04.21.16
Posted in Europe, Patents at 3:38 am by Dr. Roy Schestowitz
Summary: More press reports about the controversial background of EPO Vice-President Topić, which in spite of his letter of response (neglecting to refute key allegations) continued to be published in the Croatian media
IN part one and in part two we looked at accusations that Topić, the Vice-President from the EPO, had forged his degree certificate (some still believe he never completed his degree). In part three presented a letter from Topić himself (bearing the name of SIPO even after he had left SIPO), but that letter said nothing to refute or deny accusations relating to this certificate. This isn’t like somewhat of a “Birther” movement; there are legitimate questions which need to be answered and documents that need to be seen.
“It can’t have been positive for Topić because if it had cleared him then it’s likely that Battistelli would have been the first to trumpet it to the world.”
–Anonymous“On the 20th of June 2012,” our source told us, “Tjedno.hr published a follow-up article about the controversy surrounding Topić’s disputed claim to have obtained a Master’s degree from the University of Banja Luka. Tjedno.hr published a further article about this matter on 30 March 2013.” (to be covered in part 5 of this series).
“The final outcome of the official enquiry attempting to verify Topić’s academic qualifications which was announced by the Croatian Ministry of Science in March 2012 has never been revealed. It can’t have been positive for Topić because if it had cleared him then it’s likely that Battistelli would have been the first to trumpet it to the world.
“Readers should bear in mind that the Croatian Ministry of Science never conclusively remarked on the matter.”“The only other investigation into the matter was the “internal investigation” carried out at the EPO in 2013 as previously reported by Techrights. Hoping that this information is of some interest.”
Readers should bear in mind that the Croatian Ministry of Science never conclusively remarked on the matter. There is the possibility of political suppression of the findings.
Below is an English translation of the article about it. Original Croatian text can be found here and for the sake of brevity we have added to the English translation some highlights in yellow.
LEAD STORIES
DOES ŽELJKO TOPIĆ HAVE A FAKE MASTER’S DEGREE?
A new scandal concerning the long-time Director of the State Intellectual Property Office
Date: 20 June 2012
Željko Topić departed from the SIPO at his own request on 30 April 2012 while the Ministry of Science, Education and Sports was in the process of conducting a supervisory investigation into the operations of the State Intellectual Property Office (SIPO) and in the midst of checking whether he has legal documents supporting his claim to have a masters’ degree in economics. His master’s thesis was reportedly defended in Banja Luka. In addition to an increasing number of pending criminal charges against him in Croatia, the story of Mr. Topić’s as yet unverified master’s degree is a special chapter in the murky biography of the long-time SIPO Director.
After his arrival in Zagreb, Željko Topić always claimed to have a postgraduate qualification as a Master of Economic Science and, based on that claimed qualification, he has for many years been drawing legally prescribed salary supplements although, as now seems to be the case, there is no evidence that he has truly earned the right to add this title to his name. After an anonymous letter of denunciation was sent to the Ministry of Science, Education and Sports, the Ministry requested the Faculty of Economics in Banja Luka to send official confirmation concerning the validity of Topić’s postgraduate qualifications but to date the requested information has not been received. The letter of denunciation pointing to the possibility of false claims concerning the master’s studies and the postgraduate diploma is published exclusively as an attachment to this article.
THE RIGHT TO FEES FROM LENDING BOOKS WAS IGNORED
Portal Tjedno has previously written on two separate occasions about numerous questionable actions on the part of Željko Topić. In the context of his various dubious activities it is interesting to note that so far no one appears to have bothered to ask who in the state administration is responsible for the fact that writers in Croatia still do not benefit from the legal right to fees from the public lending of books?
Following the adoption of the Copyright and Related Rights Act 2003, in 2005 the SIPO and its, now former, Director of Željko Topić, produced a document entitled “National Strategy for the Development of the Intellectual Property of the Republic of Croatia 2005-2010″ in which the implementation of the public lending right (PLR) was foreseen for the period 2006-2007. That document was approved by the Croatian Government in October 2005. The SIPO was supposed to coordinate the implementation of the measures set out in the document, including the introduction of the above mentioned PLR, in collaboration with the Croatian Writers’ Association and the Ministry of Culture, which funds libraries including the National and University Library, as well as the central library facility in the Republic of Croatia.
In addition, under the CARDS 2001 project relating to strengthening intellectual property rights in Croatia entitled “Strategy and Action Plan for the Implementation and Realization of Intellectual Property Rights” which was funded by the European Union and completed in 2005, one of the measures planned by the SIPO related to the implementation of the PLR in Croatia: identification and distribution of financial compensation to writers.
Based on the details about the PLR contained in the above documents and the planned schedule for its introduction in Croatia, a proposal was presented at the European and World Congresses on Public Lending Rights in Budapest and Paris in 2007 to organize the next European PLR Congress, i.e. for 2008, in Croatia with the aim of assisting Croatian writers to obtain a faster and better implementation of the new right.
OFFICIAL MERCEDES PURCHASED AT A BARGAIN PRICE
However, despite being designated as the official coordinators for the aforementioned “National Strategy”, the SIPO and its former director Željko Topić completely ignored their obligations in the area of public lending rights and failed to respond in an appropriate manner to the offer of foreign aid. In April 2008, Topić rejected the proposal of the organizers of the PLR Congress on the grounds that Croatia, as the prospective host state, lacked the necessary funds for co-financing the cost of the Congress (i.e. approximately 15,000 EUR). The organizers reacted with disappointment and skepticism to Topić’s rejection and decided to re-direct their offer of co-funding towards Bulgarian writers with the result that in September 2008 the European PLR Congress was held in Sofia, rather than in Croatia as originally planned.
At the same time as he rejected the proposal of the PLR Congress organizers due to an alleged lack of funds, Topić was busy approving the use of six vehicles by the SIPO (a Mercedes, three Audis and two Skodas), three of which were brand new vehicles that mainly served to satisfy his personal vanity. In this connection it is worth noting that the costs incurred for of one of these vehicles over a period of six months would have been sufficient to cover the co-financing of the Congress which was of such significance because of the support that it would have provided to Croatian writers. Topić also financed the costs of a new Audi 6 which was placed at the disposal of the supervisory Minister of Science (who was responsible for proposing the appointment and dismissal of the SIPO Director to the Government) thereby coming under suspicion of having “bought” his second term of office as SIPO Director for some HRK 500,000, a matter which is the subject of proceedings before the European Court of Human Rights in Strasbourg. As for the new Mercedes, Topic saved this for himself (as he was normally driving in the Audi). After three years of leasing payments from the State budget, he became the owner of the aforementioned vehicle in mid-2010 after paying only a nominal price for it.
That last sentence serves to reinforce allegations or rumours that Topić now drives this Mercedes, originally purchased for SIPO. Some say that they saw this vehicle parked in Munich and photos were circulating among EPO employees. This can’t be good for Topić’s (and by extension the EPO’s) credibility, can it? █
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04.20.16
Posted in Apple, IBM, Law, Microsoft, Patents at 9:09 am by Dr. Roy Schestowitz
Billionaires and their think tanks too get involved
IBM pushing for software patents not just via lobbyists like former IBMer, David Kappos (on IBM’s payroll for lobbying now), but also IBM’s Manny Schecter (above). Photo credit: Esteban Minero
Summary: The law surrounding patents in the United States continues to be manipulated or at least lobbied on by large corporations such as IBM and Microsoft, as well as by think tanks such as CATO Institute
THE PAST few weeks were spent looking at the front group led by David Kappos, who is paid by software firms such as IBM, Microsoft, and more recently Apple, which evidently has a lot at stake (it has just settled a patent lawsuit and here are ten of the earliest reports we were able to find about this [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]). Kappos is trying to diminish if not demolish the impact of Alice so that software patents continue to do their damage (recall the lawsuits from Microsoft against Linux, Apple against Android, and IBM against various Internet companies as of late).
“Kappos is trying to diminish if not demolish the impact of Alice so that software patents continue to do their damage (recall the lawsuits from Microsoft against Linux, Apple against Android, and IBM against various Internet companies as of late).”IAM ‘magazine’, a proponent of this Kappos lobbying agenda (openly so), has just said: “As this blog and others have reported, there has been a general increase in patent activity in the auto sector in recent years, which has brought with it a rise in new infringement lawsuits and activity at the Patent Trial and Appeal Board (PTAB). However according to data recently released by Unified Patents, the number of lawsuits in the sector dropped last year, despite a rise in the overall number of new patent cases in the US. There were 126 new cases filed in 2015 involving carmakers and their suppliers. That was down from 154 in 2014 and 160 the year before.”
Drop in litigation is a good thing, unless one runs a litigious company that is suing rivals or threatening rivals in order to extract ‘protection money’ (settlement). Recent statistics suggest that a vast proportion of patent lawsuits are now being filed by patent trolls, who typically use software patents. According to the above, which refers to trolls using common euphemisms, patent trolls “still account for the lion’s share of new cases with 88 suits filed last year.”
“Drop in litigation is a good thing, unless one runs a litigious company that is suing rivals or threatening rivals in order to extract ‘protection money’ (settlement).”One patent propagandist offers support to his buddy at IBM, which is increasingly a patent aggressor/bully. He previously interviewed him. “IBM’s Manny Schecter,” he wrote, “giving keynote @Innography #Insights2016 today @ 11am CT on “What should we do about Alice?” A very good question!”
One approach embraced by Manny (so far) is rather simple; pay David Kappos, a former IBM employee, to lobby the system. It’s sort of weird that the question is, “What should we do about Alice?”
“One approach embraced by Manny (so far) is rather simple; pay David Kappos, a former IBM employee, to lobby the system.”That’s like asking, “what should we do about the Supreme Court?” IBM seems arrogant enough to attack or discredit the highest court via Kappos (IBM).
The same kind of quote comes from this tweet, which says “IBM Chief Patent Counsel @MannySchecter @Innography Insights – What Should We Do About Alice?” (to his pleasure, based on his response).
“Don’t let IBM, Microsoft, Apple etc. effectively buy the law by ‘buying’ former officials like Kappos.”The one good thing about David Kappos, Manny Schecter and various other proponents of software patents (or boosters of IBM’s patent aggression) is that they help demonstrate/highlight how corrupt the patent system is. One conspiring to shape one’s system by lobbying is not illegal, but to put one’s staff in key positions and to pay to change law may be. Don’t let IBM, Microsoft, Apple etc. effectively buy the law by ‘buying’ former officials like Kappos. It’s a mockery of a system that’s supposed to be shaped by public interests. Ask Manny Schecter how much money, other than lots of salaries, IBM has just paid Kappos to legalise/promote software patents in the US. Generally speaking, try to find out who’s paying to change the law and how much. Yesterday we became aware of a ‘Conservative’ (corporatist) think tank of the Koch Brothers (CATO) publishing a paper on patents (spring edition), downplaying the severity of the patent system’s problems [1, 2, 3, 4, 5, 6, 7, 8, 9] to essentially defend patent trolls, which mostly come from (or to) Texas. This paper, based on the feedback, is widely liked by patent lawyers from Texas. █
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Posted in Europe, Fraud, Patents at 5:42 am by Dr. Roy Schestowitz
The EPO’s VIP ‘inventor’ seems to be nothing but a scam
So proud of Theranos…
Oh. Ouch!
Summary: Battistelli’s introduction of a weirdly-covered (by French media partners) ceremony is revisited in light of a truly embarrassing revelation with criminal elements to it
Battistelli is doing a lot of what FIFA’s Blatter was doing in order to distract the media and create a positive image of the organisation. The EPO is supposed to be neutral about patents/applications it deals with, but neutrality was thrown out the window under Battistelli's regime (large corporations receive special treatment).
There is also this thing called “Inventor Award”, which the EPO keeps promoting in Twitter every week or so (sometimes several times per week), neglecting to say anything about corruptible media organisations that play along.
“Here is a new ego trip by President Battistelli,” told us a source this week, taking note of this news about a “scandal”. To quote:
The wheels are coming off the cart at Theranos, the $9 billion startup founded by Stanford dropout Elizabeth Holmes when she was 19. Its proprietary blood testing technology is the subject of a scathing report from the Centers for Medicare and Medicaid Services (CMS), but that’s just the latest in a growing list of woes for the troubled unicorn.
First, the FDA declared the company’s nanotube container for collecting blood from a finger prick to be an unapproved medical device. Then, CMS found serious deficiencies that forced a shutdown of Theranos’ Northern California lab. And while the company’s deal with Safeway never got off the ground, Walgreens is reportedly looking for a way to get out of its agreement.
But the one thing that the secretive Silicon Valley startup has managed to avoid is peer-reviewed, independent testing that compares the results of its proprietary diagnostic testing to that of other labs like Quest Diagnostics and LabCorp. Last week, that changed, and the results were devastating.
What does this have to do with the EPO? Theranos was somewhat of a VIP at the EPO, owing to the whole “Inventor Award” publicity stunt of Battistelli.
“The European Inventor of the year is a huge waste of applicants’ money (over 1 million EUR/exercise),” told us our source, “besides the ethical questions related to the mission of the EPO.”
“Unlike former presidents, Battistelli is no scientist but a well-connected politician from École nationale d’administration.”“It is a mere ego exercise for the sole satisfaction of the pathetic president with some real risks. And now here we are.” (warning: epo.org link)
So, in short, it seems to link Battistelli’s inane “Inventor Award” to potentially fraudulent pseudo-science. Not that Battistelli himself would be able to discern/distinguish between science and pseudo-science. Unlike former presidents, Battistelli is no scientist but a well-connected politician from École nationale d’administration. █
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Posted in Europe, Patents at 5:13 am by Dr. Roy Schestowitz
Summary: Under SIPO’s name, after his departure from SIPO, Željko Topić posted a letter which looks like reactionary ‘damage control’
THE management of the EPO has got skeletons in its closet. It probably knows this, hence the aggression against EPO staff that’s brave enough to speak about it.
In part one and in part two we presented allegations that Željko Topić’s Masters certificate had been forged. There was more than just an anonymous letter about it. There were several investigative reports on this subject, as we shall show in parts four and five of this series. In order to maintain chronology, today we present Topić’s response to the previously-covered items.
“On the 30th of April 2012,” we were told about Topić, he “made a brief trip back to Zagreb to order the publication on the official SIPO Web site of a “press release” which he had drafted himself. It seems that Minister Jovanovic’s efforts to investigate the affairs of the SIPO ran out of steam due to political pressure from the then Croatian President Ivo Josipovic.”
Here is the original Croatian text [PDF], which is basically Topić’s position and here it is in English:
REPUBLIC OF CROATIA
STATE INTELLECTUAL PROPERTY OFFICE
Zagreb, 30 April 2012
PRESS RELEASE
Following a series of articles in the media, among which Jutarnji list and the Internet portal Index.hr have been particularly prominent, and in which arbitrary allegations have been levelled in an outrageous manner against the former Director General of the State Intellectual Property Office, Mr Topić, and against the activities of the Office as an institution, the State Intellectual Property Office is publishing the following press release with the aim of objectively and truthfully informing the public and preventing further misrepresentation by the media.
The so-called “affair” relating to Director General Topić is nothing more than the product of unprofessional journalism which, in its search for a sensational story, publishes incomplete information, unverified information and even complete disinformation, to which a completely arbitrary and tendentious interpretation is applied.
The main source of accusations against the Office and against Mr Topić personally is the unprecedented campaign conducted by Ms Vesna Stilin, who was dismissed from service in the Office at the beginning of 1999 by the then Director due to unauthorised absence from duty for a duration of 34 consecutive days. For over 12 years she has been exerting unrelenting pressure on the competent government and judicial authorities in an attempt to realise her own unfounded ambitions and interests while trying to depict the matter as a struggle against illegal activities of the Office. We emphasise that from 1999 until the present day Ms Stilin has instituted dozens of court proceedings against several directors of the Office, the Office as an institution and the Croatian state in which inter alia she has claimed huge sums of money which are purportedly owed to her by the Office and the Croatian state. Ms Stilin’s arbitrary and malicious allegations concerning irregularities in the Office’s operations have, unfortunately, fallen on fruitful soil created by the current atmosphere of public distrust towards state institutions due to the intensified fight against corruption in recent years. In addition to this, arbitrary allegations by malicious individuals driven by questionable motives are published uncritically as facts by an unprofessional media and without any prior verification or objective analysis.
In the context of this unprecedented campaign by Ms Stilin who, on an almost daily basis for the past 4 years, has been filing various absurd submissions, including criminal charges, against Mr Topić and the Office with government and judicial authorities, a report relating to a budgetary inspection of the Office’s operations conducted in 2008 has been published. The contents of this report have provided the basis for media misrepresentation concerning alleged financial malpractices at the Office.
The aforementioned report has been interpreted in an arbitrary manner, without any appreciation of its contents and context, which we now elaborate upon with the aim of clarifying this matter.
Due to the monopolistic nature of intellectual property rights and the complex procedures for their protection, and in accordance with generally accepted global standards, it has been prescribed that not only the usual state duties are to be paid in connection with these procedures, but, additionally, fees for granting and maintaining the validity of these rights.
In many countries, pursuant to the terms of international intellectual property agreements which in principle stipulate that the income from procedural fees for the granting and maintenance of such rights be used for the further development of the intellectual property protection system, this income is classified as the “proprietary revenue” of the competent intellectual property office. Such a practice also existed in Croatia from 1991, when the Office was established, until 2007, when the process of establishing the state treasury and the associated systematic regulation of revenue and expenditure in the central government budget led to a reinterpretation of the concept of “proprietary revenue” of government bodies. In other words, prior to 2007 the revenue from fees for intellectual property rights granting and maintenance procedures falling under the Office’s responsibility was remitted to a special sub-account of the government budget, from which the Office settled a part of its operating costs directly while unspent funds accumulated in the same sub-account and were visible in the prescribed financial reports of the Office.
That such operations were in conformity with the law is confirmed by an audit report from 2004 in which they were not called into question in any way whatsoever. However, according to the interpretation of the aforementioned budgetary inspection from 2008, the changes that had taken place in the meantime in relation to the definition of “proprietary revenue” of government bodies and in the context of the overall process of introducing a regulated government accounting system, resulted in a situation in which the Office’s revenue from fees for procedures for granting and maintaining the validity of intellectual property rights was henceforth to be considered as part of the general revenue of the central government budget. At this point it was requested that the funds which had hitherto been accumulated in the so-called “proprietary revenue” sub-account of the Office should be transferred into the central government budget account and that the planned expenditure from the central government budget for the operating costs of the Office be increased by a corresponding amount. The Office subsequently complied with this request. However, despite the detection of certain accounting irregularities in relation to the consistent management of expenditure between the so-called “proprietary revenue” sub-account and the central government budget account, the disputed budgetary inspection did not reveal any actual misuse of the financial resources.
The Office wishes to point out that the media reports concerning this matter and the allegations made by Ms Stilin systematically omit to mention that all detected irregularities were subsequently resolved and clarified, and that the competent authorities which had the disputed budgetary inspection report at their disposal evidently did not consider the established irregularities to merit further investigation. In every detailed audit of the operations of any legal entity a certain number of irregularities are almost always detected and the competent authorities subsequently undertake corrective measures depending on the objective gravity of the detected irregularities. It is emphasised that 8 identical copies of the disputed budgetary inspection report were compiled and submitted to the competent authorities in accordance with the applicable regulations on budgetary inspection.
The Office also wishes to draw attention to the misrepresentation concerning a “multi-million amount of fees” which the Director General allegedly paid out to himself and his “cronies”. The sum referred to corresponds to approximately 10% of the total amount that was paid out for the regular services of the Office employees over the same period, and it relates to payments made on various grounds to 42 of a total of 104 employees of the Office, including several months of full-time contract employment for a few individuals. It has also been omitted to explain that the only fee which was paid out to Mr Topić was for professional services on the examination committee for certified representatives in proceedings conducted by the Office and which was transparently and legally regulated and paid out in the same manner to all members of the examination committee. With regard to allegations about the fees for the committee members not being fully covered by the examination fees paid by applicants, we would like to point out that prior to the Decision of the Government of the Republic of Croatia in 2011 abolishing compensation due to civil servants for membership of expert committees, such fees paid to civil servants for services provided to expert committees in numerous state administration bodies were paid in full from the central government budget account, and that subsequent to the disputed budgetary inspection the Office aligned the examination fees with the level of compensation due to the examination board. The Office would also like to emphasise that in accordance with the results of the Feasibility Study on the Restructuring of the Office into a Self-Financing Organisation, which was carried out by independent experts, it was determined that the central government budget revenues arising from fees for the granting and maintenance procedures for intellectual property rights which were a direct result of the operations of the Office in 2007 and 2008 exceeded the total operating expenditure of the Office by approximately 800,000 HRK.
Concerning the fabricated “affair” about the allegedly illegal procurement of an official Mercedes vehicle and its “concealment” in the Office archives, all unfounded allegations based on malicious anonymous submissions by staff members were publicly refuted by the Office with counter-arguments immediately after their initial publication in 2009, a detail which the media now writing about this matter systematically omits to mention. They also fail to refer to a clear and unambiguous statement in the report of an administrative inspection conducted by the Ministry of Science, Education and Sports according to which it was established that there had been no irregularities in the procurement and usage of official vehicles at the Office.
With regard to the aforementioned criminal charges filed against the Director General of the Office, a key fact has been omitted: criminal charges can be filed by anyone, regardless of the merits of the case and the competent authorities are obliged to start investigative proceedings in relation to any criminal charges filed, no matter how unfounded they may prove to be after the investigation has been carried out. With regard to the specific criminal charges referred to here, the Office wishes to draw particular attention to the following facts.
The criminal charges brought by the employee Zdenko Haluza for the alleged forgery of an official document by Mr Topić are based on the date of entry into force of the Regulations on the Internal Organisation of the Office, which was incorrectly stated in the Decision concerning the transfer of Mr Haluza from an abolished position to a new position at the same level of competence and with identical associated rights. Mr Haluza has been trying to challenge the aforementioned transfer without success since 2008 and he refuses to carry out the duties associated with the new position to which he was transferred. After the legality of this transfer and the irrelevance in this regard of the incorrectly stated date were confirmed, Mr Haluza had exhausted the available means of redress in his proceedings against the Decision of the Office and he therefore resorted to the malicious filing of a criminal lawsuit for the forgery of an official document as the only remaining way of challenging the transfer. In the meantime, this lawsuit has been dismissed by the State Attorney’s Office. However, under the Croatian Criminal Code, a plaintiff can pursue the proceedings as a private plaintiff after the claim has been dismissed by the State Attorney’s Office, which is what Mr Haluza has done. In view of the evident absurdity of the criminal charges, it is more than certain that the outcome of the aforementioned proceedings will be in Mr Topić’s favour.
The second criminal charge against Mr Topić “by the employees of the Office” is the one filed by Ms Stilin as a private plaintiff which relates to the allegedly defamatory content of one of several proposals made by Mr Topić to relieve Ms Stilin of her duties as an Assistant Director. The alleged libel relates to a memorandum explaining the unsatisfactory performance of the duties of Assistant Director on the part of Ms Stilin due to which her dismissal from these duties was proposed. The media articles have systematically omitted mention of the fact, which Ms Stilin has confirmed in her public statements, that in the court proceedings in this criminal case Mr Topić has already been acquitted twice on the basis of two non-binding decisions, [i.e. first instance decisions that are not finally binding]. Based on previous experience it is certain that Ms Stilin will continue these proceedings until she has exhausted all available legal means, and thereafter by using other forms of pressure.
The third criminal charge is the one filed by Mr Frgačić in the so-called “Lufthansa-Affair”. The Office emphasises that it conducts more than 10,000 procedures a year in connection with requests to grant intellectual property rights, a significant part of which are terminated by a decision not to grant the requested right because the prescribed requirements have not been met. There thus exists the inherent possibility that an applicant will be dissatisfied with the decision of the Office no matter how well supported by arguments and based on law it was. The character of the dissatisfied party will determine which legal remedies they rely on to pursue their interests and this does not exclude filing arbitrary criminal charges and making accusations about the alleged corruption of officials.
It is also known to the Office that the obligatory investigative actions are being conducted as prescribed in relation to criminal charges the content of which makes it evident that they are based on malicious accusations originating from the habitual arsenal employed by Ms Stilin in the daily submissions with which she exerts pressure on the government and judicial authorities.
With regard to the so-called ZAMP Affair (Protection of Music Copyright), the Office has already issued a press release and on this occasion emphasises once again that all allegations of irregularities concerning the collective management of these rights are completely unfounded and that this has been recognised in the meantime by a good part of the objectively-minded public.
From the fact that Mr Topić is portrayed by the media in turns either as a confidant of President Josipović or as “Sanader’s apparatchik”, the absurdity of all speculation about his appointment as Director General being due to some kind of political patronage becomes apparent.
Apart from a year-long break when he worked in the private sector, Mr Topic held various professional and managerial functions in the Office more or less from the time of its establishment until he left the position of Director General to take up his appointment as Vice-President of the European Patent Office. It is evident from this that he was appointed as Director General based solely on professional rather than political considerations. The only person who has invoked party membership in an attempt to secure her own interests has been Ms Stilin who in her numerous absurd accusations against Mr Topić stated inter alia that her dismissal was a consequence of his discrimination against her because of her membership of HDZ.
Mr Topić’s selection as a Vice-President of the European Patent Office has also been the subject of outrageous misrepresentation by the media. The aforementioned position is awarded solely on merit and it is not a political appointment. Moreover, Mr Topić obtained the position on the basis of a publicly advertised competition for which he applied along with three other candidates. Mr Topić was chosen following the presentation of his candidacy to the Administrative Council of the European Patent Organisation, of which the European Patent Office is the executive organ, and after he had received the votes of a majority of the representatives of the 38 member states during the first round of secret voting on the four candidates, and it was not due to any kind of political lobbying by Croatian diplomacy.
In conclusion, the Office wishes to express its grave concern about the fact that such extremely unprofessional media manipulation based on malicious accusations from a small number of people obviously driven by questionable motives can cause the reputation of a state institution and its Director to be called into question in such an outrageous manner, despite the notable results achieved by the Office and its professional reputation in the relevant national and international professional circles, which is incontrovertibly confirmed by the official reports of the European Commission, the international awards presented to Mr Topić and his appointment to a high executive function at the European Patent Office based inter alia upon the results achieved during his many years as the head of the Office. We particularly regret that the competent institutions have also succumbed to this unprecedented pressure and have subordinated their actions to individual interests rather than objective reasoning based on relevant facts.
REPUBLIC OF CROATIA
STATE INTELLECTUAL PROPERTY OFFICE
Ulica grada Vukovara 78, HR-10000 Zagreb, Croatia: Tel.: (+385 1) 6106-100 (Director),
6106-418 (Receiving Office), 6106-111, 6106-105 (Staff) Fax: (+385 1) 6112-017; E-mail: info@dziv.hr
It is worth noting that the above does not at all address the accusations about faked academic qualifications, which thus continued to float as a subject of concern (future parts shall cover this). Stilin was sued by Topić for defamation, but Topić repeatedly lost the case. One may thus get the impression that what Stilin had alleged was true or at least defensive by evidence. █
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04.19.16
Posted in Europe, Patents at 3:00 pm by Dr. Roy Schestowitz
Money in circulation, self-serving agenda everywhere one looks…
Summary: The “Community patent” or “EU patent” or whatever euphemism those who created it (the architects) use these days (now it’s UPC) is threatening to engulf Europe without the European public ever being consulted about it (the ‘threat’ of democracy overcome by the rich and the powerful)
“It’s hard to see UK making any UPC-related decisions before result of the Brexit referendum is known on 24th June.”
These, surprisingly enough, were the words of IAM’s official Twitter account (based in the UK). We would go even further than this; as the UK is the only large English-speaking country in the EU (Ireland aside), what would a UPC look like without the UK? Would it be accessible to firms from the US? What about British? The language barrier is just one issue among many. The UPC fantasy is anything but a certainty; its proponents hope that by talking about it they’ll make it happen. There’s even a push to practically prepare the UK for it (ahead of any approval, vote, consultation with the public etc.) and UPC propagandists are being quoted by other UPC propagandists as saying that Brexit means nothing at all to UPC, not even to UPC inside the UK. What a farce!
Money talks.
Money can also change a person’s view.
Sadly, as we have pointed out here for a number of years, the debate about UPC is dominated by the few who stand to benefit from it at everybody else’s expense.
The other day Merpel started talking about the UPC in relation to the UK and already leaped to a debate about “UK Patents Court judges”, almost as though the UPC is inevitable and already here to stay. It never even arrived at all. Well, if it ever becomes a reality at all, there’s no guarantee it will reach the UK. Merpel wrote: “It would be misfortunate to squander this available experience, especially in the critical early days of the UPC. The success of the UPC will be determined by the quality of its decisions and, thus, the experience of its judges. Without experienced judges from one of Europe’s widely recognised and frequently used patent jurisdictions, the strength and attraction of the UPC as a competitive venue for European patent litigation will be depleted. A subsidiary issue is that, without the participation of the UK’s Patents Court judges, the attraction for litigants to use the UK’s local division to commence patent infringement actions would also be weakened (thus curtailing the positive benefit to UK’s economy). Such a state of affairs seems completely nonsensical given how hard the UK Government fought to secure a seat of the Central Division in London for exactly the same reasons (i.e., beneficial to the UK economy, key role in the stake and success of the UPC, etc etc etc).”
The UK ‘produces’ not that much other than services, and this includes software services. What kind of economic benefit/edge would the UK have if the UPC became a reality? Patent trolls are already starting to gather in London. Do we need even more of that? I, as a software professional, am growingly worried about these prospects.
The comments on Merpel’s post have mostly come from patent lawyers and attorneys, as one ought to expect given the blog’s audience. Some of the comments rightly point out issues. To quote some comments (copyright assigned to their posters):
Highly unlikely. Even if the UK is still around for the UPC and the UPC does in fact take off and this were to happen -unfortunately,the UK, France, Germany and Italy will be outnumbered by the non patent nations on the UPC. So you can start complaining now about the quality of the judgments to come like you do about the CJEU. In fact, the CJEU never pretended to be nor indeed was required to be a specialist court for patents but the criticism meted out to them about not getting it right whenever they dealt with the SPC Regulation was enormous -although on the other hand they always had a good stab at the Biotech Directive whenever they dealt with it.
As one comment put it:
If there’s a Brexit, game over.
Whilst I am not a Brexit proponent myself, many people are. We shall wait and see what happens. Another commenter says: “Given that the UK has (seemingly unlike almost all other countries ratifying the UPC Agreement) gone to the trouble to specifically create a national law applicable to EPUEs, it would be a terrible waste if there were no UPC judges who were qualified to interpret that law” (the remainder of this comment is added below).
If there are no UK judges in the UPC’s first intake, what will the UPC do about Articles 5(3) and 7(3) of Regulation 1257/2012, as applied to EPUEs filed by UK-based applicants?
That is, who will explain to the other judges how to interpret the national law of the UK that is “applied to European patents with unitary effect”?
Given that the UK has (seemingly unlike almost all other countries ratifying the UPC Agreement) gone to the trouble to specifically create a national law applicable to EPUEs, it would be a terrible waste if there were no UPC judges who were qualified to interpret that law.
Presumably, interpretation of the relevant national law is an issue upon which (due to Art. 5(3) of the UP Reg) questions could be referred to the CJEU. Could be interesting seeing how the CJEU handles that one!
Watch the enormous costs associated with it; one way or another these costs will be passed in the form of tax to a lot of Europeans, more so than to foreign corporations:
Its my understanding that the biggest problem is that a salary of EURO 11,000 per month is a deterrent. Very few in the UK seem to be interested in such a paltry remuneration, whereas in Germany they apparently already have over 1000 applicants!!
Some things are hard to believe:
1000 applicants from Germany? Twaddle as the application process hasn’t started yet (read the article).
Now the EPO is brought into it:
Will there be any full-time UK Patents Court judges in the UPC? Forget it, Judges. It’s the EPO. By the way pay no attention to that man behind the curtain!
Anon, anon was probably referring to this campaign:
https://www.unified-patent-court.org/news/preparatory-committee-launches-expression-interests-candidate-judges
Then comes up the problem associated with languages, which are already a problem at the EPO (we covered this before). To quote:
the key issue here is languages, what French or German language UK judges speak??? will them be able to take a case in German? or French? will a month or two in the Budapest training centre suffice for acquiring French and German language skills ?? the perfect candidates for these judge posts are members of the EPO Boards, however these people have a salary much higher than the 11.000 Euros net per month, so who will apply? I agree with some comments, above, the non Patent important UPC member states…
11.000 euros is half of the salary of an ECJ judge and 3 to 5 thousand euros less than an average member of the Boards of Appeal, who will leave aside its house, the children and the spouse job for this salary and for a non-permanent job of 6 years?.
It looks like representation would not be as diverse as people were led to believe:
Hire a couple of high profile patent judges from each of the main countries, and be sure they will fight for years trying to impose their own national practices and legal traditions in respect of hundreds of issues from the formal requirements to be met by a party´s request, to the admissibility of new arguments or the way orders should be formulated and decisions drafted. Less prominent candidates might be more prone to finding reasonable compromises.
And again a discussion about the waste of money:
Ah yes, but some have been preparing for this for some time (years in some cases)-sorting out their references,sending CVs to key persons, hobnobbing with civil servants from their MS,making sure they write articles on patents etc.
And don’t sniff at the 11,000 EUR tax free which does not include the massive list of benefits paid on top. For example, EU civil servants get an education allowance for their kids until age 26 (negotiated by the Germans over 50 years ago as German kids stay in higher education until then easily and so do British kids increasingly except there are increasingly no Brits left in the system and the Brits wanted to get rid of this).
How many people might even be qualified? Here is an educated guess:
At a conference in Strasbourg on the proposed UPC – memorable for having started the day that Icelandic volcano blew – the subject of judge’s qualifications for this role came up. It was estimated that the number of active judges who met the requirements was about – 20. Perhaps 50 at a push. Not official of course, but not very optimistic. And apparently not much improved upon since.
There is not much room at all for British judges anyway:
The numbers of judges initially required is probably relatively low. Given the number of proposed local divisions and allowing a bit of flexibility probably around 50 legally qualified judges are required almost all of whom would only be acting on a part time basis. However, if the response to the expressions of interest are representative, that is just as well since only 171 of those who expressed an interest had the qualifications and experience in patent litigation to be a legally qualified UPC judge without additional training.
At minimum, each local division will need at least one local judge, with the local divisions in UK, Germany, France, Italy and the Netherlands having two local judges. So there will necessarily be a spread of nationalities and at least 2 UK judges.
You would have to ask the existing UK patent judges whether or not they intend to apply but given the political capital that has been invested in the project, it is unlikely that the MOJ would prevent UK judges from serving on the court on a part-time basis.
Merpel’s post aside, we were rather disturbed to see a colleague from Bristows pushing the UPC in the same old fashion, first relaying UPC lobbying in a Microsoft-sponsored conference for patent maximalists who wish to influence policy (even Microsoft-funded lobbyists were there to promote software patents), then posts like this one and several others. “On a bleak Friday afternoon in London,” she wrote, “with the rain soaking into her paws and the wind messing with her perfectly coiffured fur coat, the AmeriKat was warmed by receiving an e-mail from Joan Scott of the European Crop Protection Association (ECPA) on one of her favorite topics – Supplementary Protection Certificates (SPCs). Prompted by her report of Margot Fröhlinger’s presentation on outstanding issues in the UPC at this year’s Fordham IP conference (see here), which included the need to iron out details on SPCs based on unitary patents…”
This Bristows (LLP/UPC) employee later wrote about Claire Phipps-Jones of Bristows LLP (notorious here for UPC promotion) and proceeded to some more of that. There is so much UPC promotion at IP Kat these days, usually courtesy of Bristows LLP staff. What is this, another corporate blog (for some contributors)? One way or another, EPO management must be happy. We are slowly led to believe that the UPC is almost here in the UK or is already here. This is far from the truth. Secrecy around UPC makes it hard to know exactly what’s happening (see this recent complaint about it). Like all sorts of so-called ‘trade’ agreements, it is a conspiracy of the rich and powerful against the rest. It’s usually large corporations and their lawyers and/or lobbyists.
“Unitary Patent Select Committee keeps meeting,” noted this one frequent critic (Francisco Moreno), “but transparency is not invited. Distribution key, anyone?”
Transparency for the UPC? They try to ensure that virtually nobody except UPC proponents even knows what this thing is about. Here is what Moreno wrote, having asked the EPO last year about the UPC [1, 2]: “An agreement has been reached but no details are provided: what is the % corresponding to each pMS? Or what is the formula that takes account of the GDP and the number of applications filed to fix the distribution key?”
Well, obviously, look who lobbies for the UPC and recall who benefits from it. Korenberg is quoted (paraphrased) as saying that “one rationale behind unitary patent court in Europe, decrease prohibitively costly enforcement for smaller companies,” but this is a lie. The UPC does exactly the opposite by exposing SMEs to more patent lawsuits and fees. It is in no way beneficial to the small firms, or even to European firms. It is also terrible for Spain [1, 2, 3] (Moreno should know this), so no wonder it opposes the UPC, in spite of lots of pressure, even economic blackmail. Conveniently enough, as some care to notice, UPC propaganda ‘forgets’ to mention that any SME which gets a patent faces lots of lawsuit threats from many more other companies. There are two sides to this coin and those who pocket all the coins are usually patent lawyers. According to this very recent update, citing a dubious report: “The 2016 annual report of the European Patent Office (EPO) pointed out that China maintains the most fast-growing European patent filer. With a patent filing number of 5,721 (22.2% increase compared to the data in 2014), China ranked the eighth among all the countries. The EPO stated that strong growth of the Chinese economy has become an important driving force in European patent development.”
So imagine how many patent lawsuits can come from China alone, never mind all those patent trolls from Texas.
The Bristows posts attracted comments too, just like the post from Merpel. Yet another response, in another thread, said that one should be “very uncomfortable with the EPO gaining control of the examination” while Battistelli is killing the Boards of Appeal and reduces quality of patents for the sake of superficial gains. Here is the comment in full:
use the EPO? Are you serious? That is one sure way of losing all of the collective knowledge of the national offices that has been gained over the last 20+ years regarding how to examine SPCs. How about we instead try to improve upon what already exists (e.g. by creating a virtual body), rather than throwing out the baby with the bathwater?
Another thing – unless and until a way is found to improve the governance of the EPO (including ensuring full compliance with fundamental principles of employment legislation in the EU), I would be very uncomfortable with the EPO gaining control of the examination of yet another highly valuable IP right.
Here comes a criticism of the prospect of the UPC, citing immaturity factor:
Come on: back in 1978 the EPO had 0 experience with patent examination. Yet it could start and flourish because it hired experienced examiners from national offices, and because it built on the Institut International des Brevets in Rijswijk.
The same holds for the UPC: when it starts, it will have 0 experience itself. Yet, nobody needs to be afraid of silly judgments because the UPC judges will be drawn from experienced national courts.
So, no doubt that the EPO will do just fine if it were (t)asked to examine SPC applications.
Governance will be the big issue with any virtual office: it will need real governance structures. Especially when you consider appeals: any decision from the appeal body will have to be implemented by the first instance, so again real governance is needed to ensure that this indeed happens.
So, it is better to involve a real body rather than a virtual one.
The EUIPO is an EU organization, that is true, but it has no knowledge of patents and technical things. Would that really be a more preferable solution for handling SPCs?
The employment issues at the EPO do not prevent it from examining patent applications as usual. Also, the EPO Board of Appeal issues are irrelevant for unitary SPCs if SPC appeals are handled by the UPC rather than by the EPO Boards of Appeal,just like the UPC handled administrative unitary patent appeals.
The EPO, in the mean time, keeps pushing for the UPC, effectively lobbying for a corporate takeover of Europe over at Twitter. Battistelli is the lobbyist in chief and the UPC sets up a “webinar on the Unitary Patent”, later stating: “IPO EU trademark regulation entered into force last month. Hopefully #unitarypatent package will be next”
They are referring there to EUIPO and the picture becoming clearer. They’re putting things under a common umbrella (like a corporate takeover) and readers may already recall the relation between the EUIPO and EPO, as we covered it several times in recent weeks [1, 2, 3]. Going back to the comments we have:
I should add that there are already not enough experienced SPC examiners to go around, and so it would be a disaster if the EPO were to hire a significant number of them.
For various reasons, national SPCs will be with us for a long time yet (perhaps indefinitely). Thus, the national offices will continue to represent important venues (perhaps the most important venues) for SPC applicants. To eviscerate their examining capability would therefore be doing applicants a serious disservice.
The alternative (a virtual body) would make the best of what already exists, whilst allowing national offices to retain their skilled staff. What’s not to like about that?
Anon, you argue that “The employment issues at the EPO do not prevent it from examining patent applications as usual”. However, handing responsibility for uSPCs over to the EPO at present would be akin to rewarding a problem child for appalling behaviour.
The discussion about SPC continues here:
This virtual body looks silly. Why not a real body like the EPO, with any appeals being handled by the UPC, but just like appeals against EPO decisions in unitary patent matters.
A basis in the EPC for doing so can easily be found, see Articles 63(4), 143 and 149a(1) EPC. Note that in Article 149a(1) EPC, whatever follows “such as” is non-limiting and can be skipped.
As regards fees and costs, the EPO should get its costs reimbursed, following the principles of Art. 146 EPC. For the remainder, the fee income can be distributed by the EPO among the participating states in the same way as their share in the unitary patent income.
As regards the law to be applied, changing the present SPC regulations will just result in long delays. So, it is better to accept the preset SPC regulations, and to look for any improvements later on.
The above could easily be handled in a relative small amendment of the unitary patent regulation 1257/2012, as it is a logical consequence of the decision to allow a subgroup of EU states to cooperate in unitary patent matters. Doing so would automatically result in jurisdiction for the UPC to handle appeals under Article 32(1)(i) UPC Agreement.
Just like with unitary patents, the new SPC provisions in the unitary patent regulation would be supplemented by decisions of the Select Committee.
And below that:
As an EU organisation, the EUIPO would appear to be better suited to the task than the EPO. One wonders why they were not chosen to handle the unitary patent registration procedure.
A cynic might suggest, based on the above, that Battistelli’s goal is to demolish the EPO in favour of the UPC (in whatever form it takes), then become the UPC’s head, get close to EUIPO, and maybe form or shift name to make up an umbrella organisation that’s EU-sanctioned (unlike the EPO that dates back to the EPC). Is this vision of the UPC starting by taking boards (of appeal, not Board 28) out of their job, then automating the job of examination with algorithms that do a shoddy job at examination, as we noted earlier today? Whatever it is, this is not looking good and secrecy creates more suspicion. To quote further comments:
An alternative would be to allow an applicant to request an SPC before any patent office of an EU state with this then extending to the EU as a whole in the same way that a national court can act as an EU court in design matters.
you have clearly failed to grasp the perils of throwing the baby out with the bathwater when it comes to experience in examining SPCs. Starting at ground zero with the EPO really would be a disaster for applicants – especially given the complexity of the (case) law.
Your perspective is so pro-EPO, can you please confirm whether you are on BB’s payroll before commenting again? As you may guess, I can confirm that I am not.
Notice the corrupting impact of the EPO paying vast amounts of money to a PR firm. Many people are often presumed to be on Battistelli’s payroll.
Speaking for myself (personally), I have been rather disappointed with IP Kat‘s coverage about the EPO as of late. There’s omission of so many important stories and developments. When was the last time IP Kat and notably Merpel even touched the EPO scandals? Maybe Battistelli got his way after he threatened some bloggers. They’re silent on it all. Several months ago I confronted IP Kat over its deletion of (refusal to approve) comments about the EPO, after people had reported this to me.
There is more UPC promotion in IP Kat these days than there is a mention of Battistelli and his latest scandals. And look who’s behind all the UPC promotion. It’s usually the Bristows staff. Where does UPC promotion come from? Those who would gain from UPC. Now that the UK is under a de facto coup (from EPO management, patent lawyers, and other opportunistic profiteers) we need the voice of opposition to at least be aired somewhere and that somewhere is not IP Kat.
It has become increasingly clear over time that not only is the UPC orthogonal to the interests of European citizens but one should also regard it as an active danger to anyone including those who work for the EPO as patent examiners. As for patent lawyers, the benefits of the UPC may depend on the kind of clients they have. But whether the clients are large or small, and whether they use patents offensively or defensively, the legal fees are still unavoidable, thus for a lawyer it is important to have as much patent confrontation as possible. This, except patent applications (sought in an aggressive/defensive atmosphere), is what ‘brings home the bacon’, so to speak. If the UPC causes more legal uncertainty and makes it more affordable to go to court even on a tight budget, then it means more legal action overall, hence more business to patent lawyers. █
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Posted in Europe, Patents at 11:03 am by Dr. Roy Schestowitz
What is a patent office if not a collection of competent patent examiners? Battistelli is trying to break a mechanism that’s already working, presumably for corporate gains or increased profit/reduced salaries (the École nationale d’administration mindset)
Context: “The Luddite movement emerged during the harsh economic climate of the Napoleonic Wars”
Summary: The unscientific approach of today’s management of the EPO and the dangers of outsourcing EPO jobs to other entities or even to highly flawed algorithms
BATTISTELLI has done a fine job driving away some of the Office’s best talent and his job is not done yet, despite the ongoing brain drain [1, 2, 3, 4] which seems unstoppable. Patent examiners are the very heart of any patent office; without them it’s just a bunch of clueless bureaucrats like Battistelli and their secretaries. How could they overlook this simple fact? According to this new report from MIP, “Michael Fröhlich has joined the European Patent Office as head of the Directorate European and International Legal Affairs” (not to be confused with Herbert Fröhlich, who was actually a legendary scientist). It often seems like all the EPO strives to be right now is a bunch of people in suits with a high-budget peripheral PR agency in the US (far more people there, based on the budget, than in the in-house PR department). We had enormous respect for the EPO back in the days, but what has it become and what is it still becoming?
Based on this new comment, “EPO examiners and BoA members have no concept of what a thorough analysis is like. How could they? Unless you have experienced the rigour of a multi-million euro invalidity or infringement suit, you probably think that the EPO procedure is pretty nifty.”
That’s somewhat of an unfair comment, but then again consider limitations on time, which got a lot worse under Battistelli because of policy changes that favour large corporations. Here is the comment in full:
The EPO has a unique position in juridical terms. It is just an administrative body tasked with taking administrative decisions – but with no judicial oversight. This wouldn’t be tolerated in any other branch of public administration I can think of, and it surprises me that the member states continue to connive in maintaining the conceit of a fair and thorough patent granting system.
Because it isn’t fair, and it certainly isn’t thorough.
It’s not fair, because the process can result in applicants being denied a patent which would be upheld as valid in a court of law. There is no mechanism for detecting, let alone righting, such injustices.
And it’s certainly not thorough. Most EPO examiners and BoA members have no concept of what a thorough analysis is like. How could they? Unless you have experienced the rigour of a multi-million euro invalidity or infringement suit, you probably think that the EPO procedure is pretty nifty. It isn’t. At best, it’s a good first approximation, but not more than that.
A response from a lawyer or attorney, taking or borrowing the term “thorough analysis”, said:
Are your comments based on a thorough analysis?
My experience (and the generally taken view) is rather that on average the analysis of BoA is more accurate and consistent than what you may get from national courts.
Of course there are exceptions such as your multimillion infringement suit (I am not sure as to what you mean as multimillion invalidity).
I sincerely hope that the UPC will reach the same standards as the BoA
We previously showed how the BoA swatted a software patent. This was a job well done and it involved a thorough analysis. It’s not fair to nitpick or generalise, making the examiners or judges seem as though they should bear responsibility for failures which go all the way up to the top. Overworked examiners surely cannot function and to expect output to improve this way would be unrealistic. A long response then said:
Ah! So that’s your point, Demut. A lack of symmetry. If the Technical Board of Appeal finds your issued patent (or patent application pending at the EPO) devoid of merit, you die without recourse to a Supreme Court of a contracting EPC State. Whereas, if you don’t get wiped out by DG3, you can go on asserting your rights all the way to the Supreme Court in each of 38 EPC Member States.
Perhaps not coincidentally, we see currently a huge ruckus about whether the USPTO can revoke patents it already issued. Does that lie heavy on your mind too?
But GATT-TRIPS promises a judicial review of an administrative decision and that’s what you get at the EPO. If you don’t like it, you can shun the EPO and file your patent application country by country.
I fully understand the grief of a patent practitioner who thought that the claim he drafted was good enough for the BGH and is outraged when DG3 revokes his client’s patent and the client demands to know why he is left empty-handed and deeply out of pocket. But that’s because the BGH chooses to paddle its own canoe up a different creek from the one defined by the established case law of the Boards of Appeal, which every other Member State finds persuasive.
Or are you from England, and outraged that the EPO does obviousness differently than in England?
Childishly crying “It isn’t fair” though, that doesn’t cut the mustard, sorry.
I’m curious though, what justifies your assertion that at the EPO thoroughness is lacking. I presume you hanker after full discovery, like the USA still does but which has been done away with in patent litigation in England. Of course, adversarial English legal procedure is big on cross-examination of witness evidence. If you were to argue that fact-finding is more rigorous under English law than under the civil law procedures used everywhere in the world, I would agree with you. But please don’t write off the EPO as “not thorough” because it does fact-finding like everywhere else in the world except the English common law countries. If there is any thoroughness lacking at the EPO, it is amongst the profession of representatives, who prepare their cases as if for a home fixture, in line with their particular domestic jurisdiction, and not thoroughly enough in line with an away fixture with the Rules of the Game as practised on the turf in Munich. The judges can only play what’s put on the table for them to consider.
I am reminded of the excuse every politician offers when losing an election: A communication failure, it was. We were not quite imaginative and creative enough, to get our winning message across to the voters.
But reply, do. What do you mean by “not thorough enough”? Are those guys in DG3 just not reading your stuff thoroughly enough for your liking?
There’s a bit of a withdrawal at this stage:
I apologize, I thought that your point was about the quality of the BoA decisions.
Now that I understood you better it seems that the difference is that I consider the BoA as a court and you don´t.
If however you take my position the system is lopsided as any other national system. Also there, once you get a refusal and go through all the available court levels, the final decision can be challenged in case of a positive decision in nullity proceedings but cannot be further challenged in case of a negative decision.
Or maybe the point is that in the EPC the number of available instances is rather reduced, because the BoA are already the final one. But I am not sure whether the users would like a different situation.
The picking on DG3 and the BoA carries on, with comments such as these:
The commentator eine gewisse Demut has an axe to grind, and would do well to confer with members of national judiciaries who have served on the EPO’s Enlarged Board of Appeal. Sir Robin Jacob, for example. For him, there is no doubt that the necessary GATT-TRIPS-compliant judicial supervisory function for the administrative work of the EPO is delivered by DG3.
…on average the analysis of BoA is more accurate and consistent than what you may get from national courts
True, but this is not the point I was making. The point is that the system is lopsided. The owner of a granted patent has full access to the legal process, while the owner of a refused application has none. Nobody can tell you how big this lopsidedness is, because there is no way of measuring it. It’s just an inherent feature of the EPC.
…would do well to confer with members of national judiciaries who have served on the EPO’s Enlarged Board of Appeal. Sir Robin Jacob, for example.
The quality of DG3 decisions is again not the point. The point is that their positive decisions are regularly tested in court, whereas their negative decisions are not. Incidentally, Sir Robin Jacob has written and spoken often about the lopsidedness problem.
Finally, as one person points out:
The quality of BoA decisions is probably the best that’s possible under the circumstances.
You’re right. The number of instances is reduced by at least two in the case of a negative BoA decision.
As regular readers ought to know, Battistelli crushes them now. He’s on some kind of war against the boards of appeal, despite them being the last sort of independent resort. They did, several years back, even took on the question of software patentability.
Speaking of software, guess what the EPO under Battistelli may be planning to do. Inevitably, as the Office is run by a clueless non-technical President, there’s some delusional thinking along the lines of replacing examiners with machines! You can’t make this stuff up! the whole point of having patent examiners is to have a manual operator(s) dealing with tasks that cannot be automated, require human interaction, literature surveys, and so forth. Here is how someone put it not too long ago:
The automatic examiner
In his last conference in The Hague, Mr Battistelli explained that in the future, examiners would get more support from their computer. Could it be that the Office is in the process of automating searches? In the age of Google, it is natural that our management is asking the question of automation. Computerised searches used to be the domain of a few selected database specialists, but nowadays everyone who types a few words into a search engine expects to find the relevant documents. It would thus appear that typing a few keywords into an artificial intelligence system should be sufficient to find all the “X” documents in a patent search. Or, even better, if one would directly feed the application in that system, it would extract the keywords, classify the application and spit out the “X” documents. Is that likely to work? Unfortunately, the answer is probably “no”. First, this is not at all what Google does. Google appears to use keywords but is a very different system internally: Google actually indexes the relationships between documents. To speak in examiners’s jargon, Google is more similar to ..combi than to ..xfull. The reason is simple: the creators of Google quickly realised that a pure keyword search does not work very well. Could we then imitate Google and use an automatic system that is similar? Unfortunately, again the answer is probably “no”. We already have automatic tools (like ..combi) using links between documents, but part of the problem is that new documents do not have links. Google has the same problem with new pages, which are very slow to enter their system. It is not clear how a patent office – that primarily deals with new documents – could overcome this problem.
Patent offices have a further specific problem: our users are not necessarily honest – if they all were, we would not need an examination system. In fact, Google and patent offices have exactly opposite problems: whereas Google advertisers want their pages to be found, some patent applicants may want to hide their application from their competitors. The “page rank” of Google is a valuable commodity. Top pages will be clicked more often than the bottom ones and clicks directly translate to sales. This is a real problem for Google, as some users try to play the system e.g. with “link farms”: collections of senseless pages designed to generate more links. Patent applicants (at least some of them) may not want their applications to be found. They also may not want us to find relevant documents. Some applicants try to obfuscate their application by avoiding keywords customary in the field. In such a situation the computer will fail to find relevant keywords and hence fail to find the relevant prior art. And this is presuming that the invention can be described in keywords, which is not necessarily the case either. Often the relevant information is in the drawings or in the arrangement of the features. For a human examiner all this is not a major problem. From an obfuscated application, he (or she) can still extract the information and knows how to rewrite the content in common keywords. A skilled examiner can extract the relevant information from drawings, tables, lists etc. He knows what is custom practice in his field, at what time in history and how various technologies developed. And he knows what documents he can find at which place in the classification.
Google is a commercial giant. It puts in a lot of effort in its search engines. For this it employs the world’s best IT experts. The effort comes at considerable cost. Unless the EPO thinks it can do better than Google, it may be wiser to rely on human examiners to design its patent searches rather than on IT experts.
Battistelli’s love for commercial giants has turned into an abhorrent, corrupt mess. Not only does he treat them favourably as applicants (UPC in its own right is beneficial to them) but he also gives them massive contracts without any transparency or as much as a public tender. Patent examiners aren’t Luddites and boards or appeal aren’t replaceable by some ludicrous, impractical system like that envisioned by UPC proponents.
If Battistelli stays in power for another year or two, nothing of value will be left at the EPO. He and his management team (many of whom are under-qualified buddies of his) ruin the Office and the misguided policies permeate and spread everywhere, even spilling to the outside (e.g. the boards). █
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Posted in IBM, Microsoft, Patents at 8:11 am by Dr. Roy Schestowitz
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us
Summary: Software patents are not as scary as they used to be (because many are effectively found to be of no value, or ruled invalid by US courts), but patent aggressors including IBM and Microsoft work towards a software patents comeback, aided by well-connected officials such as David Kappos (above)
THE reality behind software patents in the United States (or patent policy in general) isn’t just shaped by the USPTO, which grants patents too sparingly, but also by the courts, which increasingly demonstrate that the USPTO isn't doing its job (which should be examination and thus elimination of weak applications).
“Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all).”According to this new examination of upcoming SCOTUS cases, there is no imminent challenge to Alice. Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all). “Following its April 15 Conference,” wrote Patently-O, “the Supreme Court denied certiorari in a set of cases, including Vermont v. MPHJ; Limelight v. Akamai; Hemopet v. Hill’s Pet Nutrition; and Tas v. Beachy. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2).”
It seems like very good news, unless you’re some patent lawyer or patent aggressor such IBM or Microsoft (they both pay the former Director of the USPTO to discredit SCOTUS rulings and restore the fangs of software patents by altering § 101). Over in Texas (capital of patent trolls, see yesterday's article to that effect) the press now bemoans Alice, i.e. the death of many software patents in the United States. The article was composed by patent lawyers (surprise surprise!) and it says:
Yes, we’re being a bit dramatic here but Alice has been killing patents, and especially software patents, at an impressive clip. In this case, Alice refers to the 2014 U.S. Supreme Court opinion Alice Corp. v. CLS Bank. In that opinion, the Court announced a new two-step process to determine whether an idea is patentable and, ever since, this two-step process has been applied by courts and the Patent Office to disallow patents at an unprecedented rate. Law360 calculated that courts are granting around 70 percent of Alice motions. In raw numbers, there were more patents killed in the 14 months after Alice than in the five years before it.
It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas. Decline in proactive activity which invalidates software patents in the US has just been reported by MIP. To quote: “A total of 118 petitions were filed at the Patent Trial and Appeal Board (PTAB) in March, down from 150 in February but up on the 99 in January. In contrast, 145 petitions were filed in March 2015.”
“It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas.”Perhaps — and we are only guessing here — after Alice-led challenges (which ultimately killed patents at the knock of a gavel) more companies realise that software patents would not survive the courts anyway. It means that there’s less incentive to sue at all. Suing can lead to loss of patents. As MIP put it in another article, “Patent Trial and Appeal Board (PTAB) petition filing in the first three months of 2016 fell to its lowest quarterly figure for two years.”
What matters, however, is rate/ratio of invalidation.
So less than two years after PTAB’s formation it seems to have become less necessary because the core issue, which is patent scope (or quality), is being addressed/tackled by Alice.
FOSS Force, a site which deals with Free/Open Source software (FOSS) matters, has just run a poll about software patents and here is what it came up with (see charts in page). To quote the author: “In recent years software patents haven’t been nearly as much in the news as they once were. This is partly due to the Supreme Court’s ruling in Alice Corp. vs. CLS Bank which took a slew of patents off the table. Also, thanks to the efforts of companies such as Newegg to duke it out in court instead of rolling over and settling, many patents that had been successfully leveraged by the trolls for years have been invalidated.”
“Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.”It sure seems like things are improving in the US, but don’t take that for granted. Companies like IBM and Microsoft (or more recently Apple) hire lobbyists in an effort to restore the old state of affairs, enabling more patent extortion against small companies. Recall what Microsoft is still doing against FOSS distributors (using patents on software for coercion and taxation) and then consider IBM's controversial joining. Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.
As we noted here some days ago, having maliciously destroyed Yahoo, Microsoft might now go after Yahoo’s patents, which MIP says aren’t that expensive anyway. To quote: “It identified 2,000 US patents currently assigned to Yahoo that are active and in-force. Yahoo’s 2015 10-K reveals the company reported almost $300 million in gains related to patent sales between 2013 and 2015.”
As for IBM, there’s some new patent propaganda (just published for IBM marketing), femmewashing its patents and wrongly equating them with “invention”.█
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