12.17.15

Members of the European Parliament Slam the EPO for Patent Maximalism That Led to Granting of Patents on Plants

Posted in Europe, Patents at 11:45 am by Dr. Roy Schestowitz

In pursuit of ‘efficiency’ or ‘products’ the EPO is getting unhinged from public interests

Summary: The increasingly-deranged policy of the European Private [sic] Office is getting the attention of European politicians, whereupon the Office publicly receives flak

THE pressure on the EPO is growing and it comes from a growing number of sources, too. Information overcomes massive spin campaigns (costing nearly $90,000 per month) and action inevitably ensues.

Techrights is still under various kinds of attacks, not just legal threats from the EPO. As some readers may have noticed, due to growing levels of abuse against the site, there is now very aggressive/heavy filtering (some legitimate visitors get banned for nearly a couple of hours at a time). Even the EPO has some IP addresses contacting Techrights periodically and very heavily (we just assume that it’s the I.U. [1, 2, 3, 4, 5, 6, 7] because of the Office-wide ban).

Yesterday our filter got some IP addresses from “European Parliament” banned for an excessive number of requests, which was — in retrospect — quite unwise. People from the European Parliament were probably just researching stuff. Today they formally complain about the EPO’s expansion of patent scope to seeds or plants. Here is a new press release from the European Parliament: (published just hours ago)

A ban on the patenting of products obtained by conventional breeding techniques, such as crossing, is essential to sustain innovation, food security and small businesses, says a non-legislative resolution voted by Parliament on Thursday. MEPs, surprised by the European Patent Office decision to allow patents on such products, call on the EU Commission to clarify existing EU rules as a matter of urgency and protect plant breeders’ access to biological material.

MEPs note that plant breeding is an innovative process practised by farmers and farming communities since the birth of agriculture. They argue that access to biological plant material is vital to encourage innovation and the development of new varieties to ensure global food security, tackle climate change and to prevent monopolies. Products obtained from essentially biological processes, such as plants, seeds, native traits or genes, should therefore be excluded from patentability, they insist, in a resolution approved by 413 votes to 86 , with 28 abstentions

Parliament calls on the Commission to clarify existing EU rules – particularly the EU’s Biotech directive – as a matter of urgency and to forward this clarification to the European Parent Office (EPO), so as to ensure that products obtained by conventional breeding cannot be patented. MEPs also insist that the EU and its member states must safeguard access to and use of material obtained from essentially biological processes for plant breeding.

And the EPO wants us to believe it's 'green' and pro-environment…

There is some more background in the remainder of the above press release. It’s reassuring to see that, in spite of the EPO’s bullying of critical delegates and critical politicians, the European Parliament is prepared to take on the EPO. It takes courage to stand up to these thugs, based on their track record so far. █

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Benoît Battistelli’s EPO Continues Its Self-Congratulatory PR Charade, Neglecting to Even Acknowledge the Catastrophes Therein

Posted in Deception, Europe, Marketing, Patents at 11:14 am by Dr. Roy Schestowitz

The EPO’s marketing/PR people just put bad news on hold, won’t comment on it

Summary: The management of the European Private [sic] Office (EPO) continues to congratulate itself every other day, almost as though nothing has gone amiss and the EPO is an heroic leader of green energy, humanitarian unity, and compliance

Yesterday (late at night in particular), due to a quickly-growing backlog we published about half a dozen articles about the EPO. Watch Battistelli milking ISO 9001 (warning: epo.org link), taking advantage of something which we covered in this old article and of ISO, another rubber-stamping organisation. After greenwashing and additional UPC glamourisation it’s apparently time to spread the false perception of EPO being in compliance (e.g. with the law). Clever spin.

It’s no secret that the Office is now lobbying (and wants a monopoly on this kind of lobbying, as we showed last night) for the UPC. Words like “Community”, “Unitary”, “European” and so on are supposed to make occupation of Europe by large (and usually foreign) corporations sound not just benign but also desirable. Watch Éanna Kelly from Science|Business acting as some kind of megaphone or courier for Battistelli in this new article that’s looking more like a press release. Is this part of the expensive PR campaign? As one person put it earlier today in IP Kat comments, “880k euros well spent?” (alluding to this leak of the FTI Consulting contract)

Here is the article in which this comment can be found. Among the comments we also see mentioned “AIPPI and Epi finally woke up from their long sleep. Better, because more courageous and complete, is the letter of AIPPI. Now BB [Battistelli] will get slaps from all directions on all issues: wrong on DG3, unrespectful of rules of law, disregard for due process, harassment of employees etc. He will have to get out of here with his team, and quick. At last…!”

The article is relatively short and in it Merpel wrote about letters which we already covered (before IP Kat) and added: “It’s anyone’s guess where this will go next. Merpel’s guess, based on another rumour she has heard, is that the AC will take the reform of the Boards entirely out of the hands of Mr Battistelli, and will develop its own proposals, perhaps through a sub-committee or within Board 28 (its internal management committee).”

In IP Kat comments, more so than in any other site, we suspect that the EPO (or some kind of PR proxy or EPO apologists) use distraction as an art form. In Merpel’s article there happens to be a link to this AMBA letter. Here is the full text of the letter:

Re: Orientation Paper on the Structural Reform of the BoA

AMBA has seen the Presidium’s letter to the AC in response to CA/98/15 (see Annex 1) and fully endorses it. We would like, however, to make some further comments.

1. The short timeframe foreseen in CA/16/15 was used to justify provisional measures, notably a freeze on recruitment. After nine months, CA/98/15 represents a rather small change with respect to CA/16/15. In this time, however, the staffing situation in the Boards has become critical, approaching 20% of posts are vacant, despite considerable user protests about backlogs and timeliness. Boards in some technical areas have insufficient members to handle cases.

2. AMBA has put forward concrete written proposals to the Task Force. We, however, have never seen a single document or proposal before the publication of CA/98/15. Moreover, the document manifestly takes no account of our submissions, despite assurances that they would be reflected in any proposal. The paper also takes no account of the comments of the AC members in the Council meeting of March 2015, or of the user survey results; rather, it misrepresents them (see Annex 2).

3. The paper states that the Office has asked an independent expert about the legality of the delegation of presidential powers and functions [11]. We understand that this advice was first sought after the problems of CA/16/15 were highlighted. If there is no answer after nine months of study, it must be doubtful whether the delegation can possibly have the desired effect of clearly separating the judicial function from the executive. But, if delegation turns out not to be legal or not clearly to increase independence, the whole proposal is without foundation. It is premature to consider further measures, especially ones that the Council, board members, and users have identified as entirely secondary or misconceived, before resolving this crucial issue.

4. In our view, all the changes introduced in CA/98/15 are detrimental to both actual and perceived independence and do not solve the problem highlighted in decision R 19/12. The proposal now places considerably more power in the hands of the President of the Office: proposing the President of the BoA [9] and the Rules of Procedure [17], and involvement in setting up the BoAC [18]. The BoAC now has more influence from the AC and still no voting representative of the BoA [19] despite the fact that AMBA, the Presidium, some delegations, and virtually all the responses to the user consultation have raised doubts as to whether a body of the AC should be involved in the running of the BoA. Contrary to what is stated [13], the BoAC is in no way limited to general advisory and consultative roles. There is no explanation of, and no mechanism for, assuring the Boards’ autonomy under the BoAC or the new President of the BoA. The removal of control from the Boards of the Rules of Procedure and conditions for re-appointment must reduce autonomy. Association of the Members of the Boards of Appeal / European Patent Office

5. AMBA and the Presidium jointly presented an alternative proposal (see Annex 3), involving a Senate for the Boards of Appeal, based on the existing Presidium, but in an extended composition that balances the independence of the BoA with the understandable wish of the AC to be more informed, and more involved about the functioning of the BoA (accountability). It is a proposal that requires minimal changes to the existing structure and which does not rely on delegation of presidential powers, but which is compatible with a BoAC as a sub-committee of the Council.

6. The setting of Rules of Procedure in national jurisdictions is a complicated matter that must be understood in their proper contexts. CA/98/15 glosses over this [15] and does not present the Council with sufficient information to make an informed judgement. It may be noted, however, that the CJEU and the ECHR decide their own Rules of Procedure. Amendments to the Rules of Procedure for the UPC are proposed by its Presidium (Art. 15(3)(a)).

7. The proposal puts the Boards back in the Office’s “technical” career path (as defined in Art. 47 ServRegs) [24]. The Council recognised this as inappropriate for the Boards, which is why a transitional system was adopted. Not mentioned is the Boards’ paper regarding a career system. The main points were that the principles of judicial independence and security of tenure require that re-appointment should not be based on performance and that all board members (or chairmen) do the same job so that proficiency levels and promotion within a job level make no sense and would give a strange impression to the parties. The paper also proposed various scenarios to address these problems, by having grade advancement at re-appointment.

8. No delegate or user group has indicated any conflict of interest if an ex Board member works as a patent agent. If there were such a conflict, it would, a fortiori, not be possible for practising patent attorneys to sit as judges in the UPC.

9. Since a move outside Munich appears to be against the EPC, it provides an additional argument for those challenging the legality of the whole system. Moreover, again no delegate or user group sees a need to move out of Munich and most see no need to move at all. The alternatives presented in the paper are all associated with major disruptions and/or increased costs. We think that the alternative of remaining in the Isar building should be seriously considered.

The Boards of Appeal will be an essential part of the European Patent system for many years to come. AMBA therefore appeals to the Council to stop the ad-hoc interim measures that impede their functioning, and to critically analyse alternatives before taking any decisions that might damage their standing and their reputation and might be difficult/costly to reverse (relocation, reduction of posts, legislation etc.). We also support the idea of meeting with members of the AC and independent external experts to help find a common solution to this issue.

Yours sincerely,

The AMBA Committee.

Not all is well at Eponia (understatement of the decade), but outsiders who just follow the EPO based on its “news” section and/or Twitter account won’t know a thing!

There’s a lot of malicious stuff going on inside the EPO right now (irrespective of the imminent Christmas break, which is exploited by patent bigwigs to the detriment of examiners), so we will definitely release many documents later today. It’s my birthday today, but defending law-abiding staff representatives at this crucial time is a lot more important. Some believe that the EPO plans to just sack (if possible) the suspended staff representatives before Christmas. We strongly doubt it, as it has been over a year since a judge was suspended and it’s still an ongoing issue of heated dispute. █

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12.16.15

Battistelli Wants to Make “Lobbying in the Field of European and Unitary Patent” a “Prohibited Activity” for All Except Himself

Posted in Europe, Patents at 8:08 pm by Dr. Roy Schestowitz

Totally drunk on power, Battistelli is now trying to ban more people from speaking

Battistelli’s alleged infatuation with the French wine industry (to be covered at a later date) gone too far?

Summary: Benoît Battistelli’s globalist/internationalist ambitions (in practice a servitude to large multinational corporations) defended or shielded using the widely-discredited roadmap in CA/98/15

THE MANAGEMENT of the EPO — and Benoît Battistelli in particular — loses faith even among its ‘customers’, or representatives such as AIPPI and EPI. It means that the management is left with almost no allies, only foes or perceived enemies (a consequence of the management trying to brutally crush its critics, even reporters).

A reader who is intimately familiar with the EPO sent us a detailed explanation of the current situation. This relates to what we previously showed (with very extensive proof) about suppression of free speech or diversity of opinions inside the EPO. “Some observations about CA/98/15″ is what our reader called it, alluding to the document responded to by AIPPI and EPI (we posted their letters earlier this evening). Here is what our reader wrote:

The document CA/98/15 has been discussed a lot recently in IP circles.

For example:

http://ipkitten.blogspot.com/2015/12/boards-of-appeal-tell-ac-we-were-never.html

A copy of the document itself can be found here:

http://eplaw.org/document/epo-ca9815/

It’s Battistelli’s proposed “roadmap” for the planned reform of the Boards of Appeal.

Section IV.C deals with the topic of “conflict of interest” situations and refers to “the need to avoid real or apparent conflict of interest situations, including in post-service employment”.

Amongst other things, it contains a proposal for a “cooling-off period” with restrictions in post-service employment for staff who leave the EPO.

Paragraphs 38 and 39 deal with “prohibited activities”.

According to paragraph 38 “the scope of prohibited activities should be so defined as to ensure that knowledge gained while in service may not be used to the advantage of private interests, considering notably the risk of impairing equality among users of the public service rendered by the Office”.

Paragraph 39 states that “the activities covered by the cooling-off period would be thus primarily those closely related to the Organisation’s core mandate, e.g. patent granting activities or lobbying in the field of European and Unitary Patent”.

This is very interesting because here the President is basically telling the Administrative Council that “the Organisation’s core mandate” includes not only patent granting activities but also “lobbying in the field of European and Unitary Patent”.

This seems to be complete nonsense because Article 4(3) of the European Patent Convention states the following:

“The task of the Organisation shall be to grant European patents. This shall be carried out by the European Patent Office supervised by the Administrative Council.”

http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar4.html

The “core mandate” of the EPO is the granting of European patents – full stop.

There is nothing in Article 4 or anywhere else in the EPC about “lobbying in the field of European and Unitary Patent”.

So – apart from perhaps unintentionally revealing Battistelli’s own internal mindset about these matters – what is the rationale behind the attempt to present “lobbying in the field of European and Unitary Patent” as part of the “core mandate” of the EPO?

I did some research and found out the following:

A former Vice-President of the EPO was a gentleman by the name of Manuel Desantes Real who is a Spanish professor of law at the University of Alicante:

http://www.ir-facility.org/manuel-desantes

http://www.asipicartagena2015.com/en/users/manuel-desantes

Prof. Desantes was the Vice-President of Directorate-General 5 (Legal and International Affairs) of the EPO between 2001 and 2008.

Since leaving the EPO in 2008, Prof. Desantes has been quite active lecturing and publishing articles and commentaries about Intellectual Property matters.

One of his favorite topics is the Unitary Patent.

http://conflictuslegum.blogspot.com.es/2013/04/manuel-desantes-el-tribunal-de-justicia.html

https://www2.uni-hamburg.de/fachbereiche-einrichtungen/fg_ta_med//aktuell_is/esf/desantes_manuel_esf_hh2014.pdf

http://ipkitten.blogspot.com/2015/03/the-eu-patent-package-dangerous.html

http://sms.cam.ac.uk/media/1906853

Not only has he lectured and published on this topic, he was also involved in the legal challenges mounted by Spain before the CJEU.

“Professor Manuel Desantes (University of Alicante, Spain) presented Spain’s second legal challenge before the CJEU after the Opinion of the Advocate General Mr. Ives Bot in Case C-146/13 Spain v Parliament and Council. Professor Desantes underlined the inconsistency of the Opinion and noted that, although both a Unified Patent Court (UPC) and a European patent with unitary effect are certainly needed, it should be done on the foundations of a robust system. The unitary patent protection system is not robust enough in its current state, Desantes argued.

“In his view, the shortcomings are: the mix of EU and International Law procedures, the vague concept of “enhanced cooperation” in the Unitary Patent Regulation and the presupposition of economical aspects.”

https://qmjip.wordpress.com/2015/01/20/preparing-for-the-unitary-patent-package-event-review/

Now, as can be seen from the above, Prof. Desantes is not an opponent of the general idea of a Unitary Patent. He takes the position that “a Unified Patent Court (UPC) and a European patent with unitary effect are certainly needed” but he sees some shortcomings in the current proposals.

So he takes what could reasonably be called “a critical stance” and tries to stimulate an informed public debate about what he sees as the defects in the current proposals. That sounds reasonable enough and it’s hard to see how anybody could object to that.

However, from what I have heard, it seems that Prof. Desantes’ “post-service” activities since leaving the EPO have greatly irritated Battistelli.

He seems to consider such activities as trespassing on what he incorrectly claims to be a “core mandate” of the EPO: “lobbying in the field of European and Unitary Patent”.

It seems that Battistelli is keen to claim his own personal monopoly on such activities and would like to find a way to muzzle critical “insiders” like Desantes when they leave the EPO. He apparently objects to anybody who makes efforts to express “critical views” and/or stimulate informed public debate about these matters.

As far as I can work out, this seems to be one of the key motivating factors behind the proposed restrictions in post-service employment which are discussed in CA/98/15.

We hope that more of our sceptics may, in due course, realise why we have been worried about the Unitary Patent all along (even in previous incarnations when it was given other catchy titles). Its only big fan is Battistelli and Battistelli has virtually no fans; there are only many people who are afraid of Battistelli, who now acts like a lunatic dictator and throws a fit at any opposing view. We will continue to write about the Unitary Patent/UP/UPC in conjunction with coverage about systematic gagging of Battistelli’s critics. There is a class war going on at the EPO and it’s clear whose class Battistelli belongs to (it’s certainly not the European SMEs’ class). █

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European Patent Institute (EPI) Not Happy With the EPO’s Terrible Treatment of the Boards of Appeal

Posted in Europe, Patents at 7:20 pm by Dr. Roy Schestowitz

Summary: The European Patent Institute, or epi (all lowercase) as it prefers to refer to itself, opposes many of the suggestions made by the EPO, which effectively weakens the boards and wants them sent to exile

Not only AIPPI is upset at the EPO‘s attacks on the independent boards. Another letter, formally sent several days ago, expresses similar concerns but does so a lot more gently and politely (starts with positives, followed by negatives). Here it is in full. We have highlighted some key sentences in larger fonts.

epi

European Patent Institute • Bayerstrasse 83 • 80335 Munich • Germany

Administrative Council of the EPO
Bob-van-Benthem-Platz 1
80469 Munich

11^th December, 2015

epi comments on CA/98/15 – Orientations for the Structural Reform of the EPO Boards of Appeal

Dear Members of the Administrative Council,

“We are disappointed to see that CA/98/15 does not address the urgent issue of the unfilled posts in the BoA.”epi has had an opportunity to study CA/98/15 as part of its continuing effort to assist the Administrative Council (AC) in considering the status of the Boards of Appeal (BoA) at the EPO. epi provided a detailed response to the consultation from the Office and wishes to continue to contribute to the process. This is of particular importance to epi’s members as the vast majority of representatives who appear before the BoA are epi members.

Unfilled Posts in the BoA

We are disappointed to see that CA/98/15 does not address the urgent issue of the unfilled posts in the BoA. epi is aware that according to the Business Distribution Scheme for 2016, there are 30 unfilled posts, 23 for technical members and 7 for legal members, and that this is affecting both the timeliness and quality of the decisions of the BoA. Some of the BoA have had to issue communications indicating that they are unable to process some appeals because they lack technical members with appropriate technical skills. The general length of appeal proceedings is rising because of the shortage of staff, epi therefore considers that the AC should take immediate action to fill the unfilled posts as soon as possible.

“In particular, epi considers that the Office should not be involved in appointing or re-appointing members of the BoA or the EBoA.”There may be a belief that there will be less need for the BoA once the UPC comes into force. However, epi considers that this belief is misplaced, certainly in the short term and even in the long term for appeals relating to applications. As appointments to the BoA are only for 5 years, it would be possible to reduce the number of appointments and/or re-appointments if the UPC does draw work away from the BoA.

General Comments on CA/98/15

epi was sent and has had access to many of the responses to the EPO’s consultation and, from studying these, it appears that the degree of acceptance of the original proposals in CA/16/15 may have been overstated. For instance, epi agreed that reform of the BoA was welcomed and that CA/16/15 was a good basis for further work. However, epi, and many others, did not agree that CA/16/15 was a sound proposal. Rather, epi, and others, suggested that the proposal needed changes before it would become “sound”. It is suggested that the members of the AC should study all the responses and come to their own conclusions.

---

Legal Basis

It is clear that the Office has seen that there may be legal problems with its proposal, epi appreciates the fact that the Office has asked for independent legal advice from an expert on the potential legal problems. However, epi considers that it is essential for the members of the AC and interested parties to see not just the advice but the instructions on the basis of which the advice was prepared. If you do not know the question, you cannot tell whether the answer is useful.

“The BoA and the EBoA will be making decisions regarding the operation of the Office or on references from the President of the Office.”As epi noted in its response to the consultation, it is essential for there to be a proper legal basis for “attributing” the powers for dealing with the BoA to the proposed new President of the BoA. It is clear that, at present, in many of the functions performed by the AC in connection with the BoA, the EPC specifies that the AC must consult the President of the Office. However, if the BoA are to be truly independent of the Office, then the requirement for consulting with the President of the Office should no longer apply, epi would favour any solution to this problem which does not require amendment of the EPC.

It appears that consideration should be given not only to the “attribution” of the powers of the President of the Office but also to the effect of Articles 6 and 7 EPC and the Protocol on Centralisation (see below).

External Members of the Enlarged Board of Appeal

epi supports the proposal that there should be external members of the Enlarged Board of Appeal (EBoA) when the EBoA is considering petitions under Article 112a EPC. These external members should be present in both 3- and 5-membered panels.

Unit Headed bv the President of the BoA

epi considers that the creation of a President of the BoA and the removal of the office of Vice-President of DG3 is a positive move. However, epi does not see the need for a completely new “unit” as epi considers that the existing Presidium of the BoA, with suitable alterations in composition, would function effectively, epi suggests that the Presidium should include external members of the EBoA and observers.

Transfer of Powers

epi also supports the “attribution” of powers from the President of the Office to the President of the BoA. However, epi considers that, for this to be effective, the Office should not be involved in matters related to the BoA at any level below the level of the AC.

In particular, epi considers that the Office should not be involved in appointing or re-appointing members of the BoA or the EBoA. The BoA and the EBoA will be making decisions regarding the operation of the Office or on references from the President of the Office. If the Office is involved in the appointment and re­appointment of members, then there will remain a perception that the BoA are not independent of the Office. It is for this reason that epi suggested that there should be a Judiciary Committee (see below).

---

Boards of Appeal Committee

Although epi is in principle in favour of a Boards of Appeal Committee (BoAC), epi considers that the structure for the BoAC proposed in CA/98/15 is not properly balanced. In particular, the only person on the BoAC from the BoA is the President of the BoA (without a voting right), epi considers that there should be more members of the BoA on the BoAC. As explained in epi’s response to the consultation, epi considers that there should be less representation from the AC and a chair who is not a member of the AC. Also, for the reasons explained above, epi considers that the Office should not be represented at meetings of the BoAC. The AC will still have overall decision-making power as any proposal from the BoAC must be decided on by the AC.

“Also, for the reasons explained above, epi considers that the Office should not be represented at meetings of the BoAC.”epi still considers that there should be a Judiciary Committee, as explained in epi’s response to the consultation, as well as the BoAC. The Judiciary Committee should be responsible for appointments and re­appointments to the BoA.

epi considers that the composition of the BoAC is especially important if, contrary to epi’s suggestion, the BoAC is solely responsible for providing recommendations to the AC regarding appointments and re­appointments. epi considers that it is essential for the appearance of independence that the appointments and re-appointments are made on objective grounds of competence and having independent members and BoA members on the BoAC will ensure that it is seen that such competence is independently assessed.

“epi considers that it is essential for the appearance of independence that the appointments and re-appointments are made on objective grounds of competence and having independent members and BoA members on the BoAC will ensure that it is seen that such competence is independently assessed.”Paragraph 13 of CA/98/15 refers to the BoAC working on a “general level”, epi agrees that this should be the case but considers that it will be necessary for there to be clear terms of reference for the BoAC to ensure that it only works at the “general” level.

epi appreciates the proposal that there should be observers from Business Europe and epi on the BoAC.

Rules of Procedure

epi also agrees that the BoAC, in a suitable composition, could be responsible for drafting the Rules of Procedure (RoP) for the BoA and the EBoA. However, epi considers that proposals for the RoP should not be made by the Office, contrary to the suggestion in paragraph 17 of CA/98/15. Since the BoA and the EBoA decide on the actions of the Office, any involvement of the Office in providing the RoP would be seen as significantly reducing the independence of the BoA.

“Since the BoA and the EBoA decide on the actions of the Office, any involvement of the Office in providing the RoP would be seen as significantly reducing the independence of the BoA.”It is epi’s view that the BoAC should consult widely about any proposed amendments to the RoP and, in particular, should consult the Presidium and users before any amendment is presented to the AC for approval.

The second half of paragraph 15 of CA/98/15 indicates that users would like to see a change in the RoP to ensure better predictability and consistency of proceedings, epi agrees that measures should be taken to ensure better predictability and consistency of proceedings. However, epi considers that this does not require only an amendment to the RoP. Predictability and consistency also depends on the attitudes to the individual Boards, not on the RoP.

Human Resources

epi considers that it will be essential to have appropriate contractual arrangements for the BoA but, apart from the following, has no comment on the present proposals. The only comment relates to the point in paragraph 26 of CA/98/15 about “budgetary constraints”. Again, in order to ensure the independence from the Office, epi considers that any budgetary constraints should be determined solely by the AC. It will be necessary for the AC to instruct the Office to make appropriate contributions from the Office’s revenues to the BoA as the level of the appeal fee will not cover the operational costs of the BoA.

---

Conflict of Interest

“The location of the BoA will have no impact on the perception of independence.”epi is concerned that CA/98/15 appears to be arguing for overly onerous rules on conflicts of interest. If such rules are too onerous, they will deter people from outside the Office applying for positions in the BoA, especially if there are onerous restrictions on what such a person can do after leaving the BoA. epi is therefore in favour of a principles-based code of conduct rather than a prescriptive set of rules.

Premises

It appears to epi that the discussion of moving the BoA to different premises should be treated separately from any discussion on institutional reform. The location of the BoA will have no impact on the perception of independence. CA/98/15 refers in paragraph 58 to the perception of independence being lower if the BoA remain in Munich. However, there does not seem to be any problem with having the DPMA and the Bundespatentgericht in Munich or the Dutch Patent Office and the Dutch Courts in The Hague. The UK Intellectual Property Office was not moved to Newport because of any perceived lack of independence of the UK Court. Also, the branch of the Office in The Hague is physically remote from the seat of the Office in Munich but there is no perception that the branch at The Hague is independent of the seat in Munich. It is the institutional legal arrangements which will make the BoA independent of the Office, not any possible physical separation.

“It is the institutional legal arrangements which will make the BoA independent of the Office, not any possible physical separation.”Before a decision is taken on premises, as noted above, epi would also suggest that the AC should have a sound view on the legal basis for moving the BoA to a different location, without the need to change either Articles 6 and 7 EPC or the Protocol on Centralisation, epi notes that CA/98/15 does not give any cost estimate for the option of not moving the BoA at all.

Summary

epi continues to support the AC and the Office in their considerations of the structural reform of the BoA and considers that CA/98/15 is a helpful contribution. However, as noted above, epi considers that there are still areas where further detailed analysis is needed, epi looks forward to contributing further to the analysis at the forthcoming AC meeting.

epi repeats that, in the medium term, the way to improve the situation of the BoA is to fill the unfilled posts so that the BoA have the appropriate technical skills to decide on the large backlog of cases it already has.

Yours sincerely,

Tony Tangena

President

Will the EPO and its AC buddies (often acting more like the President’s lapdogs) take this letter seriously or will they continue to disregard input even from the stakeholders who pay the EPO? This is getting serious and rapidly becoming too much to be bearable. █

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AIPPI Sends Angry Letter to the Administrative Council Regarding the EPO’s Attacks on the Boards and Staff Unions, Saying it Damages the EPO’s Function and Reputation

Posted in Europe, Patents at 6:40 pm by Dr. Roy Schestowitz

Summary: Patent practitioners and their representatives are upset at the European Patent Office and specifically at Benoît Battistelli; they demand action by Jesper Kongstad, Chairman of the Administrative Council

EARLIER today the EPO‘s management probably felt a little nervous knowing that the Administrative Council (part of the European Patent Organisation that has the power to sack Benoît Battistelli) had gathered with delegates and received lot of input from peripheral stakeholders. Here is what AIPPI, a widely respected body, wrote and sent earlier today (emphaisis with large fonts is ours):

AIPPI

Vereniging voor Intellectuele Eigendom

Nederlandse groep van de Association Internationale
pour la Protection de la Propriété Intellectuelle (AIPPI)

European Patent Organisation
Administrative Council
C/o Mr. Jesper Kongstad, Chairman
Bob-van-Benthem-Platz 1
80469 Munich
Germany

Also by e-mail:
jko@dkpto.dk
council@epo.org
council_secretary@epo.org

The Hague, 16 December 2015

Dear Mr. Kongstad,

We are writing to you in your capacity as Chairman of the EPO Administrative Council. The Vereniging voor Intellectuele Eigendom, the Dutch group of the Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI), is highly concerned about recent developments at the European Patent Office and requests that you bring this letter to the attention of the entire Administrative Council.

“Even patent judges from across Europe have expressed criticism in this regard.”For some time now there has been a debate about the independency of the EPO Boards of Appeal. These Boards have a final judicial say on the validity of European Patents in the sense that there is no further legal recourse if a patent is revoked by a Board of Appeal. Patents are valuable intellectual property rights and essential for a good climate for innovation in Europe. They enjoy the protection of a fundamental right under Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). As such, applicants for patent protection and patent proprietors are entitled to an adjudication by an independent and impartial tribunal established by law under Article 6 of the European Convention on Human Rights.

The independence and impartiality of the EPO Boards of Appeal from the EPO executive, including the President of the EPO, is therefore crucial and does not allow for any compromise. Currently there are insufficient guarantees for the independence, which may also cause concern with regard to the impartiality. This has already been found by the Enlarged Board of Appeal itself and there is consensus among the interested circles that this needs to be improved. Even patent judges from across Europe have expressed criticism in this regard.

“Moreover, it seems that the President has misinformed the EPO Administrative Council on the involvement of the Boards of Appeal themselves in the development of this proposal.”It is very worrying that the process towards more independence seems to be dominated by the President of the EPO who does not appear to take into account input from for instance the Boards of Appeal themselves. On 4 December 2015 the President of the EPO presented an updated proposal for the reform of the Boards of Appeal to Board 28. This proposal does not contain sufficient guarantees for the independence and impartiality of the Boards of Appeal, since the EPO executive and the President still have a role of oversight and managerial control in the new setting. Any control of the executive over the judiciary could be considered a violation of Article 6 of the European Convention on Human Rights and the underlying principle of the separation of powers, and is therefore unacceptable because there should be no doubt at all that the EPO Boards of Appeal are independent and impartial.

Moreover, it seems that the President has misinformed the EPO Administrative Council on the involvement of the Boards of Appeal themselves in the development of this proposal. That at least is the position taken by the Presidium of the Boards of Appeal in a letter to the Administrative Council of

Secretariaat AIPPI Nederland
Lodewijk de Vromestraat 25,3962 VG Wijk bij Duurstede, The Netherlands
tel. +31 343 575 397 – Fax +31 343 594 566 – e-mail: secretariaat@aippi.nl – www.aippi.nl
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1 December 2015. The fact alone that the Presidium felt it necessary to send such a letter is highly unusual and very alarming indeed.

The ultimate consequence of these developments could be that national courts, and the future Unified Patent Court, do not consider themselves bound by decisions from the Boards of Appeal or even discard them as not constituting relevant case law. This would create a legal uncertainty which is highly undesirable.

“The damage that has been done to the EPO and its reputation, and to the interests of the European industry, can unfortunately be seen as a result of the conduct of the President of the EPO…”Additionally, an immediate effect is that the reputation of the EPO as an organisation which safeguards the interests of patent applicants and proprietors and of their competitors is at risk. We have noticed an increasing flow of negative publicity on these issues in the media, including high quality newspapers. The damage that has been done to the EPO and its reputation, and to the interests of the European industry, can unfortunately be seen as a result of the conduct of the President of the EPO, who seems to be unable so far to approach the issue in a balanced way with proper respect for the separation of powers.

Unfortunately, the public image that currently exists of the EPO is further damaged by another issue: the conflict on employment conditions, efficiency and “social democracy” at the EPO. We have no doubts that reforms are needed at the EPO. The Administrative Council has elected the President in full support of his roadmap and we do not question that roadmap as such.

“In fact, it appears that the right of EPO employees to organize themselves in unions is not recognized. Instead, it seems that union officials are investigated and even interrogated by an investigation unit and then suspended. These suspensions are accompanied by cuts in their salaries.”However, in the execution of these reforms an increasing number of conflicts has arisen. As we understand from media coverage, but also from information obtained from persons who are directly involved, these conflicts are not handled in a way that enhances the probability of achieving workable results. Instead, the approach of the President towards these issues and conflicts tends to aggravate them without any necessity. The number and nature of the conflicts that we hear and read about appears to clearly exceed the limit of isolated incidents.

As we understand, there is no normal dialogue with the workers unions. In fact, it appears that the right of EPO employees to organize themselves in unions is not recognized. Instead, it seems that union officials are investigated and even interrogated by an investigation unit and then suspended. These suspensions are accompanied by cuts in their salaries. In our view, it is impossible to achieve any result in this way. There are also reports of numerous conflicts with other members of staff. An increasing number of repressive rules and regulations appear to have been introduced which do not seem to fit in at all with a modem professional organisation. All of this has led to an increasing number of staff demonstrations.

The way these issues are being handled by the President distracts the attention from the necessary reforms as such and instead leads all attention to the repressive approach chosen by the President. Again, this is leading to grave and maybe irreparable damage to the reputation of the EPO in Europe and abroad.

“Again, this is leading to grave and maybe irreparable damage to the reputation of the EPO in Europe and abroad.”Because of these two issues, i) the endangering of the independence of the Boards of Appeal and ii) the way of handling of conflicts on employment conditions, which are both characterized by an intolerant approach by the President of the EPO so far, at least in the eye of the majority of the media, the position of the EPO itself has come at risk.

Regardless of which solutions should be adopted to guarantee the independent position of the Boards of Appeal and to resolve the social unrest at the EPO, it is imperative that the Administrative Council takes immediate action to terminate the destructive approach chosen by the President of the EPO.

We therefore urge and beg the Administrative Council to take control of the situation and prevent that further damage is done to the EPO.

Yours sincerely,
On behalf of the Vereniging voor Intellectuele Eigendom,

Koen Bijank
President

Wouter Pors
Secretary

NB: to avoid a potential conflict of interest, we did not consult our board-members D.J. de Groot and T.H. Tanja-van den Broek

Kongstad recently did nothing when he had to chance to. If he fails to take action in spite of growing anger all around Europe, then maybe it’s time to remove Kongstad too. He seems to be figuratively in bed with Benoît Battistelli. █

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New WIPO Figures Reinforce Reality Where More Patents Needn’t Imply More Innovation, Just Lower Standards

Posted in America, Asia, Europe, Patents at 5:57 pm by Dr. Roy Schestowitz

Unless China is truly the king of innovation whereas Europe as a collective whole just a distant fifth (behind Japan and Korea), the number of patents granted is mostly indicative of the ease of being granted patents in different parts of the world

Summary: Response to data from WIPO and interpretation by Managing Intellectual Property (MIP), where the number of patents granted is conveniently treated as proportional to (or surrogate of) level of innovation

THE latest WIPO data is out and it’s interesting because it shows that, as MIP put it, “China also received the highest number of patent applications” (utter junk patents, with little or no quality).

The USPTO with its notoriously low standards (acceptance rate is at around 92%) is second. Is this something to be proud of? We think not. In the US, 92% of patent applications are (eventually) considered a “success”, but what kind of success is this? That’s just the de facto definition or example of “rubber-stamping” organisation (like ISO), which is what China’s patent office effectively became when the bubble started off. Notice how friendly Benoît Battistelli is with China these days, his imitation of human rights abuses aside.

“The USPTO with its notoriously low standards (acceptance rate is at around 92%) is second.”China and the US are said to be at the “top” (at sites like MIP, the more, the merrier), then it’s Japan, Korea, and Benoît Battistelli’s EPO only at 5^th. Remember when Microsoft threatened to turn to the Korean patent office at the expense of EPO because the EPO wasn’t granting enough patents (in bulk)? Well, the Battistelli-led EPO responded by becoming a lapdog of Microsoft. Measuring the quality of any patent office in terms of number of patents granted is patently misguided. It’s usually indicative no legitimate quality control, neither at prior art search nor triviality thresholds (some US patents are ‘sophisticated’ enough for a toddler to come up with).

“China also received the highest number of patent applications,” MIP wrote, 928,1777 out of a worldwide total of 2.7 million. This represented growth of 12.5% from 2013 to 2014.”

How many of those (nearly) million patents are actually true innovations and how many are just a waste of paper?

“Does it mean that Japan became less innovative? Probably not. Maybe it prioritises development over paperwork.”“It was followed by the offices in the United States, Japan, Korea and the EPO,” MIP wrote. “The top 20 office with the largest percentage growth was that of Iran (18.5%). Japan was the only major office to see a decline in patent filings.”

Does it mean that Japan became less innovative? Probably not. Maybe it prioritises development over paperwork. Other factors to consider are the scope of coverage, the cost of application, the cost of renewal, backlog size, patent lifespan etc. but these don’t vary all that much and are usually proportional to the size/breadth of the local economy so such factors average out.

This nicely ties into what we wrote this morning about EPO lobbying/promotion of the UPC (also noted earlier this week). Sifting through a lot of trolls and distraction in IP Kat comments (maybe a deliberate misdirection in these comments) we found the following informative comment:

all the rules for the UP were approved by the Select Committee today.

Another of this decisions behind closed doors?

Does anybody know if any objection raised during the discussion that occurred within this “selected” (by whom?) Committe will ever be made public?

For your information the “Select Committee” is a body formed pursuant to Article 145 EPC.
http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar145.html

It comprises the delegates from the EPC Contracting States that have signed up to the EU Unitary Patent, i.e. most of the EU Contracting States.

If you want to find out more about what its members are up to then try contacting one of your MEPs or making a freedom of information request to the competent ministry in your country.

Well, patent lawyers still want more litigation, injunctions etc. That’s why they bat for the UPC in lawyers’ Web sites and hail it as though it’s the best ‘innovation’ since sliced bread.

“There goes Battistelli’s rave about ‘productivity’ and ‘production’ (usually proportional to number of grants) down the drain…”We hope that patent maximalism in Europe (which UPC is all about) will be challenged politically. Looking at today’s EPO news we only found this press release titled “Intec Pharma (NTEC) Receives European Patent Covering Accordion Pill Zaleplon“. This is one among many drug monopolies (it’s not at all clear if such patents offer benefits to society). The press release says that “the Company has been informed by the European Patent Office (EPO) that a European patent will be granted December 23, 2015 on the Company’s European Patent Application for a “Zaleplon gastroretentive drug delivery system.””

Remember what Baxter (EPO-connected) has been trying to patent for a number of years at the EPO. It turned out to be an example of good patent examination and good work by the boards (a very thorough prior art search), which contributed to repeated rejection of the patent application (pertaining to software). There goes Battistelli’s rave about ‘productivity’ and ‘production’ (usually proportional to number of grants) down the drain… █

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Great News: Software Patents Stopped in India, For Now…

Posted in Asia, Law, Patents at 5:06 pm by Dr. Roy Schestowitz

Summary: Activism and advocacy by groups including the Software Freedom Law Center (SFLC) in India helped stop the software patents lobby in this world-leading software giant (with a population exceeding one billion people)

TECHRIGHTS has been writing about software patents in India for nearly a decade and wrote a lot about the subject this autumn, due to a creeping threat that software patents were rearing their ugly head again.

“This comes to show that no matter how desperate and helpless one feels, it’s never too late to take action and achieve something.”Thankfully, based on this new article in English (not Hindi/Tamil), the revised guidelines for software patents have been put on hold. This is excellent news and credit goes to “start-ups and software product lobbies like iSpirt and Software Freedom Law Center” (to quote the summary).

This comes to show that no matter how desperate and helpless one feels, it’s never too late to take action and achieve something. Let’s see if this effort as a whole is put the rest, leaving India with its current (and relatively sane) patent law. Those who lobby for software patents in India are multinationals like IBM and their patent lawyers. They want more for themselves and less for everybody else. They want an impoverished India.

“Everyone in India — not just software developers — should work hard to avoid and actively prevent patenting of software.”Over in the US, patent lawyers 'magically' only notice patent cases when software “may” actually be found valid, for a change. Here is the latest example of this. Who’s behind it? CAFC of course, the biggest booster of software patents. To quote The Recorder: “The Federal Circuit’s newest member, Judge Kara Stoll, sounded ready to side with the owner of a patent on lip-syncing technology used by animators, suggesting a break, if not a reversal, of the rout.”

India (and incidentally also Europe, which is being harmed by Benoît Battistelli’s EPO) should learn from the mistakes of the US patent system, e.g. patent trolls infestation. Everyone in India — not just software developers — should work hard to avoid and actively prevent patenting of software. India is a software powerhouse whose income and commonwealth depend on liberal development atmosphere; letting companies like Microsoft and IBM amass thousands of software patents in India helps make India digitally dependent on foreign monopolists that India does not need anyway. █

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Spoiled Brat Microsoft is Already Becoming More Aggressive, Now Forcing People to ‘Choose’ Vista 10

Posted in GNU/Linux, Microsoft, Vista 10 at 4:40 pm by Dr. Roy Schestowitz

Impatient Microsoft. It didn’t even wait until next year as it had previously stated.

Summary: Microsoft treats adults like dumb children and resorts to ‘selling’ (or force-feeding) its malware using malware tactics, including misleading pop-ups that trick users into compromising their machines, rendering these universal keyloggers

THE utter disaster which is Vista 10 just keeps getting worse. According to this new and widely-cited report from The Register, Microsoft “steps up Windows 10 nagging”.

To quote a key part excluding the self-explanatory screenshot: “The large pop-up screen, which first appeared over the weekend, gives users the option of upgrading straight away or … that evening. Users can still opt out by clicking on the red ‘X’ in the top right corner of the window, but less savvy computer users (part of Redmond’s core market segments) might not figure that out.

“Microsoft is truly becoming pathetic here.”“This is not a new idea; it’s called the assumptive sell and has been in pop-up ads for years. But it’s not the kind of tactic you’d expect from a respectable firm like Microsoft – or at least, not until Windows 10 came along.”

The author adds that Microsoft’s motivation is ingeniously bizarre. Microsoft is truly becoming pathetic here. It is so desperate for attention and love that it now virtually FORCES people to ‘upgrade’ to Vista 10. Will they call it “popular” if people are literally forced to adopt it? The author says: “That’s something Microsoft will be praying for, especially since Windows 10 installations have been lagging of late.”

Microsoft has a conspiracy of silence on this embarrassing behaviour, which it can no longer just call or pretend to be an "accident". The author notes that “Microsoft had no comment on the new pop-up practices…”

Excellent!

“People will hopefully realise that Microsoft has nothing but disregard for users and then choose to move to Free/Open Source software — or software that respects its users.”So Microsoft admits that it doesn’t even have justification or defense for it. Microsoft is just intentionally malicious. If one silently — and without consent — places a keylogger (remotely even!) on another person’s PC one can be sentenced to prison. But not Microsoft. This monopolist has been getting away with almost everything and with quite a lot of serious abuses (e.g. existing for decades without paying tax, either).

Robert Pogson is one among many who commented on the report above, saying: “Now, it’s “Home invasion! Ready or not, here we come!”. The last time I saw such a message, I installed Debian GNU/Linux on the thing that same day.”

People will hopefully realise that Microsoft has nothing but disregard for users and then choose to move to Free/Open Source software — or software that respects its users. GNU/Linux will never do what Microsoft is seen doing here. GNU/Linux treats its users like grown-ups, whereas Microsoft treats them parentally, and in a highly patronising fashion. █

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