11.17.17
Posted in America, Europe, Patents at 7:43 pm by Dr. Roy Schestowitz
Issuing lots of garbage patents is not a long-term strategy but akin to organisational suicide and immesurable harm to all existing EPs
Summary: Benoît Battistelli and Elodie Bergot further accelerate the ultimate demise of the EPO (getting rid of experienced and thus ‘expensive’ staff — see above), for which there is no replacement because there is a monopoly (which means Europe will suffer severely)
THE EPO‘s management had bet the farm on UPC and it wasn’t just unethical and reckless; it was terrible for everyone.
We already know who UPC was for. It was for few multinational giants and their litigators — firms such as Bristows.
Bristows staff (“AmeriKat”) which was accused of "brown-nosing" Colin Birss (after he had ruled to the benefit of patent trolls) is doing it again today and quoted from within her previous post (quote from the European Judges Forum): “death is a certain change of status, a passage to a better status. I believe so, and I believe the UPC will live with Orpheus … and all the others that had lived a life of honor, and have died of an unjust sentence.”
Another quote from that speech: “Therefore, it is clear to me that we do not need the UPC, since everything is dealt with in the Court of Milan. I would suggest to pack up and go home.”
Yes, things are very grim for the UPC. Even insiders say so and Bristows staff goes through the effort of translating/publishing that.
Read the latest comment on this (about how “EPO itself considers that it is only obliged to be bound by “G” decisions”):
While reference has been made to establihshed case law of the EPO, it is clear from numerous decisions that the EPO itself considers that it is only obliged to be bound by “G” decisions. In many decisions it has been pointed out, seemingly mainly to UK authorised representatives, that the EPO relies on a legal code (the EPC) and, unlike Anglo-Saxon legal practice, is not necessarily bound by precedents because non-”G” decisions are not “case law” as per UK practice.
See for example T 0154/04: para 2.
2. …. the legal system of the European Patent Convention gives room for evolution of the jurisprudence (which is thus not “case law” in the strict Anglo-Saxon meaning of the term) and leaves it to the discretion of the boards whether to give reasons in any decision deviating from other decisions or to refer a point of law to the Enlarged Board.
G 0003/08 : reasons:
7.3.1 Development of the law is an essential aspect of its application, …. That is especially true of Anglo-Saxon law, where a decision on an individual case has far greater implications as a precedent than judgments in continental civil law.
T0910/06
2.8 To the extent that the absence in the decision under appeal of any reference to the “established case law” … is seen in itself by the appellant as a “substantial procedural violation” it must be recalled that unlike some Anglo-Saxon legal systems which are precedent driven, the instances of the European Patent Organisation work within a codified system of law, i.e. the European Patent Convention and its implementing regulations, and are constrained by case law only in the case of decisions handed down by the Enlarged Board of Appeal.
Benoît Battistelli has basically, and quite blatantly, attacked the authority of these technical boards. At what cost?
Well, we already know that (and earlier on wrote about) the EPO prioritises US corporations, not European ones. To make matters worse, the EPO is consulting the legal ‘industry’ (firms such as Bristows and their front groups) rather than scientists. Hours ago the EPO published this: (warning: epo.org link)
This year’s meeting of the US Bar-EPO Liaison Council, a forum to facilitate informal exchanges with US applicants, took place at the EPO’s Munich headquarters on 15 November. Consisting of representatives of IP special-interest groups and IP sections of State Bar associations, the Council provides the EPO and US Bar representatives with an excellent opportunity to discuss contemporary issues in the patent system and to address questions of mutual interest. For the EPO, it is also a valuable opportunity to present recent developments at the EPO and gather feedback from US users, currently the EPO’s largest origin of patent applications.
[...]
Feedback from US Bar members revealed that the meeting had helped them deepen their understanding of European patent practice and they welcomed the possibility of another such meeting in 2018.
Notice who’s in attendance. No wonder the EPO is nowadays just reduced to shameless UPC lobbying. No wonder the EPO has seen the number of patent applications declining this past year. “EPO Jobs” said a few hours ago that “The @EPOorg is reducing a number of fees. Head over to the President’s Blog to read all about it…”
Well, as we explained before, Benoît Battistelli may be trying to cook the books. Lower cost means that more applications might be filed (albeit bringing less income). Gaming the numbers? Either way, the writings are on the wall. The value of EPs has gone down considerably, patent quality is nowhere near what it used to be, and earlier today someone told us this:
I don’t see how the EPO is going to find recruits under that new contract form.
The EPO only recruits examiners fresh from the University. They don’t want anything else and the pay for people with experience is not attractive anyway, especially in Munich where the industry is also recruiting engineers and scientists. But for someone fresh from the University, the first job will determine the rest of your career. An employer will typically look at your past 5 years experience and not at your diplomas any more. So if you start your career with patents, it will be very difficult to do anything else afterwards.
But in patents, there are only two jobs: patent examiner and patent attorney. The EPO is basically the only provider of patent examiner jobs in Europe, so if they fire you after 5 years, that road is closed. Patent attorneys cannot absorb a significant number of recruits either. They never did, they are not going to change their policy when the office starts laying off people in significant numbers after 5 years. So, basically, after 5 years you are out of a job with no perspective.
Besides I don’t understand the need for the new policy. The EPO can already fire people at will, they even did so for a judge and some staff representatives.
Suffice to say, this is a recipe for disaster. There’s no substitute to the EPO in the form of UPC, there’s no imminent redemption for the appeal boards, and if things go along the same trajectory, patent backlog (queue) will have run out next year, rendering many examiners redundant. Short-term contracts serve to indicate that EPO management already has this expectation. The EPO is shrinking and growing irrelevant. Battistelli stole all the golden eggs (and many bonuses). █
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Posted in Europe, Patents at 4:50 am by Dr. Roy Schestowitz
Their goal is to have more European companies sued (lawyers profit from it)
“The day that the software sector forms a clear front against software patents, as pharma does for a unitary patent system… will be the day our cause comes close to winning.” —Pieter Hintjens (he died last year)
Summary: The tough reality that some Europeans actively work to undermine science and technology in Europe because they personally profit from it and how this relates to the Unitary Patent (UPC), which is still aggressively lobbied for, sometimes by bribing/manipulating the media, academia, and public servants
WE HAVE often shown that EPO benefits US interests more than European interests because large multinational corporations take precedence/priority over local European companies. Moreover, the EPO often contracts US-based companies, e.g. for PR/reputation laundering. What is even the point calling it EPO? The only “European” thing about it is the staff. We said that years ago.
“What is even the point calling it EPO? The only “European” thing about it is the staff.”Yesterday, the EPO published (warning: epo.org link) this news [sic] that reinforces the view regarding detachment from science and technology. The EPO listens not to industry or actual engineers; it does not even listen to European ones. It often feels like the EPO is working for US lobbies (IPO and AIPLA, which are aggressively in favour software patents [1, 2]) and in the EPO’s own words:
The EPO and the Intellectual Property Owners Association (IPO – a US association of patent attorneys mainly in industry) have a long standing relationship. IPO is, together with the AIPLA, the American counterpart for Trilateral and IP5 industry meetings.
What an inappropriate meeting. Longtime readers of ours probably know the true nature of IPO and AIPLA; they are not friends/allies but foes/enemies of science and technology. They only serve themselves. What motivates the EPO to meet them? As a reminder, the number of US applications for European Patents collapsed in the past year. Battistelli tries to cook the books by lowering fees now (game the numbers) and maybe he’s trying to get these trends reversed. Whatever the motivation, it’s rather infuriating because it in no way serves the underlying goals of the EPO (as per the EPC). It’s a disservice not only to Europe but to innovation worldwide.
“It’s a disservice not only to Europe but to innovation worldwide.”And speaking of toxic front groups, watch what CIPA has just posted. CIPA is a dangerous cult which lobbies governments for the UPC and thereby attacks British and European interests. Its UPC advocacy is only one among many nefarious activities and now it quotes this: ““We have been trying to move to something like a Unified Patent Court for 45 years and now is the time to get it done,” Kevin Mooney, Chair of the Drafting Cttee for the Rules of the UPC, tells #CIPALS2017″ (yes, that’s a lobbying event of CIPA).
Team UPC’s Bristows has also just posted something about the European Judges Forum, which turned into UPC lobbying in the form/embodiment of Alexander Ramsay. To quote IP Kat (where CIPA is now among those in charge):
This, the 12th year of the conference, saw 35 judges of 15 nations (Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Latvia, Netherlands, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom) pull together. They were joined by 31 European lawyers and seven officers of the EPO. This year, the forum debated SEP and FRAND, discretion on injunctive relief under the UPC, case law on damages and an update on the UPC from Alexander Ramsay. The focus of the forum was a mock trial decided by judges from the Netherlands, Sweden, Italy and Germany.
Be sure to read the first comment there, as it’s complaining that UPC “pleading from vested interests, parties with “an Agenda” is enough to make one puke” (the author of this post is an integral part of Team UPC). Here is the full comment:
as to the usefulness of the UPC, here is what I posted, earlier today, to the Kluwer blog:
When it comes to the UPC, the level of pleading from vested interests, parties with “an Agenda” is enough to make one puke.
I started in the patent profession before the EPO, in the days prior to the Protocol on Art 69 EPC, when Germany decided scope of protection one way, and England in a very different way.
Since then, there has been ever greater harmonisation throughout EPC-land, and a huge gain in legal certainty. Not because of any pan-European court but because of enlightened performance at the EPO (until recently), and comradely behaviour from the patent judges in the leading EU jurisdictions. Judges are only human. They want their clear and logical thinking to be adopted by their brother and sister judges in the other jurisdictions. Bear in mind that these other jurisdictions have very different procedural law. But they come together regularly, to debate and minimise their differences, which are steadily diminishing (see the latest Decision by the UK Supreme Court, to aligh itself with mainland Europe).
This rivalry between different procedures and different legal interpretations is what improves the clarity of the law of infringement in the whole of Europe. If you doubt me, observe how rivalry between the various Technical Boards in EPO DG3 has produced a body of caselaw, in the White Book of Established Caselaw, that is unassailable in its logic and so has swept the world. For the most recent example, see the current IPKat interview with the Head of the Patent Office in Australia.
The proponents of the UPC should be ashamed of themselves, sacrificing all this legal certainty and harmonisation at the behest of the multi-national corporate interests, the bulk users of the EPO patent grant service, to rid themselves of the attentions of troublesome SME patent owners. And we were doing quite well enough recently, with engineering disputes litigated in Germany and pharma litigation concentrated in London, and no need to litigate everywhere in order to resolve the dispute.
As Robin Jacob has said “We can learn from the Americans. Watch what they do, and don’t then make the same mistakes”. Introducing this UPC is to make the same mistake as the Americans. And note, for the same reason.
Germany, the home of the SME engineering manufacturer is, with its Constitutional doubts, is belatedly seeing the light. Better late than never.
Europe continues to be besieged by a very small group of people who secretly put together the UPCA, held secret/exclusionary events to advocate the UPC, and lobbied/corrupted politicians to ram it all down Europe’s throat (even if by showing up at 1AM — past midnight that is — to covertly vote in favour and then deny public access to what actually happened that night).
“It’s not even alarmist, that’s just the reality of it, however bluntly we sometimes put it because most of the media is complicit (cooperative with the coup for short-term gain).”The whole thing, as described above, represents serious corruption at the very heart of Europe. It’s systemic/organised corruption and the sooner we recognise it, the better we can tackle it. We didn’t spend the past decade antagnosing the UPC (it wasn’t always known as “UPC”) for no reason at all. It’s not even alarmist, that’s just the reality of it, however bluntly we sometimes put it because most of the media is complicit (cooperative with the coup for short-term gain). █
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