London (or some other European cities) into the next Eastern District of Texas, complete with venue shifting (dragging defendants to a distant and plaintiff-friendly court), high/unbearable litigation costs that favour settlement in spite of injustice (unless the defendant has deep pockets), massive scope of injunctions (beyond an entire continent), and of course software patents (among other low-quality patents). One reader told us yesterday, “have you heard of the latest load of rubbish from the EPO?” See the above screenshot. No comment is even necessary. How much Europe is there in the ‘European’ Patent Office when foreign companies are enjoying a fast lane?
“How much Europe is there in the ‘European’ Patent Office when foreign companies are enjoying a fast lane?”EPO workers are rightly afraid. Their job security (and their entire employer) has been compromised and is now at mortal risk (stakeholders know what’s happening) because of Battistelli and his friends. Battistelli does not even seem to mind. He attacks sceptics, not just critics. He is like Munich’s Erdoğan. Stability is not the goal; implementing his self-serving vision is the goal. Megalomaniacs can never admit their mistakes and change course.
News sites have learned to distrust Battistelli. Yesterday, for example, Managing IP asked readers about the latest lies from Battistelli's PR department rather than publish an article about it, perhaps seeing it for what it really is (propaganda). Yesterday the EPO PR people were trying to spread the message, but we have not yet seen a single Web site (even IP sites) covering it. Journalists seem to have learned their lesson; Battistelli has zero credibility and zero approval rating among his staff.
“Journalists seem to have learned their lesson; Battistelli has zero credibility and zero approval rating among his staff.”Looking at IP Kat yesterday, we saw nothing but affirmation that people now know better that there is a profound problem at the EPO. “In this context,” one person wrote, “I am also reminded of persistent rumors that the EPO quality is down.” Here is the comment in full:
I reread the discussion again and it seems indeed that the days of the board of appeal are counted. Unfortunately, that also means that the examiners quality will not be controlled any more. When I talk to examiners, their main concern is that the BOA would turn over one of their decisions. THAT is what prevents them from cutting corners.
In this context, I am also reminded of persistent rumors that the EPO quality is down. And I also know that the Office is hiring less competent examiners, quite simply because the pay is not as attractive as it was. Munich is expensive, local firms are not finding the engineers they need and have raised their entry salaries accordingly while the EPO has lowered theirs.
I also read here that some patent attorneys are suggesting that the applicants use the national route, for increased legal certainty. How will that solve their problems when the competitor comes with an infrigement case based on an unclear, vague patent granted by the EPO and validated by the UPC, which will have force of law in all EU states?
Another person wrote that “at least in 2015, the EPO faced significant problems in recruiting.” We keep hearing from numerous sources that the EPO is struggling with brain drain and accordingly it lowered the recruitment bar. New workers don’t receive the same type of salaries and almost none of the benefits (not even job security). They are pressured to grant a lot of patents to justify their place at the EPO, which is exactly what happens at the USPTO (with notorious quality control in recent years). Here is the comment in full:
If you want to know the future of the EPO, take a peek at the official “social report”:
http://documents.epo.org/projects/babylon/eponet.nsf/0/CA803AEC70D6E89FC1257FF40042DAA4/$File/social_report_2015_en.pdf
Despite being nothing more than a dry and dusty collection of statistics, the report contains some interesting figures.
Some of these clearly demonstrate that, at least in 2015, the EPO faced significant problems in recruiting. For example, relative to the figures for 2014:
Numbers of advertised vacancies: up >25%
Number of job applications received: down 12%
Nationalities decreased presence: GB (-32), DE (-29), NL (-28), AT (-10), SE (-7), DK (-6), CH (-5), IE (-3), PT (-1), LU (-1)
Nationalities increased presence: RO (+9), ES (+8), IT (+6), PL (+6), TR (+4), BG (+3), RS (+3), LT (+2), FI (+1), FR (+1), HR (+1), MK (+1)
Permanent staff: down 1.3%
Contract staff: up 13.45%
New hires: down 30%
Termination of employment: up 44%
Increases in termination: retirement (+51%), resignation (+44%), invalidity (+36%)
The figures also show signs of increasingly aggressive management tactics, such as no strikes allowed in 2015 (vs. 22 days in 2014), 99% of all internal appeals rejected (vs. 88% in 2014). The trend at ILOAT, however, is going in the opposite direction (with allowed or partially allowed cases virtually doubling in percentage).
Given the shocking trends that it reveals (which appear to point to an organisation that is in crisis), I am somewhat surprised that this report was produced at all.
What do the AC have to say about this? Figures that speak for themselves surely cannot be brushed under the carpet so easily.
Responding to the above, one person wrote: “Of course they can – at the European Patent Office the money brought in by the increased productivity speaks louder than any figures.”
“It is true that the office is experiencing difficulties at recruiting,” another person noted:
It is true that the office is experiencing difficulties at recruiting. But that did not stop Minnoye to start a project to eliminate all examination stock backlog until end 2020. The project involves recruiting enough examiners to deal with the backlog (=hundreds) thereby creating “overcapacity”. The project started this month, the first applicant were sent letters requiring them to state wether they were still interested in examination.
Minnoye will push this at all cost: stock must be zero within 4 years.
The EPO’s “AC is a permanent fixture, and so will eventually have to deal with the mess that is currently being created,” one person wrote. The comment in full:
Sure, but the increase in money will only be a short-term effect. Unlike BB, the AC is a permanent fixture, and so will eventually have to deal with the mess that is currently being created. From this perspective, I still find it somewhat puzzling that the AC is doing so little to stop BB dynamiting the foundations upon which the EPO (and its reputation) is built.
It won’t be long before the general public, not just insiders at the EPO, recognise this crisis and demand change. It’s not too late to save the EPO, especially if there is public acknowledgement of the errors and then an effort to fix the errors. The main problem, however, remains; attracting again the same experienced examiners (some of whom left or retired early) is impossible and revisiting all the erroneously-granted patents would be laborious and harm ‘customer’ confidence.
Battistelli has secured his place in history books for the same reason Erdoğan has. █
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07.18.16
Posted in Europe, Patents at 8:08 pm by Dr. Roy Schestowitz
Using (or milking) the Office for his personal purposes?
Things are not always as simple as they may seem
Summary: Benoît Battistelli’s agenda at the EPO is anything but beneficial to the EPO and suspicions that Battistelli’s overall agenda is transitioning to the UPC to further his goals grow feet
EIGHT years ago we wrote about vendor capture in relation to ISO. Individuals or companies sometimes take advantage of police departments (see famous example above), public institutions or even other companies and the EPO appears to become a good example of this.
Some anonymous voices openly allege that Battistelli is not only surrounding himself with French people (former colleagues, family members etc.) at the top-level management (astronomical salaries and job security) but is also serving French buddies of his in France (he is politically-affiliated, in defiance of ILO or EPO rules), looking to empower himself in Paris (several sources sent us rumours over the years about his pursued role inside UPC). The following new comment repeats what we too have been saying regarding the UPC and Battistelli’s controversial actions, only to be proven correct by EPO management. They even explicitly admitted to it when asked by Dr. Glyn Moody several months ago. Here is what the comment says about the board of appeals (which relate to DG3):
I have been suggesting for ages that BB [Benoît Battistelli] is busy “clearing the path” for the UPC and its seat in Paris. For as long as DG3 exists, some litigants might prefer to dispute validity in Munich rather than in Paris. How badly will that hinder the growth of a healthy caseload docket in Paris?
But now it seems that the UPC is dead. No docket then for Paris, in the foreseeable future.
Time for the AC to press BB to stop clearing the path, to change direction and reinvigorate DG3, so it can dispatch cases in reasonable time? Wake up industry. Put pressure on your governments to instruct their AC representative accordingly.
Here is another comment on the subject:
Let me just say this: it is going to be the UPC, it is going to be in Paris and the board of appeal members will have nothing to say about it. They will never get employed by the UPC. The council and the president agree, nothing can stop them.
This was, as it turns out, noted also in the German media, not just Ars Technica (the aforementioned article from Glyn Moody). To quote:
That is certainly the plan of BB & Co. as was revealed in the Süddeutsche Zeitung in October 2015.
One alleged aim of the failed coup attempt against BB was “… to prevent the Office from facing the biggest change in its history: the transition to the single European patent and a new jurisdiction with the Court in Paris, including branch offices, also in Munich. The Enlarged Board would be replaced as soon as all States have ratified the agreement.
http://www.sueddeutsche.de/wirtschaft/europaeisches-patentamt-der-erfundene-skandal-1.2695424
Unfortunately in the meantime the Süddeutsche seems to have stopped reporting about EPO affairs:
http://techrights.org/2016/07/17/suddeutsche-and-epo-pr/
Battistelli’s attempt to ‘revolutionise’ the EPO for his own benefit goes quite a while back, also to his very appointment. “If you look at ILOAT 3699, it is about Bernard Paye,” one source told us, “the ex-head of Internal Audit, who was pushed aside because of the abolition of the Audit Committee, which he objected to.”
Something such as the Audit Committee existed for the function of oversight — something which Battistelli absolutely could not (and still cannot) stand — and he took little time — once he had seized power — to totally destroy it, as we first noted here in 2014 (the Audit Committee and independence of Internal Audit was abolished).
Internal Audit, as we noted before (years ago), is directly under Battistelli’s control now. We also mentioned this more recently, even a in relation to the EPO’s Investigative Unit. The story of how this came about must be recalled. Bernard Paye has now won his case against the Office, but not many people will have noticed (let alone remember him). “The ILOAT is pretty damning of the Office,” a source told us, and “the language is quite strong, “inconsistent arguments”, etc.”
“Battistelli’s attempt to ‘revolutionise’ the EPO for his own benefit goes quite a while back, also to his very appointment.”We spent some time converting this decision into HTML and adding highlights in yellow. This once again reminds us of the important of whistleblower protections at the Office. As the decision below helps reaffirm, Bernard Paye was assigned to (or offered) a fictitious post — a similar thing to what happened in Croatia when Battistelli’s ‘bulldog’ tries to get rid of people (we covered this before). He was effectively fired for not agreeing with Battistelli and his “yes men”. The UPC is mentioned there too, namely “the strategic responsibilities inherent in the new post of Senior Advisor for planning and preparation of the unitary patent” (it all boils down to the UPC quite so often).
The decision below was reached (not yet published) earlier this month, so it took several years to reach a conclusion, at which point the chance of redemption, justice etc. was rather hard to reason about. In fact, this long delay would likely serve as a deterrent against future such cases (complaints) and the compensation offered is only a sixth of what was requested, which makes this entire ordeal (long process) less than worthwhile, except maybe as a matter of principle and setting the record straight.
Here is the full decision’s text (in English this time, not French):
Organisation internationale du Travail Tribunal administratif
International Labour Organization Administrative Tribunal
Registry’s translation,
the French text alone
being authoritative.
P. (No. 2)
v.
EPO
122nd Session
Judgment No. 3699
THE ADMINISTRATIVE TRIBUNAL,
Considering the second complaint filed by Mr B. Y. P. against the European Patent Organisation (EPO) on 20 June 2013 and corrected on 12 July, the EPO’s reply of 11 November 2013, the complainant’s rejoinder of 31 January 2014 and the EPO’s surrejoinder of 10 June 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to transfer him to a Senior Advisor post.
At the material time, the complainant held the grade A6 post of Head of the Internal Audit department, that is, Principal Directorate 0.6 of the European Patent Office, the EPO’s secretariat. When the President of the Office proposed that the Administrative Council abolish the Audit Committee – one of its subsidiary bodies – the complainant expressed his disagreement. On 30 June 2011 the Administrative Council adopted decision CA/D 4/11 abolishing the Audit Committee with immediate effect.
By a letter of 21 July 2011, the President of the Office informed the complainant that his public “opposition” to the decision to abolish Judgment No. 3699 the Audit Committee made it impossible for him to continue as Head of Internal Audit, and that he considered that this was no longer in the interests of the service. Under Article 12, paragraph 2, of the Service Regulations for permanent employees of the EPO, the President therefore proposed to transfer the complainant to a post of “special advisor” and asked him to submit his “reactions” by 1 August.
A vacancy notice for the grade A6 post of Senior Advisor planning and preparation of the unitary patent – which was to be filled by way of a transfer – was published on 6 September. On 16 September the complainant wrote to the President stating that he did not intend to apply for that post as he did not believe he had the necessary qualifications and experience. By a letter of 29 September the complainant was notified that in the Office’s interests the President had decided to transfer him to the post with effect from 1 October. On 14 December 2011 the complainant filed an internal appeal against this decision, submitting that it constituted an abuse of authority, a hidden disciplinary sanction and an affront to his dignity. He requested the cancellation of the decision, his reinstatement in a post that corresponded to his qualifications, experience and level, and redress for the injury that he claimed to have suffered.
The Internal Appeals Committee, to which the matter was referred, delivered its opinion on 14 December 2012 after hearing both parties. Considering in particular that the complainant’s transfer to a post that did not really correspond to grade A6 had injured his dignity, the Committee unanimously recommended that the President cancel the decision to transfer the complainant, award the complainant 25,000 euros in moral damages and take prompt action to reassign him to a genuine grade A6 post with a view to allowing the complainant to end his career on a positive note. Failing this, the complainant should be awarded additional damages of 5,000 euros. By a letter of 25 March 2013, which constitutes the impugned decision, the complainant, who had retired on 31 December 2012, was notified of the President’s decision to dismiss his internal appeal.
The complainant asks the Tribunal to rule that the impugned decision to transfer him to the post of Senior Advisor was unlawful and to award him 60,000 euros in compensation for the moral injury he considers he has suffered as well as 2,000 euros in costs.
The EPO asks the Tribunal to dismiss the complaint in its entirety.
CONSIDERATIONS
1. In his complaint, the complainant asks the Tribunal to rule that the decision of the President of the Office to transfer him to a post of senior advisor unlawful and to award him 60,000 euros in compensation for moral injury as well as costs in the amount of 2,000 euros. In support of his complaint, he submits that his “transfer constituted an abuse of authority and a hidden disciplinary sanction and that the post to which [he] was transferred was fictitious and was created to suit the circumstances
in violation of the applicable procedures”. He further submits that the post in question was not commensurate with his grade.
2. The EPO denies that the decision to transfer the complainant was unlawful. It further submits that, contrary to the complainant’s assertion, he was transferred to a post with grade A6 duties in keeping with his qualifications and experience.
3. This case presents two material questions. The first is that of whether or not the complainant’s transfer was wrongful. The second relates to the grade of the duties which the complainant was assigned; in other words, did the post of Senior Advisor to which the complainant was appointed correspond to a grade A6 position?
4. According to the complainant, his transfer was wrongful and was in fact a hidden sanction. He adds that the post to which he was assigned was “fictitious”. The defendant submits that the complainant was transferred in the EPO’s interests in light of his continuing opposition to the abolition of the Audit Committee.
5. Although the complainant believes that his transfer was a hidden sanction, he does not bring any evidence in support of this allegation. His submissions merely contain an unsubstantiated assertion that his transfer to the contested post of Senior Advisor was a hidden sanction for his refusal to apply for that post. Furthermore, in his rejoinder he writes that he has “never disputed the right of the President of the Office to order a transfer in the Organisation’s interests, of which he is the judge”. There is no doubt here as to the Organisation’s interests: as the defendant argues persuasively, “it was no longer in the Office’s interest for the complainant to remain as Head of Internal Audit given that his continuing opposition to the abolition of the Audit Committee demonstrated a marked divergence of opinion regarding the conditions in which Internal Audit was to operate and its position”. Moreover, the evidence shows that, contrary to what the complainant asserts, the post to which he was assigned involved duties that were real – irrespective of their level, which will be addressed below – and the post cannot therefore be regarded as “fictitious”.
6. The complainant submits that the post of Senior Advisor to which he was transferred was not commensurate with his A6 grade. In this regard, he stated in his internal appeal that Senior Advisor posts were “posts held by staff members who held grade A4 at most and who [did] not exercise any authority”. He added that the grade A6 responsibilities outlined in the “Job Descriptions” appended to the Service Regulations, according to which “[t]he Officer runs a prominent organisational unit covering several specialised fields or is chairman of a Board of Appeal [and] duties primarily consist in developing [...] authoritative guidelines [...] and taking decisions in particularly difficult and important cases”, were not involved in the task assigned to him, which merely consisted in “conduct[ing] an in-depth analysis of the situation and draft[ing] proposals”. The EPO maintains that the complainant’s duties in his new role of Senior Advisor corresponded to grade A6.
7. It is to no avail that the EPO attempts to show that the complainant’s duties were of grade A6 level. First, it invites the Tribunal to interpret the job description appended to the Service Regulations liberally as, in the defendant’s view, it would not be possible for the Office to perform its functions properly “if it were obliged to apply the generic post descriptions strictly to the letter, without regard to the particular circumstances of the case in question”. Next, it poses the question, tailored to this particular case, of “whether, in the circumstances of the present case, the complainant’s new role was reasonably commensurate with his grade”, and not that of whether it corresponded exactly to grade A6 duties. Lastly, it asserts that “the strategic responsibilities inherent in the new post of Senior Advisor for planning and preparation of the unitary patent, though involving no management responsibilities, were nevertheless at the same level as those of a grade A6 post”. These inconsistent arguments, submitted by the defendant to convince the Tribunal that the complainant’s new duties were at grade A6 level, poorly disguise the fact that this was not at all the case. The defendant itself acknowledges in its submissions that “the complainant’s new role did not entail all of the characteristics of a grade A6 post according to the generic description provided in the Service Regulations”. The Tribunal concludes that the complainant’s new duties were not commensurate with grade A6. The complainant did not run a prominent organisational unit covering several specialised fields; he was neither a Principal Director nor a Chairman of a Board of Appeal; he could not take decisions in particularly difficult or important cases. Hence, the contested transfer decision must, as the complainant requests, be ruled unlawful.
8. The EPO will be ordered to pay the complainant the sum of 10,000 euros as redress for the moral injury incurred as a result of that decision.
9. As the complainant succeeds in part, he is entitled to an award of costs, set at 2,000 euros. For the above reasons,
1. The impugned decision is quashed and the contested transfer decision is declared unlawful.
2. The EPO shall pay the complainant 10,000 euros in moral damages.
3. It shall also pay him 2,000 euros in costs.
In witness of this judgment, adopted on 28 April 2016, Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrović, Registrar.
Delivered in public in Geneva on 6 July 2016.
(Signed)
CLAUDE ROUILLER
PATRICK FRYDMAN
FATOUMATA DIAKITÉ
DRAŽEN PETROVIĆ
Battistelli’s abuses may as well end up bankrupting/fossilising the Office (compensations, millions spent on buying the media for UPC promotion and setting up lobbying events). He has already, based on reports made to us, reduced demand for EPO services as stakeholders recognise the sharp decline in quality of service and thus go elsewhere or recommend/advise clients to turn to national offices etc.
There are more cases like the above and we intend to mention or properly cover them in the future as they serve to highlight/establish Team Battistelli’s guilt. █
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