11.02.17

The Screws Tighten on Benoît Battistelli as His Departure is Just Two Seasons Away, Media Still Largely Complicit

Posted in Europe, Patents at 2:37 am by Dr. Roy Schestowitz

Heise EPO sign
Photo credit/source: Heise

Summary: A roundup of recent developments and scarce media coverage regarding the EPO, where several national holidays are being ‘stolen’ from staff and nobody outside the EPO seems to care

SEVERAL people told us about yesterday’s article from Stefan Krempl, who is familiar with EPO matters. He wrote about these for years. It’s a very interesting article from Heise and many thanks to Stefan Krempl, an excellent journalist who does cover real EPO issues (not many in the German media are doing this).

“…many thanks to Stefan Krempl, an excellent journalist who does cover real EPO issues…”SUEPO has not mentioned (or noticed) it yet, but SUEPO is likely to translate such a report, which also contains many links within it. Here is a purely automated translation. They don’t mince words:

European Patent Office: union calculates in 95 theses with the top authorities

The employee representation SUEPO has freely distributed a manifesto on social strife at the European Patent Office after Luther. The allegations against management range from deafness to the workforce to nepotism.

In keeping with the day of the Reformation, the International Trade Union in the European Patent Office SUEPO on Tuesday after Martin Luther ” struck” 95 theses at the headquarters of the authority in Munich. In the six-page paper, which is available online, the employee representation raises serious allegations against the management and especially against the incumbent boss Benoît Battistelli . This made the organization “deaf and blind to the worries” of the workforce and pursued their representatives disciplinary . Such a confrontation course is “doomed to fail”.

At the heart of the criticism is headed by Battistelli with an established appraisal system that focuses on productivity and “demands higher numbers every year” . Such an approach creates false incentives and “leads to excessive work pressure,” which in turn also causes superficiality and errors, thus hindering higher efficiency . Erroneously granted patents, in turn , unlawfully hindered competition and were a favorite food for trolls . Among them suffer the European economy as a whole and especially the middle class.

From servant to principal director

The core task of the European Patent Office ( EPO ) is, in accordance with the European Patent Convention ( EPC ), the “substantive and formal review” of applications, the union stresses. This should not be neglected to increase the productivity and income of the EPO and its contracting states. Aggravating added was nepotism: The closest confidants of the President have risen in a short time from ordinary administrative staff to chief directors. They would have approved themselves by changing the career system “significant salary increases” and professional freedoms. His own salary and the surcharges and reimbursements paid to him kept Battistelli secret.

Half of the directors “in the substantive examination” as well as “all managers in the patent administration” have been relieved of their function, it goes on. The president even curtailed the holidays by removing the freedom of work on Reformation Day 2017, as well as on All Saints’ Day and Corpus Christi of 2018. The fact that Battistelli praises a “package for the disparagement of its officials” under the slogan “Social Democracy” show indifference and a lack of respect for the employees.

SUEPO for fast deposition Battistelli

The EPO is not concerned with national or European labor law or data protection directives, nor with international conventions such as the human rights conventions, complain the authors. It believes the leadership enjoys almost total immunity from jurisdiction and law enforcement by national authorities. SUEPO therefore advocates dropping off Battistelli before the official end of his term in office next June and introducing comprehensive reforms. The Frenchman himself has long been misunderstood by a “mafia-like” trade union campaign and regularly rejects complaints. ( Stefan Krempl ) / ( axk )

What we are hoping to see, some time in the future, is an EPO that actually cares about patent quality. As it stands at the moment, it’s just a production line of bad patents. Examiners who don’t embrace this spiel will be fired, so they’re left with the option of doing shoddy work or becoming unemployed (‘stranded’ with their family in Munich). No wonder they’re so stressed. They lose either way.

“Examiners who don’t embrace this spiel will be fired, so they’re left with the option of doing shoddy work or becoming unemployed (‘stranded’ with their family in Munich).”As longtime readers may know, our only (and original) issue with the EPO was software patents. Árpád Petho, József K. Tálas and Eszter Szakács of Sár and Partners Attorneys at Law have just said that “[i]n Hungary, software may not be patented” (as is the case in every other European country). The EPO is trying to change that, especially by introducing the UPC. Here is the full analysis or the part about business methods and software (which mentions the EPO):

To what extent can inventions covering software be patented?

In Hungary, software may not be patented as such (Articles 1(2)(c) and (d) of the Patent Act). However, software may be protected by other types of intellectual property (eg, copyrights, know-how and business secrets), and may be brought to the Hungarian Intellectual Property Office as proof of ownership.

The Hungarian Intellectual Property Office and the European Patent Office (EPO) typically reject software due to a lack of technical character. The prevailing approach is to deny the possible technical character of any solution achieved by software; however, the EPO is slowly moving away from this rigid standpoint (as are IP offices in other EU member states, albeit at a slower pace).

Some applications based on software (ie, so-called ‘computer-implemented inventions’) may be patentable provided that they do not cover only an organisational issue or abstract question. In other words, if the claims are formulated in a way that demonstrates that the software is used to solve a technical issue (eg, comparing the strength of two electric signals and storing the result in the memory), the invention will be considered a technical solution and may be patentable. However, patent attorneys must be skilled and able to formulate the claims in a way that benefits from the evolving practice of the Hungarian Intellectual Property Office.

To what extent can inventions covering business methods be patented?

In accordance with Article 1(2)(c) of the Patent Act, business schemes, rules and methods may not be patentable as such. Nevertheless, they may be protected by know-how or brought before the Hungarian Intellectual Property Office, provided that the method is in writing.

However, when rules or methods are part of a system that consists of technical elements, the patentability of the entire system may be considered. In a similar way to software, patentability largely depends on the system or solution to be protected and the way in which the claims are formulated.

Readers are reminded that even in the United States, ‘home’ of these kinds of patents, such patents are no longer valid (can barely be enforced in court). So the EPO now goes further than the USPTO, enforcing or at least granting patents which the USPTO itself (or corresponding Supreme Court) decided were a bad idea.

“As longtime readers may know, our only (and original) issue with the EPO was software patents.”Speaking of the US, Watchtroll is now publishing press releases for the EPO. This happened 3 days ago. How much does it get paid for this? And who is paying, the EPO? Does it pay to disseminate this nonsense in the US too?

Watchtroll is a US proponent of patent trolls, software patents etc. so it obviously promotes the UPC too.

“Watchtroll is a US proponent of patent trolls, software patents etc. so it obviously promotes the UPC too.”A similar puff piece was posted yesterday by a site close to IAM. “The current executive director of the EU Intellectual Property Office (EUIPO), António Campinos, has been selected as the next president of the European Patent Office (EPO). He will serve a five-year term from July 1 2018, succeeding Benoît Battistelli,” it said (the rest behind a paywall).

This same site previously speculated that the Belgian former EPO worker might take over EU-IPO, spurring speculation about back room deals with Belgium. Now we know more about it and it does, in fact, seem like such an agreement existed. It’s despicable. It should be a massive scandal (if the media actually bothered covering EPO scandals). Why aren’t stakeholders complaining?

“It is hardly surprising the EPI is not making any protest,” one reader told us. To quote his/her explanation:

To understand the situation here it is worth having a look at Article 143a EPC:

http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ar134a.html

According to Article 143a(1)(a) the Administrative Council “shall be competent to adopt and amend provisions governing the Institute of Professional Representatives before the European Patent Office…”.

The Administrative Council is also responsible for adopting and amending the provisions governing “the disciplinary power exercised by the Institute or the European Patent Office in respect of professional representatives” (Article 143a(1)(c).

It seems that the EPI enjoys very little real independence and is basically under the thumb of the EPO’s the Administrative Council. Patent attorneys who dare to voice criticism of the goings-on at the EPO risk disciplinary action in front of a Disciplinary Board which is very much if not completely under the influence of the EPO.

The media, with few exceptions like Heise every now and then, is complicit in silence about it. On EPO silence/media blackout, a comment said yesterday,
“of late, IPKat has been guilty of dereliction of duty in this regard.”

Here is the full explanation (IP Kat only approved this comment days late for some reason):

It’s not about what interests the contributors but their (professional) judgement on what should and should not be posted.

It cannot be the case that there are no individual amongst the IPKat contributors that are not “interested” in momentous developments at the EPO. It therefore becomes a matter of judgement of the contributors regarding which developments they comment upon, and how they comment upon them.

I therefore think that it is perfectly legitimate to call into question whether, collectively, the judgement of the contributors is wise or not. Unless there is some very significant non-public information to which the contributors are party, then my conclusion would be “not”. This is because I do not see why a blog dedicated to all matters (European) IP should avoid discussing a topic merely because it is controversial (or “political”).

Bad things can happen in the shadows, and so an extremely important duty of the “media” is to illuminate a situation. I cannot help but feel that, of late, IPKat has been guilty of dereliction of duty in this regard.

It’s pretty telling that EPO scandals don’t exist to IP Kat anymore. There’s nothing at all about in the summaries, not even in yesterday’s “Wednesday Whimsies” (that’s a roundup). Their recent roundups even ignore their own articles regarding the EPO.

“We remind readers that today’s IP Kat is not what it used to be.”Who are these bloggers kidding? They actually silence and actively suppress discussion about EPO scandals. They have become part of the problem.

As annoying it may be that everyone turns a blind eye to EPO abuses, in a sense it helps us because it means less “competition”. But at the same time, it would be nice if the issue received widespread coverage like FIFA scandals or Dieselgate.

We remind readers that today’s IP Kat is not what it used to be. We loved the old IP Kat, but now it’s more like a gatekeeper, shutting out debates about what happens at the EPO, instead focusing on purely technical matters like the doctrine of equivalents and BoA decisions. There’s a long discussion there (many comments), also covering the EPO. One person has asked: “Where would we end with the certainty presently found in the case law of the Boards being put aside?”

“Battistelli violated the EPC many times, essentially disrespecting the very document that gives the EPO authority to operate.”Well, the Boards are being kicked out (they’re already kicked out of Munich) — a fact that IP Kat incredibly enough failed to cover.

Another comment said: “The Protocol on interpretation applies to Article 69 only, not Article 54 EPC.”

Not that the EPC matters anymore. Battistelli violated the EPC many times, essentially disrespecting the very document that gives the EPO authority to operate.

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