09.13.16
Posted in Europe, Patents at 5:11 pm by Dr. Roy Schestowitz
Millions of Euros down the drain for publicity stunts that make him look legitimate (for just one afternoon)
Summary: The latest farcical behaviour from the European Patent Office (EPO), where Battistelli has enacted some kind of Martial Law in the face of resistance to his utter elimination of everything the Office stands for
“As uncertainty lingers in US patent system,” wrote the EPO’s mouthpiece, “clearly a big push by EPO to target US filers. Appointed first EPO attache based in the US…”
In other words, the EPO races to the bottom of patent quality. “Battistelli,” continued the mouthpiece, had said “EPO patent grants projected to jump by more than 30% in 2016″ (as if that’s a good thing, it only reinforces the greatest worries that the EPO as an examination office is dying).
“More software patents advocacy (ish) could be found today in the EPO’s own mouth.”“Another job vacancy at the EPO,” one person meanwhile writes in a comment, linking to “President of the Boards of Appeal (INT/EXT/2141)” from the EPO’s Web site. “Will be interesting to see if it goes to an EPO “insider” or whether the successful candidate will be an “external”.”
Well, maybe some French dude (yes, male) from INPI. Yet another one… not only will Bergot (wife of Battistelli’s friend from INPI) be involved in this appointment but also Battistelli himself, as independence of the boards is now just an illusion (being sent to exile in Haar in itself says how much independence and self-determination they have, while AMBA’s input gets altogether ignored in decision-making). Some other day (probably soon) we’ll write about people whom Battistelli has ejected from the boards. It’s really quite a farce!
The EPO, in the mean time, promotes this upcoming event titled “Boards of appeal and key decisions 2016″ (does not cover the decision to send it to exile as part of the malicious plans).
“This event is tailored to patent attorneys, judges & NPO staff with 3 to 4 years’ experience in patents,” the EPO wrote.
“Battistelli is totally killing the EPO. He throws over 40 years of reputation down the drain and he will soon thereafter probably return to a political career in France (his ally Sarkozy pursues power again) because the UPC isn’t going to happen.”More software patents advocacy (ish) could be found today in the EPO’s own mouth. “This e-learning module,” the EPO wrote, “presents the patentability requirements for computer-implemented inventions at the EPO” even though these are not legal. Rules and laws be damned! Battistelli insists he’s above the law anyway. Well, this is the second time in less than a week that the EPO does this kind of software patents advocacy, reinforcing the belief that racing to the bottom (or expanding patent scope in an ad hoc fashion) is Battistelli’s suicidal spiel in Munich. It’s suicidal for the Office, not for him.
As an aside, when the EPO does not address all followers in oder to promote Battistelli’s next lobbying event it is still 'spamming' universities this week [1, 2, 3]. Is this like the fiftieth university yet? We have lost count quite frankly.
The EPO isn’t a joke because of sites like Techrights but because of what the Office says and does. Techrights just gives a platform and a voice to EPO insiders, stakeholders, and various observers.
Battistelli is totally killing the EPO. He throws over 40 years of reputation down the drain and he will soon thereafter probably return to a political career in France (his ally Sarkozy pursues power again) because the UPC isn’t going to happen. █
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Posted in Deception, Europe, Patents at 4:35 pm by Dr. Roy Schestowitz
Staring at their phones while Team UPC advocates the antidemocratic UPC
Photo credit: Managing IP tweet, but modified (cropped) slightly
Summary: A look back at how a publication which calls itself “news” has in fact converged with the EPO and the predators (Team UPC) in an effort to peddle lies and help advocate the UPC
“I refuse to propagate such blatant lies from Battistelli about reforms disclosed in a staged interview published by #managingip,” one person from the EPO wrote today. Some people are demonstrably unhappy about Managing IP propagating the lies of Battistelli, as recently as last week (more to come later this month in part two).
“It’s all lies! (Proven),” the above person added, “Destroying SUEPO and EPO is Battistelli’s only and true goal! This is a personal vendetta.”
We agree. This is well documented, but each time Managing IP chooses to play ball with Battistelli it further alienates people associated with the EPO, where Battistelli 'enjoys' a 0% approval rating. Nobody trusts him, but some people choose to say nothing about it just to keep the salaries coming in (to pay the mortgage or whatever).
For the shared mission which is UPC (shared among only the patent microcosm and destined to harm everyone but this microcosm) media is now coalescing and receiving some favours in exchange for power, money, politics etc. (much like media which promotes particular Presidential candidates in the US right now, neglecting to give even an illusion of balance/impartiality).
When Web sites like IAM and Managing IP choose to repeat EPO lies (earlier today the EPO spoke of “optimis[ing] patent prosecution” and it’s hard not to think of its lobbying for the UPC and Battistelli’s PR) they do themselves enormous damage. Last week we wrote about Managing IP‘s UPC advocacy event [1, 2] and earlier today, under multiple URLs [1, 2, 3], Managing IP became Fröhlinger’s megaphone (Fröhlinger is a longtime UPC propagandist and Battistelli loyalist). To quote the relevant portion:
Margot Fröhlinger of the EPO gave a historical account of previous failed attempts to create a unitary patent system in the EU before 25 member states agreed in 2011 to proceed through the enhanced cooperation procedure. In a nutshell, they failed because of disagreement over language and the associated court system. Fröhlinger said the Brexit result was hugely disappointing, but hopes history won’t repeat itself because the system is nearly ready and, in her view, “very important” to the Single Market. She said: “There is hope that the system will not come to a halt. It will go ahead. There is too much support and too much investment.” To her mind, the question now is whether the system will go ahead with or without the UK. She said: “It’s now a political issue not a legal one because it is relatively easy to change an agreement which is not yet in force.”
The two key UPC Agreement provisions which require amendment are Article 89, to remove the requirement for UK ratification, and Article 7(2), which deals with the UK’s Central Division seat. She went on to explain how this solution may be achieved. The first step is for the other member states to convene a diplomatic meeting on the margins of an EU Summit or the Competitiveness Council meeting to discuss possible amendments. This must include the UK. In terms of agreement by member states, “only a qualified majority is needed”. But she expressed concerns over likely disagreements which will cause delay. “There is a risk that other member states will start throwing in their amendments.” In terms of seat, she said France, the Netherlands, Germany and Italy are all likely to stake a claim. Getting all of the amendments approved quickly would depend on the constitutions of member states, but if all goes well we shouldn’t expect years of delay. “Most member states will be able to do a simplified ratification,” she said, citing Denmark as an example where another referendum won’t be required. “So we could be looking at 6 to 9 months delay not 5 years.”
The expectation was that the system will start operation next year. With the uncertainty over the UK government’s Brexit policy and plans, “how long can other member states wait for the UK to make a decision?” That was a question put to the panel. “Member states shouldn’t wait too long. Perhaps a matter of months,” Fröhlinger responded. “If there is no sign of UK’s participation at the Competitiveness Council meeting this month or in November then member states should act quickly.” She added: “Germany’s ratification should go ahead to avoid giving bad signal to other countries.”
Fröhlinger envisages no major legal obstacle to the continued participation of the UK in the UPC after its exit, provided it accepts Chapter IV of the UPCA, and, moreover, other member states want the UK to be part of it. She takes comfort in the CJEU’s decision in challenge to the Unitary Patent Regulations. “The CJEU demonstrated extreme pragmatism,” she said, but then went on to warn that the CJEU’s Opinion 1/09, which dealt with the UPCA’s predecessor, is open to interpretation. “There are no guarantees in life so no one is sure if the CJEU will agree on the legality of UK’s participation if challenged,” she added. Fröhlinger also fears the risk of unravelling the compromises in the UPCA but questions if the CJEU will be “politically insensitive”. She believes the CJEU will give “its blessing” to the system again when called up.
As we noted here last week, the event lacked any criticism of the UPC and it’s no surprise; when one needs to pay over 1,000 Euros merely to attend for a day (not even give a talk) this is nothing but an echo chamber where Microsoft and the EPO, for example, try to shape Europe's patent law. Very nefarious stuff and that’s not even covering all the dubious connections between Microsoft and the EPO (as covered here many times before). █
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Posted in America, Europe, Patents at 3:56 pm by Dr. Roy Schestowitz
Factory mentality, as opposed to research mentality, inevitably takes its toll
Summary: Stocks are being depleted by superficial work (searches or examination) at the EPO, whereas belatedly, inside the USPTO, the problems associated with shoddy work or lenient examination are being realised, and ramifications noted even by the U.S. Government Accountability Office (GAO)
“As we have discussed,” Patently-O wrote earlier today about the Duke Law Patent Quality Conference (regarding the USPTO), “the two of us are following closely the USPTO’s efforts to address issues of patent quality through its Enhanced Patent Quality Initiative (EPQI) – an urgent but also enduring challenge that one of our nation’s first patent examiners, Thomas Jefferson, struggled with. Our institutions, the Duke Law Center for Innovation Policy and the Santa Clara High Tech Law Institute, are also co-sponsoring two conferences on EPQI and other levers for improving patent quality.
As readers may recall, during the summer we mentioned the GAO report and its relevance to the EPO. The US patent system seems to be improving patent quality, whereas Battistelli goes in the opposite direction (maybe registration/filing alone given the current trajectory), so he definitely needs to attend the above conference. He might actually learn something, though we doubt he can ever acknowledge any mistakes of his. An article titled “Fixing why USPTO issues low-quality patents should be oversight hearing’s focus” has already just been published by The Hill. Notice the theme. The public debate/discourse sure is evolving.
Looking at the situation inside the EPO, there isn’t even an acknowledgement of the problem (at the management/executive level). Patent examiners, however, see the writings on the wall. Some of them wrote about “Patent rain, brain drain and quality bust at the EPO,” calling “Overcapacity and insecurity” an “HR tool” (controlling staff by workload and fear). To quote some bits from these insiders at the EPO:
1. Toward overcapacity, full steam ahead!
According to the EPO workload manager, on the 23.05 the EPO Search Backlog was 4000, on the 30.05 3500…. This trend is picking up as can clearly be seen on the rolling 12M stock curves taking a dive: the spread between applications and searches is increasing monthly since 2014, with an average between 25k and 30k monthly of excess searches. This “scissors effect” will soon lead to the end of the Search stock: presently, it is estimated to a little less than four months of stock!
The situation in Examination may seem less dramatic at this stage, but an inflection point has taken place (see evolution of the EPO examination workload) since January 2016 as staff have started to shift their attention to examination in certain areas due to the lack of search files. When the search stock will be depleted office-wide, the trend will accelerate as capacity will shift to examination. This is coherent with the “Early Certainty1” policy which clear and open objective is to tackle the backlog in examination.
At the present rate2, it is estimated that compared to previous years, the total product stock will melt at a 50k rhythm per year, corresponding in the middle run to a substantial amount of overcapacity in the workforce
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1 The dedicated site FAQ attempts to be reassuring on this issue: “What happens with „supernumerary“ examiners once the backlog is cleared? Will young examiners be recruited on 5-year contracts? [...] there are for the moment no plans to recruit examiners on contract and if this discussion would ever come up, it would certainly not be due to Early Certainty”
2 According to the data, the output/input balance was 9500 searches and 3100 examinations in the first quarter.
Put in very simple terms, EPO staff foresees a situation wherein all the skilled (and well-paid) staff will be pressured to go or be laid off, ensuring that patent quality at the EPO declines even further. We are going to elaborate on this another day, as there are some more urgent matters to tackle tonight and some important news regarding patent scope (software patents) from the US. █
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09.12.16
Posted in Europe, Patents at 8:25 am by Dr. Roy Schestowitz
Albert Einstein, incidentally, had worked for the patent office before he found fame
Reference (Wikipedia): Human capital flight
Summary: The knowledge of EPO staff (or the brainpower) is being lost a lot more quickly than it can be recovered, rendering the EPO incapable of doing its job properly
FOR A number of years we have been hearing that experienced patent examiners were leaving the EPO (the USPTO, by contrast, has no such problem). For the past few months this kind of brain drain, based on our extensive readings, has reached dangerous levels. It’s unprecedented in the history of the Office. There might not be enough talent left to even train new workers (if any are found who are proficient enough) — an issue that was first pointed out to us in the summer. It’s an multi-year overhead and death spiral or a cycle of knowledge erosion/loss.
“For the past few months this kind of brain drain, based on our readings, has reached dangerous levels.”The following new comment (posted this weekend) shows that the EPO, rather than picking elite scientists to become examiners like they used to, is almost begging now. Brain drain has taken its toll and people with a clue know the EPO’s antics (it’s all over the media even in Germany and the Netherlands, in spite of expensive efforts to gag it), so they’re unlikely to even apply for a job there. That’s common sense. Battistelli has nuked any remnant of the EPO’s reputation — great reputation which took almost half a century to earn/gain. Based on the industry surveys, the EPO is no longer a desirable/sought-after employer (it's barely even listed in the ladders anymore, but EPO management lies about it, quite frankly as usual).
Regarding “EPO recruitment” wrote Fragender: “In the past (4 years ago) I had applied to the EPO as an examiner – back then the only communication by the EPO was a one line e-mail declining my application. Now I got a personal (possibly) LinkedIn message from an EPO HR Recruiter how great working at the EPO is, inviting me to apply and providing a hyperlink to their job-offers. It would be interesting to know how many applications they still get…”
This actually kick-started a string of short reactions.
“There might not be enough talent left to even train new workers (if any are found who are proficient enough) — an issue that was first pointed out to us in the summer.”“Trust me, I am your President,” a followup said: “We just hired for the IU two ex Judges specialised in Anti fraud, white collar crimes, war crimes and corruption!.. what other items are on the social agenda this year?”
Yes, this is actually true (the former part, not the sarcasm) and we shall write about it separately along with more information, probably later this week. Joking about Battistelli, another person wrote: “Paranoid? Moi?? It never ends well. The only question is for whom?”
As we noted last night, the union-busting efforts of Battistelli continue to expand ahead of his Social Conference propaganda. He’s a loose cannon without tact whatsoever. Unless he gets fired this autumn, it’s likely that more staff representatives will be put in his firing line, motivating yet more staff to leave (some in protest, others in despair).
Using the name “BB’s Early Certainty” (joking about Battistelli’s endeavor to lower the patent bar using the early certainty from search nonsense), another person wrote: “Nothing is more irritating for a President when his or her message is sent into a black hole when addressing the EPO staff. The whole problem with the EPO is that intelligent people are so full of doubts and for that reason we have to hire recently fools and fanatics that are always certain of themselves. As a President BB felt that he is still groping in the dark; he has chosen his path but keeps looking back, wondering whether he has misread the signs, whether he should not have taken the other way!”
“As we noted last night, the union-busting efforts of Battistelli continue to expand ahead of his Social Conference propaganda.”The above comments help shed light on the work atmosphere and social climate. No well-informed and sincere journalist should ever believe that things have improved; they have only gotten a lot worse. According to this new tweet from the EPO, a 3-day downtime is expected at the EPO, so we guess that their IT department too has brain drain issues. No maintenance window should be planned (in advance) for a duration of 72 hours or more. Not even a datacentre migration should take this long (I know this because I do it for a living). “Temporary unavailability of new online filing (CMS) from 30 September until 2 October 2016,” the EPO’s Web site calls it (warning: potential spying), but any system administrator (or programmer) with a clue can sort such stuff out with minimal downtime of just minuter, at most hours. We increasingly have no choice but to view the EPO as incompetent. A lot of staff left. That’s a fact. It used to be a highly regarded (an wanted) European employer, but now it’s just a spammer, a liar, a serial abuser and worse. Battistelli took the EPO down to gutter level so fast and somehow he still keeps his job! It’s incredible! History books will surely remember how Battistelli took down the EPO while the Administrative Council was foolish enough to keep him on board (even while members of the Council were admitting that he had caused a "crisis").
“The writing on the wall is clear,” said some insiders, “we are facing a conscious policy to create a situation of overcapacity. The staff of the EPO believes that this kind of policy is the wrong way to solve the IP challenges of the 21st century: it will only feed further the increasingly critical perception amongst the public and the media that the patent system at large and the European Patent Organisation in particular are dysfunctioning. It should be the responsibility of the Administrative Council to intervene before the engine of the European patent system is beyond repair.”
“It sure looks as though the EPO as an examination office is ending.”Regarding the issue of overcapacity, the cited source for that is C. De Neef, PD DG1, in “Examiners recruitment” (May of this year). To quote directly: “We will have to get used to working with smaller stock levels and continue to recruit sufficient colleagues now so that overcapacity will decrease stock levels and improve timeliness.“
The subject of EPO examination workload will be explored here another day. It sure looks as though the EPO as an examination office is ending. If it does not move towards a post-examination era (i.e. filing or registration alone), then it sure moves towards an era of very low patent bar, unskilled or inexperienced examiners, and virtually no staff protections/rights. This would damage Europe’s economy and potentially make Eponia nothing but a financial liability (more frivolous litigation and other externalities for Europeans). █
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Posted in Europe, Patents at 7:28 am by Dr. Roy Schestowitz
From EPC to the EU and the UPC: how Microsoft and the EPO are shaping (or rigging) the law in their favour
Photo credit: Managing IP
Summary: Another fine example of the European Patent Office (EPO) and a serial meddler in EU policy doing their spiel, this time in an event organised by Managing IP (in Germany and France)
HAVING TAKEN IMAGES or photographs at its recent charade/event (a pro-UPC push, as we noted here before), Managing IP reveals what happened inside this expensive event (more than a thousand Euros for just one day, per person) and we get the picture — pardon the pun — of who was there and what was said. There are no transcripts for this rather exclusionary event.
We are deeply concerned that the EPO as we know it is dying. Examination for patentability may not last (it looks as thought Battistelli is ending it, one piece at a time*) and the vision of UPC is all the Battistellites can think of, like a bunch of zombies that kill everything in their path towards UPC. Large businesses like Microsoft would benefit the most.
“Good discussion on #upc,” writes Microsoft after the event, “with Microsoft’s Sonia Cooper @ManagingIP #EUPATENT16″
It is not entirely shocking to see Microsoft lobbying Europeans regarding patent law and promoting the great UPC scam. Microsoft has been doing this for quite some time and Managing IP provides yet another platform for this. It’s basically an event for lobbying, as we expected all along. The above photo shows Microsoft and the EPO side by side again. This may sound innocent, but not when it happens so often. The event’s organiser wrote: “Could member states revise #upc in mini-diplomatic conference? @HoganLovellsIP @EPOorg & @MicrosoftIP at #EUPATENT16″
So, Microsoft and the EPO want to legislate or steer our policy. Benjamin Henrion, who drew attention to it, correctly said that “diplomatic conferences are fundamentally undemocratic.”
If a Microsoft-EPO-led (ish) UPC push sounds familiar, it may be because we wrote about it before. See the following articles:
Remember that the EPO’s management sent me several threats, always regarding articles that point out connections between Microsoft and the EPO. Are they that worried that people might dig deeper? Microsoft has a very long history of meddling in European patent laws (e.g. FRAND, EIF). We should know as we wrote hundreds of articles on this subject alone. █
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* To quote a recent explanation of the current situation, “the rat race continues… at the cost of [patent] quality” and “with adequate and economical rule changes will then allow the management to exchange the staff of the EPO more rapidly, while keeping the pressure on those staying in. It needs no foretelling skills, nor crystal ball, to see what a rat race for survival of the remaining EPO staff will do to the already damaged quality of the European Patent search and examination processes.”
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Posted in Europe, Patents at 12:20 am by Dr. Roy Schestowitz
While Battistelli effectively uses FFPE-EPO and unskilled recruits on limited contracts as scabs or strike-breakers
Summary: The war on the staff union of the EPO (SUEPO) has apparently resulted if not culminated in a formal warning to Joachim Michels, President of SUEPO Central
GRIM time at the EPO is already public knowledge. The very existence of the EPO as we know it is at stake now, thus the competitiveness of Europe. Patent examiners are rightly worried.
“The very existence of the EPO as we know it is at stake now, thus the competitiveness of Europe. Patent examiners are rightly worried.”Based on a new letter we saw — an open letter in fact — Jesus Areso has been warned and so has Joachim Michels. This is significant because Joachim Michels is (or was, as of last Christmas) the President of SUEPO Central. A more recent letter lists him as Chair of SUEPO Central. SUEPO is a very large staff union, representing most staff having already enlisted as registered members about half of the entire Office (all branches).
The context in which we found out about the status of Michels is a letter addressing the fact that ILO is overloaded by EPO complaints. We wrote about this many times before, including in the following articles:
We recently wrote about the case of Laurent Prunier, who is likely — if Battistelli gets his way — to be the first staff representative in The Hague to be dismissed based on what Prunier called cref 95210 “demonstrably fabricated accusations”] (we have seen this pattern before and covered it). This is how bad things have become and the following Open Letter to the President (Benoît Battistelli) rightly bemoans the lack of juridical oversight, rendering the EPO a lawless place that’s run by a crazed autocrat. They put it more politely though:
European Patent Office | 80298 MUNICH | GERMANY
Mr Benoît Battistelli
President of the EPO
ISAR – R.1081
Open letter:
Reform of the internal justice system
Dear Mr President,
Recently1, the Administrative Tribunal and its Governing Body have expressed concerns about the internal justice system at the EPO and the negative consequences of its dysfunction on the caseload of the Tribunal.
The Tribunal has also found in Judgment No. 3694 that, considering the quasi-judicial functions of the Appeals Committee, its composition was fundamental. The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and by the staff representation, is a fundamental guarantee of its impartiality. Accordingly, the Tribunal has ordered (re-)examination by an Appeals Committee composed in accordance with the applicable rules.
When making appointments for the calendar year 2016, we had already expressed our intention to appoint members to the Appeals Committee in application of Article 36(2)(a) ServRegs as soon as issues in the appeals system are addressed satisfactorily.
We have already identified problems to be solved in order to establish internal means of redress seen to be fair by staff. It appears that it is time to repeat our invitation to discuss with you our concerns and intentions and to devise ways to move forward.
We therefore respectfully ask for a meeting with you at your earliest convenience, preferably in September.
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1 see on particular §§ 653 to 662 on pages 153 – 155 of the Minutes of the 326th Session of the Governing Body of the International Labour Office
We don’t know if a meeting will take place (or has already taken place), but one sure thing is that things are rotten at the EPO and staff representatives are under attack. The union-busting activities of Battistelli are still alive and well (these are often effective, especially when there’s no oversight as in the case at Eponia). █
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09.11.16
Posted in Europe, Patents at 11:37 pm by Dr. Roy Schestowitz
What would that mean for existing EP (European patent) holders who pay renewal fees (the financial lifeline of the Office)? What would that mean for domain gurus who work as examiners?
Summary: The EPO appears to be going in the opposite direction of the USPTO (post-Alice/Mayo) and becoming more like the French patent system, which is notoriously deficient in terms of quality because there is no quality assessment (or prior art search) at all
THE EPO, as we shall show later this month, has turned into somewhat of a nut house under Battistelli’s notorious leadership. It’s not because examiners have mental issues (they are very stressed, understandably so, and it's growingly worse as time goes by) but because the Battistellites think like neoliberals whose goal is to just maximise everything monetary by deregulating everything. They are burning down almost half a century of reputation, essentially squeezing the goose as if there’s no tomorrow.
We have already mentioned the French model here. We did so several times in the past. The French patent model is widely regarded as poor, but the following new paper lays out an explanation of what happens at the EPO under the mostly French leadership from INPI (the French patent office which Battistelli pulled former colleagues from):
The French Model for the EPO
Summary
When the EPO was created in 1977, its founding fathers decided on a patent system that would provide for a high degree legal certainty for the inventor (investor), the competitors and the public, through high quality searches and examinations, the whole backed up by an opposition procedure and a second instance in the form of the Boards of Appeal. That decision has largely remained unquestioned by subsequent Presidents until Mr Battistelli took over. Indications are that Mr Battistelli is currently trying to remodel the EPO according to the example of the French patent system – without informing anybody. This should worry not only staff, but also the users of the patent system and the public.
The French patent system then
Until 1968, in France patent applications were not examined but merely registered. All what the French patent office did was stamp a date (and time of day) on whatever documents the
applicants brought to them. Patent granted before that time bear the mention “S.G.D.G.” meaning “Sans Garantie du Gouvernement” (i.e. without a warranty of validity by the government). Granted patents were only looked at when the patent proprietors sought to establish their claims. At that point the patents had left the patent office and national courts were responsible.
There are advantages to a registration system, first and foremost that it is cheaper for the patent office because it saves work. The obvious disadvantage is a lack of legal certainty until the patent is actually examined – by the courts. The French system nevertheless worked reasonably well. Without the presumption of validity, the risk of having a patent revoked was relatively high. French applicants reacted by drafting their applications in the safest way possible, thereby producing mostly clear claims of relatively narrow scope.
The French patent system now
Things changed when law n° 68-1 of January 1986 came into force. Article 6 of law 68-1 introduced the concepts of novelty and inventive step. This is mirrored Article L611-10 presently in force, the first paragraph of which reads:
“Sont brevetables, dans tous les domaines technologiques, les inventions nouvelles impliquant une activité inventive et susceptibles d’application industrielle.”
Also the other articles resemble those of the European Patent Convention, so that at a first reading the French patent system now looks very similar to that of the EPO.
There is, however, a major difference: Article L612-12, point 5, makes it clear that an application will be rejected only when the application obviously is non-patentable.
We cite the Guidelines of the French Intellectual Property Office (INPI)1,2:
“La non-conformité manifeste aux conditions de brevetabilité peut donner lieu au rejet de la demande de brevet dans les cas suivants :
Est rejetée, en tout ou partie, toute demande de brevet…
4° qui a pour objet une invention manifestement non brevetable en application de l’article L. 611-16 à L. 611-19
5° dont l’objet ne peut manifestement être considéré comme une invention au sens de l’article L. 611-10, deuxième paragraphe ;
7° qui n’a pas été modifiée après mise en demeure, alors que l’absence de nouveauté résultait manifestement du rapport de recherche.
Dans tous les autres cas, la non-conformité aux conditions de brevetabilité ne fait pas obstacle à la délivrance du brevet. Elle peut toutefois être sanctionnée par la nullité du brevet prononcée par les Tribunaux.”
Lack of novelty and inventive step is excluded as grounds for rejection, as it is defined by Article L611-10 first paragraph (see previous page) and point 5 above only cites the second paragraph of L611-10 (exclusions of patentability), that is word for word equivalent of Article 52(2) EPC and lists non-patentable matter such as discoveries, scientific theories, mathematical methods etc.
What happens in practice is that the INPI3:
- sends the incoming applications to the EPO for searching4,
- sends the search report produced by the EPO together with the search opinion5 to the applicant, to which the applicant must respond within 6 months (3+3 months) when X or Y documents are cited, otherwise the demand is administratively rejected for lack of answer,
- the applicants amend the claims or files arguments supporting of the claims,
- in case of remaining obvious defects not concerning novelty or inventive step (Art. 611-10, para.2) a communication is sent. Otherwise a patent is granted.
The French patent system does not foresee a post-grant opposition procedure by patent examiners (i.e. technical experts) or an appeal procedure at a second instance within the patent office. Appeals against rejection by the examiner, opposition by competitors and other forms of patent disputes are all treated by a civil court: the “tribunal de grande instance” in Paris 6 . The members of this court are all lawyers. There are no technical members.
The lack of substantive examination and the outsourcing of searches to the EPO explains why the INPI has relatively few examiners, why it seeks to recruit only relatively non-specialised engineers as examiners (“ingénieur généraliste”), and why examiner salaries are relatively low.
The EPO towards the French model
[x] has on previous occasions pointed out that the reasons given by Mr Batistelli to justify his reforms (e.g. “remaining competitive”) do not make sense and asked him what the real plan is7. We never received an answer. Any analysis of what is happening at the EPO is furthermore hindered by the fact that Mr Battistelli tends to use a form of Orwellian “newspeak8” where what he says can be exactly the opposite of what he means.
By now the outlines are nevertheless becoming clear: Mr Battistelli may be trying to reshape the European patent system after the French model9. This is most easily seen by the changes in the examination practice: Mr Battistelli’s continued insistence on “early certainty”, on efficiency (“getting there fast 10 ”) and the ever-increasing individual targets for examiners necessarily led to a strong reduction in the time available per file. The most recent “early certainty” initiative foresees that the majority of applications will see only a single response of the applicants and then a final action, presumably a grant. Under the guise of “areas of competence” senior experts have actually been moved out of their technical fields to other domains. The planned reduction of the backlog foresees further technical “flexibility” of examiners.
The EPO now also seeks to recruit “generalists” instead of highly qualified experts. In doing so it has lowered the initial salaries for examiners, in particular for those with previous experience, making the job unattractive for highly qualified experts. The expected result of the above changes will be a more superficial examination, focusing mainly on formalities – like in France.
Mr Battistelli has been hostile towards the Boards of Appeal from the very beginning of his presidency. Last year Mr Battistelli stopped recruiting Boards Members, up to the point that some 27 of the about 170 posts were unoccupied. This obviously led to massive delays in appeals. The next step is a removal to under-dimensioned offices at the outskirts of Munich. The likely impact will be another brain drain. It very much looks like Mr Battistelli considers the Boards of Appeal “unnecessary”, while absent in the French system. In his “French model” their role could be taken over by the Unitary Patent Court.
Conclusions
[x] supported and still supports and examination model of the EPO that aims at delivering patents with a high presumption of validity (the “German model”), because:
- it provides legal certainty for the applicant who will know at an early stage whether the invention is likely to survive challenges by the competition and hence whether it is worth investing in its development,
- it brings legal certainly for the competitors who will know at an early stage whether to count with a monopoly or not and hence whether to negotiate a license or work around the invention,
- it reduces the risk of unfair competition not only by patent trolls, but also by big companies “squashing” smaller competitors with large patent portfolios and the threat of costly litigation.
Apparently the “French model” works in France. This may be in part because foreign applicants will mostly avoid the French route because of the language difficulties, and the thorough
examination by the EPO thus far protected France from abusive applications coming in via the EPO route. But with the quality of the search and examination at the EPO going down this may no longer be the case. The “French model” thus risks the introduction of a patent system, in France11 and elsewhere in Europe, wherein predictability is not based through a high presumption of validity but on financial muscle: the patent proprietor who can best afford litigation will win12.[x] does not believe that such a model would really support innovation in Europe.
Should, however, the original EPO model no longer be considered to serve the best interest of the European economy, then a change of direction should be the result of a democratic process following a public debate and not the decision of a President with a cultural bias and possibly an axe to grind.
____
1 https://www.inpi.fr/sites/default/files/directives_brevet_completes_0.pdf, bold-face added
2 Translation: Evident non-conformity to the conditions of patentability may give rise to a rejection of the patent application in the following cases: Applications
4. of which the substance evidently cannot be considered as an invention according to Article L. 611-16 to L. 611-19,
5. of which the substance evidently cannot be considered as an invention according to Article L. 611-10, second paragraph;
7. that have not been modified although the lack of novelty was evident of the search report.
In all other cases non-conformity with the conditions for patentability is not an obstacle to the grant of a patent. The lack of conformity may, however, lead to the invalidity of the patent being found by the courts.
3 http://www.sedlex.fr/brevets-francais/delivrance/lexamen-de-la-demande-et-delivrance-dun-brevet/
http://www.cours-de-droit.net/la-procedure-de-delivrance-du-brevet-a121605180
4 Before the EPO existed French patent applications were searched by the IIB, the predecessor of the EPO.
5 Before the EPO issued searches opinions French applicants were requested to react to documents marked X and Y in the search report.
6 Code de la propriété intellectuelle, article D631-2.
7 “A brave new EPO?”
8 https://en.wikipedia.org/wiki/Newspeak
9 There is still considerable diversity in European national practices. E.g. the grant procedure for national patent applications in Switzerland and Liechtenstein does not require a search and does not involve any substantial examination at all. The patent is granted provided that certain formal requirements are fulfilled. It is possible to obtain a search report during the procedure, but this is optional and has no effect on the decision to grant. See: https://en.wikipedia.org/wiki/Unitary_patent_(Switzerland_and_Liechtenstein)#Grant_procedures
10 see “Getting there faster – Timely and efficient examination”.
11 We note that the lack of substantive examination in the French system has been criticised within France itself See the paper by Prof. Bertrand Warufsel for the University of Lille: http://www2.droit.parisdescartes.fr/warusfel/articles/warusfelexamenfondbrevetfr.pdf
12 Strikingly, the US seems to me moving in the opposite direction: http://www.gao.gov/products/GAO-16-490
That last footnote speaks of GOA — the relevance which it (to the EPO) we covered here not too long ago [1, 2]. If the above is an accurate assessment, there should be an uproar/revolt from existing EPO stakeholders, including patent holders. █
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Posted in Europe, Patents at 6:41 am by Dr. Roy Schestowitz
The only way is down
Summary: The British people have already been divorced from the EPO — a trend which is likely to continue amid Brexit negotiations and because the Battistelli-induced crisis deepens by the week
THE European Patent Office has lost its appeal here in Britain and it has nothing to do with Brexit (or a vote for Brexit). For quite a while now we have been hearing (privately) from disgruntled British applicants at the EPO (those who already have UK-IPO patents) — people whose stories will be published in the future when there’s no chance of it compromising ongoing disputes. Basically, we are left with the impression that British inventors don’t feel like they get their money’s worth at the EPO under Battistelli. One of them even considered suing the EPO before he realised it would not be possible (because of the immunity).
“Basically, we are left with the impression that British inventors don’t feel like they get their money’s worth at the EPO under Battistelli.”The EPO no longer hires people from the UK, based on recent figures that we published a couple of weeks ago. Earlier this year we learned that there was a 80% reduction in recruitment from the UK, but things appear to have gotten worse since (depending on which internal source of figures one relies on). As far as the EPO is concerned, Brexit appears to have already started and the only thing “English” about the EPO is the official language (for communication with clients, court/appeal/tribunal hearings etc.); as Battistelli started a vicious war against an Irish judge, there might soon be too little diplomatic affinity between Ireland (the other English-speaking country) and the EPO. I’m no proponent of Brexit but merely an observer of how the EPO’s abuses (top-level management like Battistelli) contributed to the negative image of the EU here, potentially convincing more people to have voted “Leave”.
Based on the following new article from Battistelli’s ‘protégé’ James Nurton (softball questions as ‘interviews’), individuals and businesses from the UK now file for trademarks (maybe also patents) at the UK-IPO rather than EUIPO (equivalent of EPO for trademarks) and there is a statistically-meaningful difference. To quote MIP: “UK trade mark and design filings jumped by 33% and 95% respectively in August 2016 compared to the same month last year, according to figures compiled by the UK IPO at the request of Managing IP” (MIP).
“Insiders at the EPO, as we shall show later this month, recognise the erosion of the EPO’s reputation (still ongoing and exacerbating).”We imagine that figures for the EPO would be similar, but due to long pendency of patents, the ‘Battistelli effect’ and the ‘Brexit effect’ might take some time for us to truly notice. Since MIP is now seemingly in bed with the EPO, we expect reluctance to produce reporting on that.
Insiders at the EPO, as we shall show later this month, recognise the erosion of the EPO’s reputation (still ongoing and exacerbating). We find it truly pathetic when all a company can say about itself to its shareholders is, “look we have got a patent at the EPO!” (latest such example). It’s not as though today’s patent quality at the EPO is what it used to be.
“Now that Battistelli is doing photo ops with Cambodia, which incidentally has zero European Patents (in the past 8 years or so), it’s not hard to sympathise with EPO staff for choosing to leave.”Patent quality at the EPO has gotten so bad under Battistelli (more on that later as well) that staff with dignity and good education often decides to leave. The EPO hardly wants and needs examiners now; it just wants people who can do a superficial search and stamp quickly (or “early certainty” as it euphemistically dubs it). Watch this very nonsense from the EPO regarding software patents, which are not legal in Europe. Just before the weekend it wrote: “Check out this course to see how computer-implemented inventions are examined for patentability under Article 52 EPC” (if they are computer-implemented inventions — a weasel word for software patents — they should be rejected outright).
Meanwhile, the EPO is still 'spamming' universities (latest examples in [1, 2) and if it deems this a recruitment tool/push, then it doesn’t seem to understand what academics who are experts in their field are looking for in an employer. Now that Battistelli is doing photo ops with Cambodia, which incidentally has zero European Patents (in the past 8 years or so), it’s not hard to sympathise with EPO staff for choosing to leave. I, personally, would never wish to work for Battistelli, whose office already threatened me in spite of me not working for him (and I'm not even in the same country!). The only way is down (unlike the song) as long as Battistelli stays. █
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