04.30.20

COVID-19 Crisis: When EPO Outsources Everything to a Surveillance System of Microsoft and the NSA

Posted in Europe, Microsoft, Patents at 7:21 am by Dr. Roy Schestowitz

A joke or a farce of a ‘justice’ system, where the platform is controlled by a company that commits a lot of serious crimes and works for the Pentagon, builds internment camps for ICE etc.

Summary: In another major fiasco, EPO management gives Microsoft control over (or insight into) the competitors’ business and highly confidential legal affairs (along with the US government, by extension); it’s likely not legal, it is definitely not constitutional, and EPO staff complains about the laughing stock that the EPO rapidly becomes under António Campinos, who totally exploits the pandemic to shamelessly attack staff and grossly violate the EPC

MR. Campinos rapidly turns out to be even worse than Battistelli. COVID-19 brings out the worst of him and he’s bringing out the EPO to Microsoft, a foreign monopolist whose Skype surveilance is a subject we’ve been covering for over a decade (even before Microsoft bought it).

As longtime readers may recall, half a decade ago we wrote many articles about favourable Microsoft treatment at the EPO and even leaked material to that effect. In our newly-tidied-up wiki pages it can be found. They’re linked from here still. Nothing has improved since; in fact, the U.S. Patent and Trademark Office (USPTO) nowadays wants to punish applicants who do not use Microsoft’s proprietary OOXML — that’s how bad it is (but at least both that office and the company are American!).

So a company that lobbies against 35 U.S.C. § 101, lobbies for software patents in Europe, blackmails competitors using patents and so on is taking control of some of the EPO’s ‘crown jewels’.

Is this legal?

Of course not. Common sense!

“Is this legal? Of course not. Common sense!”Is EPO management doing it regardless? You bet! It’s not like they ever allowed ‘pesky’ laws and ‘obnoxious’ constitutions stand in the way of fake ‘production’.

Thankfully, staff representatives already speak about it. The anonymous “Kluwer Patent blogger” wrote about it yesterday.

So while taking another building in Haar (while leaving empty space in existing buildings) the EPO is happy to send venues of EPO… to Microsoft. Only 2 years ago they finished wasting lots of money on a new building and they plan several more at a huge cost (while falsely claiming to lack money for staff!) and now this:

The Central Staff Committee (CSC) of the EPO is very outspoken above the announcement, in the middle of the coronapandemia, that videoconferencing will be the new standard: we’re being rushed into a change which is full of legal and technical pitfalls. In a letter published on the EPO’s internal pages half April, the CSC points out that many high and lower courts in the member states have suspended all oral proceedings which are not absolutely urgent. It “would make sense to align the Office with the practice as well as with emergency provisions of its host countries. This would also appear mandated by the Protocol on Privileges and Immunities.”

The CSC argues: “Holding oral proceedings as distributed videoconferences with the members of the division participating at different locations in the Office or at home is part of your initiative of generalising and making teleworking mandatory, which constitutes a fundamental change in the working conditions of an major part of staff. It must therefore be subject to statutory consultation with the COHSEC and the GCC in accordance with Articles 38(2) and 38a(3) ServRegs.

Since it has been decided to extend the new procedures for oral proceedings in examination beyond the current Corona crisis, in-depth consultation is necessary. The same applies to opposition oral proceedings for which this new procedure appears likewise here to stay.”

The CSC sees various legal issues: “Opposition oral proceedings are by law public proceedings, cf. Article 116(4) EPC. It is not at all clear how this is guaranteed if the hearing is conducted as a ViCo (see e.g. T1266/07, points 1.2 and 1.3). The preliminary guidance given in VP1’s announcement (…) states that if the division “receive[s] requests of public to attend opposition proceedings performed via ViCo” it should “contact [its] line manager”, presumably that of the first examiner. Aside from the fact that the line manager is not competent for interfering with the discretionary decisions of the Divisions, the public does not need to “request” attendance, or to announce it in advance. A possibility for the public to attend should therefore be guaranteed in all cases, regardless of any advance request. The guidance thus brings examiners into a conflict between the expectations of management and the requirements of the EPC.”

“A problem of breach of confidentiality might further arise if members of divisions were not able to adequately isolate themselves, especially during examination non-public OP’s and during deliberations.”

On the technical side there are issues as well, according to the CSC: “a yet unknown number of examiners cannot establish simultaneously both a Skypefor-Business connection and an EPO network connection via Pulse-VPN, as would be required for ViCo OPs, because the network hosts the application documents and the EPO email account. Only either connection works fine by itself.”

This leads the CSC to a very clear conclusion: let’s not do this. “At present there are no clear laws, no guidelines and no technical facilities to allow distributed oral proceedings in examination and opposition proceedings. In the latter case, even “non-distributed” ViCos with divisions on the Office premises would at present not rest on a solid legal basis.

The measures presently foreseen should be immediately halted and reviewed, also involving the Staff Representation.

In view of the additional strain on the examiner’s mental health, we can at present only advise divisions to judiciously choose, weighing all circumstances, whether to conduct oral proceedings by ViCo or rather to postpone them to a later date until circumstances for conducting them either as a classical ViCo from the Office premises or as “standard” proceedings in person are restored.”

This is amazing! See the bit highlighted about.

Are we shocked? Of course not, the EPO breaks the law all the time and as recently as yesterday it openly advertised in Twitter its bribery programme for scholars. Here’s what MaxDrei said about the above (he still comments in IP Kat, where comments critical of EPO for abuses are being censored):

Those running the EPO business are clearly disciples of the “Never let a Good Crisis Go to Waste” school of management thinking. Get in with a measure to cut costs and raise profit levels, regardless of any loss of product quality. Those running the EPO business (management, supervisory Board), it seems to me, have no appreciation of any importance in preserving the reputation of the EPO for the quality of its decisions on matters of fact and law.

Any criticism of setting the VC as default will be waved away as the bleatings of self-interested patent attorney firms, thwarted in their efforts to hold on to high turnover and profit figures associated with in vivo oral proceedings. It’s up to the critics to find lines of argument that are resistant to being fobbed off as mere self-interest. After all, the patents courts of England are now making heavy use of VC technology to keep patent litigation ticking along. Justice delayed is, of course, justice denied. it’s just that these VC Hearings are not used for the cross-examination of vital witness testimony, for which the judge needs to see the witness and their interlocutor face-to-face.

Who can give us examples of unscrupulous use of the VC to frustrate the over-riding objective of doing justice?

“Concerned observer” replied:

It is a matter of fact that a Decision of the President of the EPO cannot have the effect of altering (the interpretation of) the EPC. The President simply does not have the power to amend (on his or her own) the Articles or Rules of the EPC in any way. Any restrictions imposed by the President on the right to be heard are therefore clearly unlawful and unenforceable (by the Boards of Appeal).

Especially in the current circumstances, it is perfectly reasonable for ViCo technology to be offered as an OPTION to parties to proceedings before the EPO. However, for the reasons outlined above, it is unacceptable for proceedings to be conducted by ViCo against the wishes of any party to the proceedings. For opposition proceedings, the use of ViCos also poses problems (as discussed by Max and Attentive) regarding attendance by members of the public.

So why would the President issue such an obviously problematic (and unlawful) Decision?

Frankly, there is no good answer to this question. Indeed, this situation merely serves to illustrate the arrogant and, at times, lawless behaviour of the EPO’s President (and senior management, who must surely also shoulder some of the responsibility for this latest outrage).

This situation also raises another question to which there is no good answer: who will stop the President from trying to ensure that the Decision is both upheld and enforced?

Certainly not the AC, as that has turned into a dog that is wagged by its tail. Perhaps the Boards of Appeal – but only if they still have sufficient independence to risk of opening up another political can of worms. (Bearing in mind that “resistance” from the Boards could lead to another situation where the President, perhaps again enabled by the AC, tries to overturn any inconvenient case law by introducing an Implementing Regulation that overrides the current interpretation of Article 113(1) … and perhaps ultimately to another referral to the Enlarged Board in which the President kindly asks the EBA to agree with his novel interpretation of the EPC.)

Previously, it was clear that the list of “stakeholders” whose voices and opinions that this (and/or the previous) President of the EPO was happy to ignore included (non-senior) EPO staff, EPO staff representatives, Board of Appeal members, the Association of the Members of the Boards of Appeal, national courts and their judges (as illustrated by events in the Corcoran case) and certain (national associations of) professional representatives. To that list we can now add the epi, patent applicants, opponents and interested members of the public.

This poses one more question: is there any stakeholder whose opinion the President will take seriously? The way that things are currently working out, and absent a move by large numbers of applicants to take their cases to national patent offices, I would wager that the answer to this question is “no”.

MaxDrei agreed:

…Concerned’s concluding thought nails it.

The arrogance on the top floor of the EPO can be imagined as a nonchalant shrug of the Presidential shoulders and a casual throwaway remark from him, to the effect that:

“If the Applicants don’t like it, they can eff off and take their cases to the national Patent Offices. But, until a lot of them do exactly that though, I shall keep going with my sociopathic, corporation-style policies. And for exactly the same reason as in all those anti-social corporations, namely, to maximise the “value” that the Chief Executive doles out to the EPO’s shareholders. It is the ONLY duty imposed on the legal person that is a corporation. If that duty is good enough for a corporation, it’s good enough for the EPO too. Especially the EPO. Because what’s good for the EPO shareholders is good for the general public in Europe. End of discussion.”

“Not a friend of obligatoy ViCos” then said: “Imagine that your law firm has a well-functioning SIP/H.323 video-conferencing systems, you receive the conference number and the required information how to dial in with the SIP/H.323 video-conferencing system, and one (!) day (!) before the oral proceedings via ViCo you are informed that despite the official information provided together with the conference number (https://www.epo.org/applying/online-services/proceedings/technical-guidelines.html) only Microsoft Skype for Business can be used, because the examiners sit at home and SIP/H.323 cannot be used in such circumstances…”

Emphasis is ours. So Microsoft is now like a European court? Of course it’s not legal. It’s even worse when they put a criminal company in charge of it — a company that already admitted that it spies on people’s personal E-mails for its business purposes (or putting people in prison for doing things Microsoft itself dislikes).

EPO in 2020: brought to you by Microsoft! █

“Microsoft is, I think, fundamentally an evil company.”

–Former Netscape Chairman James H. Clark

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