Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone

THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).

“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).

“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”

He wants a “fight”.

“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”

Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.

Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).

“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”

“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.

Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”

Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.

Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”

“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27^th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).

CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).

Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”

There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:

Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.

The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.

Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.

This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.

The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”

“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”

Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.

Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.

Watchtroll is to the patent world what Trump is to civilised politics. █

Summary: In defiance of common sense and everything that public officials or academics keep saying (European, Australian, American), China’s SIPO and Europe’s EPO want us to believe that when it comes to patents it’s “the more, the merrier”

RECENTLY, Australia’s Productivity Commission reiterated its opposition to software patents (as before), only to face protests from the patent microcosm (also as before). The report came out so close to Christmas that not many people covered it. During the holiday TechDirt wrote that:

Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed — with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems — the kinds of things we discuss all the time around here.

TechDirt focused on copyright aspects of the output from Australia’s Productivity Commission. We already wrote about half a dozen posts about the patent aspects of the Productivity Commission’s report (May and December). The bottom line is, the Productivity Commission basically bemoans both copyright maximalism^* and patent maximalism; it specifically chastises software patents. These are seen as detrimental to Australia (rightly so!).

“The bottom line is, the Productivity Commission basically bemoans both copyright maximalism and patent maximalism; it specifically chastises software patents”Look at China for a cautionary tale. It’s quickly becoming a terrible place for inventors and producers to be in. “Patent inventorship has been disputed in several recent cases in China. Wenhui Zhang reviews four court decisions that provide lessons for inventors,” MIP writes. China’s patent office, SIPO, has become the dumpster of rejected patents — the place where one is guaranteed little scrutiny and lots of cheap patents (expensive in a court where the lawyers can make a killing). The EPO is going down the same route under Battistelli, although this transition is a gradual one.

“Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement.”In a later post we are going to show just how quickly patent trolls are emerging in China as a result of SIPO’s policies. It’s quite incredible, especially in light of the death of patent trolls in the US (due to patent scope restrictions, among other restrictions).

Remember how the patent system was originally, as per the history books, conceived as a way to reward inventors and for publication of inventions? Not anymore. Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement. And watch what MIP is currently saying about PCT. “For many patent applicants,” it says, “the primary value of the PCT is as a delaying tactic.”

Great for productivity, eh? Not.

“As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods.”“With prosecution costs being a significant contributor to the total price of obtaining patent protection,” MIP says, “applicants are well advised to make strategic decisions early on in the application process to limit costs further down the line. International (PCT) applications are known by many applicants and IP professionals as a convenient delaying tactic when considering jurisdictions in which to file applications following a first filing.”

More than half a decade ago we wrote many articles about the dangerous vision of a global (or globalised) patent system and what it would entail. Now, imagine those million plus patent applications in China (obviously low quality patents) being pointed at every single country/company in the world. As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods. █
________
^* The misguided idea that copyright scope, rigidness, lifetime etc. should be maximal if not infinite. This tends to promote centralisation of power/ownership, monopolisation, and harm to culture, curation, preservation, free expression, etc.

Summary: The problem associated with Battistelli’s strategy of increasing so-called ‘production’ by granting in haste everything on the shelf is quickly being grasped by patent professionals (outside EPO), not just patent examiners (inside EPO)

THE scandals at the EPO have not been abated, but we took a couple of days off and thus weren’t able to cover these.

The European Patent Convention (EPC), as it was put together with a vision almost half a century ago, has been thoroughly compromised. Respect for the EPC came to an end under Battistelli, who treats the EPC like Donald Trump treats the Constitution. Don’t fall for this latest spin from Battistelli’s PR department. Battistelli, a crooked boss with the temper of Donald Trump and the facial expression of Arsène Wenger, has managed to alienate just about any member of staff. He has also alienated patent attorneys and applicants. He’s now living on borrowed time and the longer he stays, the greater damage he causes.

Recently, the EPO’s legal professionals were publicly admitting the mistake of granting patents on things that European authorities explicitly and repeatedly oppose. The EPO belatedly realised that granting patents on life makes everyone angry, including many examiners. George Lucas from Marks & Clerk wrote about it today and another article on this subject was cross-posted in at least three sites of patent lawyers [1, 2, 3]. To quote the key part: “While the U.S. is still sorting out “natural products” jurisprudence under 35 USC § 101, the European Patent Office (EPO) is wrestling with the patentability of plants and animals, and has announced an immediate stay on all patent examination and opposition proceedings in which the outcome “depends entirely on the patentability of a plant or animal obtained by an essentially biological process.” The stay was prompted by a recent Notice from the European Commission (EC) concerning Directive 98/44/EC on the legal protection of biotechnological inventions. In the Notice, the EC concluded that plants or animals derived from essentially biological processes are not patentable under the Directive. Until the EPO provides further guidance on this issue, applicants should exercise additional care in drafting the description and claims for inventions related to plants and animals.”

Yes, now they pay the price for an awful decision made years ago by the EPO.

In the US there are similarly controversial decisions about patents on nature/medicine (Merck). IP Kat has this new article today about “patents covering… claim the use of this dosage regime.” Citing the FDA, IP Watch wrote:

Biotherapeutic medicines are made out of living organisms and cannot be replicated. No generic medicines, which are exact copies of the reference product, can be made. The generic equivalent of a biotherapeutic would be biosimilars, which are highly similar products. The United States Food and Drug Administration has issued a guide to help producers to prove how close their biosimilars are to the biotherapeutics.

Typically the Boards of Appeal (probably the Enlarged one) would weigh in and make sense of it, but Battistelli’s EPO is marginalising these people. Quality control is a nuisance to one who reduces patent quality in order to reach misguided goals. See “EPO Enlarged Board Of Appeal Finds The Cure For Poisonous Divisionals”, published this week in a couple of sites for lawyers.

Citing this paper from 2015, “Comment on Enhancing Patent Quality”, someone from the EPO sphere urged us to consider the importance of patent quality. Brian J. Love from the Santa Clara University School of Law wrote in his abstract: “This Comment responds to the U.S. Patent and Trademark Office’s Request for Comments on Enhancing Patent Quality, published February 5, 2015. It proceeds in two parts. First, I share two general observations about the PTO’s current slate of New Quality Proposals: specifically, it fails to include any reforms that apply post-issue or any reforms that exercise the PTO’s fee-setting authority. Second, building on these observations and two recent empirical studies of mine, I outline two proposals that I urge the PTO to consider: specifically, an increase in maintenance fees and a decrease in fees for post-issue administrative challenges.”

We don’t expect the EPO to learn from the mistakes made by the USPTO in the past (things are improving now). In fact, things keep getting worse as Battistelli drives away a lot of staff and still expects double-digit growth (percent-wise) in the coming (current) year, as measured by the number of patents (or “products”) dealt with.

Kluwer Patent Blog, typically a mouthpiece for the UPC if not the EPO as well, is obviously aware of the EPO crisis because this year’s leading posts, as judged by number of readers, is topped by EPO (specifically the scandals) and UPC. A reader of ours “found this highly interesting post” which resembles what happened in IAM, as mentioned at the time (before Christmas) and to a lesser degree IP Watch.

It sure looks like concern about the direction the EPO has taken, also on purely technical grounds (not labour law but patent quality), is growing. Readers who didn’t read Techrights during the holiday may wish to revisit the leaked letter to Quality Support (DQS) at the European Patent Office. Now compare this to this latest puff piece from today. It says: “Complaints to the European Patent Office (EPO) are dealt with by a central EPO department known as Directorate Quality Support (DQS), which is also solely responsible for drafting and sending the official EPO response to the complainant. The default position is that both the original complaint and the reply thereto issued by DQS on behalf of the EPO are not made public, but rather are kept in the non-public part of the file to which the complaint pertains. This default position was apparently established by a decision of the President of the EPO in 2007. On the face of it, this would not appear to be a particularly contentious position, and is possibly justified given that complaints could be prejudicial to the legitimate personal or economic interests of third parties. Presumably the EPO would rather not place itself in a position of being a public outlet for any such potentially prejudicial remarks.”

As we showed here during the holiday, Directorate Quality Support (DQS) has itself become a shameful failure and utter mess. Applicants who receive such terrible service even resort to complaining to politicians, only to discover that the EPO is immune to prosecution. █

Part of the duopoly (with Visa)

Summary: Free/Open Source software in the currency and trading world promised to emancipate us from the yoke of banking conglomerates, but a gold rush for software patents threatens to jeopardise any meaningful change or progress

ANY company that built its presence/niche/empire on proprietary software sooner or later finds out that it is not sufficient in the face of competition that is based on sharing. Proprietary software is unable to compete with Free/Open Source software. Apple’s patent war on Android (Linux and Open Source), for example, is not new. We used to write a lot about it when it started (Apple v HTC) and Apple is gradually losing more and more of its battles (the higher up they do, the lesser the success rate, as the latest Supreme Court decision served to show — a decision to be discussed tomorrow). Even so-called ‘friends’ of GNU/Linux, Amazon for instance, are pursuing loads of software patents that are occasionally being used.

At the end of last year we gave new examples of software patents being used against Free/Open Source software in finance — the very topic which got this site started in the first place. Worrying about the same type of issues (the attack on Bitcoin/Blockchain [1, 2, 3]), yet another site wrote about it just before the year ended. To quote:

Creating a ‘Blockchain Industry:’ Patenting the Blockchain

Patent filings for blockchain technology have more than tripled since 2014; this spike includes patents filed by cryptocurrency exchanges such as Coinbase, payment processors like Mastercard, and banks like Goldman Sachs and the Bank of America.

According to a report conducted by law firm Reed Smith, the most popular areas for these patent applications are payment systems: both for traditional forms of money and for systems that will be used to trade cryptocurrencies or digital tokens. Mastercard, by way of example, recently filed four blockchain patents for separate steps along authenticating a transaction on the blockchain.

Given the behaviour of IBM as of late and its ambitions in this space (not to mention clients such as Goldman Sachs), it wouldn’t shock us if Big Blue too became not just a participant in the patent gold rush but also a serial patent bully (recall TurboHercules v IBM). This isn’t a wish but a growing concern; all that patent hoarding, as noted in a variety of Bitcoin-themed news site, will likely culminate in some legal wars and out-of-court settlements, leaving the same old oligopolies in tact. That’s just protectionism, not innovation. These patents are not trophies to them; they intend to use them one way or another (they’ll probably claim “defensively”). █

Summary: To nobody’s surprise, the past half a decade saw accelerating demise in quality of European Patents (EPs) and it is the fault of Battistelli’s notorious policies

THE overpaid ‘king’ of the EPO (who keeps the salary he is giving to himself secret, like in a third world country) keeps rewarding himself and his protectors for leading the Office in a self-destructive path — a lethal trajectory that would leave nobody but them (the top-level management) well off financially. The have the economic tenacity of oligarchs that prey on states for profit. They need to be stopped before it’s too late (if it’s not too late already, as redundancies loom over the horizon).

Earlier this afternoon an article from Heise’s Christian Kirsch was published in German. An automated translation of the article tells us it’s much of the old stuff, i.e. not much new information. “Proceedings before the ILO may take up to ten years,” explains Kirsch and also “there are different opinions between the employees and Battistelli about the “improvement in productivity” that he has advanced in the EPO.” To quote the automated and unedited translation: “Visible the first time in 2011. At that time, were the President suggested that the employees from the surplus of the Office a bonus of 4,000 euros net pay. On the other hand, the employees’ representatives expressed their opinion: such a bonus signals that the goal is above all to grant many patents and consequently to generate a high fee. It is, however, essential to examine the applications thoroughly and to maintain the high standard of the EPO in the granting of patents.”

IP Kat‘s debunking of patent quality claims is cited also. To quote: “Auditors and patent attorneys, however, are skeptical about what Battistelli’s “productivity increase” is about, which should have amounted to about 14 percent in 2015. To interpret the figures according to the British Blogs IPKat considers out that the Office has resorted to “cherry-picking”…”

A lot of the rest deals with the spineless [cref 96056& chinchillas] of the Administrative Council, the attack on the independence of the appeal boards, attacks on SUEPO, and at the very end Brexit’s effect on the UPC (the automated translation there is too mangled to be comprehensible).

Looking across the Atlantic at the USPTO, things appear to have meanwhile improved. As Patently-O said after the new year had begun, patents continue to be challenged by PTAB, which is sort of an equivalent of the appeal boards in the EPO (though not exactly similar). One new article says about claims of temporal separation between two communications in a patent that a court stepped in and:

On remand, the PTAB will decide whether the prior art the claim elements as they are more narrowly defined.

Remember that PTAB did not even exist more than half a decade ago!

Battistelli’s vision of the EPO is akin to that of a registration office with minimal appeal opportunities. Because hey, who needs justice anyway? It’s not as though today’s EPO cares about justice. Not even of its own employees…

Another new article of Patently-O says:

The Supreme Court has in recent years routinely rejected the Federal Circuit’s rigid, cabined interpretations of the Patent Act. While no one knows what the future holds, today’s practitioner’s conduct may be judged by a more stringent standard than suggested in Therasense and proposed here. That has happened with eligibility, obviously. Given that the Supreme Court could hold that the Patent Act requires more than avoiding intentionally obtaining a patent that you know you shouldn’t get, and given that that interpretation will likely be applied to all issued patents, and given the USPTO’s statement that it hopes that the new definition will result in less disclosure, one can see a trap for the unwary practitioner. This may give practitioners a false sense of security.

By “practitioners” he means the patent microcosm, or the bunch of people who profit from patent maximalism without actually producing anything (other than paperwork).

And speaking of patent scope, today IAM correctly points out that China has become the land of patent chaos. Patent quality barely exists there and Battistelli seems to be emulating that. He wants a production/assembly line, not a patent office. It’s far too easy to just grant a patent on every piece of garbage and figment of imagination; it’s a lot harder to come up with real inventions and ensure that these — and these alone — get granted a patent, making a European Patent (EP) synonymous with somewhat of a trophy. Here is what IAM (patent maximalists) wrote:

Pro-plaintiff China – Not only does China handle more patent applications than anywhere else on earth, as well as more patent suits, but it is now also becoming one of the world’s most patent-friendly jurisdictions. This was a trend that accelerated during 2016, when it emerged that the Beijing IP court – one of three established in the country in 2014 (the others being in Shanghai and Guangzhou) – had handed foreign rights owners a 100% win rate in its first full year of operation. What’s more, unlike their counterparts in the US, the Chinese courts are willing and able to hand out injunctions, as the likes of Samsung and Apple discovered last year. Not everything in China’s patent garden is rosy – damages are low (though getting higher), enforcement of court decisions is often a problem and there are issues around protectionism – but for a country that has no strong patent tradition, China has come a long way very fast. And with manufacturing jobs moving to lower cost countries, the government’s push for an economy built on innovation is only likely to reinforce this trend. Perhaps the most significant confirmation of what is happening came at the end of the year when it was announced that Qualcomm had settled a high-stakes patent dispute with mobile manufacturer Meizu. This was an American company that had taken action against a flag-waving local business and, in the end, the latter concluded it could not win. That says a lot.

Speaking of China, Tian Lu reviews a book of Qiao Yongzhong. “Many experts in China, including Dr. Qiao,” Lu explains, “feel no smugness with the huge patent filing numbers.”

It’s just a big heap of garbage. The EPO seems to be heading in the same direction, unlike the USPTO, owing in part to SCOTUS with the above-mentioned rulings.

For Europe to be competitive we must ensure that European authorities recognise the colossal damage Battistelli is causing and belatedly step in. █

Summary: One of the lesser-publicised cases of EPO witch-hunting, wherein a member of staff is denied a salary “without any notification”

JUST over a year ago we started the “Insensitivity at the EPO’s Management” series — a series which dealt with ethical rot at the EPO under Battistelli. The last part dealt more specifically with intolerance of criticism.

“The only ones which are definitely more tragic are those who ended tragically with suicide, I have no doubt to say.”
      –AnonymousRecently, someone told me s/he had been mistreated by EPO management, which even stopped paying the salary! S/he “had to conclude that [the] monthly wage has been completely suspended since [...] and that happened without any notification.”

This is like sacking or suspending someone without even telling him/her. It’s arguably worse than the infamous “house ban” of a judge (which was an illegal move, recently followed by halving of the salary). The following is new to us and it shows another dodgy kind of practice at the EPO. We are going to look into it, even if quite gradually in the coming weeks, as we suspect it will be part of a growing problem/pattern.

“The office has been exploiting my health loss and the dramatic situation of a deadly disease in my family.”
      –AnonymousA short while ago the EPO promoted Praktika Internships, which we deem a method of giving well-paid examiners some competition to drive them out and/or reduce their salary, pension etc. “This is what you can expect from the Praktika Intern programme,” the EPO wrote, but only ill-informed people would apply for a job at the EPO, where massive layoffs are believed to be on their way.

“I am sure there are some details that I can share with you,” said the person whom we spoke to, “some of which are actually public and not related to my case, yet hidden in the maze of info that the net floods us with every minute.

“It would be also very difficult to summarize facts here. When you will get some of them, events that span many years, but acutely affect me up to a critical point for the last two and a half, I won’t be surprised if you will find my case the worst among the four or five that are now at a critical phase, such as the three suspended staff representatives, the suspended judge. The only ones which are definitely more tragic are those who ended tragically with suicide, I have no doubt to say.

“And later they wonder why people hardly want to work for the EPO anymore?”“The office has been exploiting my health loss and the dramatic situation of a deadly disease in my family. The Office exploited the situation deliberately all the way through, until the final death of my mother, whom I wasn’t allowed to visit, not even in the extreme moments, and further on after such tragic death, by exerting further pressure on me, in spite of my certified illness, also by interfering with the severe mental illness of my father, whom the Office did not restrain from contacting directly, causing unnecessary distress to him, only to check upon me and my whereabouts. I should add that the Office imposed on me a real house arrest, in spite of explicit and urgent recommendations from my doctors against such a pointless measure. I had also to face defamation, fabrication of evidence, the breach of every single rule and procedure that they have thrown at me: disciplinary ones included.”

In the coming weeks we intend to shed more light on what seems to have become a modus operandi inside the EPO. This one case, like previous ones we covered, seems to fit a pattern. By sharing with our readers the hallmark of such attacks on staff we hope to help employees better protect themselves, or at least take/initiate more effective action. And later they wonder why people hardly want to work for the EPO anymore? █

Summary: New trouble for Željko Topić in Strasbourg, making it yet another EPO Vice-President who is on shaky grounds and paving the way to managerial collapse/avalanche at the EPO

PRESIDENTIAL loyalists like Willy Minnoye (Vice-President of the European Patent Office), Ciaran McGinley and Lucy Neville-Rolfe are leaving and the Croatian gravy train (the 'Balkan Express') is close to crashing. We have received the following information from Croatia today. It looks plausible that one EPO Vice-President won’t just retire early but might actually end up behind bars like Ivo Josipović (former President of the Republic of Croatia). In the words of our source:

STRASBOURG – TWO CORRUPTION INDICTMENTS BROUGHT AGAINST ŽELJKO TOPIĆ

On 19 December 2016 the EU Court in Strasbourg received two indictments against Željko Topić, former Director General of the State Intellectual Property Office (SIPO) of the Republic of Croatia in Zagreb and currently the right hand of Benoit Battistelli at the European Patent Office (EPO) in Munich. The indictments include a number of offences in support of corruption committed by Željko Topić as an accountable person during his DG office at the SIPO in Croatia. Namely, due to inefficiency of the Croatian justice and the political protection provided to Željko Topić in the Republic of Croatia, especially by the State Attorney’s Office of the Republic of Croatia (DORH in Croatian) and the Office for the Suppression of Corruption and Organised Crime (USKOK in Croatian), after more than 8 years of investigation, a party to the proceedings made a decision to seek legal protection within the international frameworks at the EU Court in Strasbourg. At any rate, Croatia has not been declared one of the most corrupt countries in the world for no reason according to the latest Corruption Perceptions Index of Transparency International. The most tragic fact in the entire lengthy investigative proceedings in Croatia is that Željko Topić has never been called in for questioning by the police or the State Attorney’s Office. All this time Željko Topić has been receiving his pay from the EPO nonstop in the amount of EUR 18,000.- a month, and the parking space in the EPO car park in Munich has been adorned by his black Mercedes-Benz illegally appropriated from the SIPO in Zagreb, i.e. from the Republic of Croatia. The former President of the Republic of Croatia, Ivo Josipović, is listed as one of the potential political protectors of Mr. Topić. Using a possible criminal offence of influence peddling the former Croatian President has protected Željko Topić from criminal prosecution in investigative structures of the Republic of Croatia for a number of years for one reason only, which reason concerns the operation of the Croatian parafiscal musical association under the name of the Music Authors Rights Protection Office (ZAMP in Croatian). That is to say, by obstructing investigation and protecting Željko Topić the former Croatian President Ivo Josipović in fact has been protecting himself since there is a clear trail of corruption offences leading directly to him over the ZAMP and the SIPO. Moreover, the staffing of the SIPO of the Republic of Croatia is largely comprised of the ZAMP employees having disputable qualifications. The fear that Željko Topić might “squeal on him” during the investigation and the legal proceedings in fashion of the member of the Calabrian mafia has resulted in dropping of criminal charges against him, which in this particular case ended up in Strasbourg. The final act in this judicial play protecting the person and the action of corrupt Željko Topić was performed at the County Court in Zagreb and the Constitutional Court of the Republic of Croatia where the investigations against Topić were declared inadmissible. Therefore, and especially due to the unbearable stench of the judicial marshland, nobody in Croatia was surprised by the most recent statement given to the media by the new Minister of Interior saying that all judges of the Constitutional Court should hand in their resignations on account of corruption since they pose a direct threat to national security of the Republic of Croatia. In addition to the legal proceedings in Strasbourg, the party to the proceedings has also announced criminal prosecution against the leading persons in Croatian justice, and the DORH and the USKOK implicated in protection of Željko Topić. Those charges will also be brought in France, most probably at the Ministry of Justice in Albertville or Grenoble. Specifically, after Croatia joined the EU as a full Member State, the Croatian citizens also have a possibility to take criminal offences to courts beyond the Croatian borders. In conclusion, as learned off the record, there are at least 6 more criminal investigations carried out against Željko Topić in Croatia.

Yes, we already heard about those additional 6 criminal investigations against Željko Topić in Croatia. The man seems to be corrupt enough to match the job requirements of Battistelli and Bergot. And since he is so legally vulnerable they can probably better control him (e.g. by blackmail), too.

We shall post more information about the Strasbourg case in the coming days if not weeks.

The situation at the EPO is getting worse by the day. Published a few days ago by media in Luxembourg (looks like a French and German mix) was an article about the climate at the EPO. The purely automated translation (not edited) says:

The dispute between the President and the Suepo trade union, which represents the bulk of the 7,000-strong workforce, has been raging for more than five years. Minister Etienne Schneider is now responding to a parliamentary question by the LSAP deputies, Claudia Dall’Agnol.

The leadership style of President Benoît Battistelli, who took over this office in 2010, leads from escalation to escalation. Only recently did employees move through the streets of Munich and consulates. According to the statements of the trade unionists, Battistelli has for a long time sprawled the bow so far that the working climate is at its zero point. In the course of this year, three trade unionists from the Suepo were already set before the door. According to our information, the President has indicated very spurious causes of these cancellations, which are not to be attributed to the hair.

Full and accurate translation of the entire article will be appreciated. █

Summary: The sham which is the so-called ‘social’ ‘study’ as explained by the Central Staff Committee last year, well before the results came out

WRITING ABOUT THE Social Study Award Committee, last year the staff representatives at the EPO contacted the Chinchilla Man of the Administrative Council. They tried to make him aware of the fact that the EPO’s ‘social’ ‘study’ would be a sham. And as correctly envisaged at the time, it was indeed a sham ‘study’ produced by a firm of legal bullies, i.e. Battistelli’s kind of fellas’. The outcome of this bogus ‘study’ we covered in the following articles:

• Battistelli-Commissioned PwC ‘Study’: Leaked Document Shows PwC’s Dishonesty and Misrepresentation of EPO Staff
• Battistelli-Commissioned PwC ‘Study’: Survey Comparison Shows Serious Deterioration and Efforts by PwC to Disguise the Truth
• Battistelli-Commissioned PwC ‘Study’: The Raw Outcome Shows Distortion of the Facts at the EPO’s Notorious ‘Social Conference’
• EPO Caricature: EPO-Funded PwC on EPO Happiness
• The Moral Depravity of the European Patent Office Under Battistelli

It was also around this time, back when we were hit by a lot of DDOS attacks [1, 2, 3], that IP addresses from PwC's network got automatically banned for knocking too hard on our servers. The Central Staff Committee wrote the following letter:

To the Chairman and
the Heads of Delegations
of the Administrative Council
of the European Patent Organisation

Social Study Award Committee

Dear Mr Kongstad,
Ladies and Gentlemen:

The Office, through PD43, has invited the CSC to nominate an observer in the Social Study Award Committee.

We consider this a first, tiny step towards restoring social dialogue. Nevertheless, we would like to draw your attention on a fundamental issue:

How does the Administrative Council (and its Board under Article 28 EPC) intend to ensure that the study is independent and free from possible undue influence from the President?

As mentioned in CA 101/15, the Council has decided to launch an “independent external social study” “in close co-operation with the President”. We would like to stress that the expression “independent external social study” is antithetic with the proposal of it being organised “in close cooperation with the President”. It is difficult to see how the President, who is the one who initiated and carried out all these reforms, should be considered the best and only person to conduct this exercise, which would de facto end in a “self-appraisal”.

If a social study is to be a pillar in the resolution of the on-going conflict, its execution and results must be credible to all stakeholders – staff included. For this purpose, all stakeholders (Administrative Council, EPO Management, staff, trade unions, staff representation) must be involved actively from the earliest stage and throughout the whole process. Accordingly:

---

- We would expect the Administrative Council (through a subcommittee thereof) to participate in the Award Committee and in the Steering Committee of the Social Study. Moreover, it should be the Council, and not the Office, to be in the “driver’s seat” during this exercise.

- The Staff Representation and the Trade Unions should be actively involved and not merely an observer.

It is wholly inappropriate to involve the staff representation as a mere observer in the Award Committee, and to state – as PD43 did — that the selected contractor would have total independence in carrying out the study following “established international standards”. If the President is the only party giving input to the contractor, in particular drafting the terms of reference and the technical specifications, the social study will be biased already before the actual selection of the contractor. Also, it remains to be seen how the contractor chosen can remain impartial in respect of the Administration who pays the bill, if there are no other supervising entities involved.

We urge you to take seriously these concerns, so as to prevent an expensive and tragic failure of what could be a first step in resolving the current conflict.

Yours sincerely,

The Central Staff Committee

We confirm that the this letter was legitimately decided and produced by the Central Staff Committee¹

______
¹ Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.

The CSC presently consists of 17 members, because two have resigned in Dec 2014 and one has been dismissed in Jan 2016 (against the recommendation of the Disciplinary Committee).

One full member of the CSC has been downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against nearly all SRs, which further caused health problems.

[...]

cc.:
Mr B. Battistelli; The President of the EPO
PD43

“PD43″ (above) is Bergot — the one responsible for spearheading (at Battistelli’s behalf) bogus ‘disciplinary’ proceedings that are actually union-busting endeavors.

Quite a few months have passed since this bogus ‘study’ came out and we rarely hear about it anymore. We hope that delegates are not gullible enough to treat it as anything other than Battistelli propaganda, composed by a rogue firm at his instructions/command. It’s not independent, it’s external only in the payment sense (payments made to the outside), it is antisocial (staff representatives denied participation), and it is definitely not a “study” in any sense other than the political sense. It was another gutter-level low for Battistelli’s regime. It proved that Battistelli was incapable of handling the truth. █

Summary: Another example of UPC promotion from within the EPO (a committee dedicated to UPC promotion), in spite of everything we know about opposition to the UPC from small businesses (not the imaginary ones which Team UPC claims to speak ‘on behalf’ of)

YESTERDAY we wrote about how the Chairman of the Select Committee promoted the UPC based on false claims. It turns out it wasn’t a one-time thing as this document form the Central Staff Committee [PDF] contains yet another example of misleading if not false claims. The transcript in German says: “Es ist mir eine Freude, Ihnen und dem Engeren Ausschuss zum Abschluss der Verhandlungen zum Einheitlichen Patent als Vertreter des Personals gratulieren zu dürfen. Die Patentprüfer, die zukünftig das Einheitliche Patent prüfen werden, sind hervorragend ausgebildete Ingenieure und Naturwissenschaftler. Viele davon sind promoviert und haben respektable Erfahrung in Forschung und Industrie gesammelt. In ihrer Arbeit sehen sich die Kollegen streng dem EPÜ verpflichtet. Und gerade deswegen freuen wir uns, dass die Artikel 142 bis 149 EPÜ nun mit Leben gefüllt werden. Auch die IGEPA hat sich immer für das Einheitliche Patent ausgesprochen.

“It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk.”“In ihrer täglichen Arbeit leben die Kolleginnen und Kollegen den europäischen Gedanken. Die Wirtschaftslandschaft in Europa ist geprägt durch kleine und mittelständische Unternehmen. Ein starkes und sorgfältig geprüftes Einheitliches Patent kann dazu beitragen, dass nicht nur die Großindustrie, sondern auch die KMUs davon profitieren. Leider müssen wir beobachten, dass für die Arbeit in den dreiköpfigen Prüfungsabteilungen kaum noch Zeit bleibt. Die Effizienzsteigerungen, von denen Ihnen hier regelmäßig berichtet wird, haben eben auch ihre Schattenseiten.

“Allerdings mag es ja durchaus in Ihrem Interesse sein, meine Damen und Herren, die Struktur des europäischen Patentsystems und der Europäischen Patentorganisation anders zu gestalten. Sie haben mit Artikel 172 EPÜ die Möglichkeit, eine Konferenz der Vertragsstaaten einzuberufen. Vielleicht genügt auch schon eine Konferenz der Minister der Vertragsstaaten nach Artikel 4a EPÜ, die eigentlich schon hätte stattfinden müssen, weil sie ja laut EPÜ mindestens alle fünf Jahre stattfinden muss. Ich kann Ihnen versichern, dass die Kolleginnen und Kollegen dann zu dem Erfolg des Einheitlichen Patents beitragen werden und spreche Ihnen abschließend meinen herzlichen Glückwunsch zu dem erreichten Abschluss aus.”

Automated translations of these paragraph suggest that the above admits “the economic landscape in Europe is characterised by small- and medium-sized enterprises. A strong and carefully tested Unitary Patent can help not only the large industry, but also benefit SMEs.”

However, a year later we know that nothing has changed and the UPC would harm everyone but large corporations (some of them foreign) and patent trolls.

If Team Battistelli is so eager to make the UPC a reality in spite of what the European public keeps saying, then it’s clearly an antidemocratic institution whose nature we shall continue to expose. It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk. There’s an emergent pattern here — one that EPO staff is too familiar with by now. If EPO becomes an instrument of domination or occupation, then it needs to be overhauled, starting from the top. █

Summary: Uploaded by SUEPO earlier today was the above video, which shows how last year’s party (actually 2015) was spoiled for Battistelli by the French State Secretary for Digital Economy, Axelle Lemaire, echoing the French government’s concern about union busting etc. at the EPO (only to be rudely censored by Battistelli's 'media partner')

Summary: Leaked letter from Willy Minnoye/management to the people who are supposed to oversee EPO management

Willy Minnoye is leaving quite soon (well before his term’s end) as he already gained great notoriety within the EPO when he became his master's voice on Dutch TV.

Minnoye’s blind loyalty to Battistelli is not news; maybe this kind of obedience is how he worked his way up within the institution, but either way, a year ago — lest we forget — he tried to impose blind loyalty to Battistelli on his colleagues as well. We heard some rumours about this at the time, but now we also have a letter of his (or “the management of the EPO”), which we publish below (with our Ed[itorial] comments):

Letter to the Administrative Council of the European Patent Organisation

From: the management of the EPO

We have been made aware of a draft decision some delegations intend to present to the next March 2016 Administrative Council session.

We would like to share with you our concerns. We take this exceptional step as this is commensurate to the seriousness of the consequences of the draft resolution, if adopted. [Ed: this means, if you actually do your job, watch out!]

Firstly, we would like to point out that we are committed to the mission and goals of the Organisation [Ed: a lie; they're are committed to Battistelli and his UPC fantasy]. To that respect, we have supported and implemented the reforms and new policies stemming from the 5 roadmaps unanimously adopted by the AC in 2011 and 2014. These reforms have already borne fruit and the Organisation is now healthier than ever [Ed: huge, massive lie!] and is equipped to deliver first class services (Unitary patent, quality, timeliness…). [Ed: and terrible patent quality, low staff morale, brain drain etc.] At the same time the reforms have increased the long term sustainability of the Organisation [Ed: no, it’s suffering "a crisis"], while maintaining a very attractive package and excellent working conditions for its staff [Ed: getting worse all the time]. This healthy situation benefits directly the European economy, the Member States, and EPO’s staff. [Ed: no, it benefits directly foreign megacorporations]

Concerns from the staff occur in all countries and Organisations in period of substantial transformation [Ed: no examples given]. Despite this, the staff is currently highly performing and committed to the mission and goals of the Organisation. [Ed: if one ignores the many protests, strikes, and brain drain]

We are aware that Officials of the EPO are being put directly or indirectly under pressure [Ed: they are not the victims, they are the bullies]. The Office and more and more of its officials at all levels of the hierarchy including elected staff representatives have been and are subject to defamation campaigns internally and externally, personal threats and harassment [Ed: reversal of narratives/roles here].

In that respect it is the Office’s duty of care to address the situation and proceed under the EPO’s regulatory framework, to establish the facts and when needed, engage in disciplinary procedures [Ed: they're not disciplinary procedures but union-busting campaigns]. The respondents have regulatory means of redress including the request to a review of the decisions [Ed: no, justice at the EPO is non-existent].

Under the current circumstances, we urge you to consider that the proposal submitted to the AC will undermine the position of all managers to successfully pursue the changes initiated in the road maps as decided in the Administrative Council and will create unfortunate precedents which will jeopardize seriously the management of the Organisation and its capacity to ensure its operations effectively now and in the future. [Ed: the AC never asked for unions to be crushed; au contraire]

We fully support the Organisation’s mission and its fundamental values [Ed: except when violating the EPC and national laws? Then ignoring court orders?]. Therefore we urge the Administrative Council, before taking any decision on the matter to give careful consideration to this letter:
- to remain firm on ethics and not tolerate misconduct [Ed: i.e. they should fire Battistelli and all his goons]
- to focus on the great achievements and improve the positive image of the Organisation [Ed: keeping Team Battistelli in tact would only further damage the EPO's image]
- to endorse the on-going initiatives of the Office in the social dialogue (recognition of unions, social study, current review of regulations, social conference) [Ed: it’s all fake, staged, and paid for; yellow unions earning 'recognition' is worse than nothing]

We are convinced that the implementation of the reforms is a solid basis for a strong EPO fit for the future. [Ed: these 'reforms' are the implementation of autocracy, which puts the legitimacy of the entire Organisation at risk]

For those unable to see what’s wrong with the above, remember the role which the Council is supposed to fulfill, as per the EPC.

As SUEPO put it at the time, “[i]t has been brought to our attention that VP1 has launched an initiative to produce a pledge of allegiance signed by directors in DG1.”

This is so incredibly ludicrous for reasons we mentioned at the time.

“We wonder,” SUEPO said, “given the current circumstances and the letter sent to all delegations of the Administrative Council by the Board 28 – if being “invited” to declare their support/loyalty to Mr Battistelli might at the same time risk being seen as disloyal to the Organisation.”

The Organisation is supposed to boss Battistelli, not be bossed by him, but roles appear to have been reversed and Battistelli now hands some nice 'gifts' to his 'bosses' that are cheaper to 'buy'.

SUEPO said at the time that it “reaffirms its strong commitment to work as a responsible social partner representing around half of EPO staff, to not only restore social peace within the Office, but also to repair illegal (implementation of) reforms and start to restore both the trust in and the reputation of our Organisation.”

Minnoye’s departure is one small step towards detoxification. A lot more people from Team Battistelli will no doubt continue to do damage in an effort to salvage/rescue their naked emperor (rather than simply abandon him). █

Summary: In violation of international labour laws, Team Battistelli marches on and engages in a union-busting race against the clock, relying on immunity to keep this gravy train rolling before an inevitable crash

THE EPO‘s management is now being called "reign of terror" by Dutch politicians. One of them also called the Investigative Unit [1, 2, 3, 4, 5, 6, 7], which we covered here before, the “gestapo”. No mincing of words is necessary when a horrible Battistelli-led regime goes as far as it has.

Someone among the many recipients of Staff Committee publications recently put this document on our lap [PDF]. It obviously merits attention, even if belatedly; Battistelli and his henchwoman Bergot (Principal Director 4.3) already received a copy, so this wasn’t done behind their backs. We wish to highlight one bit from this 20-page (including cover letter) review of the investigation and disciplinary procedures:

- The hearing of the accused person typically takes place towards the end of the investigation, often after a significant number of witnesses have been heard and hundreds of pages of material have been accumulated. Finding the accused person innocent at this stage would mean these efforts have been wasted. In other words, the procedure is conducted in a manner which encourages the investigative unit to find the “subject” guilty.

- The interview with the “subject” is not conducted as a neutral and impartial “fact-finding” exercise in which the presumption of innocence is respected contrary to Art. 6 Circ 342. In practice, a presumption of guilt appears to prevail and the interview is typically conducted in the manner of an aggressive interrogation with the aim of coming to a confession. It seems that the investigators are trained in and employ the “Reid technique”, (see Wikipedia: Reid interrogation technique).

- The accused person is typically informed in a vague and imprecise manner of the original allegations, contrary to Art. 15(1) Circ. 342. The identity of the accuser is not necessarily disclosed. This renders it difficult if not impossible to prepare for an “interview” and thus impairs the right to defence recognised in Art. 6(2) Circ 342. Conducting an investigation in this manner is contrary to the principles of due process as established in ILOAT jurisprudence (cf. Judgments Nos. 3200, …….).

- If the original allegations are weak, the interview seems to serve as a “fishing expedition” to find further material which can be used as a basis for raising fresh charges against the subject. It is not uncommon to find additional allegations being incrementally added to the charge sheet as the investigation progresses.

- Any refusal to comply with the instructions of the investigators, even in cases where these instructions lack an identifiable legal basis or are otherwise disproportionate, is considered to constitute “non-cooperation” which is subsequently deemed to merit additional disciplinary action.

The position paper also says that “it is apparent that existing institutional arrangements are insufficient to ensure the independence and impartiality of the investigative process and involve conflicts of interest which have the potential to prejudice the outcome and/or undermine the impartiality and integrity of any investigation.”

This point, incidentally, the ILO recently agreed on w.r.t. the Disciplinary Committee. This kind of bunk ‘justice’, often in violation of international rules/norms, makes Battistelli’s Eponia a pariah state in need of disciplining (the management). █

Summary: A new year’s reminder that the EPO has only one legitimate union, the Staff Union of the EPO (SUEPO), whereas FFPE-EPO serves virtually no purpose other than to attack SUEPO, more so after signing a deal with the devil (Battistelli)

SOMEONE recently sent us a copy of a report on the Memorandum of Understanding (MoU) [PDF], which we had written about earlier that year. The report is not secret; in fact, a lot of EPO staff already saw it and here it is as HTML:

What is wrong with the EPO Memorandum of Understanding (MoU)?

Introduction
In March 2015 the Administrative Council encouraged SUEPO to enter into tri-lateral talks with the Council and the President to come to a recognition of the Unions as a social partner. Other topics such as the reforms of the last years were excluded from the discussion. During the talks (to be concluded by the end of the year) the reforms were to continue.

SUEPO exists since 40 years. It represents about 50% of staff. “Talks” should not be necessary for the administration to recognize its existence. Union recognition talks furthermore
do not address any of the real problems facing staff. Under pressure from Mr Kongstad (Chair of the Council) who insisted that these talks were “only a start”, SUEPO nevertheless agreed, also since such talks at least provide access to the Council.

The result is known: Mr Battistelli¹ sent the Investigative Unit after his would-be “social partner” on the basis of vexatious and absurd accusations, thereby demonstrating bad faith. When questioned about the investigations during one of the meetings, Mr Battistelli cynically asked why we felt concerned. Under such circumstances meaningful talks are not possible and SUEPO pulled out. However, a small staff union (about 75 members) in The Hague did sign the proposed Memorandum of Understanding (MoU).

In its March 2016 meeting the Council requested Mr Battistelli “to achieve, within the framework of the tripartite negotiations, an MoU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions.” With the disciplinary sanctions against 3 SUEPO officials still standing and 3 others still under investigation [Editor: 4 of them have been punished already, 3 dismissed], we do not see how any MoU could be achieved. But the investigations are not the only hindrance, the MoU proposed by the EPO also shows the bad faith of the administration. Below we list some of the most obvious deficiencies.

1. The MoU stresses (it is mentioned three times) that the unions “shall be bound by the legal framework applicable to the EPO”. That legal framework as it now stands contains strike regulations that have been judged illegal, and various other regulations that are highly controversial (staff committee elections, investigation guidelines, sick leave and invalidity regulations, new career). It is clear that SUEPO cannot sign up to such regulations.

2. The EPO legal framework (Service Regulations, Circulars, Guidelines) can be changed unilaterally by the Council and/or by the President. Signing a MoU that obliges the Staff Union

_____________
¹ In the one case where we have been informed about identity of the complainant it was Ms Bergot (PD HR and right-hand of the President). In the other cases we were not informed about the complainant, raising the strong suspicion that these were also initiated by Ms Bergot.

---

to respect Regulations which can be subsequently changed on a unilateral basis amounts to signing a blank check.

3. The MoU does not have much to offer for the unions: some office space, two mass e-mails per year, the right to hold general assemblies outside core hours – all of which the unions had before Mr Battistelli took it away.

4. Art. 4 MoU stipulates that “union activities shall in no way be prejudicial to the person concerned”. The wording of this Article is equivalent to Art. 34(2) of the ServRegs² for the staff representatives. Staff representatives are nevertheless being sanctioned by the President who simply denies that the disciplinary measures imposed have any connection with staff representation activities. There is no reason that this will change with the MoU.

More generally: what is the value of an agreement concluded between two parties, if one of the two parties considers itself not to be bound by any regulations and hides behind its immunity when caught breaching the law?

5. The MoU is silent on what will happen in case no agreement can be reached. But the wording gives some hints. Art. 11(1) of the MoU states that the President shall inform the
unions what items are to be the subject of consultation. According to Art. 11(3) MoU the unions may inform the President which items they wish to have discussed. The final list shall be established in mutual agreement. And who decides if there is no agreement? The answer is in Art. 13(4): “the agenda shall be set by the President”. In other words: the MoU foresees just another consultation process, the topics of which are dictated by the President and the results of which may be ignored by the President.

6. The devil is in the details. There are many more details that need to be questioned. For example: existing rules and (past) decisions are explicitly excluded from the negotiation process (Art. 11(4) MoU), so signing this MoU means accepting all Mr Battistelli’s reforms. The MoU requires the Union to act “in the general interest of staff” (Art. 3(2) MoU). But who will decide what is in the interest of staff? MoUs normally foresee a minimum level of staff adherence, for example 5% in the EU agreement, as a pre-condition for a recognized Union to be considered as representative. The EPO-MoU does not. This means that SUEPO, representing 50% of staff, is considered by management just as representative as any other Union, even one which would represent only 1% of staff.

The alternative – ignored
SUEPO submitted a proposed model “Framework Agreement” on 5 February 2014 (su14020cl). On 29 April 2015 SUEPO further submitted the MoU which was agreed upon in the EU (su15182cl). Both proposals are examples of European “best practice” and either of them would, in our opinion, be a much more suitable starting point for discussion between the Office and SUEPO. The current Administration chose to disregard both these proposals without any further discussion.

With additionally three SUEPO officials sanctioned in Munich and three more expecting the same in The Hague, it is not clear how union recognition talks can be taken up again. Under the circumstances agreement seems a long way away.

SUEPO Central

________
² “The duties undertaken by members of the Staff Committee and by their nominees to the bodies set up under the Service Regulations or by the Office shall be part of their normal service. The fact of performing such duties shall in no way be prejudicial to the person concerned.”

As readers may recall, the EPO’s management attempted to create an illusion of social peace just before an Administrative Council meeting that brought up the subject. “What is wrong with the EPO Memorandum of Understanding (MoU)?” It’s not about understanding at all, it’s about domination — it’s for SUEPO to be dominated by the sociopath, Battistelli. The MoU proposed by the administration is “seriously flawed,” SUEPO explained and the above “publication lists the most obvious deficiencies.”

To outsiders, the above may not be obvious, especially because the EPO’s management lies so much (both inwards and outwards). This recent article about EPO and SUEPO, for instance, is full of inaccuracies. The author is obviously unaware of the whole saga and just accepts whatever EPO management says at face value.

For those who wonder what FFPE-EPO has been up to since (the above alluded to it only as “a small staff union”), here is a summary of articles about it:

1. In the EPO’s Official Photo Op, “Only One of the Faces is Actually FFPE-EPO”
2. Further Evidence Suggests and Shows Stronger Evidence That Team Battistelli Uses FFPE-EPO as ‘Yellow Union’ Against SUEPO
3. “FFPE-EPO Was Set up About 9 Years Ago With Management Encouragement”
4. Fallout of the FFPE EPO MoU With Battistelli’s Circle
5. The EPO’s Media Strategy at Work: Union Feuds and Group Fracturing
6. Caricature of the Day: Recognising FFPE EPO
7. Union Syndicale Federale Slams FFPE-EPO for Helping Abusive EPO Management by Signing a Malicious, Divisive Document
8. FFPE-EPO Says MoU With Battistelli Will “Defend Employment Conditions” (Updated)
9. Their Masters’ Voice (Who Block Techrights): FFPE-EPO Openly Discourages Members From Reading Techrights
10. Letter Says EPO MoU “Raises Questions About FFPE’s Credibility as a Federation of Genuine Staff Unions”
11. On Day of Strike FFPE-EPO Reaffirms Status as Yellow (Fake/Management-Leaning) Union, Receives ‘Gifts’
12. Needed Urgently: Information About the Secret Meeting of Board 28 and Battistelli’s Yellow Union, FFPE-EPO
13. In Battistelli’s Mini Union (Minion) It Takes Less Than 10 Votes to ‘Win’ an Election
14. FFPE-EPO Going Ad Hominem Against FICSA, Brings Nationality Into It
15. High on EPO: Battistelli’s ‘Social Conference’ Nonsense is Intended to Help Suppress Debate About His Abuses Against Staff and Union-Busting Activities
16. Leaked Letter Reveals How Battistelli Still Exploits FFPE-EPO (Yellow Union) to Attack the Real EPO Union, SUEPO

The optimal scenario is, we won’t be hearing anything from and about FFPE-EPO this year. Every time FFPE-EPO has something to say the beneficiary is Team Battistelli; FFPE-EPO’s role — like the role of many other entities after the Battistelli ‘purge’ — is to be a “yes man” or a “lapdog”. Battistelli is still trying to purge SUEPO but is unable to do so except by false accusations and unjust dismissals (even an illegal “house ban”), which draw plenty of backlash and threaten to leave Battistelli in an ashtray of history alongside Kim Jong-il. █

Summary: The UPC is neither desirable nor practical, especially now that the EPO lowers patent quality; but does the Select Committee understand that?

The EPO‘s Web site describes the Select Committee’s mission as follows: “The legal basis for the Select Committee is Article 9(2) of Regulation (EU) No 1257/2012 (“the Regulation”) and Article 145 EPC. The committee has been set up by the 25 member states participating in the unitary patent, to supervise the EPO’s activities related to the tasks entrusted to it in the context of unitary patent protection. The committee’s competences include the setting of fees.”

“According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality.”According to this Staff Committee report [PDF] on the 147^th meeting of the Administrative Council (early 2016), the following statement was made in German by the Select Committee: “Wir begrüßen jeden Fortschritt in Richtung des einheitlichen Patentschutzes. Ich versichere Ihnen, dass das Personal hochqualifiziert ist, um das Einheitliche Patent mit sehr guter Qualität zu prüfen. Wie Sie wissen, werden europäische Patente oft nur in wenigen Ländern validiert. Mit dem Einheitlichen Patent wird es aber in vielen Staaten von uns erteilte Monopole geben. Daher ist es wichtig, dass eine sehr hohe Qualität gewährleistet ist. Ein sorgfältig geprüftes Patent benötigt aber Zeit. Wenn Sie auf Effizienz schauen, sollten nicht nur Produktionszahlen im Vordergrund stehen. Wenn die erteilten Monopole für die Wirtschaftslandschaft in Europa nützlich sein sollen, ist eine unbegrenzte Effizienzsteigerung nicht denkbar. Wir sind daran interessiert, immer besser zu werden. Eine Unterstützung durch IT-Tools ist sicher sinnvoll, aber versprechen wir uns nicht zu viel davon. Recherche und Prüfung muss immer von Menschen gemacht werden, wenn sie sinnvoll sein soll. Software ist und bleibt immer nur ein Hilfsmittel. Beachten Sie also, dass eine Steigerung der Effizienz bedeutet, dass pro Patentanmeldung im Durchschnitt weniger Zeit investiert wurde. Der Patentprüfer hat weniger Zeit für die Bearbeitung der Anmeldung gehabt. Wir sind bereit, zur hohen Qualität des Einheitlichen Patents beizutragen. Hierzu benötigen wir aber eben auch genügend Zeit, und ich hoffe darauf, dass Sie dies nicht außer Acht lassen werden.”

It says something along the lines of “we welcome any progress towards unitary patent protection.”

Obviously, as this is their mission, but the informed public is against it.

“I assure you that Staff is highly qualified to test the Unitary Patent with very good quality,” the above says, but under Battistelli (UPC booster) patent quality already nosedives.

“EPs are being invalidated in courts, yet Battistelli remains unaware of this.”The Chairman of the Select Committee (we assume Jérôme Debrulle) says “it is important to have a very high quality is guaranteed.” Well, that’s already a failed objective. Battistelli ruined the EPO, which certainly cannot be trusted to provide patents with unitary (Europe-wise and beyond) effect in prosecution.

“A support from IT tools is certainly useful,” the Chairman says, “but … research and testing must always be done by people…”

According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality. There’s Early Certainty that Battistelli is losing his mind.

“We are ready for the high quality of the Unitary Patent,” the Chairman says, but what quality is that? EPs are being invalidated in courts, yet Battistelli remains unaware of this. █

Summary: A look back at a key event inside the EPO, which marked somewhat of a breaking point for Team Battistelli

THE EPO‘s management lies. It lies a lot. It kept telling the media that only a disgruntled minority was complaining and that there were no strikes (saying nothing about a lot of protests in 2015). Battistelli is an emperor of lies, the Liar in Chief as we often call him, and his staff generally knows this. Almost every sentence that comes out of his mouth these days contains at least one lie.

At the beginning of the year, after Battistelli had showered the media with money (EPO’s budget, not his), one could come across bogus claims that only few employees were causing all the noise and yielding negative publicity for the Office. This lie needed to be debunked and the erroneous claims tackled convincingly enough. That’s why an anonymous individual or group initiated a call for strike and the strike’s result was later advertised as follows:

Dear colleagues

As we write this, the final numbers for the strike on 7 April are not yet known, but it seems possible that it was the biggest ever strike in the history of the EPO. This is an amazing result and it shows what is possible when colleagues committed to the future of our office work together.

Our goal, as initiators of the strike, was to counter the President’s claim that only “a small minority of staff” were against him and his “reforms”. Thanks to you, we achieved that goal resoundingly. Today, there can be no doubt that across the entire EPO, people are profoundly angry about what is happening. On 7 April 2016, staff of the EPO said unmistakably that they will never accept injustice against colleagues, or abusive rules and regulations. We are sure the Administrative Council was listening. The ball is now in their court. Our thanks go to each and every staff member who went on strike!

Your colleagues,

The initiators of the strike on 7 April

We already published a lot of letters about this at the time. One letter which we never published was sent to Battistelli himself. The letter laid out 4 points and now, at the end of the year, we can say with certainty that Battistelli has fulfilled not even one of the conditions. Here is the letter:

Open Letter

Mr Benoît Battistelli
President of the EPO

ISAR – R.1081

cc.: Administrative Council

Notification of a strike

Dear Mr President,

Ms Bergot announced in her publication to staff dated 8 March 2016 the result of the strike ballot organised by the Office: Staff has voted in favour of a strike. Following this decision to start a strike, we inform you of the following.

Grounds for having to resort to the strike

No essential progress has been made on Staff’s claims as expressed in the call for strike entitled “Lawfulness at the EPO” that you received on 10 February 2016:

• the immediate suspension of the disciplinary measures against the three staff representatives
• a truly independent review of the cases against the staff representatives by a body that enjoys the full trust of both the management and the staff of the EPO
• the revocation of all recent changes to the Service Regulations and their implementing texts concerning the legal framework, …
• the initiation of open and fair negotiations between management and staff representatives, led by an internationally recognised mediator/conciliator.

Calendar and EPO sites concerned

The initiators of the call for strike have informed us that they would like the strike to happen at the earliest opportunity. Accordingly, the strike shall take place on 7 April 2016 at all sites of employment: Munich, The Hague, Berlin and Vienna.

Please be assured that the Central Staff Committee has always been prepared to enter a fair social dialogue and continues to be so. The CSC recognises the recent resolution of the AC as a positive signal and a step into the right direction. If social dialogue in the time before the strike day leads to a substantial progress on the grounds for strike, we are willing to recommend to Staff to cancel the strike action.

Yours sincerely,

The Central Staff Committee

We confirm that this letter was legitimately decided and produced by the Central Staff Committee ¹.

_______________
¹ Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.

The CSC presently consists of 9 full and 8 alternate members, because two have resigned in December 2014, one has been dismissed in January 2016 (against the recommendation of the Disciplinary Committee) and one refused replacement of a full member against Article 7(3) of Circular 355.

One full member of the CSC has been downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.

[...]

cc.: Mr Tobias Kirchgessner, Lawyer of the initiators of the strike “Lawfulness at the EPO”

Suffice to say, as Battistelli has done not a single thing to improve things, all those who went on strike probably continue to distrust Battistelli and disapprove his regime. A lot of those who did not go on strike probably just feared retribution, as we explained at the time (there was no opportunity for anonymity for those who participated in the strike).

2016 was another slide down a steep hill for Battistelli and his goons. 2017 will be no better until more people like Minnoye gradually exit. There is no room for peace at the EPO as long as megalomania or perception of omnipotence persists at the very top. █

Reference: Social democracy

Summary: Orwellian misuse of terms by the EPO, which keeps using the term “social democracy” whilst actually pushing further and further towards a totalitarian regime led by ‘King’ Battistelli

STAFF of the EPO is suffering. Staff representatives suffer even more.

The following Open Letter, published earlier this year, helps reveal just to what extent the union-busting activities of Battistelli have contributed to fear and erosion of staff representation in an institution that, without these safeguards, is basically no better than North Korea, with Battistelli as its “Supreme Leader”. To perfume it a little, Team Battistelli attempted to hijack adopt the term “Social Democracy” (something akin to the term used by Bernie Sanders in the US and in various other countries). Here is the letter in full (except the names of representatives, as they are already subjected to enough abuse from Battistelli and his goons):

Open Letter

Mr Benoît Battistelli
President of the EPO

ISAR – R.1081

Dear Mr Battistelli,

The so-called “Social democracy” was one of the policies introduced in July 2014 under the HR roadmap (CA/39/14), with claimed goals to “fill a legal vacuum, adapt and modernise [the EPO] social framework and provide improvements for a more efficient management of the Office.”..

After almost 2 years of implementing these policies none of these goals have materialised. Quite to the contrary and as pointed out by the AC in its recent resolution, the reality is a social situation that gives reasons for grave concern and has been acknowledged as a crisis, not only internally but by the media and other external, interested circles. The conclusion is that this situation is unsustainable and action will be required to meet the challenges set by the AC in its March resolution.

1. “Social Democracy” has a flawed design

The shortcomings of the “social democracy framework” have been pointed out repeatedly by the CSC and SUEPO, both during the statutory (albeit formally superficial) consultation processes and in diverse publications since its introduction, all to no avail.

A non-exhaustive list of unanswered communications is set out in the Annex.

2. Actual “Social democracy” is even worse than anticipated

Unfortunately, the reality of “Social Democracy” has gone well beyond Staff’s already pessimistic forecast. Just to cite some key points (see the CSC letter to the AC for more details):

- Despite all the promises made, the effective time allocated to Staff representation work has been reduced by well over 50% compared to historical figures (in accordance with Communiqué 49, the framework formerly in place). Internal documents show that this is not an accident but according to plan.

- Despite declarations that the new framework would “enhance the representativity and functions of both the Central and Local Staff Committees, regular arbitrary restrictions on nominations, duty travel and training have led to substantial disruptions to the internal functioning of these staff representation bodies. To summarise, staff representatives have been systematically hindered in organizing themselves in an autonomous, independent manner.

- The existing provisions for filling vacated positions, have not been followed: for instance, Mr Brevier (CSC deputy member from The Hague) has still not been allowed, since October 2014, to replace a CSC full member who resigned, He is still not allowed to dedicate 100% of his time for Staff Representative duties, due to an investigation, initiated by Ms Bergot now more than a year ago.

- Other staff representatives have also been targeted by the same and other investigations, which have already resulted in disciplinary procedures, the dismissal of two elected staff representatives and the downgrading of another one. These sanctions have been perceived as political rather than legal actions and were commented to be unfair and disproportionate disciplinary measures by both the media and the AC.

- Many Staff Representatives have in the meantime resigned because of perceived pressure (threats) from the administration and undue work pressure from their hierarchy. Of those remaining, many have suffered severe damage to their health, resulting in e.g. sickness, depressions or even burn-out.

To conclude, the work environment for staff representatives has become unsustainable. Maintaining the present framework amounts to harassment, is irresponsible and has led to severe damages both to the functioning of the institution representing Staff interests in the EPO and to the health of the individuals acting therein.

3. Negligent, unsustainable and not fit to meet the clear challenges set by the AC

The so-called “Social-Democracy” framework no longer allows the nomination of non-elected staff representatives to any working groups and statutory bodies. This has led to a situation where grooming of new staff representatives and delegation of work are impossible.

Combined with unfilled positions, due to resignations and dismissals, the result is today, that particularly in the big sites, the effective work capacity of available “fully fit and functional” staff representatives has reached an all-time low, which is not compatible with their duty to fully represent staff interests. More pertinently, this has become an issue of great concern in the context of the request made by the AC in its March resolution.

Clearly the situation is not sustainable in the long run and urgent action is required both to protect the health of the individual staff representatives and their capacity to genuinely and thoroughly represent staff interests.

4. Urgent action required: request authorisation to delegate work to non-elected Staff members

In the medium term, an in-depth review of the so-called “social democracy” is not only expected but required. The CSC is of the opinion that essential features of Communiqué 49 should be reconsidered and built in to the framework to overcome the obvious shortcomings of the present framework and render it more in line with democratic, best-practice standards used in similar international organisations in western civilisations.

In the short term, urgent action is required now to redistribute the workload. Hence the CSC herewith requests the President to immediately allow Staff Committees to delegate autonomously tasks to non-elected staff representatives as experts and to provide the necessary time to adequately compensate them.

The Central Staff Committee would like to stress that the Office’s apparent lack of due diligence on this matter, i.e. not following the recommendations outlined above, will continue to seriously jeopardise the announced negotiation process. It constitutes institutional harassment of the staff representation and, if continued, may lead to further complaints.

Yours sincerely,

The Central Staff Committee

We confirm that this letter was legitimately decided and produced by the Central
Staff Committee¹.

_____
¹ Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.

The CSC presently consists of 9 full and 8 alternate members, because two have resigned in December 2014, one has been dismissed in January 2016 (against the recommendation of the Disciplinary Committee) and one refused replacement of a full member against Article 7(3) of Circular 355.

One full member of the CSC has been downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.

[...]

cc.:
Principal Director 4.3
Members of the WG SR resources
Council Secretariat

Annex:

Non-exhaustive list of communications on the shortcomings and events of the so-called “Social-Democracy”:

- 23/06/2015 social democracy: staff representation dismantling is on track!
- 18/03/2015 [csc] letter to heads of delegation; restoration of social dialogue at the epo
- 08/12/2014 social democracy vs social peace
- 14/10/2014 [csc] battistelli’s “social democracy” – staff representatives banned from attending the administrative council for the first time in the history of the office
- 24/03/2014 letter to the members of the admin. council ” ‘social democracy’ will be quickly outdated”
- 24/03/2014 letter to ac delegations – “social democracy” – mr battistelli’s reform of the staff representation
- 24/01/2014 meeting the president 27.01.14 – social democracy
- 18/12/2013 trias politicabeyond the problems, the way out: “feuille de route” for social democracy by suepo
- 23/10/2014 [csc] the organisation of your central staff committee
- 26/05/2014 letter of vp1 to the local and central staff committee of 26.05.2014 – social democracy in progress
- 02/04/2014 reform of staff representation “social democracy”
- 12/03/2014 opinion of the members of the gac appointed by the staff committee on gac/doc 7/2014 – “social democracy”
- 14/03/2014 report of the 257th meeting of the gac on 4.3.2014 in the hague
- 21/02/2014 letter to mr r. lutz – request concerning “gac 7/14 – social democracy”
- 07/02/2014 social democracy reform of mr battistell
- 05/12/2013 letter to b. battistelli: working group social democracy

The exploitation or misuse of the term “social democracy” is rather gross. There is neither of those two things at today’s EPO. Battistelli does not understand democracy and probably never will. As staff representatives put it earlier this year [PDF] in another context, “President Battistelli has broken an EPO promise to staff to be properly involved in the management process in a Healthcare Insurance Advisory Committee in exchange for the additional risk put on them. President Battistelli seems to dislike advice: not only has he failed to create HIAC, he disbanded General Advisory Committee (GAC) and replaced it with the General Consultative Committee which, although fully populated by Vice-Presidents, is an inferior statutory body when compared to the GAC.”

In other words, Battistelli allows only Team Battistelli, i.e. those totally loyal to him, to decide on matters that don’t even involve them. It’s neither social nor democratic. █

Summary: Even the EPO’s Central Staff Committee (not SUEPO) understands that Battistelli brings waste and disgrace to the Office

A document published internally by the Central Staff Committee was recently leaked to us [PDF]. Part of this document is in German, but the majority is in English and it deals primarily with financial aspects although staff representatives correctly point out that patent quality has been compromised to temporarily — while unsuspecting applicants are unaware of this compromise — artificially boost some figures.

“Look what Battistelli has turned the EPO into.”The part shown above vindicates us as we previously wrote about both aspects of the Paranoid in Chief, who is buying positive media because all he otherwise receives is negative press. The subject was more recently covered in light of highly misleading puff pieces about the UPC, courtesy of papers that the EPO had paid for propaganda.

The figure above, 880,000 Euros, is already out of date and is estimated at over a million Euros per year — basically budget thrown at a highly notorious firm that manipulates the media for truly unethical firms.

Look what Battistelli has turned the EPO into. It’s not just a corrupt institution itself; it now corrupts the media too. It misinforms the public, not just employees. █

Reference: Omnipotence paradox

Summary: The paradigm of totalitarian control, inability to admit mistakes and tendency to lie all the time is backfiring on the EPO rather than making it stronger

Anonymously posted over a year ago was a long piece in French which compared Battistelli to Napoleon in a not-so-flattering way, putting aside corporate angles. Earlier this year we published a partial translation, but that leaves out some other bits that are worth highlighting.

For example, as one reader put it to us, with additional bits from the original (the only such article posted there from this author):

Ses maréchaux et ministres connurent des sorts divers : de l’exécution capitale jusqu’au service servile de la monarchie restaurée, alors qu’ils devaient leurs carrières à la Révolution et leur fortune à Napoléon. Rares furent ceux qui surent se tenir.

In English: “His marshals and ministers experienced various fates, ranging from capital punishment to the groveling service of the restored monarchy, even though they owed their careers to the French revolution and their fortunes to Napoleon. Few were those who knew how to behave.”

This also aptly describes Mr. Battistelli and his confederates.

Lui, intégra l’École Nationale d’Administration, l’ENA, créée en 1945, qui ne dispense pas de formation à l’autoritarisme. Mais, si elle fournit à la France des administrateurs pétris du sens de l’intérêt général ou de l’État, elle en produit aussi qui imbus d’eux-mêmes ont seuls foi en leur omniscience : il convient donc de dire qu’elle nourrit assez bien l’aspiration à l’omnipotence de certains de ses élèves.

In English: “He was admitted to ÉNA, the National School of Administration, an institution which doesn’t offer training in authoritarianism. But if she provides France administrators steeped in a sense for the common interest or of the State, she also produces self-imbued others who are believe in their personal omniscience; one must admit that she feeds the yearning for omnipotence of a few of her students.”

National School of Administration.

His portrait is thus mostly complete, with the exception of that neo Carlovingian empire bit. I’m coming to that.

Le voici donc décrit, à ceci près qu’il y manque ce néo-Empire Carolingien. J’y arrive.

Let us look at the facts in a broad sense.

Changement dans le régime des pensions à partir de 2009 et passage d’un régime de répartition à un régime par capitalisation : cela a et ne cessera mécaniquement d’avoir pour effet de réduire considérablement la responsabilité financière future de l’OEB au titre des pensions, et cet effet ira toujours en s’accroissant au fur et à mesure que partiront les anciens et arriveront les nouveaux impétrants.

Change in the pension regime beginning 2009, and transition from a pay-as-you-go system to a funded one: this has, and will, automatically reduce the EPO’s future financial liabilities for pensions, and this effect will become increasingly important as new recruits will replace leaving older staff members.

Suppression de facto du droit de grève auquel on substitua une hypothétique autorisation – car fait du prince – de prendre des jours de congés sans solde : ceci était le préalable pour donner naissance aux forceps à un nouvel Office.

De facto abolition of the right to strike, against which was substituted a theoretical permission of taking unpaid holidays, dependent of the monarch’s good will: this was the prerequisite for permitting the forceps delivery of a new Office.

Introduction de la CPC, classification technique commune entre l’office états-unien des brevets, USPTO, et l’OEB, sur la base de la Classification Européenne (EC) que l’Office, qui la développa et la maintint à ses frais, fit don à l’USPTO, à ses dépens, car perdant par là même ce qu’il avait seul construit pour atteindre l’excellence jusqu’à peu reconnue internationalement.

Introduction of the CPC, a common classification scheme for the USPTO and the EPO, which is based…

Fast-forwarding a bit we have:

Alors, que faire ?

English: “Then, what is to be done?”

Over a year has passed and quite a lot has changed. Since then, for example, Battistelli got reprimanded and his team is falling apart, with imminent top-level departures. Even French politicians are lashing out at Battistelli; several of them openly call him an embarrassment to France.

The point about ENA and omnipotence is familiar to us. To repeat a text about ENA, which we translated a year ago, the first sentence in the introduction says “In 2007, for France to survive, we need to free us from the omnipotence of the ENA.” █

Seoul Plaza, South Korea

Summary: An outline of recent stories about patents, where patent quality is key, reflecting upon the population’s interests rather than the interests of few very powerful corporations

THE NEW YEAR IS ABOUT to start and we are eager to see governments all across the world recognising that patents have gone too far if examiners are granting millions of them. Techrights was never an anti-patent site; rather, it was pro-patent quality. We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large. The former Chief Economist of the EPO spoke about it earlier this winter.

“We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large.”Florian Müller has this new article about a Korean antitrust ruling. We have been writing about rulings of this kind for nearly a decade (going back to the Korean ruling on monopolistic Intel) and 3 months ago we wrote about Microsoft's latest patents controversy in Korea. We remind readers that Korea’s official position is that software is not patentable (different from Japan’s and China’s policy).

“I wish to point out,” Müller wrote, “that ACT is generally very IPR owner-friendly, but when it comes to FRAND licensing of standard-essential patents, its positions are pretty consistent with mine. An organization that takes similar positions on FRAND (and of which Google is a member) is the Brussels-based Fair Standards Alliance. Presumably the reason the FSA hasn’t spoken out on the Korean ruling yet is simply that people in Brussels tend to be on vacation this week (to a far greater extent than in the U.S.).”

“For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now.”As we noted earlier this year, the Fair Standards Alliance is rather mysterious, but the same cannot be said about ACT. I politely told Müller it’s worth pointing out that Association for Competitive Technology (ACT) is a Microsoft front group with decades of history (going back to the nineties, under another name and acronym). We have exchanged some messages about that [1, 2, 3, 4]. For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now. A lot of what we wrote about Florian Müller is no longer relevant/applicable as he left behind his Microsoft work and has no intention to do that again. Some people will never forgive him for that, but I have. I believe that he’s not “up for sale” now that he leads a team of “app” developers, hence not dependent on contracts from companies like Oracle, either.

“Just updated post on antitrust ruling against Qualcomm with link to unofficial translation of KFTC press release,” he added, after he mostly focused on ACT’s message. Here is a report we found about the news earlier this week:

A South Korean regulator said it would fine Qualcomm Inc. about $853 million for alleged antitrust violations, the highest such penalty handed to an individual company here, as the U.S. chip maker faces global scrutiny over its patent-licensing business.

A lot of people later discussed the relevance of this to the situation in China, where Qualcomm’s shakedown efforts have only met very limited success.

The Reinhold Cohn Group, writing this new article (“China may become more liberal towards business method and software related patents”), reminds us that China has gone bonkers with patent scope. SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven. It’s beneficial to nobody. “On 27 October 2016,” as the law firm put it, “the State Intellectual Property Office of China (SIPO) published, for comments by the public, proposed draft revisions to its current Examination Guidelines for examining software-related inventions. In the draft revised Guidelines SIPO goes one step further, as, in addition to granting patents on software-related inventions that solve a technical problem, is willing to allow patents for data carriers, and, in some cases, even for business methods.”

“SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven.”So basically they want to be the garbage dump of failed patent applications, or the equivalent of scholarly journals that almost blindly accept every submitted paper (and are hence worthless and have no following). We are gratified to see the USPTO departing from this lunacy left (having been accentuated) by David Kappos. Incidentally, some LLC (usually trolls) turns out to have sued the USPTO for last year’s long outage; it has just lost the case^*.

Jasper L. Tran, writing in the Iowa Law Review, has just published “Abstracting About “Abstract Idea”” — a short paper in which he tackles the classification of some patents as “abstract”. Also today, an article titled “Software patent eligibility in Canada: IP year in review” was published but then deleted, maybe by accident. █
__________
^* To quote Pharma Patents Blog: “On December 2, 2016, Judge O’Grady of the U.S. District Court for the Eastern District of Virginia granted the USPTO’s motion to dismiss the complaint brought by Elm 3DS Innovations, LLC over the “holidays” declared December 22-24, 2015 when the USPTO experienced a power outage that impacted its electronic filing systems. The decision may leave other stakeholders wondering whether Elm was not the best party to challenge the USPTO’s action, or whether the action is simply unreviewable under the APA.”

IT wasn’t too long ago that we mentioned Heiko Maas in relation to his complicity, by inaction, in EPO scandals. He has received so many letters (and copies of letters) about the situation, yet he seems to be deaf in both ears and blind in both eyes. It’s like everything about the EPO goes right into his shredder as a matter of policy.

Suffice to say, Germany has plenty to gain from the UPC because it cements Germany’s near-monopoly on EU-wide patents. It does to prosecution what was already done examination- and appeals-wise.

“We are now starting to suspect that Germany’s Justice Minister Heiko Maas ignores EPO abuses (crimes by national laws) out of convenience.”Found today via Christine Robben from Team UPC is this blog post from her employer, which said just before Christmas that a “draft bill for the implementation of the UPCA was published on 9 December 2016 by Justice Minister Heiko Maas. Together with the UK, Germany is one of the two countries that still have to ratify the UPCA before the Unitary Patent system can start functioning.”

We are now starting to suspect that Germany’s Justice Minister Heiko Maas ignores EPO abuses (crimes by national laws) out of convenience. Moreover, he pushes Battistelli’s agenda forward with the UPC. Is he complicit then? Or just a bystander-type enabler? One who refuses to intervene because he has something to gain (or to fear)? How does that relate to Germany's media blackout regarding EPO abuses as of late? It’s almost as though large publishers/editors receive instructions not to ‘meddle’. The EPO wastes a lot of money trying to accomplish just that.

Let it be clear that for Germany to oppose the UPC would make no sense. “Entering into force of provisional [UPC] phase (early opt-outs) is still unclear,” Alexander Esslinger wrote about it, but Germany’s main barriers at the moment are Spain and the UK. WIPR gives a platform to those who promote the UPC in the UK, but the UPC has no future here; even Lucy has just been sacked (or resigned), only a few weeks after she promised the impossible.

The UPC would be utterly disastrous to European businesses. We wrote many articles about this in the past. The UPC would also be very damaging to EPO staff, notably judges. Things are already being pushed to the brink of planned failure, as Battistelli understaffs the boards of appeal (BoA) and limits access to them. Battistelli does to the appeal boards the same thing Tories do to the NHS, as a preparatory step preceding replacement.

Ricardo Ontañón of Clarke Modet & Co has just published this article about the weirdness of EPO oppositions in the Battistelli era. To quote the first paragraph:

Analysis of the lack of clarity in opposition proceedings before the EPO

The European Patent Office (EPO) confirmed in recently issued Decision G3/14 the practice highlighted in earlier decisions (T301/87), whereby establishing that during opposition proceedings of a European patent the Opposition Division of the EPO can only analyze the lack of clarity of the amended claims when the amendments made may introduce an alleged lack of clarity.

Ultimately, considering how eagerly Battistelli seems to be following China's footsteps, all these steps that helped assure patent quality may be phased out/deprecated, leaving both plaintiffs and defendants spending a fortune in ‘unitary’ courts that don’t speak their language and handle patents whose legitimacy ought to have been questioned/scrutinised at the European Patent Office/BoA, not in the courtroom (high costs associated with flights, lawyers, interpreters etc.).

Now that we know Heiko Maas is a wilful enabler of the UPC we are going to approach his utterly reckless attitude towards the EPO’s management as part of the problem. █