12.23.15

The Demise of Software Patents in Australia and the Unites States Worries Patent Lawyers

Posted in America, Australia, Patents at 8:15 am by Dr. Roy Schestowitz

Patent Pools, Patent Thickets, Patent Stockpiling, Patent Trolling, Patent Royalties, Patent Agreements, Patent Lawsuits etc. are the lifeline of patent lawyers

Summary: Patent lawyers are pooling together their collective influence in an effort to rescue or salvage software patents, which software professionals neither want nor need

“Software shouldn’t be patentable,” Christine Hall of FOSS Force wrote last night. “It’s already covered under copyright law, where it belongs.” That’s just how a lot of software professionals feel, not just FOSS proponents. So who benefits from (and lobbies for) software patents? Monopolists like Microsoft, their lobbyists, and their patent lawyers for the most part.

“Yes, even some large companies have gotten fed up (but not Microsoft).”According to this latest news (covered here a couple of days ago), “APPLE AND ERICSSON have agreed to a global patent deal that will end legal hostilities between the two companies.”

Yes, even some large companies have gotten fed up (but not Microsoft). “The specifics of the deal remain confidential,” says this report, “but it looks like Ericsson has come out on top of the negotiations after confirming that Apple will make an initial payment to Ericsson and then ongoing royalties.”

The Microsoft-controlled Nokia is said to have gotten something similar out of Apple. A lot of these mobile patents pertain to wireless communication, design, and user interfaces/software. These threaten what we have come to know and appreciate as mobile Linux, or FOSS platforms (such as Android) as zero-cost operating systems that commoditise phones and other gadgets, like portable small devices.

We are rather disturbed to see the degree to which patent lawyers dominate the debate in the media. Where are representatives of the software industry (meaning independent developers, not software behemoths with monopolies in their respective field/s)? Spokespeople for the interests of software developers are typically absent, whereas the giants have dedicated front groups like the Business Software Alliance (BSA).

“Where are representatives of the software industry (meaning independent developers, not software behemoths with monopolies in their respective field/s)?”In two recent posts of ours [1, 2], Australia’s patent lawyers were shown with their biased opinions. They currently freak out a bit because software patents are losing their teeth in Australia, at a fairly high level. Truthfully, it can go to an even higher (the highest) level. As George McCubbin from Minter Ellison put it in his conclusion/concluding remarks: “RPL Central can of course still seek special leave to appeal the decision to the High Court, which, if leave was granted and the appeal proceeded, would likely resolve this issue in the short term at least.”

Minter Ellison is just the latest legal firm to write about this. Here is some background or context: “In its long awaited decision Commissioner of Patents v RPL Central, the Full Federal Court has rejected another computer-implemented invention for failing to constitute patentable subject matter. In doing so, Justices Kenny, Bennett and Nicholas overturned the decision of the trial judge, Justice Middleton, delivered in August 2013.

“Patent law needs to take into consideration whether patents in one domain or another actually offer a benefit to society and encourage development.”“The decision has implications for any software developers.”

Yes, well, since they provably hate these patents. There were online petitions in Australia about it (covered repeatedly in Techrights at the time), indicating that it’s good news for developers, maybe bad news for patent lawyers.

Patent lawyers from Manatt Phelps & Phillips LLP (US) are doing ‘damage control’ right now, a year and a half after Alice. This other new article says: “There may be a glimmer of hope for owners of software patents as it is possible that the Federal Circuit is rethinking, or at least grappling with, the larger implications of Alice” (the software patents slayer).

They note that “may be a glimmer of hope for owners of software patents” as if it’s a disaster that software are dying (a disaster for patent lawyers for sure, but take note of the biased tone).

Another US-based legal firm has just published something related to this. “As background,” it says, “the patent relates to computer memory modules that comprise a printed circuit with upwards of a dozen “random access memory” (RAM) chips (sometime on both sides of the circuit board) for short-term storage.”

This, unlike what was covered above, actually involves some hardware. It is not something which a sole programmer can produce in a basement.

Patent law needs to take into consideration whether patents in one domain or another actually offer a benefit to society and encourage development. When it comes to software patents, evidence strongly suggests that they mustn’t exist and the US Supreme Court seems to agree. █

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EPO Administrative Council: the Situation is “Detrimental to the Proper Functioning of the Office and the Public Image of the Whole Organisation”

Posted in Europe, Patents at 7:25 am by Dr. Roy Schestowitz

Summary: How the statement from the Administrative Council (above) completely shatters the bogus narrative laid forth by the European Patent Office, led by aggressive managers

THE EPO (where O”” stands for Office, not Organisation) can no longer pretend that just a bunch of people, or "Mafia", are behind the current problems. The Administrative Council makes such narratives increasingly out-of-touch.

“…the President´s continued denying in the Managing IP interview sounds absolutely pathetic.”
      –AnonymousThe Council’s statement, which was echoed here as well as the softball (questions) interview of MIP and Battistelli, makes the point which we were tempted and eager to make at the time (yesterday afternoon). Someone at IP Kat has just said it: “After the AC itself has come to publicly acknowledge “a situation detrimental to the proper functioning of the Office and the public image of the whole Organisation” (see its recent Communiqué), the President´s continued denying in the Managing IP interview sounds absolutely pathetic.

“Clearly James Nurton, the interviewer, got remarkably well informed of the situation at the EPO, and some of his apparently innocent questions are just as many hits (e.g. “Can you do things better or are you resolutely sticking to the path you are on?”)”

In that same previous post we noted that the UPC was high on the agenda at the EPO and paid-for propaganda was being used to promote it. We now take note of this article posted at the end of Tuesday in a British site for lawyers. It’s mostly parroting the EPO by saying that “EPO president Benoît Battistelli said that the establishment of the framework means “the preparations for the unitary patent are complete”.”

“It remains clear that there is an unclear future for the UPC in the UK even if the UPC ever becomes a reality (which is an uncertainty as well).”However, it ends with this cautious note: “In an article for Out-Law.com last month, Bentley explained in more detail the potential implications for businesses of the new unitary patent and UPC regime and how the UK’s potential exit from the EU could impact on both the timescale for, and operational aspects of, the new framework.”

It remains clear that there is an unclear future for the UPC in the UK even if the UPC ever becomes a reality (which is an uncertainty as well). It’s a very crude display of undemocratic takeover by powerful interests, whose only defense is that the end justifies the means and there is some kind of “greater good” (like invading Iraq). █

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12.22.15

Europe Under Siege by Patent Lawyers, UPC Ambitions, and the Administrative Council’s Continued Passive Support of Battistelli

Posted in Europe, Patents at 11:50 am by Dr. Roy Schestowitz

A 1911 Industrial Worker publication advocating industrial unionism (unedited original is in the public domain)

Summary: The interests of Europe, historically a beacon of innovation, are being jeopardised to give way for the interests of the rich and powerful, including foreign corporations/billionaires (along with lawyers whom they hire to help perpetuate their power)

OUR previous post spoke about patent trolls and software patents, which are closely connected in practice (statistically-meaningful supportive evidence does exist). We still worry — and apparently SUEPO does too — that patent scope at the EPO has gone awry and we believe that it will get a lot worse if (or when) UPC becomes a reality.

“The UPC would bring even more of them (patent lawyers, patent thickets, patent trolls) to Europe. “We couldn’t help but notice that in Europe too patent trolls are becoming a problem and they utilise software patents. The UPC would bring even more of them (patent lawyers, patent thickets, patent trolls) to Europe. It would be a bureaucratic mess. Some people make a lot of money from such a mess, as do military contractors at times of war and conflict, even just tensions (catalysing proactive armament, akin to patent stockpiling).

Patent lawyers from Marks & Clerk have just published (today) an article in which they try to study how to overcome those ‘pesky’ boards when it comes to patenting. The boards, including the Enlarged Board, sometimes help squash software patents. Marks & Clerk (also today) gives tips for tricking/fooling the judges. Meanwhile, in another example form today, other patent lawyers want and pursue the UPC because they gain from it at the expense of the European public. Watch how they’re jumping the gun ahead of the European public even voting on it:

The Eversheds UPC team attended a teach-in session in Luxembourg on 17 November 2015 with the providers of the UPC Case Management System (“UPC CMS”), which is currently in alpha testing.

There will soon be an EPO-sponsored pro-UPC event in the US and this new softball (questions) interview with Battistelli is UPC promotion as well. As one person put it: “The section on the Boards of Appeal, in particular, is full of what can only be described as complete and utter rubbish” (not just that section, but it’s behind a paywall, at least from here).

This is a truly shameless attack on democracy. It’s the patent microcosm that’s conspiring to make it so, usually behind closed doors, for its own selfish interests. Incidentally, the statement from the Council has just been published and it says that it “again expressed concern about the deteriorated social climate and called for initiatives and genuine efforts from all parties involved to seek compromise solutions to end a situation detrimental to the proper functioning of the Office and the public image of the whole Organisation.” Well, no wonder; it’s self-inflicted.

As one new comment there put it:

I am struck by the exhortations in the Communique for “compromise” on all sides. More useless hand-wringing and more futile expressions of disappointment.

I defer to commentators here with better inside knowledge than me, but I wonder, do general readers (or even the political masters of those who sit on the EPO’s AC) realise how remote the EPO is from the Rule of Law, when it comes to disciplinary proceedings against EPO employees?

As I understand it, any unfortunate employee who comes to the attention of the authorities in Eponia faces disciplinary proceedings in which the EPO President is the prosecuting entity. Not only that, the President’s men form the tribunal that hears the case and passes judgement on it. Not only that though. It is the President that enforces the judgement.

And if the President of Eponia does not like the judgement, he is free to ignore it, re-write it, and enforce the judgement as re-written to his liking. There’s nobody (except the AC) to stop him.

Here in Germany, there are great expectations placed on adults, to set a good example to the children. Woe betide anybody who zips across a street in the presence of little children, before the pedestrian traffic light has switched from a little red man to a little green man. Rules are to be obeyed, not broken. Officious bystanders do more than wring their hands. They inform the police that you have committted an offence.

But whenever there are no Rules, why then you can behave as you like. Speed down the 2-lane Autobahn A 92 to Deggendorf at 250 km/h? Even when the inside lane is full of slow-moving traffic and the road is greasy. No problem!

So imagine The President’s Chief General Counsel, his German Consigliere, Herr Lutz, giving advice to his boss, whispering in his ear. Boss, ignore the AC. You break no law, you offend no Rule. There are no police. Ergo, you do no wrong and there is nothing to stop you continuing, boss, to your heart’s content.

In truth, the only thing that can stop the reckless vehicle is the AC. And all the AC seems capable of doing is wringing its hands and calling on the parties to “compromise”. Is that the best they can do? Is that all they’ve got? The faceless members of the AC ought to be ashamed of themselves.

As for the political masters of the AC members, politicians have this great ability to see things in a way that no shame ever attaches to them. They all fancy themselves as Teflon Tony. They distance themselves, don’t they, and deny any responsibility.

On mainland Europe, nobody understands the English notion of equity/fairness. English readers just do not grasp how offensive it is to the Rule of Law, what goes on inside the EPO. The villain is a Frenchman that looks like Napoleon Bonaparte and the season of pantomime is upon us. When the English yellow press runs the story though, it will be another reason for English voters to decide to walk away from the EU.

Patent examiners ought to realise (at least reevaluate or reassess) their role in this cross-national system. They can use their knowledge and influence to steer patent policy in a sane direction, e.g. to maximise health (e.g. saving lives in poor economies), class-agnostic commonwealth, and innovation. Patent examiners don’t work in a production/assembly line (should not be treated as such either) and if they act as public servants in a public service, then the collective interests of Europe — not those of some large foreign corporations — should always be paramount. If Battistelli and his goons stand in the way, get rid of them. █

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The Collapse of Patent Maximalism: Latest Major Setbacks for Software Patents and Patent Trolls

Posted in America, Asia, Australia, Law, Patents at 11:14 am by Dr. Roy Schestowitz

Those seeking to perpetually maximise the scope of patents are now on the retreat

Limits exist for a reason

Summary: Patent news from India, Australia, and the United States (the Eastern Texas district in particular), where parasites insist that when it comes to patents more is necessarily better

LEAVING the EPO aside for a moment, we now have time to cover the latest news about software patents in India, in Australia, and in the US. There is a worrisome growing movement, led to a large degree by large US multinationals (monopolistic corporations). It’s a distinguishable lobbying movement which is trying not just to preserve software patents in the US but also expand these to every country on this planet. It’s very clear to see what they are hoping to achieve and this has nothing to do with innovation, just protectionism and power.

“This is great for Indian software companies.”As mentioned here in recent days [1, 2], opponents of software patents now celebrate somewhat of a temporary/conditional win because, to quote the corporate media in India (Economic Times), “India’s patent office has put on hold guidelines that would have allowed patenting of software, a move being hailed as a big win for domestic startups.

“Indian law on granting patents for software is a gray area. In August, the Indian Patent Office interpreted the law to mean that if a software had industrial applications it could be granted a patent.”

“The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.”The war is not over, but opponents of software patents bought some time and it seems apparent that their arguments are gaining traction among Indian politicians. This is great for Indian software companies. The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.

Speaking of patent lawyers (parasites in the area of patents and often the couriers of large corporations with monopolies to protect), watch what patent lawyers based in Australia write about patent scope today [1, 2]. They are clearly upset that it’s not easy to patent software and “computer-implemented business methods” — whatever this may actually be (a combination of two controversial patent domains a la Bilski case). They’re whining about this down under in Australia. Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.

“Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.”In other patent news, two patent aggressors, Apple and Ericsson [1, 2], decided to stop fighting. As WIPR put it (based on this original statement):

Technology companies Ericsson and Apple have agreed to settle all outstanding patent litigation.

In an announcement today, December 21, both parties said they have inked a global cross-licensing agreement that covers standard-essential patents (SEP) owned by Ericsson and Apple and “certain other patent rights”.

Further details of the agreement were not disclosed, but both parties confirmed the deal will last for seven years.

Ericsson has been using patent trolls as satellites or proxies — a fact that we have supported/backed with extensive evidence in many of our previous articles (even years ago). Speaking of patent trolls, they too have a lot worry about right now. Over in Texas, the breeding ground of patent trolls, not only was the troll known as eDekka [1, 2, 3] stopped but it was also forced to pay. As Boing Boing put it: “The plaintiff-friendly East Texas district has long been patent trolls’ favorite place to file lawsuits, but one was so egregious that even their favorite judge has not only shut it down, but awarded costs against them.”

“It shouldn’t be overlooked that the large majority of patent trolls are using software patents.”WIPR wrote that the “US District Court for the Eastern District of Texas has dealt a new blow to licensing company eDekka, ruling that a claim for a patent covering a computer storage system, which it asserted against more than 200 companies, was “objectively unreasonable”.”

The EFF has meanwhile asked the court to extend such judgments, saying in its announcement: “Getting a patent demand letter from a troll can be a scary experience. The letters often include a lot of legal jargon, not to mention a patent that is often impenetrable (at least, not without hiring an expensive lawyer to translate it for you).

“But suppose you are concerned that the patent may impact your business. After trying to reach an agreement with the patent owner and failing, you may be told by your lawyer that the next step is to go to court.”

It shouldn’t be overlooked that the large majority of patent trolls are using software patents. By eliminating software patents we can actually help stop a lot of the trolls. Obsessing over trolls alone sometimes misses the point. We’ve repeatedly stressed this key point for at least half a decade now. █

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Translation of the Latest Communiqué About the Administrative Council, No Longer Published by ‘President’

Posted in Europe, Patents at 9:50 am by Dr. Roy Schestowitz

Summary: A dissection and annotation of the communiqué from ‘President’s office’, which took a rather hostile (compared to previous) Council’s stance and turned it into a shameless self-promotion opportunity

THE EPO is trying to lull the staff into the illusion that everything is great (and improving) at the EPO. The reality is pretty grim and things are getting worse.

“For something which Junge Welt or its big sister Neues Deutschland could have printed,” said one of our readers, “have a look at the internal EPO communiqué issued after the AC meeting. There were over the week-end a few comments on IPkat referring to that masterpiece.

“Maybe Mr. President is ‘pulling a Merpel’ and refers himself as a third person now.”“The last line with the time and date of the communiqué is missing, but I’m told that it was issued this time by “President’s office” instead of the “President” as is usually the case and that it was issued Friday.”

Maybe Mr. President is ‘pulling a Merpel’ and refers himself as a third person now. We don’t know if that’s significant, but it does seem to suggest a change of narrative, as if the word “Battistelli” is now actively avoided and rather than present the words as its own it’s just others alluding to “the President”.

At Techrights we more or less know everything that happened at the meetings. Last week did a lot of coverage before, throughout, and after the Administrative Council sessions.

The official announcement from Battistelli’s side (with our comments on them) was as follows:

Home->Organisation->News->2015

News from the Administrative Council

The 146th AC meeting was held on the 16 and 17 December in Munich

The President of the Office presented his report summarising the activities and results of 2015, underlining in particular the increase in production, productivity, quality and the successful implementation of the new career system.

Why say “production, productivity” when both mean pretty much the same thing? Besides, how does one measure “production” when it comes to the granting of patents? It’s an intangible monopoly. As we noted here a few months ago, using factory or assembly line terminology does not help. It may, in practice, serve to discredit the Office. If production means number of patents granted/processed (as is the case in the USPTO where there is an incentive to grants patent and it shows), then what does that really mean? Lower standards and poorer quality control? How can production be compared year-to-year when new domains are considered patentable, e.g. patents on plants? Or when there is an acceleration programme for large companies that submit applications in bulk?

Mr. President (well, now referring to himself as a third person for a change, because the “me/I/mine” narcissism isn’t PR-smart, now it’s “President’s office”) also uses the word “quality”. Well, try telling European Parliament, which is openly complaining [1, 2], that opening the floodgates to patenting of seeds means increased “quality”.

What Mr. President brought to the EPO is neither production [sic] nor quality. He doesn't even seem to know that Apple's EPO patents turned out to be bogus patents.

Mr. President offered nothing but declining quality, broadening scope, and increased (artificially) numbers, proportional to the two former aspects (inversely proportional to quality and proportional to scope).

Rather than say “production, productivity, quality” why not just say something like “paging through more distinct applications (like in a paper factory), increasing the variety of papers on one’s desk”? It doesn’t help, does it? It only assures lower quality production [sic] with a higher error rates. It isn’t even a case of multitasking or peer review; it’s just a case of working under increased pressure to meet (or beat) targets irrespective of accuracy. The EPO is going to pay the price each time a patent that it granted is found invalid during court proceedings.

What Mr. President refers to as “successful implementation of the new career system” is quite laughable given what we’ve learned from sources over the past couple of years. Notice that Mr. President does not say “successful new career system”, he says “successful implementation of the new career system”. Imposed, top-down implementation is what was “successful”. To give an example, think of Stalin’s “successful implementation of famine in Ukraine” (Holodomor).

The finalisation of all the preparatory work for the unitary patent was also highlighted as a landmark achievement, after decades of discussions and negotiations.

Not everyone agrees with us about the UPC, but we have written many dozens of articles on this subject (readers can find such articles going many years back). Who does the unitary patent really serve? It would make a lot of people all across Europe redundant (the boards are rightly worried) while making it easier for large multinational companies such as Apple to embargo rival products (mostly Android) Europe-wide, in one fell swoop. UPC means more litigation with broader scope for injunctions and higher damages. It also paves the way to cross-Atlantic (or Pacific) unifications that can, in due course, augment patent scope, thus making patent quality even poorer.

If UPC is as great as the EPO’s management repeatedly claims (even threating its critics), how come it needs to spend so much money on pro-UPC propaganda? Watch the reputation laundering of Battistelli in Wikipedia (there is an edits war over the criticisms, with experts involved in watering down promotional UPC language), including the part which says: “Under Battistelli’s tenure, the EPO has played an important role in the preparatory work for the introduction of the unitary patent, which has yet to come into existence.”

The President was joined by many delegations in warmly congratulating both the staff and management

See what’s wrong here? A false, superficial division between “staff” and “management”. It’s as though there’s a false dichotomy here and you can be either staff or management (but not both). Mr. President, who are you working for? Who pays your salary? Actually, what is your salary anyway? Unlike your predecessor, Brimelow (see old EPO CV), you actively refuse to disclose your salary. So much for transparency…

who can be proud of the exceptional results obtained in many fields over the year.

Result? 3 staff representatives suspended. As well as one judge. Not to mention the brain drain…

These are the outcome (or result) of Mr. President’s pure genius. He battles against staff rather than cooperate and coexist. Typical of people from his school.

On the social situation, the different stakeholders were asked to reinforce their efforts to improve the social dialogue. In this regard, the finalisation of the on-going negotiations about the recognition of trade unions within EPO legal framework is seen as an important step forward.

Put in simple English, Team Battistelli was asked to stop crushing the unions (we covered this last week). It’s not clear whether Team Battistelli consented to this or just saved face at the time. It often seems as though the Council is the one pushing for better “social dialogue” (a euphemism that merit its own debate), whereas Team Battistelli is backstabbling those whom it claims to engage in “social dialogue” with.

Battistelli and/or his team (referring to him as a third person) speaks about “recognition of trade unions within EPO legal framework is seen as an important step forward.” Well, well…

Based on documents we saw, Team Battistelli does exactly the opposite. A lot of staff can already see this in the communiqué titled "Your Rights". The very right to join a union is being challenged while those who recruit members have come under unprecedented attacks.

Battistelli is either a two-faced liar or has successfully deluded himself into the idea that he is a tolerant social dialoguer [sic].

As is customary for the December AC session, the main item on the agenda was the presentation of EPO yearly budget. The 2016 budget, which amounts to €2.1 billion was unanimously approved by the AC.

It’s more of a must-pass provision, isn’t it? It’s like NDAA or the Omnibus in the United States’ Congress. This shouldn’t be framed as some kind of mastery of negotiability.

The excellent performance in 2015 of the Office supported the proposal of the President to transfer €200 million to the pension reserve fund – without any contribution from the staff – thereby reinforcing the sustainability of the pension system.

That’s complete nonsense and almost every EPO employee can explain why. It’s a reused talking point which, left unchallenged, threatens to bamboozle journalists. We wrote about it quite recently, back when Battistelli was trying to appease staff one day after massive protests in Munich.

Another proposal aiming at better controlling the adequate level of reimbursement of national taxation of pensions was not supported by the AC, with some delegations expressing their opposition against the principle of the reimbursement of national taxations.

Is it widely known by now that EPO staff has salaries taxed at several levels and slashed to a lot less than publicly advertised? Are the loopholes and caveats when it comes to pension rights widely understood? Media coverage suggests not. Each time Team Battistelli is confronted with claims of serious abuses it just reverts back to the talking point about money, painting staff as greedy and EPO as generous (citing the on-paper salaries and mere promises of a pension).

The different adjustments of salary and allowances, and the new contribution rates for the pension and long-term care insurance schemes were approved by the AC. Two amendments in the Service Regulations, related to the length of mandates of the EPO’s joint statutory bodies and to the duration of the suspension from service of an employee, were also widely supported.

They omit the fact that suspension duration was extended. They just say “amendment” and lump together two separate things. Is this a coincidence? Probably just hogwash. This in itself is an attack on the unions. It’s also a warning sign to any whisleblowers or accused whisleblowers.

A joint note of the President and AC Chairman presenting the features of a comprehensive social study was appreciated by the delegations. The study will be launched in 2016, in parallel with a financial study. The results of both studies, which will be commissioned to external consultancy firms, are expected to be available for summer 2016. They will help to take stock of the progress achieved so far by the Office and to define the possible ways forward.

Anything like this propaganda? Commissioned by the EPO, can it possibly show any negatives? What kind of ‘study’ is this? More like lipstick on the pig. Calling it “social study” (social sounds great) rather than shameless-self promotion or even marketing comes to show the degree of newspeak adopted by the EPO.

Finally, the possible orientations on a structural reform of the Boards of Appeal were deemed to need further consideration and will be addressed again in 2016.

So they’re left in a limbo. Great, eh? More uncertainty is likely to just convince more members to leave, without openings being advertised for replacements. Killing them softly.

The periodical review of the financial regulations, including the new rules for the procurement process, was also adopted.

Speaking of procurement, what ever happened to all that IT budget? There is little or no supervision at the EPO. What was left of it got crushed, shut down, or co-opted. There are no independent external entities examining what’s going on inside the EPO. █

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EPO Level of Trust Reaches All-Time Low: Workers Distrust the Available Phones in Their Offices, Use Mobiles Instead

Posted in Europe, Patents at 9:21 am by Dr. Roy Schestowitz

Trust permanently lost because of foolish actions by the management

Summary: An anonymous letter to French national parliament reveals the level of distrust and disgust inside the EPO, where people no longer trust anyone

THE EPO has an atmosphere of revolt and based on comments we have been seeing, after the Control Risks fiasco examiners rightly assume that everything may be under surveillance at any time.

“Overworked people don’t always find the time to speak about their employer, especially when their employer makes them extremely overworked before Christmas.”Weeks ago we asked for a translation of a letter in French. Three people have offered a translation, but one beat the others to it. “I’m also surprised that the Exasperated examiners piece still isn’t translated,” wrote one of those three people, “I’ll see what I can do, perhaps between Xmas and New-year’s eve. But, hey, no promises.”

Overworked people don’t always find the time to speak about their employer, especially when their employer makes them extremely overworked before Christmas. Incidentally, the above person definitely does not work for the EPO. There are just a lot of people out there who are genuinely worried about the EPO.

Having published the original in French (sent to French politicians by examiners, not by a politician as we had thought because we lack the French polyglots), now we have the translation (with emphasis in larger fonts) below:

Munich, 30th of November 2015

FRENCH NATIONAL PARLIAMENT
For the attention of Mr. Le Borgn’, MP
Rue de l’Université 126
75355 Paris 07
France

Dear Member of the Parliament,

First let us express our gratitude for your courageous stances and your actions to restore justice and morality in the European Patent Office.

“The accusations raised by the Office do not seem at all to rely on solid grounds, and were formally refuted by German lawyers.”Twice already the Administrative Council of the Office asked President Battistelli to resume a social dialogue. His answer was the obviously unjustified layoff of three elected leaders of our union, the SUEPO. Investigations were initiated against them. The accusations raised by the Office do not seem at all to rely on solid grounds, and were formally refuted by German lawyers. Legal sources mentioned by the Office are currently unknown and questionable, to say the least. No credible counterarguments seem to have been presented which would defeat the conclusions made by the SUEPO lawyers. In The Hague, members of the SUEPO and Staff Representatives were also subjected to interrogations where they had to endure an unacceptable psychological stress. In a letter sent you, President Battistelli says that these sessions were recorded. A question immediately arises: what is the legality of such recordings? The investigative units assigned to these investigations and interrogations have an unacceptable inquisitorial power, completely outside the framework of ethics and legal guarantees of security applying to their citizens in modern European democracies.

“It is time to put an end to this culture of contempt of staff and that the Administrative Council finally makes its voice heard in this direction.”Through these SUEPO leaders, 7000 EPO officials are offended by the actions of President Battistelli. Within two hours, a demonstration was organized gathering 2000 people in front of the “Isar” building, the Office headquarters. Given the number of employees in Munich, this is huge .. and of course this is what President Battistelli probably will still dare to call “a minority”. Indignation and disgust are at their pinnacle. It is time to put an end to this culture of contempt of staff and that the Administrative Council finally makes its voice heard in this direction.

We are tired of being treated like the livestock of President Battistelli. We all graduated from the most prestigious schools and universities, and many of our colleagues are holders of a doctoral degree. Most of them came from industry, where they held responsibility or management positions. They could certainly provide the Office managers with useful lessons and actually teach them good practices in this area.

“It should come as no surprise that, in this toxic environment, disillusioned colleagues react more and more by “internal resignation” and some have already expressed that, in morning, it is with hatred to their employer that they walk through the doors of the Office.”Full of fear and suspicion, the working atmosphere is more than sinister. Who in this Office has further confidence in their computer or copy machines, sometimes even in their colleagues? We have come to distrust the available phones in our offices so much that, to communicate on the most trivial subjects, our colleagues use their cellular phones, not without having cast a sweeping glance around them to ensure that their conversation is not heard. The trust has completely disappeared in the relationships between employees and management hierarchy: wrongly or rightly, we are constantly afraid of being victims of a dirty trick. It should come as no surprise that, in this toxic environment, disillusioned colleagues react more and more by “internal resignation” and some have already expressed that, in morning, it is with hatred to their employer that they walk through the doors of the Office.

With the greatest concern, we note that intimidation measures to journalists or “bloggers” are orchestrated by the Office, and are mentioned in the “Net”, see for instance,

http://techrights.org/2015/11/27/epo-reputation-laundering/
http://techrights.org/2015/11/27/epo-information-warfare/

This source, as well as internal reliable informations, appear to clearly indicate that the Office has now released a budget of around €800,000 for press campaigns. How and for what purposes these considerable amounts of public money will be used? This question does not appear to be of concern to the Administrative Council. The management of the Office is not reluctant to drag through the mud staff members who express a dissenting opinion, especially in the case of trade union officials or staff representation. Would be the next step to muzzle the press and silence critics through campaigns of slander and intimidation, or abuse of European Justice Courts to achieve these ends?

“Would be the next step to muzzle the press and silence critics through campaigns of slander and intimidation, or abuse of European Justice Courts to achieve these ends?”We would like to sign this letter of our real names, but alas! You are aware that the Office has won the services of the disturbing firm “Control Risks”, apparently involved in a number of scandals concerning illegal spying on journalists, customers and employees in German firms. The fear that, being known, we could be the victims of an implacable revenge is well founded.

The Office must respect Law and Justice as they exist in modern European democracies. We do not want more than the restoration of our rights and respect for our honour.

Yours faithfully,

Exasperated examiners.

One of the three people who offered this translation (there are more translations from French on their way) said: “you were awaiting the translation of a letter in French addressed to an MP. Here is the translation. As always the translation might not be perfect and my apologies for the poor formatting. Thanks again for all the good work.” We made very slight (trivial) amendment to the text above. If there are errors in it, please point them out in the comments below.

Now that we can read the above letter (and have published its translation) we can clearly see that Battistelli’s intimidation/silencing attempts against the member of parliament only brought out the worse of him. Moreover, it made staff of the EPO even more angry. That’s Streisand Effect. █

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Links 22/12/2015: Linux 4.4 RC6, Solus 1.0 Imminent

Posted in News Roundup at 8:27 am by Dr. Roy Schestowitz

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12.21.15

The Forgotten History of IAM ‘Magazine’ as EPO Management’s Megaphone and EPO Union Basher

Posted in Europe, Patents at 8:21 am by Dr. Roy Schestowitz

Summary: In an old letter from the Staff Union of the European Patent Office (SUEPO), conflicts of interest in the Council, the decreasing quality of patents, the attacks on workers’ rights as well as many other issues were already openly discussed

On Saturday we showed that IAM 'magazine' was indirectly paid by the EPO to organise a pro-UPC event. We have received some private feedback about that article, neither from EPO staff nor from unions. There are many people in Europe and abroad who are seriously concerned about what’s happening inside the EPO these days. The whole world is impacted by patents, albeit their impact is mostly invisible to people (market prices are commonly what’s visible to common men and women).

“There are many people in Europe and abroad who are seriously concerned about what’s happening inside the EPO these days.”Regarding the Saturday article, one person drew our attention to something from more than 7 years ago. “From the archives,” said this person, there is a 2008 letter where “SUEPO replies to Joff Wild.” Wild is the main person behind IAM ‘magazine’, which we wrote more and more about in recent weeks because we suspect it is climbing into bed with the EPO more often than before. Articles on this subject include:

• IAM Biased: How IAM ‘Magazine’ Glorifies Patent Stockpiling
• Media Alert: IAM ‘Magazine’ Does Not Protect Sources
• IAM ‘Magazine’ Protects Patent Trolls, Blocks People Who Disapprove
• Patents Roundup: IAM’s Claims About India, Lawyers’ Patent Bias, ITC for Microsoft, and PTAB Against Kyle Bass

Having retrieved the letter from SUEPO, we would like to show what IAM did at the time (emphasis in larger fonts), together with Brimelow, the EPO’s President at the time:

Zentraler Vorstand . Central Executive Committee . Bureau Central

15.12.2008
su08163cl – 2.04.6b/6.

Re.: IAM blog – Comments on SUEPO

Dear Mr. Wild,

In your blog you have repeatedly challenged SUEPO (Staff Union of the European Patent Office) to provide evidence in support of its claims that:

• there is a drive towards decentralisation,
• the quality of the patents granted by the European Patent Office is threatened by the policies of its administration,
• the system is distorted away from the interests of the users (in our opinion mainly towards those of the national patent offices), and
• European Patent Office staff is genuinely frustrated.

“In fact, officials have recently been threatened with disciplinary actions for their alleged involvement in SUEPO publications.”You claim that SUEPO is dishonest in the sense that the criticism raised is predominantly motivated by a degradation of the working conditions at the European Patent Office. We would of course like to reply to this challenge, however, our ability to do so is severely limited by the restrictive interpretation of the EPO administration that staff may not publish internal information that is not already public. In fact, officials have recently been threatened with disciplinary actions for their alleged involvement in SUEPO publications. In the following we therefore limit ourselves to summarising material which has already been published

Much of the material we cite is also available on the SUEPO website (www.suepo.org).

1. Frustration of EPO staff

“It was reported that in a survey conducted by the staff union in April 2004 among some 1,300 patent examiners, more than three-quarters agreed with the statement that productivity demands from the EPO’s managers did not allow them to enforce the quality standards set by the European Patent Convention.”The frustration of the EPO staff about the way their Organisation is governed is not new and is very well documented. One of the earliest publicly available reports on staff discontent as expressed in staff surveys comes from none other than the highly reputed scientific journal Nature (“Pressured staff lose faith in patent quality”, Alison Abbott, 3 June 2004, Nature vol. 493). It was reported that in a survey conducted by the staff union in April 2004 among some 1,300 patent examiners, more than three-quarters agreed with the statement that productivity demands from the EPO’s managers did not allow them to enforce the quality standards set by the European Patent Convention. And 90% said that they did not have time to keep up to date with advances in their scientific fields.

In a staff survey of 730 examiners, undertaken by the EPO in 2004, only 9% said they believed that the management was “actively involved in improving quality”. The staff surveys subsequently conducted by the EPO in 2006 and 2008 produced similar results. The cause of staff discontent is clearly not the benefit package since the vast majority staff reported their satisfaction with pay and rewards in the staff survey cited in

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the above-mentioned Nature article, and have continued to do so in subsequent surveys. It should furthermore be noted that the earliest warning signals were issued under President Kober, at a time when the staff benefit package was not under discussion (see, for example, the New Scientist article “Go-slow at patent office puts inventions on hold” of 19 February 2000).

“”Regarding the 2008 Staff Survey, the German magazine “Spiegel” reported that staff trust in the Administrative Council was at an exceptionally low level of just 4% (“Tausende Patentamt-Mitarbeiter sind genervt von Chefetage” link Spiegel Online to doc on our website 07.06.2008).The 2004 Staff Survey documented strong dissatisfaction at the difficulties in delivering quality work, and a lack of trust in the Office management in general and the Administrative Council in particular. Regarding the 2008 Staff Survey, the German magazine “Spiegel” reported that staff trust in the Administrative Council was at an exceptionally low level of just 4% (“Tausende Patentamt-Mitarbeiter sind genervt von Chefetage” link Spiegel Online to doc on our website 07.06.2008). This information is
correct. We refer you to CA/93/07 for our interpretation of the similar lack of trust in the Council recorded in the 2006 Staff Survey.

One factor behind the lack of trust towards Office management, at least amongst examiners, is continuous changes in the reporting system resulting in an ever-increasing focus on quantity at the cost of quality, and this in the face of an obvious increase in the size and complexity of the incoming applications (see CA/73/05 “The increased voluminosity of patent applications received by the EPO and its impact on the European Patent System”), a constant increase in the volume of prior art, and what we experience as a decline in willingness to cooperate from many applicants.

“One factor behind the lack of trust towards Office management, at least amongst examiners, is continuous changes in the reporting system resulting in an ever-increasing focus on quantity at the cost of quality…”Research International, the consultants commissioned to undertake the last three staff surveys, already identified in 2004 a huge divide between staff and senior management. They referred to this divide as a culture conflict: on the staff side a culture of quality and on the management side a culture of quantity.

2. Quality of the patents granted by the EPO

SUEPO has consistently and continuously claimed the need for high quality search and examination work, based on first rate classification and documentation, and followed by a comprehensive and high-quality patent information service, in the interest of applicants and the public. Already in 1997 SUEPO issued a first position paper on patent quality, followed in 2002 by the SUEPO working paper “A Quality Strategy for the EPO” and in 2004 by the SUEPO position paper “Quality of Examination at the EPO”. The consistency of approach is evident when consulting subsequent SUEPO papers and interventions on the topic of quality, most recently in 2006 in SUEPO’s position on the questionnaire of the European Commission on the patent system in Europe.

“Already in 1997 SUEPO issued a first position paper on patent quality, followed in 2002 by the SUEPO working paper “A Quality Strategy for the EPO” and in 2004 by the SUEPO position paper “Quality of Examination at the EPO”.”It remains SUEPO’s conviction that the strength of the EPO, and the continued justification for a centralised European Patent Office, resides in the critical mass of staff with the specialised technical, legal, procedural and linguistic knowledge necessary to search and examine patent applications accurately and completely. This is a prerequisite to issue patents with a very high presumption of validity. A presumption of validity is an indication of a confidence in the fairness of the patent system, and fairness is a requirement to ensure that the patent system serves the collective interests of society as a whole rather than those of specific groups.

This is undeniably linked to working conditions at the EPO and therefore of central interest to staff. First, the meaning and purpose of the contribution staff can make to society is undermined if the rights granted are not proportionate to the contribution made by that applicant. Secondly, to achieve the standard of quality required the Office must be able to attract and retain highly qualified scientists, engineers, lawyers and formalities staff, with the necessary language skills. Thirdly, in order to maintain high

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public confidence in the impartiality of the EPO all nationals must be fairly represented, requiring conditions of employment which are sufficiently attractive to persuade staff to expatriate themselves and their families.

“It is, however, rather silent on what measures have been taken to safeguard or increase the quality, and entirely silent on e.g. recent developments in the error rates in granted patents.”In statements directed to the outside world the administration stresses its commitment to quality. It is, however, rather silent on what measures have been taken to safeguard or increase the quality, and entirely silent on e.g. recent developments in the error rates in granted patents. One potentially quality-enhancing measure which has been implemented recently is to increase the “points” allocated to examiners for refusing an application. This partially compensates the higher work input involved in a refusal. However, this change is not reflected at an organisational level, leaving the office with conflicting priorities. Initial feedback also suggests that this measure has resulted in an increase in the proportion of applications which are refused. If true such results support the long held view of staff that the management systems in the EPO have created a bias towards granting. While SUEPO nonetheless appreciates this measure, it should not be forgotten that it was a compromise reluctantly accepted by management following fierce opposition against the latest round of changes to the productivity reporting system, at a cost of 18.000 strike days. In general, the focus of the Office (and Council) remains on productivity and production rather than on quality. This is a source of extreme frustration for staff – at the end of the day, it is the quality of the “end product” which counts. The staff of the EPO are not the only ones who are concerned about the quality of their work. As an example, we refer to a recent report by the British industry association TMPDF.

3. Drive towards decentralisation

A drive towards decentralisation has been recognised very early in the history of the EPO, see e.g. Bossung (2001) on the (lack of) political leadership. However, this tendency has increased in recent years. SUEPO is not alone in noticing this and in opposing it. For a very recent contribution to the debate see the latest entry on Axel Horn’s IP::JUR blog. The decentralisation process received renewed impetus with the Administrative Council’s approval of the proposals contained in CA/120/06, CA/121/06, CA/122/06, CA/123/06 and CA/124/06 detailing the European Patent Network (EPN). While some aspects of these initiatives are potentially beneficial to the users of the European patent system, those same users have stated that they do not want a decentralised patent system and have already “voted with their feet”.

“It is instructive to consider the reaction of applicants to the decision of the Council to stop the EPO performing “special searches” and to force applicants to choose between various national offices for this service (“Special searches handed over to national patent offices”).”The “Utilisation Pilot Project” referred to in CA/121/06 above was initiated to test potential gains in efficiency through the utilisation by EPO examiners of the results of searches carried out in certain national offices (Denmark, UK, Austria, Germany). However, interest was so low that the voluntary nature of participation was abandoned. More than 1000 files have now been processed and the results compared. We have seen the raw results, which do not support the claimed efficiency gains. Information on the pilot outcome pilot is available in the documents CA/147/08 and CA/147/08 Add. 1. Nevertheless, we know that the Project Board, which includes representatives of the participating national offices, claims such gains, seemingly regardless of the results.

It is instructive to consider the reaction of applicants to the decision of the Council to stop the EPO performing “special searches” and to force applicants to choose between various national offices for this service (“Special searches handed over to national patent offices”). This was part of the proposals of CA/123/06. The EPO was flooded with requests for special searches before the deadline expired, often accompanied by letters insisting that the search be performed by the EPO. No information is available about the subsequent handling of special searches by the national offices, for example, numbers requested before and after the change, feedback from applicants, etc. We

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fear that this lack of respect for the legitimate interests of applicants risks becoming the hallmark of the EPO.

“We fear that this lack of respect for the legitimate interests of applicants risks becoming the hallmark of the EPO.”Although the original concept of the European Patent Network was firmly based on the principle of voluntary participation by applicants, we believe that it is no longer intended to adhere to this principle. In view of the lack of interest from applicants for both the “utilisation pilot project” and “special searches” initiatives, and the resulting reactions of many Administrative Council delegations, the impression is that user participation in
such EPN projects will de facto become compulsory (or “office-led” as the EPO management puts it).

4. Conflicts of interest in the Council

The heads of the national delegations in the Administrative Council are almost without exception heads of their respective national patent offices. For many of the national offices their 50% share of the renewal fees constitutes a very substantial proportion of their annual budget (in several cases well over 50%). In their function as heads of national offices these heads of delegation thus have an interest in having many patents granted, and having them granted quickly.

“The heads of the national delegations in the Administrative Council are almost without exception heads of their respective national patent offices.”Again SUEPO is not alone in identifying and publicizing this problem. In the “Interviews for the Future” collected in 2006 by the EPO as part of the Future Scenarios project, Thierry Sueur (Vice-President of Air Liquide, responsible for Intellectual Property, and Chairman of BusinessEurope’s Working Group “Patents”) and Jacques Combeau (Intellectual Property, Air Liquide, and delegate for Business Europe at the
Administrative Council) famously said: “I am convinced that the way the EPO is managed today (by its Administrative Council) is such that it will mean either the death of the EPO or its transformation into a cash machine.” The interview with Dr. Ingrid Schneider also makes highly interesting reading in this respect.

Since 2006 the Administrative Council has taken a decision that is clearly not in the interest of the Organisation, by transferring a total of 720 million EUR in liabilities from the Contracting States (in several cases from the national patent offices directly), to the European Patent Organisation despite the Organisation allegedly being in serious financial difficulty.

5. Motivation of SUEPO

SUEPO is a staff union. It is the very purpose of a union to defend the interests of the staff that it represents, including their financial interests, therefore, we confirm that SUEPO will continue to defend the conditions of staff. However, when conflicts started in the mid 1990s (under President Kober) the staff’s benefit package was not under discussion, the issue was productivity, and staff considered that the measures taken would jeopardise quality. Under President Pompidou staff trust in its governing bodies decreased further, albeit not with regard to attacks on the benefit package.

“Under President Pompidou staff trust in its governing bodies decreased further, albeit not with regard to attacks on the benefit package.”Presently, under President Brimelow, staff benefits are being put into question. The thinking behind this appears to be that financial measures (e.g. performance related pay, loss of career rights) are needed to coerce staff to produce more. This reflects a commonly expressed view of our management that the quality issues raised by staff are a proxy for workload disputes. This view misunderstands completely staffs’ concerns with quality.

In an interview with you, Ms. Brimelow referred to “the “escalator” model of pay that currently exists” in the EPO. This is the sort of statement that would make any union

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jump. However, the new pension scheme being introduced in 2009 will primarily affect future staff. The administration has repeatedly stated that staff in place will not be affected. Future staff, however, will be confronted with a pension system that SUEPO considers both unattractive and socially unjust (at least by European standards) and that – according to statements of the administration – could lower their pensions by 22%. Our fear is that this will provide a disincentive to prospective, highly-qualified staff which the EPO needs to recruit in the future in order to safeguard quality standards.

6. Conclusion

To summarize: although SUEPO will of course resist attacks on the working conditions of staff , it has been calling for actions in order to defend the quality of the work of the Office, which it considers to be of paramount importance to the European public and industry, and to defend the interests of future staff. SUEPO will continue to fight against the trend towards a high volume low quality patent system, since this seeks to reduce the work of staff to that of automatons serving the limited financial interests of some groups rather than the interests of society as a whole.

“SUEPO will continue to fight against the trend towards a high volume low quality patent system, since this seeks to reduce the work of staff to that of automatons serving the limited financial interests of some groups rather than the interests of society as a whole.”Current staff have paid a high price, not only in the form of pay deductions due to
strikes, but also the social unrest and associated stress that this conflict causes. Considering the importance of these issues SUEPO continues to be astonished by the apathy of important decision makers with regard to the erosion of values within the patent system, and continued lack of real public debate on the matter.

In the circumstances, we consider that your suggestion that SUEPO is acting out of self-interest is disingenuous, and puts in doubt the independence and impartiality of your reports.

For your information, we intend to make this letter available to all EPO staff.

Yours sincerely,

Mr. A. Wansing
SUEPO central executive committee

Mr. E. Daintith
SUEPO Munich

Mr. P. Bocking
SUEPO Berlin

Mr. J. Areso
SUEPO The Hague

Ms. C. Schuhmann
SUEPO Vienna

.cc A. Brimelow

Explaining this to non-technical patent lawyers may mean it will just fall on deaf ears. Either way, recently we saw more evidence of pressure on examiners to speed up or lose their vacation. There is also accelerated examination for large businesses. A lot of what SUEPO wrote almost a decade ago is still applicable and it’s probably getting worse under Battistelli. He is trying to crush SUEPO itself (the messenger). As noted in the letter above, a culture of secrecy inside the EPO (limiting access to information by the media, using threats) was part of the problem. █

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