Posted in Europe, Patents at 2:59 am by Dr. Roy Schestowitz
Still “brown-nosing” judges and officials, not to mention Battistelli, for UPC and patent trolls in the UK
Summary: In spite of the UPC being in a morbid state, Bristows carries on pretending that all is rosy and progress is being made
THE EPO‘s top-level management and Team UPC are the main proponents of the UPC (if not its sole proponents, except few multinational companies and trolls). Lies are abundant and they need to be debunked, we cannot just ignore them.
We’ve written about the UPC for nearly a decade (before it was even known as “unitary” anything). We’re accustomed to the lies.
“We’ve written about the UPC for nearly a decade (before it was even known as “unitary” anything).”So what’s the latest?
Well, UPC proponents decided to tell me: “Draft legislation is online.@Ipkat reporting its existence =/= “propaganda”. Read it in black & white for yourself: http://tinyurl.com/ybtf8ah5″
Yes, we saw that. We had already commented on it. Before the above tweet in fact!
For those who aren’t watching the UPC closely, well… there’s nothing new really. It’s stuck. It’s not going anywhere any time soon (if ever).
“We’re accustomed to the lies.”Days ago Managing IP published a PAID-FOR (“sponsored,” by their own admission) UPC brainwash/hogwash for those who seek to impose the UPC on us all. We wish to remind readers that Managing IP has played a huge role in UPC promotion, on behalf of its affiliates and sponsors. It is hardly an objective publication and we confronted it over this many times before. Managing IP‘s excuses were always unconvincing.
Worse, however, is what happened to IP Kat. We used to appreciate its EPO coverage, but look what it has turned to. It actually helps Battistelli.
Yesterday, Annsley Merelle Ward of Team UPC and of Bristows was sucking up to Jo Johnson (probably for UPC agenda). Some accuse her of "brown-nosing" judges, too. She did this at IP Kat, which added in Twitter “looking forward to a lot of IP…”
“Yesterday, Annsley Merelle Ward of Team UPC and of Bristows was sucking up to Jo Johnson (probably for UPC agenda).”Bristows, in the meantime, published this headline that says “UK resumes its UPC legislative process,” but it’s a very ambitious statement. It’s misleading.
We have already documented Bristows' attacks on British and European democracy and its pattern of lies, potentially falsifying statements to suit its own ’causes’ (financial).
In the post, Dominic Adair links to an undated page and says: “The UK Intellectual Property Office also announced that a separate piece of legislation on privileges and immunities will be laid in the Scottish Parliament in due course.”
No link or anything. They already used unsourced statements, attributed to UK-IPO albeit without any way to verify. And being Bristows, one must assume (by default) that they deceive or outright lie. Recall what happened in Germany and what Bristows said about it. The only thing Bristows is good at is lying and deleting comments of people whose views it does not agree with (we documented many examples).
“And being Bristows, one must assume (by default) that they deceive or outright lie.”Later on, Richard Pinckney of Bristows pushed out another puff piece and Mathieu Klos of Juve drank some of the Kool-Aid [1, 2], even linking to the Estonia mirage of Bristows (trying to give an illusion of progress). Bristows had actually paid for these mirage pieces (placements in the media), as we noted last week. And not a word about Germany, eh?
Suddenly the distraction tactics are all too obvious! Just anything to push forth the illusion of “UPC progress”, as Managing IP likes to dub almost every ‘article’ about the UPC (not just paid-for ‘articles’).
Days ago Anne Hargreaves retweeted Joshua Rozenberg and said: “Latest in the continuing saga of the UPC/UP.”
Rozenberg wrote: “Government has laid an order to allow ratification of the Unified Patent Court. If approved and Germans ratify, court should open in spring.”
“Suddenly the distraction tactics are all too obvious!”“No,” I told them, “spring has already passed and the UPC objection can drag on until next year (Constitutional).”
Where are these people dragging their lies from? And who would be gullible enough to believe them, after they made false predictions every single year for a number of years?
Not to our surprise, IP Kat continued to relay Unitary Patent propaganda from Team UPC (Annsley Merelle Ward in this case) less than a day ago. To quote: “With Germany’s recent constitutional challenge (as reported by the IPKat here) and Parliament being distracted by the recent UK elections and Brexit negotiations, do not hold your breath for much UPC activity before the House rises on 20 July 2017. It’s summer, after all…”
So much for “court should open in spring…”
“Well, Bristows are fatally wounding their own reputation (if they had any).”As people here say, “bollox!”
“UPC proponents as Bristows are determined not to abandon,” an EPO insider told me, “unfortunately…”
Well, Bristows are fatally wounding their own reputation (if they had any).
So is Bird & Bird, whose UPC propagandist Wouter Pors is facing a barrage of criticism in IP Kat comments. Here is the latest:
Mr Pors is trying to capitalize on that tiny piece of information on the case that, most likely, a German colleague of his has managed to secure and has insinuated to him. And indeed, it would be surprising if the topic mainly discussed in the Juve interview with Prof. Bross played any role in the constitutional complaint, as it is difficult to see how the internal organisation of the EPO could be used as an argument for the unlawfulness of the UPCA under the German Grundgesetz. This may be different for the European patent with unitary effect an attack on which on the basis of the German Constitution would, however, be a completely different story.
It is rather puzzling to see demands from several people, at least some apparently having a legal background, that the complaint should be made public, criticizing the BVerfG for alleged “secret proceedings”. Quite frankly, in which jurisdictions are court submissions made available to the public? If reference is now made to the “importance of the case”, let me ask you this: In proceedings at the CJEU, e. g. in cases C-146/13 and C-147/13 relating to the “patent package”, which information is made public about the submission of the parties? Three months after filing the requests are published in the Gazette of the court, usually four to five sentences, that is it. The reasons why knowledge of the submissions in a court case is limited to the court and the parties seem to be self-evident. The present, in most cases regrettably uninformed hysteria vividly underlines the legitimacy of this limitation.
Someone else ended up responding to a factually incorrect comment which we chose not to quote/reproduce. Here is the response:
Tim H – whilst it might not seem that important to you, there is an important (and direct) link between the EPO and the UPP.
For certain patents (EPs having unitary effect and not opted-out EPs), ratification of the UPP entails transfer of sovereignty from national courts to the UPC regarding the competence to handle certain disputes (for infringement, revocation, etc.).
The transfer of sovereignty is immediate and irreversible for EPs having unitary effect. Thus, the registration of a request for unitary effect is directly linked to the transfer of sovereignty.
Whilst I have no idea whether it forms part of the constitutional complaint, I would certainly understand if the BVerfG wanted to be persuaded that requirements under German constitutional law are satisfied by both the governing laws for the UPP and the bodies having key roles (connected with the proposed transfer of sovereignty) under that package.
And here’s another (about the BoA):
….a patent applicant which got a refusal can also request a judicial review from German courts.
(The question is about equality of arms for applicant/proprietor and opponent, do both have access to an independent judicial review? at the EPO, only the opponent as losing party could go to national courts, and applicant/proprietor does not have access to a judicial review by national courst if the EPO/BoA do not grant a patent (in amended form). The question is open if no patent is present, and null if patent got granted.)
With EPO-refusals, only the Boards of Appeal remain as remedy (except for conversions under Art. 135 EPC), the BoA may or may not be an independent judicial review as required by the german constitution. But if DG3 is the first instance to not grant a patent, what then?
Rumours from the EPO suggest that a BoA judge might officially be sacked later this week, even if such action is not legal (as per the EPC). Any information (or leak) related to this would be appreciated. █
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Posted in Europe, Patents at 2:16 am by Dr. Roy Schestowitz
Will the final ‘reform’ keep him in power?
A monarchy’s modus operandi
Summary: New letter states that “although the AC pressurised the president to halt the reform process, the Office is unilaterally proposing further reforms”
THE STAFF of the EPO is very eager to be heard, but it cannot speak out without threat of retribution. Published this week was the following letter, which warns about Battistelli’s plans. It’s a letter we were allowed to circulate here (original at epostaff4rights.org). █
Reform marathon
continues
With its March 2016 resolution, the Administrative Council (AC), among other things, instructed the president to make a proposal for revising the investigation guidelines and the disciplinary procedures. Since then, the president has failed several times to provide a draft revision that met the expectations of the delegations. Several delegations intervened and came up with own suggestions. While the current proposal (CA/58/17) solves some of the issues, it is still flawed. The major concern for staff lies in a lack of independence of the Disciplinary and Appeals Committees and a new fast-track procedure for judging on employee’s professional incompetence. Board 28 nevertheless signalled that they intend to support the proposal.
And although the AC pressurised the president to halt the reform process, the Office is unilaterally proposing further reforms: a re-structuring of DG1 and DG2 (CA/65/17), and a change to the Supervisory Body of the Reserve Fund for Pension and Social Security(RFPSS).
This paper summarises the most important aspects of the planned reforms and points out the likely effects on the staff.
Standards of conduct
According to the planned reform (CA/58/17), any failure of a permanent or former employee to comply with his obligations under the Service Regulations, “whether intentionally or through negligence on his part”, may constitute misconduct (Article 21) and may make him liable to disciplinary action (Article 93). The original proposal from the “Swiss wish list” that only intentional or grossly negligent breaches of the Service Regulations should be relevant for disciplinary proceedings has not found its way into the current proposal. The current wording leaves leeway for arbitrary use of the regulation and abusive punishment.
Disciplinary and Appeals Committees
The chairman of the Disciplinary Committee (Article 97a) and the Appeals Committee (Article 111) and their alternate or vice-chairs shall “possess the qualifications required for appointment to high judicial office“ or be “lawyers with experience in the area of disciplinary law acquired at national or international level”, and they shall not be employees of the Office.
But unlike in the present system, the chair and their alternate or vice-chairs would be unilaterally appointed by the president. The Disciplinary and Appeals Committees would therefore not be entirely paritary and thus not be independent. Moreover, the president’s final decision, i.e. the punishment imposed, may still exceed the Committee’s recommendation.
Professional incompetence
The planned reform foresees a separation of the procedures for disciplinary matters and professional incompetence. According to the Office, “professional incompetence does not constitute per se misconduct” and the Disciplinary Committee is, for this reason, not the appropriate body to address it (CA/58/17, page 11). For dealing with professional incompetence, a new body called Joint Committee on Articles 52 and 53 will be created. The chair and alternate of the Joint Committee will be appointed by the president (Article 53a).
According to the proposed revised Article 52 “the President shall define procedures to identify, deal with and remedy cases of lack of ability and efficiency in a timely and appropriate fashion.” When these procedures are exhausted, the president may, after consulting the Joint Committee on Articles 52 and 53 take a decision on whether, on the basis of (two or more) consecutive appraisal reports, an employee shall be “dismissed, classified in a lower job group with or without downgrading or downgraded” on grounds of professional incompetence.
The new route for dealing with lack of “professional ability and efficiency” would significantly reduce the safeguards for staff.5
Investigative process
While progress has been made on the right to remain silent, the Investigative Unit (IU) will still be able to secure, access and search mobile electronic devices, including private ones.
And several other items of the “Swiss wish list” (i.e. demands of the Council) have not been dealt with: nomination of the head of the IU by the AC to secure his independence from the Office president, and duty of the IU to inform the Council when investigations are launched against staff representatives or union representatives.
Revision of presidential decisions
After exhaustion of all internal means of legal redress, (former) employees can apply to the Administrative Tribunal of the International Labour Organisation (AT-ILO).
But the ILO as the highest instance for disputes between the EPO and its employees does not hold public hearings, has no means of legal enforcement, and does not allow the filing of injunctions. Judgments are only delivered after several years.
Worse, the ILO had several bilateral talks with the EPO administration – a party in the dispute – without informing or inviting representatives of the employees6,.
Siegfried Broß, a former judge at the German Federal Court of Justice (DE) and later at the German Federal Constitutional Court, recently said during a lecture that “The legitimate, individual basic rights of the people employed by the EPO are currently not sufficiently secured by an independent judiciary.” He does not consider the Administrative Tribunal of the ILO a “proper court”9.
Change of the governance of the Reserve Fund for Pension and Social Security (RFPSS)
The payment of pensions of former EPO staff is guaranteed by the Member States. The Pension Reserve Fund supports the EPO’s pension scheme by providing appropriate reserves (Article 38 EPC).
To avoid undue interference, the RFPSS was set up in 1991 with the aim of obtaining a de facto independent reserve fund. It therefore has a tripartite Supervisory Board (SB) with a paritary composition of representatives from the Member States, the Office and the staff (1/3-1/3-1/3). It is the only EPO body where representatives of the Office and of the staff play an equal part in decision making.
The current poposal (CA/47/17 Rev 2) will mean replacing one of the two voting staff members in the SB with a pensioners’ representative, and adding two experts with voting rights. If the proposal gets approval, the staff’s voting weight would be reduced from 1/3 to 1/8, and its representation in the Board’s meetings would be diluted to at best 1/10. The influence of the Office would be strengthened since the AC would appoint the experts based on a proposal by the president.
The representation of the stakeholders in the Board would no longer be paritary. The current proposal, if adopted, would thus weaken the independence of the SB and violate the principle of “fair representation”. The CSC considers the proposal to be “neither mature nor fit for purpose”.
DG1-DG2 reorganisation
The aim of merging Patent Administration (PA) with patent examination is to achieve a “fully digitalised end-to-end [patent grant] process in the short term“ (CA/65/17, page 2). But the necessary deliveries from the IT Roadmap have not yet materialised.
The likely effects of the thus premature DG1-DG2 reform have been analysed in an earlier publication, and can be summarised as follows:
‘The planned “end-to-end patent granting process”, if implemented, is likely to have a negative effect on the quality and harmonisation of PA services delivered to external users, while increasing the work pressure for the majority of the formalities officers.
The introduction of a direct reporting line between the new COOs and the president would give him even more control over the patent examination process while marginalising the role of VP1 and VP2. This planned organisational change respects the wording of Rule 9 EPC but conflicts with its spirit.’
Enjoying power – and not being accountable if anything goes wrong
‘ “We believe that the President is simply trying to shift the responsibility for these new, flawed proposals from himself to the Council,” the [CSC] letter warns. ’4
Staff voted last week for strike in great numbers. We must keep the pressure up and show the Administration and the Council that we are fed up: through a strong strike.
www.epostaff4rights.org
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Posted in Europe, Patents at 1:56 am by Dr. Roy Schestowitz
Summary: A letter from anonymous EPO staff details the ways in which Battistelli’s power grab would further harm the EPO
Epostaff4rights.org, a Web site which is unfortunately not accessible to most browsers, does not receive as much attention as it deserves, albeit it was cited by The Register less than a fortnight ago. We were implicitly authorised to reproduce the text below, in HTML form. It explains how EPO management is scheming to seize even great control later this week, effectively becoming akin to a monarchy. █
DG1-DG2
Reorganisation
Another reform à la Battistelli that only benefits Battistelli
So far Mr Battistelli’s reforms have shown a strong tendency to break what they were claiming to build. Think of the EPO’s internal appeals system, and its career system, of the Boards of Appeal (BoA) reform and Social Democracy (1.0 and 2.0). We expect the next reform, announced in Communiqué 2/2017 to be similarly detrimental to the EPO and its staff. A quick run through the Communiqué will already show some obvious flaws.
“For the EPO, increasing our quality, production and timeliness has become an essential aspect of our strategy …”
Apart from the fact that staff has not seen any real efforts from the administration to increase “quality”, this sort of generic statement can apply to any business or service. The staff of the EPO are still waiting for Mr Battistelli to formulate anything that could qualify as a long-term strategy for the European patent system.
“Boston Consulting Group (BCG) was commissioned in September 2016 to study future scenarios for the Office’s operation and support areas.” True. But in their final report of January 2017 they did not recommend the option now chosen, which, according to BCG, will not increase efficiency/productivity, or clarity and simplicity, but probably at least have a negative impact on external user orientation, and decrease workload flexibility,,.
“The newly structured DG 1 …, headed by a Vice-President, will be responsible for the whole patent granting process from filing until publication.”
“Three Chief Operating Officers (COOs) will be responsible within DG1 …
Each will have a direct reporting line to the President.”
Now what exactly will that new VP1 (Mr Casado) be responsible for if the three COOs report directly to the President? Handing out the bottles of champagne to those who complete their 25 years at the Office?
“Each Director will manage the applications end to end, supervising both examiners and formality officers.”
The examining directors were responsible for the formalities officers (FOs) until 2005. The problem is that about 75% of the work done by FOs relates to external users. Directors, coming from an examination background, mostly had little understanding for this part of the formalities work and tended to prioritise the relatively small part of the formalities work that concerned the examiners (“points”), leaving the formalities officers feeling unsupported in the larger part of their work. This will not have changed.
Unlike examiner work, PA work is not stock-driven but needs to be delivered just in time. PA must cope with weekly fluctuations of 20% of the incoming workload. This workload volatility has so far been mastered by the hub structure and efficient management of the available work force by PA managers. Directors, who will already be responsible for a mega-directorate with about 60 patent examiners, might not consider this additional management task their highest priority.
“The current DG 4 “Administration” becomes DG2 “Corporate Services” … IM will move to the new DG 2 with the CIO having the same direct reporting line to the President.”
This is also not new. Information management (IM) has been part of DG4 before. But the same question applies as for DG1: what will Mr Topic actually be responsible for with Mr Battistelli directly controlling IM and Ms Bergot controlling the rest?
“The implementation phase will start as from 1st July 2017 to be finished by 1st January 2018.”
“Why this haste?”, we wonder. So did Boston Consulting. The consultants advised a more cautious approach, given that the hub structure in Patent Administration is still very fresh and that reorganisations in DG1 (large directorates and team managers) are still ongoing. Boston Consulting also pointed out that top management had signaled a phase of consolidation after several years of accelerated change and significant growth of production, in line with the recommendations of several recent studies. In fact, Boston Consulting questions the very need for a structural reform .
“The new structure will not fundamentally change the work of patent examiners and formality officers …”
For the formalities officers the above statement is certainly not true. If you count the relevant Articles and Rules in the EPC, you will understand that formalities cover a much wider range of legal issues than search and examination. The differences between the various EPC procedures (search, examination and opposition) as well as the differences between EPC, PCT and national procedures are also greater for formalities officers than for examiners. That is why formalities officers have always specialised in 2 or 3 procedures. Their new assignment to examining directorates and the focus on “end-to-end” processing will demand a much wider range of expertise from the formalities officers. The change from specialists to generalists and the reduction of team work will lead to a lower efficiency and thus to a higher work pressure. What this shows is that those who designed the new structure (mainly DG1 managers) do not understand formalities work and what formalities officers need to be able to work efficiently.
On page 71 of their report, BCG explain why the implementation of “end-to-end” processing requires a very careful approach: “In our conversations at the EPO we noticed that, in spite of the very constructive and collegial leadership style in and around the MAC, there are many disagreements, unresolved disputes and open questions which separate DG1 and PA. Pursuing one of the merger scenarios would be greatly facilitated by removing these impediments one by one in a mediation-like exercise which would help transform certain fears among some managers and staff into new trust.”
“The merger will also present more career opportunities for our staff with the creation of new management posts.”
Now that is twisting the truth – badly. Due to the mega-directorates, the number of directors in the examination area (full-time managers; paid in a higher grade) is being reduced from about 150 to about 65 to 70. The newly appointed “team leaders” take on managerial functions – but in addition to their normal work, and while remaining in the same grade. The manager posts in Patent Administration will be entirely suppressed and also replaced with “team leaders”. Whereas more examiners and formalities officers may thus “enjoy” managerial responsibilities, and receive a “functional allowance” while performing such functions, this in no way represents an increase in “career opportunities” – quite the contrary.
Conclusions
The planned “end-to-end patent granting process”, if implemented, is likely to have a negative effect on the quality and harmonisation of PA services delivered to external users, while increasing the work pressure for the majority of the formalities officers.
The introduction of a direct reporting line between the new COOs and the president would give him even more control over the patent examination process while marginalising the role of VP1 and VP2. This planned organisational change respects the wording of Rule 9 EPC but conflicts with its spirit.
Despite the negative effects for external users, formalities officers and EPO
managers, there is one person who is the winner from this reorganisation: the President. That is, if gaining power is something he considers a gain.
www.epostaff4rights.org
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Posted in Europe, Patents at 1:36 am by Dr. Roy Schestowitz
Reference: Envelope journalism
Summary: Unrest at the EPO is at an all-time high (strikes planned), but people out there can barely tell because the media — for the most part — ignores all this, just like the last time
THE EPO scandals include corruption of media — an aspect we cannot emphasise strongly enough. Why does British, German, French (and to a lesser degree Dutch) media cover an expensive PR charade like EIA 17 and not EPO strikes? Is it because it’s indirectly PAID to cover EIA 17 and these payments mean that it will stay silent when negative news/atmosphere may loom over the palm which feeds it?
Weeks after an EPO strike was planned (much later than it was possible to cover that) a site other than Techrights finally wrote about the strikes. Yes, plural. It’s too late to actually raise awareness for participation in the ballot (imagine how many people would vote if the press mentioned it), but better late than never. Well, a lot of people told us about it, some publicly.
“Weeks after an EPO strike was planned (much later than it was possible to cover that) a site other than Techrights finally wrote about the strikes. Yes, plural.”Dugie Standeford, who is familiar with these matters and covers them at IP Watch sometimes, cites our article and says: “European Patent Office employees, fed up with a series of reforms proposed by President Benoît Battistelli, have called “Respect Staff” strikes on 30 June and 3 July in all European Patent Office locations – Munich, The Hague, Berlin and Vienna.
“Their “most prominent and urgent reasons for discontent” include the president’s lack of respect for the rule of law and employees’ fundamental rights; and the “disastrous consequences” of the reforms for the health of the staff, quality of EPO services and the office’s reputation, the Staff Committee said in an open letter to Battistelli and the Administrative Council (AC), which meets on 28 and 29 June. They are also angry about the EPO chief’s attempt to boost his authority over the patent granting process. The EPO didn’t immediately comment.”
“We wrote a great deal about the media’s role in this, essentially becoming an enabler of EPO oppression. Passivity too is a choice or a position.”It’s reassuring that IP Watch covers such matters (it’s in the news circulation), but where is the rest of the media? Where is the corporate media? Does it not deem it newsworthy? Over the years we have seen/witnessed/reported how such media generally snubs sources on these matters (it barely bothers replying at all). We wrote a great deal about the media’s role in this, essentially becoming an enabler of EPO oppression. Passivity too is a choice or a position.
In alternative media, we were actually approached to write a summary of EPO scandals for a wider audience, whereupon it published the following summary: “Roy Schestowitz at Techrights has summarized the situation at the European Patent Office (EPO) with a Primer on the Crises and Scandals. Spying on staff, filtering staff web access, and union busting are just a sample of the shenanigans by top EPO management. And of course one chronic tale of woe includes the continued attempts by a few within the organization to introduce software patents into Europe. Software patents are a solid threat to all who use software for personal or, especially, business ends. As they fade from North America, vigilance is needed in Europe.”
“More importantly, nobody (almost nobody) bothers covering very historic news about strikes.”There are some comments there too. People are becoming growingly familiar with these issues, especially geeks.
As for mainstream media? Hardly interested.
What’s mentioned in media that’s Dutch at the moment is this silly old news about a building (via) and it’s probably because the EPO is pushing talking points into the media. (warning: epo.org link)
“As if nothing at all is going on at the EPO right now…”They obviously don’t mention that a contractor got burned by this fire hazard. The EPO does not tell the full story about this. Neither does the media. More importantly, nobody (almost nobody) bothers covering very historic news about strikes. Why is that?
Search the news for “EPO” and it’s mostly press releases like this one [1, 2] this week. As if nothing at all is going on at the EPO right now… █
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