03.01.17
Posted in Europe, Patents at 7:59 pm by Dr. Roy Schestowitz
They never even published any response from the other side, e.g. AMBA
Summary: Managing IP is giving a platform (yet again) to UPC lobbying; the EPO’s management is invited, as usual, to help spread its lies at the exclusion of those impacted (like actual businesses)
“The current 25+ speaker line-up features participation from the European Patent Office,” (EPO) says IP Kat today about “MIP International Patent Forum 2017,” which is a fancy title for Managing IP‘s gathering, mostly stuffed with (full of) the patent meta-industry, including Team UPC and large corporations with tens of thousands of patents each (they conveniently send their so-called ‘IP’ departments to represent ‘industry’).
“Being abusive and being an enabler of abuse isn’t that far apart in ethical terms.”Which liar will Battistelli send? Margot Fröhlinger [1, 2, 3] again? The first topic listed above is: “Implications of Brexit on the Unified Patent Court (a rapidly changing topic, remarks Merpel)”
There have been lots of fake news articles on this subject, or disingenuous lobbying disguised as news [1, 2, 3, 4, 5]. This event is an opportunity to spread the same old lies about the UPC, just like in prior MIP events (we covered these last year [1, 2, 3, 4, 5]).
As we last pointed out minutes ago, having covered the subject before [1, 2] (just earlier in the week), the EPO cannot rule or work independently anymore. Why should there be trust for the UPC, which further empowers that same bureaucracy? Quality of EPs (European patents) is already nosediving and it looks like someone ‘dares’ challenge a European patent right now, based on today’s press release that says: “Estar Technologies Ltd. (“Estar”), a world recognized developer and manufacturer of innovative medical technologies in the biologics and platelet rich plasma (PRP) fields for the treatment of damaged soft and hard tissue, filed a notice of opposition requesting the European Patent Office (EPO) to completely revoke European Patent No. 2,073,862 B1 in the name of Antoine Turzi, exclusively licensed to Regen Lab SA. If successful, the opposition will lead to the complete invalidation and revocation of Regen Lab’s patent in all 32 designated contracting states of the EPO.”
The EPO is in a very bad state; it’s abusive and giving it a platform is a very bad idea. But that’s just what Managing IP has been doing for a while. Being abusive and being an enabler of abuse isn’t that far apart in ethical terms. █
“Injustice anywhere is a threat to justice everywhere.”
–Martin Luther King, Jr.
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Posted in Deception, Europe, Patents at 7:46 pm by Dr. Roy Schestowitz
What a curious timing for the illusion of Boards of Appeal “independence”!
Summary: The latest hogwash and lies from the Liar in Chief, who keeps pretending that the Boards of Appeal are “independent” while he himself keeps attacking them and libeling their judges
SOMETIMES we cannot help but feel watched, like EPO management reads our blog closely (we have actually been told this) and the FTI Consulting ‘gurus’ then tell them how to respond, e.g. with a blurb about patent quality (old news recycled) a day after this major leak of ours, changes to rules after this leak which made the EPO rather frantic or bashful (stakeholders complained), and now the above nonsense, which we already covered here in the middle of December (at least twice [1, 2] in a dedicated fashion). What is going on here and what is Team Battistelli hoping to accomplish? Is it going to spam some journalists and distract them from what we believe some of them already intend to cover? The PR staff may still have enough days in the week to do so and we more or less know how they do this.
For those who haven’t noticed yet, later in the day (today) the EPO published this: (warning: epo.org link, which can potentially be used for unmasking people inside the EPO)
In his welcoming remarks, President Battistelli said: “Mr Josefsson’s arrival in the post of President of the Boards of Appeal is of great importance. From the very outset, the reform has aimed to ensure the Boards reinforce their role as a judiciary body and can effectively serve users of a balanced and efficient patent system. We are confident that Mr Josefsson, who has a great deal of experience in judicial and international affairs, will help to ensure the reform delivers the benefits that it was designed to achieve.”
Josefsson’s “arrival” [sic] is not news, nor is he new around the Organisation. This ‘news’ about Josefsson is actually very old news (from before Christmas), so we suspect that Team Battistelli, with a quote from Battistelli himself, throws in some lies to distract from outcry of the Boards of Appeal, or maybe to distract from this coverage of ours [1, 2], which some journalists have already looked into.
“It cannot disappear,” one person wrote today. “There is a collated book version. At least every staff has an own copy.”
“The whole Organisation has been compromised at many levels and a Vice-President currently faces corruption indictments.”It would in itself become a scandal if Battistelli censored their report (a foolish move to even attempt), just serving to reinforce their point… and besides, we have already made a copy anyway. One thing that Battistelli can attempt to do instead is punish them for it, again, especially if/once discovered who inserted these ‘Satanic verses’ which dared criticise God, Battistelli. In the mean time, attention diversion is possibly attempts, hence the above.
Already, as is made apparent by the following new comment, there is serious brain drain, confirming what we have been warning about for a long time (replacement of experienced and ‘expensive’ workers, along the lines of ENA ‘economics’). We couldn’t agree more with the following thoughts:
The retirement age and resignation figures show a pretty clear trend. Compared to 2013, (experienced) people are now more keen to leave the employ of the EPO. Most likely the figures for 2016 will be even worse.
The shift to younger (ie lower cost) employees means a cheaper and likely more malleable workforce. This will mean increased “profits” for the EPO (especially given the ridiculous increases in fees that have been announced) and fewer problems with old hands who remember what it was like to be treated with respect. With such bumper profits coming through, it looks like it will be trebles all round for BB and his cronies at the AC!
The Administrative Council (AC) is led by a farce of a Chairman — a man so cruel and arguably corrupt himself. So what moral authority would he have to step in and tackle the abuses of Battistelli? He became a protector rather than overseer. The whole Organisation has been compromised at many levels and a Vice-President currently faces corruption indictments. That is how grim things have become. But only an ‘armed Nazi’ would dare point that out… █
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Posted in Europe, Patents at 9:45 am by Dr. Roy Schestowitz
It only takes one minute to sign it and anyone can sign as everyone is affected (not just Brits)
Direct link to the petition
Summary: With only days left before the UPC is debated in English/British (and maybe Scottish) Parliament it’s important to make public officials aware that there is resistance among those sufficiently informed
THE process of UPC ratification is better understood by us, more so as time goes by (a lot of misinformation keeps coming from Team UPC, which habitually spreads fake news [1, 2, 3, 4, 5]). FFII spoke to political parties yesterday (over the telephone) and gathered information related to the process involved (e.g. whether or not a Parliamentarian vote is required). Not only British individuals and firms can sign; these are still kindly invited to sign this petition “against the ratification of the Unitary Software Patent treaty by the UK and Scotland,” though we mostly rely on political interventions at the moment. Having a petition with many signatures in it would help these interventions.
The petition itself already explains quite clearly what the UPC would accomplish and what it is for, e.g. expanding litigation scope and patent scope. We reproduce it below for those who may be reluctant (or too lazy) to follow the link:
We, the undersigned citizens, IT professionals, and IT companies of United Kingdom and Scotland, are strongly against the ratification of the Unitary Patent. We call on the Government and elected Members of Parliament of UK and Scotland to reject this international agreement for the following reasons:
1. We are worried about the thousands of software patents granted by the European Patent Office (EPO) against the spirit of the European Patent Convention (EPC article 52.2); The proposed Unitary Patent Court would provide a single point of failure (SPOF) to create case law in favour of patentability of software on a European scale;
2. The Unitary Patent contains paragraphs which refer to the Supremacy of the Court of Justice of the European Union (CJEU), while politicians have promised to respect the democratic Brexit vote of UK citizens to leave the European Union;
3. EPO’s software patents are the worst nightmare of software developers; software companies can be threatened and sued at any time;
4. Many experts in the field have recognized that the Unitary Patent is the perfect vehicle for validating software patents in Europe (see quotes page). A heavily debated directive was rejected by the European Parliament in 2005 at the request of large multinational corporations (MNCs) which prefered a push for central patent court instead;
5. We are afraid of the multiplication of threats and lawsuits brought by some companies, and especially the ones that don’t produce anything other than patents (so called “Non Practising Entities” or “Patent Trolls”); We are concerned that software patents shifts budgets allocated to R&D (Research & Development, run by software developers) to P&L (Patents & Litigation, run by lawyers);
6. Our companies don’t have the financial means to defend themselves in court or to pay damages, and we believe the Unitary Patent would make it worse. The Unitary Patent has not been designed for small companies in mind. The cost of litigation and the amount of damages would be on the rise, as they would be calculated for the whole EU market;
7. The Unitary Patent Court would be more attractive to patent trolls that apply and litigate patents, as EU-wide injunctions and EU-wide damages would be available to extract large sums of money. Companies that don’t have the financial means to defend themselves in court would be forced to settle;
8. We believe the UPC is an undemocratic instrument, whose 130 pages of rules of procedure have not been debated or drafted by parliaments, but by an administrative committee populated by members of the patent industry; this administrative committee would also have the power to change the treaty at will without consulting any parliament once the Unitary Patent is running; Parliaments also never had any power nor a procedure to amend those rules of procedure; citizens and companies don’t have democratic means to influence this important piece of regulation;
9. We believe the UPC is not counterbalanced by an elected parliament, not even the European Parliament, making this court a quasi-legislator when it comes to patent law;
10. The UK has a legal tradition to reject the German and EPO’s “technical effect” approach, which makes any software patentable when it runs on a computer; this restrictive approach to software patenting would be lifted by the large influence of German judges;
11. The UPC would make national clarifications to the European Patent Convention, as requested by previous petitioners, impossible;
12. The UPC would make bifurcation possible, which splits the validity and infringement cases (like in Germany), creating an imbalance where on one side, the patent owner says its patent is broad (infringement), and on the other side it is narrow (validity). Powerful injunctions to stop products on the market are granted, while the patent is later on found invalid;
13. The UPC is a power grab by the patent community, as judges are elected among this community. Patent law would be out of balance with other fields of law, and no supreme court would be able to intervene in patent law in order to correct their wayward doctrines and practices, as it happened for the last years in the United States with the Supreme Court (SCOTUS) and the Court of Appeal of the Federal Circuit (CAFC). Patent law would evolve in its own bubble;
14. We call on other EU member states to redraft the project in order to make it integrated within the structures of the European Union, and migrate the undemocratic European Patent Office (EPO) into an EU agency under the sole responsability of the European Parliament. The EPO is an international organization which abuses its diplomatic immunity, and is thus literally outside the law. We also denote the lack of separation of powers within the Council of European Ministers, which are part of the executive, and were heavily influenced by their National Patent Offices. The legislator should not be influenced by the executive, which is the currently the norm at EU level..
Benjamin Henrion (FFII) deserves most of the credit for the above text. If Europe ever falls for the UPC, it will have a knock-on effect elsewhere. Yesterday Henrion spotted Watchtroll harnessing Europe’s policy to help people bypass patent restrictions. To quote a couple of portions: “The problem-solution paradigm has become a cornerstone of patentability in Europe. Drafters interested in protection in Europe by direct filing or via PCT consequently need to cultivate a flexible attitude to problem-solution for analyzing, describing and claiming inventions, and defending patentability. [...] The EPO uses its problem-and-solution approach in a restricted way in the assessment of inventive step during examination once the claim is settled. The official approach is to take as the starting point the closest single item of prior art known at that stage, for expressing the invention in terms of the “objective problem” solved by the skilled person in going from this closest prior art to the then-claimed invention, i.e. in achieving the technical contribution of the invention.”
MIP, publishing behind a paywall as usual (so that only those who agree can read), speaks of UPC “progress” this week (looking back at the month that ended last night). The piece makes it appear as though UPC is definitely coming, but the reality is grimmer and there are still many barriers to the UPC (present and future hurdles). “EU Council ministers discuss Unitary Patent and UPC, Italy ratifies the UPC Agreement (UPCA), UK government publishes Brexit strategy document and answers questions on its UPCA ratification commitment,” MIP wrote.
“What we expect to happen is, more people will become aware of the UPC and who it is really for and debates will intensify to the point where the UPC’s untenability and incompatibilities are realised, whereupon the whole shebang is officially in a limbo again.”Also at MIP, Helga Chapman wrote about early certainty of patentability at the UK-IPO, noting that “[t]he EPO has now addressed this issue with the implementation of its Early Certainty programme,” which is actually notorious among EPO staff. You can’t rush examination like that; it’s like using two women to conceive/deliver a baby in 4.5 months.
What we expect to happen is, more people will become aware of the UPC and who it is really for and debates will intensify to the point where the UPC’s untenability and incompatibilities are realised, whereupon the whole shebang is officially in a limbo again. Battistelli’s wet and perverse dream will not have come to fruition by his term’s end.
In the mean time, please do sign the above petition and spread this link around. There is less than a week left to do so and politicians — not just British politicians — are counting on these signatures. █
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Posted in Europe, Patents at 9:06 am by Dr. Roy Schestowitz
In the name of ‘security’ (not of staff), so-called ‘reforms’ are passed without proper scrutiny but growing complicity
Summary: The whole mechanism of justice at the EPO (notably separation of powers) is more or less defunct after Battistelli asserted God-like powers not just over the Office but the entire Organisation, including the above-mentioned Boards of Appeal
YESTERDAY culminated in this article about the Boards of Appeal (BoA) openly complaining about Battistelli. They don’t feel like they have independence anymore and it impacts their decisions. In the EPO’s propaganda mill, as of today, the Enlarged Board of Appeal’s recent ruling is explained/analysed by Carpmaels & Ransford LLP, but one has to wonder — as we have for at least a couple of years — to what extent the reign of terror (by Battistelli) played a role in these decisions.
“Dutch media said that Battistelli’s regime had become comparable to terror from Battistelli himself, not against him.”Jakob Pade Frederiksen of MIP (which hasn’t covered EPO matters for a while, perhaps for fear of backlack) explains just how insane and terrifying Battistelli has made the EPO. In the post titled “Update on BoA and security” one sarcastically wonders if he alludes to growing need for protection from Battistelli (e.g. protecting BoA from Battistelli’s retaliations) or something else. To quote: “Turning to the physical safety of the EPO’s staff and visitors, a variety of enhanced security measures have been implemented recently. The bags of visitors, including patent attorneys, are now being routinely inspected at the entrances of the EPO’s buildings, and the EPO has put in place a procedure for inspecting documents and other items sent by ordinary mail. The EPO may return suspicious items to the sender, or it may hand it over to national authorities for destruction.”
Maybe it’s all just intended to guard Battistelli’s alleged bicycles, which are alleged to have been tampered with. Dutch media said that Battistelli's regime had become comparable to terror from Battistelli himself, not against him. Considering the growing number of suicides, the death toll at the EPO is usually the fault of Battistelli's abusive management. In addition, many people are leaving, often by their own choosing. For EPO brain drain in numbers, see the latest comment in IP Kat‘s latest (3-4 months old) article about the EPO conflict. It says:
About retirements and brain drain – the social reports 2013-2015 provide some data:
2012 retirements 095 resignations 15 ends of service total 153
2013 retirements 108 resignations 17 ends of service total 191 average retirement age 63.1
2014 retirements 143 resignations 16 ends of service total 183 average retirement age 62.7
2015 retirements 216 resignations 23 ends of service total 269 average retirement age 61.1
Average age upon retirement dropped by 2 years in 2015 compared to the two preceding years. The data for 2016 has not been published yet.
The EPO is in a very bad shape. Justice lost legitimacy not just in internal tribunals but also external ones and judges that are supposed to be entirely separate from the Office also complain about loss of independence. This week, as in most weeks, the EPO says (in the cited page, not anchored here in the interests of privacy) that “transparency in all our operations” is a priority, yet they are very secretive for a public institution and transparency is what Techrights does FOR the EPO. Very few people knew about what had been going on inside the EPO until last year or the year before that (2015). Accordingly, fewer politicians bothered bringing up the subject and publicly intervening. Gag orders are very common a routine at the EPO; they also used a sort of gag order to hide their threats against yours truly.
“Justice lost legitimacy not just in internal tribunals but also external ones and judges that are supposed to be entirely separate from the Office also complain about loss of independence.”The EPO has just posted something about tenders etc. It did it again today (second time in a few days, citing a Microsoft site where they supposedly claim to be all “open” about procurement practices that the EPO is notorious for). As we hinted yesterday, we are currently investigating a potentially criminal element inside the EPO but are still verifying information. As a side note, since we’ve brought up Microsoft and procurement, mind this tweet (same pattern that has repeated almost every week lately) and remember that online filing is not as simple as using a browser. Proprietary software is required and it helps to be a Microsoft customer. Watch Microsoft Windows ‘ads’ in the background of this photo uploaded by the EPO yesterday. No EPO event would be complete without the patent thugs and bullies, or those who rig procurement processes with bribery (we covered examples in the past).
Justice and EPO don’t blend; with abuses and immunity the EPO has in fact become antithetical to the concept of justice. █
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