09.30.16
Posted in Deception, Europe, Patents at 9:32 am by Dr. Roy Schestowitz
So much for patent quality claims…
Being better than the USPTO is not the same as having acceptable patent quality (US 6368227 B1)
Summary: In spite of Battistelli’s claims (lies) about patent quality under his watch, reality suggests that so-called ‘production’ is simply rushed issuance of invalid patents (one step away from rubberstamping, in order to meet unreasonable, imposed-from-the-top targets)
PATENT QUALITY at the EPO has sunk pretty low, as insiders tell us and staff representatives say as well (they have this new paper about it [PDF] — a paper which somebody leaked to us). It seems to be the consensus inside the EPO that patent quality is far from what it used to be; it’s only EPO management that keeps lying about it and the above was published internally because “the President is advertising our quality all over the world.” Yes, the liar in chief is now making a career out of lying about everything. He calls himself “President” but acts like the world’s worst boss, whose words are less than worthless. Some believe that he was intended to morph the EPO into the French model, which would basically render all the examiners redundant. The worst case scenario is, the guy is a ‘liquidator’ of the EPO. He’s put in charge to destroy it.
“The analysis is particularly relevant now that the President is advertising our quality all over the world.”
–Internal documentA few days ago we saw this article in German about patent scope at the EPO. “European Patent Office discussed the objection of doctors in the world against the patent for the hepatitis C drug Solvaldi / decision on 5 October expected,” says the automated translation. Also recall those letters regarding patents against cancer patients. If someone can prepare a translation of this article, that would be appreciated. Mathieu Klos from Juve has also just published an article in German for which we could use a translation. It’s Battistelli talking points in ‘interview’ form and the summary is automatically being translated as: “The European Patent Office has reformed its Boards of Appeal in July. Until the beginning of 2017, the reform must be implemented. For a new Board President must be found. Critics complain that the reform does not bring enough independence for the EPO-court. JUVE interview EPO President Battistelli Beno it take a position and explains why the renewal fees for the EU patent reduce not necessarily when the UK, the EU and thus the new European patent system should leave.”
We could use an English translation, so if someone can provide an outline or a complete translation, that would be great. Automated translations just aren’t so reliable and there is room for misunderstanding that might impact our credibility.
Without the Boards of Appeal we can expect patent quality to decline even further without that decline being publicly acknowledged. This may be one plausible explanation for Battistelli’s attack on these boards. An EPO mouthpiece has this new article which speaks about one particular aspect of European patents. It says: “The grounds of opposition are set out in Article 100 EPC. To paraphrase, these include that the subject-matter of the European patent is not patentable under Articles 52 to 57 (novelty, inventive step, industrial application, specific exclusions and non-inventions), that the patent is insufficiently disclosed and that the subject-matter of the patent extends beyond the content of the application as filed. The only substantive pre-grant criteria for patentability which is not also a ground for opposition is that of Article 84 EPC (that the claims shall be clear, concise and be supported by the description).”
“Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls.”Under Battistelli, as we have shown here before, oppositions are being suppressed (made more expensive, time being prohibitive, and so on), so obviously the quality of patents will decline, without this decline even being detectable.
Why does this matter? Two main reasons:
- Businesses are willing to pay the EPO a lot of money in order to properly check if their patent, once scrutinised in a court, will be upheld, in which case all the pricey legal proceedings will bear fruit and monetary compensation for patent infringement will be granted
- Small businesses are afraid of being falsely accused of patent infringement (i.e. attacked by a patent that should never have been granted in the first place) as to them it can be a matter of life or death (bankruptcy)
The latter case is more relevant to us because it alludes to the plea of the vulnerable and the powerless, whereas in many cases (1) above is applicable to large companies that stockpile or hoard patents by the thousands. Legal fees are very high (too expensive for most, who would rather settle quickly) and even if the accused is found not guilty (e.g. of patent violation, as the patent is ruled invalid) the financial cost is enormous and can never be redeemed from the accuser/plaintiff (except in rare cases like NewEgg’s). Here is a new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP. The headline is “EPO: Unjustified Threats Bill; What is it?” (the EPO did it to me, misusing defamation law) and here is what it says:
Provisions exist in the United Kingdom to prevent unjustified threats of legal action relating to infringement of patents, designs and trademarks. The provisions were originally conceived with the intention of stopping the holder of an IP right from damaging a person’s business by threatening their customers or distributors with an infringement action of the IP right. The current provisions, however, are inconsistent across different forms of intellectual property and are worded such that an innocuous communication from an IP rights holder may be interpreted as an actionable threat. This results in an increased risk of litigation proceedings between the parties. This is contrary to the overriding principle enshrined in the UK’s Civil Procedure Rules, which encourage pre-action correspondence and negotiation in order to ensure that disputes are dealt with at proportionate cost.
The UK’s government issued a draft Bill setting out proposals to address some of these issues. The Intellectual Property (Unjustified Threats) Bill 2016 would update legislation relating to unjustified threats to provide greater consistency and clarity.
For example, the Bill proposes positive definitions for “permitted communications” to provide a safe harbor to allow rights holders to communicate with potential infringers, without running the risk of a threats action. In this way, parties should find it easier to comply with the Civil Procedure Rules by exchanging information prior to the start of any litigation.
Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls. See what is going on in the US, where the USPTO blessed almost every application. Lots of litigation and now a lot of invalidations (at a very high cost to the accused). █
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Posted in Deception, Europe, Patents at 8:23 am by Dr. Roy Schestowitz
The liar has quit pretending to even be capable of handling the truth
Source (original): Rospatent
Summary: The attacks on staff of the EPO carry on, with brainwash sessions meticulously scheduled to ensure that Administrative Council delegates are just their master’s voice, or the voice of the person whom they are in principle supposed to oversee
LATE on a Friday (one week ago) the next stage/phase of new EPO propaganda began, with the release of 3 documents commissioned to help Battistelli lie to the Administrative Council and the entire world. A fortnight from now another stage/phase will begin, namely a so-called 'conference', probably decorated or accompanied by shallow media coverage (planted puff pieces*). EPO management does a good job demonstrating that it’s not only a chronic liar but also a manipulator of the media, at huge expense to the EPO (other than growing reputational cost).
SUEPO sent the following letter to Battistelli earlier this week, with a copy sent to the Delegations of the Administrative Council:
27 September 2016
su16116cl – 4.6
“Social Conference” of 11 October 2016
Dear Mr Battistelli,
We refer to the letter addressed to you on 20.09.2016 from SUEPO The Hague on the subject of the Social Conference, which remains unanswered.
SUEPO, who represents about half of the EPO workforce, has not been invited.
Over the past two and half years you have consistently threatened and/or heavily sanctioned the majority of the elected officials of a Union you called in public a “mafia like organisation”. In the circumstances, we will obviously not attend voluntarily. (If you want to oblige any of us to attend as “members of Staff Committees”, we would only participate under duress)
We truly regret seeing that, rather than fostering social dialogue by respecting the terms of the March resolution of the Administrative Council (CA/26/16), you have chosen to continue persecuting SUEPO and its elected officials, most recently in The Hague, cf. minutes of the Board 28 meeting of 8 September.
We also regret that you do not seem to take seriously the requirements of a bona-fide social conference. If its aim is to launch a program to restore social peace, it is inconsistent for you to refuse to discuss the results of the Technologia survey, or to consider our counterproposal for a framework agreement between the EPO and SUEPO.
Yesterday morning we published leaked Board 28 documents. As we noted at the end, these demonstrate that the Board (i.e. Kongstad et al) are ever more complicit in Battistelli’s abuses. Team Battistelli, we should remind readers, is said to be buying votes or buying (one might say “bribing”) the delegates. As one new comment puts it, the “AC representatives [delegates are] being showered with “gifts” by the very body that they are supposed to oversee” (source).
Here is the comment in full:
AC representatives being showered with “gifts” by the very body that they are supposed to oversee? If this is true, and if there is concrete proof of the same, would that not mean that the representatives concerned would need to declare a conflict of interest and step aside?
Oh, I forgot. There is no one to call them to account. And there would be no one to replace the representatives if they did step aside. Hardly a model of good governance, though. One might even go as far as to say that it is a model of governance that could easily be corrupted if undesirable types managed to secure powerful positions within the Organisation. God forbid that this ever happens!
As the Administrative Council and the Board (overlapping entities) have become ever more complicit in Battistelli’s abuses and the likely destruction of the EPO (for their short-term personal gain), we are planning to expose some unpleasant truths about the Administrative Council next week. █
_____
* Managing IP, an EPO mouthpiece nowadays, was planning to help Battistelli lie about the social climate at the end of this month, using a placement in the form of an ‘interview’ with Battistelli (part 2), but this has not happened and they failed to get a response from AMBA, which is understandably scared. Yesterday they began speaking and spreading the falsehoods about the EPO's crushing of the boards (under the guise of “independence”). Haar is somewhat of a suburb quite some distance away, so saying that “Boards will remain in Munich” is a lie. To quote further: “In addition to predictable concerns among users of the EPO as regards preservation of quality and independence of appeal decisions, the EPO’s ambitions with regard to cost coverage are seen as problematic by many due to the future increase of the appeal fee. A four- or five-fold increase of the appeal fee may well prove prohibitive to appeals, even in respect of clearly flawed first-instance decisions, or may put a heavy economic burden on parties to proceedings in respect of cases which are subject to multiple appeals in respect of the same patent or patent application.” We should remind readers that payments and working conditions are eroding, motivating what’s left of staff at the Boards to simply leave, giving the impression that these Boards are dying naturally on their own.
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Posted in Deception, Europe, Patents at 7:45 am by Dr. Roy Schestowitz
Original: Business Europe on UPC [PDF] (we wrote about Business Europe, which is a front group, several times before [1, 2, 3, 4, 5])
Summary: A quick look at some of the latest deception which is intended to bamboozle European politicians and have them play along with the unitary [sic] patent for private interests of the super-rich
THE EPO and Team UPC, along with their largest clients, try to take over Europe and rewrite the law.
Kingsley Egbuonu from MIP (close to the EPO) continues his Unitary Patent and UPC “progress [sic] report”, this time noting that “EU Ministers reiterate support for the system; legal opinion on UK’s participation; The Netherlands ratifies UPC Agreement; legislative process for ratification underway in Italy; new Italian course added to list of UPC representation qualifications for European Patent Attorneys; official timetable for launch of UPC may be revised; Unitary Patent system ready and UPC preparations to continue” (all sounds incredibly optimistic).
“The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe).”Judging by this “progress [sic] report,” one might be led to believe that the UPC is inevitable and only a matter of time; but it’s far, far from it. “We understand,” Egbuonu notes below, that the “UK IP Minister Baroness Neville-Rolfe did not make any statement on the UK’s position, considering the UK government is still deliberating over Brexit strategy, rather she commended the preparatory work done so far.”
The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe). Everyone seems to know it except Team UPC, which invested so much in this change (de facto theft of democracy) that all resources are now being thrown at lobbying. Take Bristows and its self-nuking statements for instance. Bristows is still lobbying to have its talking points interjected into ‘news’ papers which the EPO paid for PR. Here they are saying: “Milan challenges London for patent court – Our Alan Johnson comments on the @FT https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4 … pic.twitter.com/DyqpSJfFBA” (FT was paid by the EPO for this kind of bias).
It seems as though the UPC will be officially dead next month, but Team UPC is working super-hard at the moment. It includes ‘hijacking’ the media for their own selfish purposes. Bristows is being amplified (almost the entire piece is Bristows) by WIPR and an article composed by Bristows staff keeps getting referenced as ‘proof’ that “European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting” (utterly misleading headline).
“Usual suspects sent letters to lobby for UPC, wait until we send our letters too.”
–Benjamin HenrionWhat Bristows means by “European business” is just “Business Europe”, which is a misnomer. Here we have Bristows lobbying for itself and meddling. To quote: “Views on UPC expressed ahead of today’s Competitiveness Council meeting.”
Competitiveness in Europe would require demolishing the UPC, but international monopolies and oligopolies want the opposite of competitiveness; they just want protectionism to cement their market position and marginalise competition (e.g. by means of patent lawsuits or threat thereof).
Looking at some of the latest junk from Bristows (relying on front groups and generalising based on them), one can see dissent in various other new comments about the UPC; these comments are not sharing the sentiments of Bristows’ propaganda (about 5 more such comments yesterday). One of them said that selective “letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry.” Writing about “Business Europe” (Big Business Europe and Multinationals with Branches in Europe), here is the complete comment:
That all firms having been heavily involved in the preparations of the UPC want it to come alive is understandable, be it only because of the time and efforts invested in it. That their might not be a return on investment is bitter for all of those them. But c’est la vie.
The letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry. Did you expect that Air Liquide would be against the UPC?
On the other hand, we were always told that the UPC is primarily there for the benefit of the SMEs.
I do not see any federation of SMEs, but the French CGPME having participated in such a plea. The CGPME being one among the plenty members of the UJUB, even if it had a restrictive opinion, it would be overthrown by all the other members.
I get the feeling that lots of people have lost track of the political reality. How can a sensible person advocate immediate ratification by the UK of the UPC Agreement when the terms of the Brexit are not even known? There might be ways for UK to continue its participation, but this means accepting EU law. I dare think what the EuCJ will have to say if UK participates to the UPC after Brexit and does not fully accept EU law supremacy. But then why the Brexit?
Why on earth push for something which nobody knows how it will end up? That UK participation would be good is certain, but as somebody in charge in the UK said Brexit means Brexit.
It is clear that if the UPC does not enter into force because of the lacking ratification of the UK, it will be delayed for a while. And then the can of worms will be opened again. But that is a reality which is tangible and which should be accepted.
Whether we like it or not, it is time to look at reality and not hope for something which has been lost.
The “Big Business Europe UPC letter,” Benjamin Henrion remarked, is “not supported by CEOE, the Confederation of Employers and Industries of Spain” (Spain is generally against the UPC, to its credit, but language has a lot to do with this opposition). “Usual suspects,” he added, “sent letters to lobby for UPC, wait until we send our letters too.” He told me that he was unable to find any video stream/access to the proceedings (the perception of transparency) and later added: “Is there any video recordings of EU Ministers Council meeting of today?”
We have seen nothing of that sort yet. Team UPC has no sense of shame and no respect for democracy at all. Sometimes it feels like politicians are on the same bandwagon.
Here is a timely new comment about UPC (found this afternoon):
That’s the problem with the UPC, it is not counter-balanced by an elected parliament, such as the European Parliament.
It is an undemocratic monster.
If the UK is out, the bare minimum would be to reintroduce art6 and art8.
It’s not just an “undemocratic monster” but an antidemocratic monster. It must be scuttled. █
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09.29.16
Posted in Deception, Europe, Patents at 10:35 am by Dr. Roy Schestowitz
Also see: European Digital SME Alliance: Unified Patent Court (UPC) “Unconstitutional”, Harms SMEs, Brings Software Patents to Europe, “Should be Based on EU Law and Not on an International Agreement.”
Summary: A quick look at the growing bulk of UPC lobbying (by the legal firms which stand to benefit from it) ahead of tomorrow’s European Council meeting which is expected to discuss a unitary patent system
THE EPO has been paying various media companies, including British giants that continue to produce UPC propaganda ahead of the big day tomorrow (embedding talking points from Team UPC). This is beyond a disgrace and should be a very major scandal, but somehow the EPO managed to paralyse the media, including so-called ‘IP’ ‘media’ (trying to play nice with the EPO by simply being silent when catastrophic mistakes are being made). FTI Consulting much?
Reluctantly, as we prefer to make allies rather than foes, earlier today we published a rant about IP Kat, which had become somewhat of a Bristows platform for Bristows' shameless lobbying for the UPC. This afternoon, much to our regret, WIPR did something similar. An article titled “European Council to discuss unitary patent system” got published and it’s little more than a copy-paste job of Bristows talking points. Here is a fragment:
As the UPC is listed as “any other business” for this week’s meeting, there is not likely to be any substantive discussion, according to law firm Bristows.
[...]
Alan Johnson, partner at Bristows, told WIPR: “Everyone has to accept that the result of the UK referendum will delay the commencement of the UPC—and not just by a few months. It is unrealistic politically to expect the UK to ratify as if the vote had never happened, but also without some real certainty that the UK can continue to participate post-Brexit.
“The main question for me is whether the other states involved will be patient and try to work with the UK to find a solution which would allow continued UK participation. It’s not enough, no matter how well-meaning, just to offer words of reassurance that a solution will be worked out in the future if we sign up now.”
He added: “It’s better to get on immediately with the work required to put a modified system together. This is not starting again, but a question of working out a new legal arrangement which the Court of Justice of the European Union will find lawful. If the UK knows exactly what it needs to sign up to, and has the certainty that it will be lawful, it can then take a decision.”
Johnson continued: “I really hope the other states will wait for the UK and work toward this, but if they won’t, that is their choice and there is probably not much the UK can do to stop them. And it should be remembered that if the other states do go down this route, they still have work to do to reach a replacement agreement excluding the UK, including resolving the political question of where the London branch of the central division should go.
“Plus they would have to go through a new round of ratifications, and I can’t see that being a particularly quick process either.”
Hey, who needs the media anymore? Just paste a link to Bristows’ own Web site and be done with it. WIPR should know (and probably does know) that Bristows isn’t a mere observer when it comes to the UPC; it is still interjecting itself into the media for agenda and it’s not alone. Bird & Bird do this as well and this afternoon we found another example. Some patent firms are still fantasising about the UPC that will probably never become a reality (ever!). Well, even from IAM comes a response to this tweet, saying “Well, it’s not likely to be London anymore!”
So clearly, as before, IAM does not believe the UK will ratify anything related to this. Why does Bristows keep fighting? Because it bet the farm on it. It even rebranded accordingly, with its silly Bristows UPC blog (as if it’s trying to ‘own’ the UPC).
In responses to the previous Bristows lobbying, which got published yesterday, commenters are nowhere as optimistic as the Bristows lobby. Virtually all the comments are pessimistic. Here they are in full (so far). Here is the first comment:
Finally, people seem to be addressing the elephant in the room that so far seems to have been almost completely ignored by all interested parties including the EPO, CIPA, and big business: regardless of the pros and cons the current political reality in the UK is that the government will not sign the UK up to any system that requires the acceptance of the supremacy of EU law over UK law. The sooner this is accepted the better. Then people can start working on the practical reality of the situation, no matter how much they dislike that reality.
And then:
I don’t know whether you’ve noticed: nobody seems to know what the political realities are.
So far, the fat lady has not sung – and the thin lady is simply saying Brexit means Brexit and telling the three Brexiteers to keep schtum.
The question of who can trigger Article 50 is a live issue before the UK courts.
Uncertainty reigns and chaos beckons.
Fine, but here it is not supremacy of EU law. It is supremacy of an international agreement over national law, which is quite widely accepted.
Any international agreement, be it on free trade or on the privileges of diplomats, usually has supremacy over national law.
You may well be right on the current political reality, but it is besides the point.
“I think that the UPCA will never enter into force,” one person added, “unless of course the UK decides to remain.” Well, it seems very unlikely at this point and there’s not much time left to decide, either.
Legally speaking, it is absolutely impossible for a non-EU UK to stay in the UPCA (see e.g. art. 1), unless the agreement is amended with an unanimous vote (art. 87.3).
Since the UPCA has been already signed by 26 EU States and ratified by 11 States, I think that the UPCA will never enter into force, unless of course the UK decides to remain.
This is why we’re likely to see nothing emanating from this:
This is from Counsel’s opinion on the UK joining the UPC:
“The Unitary Patent Court is required to “apply Union law in its entirety and … respect its primacy” (Article 20). Union law must therefore be applied in preference to the other sources of law mentioned in Article 24.”
Article 24 specifies national law as an other source of law. That is, the UPCA explicitly requires acceptance of the supremacy of EU law over UK law. The current government may not be pressing full-steam ahead with Brexit at the moment but they certainly aren’t going to ratify any agreement, international or otherwise, that requires this.
And finally (for now):
It is not just any international agreement. It is signing up to an agreement, the rules of which are outwith your control. If the UK does leave the EU, eventually, it will effectively be an observer who recognises and implements the EU laws. That would place it in the position of EPC validation states such as Morocco but still having to participate as a court. That isn’t run of the mill.
In the next 24 hours we should expect a lot more lobbying, timed strategically for tomorrow’s meeting. Bristows has already expressed intent to publish some more of their tripe today (at IP Kat). Don’t let them steal democracy for their own selfish motivations (profit through increased litigation that would be ruinous to SMEs). █
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Posted in Deception, Europe, Patents at 6:48 am by Dr. Roy Schestowitz
Not news; mostly agenda in disguise, courtesy of Battistelli’s “useful idiots” and collaborators
Summary: When does an IP (or patent) blog become little more than an aggregation of interest groups and self-serving patent law firms, whose agenda overlaps that of Team Battistelli?
THE EPO no longer comes under scrutiny from IP Kat, as we noted late last night. But to make matters worse, when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform. They hopefully, at the very least, realise this and can acknowledge this.
“…when it comes to UPC matters in particular, IP Kat became somewhat of an advocacy platform.”It is no secret that the UPC would harm SMEs; their representative groups even say so explicitly. But they’re looked down upon by patronising self-serving elements which claim to speak about what’s good for them, if not falsely speak on ‘their behalf’. This is outrageous.
Part of the problem is Team UPC, which includes Bristows that’s a major lobbyist for the UPC, even saying something to that effect (very blatant disregard for democracy). Annsley Merelle Ward from Bristows has been exploiting IP Kat for a weekly (if not more frequent) UPC lobby. Yesterday was no exception. Her headline is a lie, the ‘article’ is just more lobbying with selective evidence, and this was promoted in Twitter yesterday.
“The countdown has seemingly begun again,” she wrote, “but the stakes seem to be even higher. The IPKat will be back tomorrow to report on the Competitiveness Council’s session tomorrow and future debates on this topic.”
“Has IP Kat become UPC Kat? Or Bristows Kat?”So now it’s a daily lobbying spiel? Has IP Kat become UPC Kat? Or Bristows Kat? When a writer is using the blog for her employer (she’s not the only writer there from Team UPC) we can’t help but feel that we’re seeing very low journalistic standards and basically alignment with at least a certain element at IP Kat with Team Battistelli.
Bristows lobbying for the UPC is not limited to IP Kat. We are seeing more of the latest Milan talking points in Bristows’ own blog. It is evident that this firm continues to stomp over British and European democracy with this abomination known as UPC, noting in Twitter that “UPC EPLC Rules amended to include additional Italian qualification, by @Liz_Cohen_” (they’re pushing in this direction, essentially meddling in politics). In another new post they are quoting other members of Team UPC, i.e. the echo chamber, arguing that “DAV says UK could still participate in the UPC system after Brexit and ‘a quick decision of the UK is needed’” (again, they’re trying to rush British officials into an unacceptable trap, using panic and trauma).
We have come to expect this dirty playbook from Bristows, but why has IP Kat been dragged down like this? Why does IP Kat keep pushing for the UPC under the guise of news while no longer criticising the EPO? Here is a recent example where they say “To be, or not to be?”
“They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).”Well, it’s clear that the UPC cannot happen in the UK after the Brexit vote. Why even make it seem like a probability? “Post #Brexit everyone is lining up their bargaining chips,” one member of the patent microcosm wrote the other day. “the UPC is just one of those.” (reporting from a CIPA event)
The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money. The EPO helps them for obvious reasons and the public is never being consulted at all. This is the kind of behaviour which motivated Brits to vote for Brexit in the first place. I have personally written about the UPC (in previous incarnations) for nearly a decade; I’m not unfamiliar with it. They just keep renaming and repurposing the same garbage, dodging the negative publicity (from the press and politicians, not to mention public interest/advocacy groups such as FFII).
“To say [the UPC can] “take years to build” is optimistic,” I told Bastian Best last night, as “my bet is, it’ll never happen, just be rebranded, repackaged” (remember EU Patent, Community Patent and other names).
“The UPC is little more than a conspiracy of patent law firms trying to steal democracy and then pocket European companies’ money.”WIPR‘s David Brooke, in the mean time, writes about “Opportunities after Brexit,” having just published this article. Team UPC must recognise that Brexit was the winning side (I was against it by the way) and that UPC won’t happen; neither in the UK nor in the rest of Europe (Spain for sure). We’re disappointed to see what IP Kat has turned into quite recently. When you know you’re misleading people and people call you out on it, why carry on? It’s an exercise in futility when one writes for one’s greed and self interest; or whenever speaking ‘on behalf’ of the public, hoping that nobody will pay attention or reject/refuse the obvious deception. When the only criticism of the UPC can be found in IP Kat comments rather than in IP Kat articles you know someone is suppressing one side of the argument (the side which represents the interests of more than 99% of the European public).
Team UPC are very, very sneaky. They pretend things will happen even before they happen (and they never happen). Remember those UK job advertisements for the UPC? How did that work out for applicants? █
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Posted in Europe, Patents at 5:56 am by Dr. Roy Schestowitz
Summary: The agenda and outcome of the secretive meeting of the Board of the Administrative Council of the EPO
LAST night we wrote about the EPO‘s further union-busting escalation, based on evidence extracted from the conclusions of Board 28. We are pleased to report that, after repeated requests, the entire document has been leaked to us. We present it below with highlights on important bits, excluding the cover page (seen above):
The Board of the Administrative Council (“the Board”) held its 74th meeting in Munich on 8 September 2016, with Mr Kongstad in the chair. Mr Debrulle had sent his apologies.
1. Adoption of the provisional agenda (B28/8/16 e)
1. The Board adopted the provisional agenda set out in B28/8/16 e.
2. Follow-up of the 148th meeting of the Administrative Council
2. -
3. Preparation of the 149th meeting of the Administrative Council
3. The Board discussed the draft agenda for the 149th meeting of the Administrative Council.
4. Concerning AC and General Affairs,
- the Board noted new elements of information provided by the President on the disciplinary case of a Council appointee. Following an exchange of views, it indicated that it would reflect on the information, pending receipt of a legal note from the President;
- the Board noted information provided by the President about three current investigations/disciplinary proceedings involving SUEPO members in The Hague. Three requests for review addressed to the Council were also briefly discussed.
5. Concerning Appointments/Elections,
- the Board noted that the vacancy notice for the Presidency of the Boards of Appeal had been published and that the intention was for the Boards of Appeals Committee (BOAC) and the President to submit a joint proposal for the Presidency of the Boards of Appeal to the Council meeting in December 2016. The Board agreed that whilst BOAC members should represent the diversity of the Council, qualifications took precedence over nationality. External BOAC members should be judges with experience in the functioning of judicial bodies rather than IP experts and should be highly regarded by the judges’ community in Europe;
the Board noted the President’s thinking with regard to Vice-Presidencies VP 2 and VP 4 as well as Boards of appeal appointments and reappointments.
6. Concerning Building Matters, the Board agreed that the contract for the rent of the new building of the Boards of Appeal Unit would first be submitted for opinion to the Budget and Finance Committee in October 2016, followed by a decision in the Council either at its meeting in December 2016, or earlier, by written procedure, if the rent negotiations imposed time constraints.
7. Concerning Personnel/Policy Matters and Financial Matters/Budget Planning,
- the Board noted information given by the President on the Social Conference, which would take place in Munich on 11 October 2016, as well as on the Social, Financial and Risk Assessment studies. It noted that these would be made available to staff and would be presented first for information to the Council at its meeting in October 2016 and later submitted for opinion/decision to the Council at its meeting in December 2016. The Financial study would first be discussed in the Budget and Finance Committee meeting in October 2016 with a view to preparing the discussion in the Council meeting in December 2016. The President informed that the Social and Financial Studies were complementary and that the Organisation now, for the first time, had a “positive equity” covering all its liabilities in the next 20 years;
- regarding the Revision of the Service Regulations-Standards of conduct and administrative fact findings as well as the Reviews of the disciplinary procedures framework and of Articles 52 and 53 ServRegs, the Board noted and discussed comments received from a Board member as well as presentations given by the Office on revised proposals. These proposals already addressed some of the Board member’s comments and issues raised at the Council meeting in March 2016. The Board had an in-depth discussion on the (i) right to silence/duty to co-operate, (ii) hierarchy of norms and resulting competences of the President and the Council, (iii) need for efficient proceedings, but also for a perception of fairness of the proceedings from the outside, (iv) need for an atmosphere of mutual trust etc. The Board agreed to discuss proposals which were further revised at its next meeting on 22 September 2016;
- the Board also noted information given by the President about various legal proceedings initiated by SUEPO against the EPO, both in The Hague and Munich.
4. Any other business
The Board noted information provided by the President on a global package to be submitted to the Council meeting in December 2016, in closed session, concerning IT and physical security.
A few minor remarks about the above-mentioned bits that are highlighted in yellow:
- VP 4 is a thug with history (even predating the EPO)
- Tenders at the EPO are farcical and sometimes don't exist (for large projects)
- The social ‘study’ was mentioned here on Friday and it's a load of nonsense or hogwash
- Regarding the social climate, there has been an escalation in union-busting (it gets worse by the week/month), so clearly enough that Council has accomplished nothing and Battistelli still acts like a lunatic autocrat
- Battistelli is wasting a lot money on bodyguards for him and Bergot (and conveniently this is discussed only “in closed session”); insiders tell us there is absolutely no need for these, but it helps perpetuate the atmosphere of fear and the perception that the staff is armed, violent and dangerous (fiction for an opportunistic politician)
That is all for now. Board 28 is clearly part of the problem because it refuses to tackle any of the hard questions. █
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Posted in Europe, Patents at 5:13 am by Dr. Roy Schestowitz
Source: Netherlands Institute of Patent Attorneys
Summary: The Netherlands Institute of Patent Attorneys, a group representing a large number of Dutch patent practitioners, is against Benoît Battistelli and his horrible behaviour at the European Patent Office (EPO)
“An interesting new document has come to light,” told us a source this morning about the EPO. “It is a letter dated 12th of February 2016 which was apparently sent on behalf of the Dutch Institute of Patent Attorneys or Nederlandse Orde van Octrooigemachtigden to the Administrative Council of the EPO. The letter does not pull any punches and is worth reading in full.”
“The letter does not pull any punches and is worth reading in full.”
–AnonymousOur source “doesn’t know whether Kongstad actually distributed this letter to the other members of the Administrative Council or whether he colluded with Battistelli to suppress it. But now that it has finally come to light it may be worth publishing.”
We have taken a look at this letter and highlighted important bits below. Worth noting is the attorneys’ concern about the reputation of the Office and the lack of action from the Administrative Council.
European Patent Organisation
Administrative Council
C/o Mr. Jesper Kongstad, Chairman
Bob-van-Benthem-Platz 1
D- 80469 Munich
Germany
Also by e-mail:
jko@dkpto.dk/ council@epo.org/ council_secretary@epo.org
The Hague, Februari 12th, 2016
Dear Mr. Kongstad,
On behalf of the Dutch Institute of Patent Attorneys or Nederlandse Orde van Octrooigemachtigden (Orde), we want to draw your attention to the following issues. The Dutch Institute of Patent Attorneys is the professional organisation of Dutch patent attorneys. The existence of the Orde is enshrined in the Dutch Patent Act and membership is mandatory for all Dutch patent attorneys. Our members (around 500) are active in private practice as well as in the industry. Most of our members are also European Patent Attorneys and act regularly before the EPO.
The European Patent System is on the brink of a new era. The Unitary Patent System (UPS) and the associated Unitary Patent Court (UPC) is a new and significant step forward. It will improve the patent system in Europe and make it more reliable and attractive for its users, both legally and economically. In particular, the UPS/UPC intends to make Europe more attractive compared with the other major patents systems such as those of the United States, Japan, China and South Korea. The Orde believes that such enhanced cooperation is the way forward in a globalising economy wherein the value of an enterprise more and more relies on the value of its intellectual property. We fully support and endorse such endeavours.
The Orde understands that organisations such as the EPO have to reinvent themselves from time to time in order to remain state of the art. The Orde applauds the ambition of the EPO to “set worldwide standards in quality and efficiency“(source: EPO vision). The existing roadmap to achieve this (the ‘why’ and ‘what’) is not disputed by us. We believe that indeed the EPO can be a leading patent office in the world. We notice and acknowledge that the EPO has been able to substantially improve the speed and quality of its patent processes as well as the communication with its users (applicants/patent attorneys).
However, the Orde has to express its serious and on-going concern about the way in which this reinventing process is taking place and the effects that it has on the image of the EPO. The Orde follows with growing worries the developments at the EPO. In particular, we are concerned about the developments regarding the organisation and government of the Boards of Appeal and the treatment of the EPO personnel. It is the ‘how’ that now brings us to this letter.
We observe that the reorganization process towards increased independence of the Boards of Appeal is not progressing or too slow. Earlier proposals for reform by the President do not guarantee adequate independence. The undesirable lack of independence has also been found by the Enlarged Board of Appeal. The observation that the President does not appear to listen to the valuable input of the Boards (who have been qualified one by Sir Robin Jacob as “judges in all but name”), is a striking denial of their qualities. The Orde is of the opinion that Boards have a crucial role in determining the validity of European Patents. Consequently, the impartiality and independence of the Boards of Appeal without any interference or control of the President of the EPO is essential for the proper functioning of the EPO judicial system. Now and in the future.
We observe in the 2016 EPO Business Distribution Scheme of the Technical Boards of Appeal that there are about 10% vacant positions in Boards of Appeal in 2016. More than 25% of the boards seem to be without chairman, effectively deactivating the Boards in question. We observe that there is no apparent reason for doing so. The Boards have an essential role in preserving the quality of the European Patent System. Their role in the Unitary Patent System remains crucial and must be properly facilitated. With the current understaffing of the Boards, we are worried that appeal procedures will be unduly delayed, creating legal uncertainty and adversely affects the quality of the European patent system. The Orde is of the opinion that the quality and staffing of the Boards of Appeal is to be maintained.
We observe that the employment conditions at the EPO and the basic rights of employees are seriously compromised. In the beginning it appeared as common and understandable reactions to changes that every organisation experiences. However, over time the information that reached the public became more and became more serious. The latest incident being that officials of SUEPO are subjected to disciplinary measures, downgraded, pension reductions and some SUEPO members plainly fired. We have already seen that any form of normal communication between SUEPO and EPO is severely flawed or is non-existent. We see many reports of oppressive rules and regulations. We note that, when we seek information from EPO employees, they are reluctant to communicate in fear of retribution by internal investigative units. It seems that the people at the EPO are afraid of their own management. The Orde rejects this situation vehemently. We cannot understand that the President of an organization that envisages to “set worldwide standards in quality and efficiency“ is not capable or not willing to apply the same standards to its people management. We refer also to the ruling of the Dutch Appeal Court that the EPO appears to be violating basic human rights.
A disgrace, irrespective whether the EPO benefits from its immunity as an international organisation or not. A reputable international organization such as EPO should not have it’s employment conditions and employee rights held up against such a basic thing as human rights.
We observe repeated demonstrations of large groups of EPO personnel in Munich or The Hague. We know many of the employees of the EPO. Either from a professional relationship as examiner or because many of them live among us in the Netherlands and we share schools and clubs with them. We know that they are highly motivated, highly intelligent, capable and reasonable people that care about the patent system and the organisation they work for. We hear that most of them understand the ‘why’ and ‘what’. The observation that they demonstrate repeatedly in large groups is nevertheless a clear indication that they are unhappy. They do not deserve to be led by a President who, regardless of other qualities, seems to have an intolerant and destructive people management style as part of the ‘how’.
We call upon the Administrative Council to instruct the President to acknowledge and normalise the basic human right of the EPO employees to organize themselves and come up for their position. The reinvention process of the EPO should be a firm yet healthy discussion between management and employees who, in the end, have the common interest of the organisation at large in mind.
We observe also that the dispute between the President and the EPO has attracted the public interest already more than once. The EPO does not live in a diplomatic vacuum. The EPO is part of today’s society and everything that that happens inside the EPO will find its way to the outside. Very quickly and very complete via internet and social media. Various newspapers and TV-programmes have paid attention to the quarrels at the EPO.
In addition to the information from public media, we receive information from our members that that they are increasingly being questioned about what is happening at the EPO. These questions come from their foreign colleagues (patent attorneys around the world) as well as direct clients, i.e. inventors and applicants. These people are the primary clients of the EPO and they wonder what is going on. The fact that the Orde is a Dutch organisation does not make a difference for our clients, our members also act before the EPO. For our clients and applicants, we are all part of the same patent system. These observations and questions from clients and applicants mean that the credibility and reputation of the EPO is already tainted in Europe and abroad. The Orde does not see this as a healthy situation. The Orde is of the opinion that the role of President of the EPO also contains the responsibility of maintaining and furthering the reputation of the EPO for the general public.
We sincerely believe that the current situation at the EPO has spun out of control by the actions of its President. The Orde believes that the EPO, with the President as its leading official should practice the vision of the EPO: “All our relationships – within our Office and with partners around the world – will prosper through trust, transparency, fairness and mutual respect.”
We are of the opinion that the current situation demands serious and concrete efforts by the Administrative Council to stop the President of the EPO from continuing these unproductive and destructive practices. We call upon the Administrative Council to take up its responsibility, to supervise the EPO and take control of the situation.
Sincerely,
On behalf of the Nederlandse Orde van Octrooigemachtigden
Robbert-Jan de Lang
President
It is not surprising to see their views on the UPC, but suffice to say their interests are not the same as Europe’s. We shall tackle the UPC in our next post. █
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09.28.16
Posted in Europe, Patents at 9:19 pm by Dr. Roy Schestowitz
Decapitation and union-busting strategies carry on unabated at the EPO
Summary: The attack on SUEPO (EPO staff representatives) at The Hague appears to have been silently expanded to a third person, showing an obvious increase in Battistelli’s attacks on truth-tellers
THE level of distortion of the facts inside the EPO is truly flabbergasting. People are expected to believe that all is well because staff representatives are fired, terrified, or both.
Thankfully, we sometimes get a word from the inside. Mr. Prunier, for instance, is being falsely accused and in his own words, he faces “demonstrably fabricated accusations,” as we noted earlier this month. He’s not alone though. People all across the EPO (various branches, including independent ones) have come under attack. Here is a new comment (published today) about how Battistelli might be planning to get rid of a judge whom he considered to be a thorn on his side because he had allegedly spoken about abuses by Team Battistelli (like, simple facts):
After the nomination of the BoA president, it will be easy to dismiss a BoA member.
Art. 21. (…) “the President of the BOA will be responsible for proposing disciplinary action to the Administrative Council with regard to the members, including the Chairmen, of the BOA and the members of the EBA”.
Just keep the case pending until the nomination of a BB friend as BoA president then the BoA suspended member will be dismissed.
Earlier this year we wrote about defamation complaint/s on behalf of the judge. A “criminal complaint for defamation allegedly filed with the state prosecutor in Munich,” says the following comment, “was reported in the Süddeutsche Zeitung in December 2014 and elsewhere in the German press.” Well, as far as we know the EPO too came under complaints of defamation, after it had allegedly ‘planted’ defamatory claims about the judge, including in Süddeutsche Zeitung. Here is the comment in full:
Another rumour currently doing the rounds in Munich concerns a criminal complaint for defamation allegedly filed with the state prosecutor in Munich by a senior official of the EPO some time ago. This was reported in the Süddeutsche Zeitung in December 2014 and elsewhere in the German press.
It is now rumoured that this complaint was recently rejected by the state prosecutor who seems to have taken the view that no act of defamation had been committed.
Maybe this is the new element referred to by the President ?
The following new comment says rather clueful things about aforementioned claims:
@One of those
Point 18 of the decision in case Art 23 1/16 makes it clear that at least the Enlarged Board of Appeal takes the issue of res judicata seriously, even if they did not apply it in that case. Of course, ILO-AT is a completely different kettle of fish.
@Anon 06:03
What you are suggesting is that “a proposal from the Enlarged Board of Appeal” (Article 23(1) EPC) could soon simply be interpreted as “a proposal from the President of the Enlarged Board of Appeal”. Interesting suggestion. That certainly would not be my interpretation of Article 23(1) EPC. The EBoA and its president are not synonymous, and so my view is that the one cannot stand in for the other when it comes to explicit provisions of the EPC.
Trouble is, what recourse would there be if (yet again) the EPO and the AC took action that arguably contravened the provisions of the EPC? Who is there to hold them to account? Perhaps this particular lacuna will prove to be the worst mistake of all by the founding fathers of the EPC.
@Nolle prosequi
I see that you have your tongue firmly in your cheek when suggesting that the (alleged) dismissal of VP3′s defamation claims could amount to the “new element”.
But perhaps we should not rule out a link. If the defamation claims have been rejected, then it becomes clear that there is no sound legal basis for dismissing the accused member on the grounds of defamation. It is undoubted that this development could prove to be a major embarrassment for BB and his coterie (who, by the way, could stand safe behind their immunities if it ever were determined that they defamed anyone). What better way to take the sting out of this threat by going on the offensive and dragging up new “allegations” (related to the other allegation in case Art 23 1/16) that provide renewed justification for the investigation into the BoA member?
With the disciplinary case closed, and with one of the allegations against the member (allegedly) being dismissed by an independent body, it is very hard to come up with a valid reason why the Office would adopt a “press on regardless” tactic. The actions of the Office therefore provide ample material for the generation of theories involving sinister conspiracies. So much for defending the reputation of the Office!
Not to worry. No doubt there will be an “independent” study issued in which it is confirmed that the Office has acted with utmost propriety… oh wait, it has already issued! I am particularly impressed by PwC’s range of expertise. If an above commentator (Empty) is correct, then it appears that “PWC have found that the office’s actions have met the requirement of the EPO’s legal framework”. Amazing. I never realise that PwC employed individuals who were experts in patent law. Or, based upon what some allege is standard practice of certain accountancy firms (when producing financial audits), perhaps should we should instead interpret their statement to mean “this is what the EPO has told us and we have no reason to doubt the accuracy of their statement (though, sotto voce, we have not conducted any form of independent verification)”. In this context, the rather odd choice of an accountancy firm to conduct a social study starts to make a lot more sense.
Here’s more:
“this development could prove to be a major embarrassment for BB and his coterie”
Pray, a major embarrassment in front of whom exactly? It appears that, given their supposed “immunity”, these people don’t give a s*§t about what the external word thinks.
And for the AC, it will certainly not be informed of this major development but lavishly showered at the next meeting with fabulous production figures and the deriving money.
Nothing to see here, move along …
The most interesting bit however was this comment which claims to quote the secretive board. See the bit highlighted below:
Have you seen this one in MICADO ?
SUMMARY OF CONCLUSIONS
of the 74th meeting of the
BOARD OF THE ADMINISTRATIVE COUNCIL
Munich, 8 September 2016
under 4. Concerning AC and General Affairs
“the Board noted information provided by the President about three current investigations/disciplinary proceedings involving SUEPO members in The Hague.”
This serves to reinforce the belief expressed in the followup comment. It states that Team Battistelli basically “decapitated the ranks of SUEPO in Munich and now they go for those in The Hague”. Here is the full comment:
“the Board noted information provided by the President about three current investigations/disciplinary proceedings involving SUEPO members in The Hague.”
Yep. They decapitated the ranks of SUEPO in Munich and now they go for those in The Hague – of course, “a simple coincidence” as VP1 would say.
And since the Investigation Unit is there to conveniently provide proof of guilt to the President, they are already dead meat.
The AC will obviously look the other side …
A lot of new information is contained above. Some of it is speculative, but some of it quotes an internal document which we hope to get a full copy of. These comments in IP Kat are very hard to find because they’re buried in some additional pages in a comment thread of a very old article (these deserve more attention, hence we often repost these here). Sadly, since the EPO banned IP Kat for almost a whole working day (perhaps some kind of a warning sign) there has been virtually no criticism of the EPO over there. Tomorrow we’ll show just to what degree the pro-EPO element has grown at IP Kat. █
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