04.27.19

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The ‘Technical Effect’ of Attacking the Independence of Judges at the Boards of Appeal and Ignoring/Breaking the Law

Posted in America, Europe, Law, Microsoft, Patents, RAND at 8:28 am by Dr. Roy Schestowitz

Technically Boards of Appeal are still controlled by the EPO’s President (whose positions they’re supposed to scrutinise and sometimes oppose)

António Campinos fair trial

Summary: Europe continues to be threatened by the lawless EPO, which is promoting software patents, FRAND patent trolls, UPC and even more toxic things; judges and the rule of law do not seem to matter anymore (they’re being intentionally discarded because they stand in the way of law firms’ profits and EPO revenue)

Lawlessness is alive and well — even thriving — at the European Patent Office (EPO). How can one expect António Campinos to respect and obey the law when he cannot even discipline/educate/convince his own son that laws are to be obeyed? He himself is showing blatant exhibition of gross nepotism within just months at the Office and likely violations of EU law since his EUIPO days where appointments appear to be sold. It’s all rigged. Laws don’t seem to matter to these people. Campinos ignores the law with more tact (or more smiles). He’s a storyteller. All he can do is lean on his father's name — a person who was apparently not likable except by those at the top. It’s a good decoy. Effective marketing.

“Campinos ignores the law with more tact (or more smiles).”This latest comment at IP Kat discusses how the EPO is still breaking the law or violating the EPC by punishing all judges with an exile to Haar (which is technically not Munich at all):

Yes, I understand that “Landkreis München” does not itself include the city of Munich. Perhaps my question was unclear. What I mean is: why can the meaning of the word “Munich” in the EPC not simply be interpreted to mean “a location which is EITHER in the city of Munich OR in Landkreis München”? i.e. that “Munich”, for the purposes of the EPC, means the combination of the city Munich *and* the Landkreis which shares its name? This way, it is possible to interpret “Munich” for the purposes of the EPC as being broader than the city itself, while still having a well-defined geographical scope.

To draw a comparison (which is, admittedly, imperfect): imagine that the EPC instead said “London”. A narrow interpretation might be that this should mean “the City of London”. A broader interpretation might be that this should mean “anywhere within the 32 London Boroughs” – but (like Landkreis München vis-a-vis the city of Munich) the London Boroughs do not include the City of London. The holistic view would, perhaps, instead be to take the view that “London” means “the City of London or any of the 32 London Boroughs”.

Curiously enough, on the same day Samuel Adams wrote about the EPO illegally attacking the independence of all judges by sending them to exile. To quote Kluwer Patent Blog, a site of patent maximalists:

Not too long ago we learned of a referral question from Technical Board of Appeal 3.5.03 regarding the legal basis for holding oral proceedings before the Boards of Appeal in Haar rather than in Munich.

While it does not directly relate to the legal question in the referral, a relevant consideration was recently published in CA/5/19, which relates to an additional lease for further staff, conference rooms and common areas for the EPO in Haar. The document notes that the building in Haar has been leased for a period of 15 years. In CA/82/16, the total budgetary impact of the lease in Haar, including building adaptation costs, was provided as EUR 40.7 million. The further costs laid out in CA/5/19 for an additional lease contract are EUR 4.8 million, for a total of EUR 45.5 million.

The above was filed under “Traveling Circus” (no kidding!), so we suppose that at this point even Kluwer Patent Blog perceives the EPO to be somewhat of a circus. What a tragedy.

Crossing over to IP Kat, which is still heavily occupied by Team UPC (sometimes more so than Kluwer Patent Blog), over the past few days we saw a lot of coverage there about Fordham IP (at least 7 parts so far). Bristows did many posts about it for IP Kat (Annsley Merelle Ward as the author); it’s an event that is typically funded by Microsoft (more so than anyone else) and Bristows flatters this sponsor, as we noted in past years.

Included in this event, as usual, is the software patents lobby (in which Microsoft plays a considerable role), soon to be promoted or amplified by patent extremists like Bristows or Managing IP, which wrote: “Former Federal Circuit chief judge Paul Michel “bet on both horses”, referring to possible fixes for Section 101 in court and in Congress, during a discussion yesterday at the Fordham IP Conference in New York…”

This is also mentioned in [1, 2] and it’s the typical choir of patent maximalists, the ‘usual suspects’ such as Iancu, Michel and sometimes a USPTO Director turned lobbyist, Mr. Kappos.

In her later parts Annsley Merelle Ward published FRAND advocacy by Richard Vary (Bird & Bird). Bristows has long lobbied for FRAND, usually in IP Kat, as Bristows profits from this agenda. As recently as yesterday, in an article by Amy Sandys of JUVE, we learn of “global licensing company” TQ Delta (euphemism for patent troll or PAE) seeking patent embargoes in the UK. Using patents granted by EPO and the FRAND agenda they try to block companies that actually make something (unlike TQ Delta) from doing business.

Speaking of Bird & Bird and Briwstows, the latest part in this series concerns software patents (covering algorithms) framed as “AI”. Here’s where the EPO stands on on this issue in spite of European law:

Katherine Stephens (Bird & Bird) then talked about the “patentability of artificial intelligence and machine learning”, specifically focusing on the recently updated EPO Guidelines for Examination. According to Katherine, the EPO’s new Guidelines are not a green light for patenting AI, but they are a first step in setting out the rules for a proper balancing exercise. An interesting issue raised in her presentation was whether inventive step and sufficiency thresholds can be expected to change with the rise of AI, assuming that the skilled person should be presumed to have access to AI systems. “Will inventive step be raised so high that nothing will be considered inventive in the eyes of the law, even if it was inventive or surprising to human?”

These are all bogus patents on algorithms, but nowadays the EPO just fakes ‘gains’ by granting patents courts would reject (if they were assessed there, i.e. if there was a lawsuit and a lengthy, expensive challenge to it). Team UPC (Bird & Bird, Bristows etc.) was hoping to effectively abolish or bypass such courts using the UPC, but it didn’t work. As FFII’s Benjamin Henrion put it yesterday in a press release: [via]

Today is World Intellectual Parasites Day, the day where patent trolls rejoice over sucking more blood out of software companies. Patent parasites rejoice over the creation of the european Unitary Patent Court (UPC), which will create an undemocratic monster fully captured by the parasite industry. Patent parasites are also pushing for a rewrite of the laws in the United States, in order to restore software patents, and continue to suck more blood out the software industry.

That’s a satirical slant on World Intellectual Property [sic] Day — a subject we’d rather not covered as we did so in prior years. The EPO kept promoting this propaganda many times yesterday, even retweeting the EUIPO in the process.

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