10.18.17
Posted in Europe, Patents at 6:59 pm by Dr. Roy Schestowitz
Summary: New message from SUEPO regarding Battistelli’s successor of choice (Campinos)
THE OTHER day there was a report citing someone close to SUEPO (but not SUEPO itself). It said that SUEPO was ready to work with Campinos to defuse the situation created by Battistelli. Earlier today the following message was circulated among EPO employees:
Dear Colleagues,
Mr Campinos will be our President from July 2018 onward. We congratulate him on his election.
We have noted that the vacancy notice listed unprecedented requirements: to lead the EPO with modern management techniques and an outstanding ability to engage in social dialogue. We believe this indicates the Council’s desire to re-establish harmonious working conditions and to dissipate the atmosphere generated over the past few years.
We want to express our wholehearted support for this endeavour. We are ready to embark on a road to fruitful cooperation with Mr Campinos – a road which we know to be steep and time-consuming, as a long list of tasks lies ahead of us.
Kind regards,
Your SUEPO Committee The Hague
This was accompanied by the following longer message:
18 October 2017
Mr Campinos will be the next President of the EPO
Dear SUEPO Members, dear Colleagues,
Mr Campinos will be our President from July 2018 onward. We congratulate him on his election.
While the previous election required many rounds of votes, he was promptly selected in a single vote and with a very comfortable margin. We believe this is a testament to his competence and to the trust which the Administrative Council puts in him.
We have noted that the vacancy notice listed unprecedented requirements: to lead the EPO with modern management techniques and an outstanding ability to engage in social dialogue. We believe this indicates the Council’s desire to re-establish harmonious working conditions and to dissipate the atmosphere generated over the past few years.
We want to express our wholehearted support for this endeavour. We are ready to embark on a road to fruitful cooperation with Mr Campinos – a road which we know to be steep and time-consuming, as a long list of tasks lies ahead of us.
Unfortunately, on taking up his post, the new President will inherit the following problematic legacy:
- violations of fundamental rights and an apparent systematic disregard for the rule of law;
- management by fear, isolation and punishment championed by the current higher management;
- a culture of arbitrariness and repression, targeting not only outspoken union leaders, but also the most vulnerable members of staff: the old and the sick. They are now branded by the appraisal system as “lazy” or “incompetent” and placed on a fast-track for dismissal;
- a code of silence that makes it is impossible to raise awareness of a problem (particularly if it is due to the actions of top managers) without the fear of reprisal. This same culture also emerges in the EPO’s unwillingness to investigate properly the six suicides that occurred during the current presidency. Fortunately, a potential seventh suicide was miraculously averted only two weeks ago
- a culture of repression and impunity worthy of the most autocratic of regimes and curiously reminiscent of the scandal currently afflicting WIPO.
We must re-establish a social dialogue that is shaped by trust and cooperation, and not by fear, isolation or punishment. This dialogue must be held between management, Council and staff. We assure Mr Campinos that SUEPO, as the largest staff union within the EPO, wishes to take part in this process with a constructive attitude if there is a willingness on his side to create propitious premises. We propose bringing in an external expert and moderator, who may help to leave the previous path of arbitrariness and repression.
We propose that the new President consider establishing a multilateral Working Group, charged to:
a) Engage in truth-finding with respect to the following topics and recommend concrete
- action where necessary:
- the respect of and compliance with the rule of law and fundamental rights
- the dignity of staff, protection of the vulnerable
- staff welfare
- the relationship between working conditions and psychosocial risks
- work pressure and its impact on work quality
b) Revisit Council resolution CA/26/16, including reversing the sanctions of all staff representatives and union leaders, which are widely perceived as having been politically motivated.
c) Without questioning the spirit and goals of the recent reforms, identify any legal lacunae or incompatibility, identify any problems with implementation practices, and recommend concrete remedies.
We are aware that it takes time and good will to solve the problems lying ahead. SUEPO would readily accept an invitation to participate in such a working group and would spare no effort in working towards the success of its mission.
We can offer considerable legal and technical expertise and are ready to help as needed. Mr Campinos will find that SUEPO is a very reliable and predictable social partner. We look forward to being able to work with him soon.
Your SUEPO Committee The Hague
We shall comment on it in the near future. We shall also continue our series regarding Campinos and his past. █
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Posted in Europe, Finance, Patents at 1:54 pm by Dr. Roy Schestowitz
Picture showing the legendary “Dukatenesel” from the town square of Diekirch in Luxembourg
Summary: Some new details about Mr. Campinos, who is Battistelli’s successor at the EPO
Some interesting snippets of information about the earlier career of Mr. Campinos have emerged from a curriculum vitae in Spanish obtained from the website of the University of Alicante.
It turns out that after completion of his master’s studies at the Faculty of Law at the University of Montepellier in France in 1994, his professional career began as a legal advisor with the Portuguese bank Banco Caixa Geral de Depósitos, and its subsidiary Caixa Geral de Aposentações, where he worked from 1995 to 1998.
We shall soon start part 2 of this series. Stay tuned. █
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Posted in Europe, Patents at 1:39 pm by Dr. Roy Schestowitz
Summary: A much-discussed topic at the EPO is now the ever-declining quality of granted patents, which make or break patent offices because quality justifies high costs (searches, applications, renewals and so on)
THE world used to think that EPO-granted patents (EPs) were the best. We thought so too, but when software patents started to creep in, even after the ban, we began to feel worried. Then came the infamous “as such” moment of Brimelow, the President who soon thereafter left her job for Battistelli to take.
We’re not in a good place right now. Europe’s position is at stake. EPs play an important role in competitiveness.
Yesterday, Patently-O presented another graph. It’s a graph which can be interpreted as a patent bubble building up provisionally in the US. SIPO in China is probably doing even worse, with over a million patent applications last year alone (and many terrible patents being granted all the time). “For the chart above shows the percentage of US-originated utility patents that claim priority to one or more provisional filings, grouped by year of issuance,” Patently-O wrote. So the gold rush continues.
This morning we found this new article titled “Patents as a Technology and Marketing Resource” (yes, marketing!).
So right from the horse’s mouth (the patent microcosm) we now have admission that many patents are for marketing, not for innovation. For some nations, especially China and the US, there’s some false sense of national pride in the number of patents, as if the greater the number of patents, the more innovative they have become. Anyone with a scientific background knows that this is utter nonsense. This accomplishes nothing but litigation chaos (which already spreads to China, sometimes at the expense of the US). It’s already happening in Germany too (number of patent cases is soaring). It’s good for nobody but the litigation ‘industry’, which makes up much of Team UPC.
The above article says: “Patents and published applications are readily accessible via the website of the United States Patent and Trademark Office (USPTO) and via the websites of other countries or jurisdictions, such as the European Patent Office (EPO). Patent information is also available via commercial sites, such as Google Patents.”
To them, the litigation people, this is a sort of catalogue for stemming potential lawsuits, i.e. profit opportunities. At whose expense? The public, obviously.
What we worry about most (since we started covering EPO about a decade ago) is patent quality. It was always our focus.
Earlier today an EPO insider told us: “Observed at the EPO by an experienced examiner: At the EPO inexperienced examiners (e.g. 2 years of service) have to reached 85% of the target of an (very) experienced examiner. How to they do this? They skip reading large parts (if not all) of the description and they concentrate mainly on independent claims.”
As one of our members put it, “rubberstamping is obviously enough [and] the patent racket must go on” (hurting potentially innocent small businesses, sometimes putting them out of business).
“EPs play an important role in competitiveness.”Stories about EPO patent quality have begun coming out, mostly at IP Kat comments. There are many other issues, such as nepotism. To quote one new comment:
Sorry guys but you seem to be very critical about the quality of work at the EPO and this is not fair.
Look this chart : https://www.suepo.org/documents/42912/54300.pdf
It speaks for itself. Contrary to your allegatioins, it shows how good the quality of work at EPO must be if so many Battistelli’s associates now work at EPO.
La Famiglia
Then there are the EPO’s human rights abuses:
Do not forget the extraordinary quality of the investigative unit and disciplinary committees !
They always find the culprits among staff reps and union officials at a 100% rate !
It’s sometimes easy to lose sight of the fact that EPO was supposed to be an examination office rather than facilities where staff gets tortured, commits suicide etc.
No doubt the patent world is, in general, worthy of some scrutiny. Two days ago we saw this article titled “And He Could Have Been the Father of 3D Printing” (whatever they mean by father).
It perpetuates the invention myths (like the “little guy”, or the “sole inventor”, or “eureka moment”) and the notion that some things come into being overnight by a single person rather than evolved on the “shoulders of giants”. Wrongly asserting that something is “invented” because a patent got filed (1984 on 3D-printing in this case) is clearly misguided. 3D-printing is like printing or sculpting. Nothing too innovative about it, except it’s done by robot, typically managed by software. The article says: “That concept became the genesis of a 3D-printing patent that Masters filed in 1984 — before some of the most celebrated pioneers in what has become a $6 billion industry filed their own 3D-printing patents. Masters subsequently filed additional patents as well, though few have heard of the now-67-year-old grandpa from South Carolina. For those who have, Masters is better known as a pioneer in a very different field.”
Getting back to the original subject, let’s remember what patents are and what they exist for. To assume that without patents there would be no innovation? That’s just insane. That’s the kind of insane ENA thugs like Battistelli are likely to be, having never experienced science firsthand.
“During the Battistelli era,” said the next comment, “I have noticed a very clear degradation of quality in three aspects.”
Here is the full, long comment:
Re. the quality of work at the EPO, here’s my two pennies’ worth:
I’m a former EPO examiner, currently working as a professional representative, prosecuting quite a lot of applications both in Europe and overseas, and both for domestic and overseas clients. Consequently, I believe to have a decent insight into the current and past situation, as well as some points of comparison with other patent offices. My evidence is of course purely anecdotal, but I believe it to be rather representative.
Examination quality at the EPO has historically had three strong points and one weak point: the strong points were quality of search, supervision of the primary examiners’ work thanks to the three sets of eyes’ system at the examination division, and consistency in the evaluation of inventive step thanks to the problem-solution approach and how it’s drilled into examiners’ heads during training. The historically weak point has always been bad training concerning clarity, which is related to the “once it’s granted, it isn’t our problem any longer” view of patents at the EPO, leading to a very formalistic, by-the-numbers examination of clarity at the EPO, without taking into account the actual purpose of the patent claims: determining whether there is infringement or not. There have of course always been outliers with respect to quality, individual examiners clearly unable and/or unwilling to do a proper work, and a clear lack of accountability of these examiners, but thankfully it has historically been a very small minority.
During the Battistelli era, I have noticed a very clear degradation of quality in three aspects. The first is quality of search: I more and more often see other patent offices (mostly USPTO and China’s SIPO, but even the New Zealand PO) come up with “killer” prior art for applications that passed the EPO’s search report with flying colours. This is of course intensely frustrating for my domestic clients, who choose to invest significant money in foreign filings based on the EPO’s search report to see the application then squashed abroad. The second issue is an increasing tendency by examiners to “push” applications to grant, with examiner amendments that are too restrictive (without consulting me first), unwittingly introduce added matter and/or are riddled with clerical and language errors. I’m losing count of the times I’ve had to file requests for correction of the text intended to grant due to an erroneous amendment by the examiner. The third issue is a worrying readiness to summon to oral proceedings as a means to pressure the representative to accept amendments proposed by the examiner. Requests to hold the OPs by videoconference are of course systematically denied without much reason, putting representatives not based in Munich or The Hague at a clear disadvantage.
Knowing the EPO’s internal production evaluation system, it is quite clear that every one of these problems has Battistelli’s productivity pressure at its source. Examiners pushed to churn out increasing numbers of “work products” (search reports and grants/refusals) at the end of the year cut corners in search first, and then in the exchanges with the representative during examination. This has, in many ways, negative effects on applicants and professional representatives as much as on third parties. It appears that I’m not the only person working “at the coal face” of patent prosecution to be aware of these problems, and that we should start making our complaints better heard at the level of the AC.
The next comment is good too:
So it was a “tactical” decision by the “rebel” AC delegations not to strongly resist the current President and his horrible policies? Hmmmn.
To quote John Stuart Mill: “Bad men need nothing more to compass their ends, than that good men should look on and do nothing”. That applies pretty directly here, doesn’t it?
And, pray tell, what did the “rebel” AC delegations stand to lose by registering their dissent? They certainly would not have lost their standing or their vote, so what were they afraid of risking? As I see it, the only two possibilities are money and influence. The former is no excuse to look the other way whilst bad things happen under your watch. The latter is more complex but also, ultimately, no excuse. What is the point of biding your time in order to regain control when what you seek to control is being systematically dismembered in the meantime?
There is also another evil that is committed by the “rebel” AC delegations remaining silent. That is, is covers up the utterly dysfunctional nature of the AC, where the President (eg through judicious use of “cooperation” projects and budgets) appears to be able to “buy” the undying loyalty of certain AC delegates. Covering this up delays, or perhaps even prevents, reform of the governance of the EPO that is so obviously (and so urgently) required.
It may not be “diplomatic”, but sometimes it is essential to take a strong stand against evil – even if that risks provoking conflict. Why? Because sometimes those that we struggle against are either sociopaths or psychopaths who will stop at nothing to achieve their own, selfish aims. That would seem to apply pretty directly here as well, eh?
The next comment spoke of “[t]he election of Campinos, a man with a career riddled with scandals…”
We’ll soon start a series about that. Here is this comment in full:
I would like to inform “glad to be out of the mad house” of our internal regulations. We are not supposed to write more than one communication as “speed of procedure” has top priority. The number of extra communications is counted for our search report and I know of colleagues who were quietly suggested to retire because they were writing too many. Some directors did not apply this untold rule, but 60 or so directors are out of a job since last summer. Statistics on why these particular directors were sacked are not available. Part of their posts are still open.
So effectively, as an examiner, you cannot write extra communications. The only options are oral proceedings or grant with examiner written amendments. You can complain about it to your earth’s content, it will have no effect. Our management has as much contempt for the applicants as for the staff. And why wouldn’t they? They are effectively immune to everything. The election of Campinos, a man with a career riddled with scandals should prove it.
About searches: the new examiners are only trained in our new system called ansera. It finds prior art mostly automatically, you saw the results.
Citing something which we covered before (back in summer), someone recalled how Battistelli gets his way:
The current situation at the EPO is described in the Bijblad bij De Industriële Eigendom for April 2017.
https://www.rvo.nl/sites/default/files/octrooiportal/2017/04/Bijblad_2017_nr_2_april.pdf
“The Administrative Council (AC) of the European Patent Organization (EPO) held it most recent meeting on 15 and 16 March 2017.
To begin, the AC has now lost a lot of ground only a year after the AC itself gave very clearly defined tasks to the EPO President Battistelli with a unanimous resolution. Due to his evident influence over a large group of smaller states Battistelli does not have to worry about the smaller group of larger critical patent countries (CH, NL, DE FR, GB, SE). An unreal situation.”
As we’ve said many times before, IP Kat has become pretty useless for anything but the comments. █
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Posted in America, Europe, Patents at 12:42 pm by Dr. Roy Schestowitz
Summary: The UPC push seems to be coming from firms which not only fail to represent public interests but are not even European
THE UPC is a dead or dying project, but Team UPC and Team Battistelli (a small bunch of hooligans at the EPO) refuse to let go.
We need to keep a close eye on these manoeuvres and we invite readers to send us more information because Team UPC always prefers secrecy (except when it lies to the public, whereupon it uses gullible journalists as couriers).
“The Empire strikes back,” a reader told us today. “After the recent turbulence at the MPI event in Munich on Friday the 13th (!), in which concerned Munich patent attorneys and representatives of industry rained on Mr. Ernst’s parade, it now seems that the pro-UPC forces are launching a counter offensive. This event is scheduled for 6 November at 15:00 in the Event Pavilion in Nymphenburgerstraße 3B in Munich.
“We need to keep a close eye on these manoeuvres and we invite readers to send us more information because Team UPC always prefers secrecy (except when it lies to the public, whereupon it uses gullible journalists as couriers).”“According to the press release: “ANAQUA initiates a Dialog about the Future of the European Patents”.
“The organisers of this event are ANAQUA Inc., a Boston-based (!) provider of intellectual asset management (IAM) and SaaS software and services.”
As a reminder to our readers, IAM organised a US-based event for UPC advocacy — an event which was funded by the US-based PR firm of the EPO and directly supported by the EPO.
“As a reminder to our readers, IAM organised a US-based event for UPC advocacy — an event which was funded by the US-based PR firm of the EPO and directly supported by the EPO.”“The speakers are Michael Fröhlich from the EPA,” our reader continued, “Philipp Nordmeyer from Munich-based patent law firm df-mp and Dr. Heiner Flocke who is the Chairman of the German industry association “Patentverein.de”. The discussion will be chaired by Wulf Höflich of the Munich-based patent law firm AKLAW.
“More details about the event can be found here (in German) and an English version of the press release about the ANAQUA event can be found here (“Anaqua Hosts Dialogue on the Future of European Patents”).
“Attendance requires registration before 27. October. The e-mail address for registration is: mklein@anaqua.com.”
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Posted in America, Patents at 6:36 am by Dr. Roy Schestowitz
Summary: The appeal board in the US (PTAB) combined with a key decision of the Supreme Court may mean that even at a very low cost software patents can be invalidated upon demand (petition) and, failing that, the courts will invalidate these
Unwired Planet (formerly known as Openwave) is a patent troll that’s controlled by Ericsson. It is very malicious and it has already targeted the UK too. According to this (more reports from this event can be found at IP Kat), the troll was discussed in Australia and Ruschke from PTAB was there too. Here is the relevant section:
Arguing before a jury is second nature for experienced US patent trual lawyers. According to PTAB Chief Judge David Ruschke, that fact accounts for one of the biggest mistakes parties make in IPRs. Those same trial lawyers are still trying to figure out how best to argue at PTAB proceedings, Ruschke told a panel on post-grant procedures around the world. “You’re not talking to a jury, you’re talking to a panel of technology and law experts,” the judge reminded practitioners. “Some counsel try to tell a story like they would tell to a jury, but then can’t answer fundamental technical questions,” he observed. Ruschke said he was well aware that the PTAB has received what he called “challenging press” and assured attendees that he does not turn a blind eye to it. But he emphasised that the post-grant system is still very much in a transition period.
That’s almost the equivalent of the EPO‘s appeal board (albeit there are fundamental differences).
PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost. No wonder the trolls’ lobby wants so badly to squash PTAB itself.
According to yesterday’s press release from StrikeForce, it managed to escape PTAB’s scrutiny. The funny thing is, this company actually paid money to brag that it had managed to dodge scrutiny of its crappy patents (which would probably have been trashed by PTAB, based on their description which invokes Alice).
“PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost.”Also yesterday there was this press release from FatPipe Networks, which calls itself “the inventor and multiple patents holder of software-defined networks” (i.e. software patents).
Unless they can pretend that the software is somehow physical (an impossibility), these patents are likely worthless.
Eric Lavallee from Lavery de Billy LLP has just published this article, openly urging people to disguise software patents as something else like “AI” (a fashionable buzzword these days even though the concept is far from new). To quote:
The initial instinct of many entrepreneurs would be to patent their artificial intelligence processes. However, although in some instances such a course of action would be an effective method of protection, obtaining a patent is not necessarily the most appropriate form of protection for artificial intelligence or software technologies generally. Since the major Supreme Court of the United States decision in Alice Corp. v. CLS Bank International, it is now acknowledged that applying abstract concepts in the IT environment will not suffice to transform such concepts into patentable items. For instance, in light of that decision, a patent that had been issued for an expert system (which is a form of artificial intelligence) was subsequently invalidated by a U.S. court.2
Law firms are just trying to ‘dress up’ software patents as “AI” to bypass the simple law that renders them worthless.
When will the wider public realise that software patents are virtually dead now? It’s very hard to actually enforce these in a court of law.
“When will the wider public realise that software patents are virtually dead now? It’s very hard to actually enforce these in a court of law.”“Software patents provided some limited protection,” yesterday’s article from Venturebeat said, “but feature wars rage on.”
Programs live or die based on their features, not based on patents that are basically dead now (no leverage to gain from them).
Let’s face the simple fact that Alice changed everything. Last night the EFF published yet another story about Alice, this time regarding blackmail by “My Health”. To quote some portions:
Alice Saves Medical Startup From Death By Telehealth Patent
[...]
When Justus received the demand letter, he was shocked. He read the patent, and it seemed incredibly mundane. It didn’t offer any of the technical detail that Justus knew went into building a complex product like the one offered by MyVitalz. It gave no explanation on how to accomplish any of the goals it claimed. Instead, it seemed to claim the idea of telehealth itself. Justus thought, “I put in four years of work to build my product, and this patent seems so basic.”
“It almost felt as though my business was being blackmailed,” Justus says. “Sure, I could make the threat go away with a payment that would be less than the cost of litigation. But I refused to pay just to be able to keep running my business which I’d devoted my life to building.”
Justus scoured the Internet for information that could help him with My Health’s demand. He tried to figure out how he could defend himself, knowing that to do so would likely mean selling his personal assets to afford a lawyer.
[...]
Thanks to Alice, Justus never heard from My Health again. He’s now back focusing on what matters most: helping people get better health care.
Patent filings at the USPTO are still growing, but legal actions have collapsed. In the coming years we can expect further reduction in the number of patent cases, bringing the system closer to its roots (and further away from extortionate litigation). █
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Posted in America, Deception, Europe, Patents at 5:36 am by Dr. Roy Schestowitz
Summary: The desperate attempts to change the narrative in the press culminate in nothing more than yet another misleading article from Rana Foroohar and some rants from Watchtroll
The patent trolls lobby, not the “pro-patent lobby” as IAM called it yesterday, is attempting to warp the debate. In general they’re losing; the laws are being changed against them. So what makes IAM think that this “lobby in the US finally seems to be getting its act together and so the narrative is changing”? They just got that nonsense in the Financial Times (as we pointed out earlier this week). To quote: “if a recent Financial Times article is any guide, the tide might be turning. Headlined “Big tech versus big pharma: the battle over US patent protection”, the article goes through a series of complaints from patent owners, that includes the full list of Supreme Court cases familiar to all readers of this blog. Its hook is the danger of pharmaceutical companies declining to invest in new drugs if they are unable to effectively defend their IP; but the story makes clear that it is not just the large, brand name drug companies that are concerned – it cites similar feelings among semiconductor and electronics firms, universities and the venture capital community. “The large drug companies are only one voice among many that have begun to complain about how shifts in the US patent system over the past decade have weakened the ability of companies to protect their innovations,” writer Rana Foroohar states.”
“The patent trolls lobby, not the “pro-patent lobby” as IAM called it yesterday, is attempting to warp the debate.”Foroohar has a track record of publishing misleading nonsense about patents. We did debunkings before. And look at the name of her section. It’s rather revealing.
One might say that the Financial Times, now paid by the EPO, has dedicated itself to patent indoctrination for the litigation ‘industry’. They even created sections and campaigns for the EPO’s management, i.e. not for examiners. They’re a compromised publication.
“Foroohar has a track record of publishing misleading nonsense about patents.”Also yesterday it was Gene Quinn (Watchtroll, the trolls’ lobby) bemoaning the crackdown on patent trolls, inadvertently exposing what Watchtroll really is (and stands for). According to Watchtroll (2 days earlier), it seems likely that Trump has put the fox in charge of the hen house, but it may be premature to tell. We ought to give him the benefit of the doubt (if he is at all going to head the USPTO).
“One might say that the Financial Times, now paid by the EPO, has dedicated itself to patent indoctrination for the litigation ‘industry’.”All in all, the supposition that things are becoming somehow better for patent trolls/aggressors is delusional at best. IAM has an incentive to claim so, having been paid by trolls. And speaking of trolls, watch what RPX stated in is press release a few days ago: “As of June 30, 2017, RPX had invested over $2 billion to acquire more than 18,000 US and international patent assets and rights on behalf of over 320 clients in eight key sectors: automotive, consumer electronics and PCs, E-commerce and software…”
RPX markets itself as a sort of shield against trolls. Whether anything good will come out of it remains to be seen because some people — rightly or wrongly — accuse RPX itself of being a potential troll. █
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