In the pockets of the patent microcosm

Summary: Benjamin Henrion (FFII) on seeing the EPO alongside patent trolls and other nefarious actors, doing what they do best, which is undermining public interests and harming patent quality

"PUBLIC SERVANTS" has become misnomer for EPO officials. Consider the EPO's Francesco Zaccà, whom we first mentioned in this leak about "Closer Contact with Major Applicants" (with special ties to Qualcomm and Ericsson in his case). Benjamin Henrion drew attention to this recent talk, showing even the patent troll Sisvel at this recent event, which included Zaccà.

From the page in question: "The panel chaired by Francisco Mingorance, IP Europe, stressed the importance of innovation protection as a growth factor. Pasquale Marasco, head of ICT Innovation Pole at Torino Wireless Foundation, highlighted the SME’s stakes and concerns, as Matteo Sabattini, Sisvel CTO, reinforced the message detailing Sisvel’s example. Francesco Zaccà, Director in ICT of EPO, echoed the keynote address and said that «the main goal of the patent system is to protect innovation, to enable the innovation circle from protecting the invention, securing remuneration and re-investing in research. Yet, every challenge is a new opportunity for combining standards with open sources, and patents with protection». His opening statement «we are here to support innovation» fired up the crowd."

"Francesco Zaccà, speaking for the EPO, is quoted or paraphrased as saying that every challenge is a new opportunity for combining standards with open sources, and patents with protection."Francesco Zaccà, speaking for the EPO, is quoted or paraphrased as saying that every challenge is a new opportunity for combining standards with open sources, and patents with protection. What an odd thing to say. This sure sounds like the FRAND loophole for software patents in Europe. Not good...

Francisco Mingorance, now in IP Europe, is a former software patents lobbyist from the Business Software Alliance (BSA), a Microsoft front group which spent years lobbying for software patents in Europe (FRAND was one loophole they attempted to interject). Mingorance now chairs a panel with Zaccà in it. His employer, IP Europe, is a front for the patent microcosm and Henrion describes them, based on their words, as "Accelerating the entry into force of the Unified Patent Court (UPC Agreement): more trolling powers http://www.iptalks.eu/"

"They're supposed to be focused on patent examination, not lobbying and lawmaking."Some people still act as though the UPC will become a reality. It probably never will. It's zombie legislation like ACTA, but the patent microcosm still wants us to believe there will be UPC after Brexit. It's that old self-fulfilling prophecy method and they really ought to just give it all up. Found via this tweet was a Team UPC blog post the UPC "post-Brexit" (it would probably have to be rewritten and renamed to have any chance at all).

Thomas F. Cotter, a law professor from the US, more recently referred to a "paper in the June 2016 issue of GRUR Int (pp. 513-30) titled Schadensersatz und Einheitspatentsystem: Rechtliche Grundlagen und Systematik des Schadensersatzanspruchs im künftigen Einheitspatentsystem ("Damages and Unitary Patent System: Legal Principles and Schematic of Damages Claims in the Future Unitary Patent System")."

According to him, this "article notes, among other things, that article 68(4) of the Agreement on a Unified Patent Court appears to permit a court to award the infringer's profits without evidence that the infringer knew or should have known of the patent (in contrast to German law). Towards the end of the article, the author also questions whether the Agreement contemplates anything comparable to the German practice of permitting a court to award damages in its free discretion (nach freier Ãœberzeugung) under article 287 of the German Civil Procedure Code (see my recent article on Patent Damages Heuristics at p.20 & n.76 for brief discussion). My one critique of the article is that it doesn't take account of the change made in the 17th and 18th drafts of the UPC Rules of Procedure, which in a departure from the 16th draft have eliminated the provision (article 118(2)) that would have allowed the court to award damages in lieu of injunctive relief (see discussion on this blog here). Overall, though, a good read."

"People who believe that the UPC will become a reality some very time soon are truly out of touch, much like Battistelli and his circle of 'loyals'."The patent microcosm (which dominates Team UPC) wants the UPC for more lawsuits, more/higher damages, and a generally litigious atmosphere that brings them more business. It's truly a shame that EPO staff, including Zaccà's colleagues, are openly promoting it at events (as Philpott did last year). What credibility will they have left? They're supposed to be focused on patent examination, not lobbying and lawmaking. Found via this tweet was yet more promotion of the UPC, courtesy of Team UPC again. "Unitary Patent reforms are welcome, even though patent litigation in Europe has worked quite well" says the headline and Francisco Moreno, a critic of the UPC, uses the hashtags #UPCbelievers and #PrayForTheUPC (sarcasm) in relation to what Tufty Sylvestris wrote about the above: "Another Remainer disappointed about the effect of #Brexit on the UPC, but still hopeful (or in denial)."

People who believe that the UPC will become a reality some very time soon are truly out of touch, much like Battistelli and his circle of 'loyals'. Maybe they too should quit embarrassing themselves and work on fixing the EPO. Pushing towards software patents in Europe (directly or indirectly) is just about the dumbest thing they can do. ⬆