Summary: The EPO is apparently going on strike again and an action against the UPC is scheduled for later this week (protest in Brussels)

WE are generally pleased to see/read news about patents in the US because 35 U.S.C. § 101 endures many challenges (another one reported on yesterday; it's in Daily Links). USPTO-granted software patents won't withstand scrutiny. Moreover, the USPTO can be sued (as habitually happens). But as long as software patents are being granted in Europe and Team Battistelli/Campinos tries to swap European courts with something that the European Patent Office (EPO) better controls there remains a real threat. Campinos recently pressured judges at the EPO to allow software patents. It's really that crude and blatant. Is the President of the EPO also the chief judge? Or a whole panel of judges? That would of course be a serious violation of the EPC at every level^*.

"Is the President of the EPO also the chief judge? Or a whole panel of judges? That would of course be a serious violation of the EPC at every level."We are grateful to each and every patent examiner who participated in the recent strike ballot. We imagine that virtually all of them voted for a strike. To quote the couple of comments from RIP Kat (Märpel's anonymous blog), "Anonymous" said: "Not really correct: 54% participation and 83,2% of the participants in favour of a strike. About 3000 epo staff voted in favor of a strike. In view of the enormous efforts by Campinos to convince staff of the non- existence of the alleged gap, this shows that he clearly did not convince a big part of epo staff and shows a clear failure of his so-called transparent communication strategy."

"Anonymous Concerned examiner" said (with our emphasis added): "Märpel could also have written that only 417 voted against the strike and for Campinos project. That is little more than the top floors of the Isar building.

"As an examiner, however, I like that the figure is presented as "83". It reminds me of Article 83 EPC, the one we use when an application document is so unclear that we can't do anything with it. Maybe it is a symbol of Campinos financial studies?"

Well put, well framed. So we know that technical people at the EPO aren't happy. They want things to change. From those we've spoken to we always learn that examiners also oppose software patents. But they're under pressure to grant some, even if they know it's in violation of the EPC (like the EPO's guidelines themselves).

"The EPO continues to lie about its impact on SMEs, denying the fact that in reality they’re discriminated against and barely get/pursue patents.""What are the latest trends in self-driving vehicle innovation? This EPO study reveals the most-active companies too," the EPO tweeted yesterday.

"Way to frame software patents as "Cars" -- one of several tricks ("Hey Hi", "Blockchain", "IoT") for painting illegal patents as ground-breaking," I responded. They also tweeted their usual nonsense about "SMEs". The EPO continues to lie about its impact on SMEs, denying the fact that in reality they’re discriminated against and barely get/pursue patents.

Our FFII friends at Brussels are meanwhile preparing action on the ground. As Benjamin "NO Software Patents" Henrion put it yesterday, quoting Richard Stallman: "The volunteer activists drifted away, thinking the battle won, but the corporate lobbyists for software patents were paid to stay on the job. Now they have contrived another sneaky method: the "unitary patent" system proposed for the EU..."

"Demonstration against Unitary Software Patents" is planned, Henrion told me yesterday, setting the time and place as follows: "thu 12dec@12h00, Brussels regional parliament (PRB)" (the same time Brits are voting).

"We are calling for a demonstration against the UPC this thursday at noon," he said, "in front of the Brussels Parliament. UPC is on the agenda the day after."

This didn't happen overnight, as he first told me about it last week and yesterday he tweeted: "We are preparing a demonstration against the Unitary Patent Court (UPC) and its patent trolls, stay tuned!"

Henrion is still preparing this protest (same day as British election) and needs to interact with those who attend. There's lots at stake and having just earned television coverage in Belgium (an event he organised), one can hope the UPC protest can accomplish something similar. ⬆ _____ ^* Incidentally, Rose Hughes (AstraZeneca UK litigation team) has just published this 'Katty' post about T 2037/18. The 'Kats' used to write a great deal about the fact that judges had come under attack and lost their independence. But not anymore. From the EPO's Boards of Appeal that totally lack independence:

T 2037/18 is an EPO Boards of Appeal case that considers how much an opponent needs to prove in the Notice of Opposition itself. The case related to a dispute between Bombardierand Siemens regarding Bombardier’s EP patent (EP2619063) for a train carriage. Siemens cited a train (the TDR Series 460) as prior art against the patent, alleging prior use by Bombardier’s customer Transregio Deutsche Regionalbahn (TDR). The case centred around whether the transfer of the train from Bombardier to TDR could be considered to have taken place under conditions of confidentiality. Crucial questions in the case were a) on which party the burden of proof should be laid and b) whether this burden was on the opponent in the Notice of Opposition. Another key question was whether the burden of proof placed on Siemens in opposition had been the equivalent of asking them to prove a negative (or more philosophically speaking, had it been like asking the opponent to prove the existence of the philosophical "celestial teapot").

The Opposition Division (OD) did not consider the information provided by Siemens on the TDR 460 train to be enough to substantiate the opposition. The OD particularly considered that the process of transfer between Bombardier and TDR should be considered as having taken place under conditions of implied confidentiality. The OD thus found that the burden of proof had been on Siemens to demonstrate the lack of such conditions of confidentiality between Bombardier and TDR in the Notice of Opposition. In the absence of any such proof the opposition was considered inadmissible.

The appeal case explored the issue of whether the burden of proof really should be viewed as resting with the opponent in such a case.

There's more in there on what was decided on "existence of confidentiality agreements"; as usual, Hughes conveniently ignores the fact that the decision may lack legitimacy due to judges lack of autonomy -- an issue they themselves have repeatedly complained about.