07.01.16
Posted in Europe, Patents at 5:02 pm by Dr. Roy Schestowitz
Trying to float an utter wreck without even renaming it (like previous attempts)
Summary: The desperate attempts to race to the bottom with the Unitary Patent Court and Battistelli’s misguided effort to reduce patent quality and make up for it with greater patent quantity, in addition to increased fees (to discourage appeals, withdrawals etc.)
THE so-called 'expert teams' which conspired (along with EPO management) to create and pass the UPC are in a poor state of affairs right now. ‘Brexit’ left them speechless or on the run.
MIP has released an article originally composed just before the ‘Brexit’ vote. It speaks of the Boards of Appeal, which UPC threatened to make redundant (based on some speculations but not all). Now we know that even without the UPC becoming a reality the Boards of Appeal are in serious trouble. Battistelli just wanted to demolish quality control all along, making the EPO more like the USPTO where so-called 'production' doubled in a matter of years (because quality control became hardly applicable).
“Now we know that even without the UPC becoming a reality the Boards of Appeal are in serious trouble.”Writing about the EPO and UPC today, Finnegan, Henderson, Farabow, Garrett & Dunner LLP remind us that they live in a fantasy world. They speak of a “soon-to-open Unified Patent Court (UPC)” even though there’s no such court and no opening is expected any time soon (if ever).
“The UPC Preparatory Committee and EPO Select Committee have issued a joint statement saying they will continue with their planned work despite the Brexit vote,” MIP reports today. Well, ‘Brexit’ makes it impossible until/unless they cheat in some way, as they probably will. We expected this when we wrote about it last week and at the beginning of this week. UPC would simply mean more patent trolls in Europe, lower patent quality (including perhaps software patents), and more legal action everywhere. It’s a patent maximalist’s wet dream.
“How long can this last and who will pay the price of erroneously-granted patents?”The EPO is in a freefall. Large corporations get patents granted/examined in bulk (alienating SMEs which makes up much of Europe’s landscape) and in relation to an article mentioned yesterday and earlier today in Techrights there is now this official announcement titled “EPO launches fast-track patent examination with Australia” (warning: epo.org link). The EPO also takes note of changed rates on “refunds for withdrawals” (earlier today), so perhaps they think they can make up for loss of quality by higher quantity and increased fees. How long can this last and who will pay the price for erroneously-granted patents? These are somewhat rhetorical questions.
Europe is about to suffer a a great deal (perhaps for decades to come) as a result of Battistelli with his horrible policies and UPC fantasy, which was a waste of time and energy. Never before has Europe’s patent system been in such a state of turmoil. █
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Posted in America, Patents at 12:28 pm by Dr. Roy Schestowitz
Patent trolls will wear the halo after Halo v Pulse
Summary: A short review/overview of this past week’s coverage regarding Halo (the Halo v Pulse case) — a SCOTUS decision that will help patent trolls in the United States
Patent lawyers like to focus on the Halo decision because, just like the USPTO, patent activity makes them money (litigation, patent grants etc.) and the consequences of the activity does not matter to them. It doesn’t even bother them when patent trolls take over portfolios and tax everyone (the externality).
“It doesn’t even bother them when patent trolls take over portfolios and tax everyone (the externality).”According to some of the latest articles about Halo, e.g. [1, 2, 3, 4, 5, 6], one’s position depends on one’s interests/agenda. Battistelli’s mouthpieces (IAM), for instance, say that SCOTUS “lowers bar for awarding enhanced damages for patent infringement”, software patents lobbyists say that all is fine (even if it helps trolls, like those that fund IAM), Science|Business seemingly celebrates the decision, Forbes (i.e. the billionaires’ rag) speaks in terms like “innovation”, and patent lawyers call it “willful infringement”.
Coinciding with the latest report/overview of SCOTUS cases (by Dennis Crouch) there is this article which says:
Finally, and on a related note: The Supreme Court’s statement that it’s the time of infringement that matters and not later is really unworkable and flawed. A defendant, for example, who finds another piece of prior art later, closer to trial, surely can rely upon that evidence (and/or opinion analyzing it) as (a) confirming the strength of an earlier opinion or (b) providing evidence that, from that time forward, its infringement was not “egregious”?
A lot of patent maximalists focus not on the aspect which is relevant to patent trolls. This decision has, in general, been highly helpful to patent trolls who may now be able to go after more companies and demand even more money from them.
As always, when reading about patents in sites that are run by people who profit from patents, take everything with a grain of salt. █
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Posted in Deception, Europe, Patents at 12:02 pm by Dr. Roy Schestowitz
Summary: The EPO’s statement which proves Eric Blair (George Orwell) right, carefully rewritten to better explain what Battistelli and his cronies have just done to bring the EPO’s status to an all-time low
PUTTING the USPTO aside for a moment, as there is something rather urgent regarding the EPO to respond to (something we explained in the afternoon), consider this truly ugly piece of North Korean-like state propaganda from the EPO (warning: epo.org link and every single sentence is an Orwellian lie, except the sentence which explains what the appeal boards do).
“Once upon a time several examiners looked at each and every application, but EPO patent examiners admit a decline in patent quality and apparently decline/elimination of multi-person participation as well (so Battistelli just keeps lying to the media about it).”It is a shameless pack of lies, so we decided to rewrite it correctly. As a little bit of background, consider the vital role of quality control at any patent office, especially a patent office which strives to have high reputation (in order to justify high fees). Once upon a time several examiners looked at each and every application, but EPO patent examiners admit a decline in patent quality and apparently decline/elimination of multi-person participation as well (so Battistelli just keeps lying to the media about it).
Earlier today the EPO wrote: “How do you find out if your idea is novel? You do it by searching for prior art.” Well, “searching for prior art” is exactly what Battistelli is fighting against by compelling examiners to work faster (i.e. more recklessly) and keeping the appeal period shorter, the appeal boards understaffed, and the entire process vastly more expensive to challengers/appellants (i.e. unaffordable/prohibitive to small businesses in particular). So here is the ‘corrected’ announcement from the EPO:
Greater lenience and reduced patent quality for the EPO’s President
1 April 2016
In a Battistellian decision, his Administrative Council that exploits the European Patent Organisation for free dental care, agreed to send to exile the Boards of Appeal (BoA) in spite of the framework of the European Patent Convention.
Approved with an overwhelming spending on cooperation money to member states, the European Patent Organisation accepted a comprehensive demolition proposal of the Office to strengthen the perception that there is no future for the BoA, in particular by increasing the incentive to seek alternative employment, and to make it hard to receive presidential approval for such alternative employment. The BoA is the body that takes decisions on appeals against decisions of the European Patent Office concerning European patent applications and European patents.
“The decision taken yesterday finally achieves destruction of the EPO’s appeal system which wrongly was envisaged for many years. After two attempts of destruction which failed in 1995 and 2004, this is a historic achievement”, EPO President Battistelli said. “Increasing both the perception of poor job security and the high cost of the BOA is essential for securing my own job and elimination of the EPO’s appeal system and for maintaining its long-term deprecation”, the EPO President explained.
Under the demolition plan the current BoA will be restructured into a Boards of Appeal Unit within the EPO managed by a President of the Boards of Appeal – a new position -, who is solely responsible to a Battistelli-controlled Administrative Council and not to Battistelli directly. A newly created subsidiary committee of the Administrative Council, the Boards of Appeal Committee (BoAC), will help bamboozle journalists and politicians. This link between the BoA and the Administrative Council will be at the mercy of a President who blatantly disregards the rule of law.
The EPO President will appoint a crony – probably a former colleague from France or someone who faces many criminal charges in another country – to the President of the Boards of Appeal and therefore maintain managerial powers relating to the Boards of Appeal Unit. The President of the Boards of Appeal will also serve as Battistelli’s lapdog, serving as competition to the Chairman of the Administrative Council. The reform moreover aims to increase the cost of the BoA within the next years so that it will be easier to justify closure or perpetual downsizing.
The institutional reform will be accompanied by a vastly less attractive career system for the members and chairmen of the BoA, and a relocation in Munich for the Boards of Appeal Unit with a separated building so as to make it harder to go to work and compel many to quit their job. Moreover, new restrictions relating to post-service employment of BoA members and chairmen take into account the need to make it harder to quit (risk of perpetual unemployment) in order safeguard the integrity [sic] of the EPO’s appeal system by preventing any risk of potential conflicts of interest, unlike for example appointment of a friend’s wife to a top EPO position in HR.
“To speak plainly,” wrote one person earlier today, “there are simply not enough safeguards in the EPC against corruption (or to ensure an appropriate balance of power).” The threat of corruption comes not from ordinary employees. Currently, all the alleged corruption comes from the top-level management, i.e. Team Battistelli. To quote the whole comment:
No, not all of us are EPO employees. But, with the AC seemingly in BB’s pocket, what can we do?
In the light of recent events, I fear that only developments outside of the control of the Member States (e.g. an adverse decision from the constitutional court in Germany) could possibly prompt the AC into decisive action. But would we really want it to come to that?
Alternatively, if the media took more interest and thoroughly investigated quite why it is that the AC takes the decisions is does, could the EPO as whole withstand the fallout if clear evidence of votes for cash (or other personal benefit), blackmail or any other illegal activities was obtained? Or would it be even worse if we found out that the reason is that the delegates to the AC genuinely agree with BB’s views?
Sad to say that the problem here lies in the fact that the founding fathers of the EPC did not foresee that the president of the EPO might (mis)use the resources at his disposal to effectively ensure that he controls his overseers. To speak plainly, there are simply not enough safeguards in the EPC against corruption (or to ensure an appropriate balance of power). (I should point out that I am not alleging that there definitely are corrupt practices going on here, just that there is nothing in the EPC that could stop them if there were.)
The problem is of course hugely magnified by the fact that the president of the EPO has immunity, and does not believe that he need recognise the jurisdiction (let alone the judgements) of any national courts. So, if the AC will not bring him to heel, who on earth can? I am clinging to the straw that something positive will come out of the court cases in the Netherlands. However, I am not holding my breath on that (as, even in the event of a decision adverse to the Office, no doubt some way will be found to “fudge” the issue and carry on as normal).
Very sad times at the EPO. It’s like watching a rogue state whose citizens are stranded. They cannot even escape due to newly-issued sanctions. Eponia has become the new North Korea and Battistelli is its Supreme Leader. █
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Posted in America, Courtroom, Patents at 11:10 am by Dr. Roy Schestowitz
But the Court of Appeals for the Federal Circuit (CAFC), where corruption has been rather rampant, gets more of a say as a result
Summary: The outcome of the US Supreme Court refusing to intervene in the Sequenom v Ariosa case — a case which would have put at risk the strongly-worded Alice and Mayo decisions (SCOTUS level)
WITH a software patents-friendly USPTO and software patents-hostile courts (even in the US) there certainly is a problem. One strives to make more money by granting (accepting) as much as 92% of applications (causing a massive spike in grants) and another actually delivers justice, where there’s no incentive to ‘bless’ every patent that’s at stake. It’s a bit like EPO examination versus reassessment at the appeal boards or USPTO versus PTAB.
A new article by Professor Dennis Crouch says that the Supreme Court will deal with Life Tech v Promega but not with a lot of other cases. “Alice and Mayo Remain” says another article in relation to the Sequenom petition (mentioned here before), which is very good news as it indicates that software patents will carry on dying, at least in the courts and at PTAB (irrespective of how reckless and selfish the USPTO chooses to be). “Patentees in the biotech and software industries had placed substantial hope on the pending Supreme Court case of Sequenom v. Ariosa,” wrote Crouch. “The hope being that the case would serve as a vehicle for the Court to step-back from the strong language of Alice and Mayo that has led to rejection and invalidation for many. The Supreme Court has now denied certiorari in Sequenom – effectively ending that campaign.”
Fantastic!
“It’s a bit like EPO examination versus reassessment at the appeal boards or USPTO versus PTAB.”We shortly thereafter found many polite complaints about this in patent lawyers’ Web sites like this one. It’s not exactly shocking that patent lawyers are sad that SCOTUS Justices won’t give software patents another chance. Watch how this gets framed as a ‘clarification’ issue (it’s not) over at patent lawyers’ Web sites that constantly bemoan this decision. Even some financial sites wrote about it (after earlier reports that pertain to financial speculations), life science Web sites wrote about it [1, 2, 3], and lobbyists of software patents were not exactly enthusiastic. “Drug industry overstates impact of patent reviews on innovation” is one good article about it (more from the same site), here is an objective site, and here is MIP writing about both aforementioned cases. “Fingers Crossed” is how some patent maximalists put it ahead of the decision, barely hiding their biases. The corporate media covered this as well [1, 2, 3, 4]. It’s quite unusual for those kinds of stories.
Ars Technica wrote about the former case as follows: “The US Supreme Court has taken up its next patent case, which may well lead to another decision sharply overturning a ruling by the nation’s top patent court.
“As we are going to show later, CAFC is already pushing against Alice in a newly-issued decision.”Here’s how the case made it to the high court: Life Technologies Corporation, part of Thermo Fisher Scientific, manufactures a genetic testing kit in the United Kingdom. The company sells this product worldwide. Life Tech made one element of the kit, called a Taq polymerase, in the United States and then shipped it to the UK to combine with the larger product.”
This case, unlike the latter one, hardly threatens Alice and Mayo in any way.
The only downside is that, in the words of the EFF, “Supreme Court Gives More Leeway to Lower Courts on Patents and Copyright: Will Lower Courts Champion Innovation?” Remember that by giving more influence to lower courts like CAFC the reality is that those who brought software patents to the US in the first place will gain more power. As we are going to show later, CAFC is already pushing against Alice in a newly-issued decision. █
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Posted in America, Patents at 10:35 am by Dr. Roy Schestowitz
Summary: On the agenda of the supposedly ‘liberal’ side (hawkish and corporatist in practice) there’s no reason for Hope of Change and new data suggests that patent practices are gradually ebbing away in the United States
THE USPTO strives to grant more and more patents, i.e. the mistake that the EPO repeats under Battistelli.
Now that Hillary Clinton makes her supposed position on patents publicly known, EPO mouthpieces say that “Clinton releases her patent to-do list, but it’s on the Hill where the reform agenda will be driven” and Jamie Love, a patent reformer (especially in the area of access to medicine) says “Hillary Clinton makes a few welcome suggestions regarding reforms of patent litigation in US.”
“The patent world’s mumbo-jumbo, in particular misleading euphemisms like ‘protection’, ‘property’, ‘asset’, ‘assertion’, and ‘innovation’ aren’t exactly mesmerising and we hope that people everywhere will manage to filter the buzzwords and assess things for what they really are.”Here is the referenced page and some blurb from IP Watch about it. We don’t honestly think that Clinton would work for anyone other than herself and her campaign contributors, i.e. Wall Street, oligarchs (like Donald Trump) and large corporations, but giving her the benefit of the doubt, let’s see what TechDirt made of it after careful analysis. TechDirt published two articles on the subject; one was titled “Hillary Clinton’s Tech Policy Plan Includes Some Empty Broadband Promises And A Continued War On Encryption” and another “Hillary Clinton’s Intellectual Property Platform: Too Vague & Confusing”. This pretty much reaffirms what we believed all along. Lots of promises, no expected delivery. It’s campaign season’s rhetoric, just like Clinton’s (her husband) and Obama’s (who now endorses her, having failed to make any positive change in the patent system). Speaking of spouses, see “Quick Hit: Massachusetts Case Litigating Spouse’s Interest in Invention.” It comes from Patently-O and it says: “I can’t find anything available on line that is not behind a paywall, so… Recall that I’ve written here about how there’s an interesting question as to whether in a community property state the spouse of an inventor has an interest in inventions (and other IP). Defendants have, so far unsuccessfully, taken quitclaims from the spouse in an effort to defeat infringement suits, as a result.
“There’s a Massachusetts appeal pending where, from what I can tell from what I’ve found on-line, the spouse of an inventor is claiming that because funds from a joint bank account were used on the invention, she has an interest in it. The case is Mazzu v. Mazzu, No. 2015-P-16011, and it is on appeal from the Suffolk Count Superior Court to the Appeals Court of Massachusetts. Who knows what we will learn.”
Another Patently-O article, this one by Jason Rantanen, says that “Professor Radin’s discussion is worth a read for the eloquent way that she captures and synthesizes the raw strands floating around in current discussions about patent claims.”
“This whole election cycle is already well down the drain as people are basically presented with the choice between an oligarch and one who works for oligarchs.”The patent world’s mumbo-jumbo, in particular misleading euphemisms like ‘protection’, ‘property’, ‘asset’, ‘assertion’, and ‘innovation’ aren’t exactly mesmerising and we hope that people everywhere will manage to filter the buzzwords and assess things for what they really are. Another new Patently-O article is particularly interesting as there’s a graph, derived from raw data, showing a decline in the number of newly-registered patent practitioners since Obama took public office. Here is the caveat: “The above graph shows only initial registrations. It does not show changes in which a patent agent becomes a patent attorney, as the practitioner does not receive a new registration number. The registrations for 2015 indicate that 42.4% of the initial registrations were for patent attorneys and 57.6% were for patent agents (some of whom later became or will become patent attorneys).”
Whatever happens next in the US, we believe that neither Clinton nor Trump will make things any better. This whole election cycle is already well down the drain as people are basically presented with the choice between an oligarch and one who works for oligarchs. It’s somewhat of a lost cause. █
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Posted in America, Patents at 10:03 am by Dr. Roy Schestowitz
Whose pockets are deepest? When the USPTO is run by people from Google and from IBM…
Summary: A couple of new examples of patent cases where the bigger company (with deeper pockets) wins, either by injunctions against small companies or by invalidating the patents of smaller companies
“The U.S. Supreme Court on Monday,” according to Reuters, “refused to review a case involving the cancellation of a Versata Inc patent that had previously been the subject of a $345 million jury verdict against enterprise software maker SAP SE.”
“By deciding not to take up the case, the Supreme Court left intact a decision by the U.S. Court of Appeals for the Federal Circuit affirming the patent’s invalidation, which Versata said casts too wide a net in categorizing patents as financial in nature.”
–ReutersThe US Supreme Court (SCOTUS), by refusing to step in, does not put at danger decisions such as Alice, which is probably what we want. This is about CAFC ruling against patents. To quote Reuters: “By deciding not to take up the case, the Supreme Court left intact a decision by the U.S. Court of Appeals for the Federal Circuit affirming the patent’s invalidation, which Versata said casts too wide a net in categorizing patents as financial in nature.”
In other news, in light of the Cisco v Arista case (covered here before), Arista is complaining [1, 2, 3]. “The International Trade Commission issued a limited exclusion order and cease and desist order for Arista infringing three patents in an investigation brought by Cisco Systems relating to ethernet switch products,” MIP summarised. The ITC’s build-in bias is a subject we tackled here before. █
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Posted in Europe, Patents at 8:06 am by Dr. Roy Schestowitz
The “historic achievement” is destroying the European Patent Organisation in just two days
Summary: In secretive sessions behind closed doors Battistelli and the Administrative Council conspired to send the no-longer-independent boards of appeal to exile, assuring that patent quality will nosedive and make the Office akin to a registration/filing office
THE EPO scandals should matter to everyone as everybody is effected, not only Europeans. This is a war that’s waged between a class (rich people) and an occupation (patent lawyers) against everybody else. These rich people and patent lawyers are not necessarily European at all; they have clients from other countries/continents and some are not even based in Europe. A Napoleonic egoistic president who cares not about his popularity keeps leading the charge and they (along with the Administrative Council, typically lawyers and heads of national patent offices themselves) support him. As last night's report reminds us, staff (examiners, i.e. scientists) is just collateral damage and judges — i.e. people whose role is to uphold the rule of law (unlike lawyers who typically try to work around the law) — are being driven to exile, as per this morning's leak (now available as text). One might easily be led to believe that we’re dealing here with a developing nation (or ‘third world country’ as some call it), but this is good old Europe, where systemic corruption is apparently still rampant. Patent examination is no longer appreciated because it’s just easier to charge applicants for virtually nothing. It’s like selling ‘holy’ water.
What the EPO now calls “reform” is basically a continuation of demolition of the appeals process, i.e. of quality control. A post in the EPLAW blog about the so-called reform says the following this morning: [found via this comment]
The structural reform of the Boards of Appeal (BOA) aims to increase their organizational and managerial autonomy, the perception of their independence and also their efficiency, in order to respect the principle of effective legal protection within the current legal framework of the European Patent Convention.
It introduces a new institutional framework in which the BOA will no longer be a Directorate General of the EPO directed by a Vice-President but a separate unit called Boards of Appeals Unit headed by a newly created President of the BOA. The Chairman of the Enlarged BOA will act as President of the BOA. The President of the EPO will delegate to the President of the BOA managerial functions and powers including the right to propose new members of the BOA and to propose re-appointment after the term of appointment.
A new advisory body, the Boards of Appeal Committee (BOAC) is created as a subsidiary body of the Administrative Council (AC), composed of six members appointed by the AC, three of them representatives of the member states in the AC and another three from among serving or former judges of international or national courts. The President of the EPO and the President of the BOA have the right to attend BOAC meetings, without voting rights.
BOAC is a funny name. Why did Battistelli et al not just call it “BUNK”, for the whole ‘reform’ is just bunk? For quite some time now we have hypothesised that the Unitary Patent Court/s would replace the boards if not (at best) complement their existing functionality, but right now Battistelli, his Office, a pro-UPC baroness and legal professionals pretty much acknowledge that the UPC is in shambles. It’s impossible to deny, but MIP carries on with its UPC progress [sic] reports today (early in the morning).
How did we end up with a demolished set of boards (of appeal)? How did that happen so fast? Apparently Team Battistelli had people stay up until 2 AM to accomplish this task. As one person put it this morning: “It seems that the new version of the reform of the BOA was adopted with only one vote against (NL) and two abstentions (HU, IT).” This person shared “Reform of the BoA, final version, with modifications highlighted.” [PDF]
“My respect to the representatives of NL, HU and IT,” wrote another person. “Shame on all the others!” The leak that we published this morning caught the attention of the following commenter who wrote:
Just seen a report on Techrights:
http://techrights.org/2016/07/01/leaked-ac-report/
Reform of the BoAs: 35 in favour, 2 abstentions, 1 against.
Reforms include:
relocation of the BoAs to a different building in Munich;
increase of the appeal fees;
new (career) structure;
new conflict of interest rules.
There are no other words for it, what a bloody disgrace! The last point (on conflicts of interest) particularly sticks in my craw. Even CIPA questioned the legality / enforceability of those rules (“We question whether broad discretionary proposals would be enforceable in a national court if necessary”). And yet this point seems to have been totally lost on more than 90% of the delegations to the AC.
The other points in the report are almost too much to bear (“the Office presented a comprehensive social report, highly appreciated by the delegations”, blah, blah, blah). The final straw has to be postponement of discussion of disciplinary procedures. That is nothing more than code for “Carry on as you were, take your decisions and we will cover it all up afterwards”.
This seems like a massive loss for the EPO and a win for Battistelli, whose interests are very different from the EPO’s. One person asked a short while ago: “Isn’t there anything we can do? I realize that many of the people who write are EPO employees and fear for their salaries/pensions, but not everyone, surely.”
Even past employees of the EPO are affected by this. Past patent recipients are likewise affected by this. Entire industries in Europe are negatively affected by this. Look what Battistelli has done. What will remain of the EPO by the time he leaves or gets sacked? Surely, the disaster which the EPO has become will cost a lot of money to the European economy; Europe will rot if this isn’t stopped. The European Patent Office has just deepened the crisis and it will be harder to undo if Battistelli’s attacks on the boards get implemented (not just reoccupying vacant openings). The EPO's PR team pretends everything is great, but exactly the opposite is true (that’s why it hired disaster management professionals from the outside). Is Australia wishing to be associated with Battistelli and his declining Office starting today? “On 1 July 2016,” this article says, “the Patent Prosecution Highway (PPH) pilot program between the Australian Patent Office and the European Patent Office (EPO) begins.”
Is this likely to end up like the previous pilot programme which blew up in the EPO's face? Or the shortening of appeal periods (also effective starting today)?
Reading through some comments in IP Kat this morning, fury and despair are dominant. There is nothing at all to be tolerated, let alone celebrated.
One person wrote:
Let us face it, Battistelli has won the final battle. It is now clear that Battistelli can threaten the enlarged board of appeal publicly (that is the subject of this article) and get away with it. Any pretense of rule of law is abandoned.
It is now also clear that Battistelli can simply ignore the demands of the Council as he pleases (social dialogue, justice needs to be seen to be done, etc…). And it is also clear that he can fire whomever he pleases any time he pleases as he sees fit.
He won.
Regarding the EPO’s monopoly one person said:
My dear Anonymous friend, if the users are not happy with all this they can go somewhere else to get their European Patents.
Oh, wait – they can’t …
The following comment called it “end of the EPO saga and the lowest morality level in the history of the Office.”
We have now reached the end of the EPO saga and the lowest morality level in the history of the Office.
It it clear that BB with his incompetent team will now reign undisturbed for another two years with the full support of the AC, whose members he convinced with cooperation money and intimidated with all kinds of threats.
We can well imagine what they will produce in the coming two years with their absurd synergism.
Disgraceful the attitude of the German delegation and government who tolerate such a situation on their territory. But we know: they have their own interest as the German Office has always been in competition with the EPO !
Disgraceful also the attitude of attorneys and their associations, especially the German and British ones. They will now get the inevitable erosion of quality and (good for them!) no many chances to play around with the claims as – in the name of efficiiency – the procedure will become more and more strict.
Adieu to the good old days of the ideals! Adieu to the EPO as a model organisation! Adieu to the solid values of justice and respect ! The sharks are here.
“If these reports are true,” wrote another person, “then the reputation and functioning of the EPO has been dealt a mortal blow.”
If these reports are true, then the reputation and functioning of the EPO has been dealt a mortal blow. The AC has let the president off the hook yet again, when there could not have been more blatant evidence of him overreaching his powers (and even defying the will of the AC). I now struggle to conceive of a situation where the AC would impose severe sanctions (or indeed any sanctions at all) upon the president… so it is perhaps not all that fanciful after all to suggest that we could have a Guantanamo-am-Isar if it carries on this way.
Is there a well-informed reader who can provide us with information about how the various different delegations voted? Also, are there final forms of the texts of the proposals that have been approved by the AC? Whilst I am at a loss as to how this situation can be fixed, it will be important for the users to know which national delegations have effectively ignored their feedback.
Upon reflection, we should perhaps not be too surprised that BB was, in the words of a previous commentator, “granted impunity”. A much clearer infringement of the independence of the Boards of Appeal occurred when the president suspended (pending investigation) a member of the Boards. In addition to being contrary to the independence of the Boards, no one has ever seriously suggested that this action was anything other than a gross violation of the wording (and principles) of the EPC. And yet the AC officially sanctioned / pardoned that action. They also sanctioned the prolongation of the suspension of the member concerned, which (in view of the term of office of that member) could be viewed as dismissal in all but name, ie yet another contravention of the EPC. Next to these actions, the president sending a naughty letter looks like nothing to get too worked up about.
Which reminds me: did the AC decide what to do about the suspended member, given that the EBoA has closed the disciplinary proceedings without proposing dismissal? Under the provisions of the EPC, it would seem that the only viable course of action will be to reinstate the member, pay his costs for the proceedings (as well as salary withheld during the period of suspension) and leave him in peace to get on with his job. There is also an argument that his term of office should be extended for a period equal to that of the period of suspension.
But is any of that likely to happen, or will the AC sanction yet another violation of the EPC? At least the costs for the proceedings should be paid, as that has been ordered by the EBoA…. but, oh wait, I forgot that, thanks to the AC, the president can ignore the orders of all judiciary with total impunity!
Regarding “EPO communication,” one person said, “the Communication Department did yet another miracle” and to quote the reasons why:
The last “News from the Council” published by the EPO is clear: the last AC that took place the last two days in Munich was, if not a great success, at least an “historic achievement” (sic!). One can further read that the “social report [was] highly appreciated by the delegations”!! So one may gain the impression that everything went smoothly and parties are happy with our management and the situation in the EPO.
To put it mildly, this is far from being the truth. Or at least, this is far from being the perception of observers in and around the AC.
Fact is that in fine only ONE single topic was discussed in 2 days: DG3. And from the feedback gathered, (see below) the AC was very dense, including a working session until 2 o’clock in the morning. It has been a very hard ride for all participants, in particular for the President and his team.
One thing the EPO official communication is correct about: however sweaty, muddy and tough the whole game was in the end, what counts is that the president is still standing. Eventually, nobody cares if the game has been won during the prolongation, penalty shot or many yellow cards have been handed out… let alone if the real problems have not been addressed.
Regarding the DG3 ‘independence’ (“23 interventions, no support but… expecting overnight a fundamental miracle”):
As indicated above, the AC only dealt with the single point of DG3 independence in two days: 23 interventions were made just on the first day. All of them, but 3, very critical of the original proposed reform.
In substance the criticisms broadly took on board the comments made by AMBA and the Staff Representation. These were mainly aimed at the potential interference or abuse of influence that the president could still have on the independence of the board such as:
o Delegation of functions and power and the revocation of that delegation;
o Right of nomination of BoA and its president (more or less qualified as “Systemwidrig” by the DE);
o Other topics such as careers, budget, Rules of Procedure, etc…;
o Many insisted on the need to involve all parties in a consultation to produce a document having a wide acceptance.
In the other fields that are loosely linked to the issue of independence but were adamantly presented by the Office as “part of the package”, the criticism was equally severe:
o The Tax structure was heavily criticised by most interveners: “it does not make sense cut the filing costs of patents on the one hand and, on the other hand, render their defence expensive”, said more or less (not verbatim) the German delegation;
o The relocation of building was broadly criticised as neither fit for purpose and nor economically making sense;
o Last but not least the “post-employment” reform was discussed only in this context but was broadly perceived by most as neither useful in this context and wrong in its form: “es wirkt wie ein Fremdkörper”, so the DE Delegation.
Despite the flood of criticism, the Board 28 was tasked to work overnight on a new amended version taking on board the above comments…. “Mission impossible” was the comment from several observers.
This is just about the worst possible outcome and they rushed it so that it all happened in just two days without chance/opportunity for vetoes (many people are on holiday right now). Incidentally, it also helped take the abuses against EPO staff off the table and out of the agenda.
Finally, explains the following text, “sessions behind closed doors” went on, resulting in “flabbergasted” DG3 colleagues and “dizzy” staff representatives:
Showdown: a “compromise solution” (sic!) produced overnight to solve the problem of independence of DG3!
Some hope had been raised after that first day, that the AC had seen the light: the heavy discussions on the first day given some indication that not only the real problems have been grasped but also solutions integrating the comments made by observers, in first place AMBA, would be integrated. While no observers are allowed in the C-points (confidential), several participants reported that the level of disagreement continued in an even more intense during these sessions behind closed doors form (cannot confirm that shouting may even have been
involved…).
But this hope evaporated quickly on the second day as a Rev.1 of both the independence document (CA/43/16 rev1) and the Post-service employment (CA/29/16 add.1rev.1) were tabled. It followed a surreal and short discussion were most intervening delegations explained their support for the suggested “compromise solution” (FR, DE, IT, SL, President). Despite warning from the IT, NL delegations, Epi and your staff representation, the document was “waved through” with only 2 abstentions (HR, IT) and one against (NL). The good intentions of the previous day towards consultation were forgo en: as an illustration, the observers, that is Epi/business Europe and the Staff representation, received the new version during the live session and nobody had a word about “statutory consultation” either.
Clearly some of the changes are positive in content, but the complexity of the dossier is such that, at this stage, it is too early to grasp their consequences. Fact is that these changes fail to take into consideration the main comments made the day before. It is even less understandable how this sudden change of mood came about. DG3 colleagues are flabbergasted and staff representatives dizzy. One remains sure: a fundamental document has been produced overnight, “mit heisser Nadel gestrickt”. God helps us… I suppose?
What an incredible coup that was. The EPO was right to call this “historic”. It’s definitely the lowest point in the EPO’s history, unless someone can point out to us something even worse. █
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Posted in Europe, Patents at 7:04 am by Dr. Roy Schestowitz
“An Earthquake Would be Needed for the Administrative Council… Not to Support My Major Proposals.” –Benoît Battistelli
This is how Benoît Battistelli allegedly ‘buys’ the Administrative Council
Summary: The Administrative Council (AC) of the European Patent Organisation continues to show carelessness and apathy if not complicity by maintaining a deeply heartless approach and blind support for a President with 0% approval ratings (among polled staff)
WHEN IT COMES to the EPO, disregard for the rule of law, for the rights of staff and for anything other than self-servitude is the norm. We were therefore far from shocked by the Administrative Council’s attitude this week. The Administrative Council is now complicit rather than merely apathetic or misinformed (ignorance as an excuse). It actively helps Battistelli crush the EPO, destroy the lives of staff, and basically discredit the European Union as a whole (bringing it closer to a state of collapse). This matters not only to people who work within or interact with the EPO; it should matter to everybody in the world, not just in Europe. This is a coup by neo-conservatives-like charlatans from ENA and until/unless they are stopped, there are going to be severe long-term consequences. It’s a truly destructive force.
“This matters not only to people who work within or interact with the EPO; it should matter to everybody in the world, not just in Europe.”The Administrative Council has no excuses for its behaviour and Mr. Kongstad clearly returned to Battistelli’s lap 4 months after his strongly-worded letter. Battistelli made a mockery of nearly every member of the Administrative Council as he didn't do anything they told him to and yet his sacking isn’t even on the agenda. Following last night's report and this morning's leak we now have some updates from an insider.
“Social dialog and other “minor” issues,” noted the person (referring to social unrest as a minor issue sarcastically), “circulez ya rien à voir!”
Here is a roundup of the relevant developments:
On the first day, the presidential activity report was the opportunity very little rejoicing from the delegations. Beyond the casual and traditional congratulations for the good production, all delegations asked pointed questions or even explicit criticism on the quality of the EPO work. A thorough report from the Office was requested. Further the Social climate was qualified as “unsatisfactory” (DE) or giving “great concerns” (NL) and it was promised to discuss this more in detail later.
Unfortunately, it seems that this point went under as the delegates rushed to catch their plane after lunch. The Social Report on the second day was the occasion of surreal congratulations for its “extensiveness” (NO) and the “great amount of facts” (UK). A staff representative reminded the AC that Laurent Prunier got suspended just one day before this very AC session. And Staff plea to urgently act on this front remained uncommented: not a word was lost on the deep social crisis in the EPO. And neither was the AC March resolution
mentioned.
All these points, including the two reform proposals (investigation CA 52/16 and disciplinary procedure) were brushed aside and pushed to the next council. The same applies to DG3 colleague who will have to wait until the next session of the AC (at least) to know how this noble institution intends to put into application the final decision taken of the Enlarged Board of Appeal several weeks ago. By then, the DG3 colleague will have been suspended almost two years.
“I suppose a mix of perplexity, disappointment and deep sadness are in order,” concluded the person who wrote the above.
Consider the Bretton Woods Legal Opinion and Report, which are circulating [PDF] among EPO staff [PDF] these days. “Bretton Woods was instructed by SUEPO to produce an opinion in respect of the rights of staff members,” as one person put it, but the Administrative Council continues to ignore any such reports, perhaps drunk on money (since months ago). As one reader put it to us: “Is it the Administrative Council or the great People’s Chamber in Pyongyang? I’m too punch-drunk to add anything else.” █
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