06.20.16

Under Battistelli’s Regime the EPO is a Lawless, Dark Place

Posted in Europe, Patents at 4:50 am by Dr. Roy Schestowitz

Reign of terror by Team Battistelli

Summary: How the EPO’s Investigative Unit (IU) and Control Risks Group (CRG), which is connected to the Stasi through Desa, made the EPO virtually indistinguishable from East Germany (coat of arms/emblem above)

THE EPO‘s top management continues to rule by fear and the more afraid people are — or the more irrational and dangerous the management seems — the less likely people are to dissent, unless anonymously. We should note that some blogs from EPO workers vanished over the past two years (some did exist) and not much has remained for the expression of dissenting views, such as the view that patent quality significantly fell under Battistelli's watch. Moreover, if not more so, staff representatives are afraid. They are rightly afraid given the extreme sanctions against existing staff representatives in Munich and The Hague (using exaggerated and/or made-up allegations).

As one person put it: “Dialog… really?”

“It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue.”There is hardly even an illusion of social dialogue anymore. Battistelli does almost whatever he wishes. He does not even listen to the Administrative Council. He lives in his own fantasy world, where everything he pleases he believes will happen with or without backlash (he hardly worries about backlash as he insists he’s above the rules and repeatedly demonstrates that). Who takes the toll? The EPO’s reputation. Does Battistelli care? He doesn’t seem to mind, he’s already at retirement level/age.

“Simultaneously to the demonstration,” one person recently wrote, “the General Consultative Committee, GCC, took place in the ISAR building in presence of the top management.”

Was there any real dialogue there? Not really, “[h]aving learnt from a painful experience made by a former member of the IAC [Internal Appeals Committee], Aurélien Pétlaud, who was downgraded in 2015 in exactly this situation, the elected Staff representatives which had the obligation to participate.”

“Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent.”It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue. One begins to legitimately wonder if he’s actually interested in such a dialogue or only wants to tell the media about such fiction.

“On the Agenda [there were] precisely two reform proposals on Investigation procedures and Disciplinary Procedures,” we learned about aforementioned proposals, “giving even broader powers to the investigation unit and the president: knowing that these are already on the agenda of the coming AC (Disciplinary: CA/53/16 & CA/53/16 add1 – Investigations… sorry the official term is “fact finding”: CA/52/16 and add2), the debate was nothing more than the usual rhetorical exercise, that some may qualify a yet another of these sad “Battistelli-movies”.”

“Is this the future of Eponia? Another East Germany?”So even when there’s an attempt at dialogue it seems to involve yet more escalations in the attacks on staff, including staff representatives. This has got to be some kind of a farcical exercise. That’s like sitting down with one’s enemy for “peace talks” while deciding which targets are “ideal” for “mutual” nuclear strike/impact (as in power plants, water supply and so on).

From the same text: “It was [supposedly] the opportunity for the Staff representatives to state their utter disappointment with the last president disciplinary decisions (see as an illustration one intervention made in the GCC by an elected CSC representative) and Staff broad disagreement with the present management policy.”

This text, which reached us not by intention, serves to demonstrate which kind of atmosphere prevails not only at the appeal boards but also in panels or discussions pertaining to staff rights. It’s ludicrous and moreover it serves to show that Battistelli’s mask may not have fallen off yet. He wishes to get even nastier and he wishes to authorise even more authoritarian powers (maybe some of which were exercised beforehand, even before these were ‘legalised’ to retroactively justify/excuse them).

“Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so.”Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent. When BlueCoat and the IU (or CRG) can’t identify disgruntled EPO workers one should wonder if they also reach out to their friends in spy agencies (CRG is connected to Desa, i.e. former Stasi staff, and maybe GCHQ also, as we noted last year). Is this the future of Eponia? Another East Germany?

As one insider recently told us about Battistelli, “do you think he’s not universally despised here? Even directors despair at the methods… [but Battistelli] has the money to spread around [...] so many people eating from his palm [...] there’s a good article in the Sueddeutsche about the slide downwards [...] that people lose job security and more and more jobs are precarious, on the border to the survival level [...] it’s also what´s being promoted at the EPO, with the limited time contracts” (which pressures to grant more patents rather than do one’s job and also reject applications).

Regarding Team Battistelli we got told that “Topic depends on Battistelli so he’ll do whatever Battistelli asks of him [...] hopefully he will get sentenced in Croatia, then things would become clearer, but justice in Croatia doesn’t move that fast [...] best hope is Battistelli himself who will certainly provide some more ammunition [...] he has no idea what a manager should be like (never heard words like “inspirational”, “motivating”, etc.) [...] he has no shame (who else would’ve brought nine French friends and distributed them in high positions?)”

“It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years).”Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so. The notion of justice, in a system which is intended to provide justice (on patents), is totally absurd. “Institutionalised injustice,” as anonymous writers recently referred to it, is now the norm under Battistelli and here are some figures to support that: “CA/20/16 shows that things have since gotten worse. The documents show that the success rate of the “requests for review” has further gone down from about 5% in 2014 to about 4% in 2015, in terms of number of cases (page 55/116; table under point 285). The success rate in the Internal Appeals Committee (IAC) was about 9% in 2014. This was already a very bad year. Previously the success rate was between 25 and 35%. In 2014 the IAC did not meet after summer, until the members appointed by the Staff Committee resigned in October 2014. At the end of the year the IAC then whipped out a large number of opinions in 3-member composition, without staff representatives. From the overall success rate for the year it seems that the vast majority, if not all, of these opinions were negative for staff. As a next step the nominees appointed by the Staff Committee were replaced by “volunteers” recruited by Mr. Battistelli. Subsequently the success rate in the IAC went down to 4%, again in terms on the number of cases (page 56/116; first table under point 287). In terms of number of appellants, the figures are much worse still. According to the next table under point 287, of the final decisions after the IAC taken in 2014 still about 15% were positive for the appellant. The higher success rate compared to the IAC recommendations of the same year presumably comes from IAC recommendations issued by the IAC in 2013, many more of which were positive. In 2015 the success rate final decisions after IAC also dropped dramatically. Of the 243 cases (from a total of 2.420 appellants), Mr. Battistelli only allowed two, one of which only in part, giving an overall success rate of 0.8%. These data show that the current administration tries to win conflicts with its employees rather than to try and solve them. Under the circumstances it should not come as a surprise that the Board “observes” a growing number of ILOAT files (page 59/16). But for the Auditors all of this seems to be no reason for concern. The Board simply mentions the figures, without much comment and without giving any recommendations for improvement.”

Put succinctly and in very simple terms, there seems to be no point appealing anything inside the EPO, and outside of it, notably at ILO, justice is far too slow and even then it’s somewhat dubious (based on statistics on cases). This means that Battistelli can do to staff pretty much anything he pleases and there’s no veto power, no ‘safety net’ of appeals. So much for ‘job security’ at the EPO. It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years). Talk about reign by terror…

“The future shape of IP in Europe,” one person said, or “the balance between legal security and the need for costly litigation, is being determined by one thing only- the greed of the AC and the national patent offices.”

Another person wrote the other day, vaguely alluding perhaps to the Enlarged Board of Appeal:

A truly historic moment for the EPO.

At last somebody within the organisation* has stood up for the rule of law and takes a principled stand against the abuses of the EPO management.
(* And I am not referring here to the Administrative Council!)

Many people have been waiting such a long time for a hopeful signal like this and are truly grateful that it has finally come.

Sad to think that such hideous abuses of power are tolerated for so long at the highest political levels throughout Europe. But those responsible will wash their hands and pretend that “we were never informed”, “we didn’t know” etc. while they dance on merrily to the tune of “Put another nickel in the nickelodeon”.
Shame on them.

The “idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous,” one person wrote. Here is the comment in full:

It would be unfortunate if that turns out to be the reasoning of the EBA. It would convince only those who need no convincing, which is just useless.

A mere “unlawful” by the president who does not get to decide anyway (Art. 23(3)) should have been easy to dismiss.

The threat had better be real and serious. Probably it was, but at the moment it is impossible to tell. The idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous to take serious unless the letter actually makes such threat.

“Who would really be surprised if one or more members of the EBoA would be marched out of the EPO,” one person said regarding Battistelli’s EPO. It would not be surprising at all, hence the insistence that the suspended (on ‘house ban’) judge gets a fair assessment, not politically-charged accusations and dismissal:

the two of recent of our feline friend concerning EPONIA, start on the sidebar with

“Extraordinary news has just reached Merpel.”
(this concerns the EBoA OP that was torpedoed )

the other reads “Merpel thought that nothing at the European Patent Office could surprise her any more. How wrong she was. ” (post employmen restrictions)

Who would really be suprised if one or more members of the EBoA would be marched out of the EPO because somebody ruled that a house ban was the right thing for these Judges , who are not really Judges ?

Sir Robin Jacob is then recalled, for his epic intervention on this matter:

Actually, a lot of people at the time were surprised.

Remember Sir Robin Jacob’s Letter?

And the one of the Six National Judges?

And the one from Dr Tilman Müller-Stoy? – with the caption from Merpel: “who’s asking the DE delegation to the AC to set the EPO management straight” (sorry, Dr. Müller-Stoy: it really did not work …).

After Battistelli informed the AC – and the public – that the suspended member of the BoA was (allegedly) an armed nazi, I can understand their reluctance to continue to defend him … but now? After the AC failed for 3 TIMES to have him dismissed, would it not be the time to SAY SOMETHING?

Actually, the silence of the IP world is defeaning.

Only Merpel is brave enough to continue to cover, comment on and criticize what is going on at the EPO.

Where are you Sir Robin?

In response to the above:

I would not expect too much from Sir Robin and his friends.
They may be in a quandry.

Rumour around the EPO has it that a retired British judge chaired a disciplinary body appointed by the Admin Council which rubber-stamped the work of the IU.
Seems like he never heard of Article 23 EPC.
A bit embarrassing for all concerned.
It cannot be pleasant to wake up and realise that you have been a Presidential patsy.
Might help to explain the current silence.

The following person believes that the EPO is like “East Germany” now:

When people who dare criticize and resist a dictatorship are caught, they are never good family’s fathers.

To avoid that normal people could identify themselfes with the person expressing a legitimate critic or an act of resistance, they are publicly presented as monsters, perverts, with the convenient discovery in their offices of incriminating material.

Defending someone like this becomes embarassing – Sir Robin is not heard anymore.

But the person has not acted alone! – we are told. Further conspirators are discovered, guilty by association – first the Judge, then the Union Leaders.

Thus, one by one, the pillars of a civil society are silenced – in secret trials in which the State’ s security may be conveniently invoked to avoid embarassing witnesses to appear, or with reformes to enhance the “perception” of independence, presented with grand fanfare.

And all this is appening – of all places – in Germany, the representative of which in the Administrative Council belongs to the Minister of – wait for it – “Justice”.

I’m surprised that nobody noticed this – but then, not everybody lived in the former East Germany.

“With the EPO,” one person says, “Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.” Here is the full comment:

Justice minister Heiko Maas (SPD) ain’t really the sharpest knife in the drawer. Look at his performance in the NSA and Netzpolitik scandals…

With the EPO, Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.

But it could still be worse… A lot worse… Three words: Thomas. de. Maizière.

Also, “forbidding the three members of the Investigation Unit to appear,” one person said, “is the real scandal here!” Battistelli is probably just trying to cover his own behind, having (quite likely) broken his own rules again:

Everybody here is focusing on a real or perceived threat in the letter of the President – the details of which we will probably never know.

In my opinion, forbidding the three members of the Investigation Unit to appear at the hearings, as requested by the EBoA, is the real scandal here!

The following comment explains that “Battistelli obstructs justice.”

So what happens next?

Whether it was by failure of allowing witnesses to be heard or by a threat letter to the enlarged board, one thing is clear: Battistelli obstructs justice.

Another thing is clear: in their last meeting, the administrative council gave clear instructions that “justice must be seen to be done”. In addition to “restore social peace”, “start talks with the unions”, etc…

Normally, in cases as clear and detrimental to the function of the EPO as this one, the expected answer would be: lift Battistelli immunity and find another President at interim to sort out the mess.

So I am asking the question again: what happens next?

Perhaps the best comment so far points out that “the Investigation Unit might have violated the private e-mail accounts of the accused member” (probably a lot more than once). As we noted here before, the EPO’s Investigative Unit claims to have read private E-mails of bloggers like Florian Müller (one might nonchalantly wonder if Google had something to do with it because Gmail was used). When HP got caught doing such things the ramifications were enormous, but in Eponia? No justice. Here is the comment in full:

Quite amazingly, the President himself has given an indication of why the procedure against the accused member of the boards might have had to be stopped at all costs.

In his final decision against Elizabeth Hardon, the recently fired chairwoman of SUEPO, as published here: http://techrights.org/2016/01/16/battistelli-has-isssues-with-hardon/ the President wrote:
“As regards the defendant’s request concerning the DPO authorisation, the Office’s explained both the technical and the legal aspects. It has explained the exact circumstances under which the investigation took place. For the avoidance of any doubt, the Office did not intercept your correspondence to Mr XX, nor access your private email account. Rather, it collected evidence in the context of an investigation against unknown persons within the premises of the Office and more specifically at one of the Office’s public PC kiosks. Screen shots of email correspondence and activities of Mr XX were obtained in that context. These included screen shots of two-way correspondence between Mr XX and you. It was in that way that your involvement came to light. It was demonstrated to the Committee that the Office had not relied upon intercepting your private email at all, and you were mistaken to think so. These reasons and details were considered carefully by the Disciplinary Committee who fully understood and accepted them. They do not require further elaboration“ see § II (iv) of the President´s final decision.

The President´s final decision thus evokes a suspicion that the Investigation Unit
might have violated the private e-mail accounts of the accused member of the boards and of his alleged accomplice, Elizabeth Hardon. The Disciplinary Committee in Hardon’s case, chaired by the very Mr. McGinley, see § II (i) of the decision, who a few days ago unexpectedly announced his early resignation http://techrights.org/2016/06/15/ciaran-mcginley-is-leaving-epo/ was apparently satisfied by the explanations of the Investigation Unit that they did not gain access to any private e-mail accounts.

It cannot be excluded that a public hearing by the EBA of several members of the Investigation Unit in the present case, which obviously relies upon the same investigations, could on the contrary have revealed that the Office in addition to its admitted spying on publicly available computers also hacked the private e-mail accounts of its staff, with disastrous consequences.

One might begin to wonder if last Tuesday’s hearing helped motivate Ciaran McGinley to take early 'retirement'. If he was ever implicated in obstruction of justice or the aforementioned illegal spying, what would be the impact? █

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New Paper Demonstrates That Unitary Patent (UPC) is Little More Than a Conspiracy of Patent ‘Professionals’ and Their Self Interest

Posted in Europe, Patents at 3:47 am by Dr. Roy Schestowitz

“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

–Dr. Glyn Moody

Summary: Dr. Ingve Björn Stjerna’s latest paper explains that the UPC “expert teams” are in fact not experts but people who are using the UPC as a Trojan horse by which to promote their business interests and corporate objectives

THE UPC is not “unitary”, it is not “EU”, and it is not “Community” (as it used to be labeled). It is a patent lawyers’ wishlist and they are getting close to making this wishlist European law and practice. This is extremely dangerous and it’s rather clear who this is going to serve. Battistelli’s EPO, which is in the pockets of large corporations, obviously supports the UPC. Battistelli himself has supported the UPC (in previous incarnations thereof) for well over half a decade. He travels to the UK amid referendum to promote his agenda. This ENA graduate knows the drill and it’s certainly not serving the public (as those sufficiently familiar with ENA politicians probably know all too well by now).

“Battistelli himself has supported the UPC (in previous incarnations thereof) for well over half a decade.”Here in the UK we have what can be viewed somewhat like “moles”, or people whose role in the British economy is rather parasitic. They want more for themselves at the expense of those who produce things, such as software. They want software patents and they want the UPC. As we noted here before, Bristows are some of the biggest UPC propagandists out there (also for software patents) and Brian Cordery who is affiliated with Bristows now says that the “reshaping of UK patent litigation by the Judges coincided with the decision by many multinational companies in all sectors to coordinate their European patent litigation more and more – to devise, stress-test and implement strategies in key cases. Many UK law firms were chosen to assist their clients in this process which enabled these firms to gain a wider perspective and provide more joined-up advice to their clients.”

How revealing. He then admits that there is a “microcosm of patent litigation” in the mix. To quote: “It seems to the author that in the microcosm of patent litigation, sharing views and learning from each other has led to improved practices across the continent. Now we are of course on the brink of the most exciting development in European patent litigation for nearly half a century. The Unified Patent Court represents an enormous challenge – and an enormous opportunity – to all UK patent litigators. If the UK votes to leave the EU next week, the future of the UPC is uncertain although the future of the UK’s part in the UPC will be clear enough. What would this mean for UK patent litigation? Maybe not so much in the short to medium term – it is not unreasonable to suppose that the English Patents Court might become akin to its counterparts in Canada or Australia – still a venue for patent cases of high value and/or strategic importance. But how much more exciting would it be to shape the UPC which surely has the potential to become the world’s most attractive forum for patent litigation by the end of the next decade?”

“The problem is, the people who engineered the UPC, as the above admits, are people who stand to profit from it.”So UPC “has the potential to become the world’s most attractive forum for patent litigation,” right? Don’t we all love litigation as much as patent lawyers do?

The problem is, the people who engineered the UPC, as the above admits, are people who stand to profit from it. Members of the general public were excluded, as noted here many times before, and Dr. Ingve Björn Stjerna, a longtime opponent of the UPC and its predecessors, has a new paper about it, having just published a whole book on the subject. We have already written a great deal about the UPC being all about rigged panels (excluding particular points of view), which effectively makes it a coup in broad daylight. In the words of Ingve Björn Stjerna: “There have probably rarely been legislative proceedings of such technocratic nature as those on the European “patent package”. Patent practitioners, especially judges and members of the legal profession, have been involved extensively in order to use their experience for the new system. An important role in this is played by the Preparatory Committee of the Unified Patent Court which is entitled to appoint so-called “expert teams” for its support and advice. Conflicts of interest do not seem to play a role when it comes to filling the positions of these teams. Appointments from the legal profession, the members of which often have significant financial interests in the realisation of the “patent package”, have repeatedly been made in favor of the same individuals from only a few law firms. Some of these persons use their membership for promoting the advocacy services of their law firms. These “expert teams” and their composition will afterwards be given a closer look.”

Here is the direct link to the PDF in English (there is also one in German). “The “expert teams” of the Preparatory Committee,” he explains, is an “[a]rticle on the composition of the “expert teams” of the Preparatory Committee for the Unified Patent Court and on the participation of members from the legal profession “in their personal capacity” (16/06/2016)”

“Perhaps it’s time to start a broad, Europe-wide information campaign about the UPC.”Well, it sure looks like the UPC might never become a reality at all. Even the EPO quit pretending that this is inevitable. Are politicians even aware of what it is they are ratifying and where it came from? Do they care? Perhaps it’s time to start a broad, Europe-wide information campaign about the UPC. We recently heard that FFII might be interested in pursuing this. █

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Money Flying to Private Companies Without Tenders at Battistelli’s EPO (by the Tens of Millions!)

Posted in Europe, Patents at 3:09 am by Dr. Roy Schestowitz

Another fine example of why we sometimes call it the European Private Office [1, 2]

Summary: Extravagant and cushy contracts to the tune of tens of millions of Euros are being issued without public scrutiny and without opportunities to competition (few corporations easily score cushy EPO contracts while illusion of tendering persists — for small jobs only)

THE European Patent Office ought to be widely viewed as Europe’s most scandalous ‘public’ (corporate) institution. As we noted here before, the EPO‘s French CIO from “Informatique CDC” was wasting heaps of money on “IT” (not far from a hundred million Euros). Combine this kind of budget with lack of oversight and you might expect something like the Bygmalion affair, with massive contracts given to French companies (adjacent to the CIO’s previous employer) such as Infotel. Alarms were already raised about this, judging by the following explanation based on which we produced the chart above:

One thing that is noteworthy is that there are more direct placements (79 in total) than there are awards after competitive bids (42 in total) and that the average value of the direct placements are higher than those of the competitive bids. The big winners are IT consultants, among which InfotelConseil S.A. (Neuilly, near Paris), SaM Holding GmbH (Gilching, near Starnberg) and Everis Spain S.L. (in Brussels). For Infotel the total value of the listed contracts is slightly over 14 million Euro. The total value of the 5 awards after competitive bids is about 1.8 million, i.e. almost 340 thousand Euro per contract. The total value of the 11 (!) direct placements is almost 12.5 million, with an average value of about 1.1 million per contract. We see a similar pattern with Everis Spain, with a total value of the listed contracts of over 15 million Euro. The 8 contracts after competitive bids have an average value of 574 thousand Euros. The 14 (!) direct placements are worth almost 11 million Euros, i.e. 770 million Euro / contract. SaM Holding won 2 competitive bids leading to contracts with a value of 1.7 million, i.e. 850 thousand per contract. Its 9 direct placements (among which 3 of over 2 million) amounted to 13.4 million Euro, i.e. an average of almost 1.5 million Euro per contract.

Direct placements by the EPO are highly problematic because of their lack of transparency and because these contracts are not open to any effective form of control or challenge. Already, potential competitors cannot challenge such placement for the simple reason that they are not informed of their existence. They also do not know the rules that apply. The only possible controls are from within the Organisation, i.e. by the Board of Auditors or by the staff representation. The EPO’s Board of Auditors, appointed by the EPO’s Administrative Council, is notoriously inefficient in finding irregularities. In the rare cases where it does find something wrong, the Office mostly ignores their comments. Given the lack of alternative controls, the staff committee challenged a direct placement (later also flagged as irregular by the Auditors! See page 159 of CA/20/09) at ILOAT. In its Judgment 3343 the Tribunal held the complaint irreceivable because the alleged violation of the rules did not have “a direct and immediate bearing on the employment status or rights of employees.” This leaves the EPO’s about multi-million Euros procurement budget essentially without any control.

Secret contracts to FTI Consulting — contracts which were recently expanded — ought to be investigated alongside Battistelli’s expensive information war [1, 2, 3, 4] (more contracts, even for surveillance and censorship). There’s also an urgent need to look into Battistelli's buying of the media. With so much to hide inside Europe’s second-largest public institution, a lot of ‘military-grade’ propaganda may be needed, not just managers with military background (there are quite a few of them now). EPO management is ‘managing’ its budget pretty much like the Pentagon allocates money. █

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06.19.16

Patent Examiners and Insiders Acknowledge Profound Demise in Patent Quality Under Battistelli

Posted in Deception, Europe, Patents at 11:27 am by Dr. Roy Schestowitz

Rushing examiners, but at what cost? Lots for Battistelli to cherry-pick from…

Reference: Quality (business)

Summary: By lowering the quality of patents granted by the European Patent Office Battistelli hopes to create an illusion of success, where success is not measured properly and is assessed by biased firms which he finances

TECHRIGHTS has expressed deep and genuine concerns about the quality of EPO patents for quite some time (about half a decade, not just in relation to software patents). The growing threat is an irreversible decline in quality that would superficially elevate the number of granted patents (devaluing/diluting their value, especially older ones) just like at the USPTO (which many would agree is in a chaotic state when it comes to patent quality). More is not always merrier, especially when it comes to patent monopoly/protection. It’s not beneficial to innovation (over-patenting) and it often brings with it many false positives, i.e. patents erroneously granted, which leads to spurious demands, court cases, disputes, etc.

The following is a very sad story (also a rather long one) from an EPO patent examiner. This examiner openly (but anonymously, for his/her protection) admits quality has been ruined under Battistelli. Here is the comment in full:

Just to complete the picture since it appears everyone is shocked of how things are run when they become a bit public. My unfortunate reality is these reports do not deviate from the daily life in-house. I am an examiner. Or more accurately, I was an experienced examiner, I am now on the payroll. I was once proud of doing my job diligently. Maybe it is linked to the technical field, I used to examine diligently with a low rate of grants, even when compared to my close colleagues. Most files I examined were withdrawn when explained why they would not satisfy the technical and legal requirements. I refused the large part of the other applications and, amongst the refusals challenged all but one stood before the BoAs.

Following the procedure towards a sound refusal requires serious work and takes time. I was never processing high numbers of applications, average compared to colleagues, had no rapid career but was proud of my work. Sure cutting many corners would have provided me immediate financial advantages in terms of promotions but would have been at the expense of the public, the competitors and my pride. I don’t know which one mattered most. I never gave in anyway.

Things have changed over the last three years. Production targets were raised, colleagues were put in direct competition for steps and promotions. The collaborative work we used to do mostly vanished. I have tried to stay focused on my work and its quality. I was soon put under pressure of my direct boss for having a low “productivity” (some kind of bizarre calculation dividing a weighted sum of the times you pressed a button claiming a search report is out and of the times that an application is granted, refused, withdrawn or that the applicant stopped paying the renewal fees by the available working time. Unrelated to the amount of actual work done but use to promote and punish). Not that my “productivity” had changed but the ones of my colleagues went up dramatically (rat race for grabbing big bonuses) and I am now in the target line. My manager explained me that I needed to do 40% more productivity to stay out of trouble. I told him that it was totally unreasonable and the work could not be done this way. He assured me he knew that but had no margin and had to follow the orders.

I then reflected on the actions of my own government represented in the Administrative Council. They obviously do not care. Neither do most other countries. The very same goes for the public at large and applicants.

I decided to preserve my health, my family and stopped doing my job. This year I will deliver more patents than I have done over the last 10 years at least. I am going back home earlier, have longer coffee breaks and do not elaborate relevant technical and legal arguments anymore. I avoid citing pieces of prior art that are too relevant; citing an approximate document is enough to write a formal objection, wait for the answer and submit it to the colleagues. I do not believe they read anymore what they sign and everyone is happy. Not my pride. But the price is paid. Had I known I would have end up in such a situation, I could have acted this way much earlier to get promoted. It is hardly a secret that most of today’s managers reached their positions either by having extraordinary “productivities” or by escaping towards functions not having any “productivity” calculations. Ask examiners about ridiculous examples of patents granted by their managers!

I am now making most people happy: my manager, Mr. Battistelli, the Member States, the Administrative Council, the applicants, their representatives, my family. I can only be sorry for my lost pride, my lack of courage, the public at large for restricting freedoms, the competitors for the unfair competition, the taxpayers for the extra expenses of the judiciary, the consumers for the extra licensing costs and the reader because I am too verbose. Telling makes my sense of guilt more bearable.

This comment isn’t from some ‘rotten apple’ or an outlier. Judging by reactions to it (thus far), many people at the EPO feel the same way. “The recent slide in examination quality has been very clear to those of us who study cases carefully,” one person wrote. Here is the comment in full:

Thank you for your heartfelt confessional. You are not alone. The recent slide in examination quality has been very clear to those of us who study cases carefully. But not only in the sense of granting applications too easily. We are also seeing negative communications issued with virtually no serious analysis. Cite a few documents, cut and paste the standard paragraph about being routine for the skilled person – job done! The application will be shelved for the next two or three years, while the EPO continues to collect those juicy renewal fees.

Responding to the part which said “This year I will deliver more patents than I have done over the last 10 years at least,” one person writes: “It seems that the effects are starting to see.”

We have been warning about this for a very long time and the cited blog post we already mentioned here the other day. Here is an observation from another thread:

Some further thoughts.

A big jump in grants will lead to a big jump in oppositions, even without any change in “quality” of decisions to grant.

Oppositions, I understand, are priority 1, even more so after the proposed changes to procedure.

And yet I am seeing an increasing number of zombie applications [more than 10 years old] being brought into examination, sometimes with an examiner amendment on a Rule 71(3) notice. How are you finding time to deal with the long tail of old applications?

The response to it uses internal terminology, which suggests these are indeed EPO insiders who speak on the subject:

I too have seen an increase in re-surfacing zombies, generally where there has been an exam report many years ago. Often the exam report just required a response to a PCT Written Opinion, in the days before the present Rule 161.

As I understand it, such zombies would be priority 2 under ECfS, above starting new examinations. Presumably this is why Examiners are able to allocate time to them.

“Indeed,” notes a response to it. “Those examination dossiers where the applicant would not get a refund due to a first communication already having been sent are priority 2. The first action blocking a refund is, IMHO, a trigger for a higher priority I can stand behind. Finish startes [sic] files instead of having as many started as possible, which seemed to be the priority for some of my colleagues. If you ask for accelerated, or when the next comm. can be expected, the file is lifted up to priority 1.”

Meanwhile, in relation to the US system (where patent quality is rather appalling for reasons we have mentioned for a decade), Professor Dennis Crouch now shows that despite the number of patents almost doubling, “Certificates of Correction” remain at a similar number and are seemingly peaking this year. In Crouch’s words: “A substantial percentage of patents continue to pass through the post-issuance correction process that leads to a Certificate of Correction.”

He also wrote: “The number of corrections has remained relatively steady over the past 15 years. Since the number of issued patents issued has risen so dramatically during that time, this steady-state of correction filings means that the average number of corrections per recently issued patent has continued dropped steadily for the past decade with the odd exception of patents issued in 2009. About 14% of patents issued 1990 to 2005 went through the correction process. That percentage is now down under 10%.”

This is one indication of decline of quality control. Now, compare that to the number of appeals at the EPO (a subject previously explored here) and imagine what’s to come with increased appeal fees (reportedly to skyrocket), especially if Battistelli gets his way and altogether eliminates the appeal boards.

Responding to the original rant (from “1984″) about patent quality, one person wrote:

I totally agree with you, 1984 – and also share the same, big regret: I should have started earlier to send out…

Another person wrote:

Thank you, 1984, for expressing so accurately my own feelings! Both so funny and sad to think you may just be in another country or just next door. We will never talk about it, we will never know. If the word were to be spread on the identity of anyone talking, our families would be screwed. Not worth the risk of the institutional retaliation.

Then came a humorous response from “The Investigative Unit” [1, 2] and one person seemed befuddled by IAM (the EPO is still leaning on its IAM propagandists to pretend patent quality and service are fine). To quote:

What I find rather impressive is that the Epo keeps winning each and every patent quality survey. Not only are we the best of the world but in 2015 our quality greatly improved over 2014…

That’s nonsense. It’s IAM nonsense, i.e. the usual.

Here is one response to that:

Do you remember the fate of the Survey organized by the Office about the reform of the BoA?

The results were completely misrepresented by Battistelli to support his agenda – as a post by Merpel detailed.

Do you really expect El Presidentitssimo to report any negative results that do not fit his agenda?

Good luck with that.

“The results were completely misrepresented by Battistelli to support his agenda,” the above says, “as a post by Merpel detailed.” This is what we have come to expect from just about any ‘survey’ by and about the EPO. Follow the money, follow the invoices. We have. Battistelli’s expensive information war [1, 2, 3, 4] is hoping to distract from and discourage (e.g. by spying) messages like that from “1984″. Truth/objectivity is not allowed at today’s EPO and Battistelli runs his Ministry of Truth, just like in the book “1984“. █

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Jericho Systems Threatens Alice, Court of Appeals for the Federal Circuit Threatens the Patent Trial and Appeal (PTAB)

Posted in America, Patents at 10:48 am by Dr. Roy Schestowitz

Two new threats to the status of software patents in the United States (a rapidly-declining status)

Summary: A look at the two latest threats to those who helped put an end to a lot of (if not most) software patents in the US

“In a new petition for writ of certiorari,” Patently-O noted the other day, “Jericho Systems has asked the Supreme Court to review its abstract idea test…”

This is another dangerous attempt to resurrect software patents at the USPTO, in spite of PTAB and sometimes even CAFC (which brought software patents to the US) often throwing them away. Jericho Systems was mentioned here before, both in decisions [PDF] and in posts about Novell or patents. CAFC, however, is reportedly dissenting against PTAB (some patent lawyers and proponents of software patents mentioned this the other day), which puts an end to a lot of software patents. As MIP put it: “The Federal Circuit has vacated and remanded parts of a Patent Trial and Appeal (PTAB) final written decision that relied on a new claim construction. The problem was not that the Board changed the claim construction but that it did not give parties a chance to respond, said the appeals court.” Compare to to what goes on at the EPO with the appeal boards.

“We need to protect Alice and we need to protect PTAB, which applies the corresponding tests quicker than any single court does (court cases take a lot more time and money).”So here we basically have two threats; the first is Jericho Systems, which wishes to bring the question of software patentability (or the “abstract” patent test) back to the Supreme Court and second is CAFC, originator of software patents and backer of Enfish, which is trying to disrupt PTAB’s excellent work (it’s like the EPO’s EBoA, which Battistelli is crushing). To quote Professor Dennis Crouch: “The district court ended the case with a judgment on the pleadings – finding that the asserted claims of Jericho’s Patent No. 8,560,836 lacked eligibility under Alice and Mayo (focusing on claim 1 as axiomatic).”

We need to protect Alice and we need to protect PTAB, which applies the corresponding tests quicker than any single court does (court cases take a lot more time and money). Otherwise, sadly, software patents might come back with a vengeance to the United States. █

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How the Halo Electronics Case Helps Patent Trolls and How Publications Funded by Patent Trolls (IAM for Instance) Covered This

Posted in America, Courtroom, LG, Patents, Samsung at 10:27 am by Dr. Roy Schestowitz

Halo as a sanctuary for patent trolls

Summary: A Supreme Court ruling on patents, its implications for software patent trolls, and how media that is promoting software patents and patent trolls covered it

THE dishonest/self-serving patent lawyers in the US might never openly admit this, but software patents are dying not only in US courts and PTAB but also, increasingly, at the USPTO. This does not necessarily solve the problem of patent trolls because trolls tend to go after small companies that have neither the will nor the budget to invalidate the asserted patents, e.g. by going to court.

“Court rulings like this,” say anti-trolls lobbyists, “make it much more urgent for Congress to pass patent litigation reform legislation this year” (they probably allude to the VENUE Act or the likes of it).

“This does not necessarily solve the problem of patent trolls because trolls tend to go after small companies that have neither the will nor the budget to invalidate the asserted patents, e.g. by going to court.”“Supreme Court Ruling in Halo/Stryker Case Will Lead to More Lawsuits from Patent Trolls, More Forum Shopping by Repeat Plaintiffs,” says the accompanying PDF. “Ruling Gives Small Businesses Less Incentive to Fight Meritless Suits,” says the second line. This is correct as it’s already far too expensive and laborious. The smaller the company, the more likely it is to just pay ‘protection money’ (extortion) because the ratio between the ‘damages’ and the legal costs in a court makes it the ‘correct’ business choice.

Suppose for a moment that patent trolls don’t get granted (or get to buy) the patents they use. The proposed reform legislation does not actually tackle software patents. The subject is not even on the agenda and that’s a problem. As long as software patents can land on the lap of patent trolls, these are guaranteed to be misused. Natalie Rahhal of MIP wrote about the same decision (Halo/Stryker case) as follows: “The Supreme Court decided both Halo Electronics, Inc v Pulse Electronics, Inc, et al and Stryker Corporation, et al v Zimmer, Inc, et al on Monday, in a decision that significantly lowered the bar for the issuance of enhanced damages in a patent infringement case.

“Gene the WatchTroll (or “Watchdog” as he prefers to think of himself) is so upset that judges are doing their job and eliminating software patents (after SCOTUS Justices ruled on the matter) that he shamelessly exploits these latest developments to assert Justices are writing legislation (untrue).”“Enhanced damages are set out by Section 284 of the Patent Act and allow the Court to award a patent owner up to three times the amount of the damages found, if the jury or the court determines that the infringement was wilful.”

Gene the WatchTroll (or “Watchdog” as he prefers to think of himself) is so upset that judges are doing their job and eliminating software patents (after SCOTUS Justices ruled on the matter) that he shamelessly exploits these latest developments to assert Justices are writing legislation (untrue). In our previous post we showed how he had exploited the Halo/Stryker case to accuse Justices of ignorance and here he is saying that §101 (Alice) is “overused”:

It seems as though once the court realized the claimed invention related to software, it pulled out its §101 goggles and ignored any other grounds for patent invalidity. Such an analysis, which pushes decision-making into 101, which is ill-suited to be used as such a brute force instrument, has perplexed and frustrated patent practitioners. Courts, including the Federal Circuit, simply disregard the other sections of the Patent Act in favor of §101, which for them is easier and leads to decision-making without the need of discovery and without presuming the issued patent is valid.

With or without Halo/Stryker, with or without Enfish, §101 still stands and it will continue to demolish software patents by the thousands (those that reach PTAB and the courts anyway). One can be sure that patent lawyers will keep saying “Halo” and “Enfish” any time they wish to defend trolls and software patents. Joff Wild, for a change, says the T word (“Trolls”) in his article about Halo (a case which we first mentioned here last week) and here is his opening paragraph: “There have already been plenty of articles written about the Supreme Court’s decision in Halo v Pulse, which was handed down yesterday. As is usual in cases where they review the work of the Federal Circuit, the court’s justices have decided that its practices are wrong. This time, it’s the approach that the CAFC has towards determining wilful infringement – it’s too rigid and lets too many potentially very badly behaved defendants off the hook. Instead, the Supreme Court has stated, judges should have a lot more discretion in deciding when a defendant’s behaviour has been so egregious that it deserves the sanction of triple damages.”

“With or without Halo/Stryker, with or without Enfish, §101 still stands and it will continue to demolish software patents by the thousands (those that reach PTAB and the courts anyway).”Expect this to be used to discredit §101 and defend patent trolls. Now that Ericsson’s patent trolls (in Europe) are about get ‘scooped up’ IAM celebrates and as another major lawsuit comes to light IAM says: “Earlier this week an entity called Global Equity Management (GEMSA) filed lawsuits against 20 separate operating companies including Spotify, Netflix and Uber over the alleged infringement of two patents. All of the suits were filed in the Eastern District of Texas.”

That’s just a patent troll in the Eastern District of Texas, as usual. “US Pat 6,690,400, Asserted Against Amazon Web Service Users,” Patent Buddy wrote, adding some of his information about the patent. Apparently that’s just fine with Wild and his colleagues, whose employer received money from patent trolls. This EPO‘s mouthpiece, IAM ‘magazine’, still treats the world's largest patent troll (and Microsoft-connected troll) like some kind of heroic entity that people ought to emulate. Last week it continued to groom this patent troll, Intellectual Ventures. They almost do public relations, having spoken directly to the company’s executives last month (the editor in chief did, the trolls denialist).

“It doesn’t seem to bother Congress enough. Why not? Follow the money.”Perhaps the saddest thing in it all is that most voices that weighed in on the latter (and we were able to find) treated a win for patent trolls as some kind of fantastic ruling from SCOTUS, except perhaps TechDirt with this article titled “Supreme Court Just Made It Easier For Patent Trolls”.

To quote TechDirt: “As we’ve noted over the past decade or so, the Supreme Court has been smacking down the Court of Appeals of the Federal Circuit (CAFC) over and over and over again on issues related to patent law. And on Monday, the Supreme Court did it once again — but this time in a way that actually might not be good.”

The analysis ends with: “At the very least, this seems like an argument for Congress to finally stop sitting around and doing something to fix the patent troll problem.”

It doesn’t seem to bother Congress enough. Why not? Follow the money. Why is IAM so soft on trolls? Again, follow the money.

We could say a lot more about IAM’s sheer bias. Consider its latest coverage from Asia. IAM, as usual, misses the point. LG and Samsung are absolutely massive companies (almost part of the nation itself, including the military in fact); they are the exception, not the norm, when it comes to the number of patents. IAM says “Korean companies own some of the world’s largest patent portfolios, including of course the single biggest stockpile of US grants – by some margin – which belongs to Samsung Electronics.” But IAM does not mention that this is pretty much limited to just two companies. Regarding Japan, which has a lot more than just two or three giant technology companies, IAM suggests some kind of patent liquidation. Notice how they ascribe or use the word “asset” to refer to a patent (the A in IAM is “asset”), as if it’s some kind of physical object. Euphemisms are everywhere at IAM. It’s lobbying disguised as news. █

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Patent Lawyers’ Fantasy Land Where Software Patents Are Suddenly Resurrected Even When They’re Not

Posted in America, Patents at 9:42 am by Dr. Roy Schestowitz

Ignoring the facts and insulting Supreme Court Justices instead

Credit: Bilski Blog chart

Summary: A quick glance at where the debate over software patents in the United States stands and how profiteers (such as patent lawyers) not only mislead the public but also bully the messengers

THE situation in the United States gives much hope for those looking to abolish software patents. The USPTO begrudgingly adopts Alice and makes it harder to attain software patents, irrespective of what the court (or PTAB) says about them. But make no mistake, the proponents of software patents fight hard to change this, using lobbying (misleading the decision makers), propaganda (misleading the public), and false marketing (bamboozling clients with false hopes).

Curiously enough, recently we learned that software patents and their injustice gave birth to the original Pirate Party (in Sweden). To quote Benjamin Henrion, “Pirate Party founder Falkvinge mentions software patents fight in 2005/2006 as one of the reason for starting” (that was around the time of the famous directive on software patents in Europe, after Falkvinge had worked for Microsoft and Microsoft had lobbied hard for software patents in Europe — a subject that Florian Müller wrote an entire book about).

“But make no mistake, the proponents of software patents fight hard to change this, using lobbying (misleading the decision makers), propaganda (misleading the public), and false marketing (bamboozling clients with false hopes).”To this date, proponents of software patents, notably large corporations and their patent lawyers, work hard to promote and cement a broken system. “A New Hope For Software Patents?” is the title of this new analysis, reusing even words after more than a month with many dozens of so-called ‘analyses’ (marketing for one’s services around software patents). Gordon & Rees LLP has just published “Is the Enfish Case “A New Hope” For Software Patents?”

Notice the question mark. They know the answer, but they create uncertainty in the hope of attracting customers. Isn’t it time to say “enough with this propaganda,” as not much has changed since the decision except the flood of pro-software patents ‘analyses’ from patent lawyers? We wrote many detailed articles to highlight this wave of misinformation.

“To this date, proponents of software patents, notably large corporations and their patent lawyers, work hard to promote and cement a broken system.”“Enfish for Alice: a software win”, says another so-called ‘analysis’ [via Bastian Best], as if patent trolls winning is “a software win”…

“Good news for software patents,” says the author. “The negative impact of the 2014 SCOTUS (Supreme Court of the US) “Alice” decision (invalidating some business method and financial software patents) has been somewhat mitigated by the recent “Enfish” court decision.”

No, not really. Barely. Nothing at all or not much has changed more than a month afterwards. In fact, how many other cases have been ruled in favour of software patents since? Anyone can count those on one hand if not zero hands. According to some number-crunching work from Bilski Blog (very informative blog by the way) and those who comment on it, “The Supreme Court Did Not Consider Alice v CLS Bank to Be a Software Patent Killer But the Dist. Cts and PTAB Do” (not CAFC).

“It’s increasingly amusing to see how patent lawyers squirm over Alice, simply not accepting that software patents should never have been possible in the first place.”That’s rather misleading an interpretation regarding the above as SCOTUS (the Supreme Court) did not express an opinion on software patents explicitly, so overall it’s a rather misguided/misleading claim to make. What the cited analysis shows is that the vast majority of patent cases involving software are unfavourable to software patents, much to the panic and horror of people like Patent WatchTroll (Gene), who is now trying to reach new lows, probably in grave frustration. Watch his latest effort to shame the Justices into approving software patents. “It is truly ironic,” he said, “even downright funny, how the Supreme Court can so clearly see that the Federal Circuit is not being true to the simple, easy to understand, straightforward terms of a statute but at the same time lack the capacity to similarly see that they are themselves doing the very same thing. If intellectual honesty means anything the Supreme Court would hold themselves to the same standard and stop applying judicial exceptions to patent eligibility that enjoy no textual support in the statute. I’m not going to hold my breath.”

Gene, being the software patents cheerleader he has always been (for his own profit), is mocking the intelligence of people who don’t agree with him (Gene already blocked me in Twitter, having lost the argument, perhaps fearing further debating), even when they’re Justices at the Supreme Court! It’s increasingly amusing to see how patent lawyers squirm over Alice, simply not accepting that software patents should never have been possible in the first place. Our next post will show some more pearls of ‘wisdom’ from Gene… █

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Links 19/6/2016: Randa Over, Fedora 24 Release Soon

Posted in News Roundup at 8:43 am by Dr. Roy Schestowitz

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