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10.21.17

Anonymous Professionals Speak of Benoît Battistelli’s Destruction of the EPO, But Why Does the Media Turn a Blind Eye?

Posted in Europe, Patents at 3:20 am by Dr. Roy Schestowitz

It’s almost as though media owners have an agenda or get paid not to care

UIMP event and FTI Consulting

Summary: Everyone in the circles of EPO staff and EPO stakeholders knows that dysfunction has become the norm; European media, however, remains suspiciously silent about what otherwise would be a major European scandal (bigger than FIFA or Dieselgate)

THERE seems to be some happiness among EPO staff knowing that the UPC is going nowhere. Nobody really wants the UPC except the people who plotted the UPC (we refer to them collectively as “Team UPC”).

Last night we wrote about an additional 2 months delay and IAM, which is close to the EPO’s management and was paid to promote the UPC, said that the “German constitutional court delays the UPC until the second half of 2018 at the earliest, but quite possibly much later.”

“Put another way,” I told them, “one must not assume that UPC is an inevitability and maintain this dangerous illusion…”

The situation at the EPO is pretty bad. We often refer back to this article from Dr. Glyn Moody, who wrote: “When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

“No appeals, no thorough examination, just lots and lots of lawsuits. This should be mortifying to anyone who understands the original (and true) purpose of patents.”Yes, a lot of what Benoît Battistelli has been doing is geared toward a litigation scenario; it’s not about patent quality anymore. No appeals, no thorough examination, just lots and lots of lawsuits. This should be mortifying to anyone who understands the original (and true) purpose of patents.

Earlier today we saw a couple of copies of a new press release [1, 2] regarding Professor Daryl Lim, who is described as an “IP Center Director”. Certainly he should know that Battistelli is a crook and the EPO is a rogue organisation, yet that doesn’t stop him from going to Munich. It says “EPO representatives will include President Benoît Battistelli and senior members of the EPO staff. Lim will also meet with members of the EPO Board of Appeals, and attend a dinner hosted by President Battistelli along with the U.S. delegation. As in past years, the agenda is expected to cover EPO initiatives and other issues of contemporary relevance to U.S. businesses and patent practice and end with a presentation of U.S. developments by the visiting delegates.”

Will these “members of the EPO Board of Appeals” have the courage to tell him what’s going on? Also, why does the US tell the EPO what to do? Who does the EPO work for or is attempting to serve?

“…why does the US tell the EPO what to do? Who does the EPO work for or is attempting to serve?”Sadly, as many people have already come to realise, Battistelli’s French successor is unlikely to turn things around. Sure, some people keep their hopes up (too optimistic in our view) and choose to believe that because the job description spoke of diplomacy António Campinos will somehow be very different and even friendly towards SUEPO. Never mind if management around Campinos will still be Team Battistelli (and historically close to Campinos), including people with criminal charges against them…

Yesterday, WIPR published this article titled “SUEPO offers olive branch to EPO management” (not that Campinos has extended anything in return; he’s totally silent on the matter and the same goes for his upcoming ‘boss’, Dr. Ernst). To quote WIPR:

A staff union at the European Patent Office (EPO) has written to António Campinos, the next president of the organisation, saying his appointment shows a desire to re-establish harmonious conditions with management.

The letter, from the Staff Union of the European Patent Office’s (SUEPO) Hague branch, was sent to all members of what is SUEPO’s second biggest unit. The Hague committee said it is “ready to embark on a road to fruitful cooperation”.

Such a cooperation is unlikely to bring back staff which was illegally dismissed or bring back to life people who were driven to suicide. Justice cannot be restored, there are no reparations anywhere over the horizon, and a lot of European media is still indebted to the EPO (which threw money its way), so it may never cover these issues properly.

“This should have been a massive scandal, but Dutch media is not covering it. The EPO dedicated a lot of money to influencing/controlling the Dutch media.”The “first steps undertaken by the current President was to remove any kind of independent oversight of the EPO’s financial dealings,” said the following comment from yesterday. We remind readers that Battistelli essentially (mis)used EPO budget to ‘bribe’ the media; some allege that he also used that money to ‘buy’ votes for himself. We may never know the true/full scale of it because there’s no financial transparency. It was also alleged that he used money destined for EPO contractors in the Netherlands in order to build himself a ‘penthouse’ in Munich [1, 2]. This should have been a massive scandal, but Dutch media is not covering it. The EPO dedicated a lot of money to influencing/controlling the Dutch media.

“Of course,” the following comment notes, “the disinterest of the media is not only unhelpful but also (especially in Germany) slightly suspicious.”

That’s an important point which is made once again later on in this thread. IP Kat is part of this problem now. Just look at the post this entire thread is attached to. It’s a puff piece for António Campinos and Benoît Battistelli. For all we know, the pseudonym “Merpel” might just be Stephen from CIPA right now. The old “Merpel” is a dead cat.

Anyway, here is the full comment:

Whilst things may look very dark indeed, I am of the opinion that perseverance will see us through. This is not based upon blind optimism but rather a recognition that, in the end, we are dealing with politicians. This means that generation and application of appropriate “political” pressure ought to be more than capable of leading to a satisfactory outcome.

The complete silence and disengagement of the UK and German delegations to the AC are obviously a barrier to generating the necessary political pressure. However, the UK and German associations of professional representatives ought to be able to do something about that. CIPA, PAK, epi: this means you! Where is your voice? Are you not obliged to defend the interests of your members here (in view of the threat to the integrity and reputation of the patent system, as well as to the business that your members do with SMEs)?

Of course, the disinterest of the media is not only unhelpful but also (especially in Germany) slightly suspicious. What is needed here is a “hook” for a story that the media can run. This is where it may help to recall that one of the first steps undertaken by the current President was to remove any kind of independent oversight of the EPO’s financial dealings. It therefore stands to reason that, if there is any “dirt” to be found, it will be uncovered by looking into in those dealings. We all know how certain sections of the media love stories about financial wrongdoing, especially within the privileged and elite world of Eurocrats.

None of this will be easy, especially for those inside of the EPO who are suffering right now (and who can be forgiven for giving up hope in the face of seemingly relentless and overwhelming force). But what we do at this critical time will determine the kind of European patent ecosphere that we will get for many decades. Do we want Europe-wide patent monopolies being handed out by an office whose governance has been completely corrupted, and where the concept of meaningful quality has been abandoned? What will happen to the economies of Europe if this continues? The stakes are simply too high to give up now.

The next comment says that the “EPO can be technically described as matching the description of a true authoritarian regime” and here’s the explanation of why (naming “Battistelli, VP4, VP5, Bergot and her management”):

your diagnostic is correct, factually what you present is right. All that happens at EPO can be technically described as matching the description of a true authoritarian regime under which violating the rights of individuals and acting rogue has become the norm. If this would happen in western EU countries the decision takers (Battistelli, VP4, VP5, Bergot and her management) would have been brought to courts and sentenced, no doubts.

This being said what will happen in the future at EPO is unknown. Nothing is carved in stone one way or another. It can be the same, better even worse.

Currently it seems that the public (IP media at least) seems to start realising that Germany (via the excellent Dr Ernst) is selling the EPO in exchange for a soon-to-become-available-VP5-position-at-epo (in which he will probably double his income).

Public interests some said in the room ? very drole.

What will Campinos do? perhaps follow the path of Battistelli perhaps also not. We should not charge him as guilty before he has even arrived at EPO. We know who he is and what he did but not what he will do.

Future will tell, soon. Do not forget that Campinos will also have to live with Battistelli’s toxic legacy and it is likely that more social casualties happen when he arrives since the camel’s back is close to broken and the number of strained staff far too high for too long (do not forget that suicide nr 7th was avoided 3 weeks ago in The Hague).

At some point (suicide nr 8, 9, 15 perhaps) they will have to do something. The terrible thing is both the apathy of EPO staff most of whom live in denial (maybe as a form of protection but still) and that of middle management (always prone to follow orders no matter how noxious HR policies may be).

As as to the quality of patent: well no one cares so why should you !

“Also,” says the next comment, “the disappearing presumption of validity of EPO grants is something that suits Big Corp.”

This is about patent quality (or lack thereof) and what it means for SMEs:

The itinerant (citizen of nowhere) and sociopathic volume users of the EPO, the multi-national corporations, the Global Titans, they pay virtually no taxes anywhere. So, of course, the EPC Member States tax them through EPO fees.

Big Corp is happy to pay. Those outrageous EPO fees deter the pesky SME’s from filing.

Also the disappearing presumption of validity of EPO grants is something that suits Big Corp. It renders it all but impossible for an SME to use a patent against a volume user.

Also labour rights at the EPO. Sociopaths don’t give a fig about any abuses.

So what to expect from the AC, the new Chair and the new EPO President? More of the same, as you surmise. Proud to be European? Not so much, these days. Will nobody in a position of responsibility defend any longer human rights and the Rule of Law? Or do we have to lose these precious things before we realise what we have squandered?

“I am proud to be member of SUEPO,” the next comment says in relation to SUEPO’s approach to Campinos:

Article about the official position of SUEPO on the election of Mr Campinos

http://patentblog.kluweriplaw.com/2017/10/19/heavy-task-lies-ahead-of-antonio-campinos-as-future-epo-president/

As one will see the Battistelli’s legacy Mr Campinos will have to deal with is heavy and toxic. This being as a professional social partner SUEPO shows here what can be qualified as a pragmatic and reasonable approach: first pose a diagnosis, then indicate possible ways to mitigate and most of all give Campinos the benefit of the doubt as to his intentions and future actions.

Thanks for having had the guts to take such position under the current circumstances. I am proud to be member of SUEPO.

Again the media gets brought up: “disinterest of the media is more than slightly suspicious. Journalists who wrote about the EPO were changed posts.”

This is partly true and we know of examples. We know of people who used to cover EPO scandals and got in trouble with the publisher/editor (they told us about it).

Here is the full comment:

The disinterest of the media is more than slightly suspicious. Journalists who wrote about the EPO were changed posts.

As to what will happen to the economies of Europe, we know from what happened to the economy of the USA 10-15 years ago. Small and medium enterprises disappeared, the economy concentrated into an ever dwindling number of hands and production of goods moved to China. Then they elected Trump. Patents are only a little part of that story of course and yes, it is worth fighting for, but how? And what are we exactly fighting against?

Battistelli is a freemason, just look at the ring he wears. Did you know that Campinos is a freemason as well?

We don’t want to entertain that sort of aspect. Some anonymous commenters say that the next President of the EPO is “a freemason as well” as Battistelli, but all we know about Battistelli is that he’s ENA — by insiders’ estimation a vastly more powerful network than “freemasonry” or whatever (the French President, for example, is also from ENA). We were told about this several years ago. This sort of angle was further entertained in the next comment:

It is perhaps possible that the involvement of freemasonry can provide an explanation for some of the curious things that have happened in (or in connection with) the EPO. However, that is no reason to get disheartened. There is a difficulty faced by any organisation that tries (covertly) to manipulate events against the public interest. That is, there are more of “us” than there are of “them”… meaning that, ultimately, “they” cannot keep a determined “us” down.

Then came a sobering pinch of salt:

I realise, Pink, one must be cautious about “conspiracy theories” but on the subject of the USA you have to wonder about some of the provisions implemented in the AIA, and whether they benefit Big Corp or the SME’s.

Consider for example what constitutes the prior art.

Everything unpublished at the date of the claim, but filed earlier, anywhere in the world, in whatever language, is available for both novelty and obviousness attacks on that claim. Everything, that is, except your own earlier filings. They are exempt.

Thus, bulk filers, the Goliaths of the patent world, can build up impenetrable thickets of overlapping patent rights.

And Little David? Everything he files gets whacked as obvious by all the stuff the volume filers filed already, right up to one day before.

How long before the EPC Member States change the EPC in the same way, at the behest of the lobbyists?

Has it not started already. Consider: Prof Dr Willem Hoyng, that very prominent patent litigator, is saying that Art 54(3) has to be strengthened, its scope widened, to embrace more than strict novelty.

The above speaks of AIA — a subject we intend to cover later this weekend.

All in all, we urge readers to spot the sharp difference/contrast between this IP Kat post and the comments. It’s like the media simply does not care about what’s true anymore; it was almost always the case as far as UPC goes. Now it’s the same when it comes to the EPO.

10.20.17

The Darker Past of the Next President of the EPO – Part III: More Details About Caixa Geral de Depósitos, Former Employer of Campinos

Posted in Europe, Finance, Patents at 3:58 pm by Dr. Roy Schestowitz

Logo Caixa

Summary: The side of Campinos which he prefers to conceal, or rather his association with a rather notorious Portuguese bank

In part 1 and in part 2 we spoke about the next President of the EPO and his past as a banker (something which he does not advertise). Today we go deeper.


Further research into the recent economic events in Portugal and problems surrounding the state-owned bank Caixa Geral de Depósitos has uncovered a lot of interesting information which may help to explain why Mr. Campinos might not be too keen to publicise his earlier professional connections with this financial institution which has fallen into disrepute.

Portugal has not been as badly afflicted as Greece by the Eurozone financial crisis. Nevertheless it is known as one of the economically weaker members of the EU’s unitary currency system which led to it contributing the “P” to the derogatory “PIGS” acronym.

In 2011 Portugal joined the casualty list of Europe’s sovereign debtors after its prime minister, José Sócrates, requested a European Union bailout. See “Portugal’s PM calls on EU for bailout” (among similar article).

Although there were major problems festering below the surface in Portugal’s banks, these did not become publicly visible until some time later.

The first serious signs of a crisis in the financial sector came in May 2014 with a scathing audit issued by the Portuguese central bank which questioned the financial stability and transparency of the Banco Espirito Santo (BES) which at that time was the second largest private financial institution in Portugal in terms of net assets.

Soon afterwards BES collapsed under the weight of bad debts to companies held by the family-controlled Espirito Santo Group and had to be rescued by the Portuguese central bank’s Resolution Fund in a 4.9 billion-euro bailout on 3 August 2014.

CGD-I

From 4 August 2014: “Portugal in 4.9 billion euro rescue of Banco Espirito Santo”

The problems at BES were exacerbated by its involvement in shady dealings in Angola.

From 9 August 2014: “Banco Espírito Santo: The Angolan Story”

Following the collapse of BES, serious problems became apparent in 2016 in the case of Caixa Geral de Depósitos (CGD) which holds nearly a third of all deposits in Portugal’s banking system.

CGD’s troubles were initially reported in May 2016 with fears that the deteriorating situation could lead to financial collapse in Portugal.

From 29 May 2016: “Caixa Geral’s €4 billion refinancing demand may trigger Portugal’s financial collapse”

By June 2016 CGD’s liabilities were estimated at €5 billion or higher.

From 23 June 2016: “CGD’s liabilities now pegged at €5 billion and rising”

In August 2016, a 5 billion euro recapitalization package for CGD was agreed between Portugal and the EU.

From 24 August 2016: “EU, Portugal agree on 5 billion euro recapitalization for ailing bank CGD”

From 25 August 2016: “Portugal to bail out its biggest bank”

CGD II

The situation at CGD was referred to a parliamentary commission of inquiry and management practices at the bank also came under scrutiny from the public prosecutor with the opening of an investigation into what national tabloid Correio da Manhã called “suspicions of the crime of ruinous management”.

From 23 September 2016: “CGD’s “ruinous management” now officially under DCIAP investigation”

In July 2017 it was confirmed that the public prosecutor suspected that management practices at CGD had involved breaches of criminal law.

From 11 July 2017: “Prosecutor suspects harmful management crimes in CGD”

Operation Marques

Meanwhile investigations into allegations of corruption surrounding the former Socialist prime minister, José Sócrates, which were conducted under the code-name of “Operation Marquês”, have led to findings which suggest that CGD played a key role in some of the financial irregularities in which Sócrates has been implicated.

Recently, on 11 October 2017, the public prosecutor finally released its accusations in the “Operation Marquês” case according to which Sócrates was accused of 31 separate crimes of corruption, involving the accumulation of €24 million in bank accounts in Switzerland.

From 11 October 2017: “Operation Marquês charges announced – Sócrates controlled €24 million in Swiss bank accounts”

Also from 11 October 2017: “Operação Marquês: Former PM Sócrates, Salgado and Bava charged with corruption”

Another one: “Sócrates accused of 31 crimes, “accumulating” €24 million in Switzerland”

According to the public prosecutor’s charge sheet, the role of Sócrates’ chief corruptor is the former Banco Espirito Santo patriarch Ricardo Salgado, accused of 21 crimes – one of active corruption of a holder of political office, two of active corruption, nine crimes of money-laundering, three of abuse of confidence, three of document falsification and a further three of qualified fiscal fraud.

A further key figure is Armando Vara (below), a Portuguese politician and member of the Portuguese Socialist Party, who was previously a senior executive at the Caixa Geral de Depósitos. Vara was already sentenced to five years in prison on corruption charges in 2014 in connection with the co-called “Face Oculta” case. This was a nationwide political corruption, money-laundering and corporate tax evasion scandal which originally came to light in October 2009 and resulted in charges being brought against 36 defendants: 34 people and two companies. 11 prison terms were handed out in September 2014.

armando-vara

From 5 September 2014: “Face Oculta sentences handed out – Godinho gets 17 years in prison”

According to the pending charges brought against Sócrates under “Operation Marquês”, he is alleged to have favored the company which controls the Algarve tourist resort Vale de Lobo by means of a government plan in collusion with Vara who at the time was a Director of CGD which was the bank responsible for financing the enterprise.

In all, CGD conceded loans to Vale do Lobo amounting to more than €200 million as well as buying a 25% share in Vale do Lobo’s capital. Sócrates and Vara are accused of having received “kickbacks” for their part in the deal. In the meantime, Vale de Lobo’s outstanding debt to CGD has been estimated at around €300 million including default penalties and interest.

From 23 March 2017: “Vara pulls ‘senior moment’ when grilled over “how many times he discussed CGD with Sócrates””

From 18 June 2015: “Vale do Lobo now a “key link” in Operation Marquês corruption investigation”

Article in Portuguese dated 9 February 2017: “Comissões de 200 mil recebidas por gestores envolvidos no caso Sócrates”

CGD III

In the next part we shall look at links between CGD and the INPI.

UPC Looks Like More of a Distant Dream (or Nightmare) as Germany Adds Another Two Months’ Delay

Posted in Europe, Patents at 12:38 pm by Dr. Roy Schestowitz

Bristows EPO

Summary: The likelihood that the UPC will be altogether scuttled is growing as delays keep piling up and more complaints are being filed by public interest groups (as opposed to Team UPC, which hoped to shove the UPCA down everyone's throats behind closed doors)

THE EPO has said nothing about the UPC for at least a week. Nothing!

Silence too means something.

“The delays keep piling up and the UPC is dead. It’s at least dying. Nothing is advancing.”One UPC booster has just cited a tweet about this short post from Bristows’ Richard Pinckney. He said: “The latest news in the challenge in the Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) to the constitutionality of the German legislation enabling the ratification of the Agreement on a Unified Patent Court (UPC) is that the BVerfG has extended the deadline for comments from 31 October to 31 December 2017.”

The remark from the UPC booster was inane: “BVerfG has extended the deadline for comments on German UPC constitutional complaint to New Year’s Eve. Getting ready for the fireworks?!”

The deadline isn’t a deadline for a decision but only a deadline for comment. So it’s just in forever limbo. Another 2 months’ pushback. The delays keep piling up and the UPC is dead. It’s at least dying. Nothing is advancing.

There are no fireworks any time soon for Team UPC. They didn’t even envision this process taking so long — almost half a year just for comments.

Patent Trolls Roundup: BlackBerry, Dominion Harbor, IPNav, IP Bridge

Posted in America, Asia, Patents at 12:08 pm by Dr. Roy Schestowitz

Summary: A quick review of recent news regarding patent trolls or entities which resemble (and sometimes feed) these

THE plague of patent trolls may be going away. We shall say more about it in the weekend.

BlackBerry is, quite unfortunately, becoming little more than a patent troll these days. That strategy isn’t even going too well anymore. The person behind it has left (maybe got fired). Having filed some lawsuits in Texas, BlackBerry may be affected by TC Heartland and this new report says it’s “At Risk Of Losing Its Recurring BLU Royalty” (covered here recently).

“It was not clear if that payment was included in that quarter’s earnings,” it says, “which beat analysts’ forecast on a jump in licensing fees that includes patent payouts and royalties on BlackBerry-branded devices and software sold by others.”

As we have been showing lately, BlackBerry’s income nosedived. It cannot survive by just suing and threatening to sue companies. Eventually, perhaps inevitably, BlackBerry will go bankrupt and its patents be sold to classic patent trolls like Dominion Harbor, which is connected to the world’s largest troll, having bought Kodak’s patents from it. What we did not know until yesterday is that Dominion Harbor, which publicly defames me, is also connected to IPNav in the following way. To quote IAM:

Korean sovereign patent fund Intellectual Discovery (ID) has continued its recent trend of selling assets to US licensing entities, with the disposal of a package of 15 US patents to a company called Compact Lens Technologies LLC. The transaction was recorded on the USPTO assignment database earlier this month.

The buyer appears to be controlled by IP Valuation Partners, a Texas-based IP advisory business led by a group of former IPNav and Dominion Harbor executives. Jonathan Szarzynski, whose name is listed on the assignment document is, according to this site, the manager of Compact Lens Technologies. The portfolio of assets relates to camera lens technology.

[...]

That has led to the emergence of companies like Dominion Harbor, which was formed in 2013 by a group of former IPNav execs and in February was involved in one of the biggest deals of the year so far when it acquired a portfolio of around 4000 former Kodak assets from Intellectual Ventures. With several large patent owners like ID and IV looking to dispose of assets the new breed of private NPEs are certainly not struggling for buying opportunities.

So basically, Koreans have collected a lot of patents in vain and now they just give these to patent trolls in the US. These patents will go to a very nasty blackmail and extortion firm.

Japan is meanwhile learning to recognise this profound issue with trolls (already a growing problem in China, as we shall explain in the weekend) and is tackling the SEP trap, which is basically a patent thicket that’s anticompetitive by design. IAM’s puff piece isn’t too happy about it (law firms in Japan), but it’s clear that such a move would benefit the economy and the interests of Japanese people.

IAM’s blog is meanwhile celebrating a patent bully from Japan which targets S.E.A. and notably Malaysia. They are pursuing a patent tax on "IoT" and other such things (software patents in disguise). To quote:

Japanese patent fund IP Bridge today announced plans to launch a $50 million “Intellectual property and innovation” fund with Malaysian partners. The new entity will invest in national and regional enterprises in Malaysia that are “IP rich or to-be-rich”, with a particular focus on technology areas including IoT. The fund’s goals echo those of another major investment vehicle founded in Singapore earlier this year, suggesting that we may yet see more money poured into the region’s IP ecosystem.

[...]

On the patent side of its business, IP Bridge recently announced a new assignment to its IP fund by an unnamed Japanese corporate. Recent USPTO assignment records show that the source of the patents – which are related to the H.264/AVC and H.265/HEVC standards – was Seiko Epson, which transferred at least six granted US assets to IP Bridge in late August. Another recent recordal indicates that the fund received 10 US patents from Avago (now known as Broadcom), possibly as part of the two parties’ recent settlement after US and China assertions by the NPE.

“NPE” is just a euphemism for troll. The US is full of patent trolls and many are moving to or emerging in China these days. Japan is hopefully wise enough to combat this issue before it even surfaces.

Battistelli’s Destruction of the EPO is Bad for Everyone, Even Patent Attorneys

Posted in Europe, Patents at 6:21 am by Dr. Roy Schestowitz

Destruction

Summary: The collapse of the European patent system, owing primarily to Battistelli’s totalitarian style and deemphasis on patent quality, means that “the war is lost,” as one professional puts it

THE FOLLOWING new comment (from earlier this morning) is worth quoting. It comes from someone who saw that now-infamous lecture from Christoph Ernst, the new boss of the EPO (supposed to be on top of Battistelli).

“Gentlemen,” it says, “I think it is time to realize that the war is lost” at the EPO. Here is the explanation (with highlights for those who want to read more quickly):

I was at the lecture given by Christoph Ernst at the Max Plank Institute. In effect, he explained to the assembled representative of German applicants and attorneys that he did not care about their concerns and that he will do nothing.

Mr. Campinos track record at EUIPO makes it crystal clear that he is in the same boat as Battistelli. Don’t expect any change in policy. Actually, expect the situation to become much worse.

In the administrative council, the following delegations have tried to oppose Battistelli’s system: France (voted against policies and tried to pressure Battistelli), Switzerland (initiated the open letter from the Council), Denmark (removed Kongstadt), Italy (presented another candidate), Netherlands (court cases and questions in the Hague). and a few I forgot (mainly in northern Europe, I think). Basically, all major Patent countries opposed Battistelli at some point, with the notable exception of the UK (Brexit did not help) and of course Germany. Correct me if I am wrong.

This achieved exactly nothing. The newly elected people are the same policy under a different name. The war is lost, there is no battle left to be fought.

What does this mean for the applicants? It means that for the same price as usual, you get a shoddy search and a language check. You get a piece of paper that is probably trivial to invalidate in court. And your only choice, is either this kind of patent or no patent at all. It may take a few years, but SMEs will start to realize that it is not worth the effort, so expect patent attorneys to feel a dearth of customers at that point. Unless they work for large applicants, maybe.

What this also means is that now, right at the center of Europe, we have a place where nobody needs to respect employment laws. People, including elected representatives and managers, can be harassed and fired at will without any consequences. Salaries can be halved, benefits can be cut and public holidays need not be granted. Independence of the judicial sends one next to a mad house, literally. Permanent contracts are revoked. Maybe demonstrating that this kind of “modernisation” of employment laws is possible right in the center of Europe was also part of the plan, I do not know.

The UPC, as we explained before, would make things even worse, especially for SMEs.

The UPC would be good for nobody except patent trolls, patent law firms, and maybe some massive multinational pharmaceutical companies. We mentioned this before, in yesterday's article about Bristows UPC brainwash and the European Commission’s stance on SPCs. Bristows is, as expected, trying to solicit lobbying for UPC again in light of these developments. These people just won’t give up as long as lying brings them business. This was covered by IP Watch and then in this blog post from Bristows. They wants the so-called ‘unitary SPC’:

On 12 October 2017, the European Commission launched a public consultation on supplementary protection certificates (SPCs) and patent research exemptions in the pharmaceutical sector (and other sectors with regulatory market authorisations). This consultation is within the framework of the Single Market Strategy (adopted in 2015), one aim of which is to improve the patent system in Europe for such sectors. Proposals include the creation of a European SPC title (a ‘unitary SPC’), an update of the EU patent research exemptions (e.g. the EU ‘Bolar’ exemption, whose implementation in national law is not consistent), and the introduction of an SPC ‘manufacturing waiver’ (to allow manufacture during SPC term for export to countries with no SPC protection).

We often wonder if, had it not been for Battistelli’s mad desire for the UPC, judges would not be abused in defiance of the EPC and patent examination would not be rushed to the point where European Patents (EPs) are so bad. If Battistelli and his French successor do nothing to correct this, there will be neither UPC nor a EPO.

10.19.17

Some of the USPTO’s Most Ridiculous Patents Are Scrutinised by “Above the Law” While Dennis Crouch Attempts to Tarnish Alice

Posted in America, Patents at 6:20 pm by Dr. Roy Schestowitz

Whereas Charles Duan (below) compares patents to monopolies

Charles DuanSummary: Controversies over patent scope and level of novelty required for a patent; as usual, public interest groups try to restrict patent scope, whereas those who make money out of abundance of patents attempt to remove every barrier

THE declining quality of European Patents (EPs) is a real issue at the EPO. But that pales in comparison to some of the patents granted by the US patent office. USPTO patents include a method of swinging a swing, for example. Sideways. Yes, it’s a patent!

“Ever tried swinging from side to side on a swing instead of back & forth? Turns out, that method is patented,” United for Patent Reform wrote, linking to this article from earlier this month. It’s a pretty infamous patent which we mentioned here before.

“There’s also a patent for the “comb-over”,” one person reminded me today. This too we mentioned here a very long time ago.

From the article at “Above the Law”:

The United States Patent and Trademark Office (USPTO) has granted some pretty ridiculous patents over the years. It makes me wonder about the quality of patents they’re not granting. If you’re interested in patent policy, you should really read the Electronic Frontier Foundation’s (EFF) “Stupid Patent of the Month” column (EFF actually has the Mark Cuban Endowed Chair to Eliminate Stupid Patents), which is exactly what it describes itself to be: an incredible collection of outrageous, low-quality, obvious claims that USPTO somehow deemed worthy of monopoly protection. While some of these have since been revoked or overturned, just remember that they were once granted. Note that the Supreme Court in recent years has—often unanimously—overturned several patents, clarifying patentability criteria, which should impact the number of stupid patents being granted. And, I note that the collection of ridiculous patents below does not include items that actually meet patentability thresholds, but are just crazy ideas; instead, they cover things that probably should never have been granted a patent to begin with.

How about the other picks from the EFF?

“Unfortunately, the negligent USPTO will issue patents to people like this. Here’s one on a mundane training regime,” the EFF’s Daniel Nazer wrote about this patent and there’s more in Twitter (in this thread, for context).

Why did the examiners at the USPTO accept these applications and how did that slip through the system without adequate safeguards? This is why things like PTAB (to be covered separately) are required.

Earlier today we also stumbled upon this truly ridiculous article from the National Law Review. It wants us to think of methods as objects and the headline is a loaded question: “Why Can’t A Method Be Sold, Just Like Any Other Invention?”

U.S. Patent and Trademark Office guidelines do not currently allow patentees to directly claim software inventions, thereby encouraging use of other claim types such as method claims. As a result, the patent office has issued many patents with method claims directed to software inventions. But patentees who rely on method claims to protect their software inventions — and indeed all patentees with method claims — face a significant obstacle that has been imposed by the Federal Circuit.

Specifically, the Federal Circuit has held for purposes of infringement that method inventions are not considered made or sold even if they are necessarily used by or embodied in products that are made or sold. This has the effective result of helping infringers to exploit patented method inventions by selling products that make use of the invention — even in ordinary and expected usage of the product — while evading legitimate attempts by the patentee to remedy the infringement. Below, we suggest that the Federal Circuit’s position is incorrect and unnecessarily hampers protection and enforcement of method inventions, disproportionately affecting software. The Federal Circuit should change course and clarify that methods can be sold just like any other invention in certain circumstances.

The first paragraph says “software inventions” three times. It’s obvious that people who never developed software can’t quite grasp that programming isn’t “invention”.

We assume that many law professors still deliberately misunderstand software development and incidentally, there’s this new article today about Judge William H. Alsup of the northern district of California learning how to code in order to better understand the Oracle v Google case (copyrights and patents).

Earlier today Dennis Crouch wrote about the Federal Circuit, claiming that on Alice the “Turnstile Keeps Spinning” even though nowadays (this year) the court almost always invalidates software patents. It’s becoming more consistent over time, but to lobbyists like Crouch (promoting patent maximalists’ and trolls’ agenda) it’s a “Turnstile”, apparently. To quote:

In a split opinion, the Federal Circuit has affirmed the district court’s judgment on the pleadings – R. 12(c) – that the asserted claims of SSI’s four patents are invalid under Section 101 for claiming an abstract idea. U.S. Patent Nos. 7,566,003, 7,568,617, 8,505,816, and 8,662,390. (Claim 14 of the ‘003 patent – covering a method for validating entry to a city bus or train – is reproduced below).

[...]

As the Supreme Court has done in its 101 analysis, Judge Linn linked his work back to cases such as Le Roy, Mackay, and Funk Bros. The language of those cases focus on “fundamental truths” and “hitherto unknown phenomenon of nature.” In Benson and Alice, the court also explained “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”

For Judge Linn, a method of charging a bank-card at a bus-turnstile does not fit into those expansive definitions.

Judge Linn’s opinion recognizes that his concern directly stems from the Supreme Court’s approach in Alice and Mayo. He writes: “The problem with this test, however, is that it is indeterminate and often leads to arbitrary results.” His solution is that the two part test should not be “applied in a legal vacuum divorced from its genesis” and the three exceptions should be treated consistently. Patents should not be struck down simply because they “seemingly fail the Supreme Court’s test.” Rather, the focus should be on whether the patents “attempt to appropriate a basic building block of scientific or technological work.”

The solution for Judge Linn: Focus on the language of the claims and each limitation when determining whether a claim is directed to an abstract idea – “a basic building block of scientific or technological activity” or instead to a “tangible application” that serves a “new and useful end.”

Crouch is hoping to scandalise Alice like he does PTAB. Earlier this year it became ever more evident that Crouch is more like an activist (for trolls) than a scholar. He’s no longer good at concealing it. Earlier today he published a guest post by Charles Duan of Public Knowledge. This, for a change, gave an illusion of balance, comparing patents to monopolies:

Are Patents Monopolies? It Depends on the Relevant Century

The question of whether patents are monopolies is one of ongoing debate. But an important aspect of that debate is the correct meaning of the word “monopoly.” A change in the word’s meaning over the last few centuries can explain at least some of the differing opinions on the question.

Today, the word “monopoly” refers to a concentration of economic market power in a single firm or entity. But up through the early 19th century, that was not the accepted definition. In that time period, a monopoly was a government grant of an exclusive right, more akin to a franchise or government contract.

As we showed earlier this year, Crouch keeps misleading the readers about what patents are. He uses the language of patent maximalists.

Microsoft’s Software Patents Aggression in Court (Corel Again)

Posted in Corel, Courtroom, Microsoft, Patents at 5:38 pm by Dr. Roy Schestowitz

Summary: Microsoft’s tendency to not only abuse the competition but also to destroy it with patent lawsuits as seen in Corel’s case

THE Corel section of our site has not been updated for a very long time. The wiki page was last updated 8 years ago.

If the company is still around, then it’s certainly not doing much, but its legal case apparently persists and it’s not just about antitrust. Remember Microsoft’s abuses against Corel back in the 1990s and how Microsoft derailed Corel’s GNU/Linux business?

The patent case, as it turns out, is still going on. As usual, the lawyers get paid for this and it devours the company’s budget. Bonnie Eslinger has just published “Corel Says Microsoft Expert Overestimated Patent Damages” at Law360 (mostly behind paywall). To quote:

Corel Corp. asked a California federal judge Wednesday to nix some damages estimates proposed by Microsoft Corp. in its suit over infringement of nine software patents, saying one estimate overstates how much it would have cost Corel to design its home office software in a noninfringing way.

Wednesday’s decision comes as the tech rivals head toward a February trial date over damages related to infringement of Microsoft’s patents, which Corel admitted to in an amended answer to Microsoft’s complaint.

Remember that Bill Gates and Steve Ballmer threatened Sun over OpenOffice, demanding payment per download (for patents). Microsoft has always been aggressive with patents, even well before the Novell deal. Do not think for a moment that Microsoft has profoundly changed.

The Spanish Supreme Court Rejects the EPO’s “Problem and Solution Approach” While Quality of European Patents Nosedives

Posted in Europe, Patents at 12:15 pm by Dr. Roy Schestowitz

SIPO and Battistelli
Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)

Summary: European Patents (EPs) aren’t what they used to be and their credibility is being further eroded and even detected as such

EARLIER this year an EPO stakeholder said that s/he had received better service from the Spanish patent office than from the EPO. That comment became widely cited in the sense that several other people referred to it later. Spain is not exactly renowned for high patent quality or even an abundance of patents.

“SIPO is an atrocious patent office which unfortunately reaffirms the view/perception that China makes low-quality things.”In our view and our long-term assessment, the world’s worst patents are being issued in China (SIPO), where even software patents are explicitly and unequivocally allowed (unlike the USPTO where such patents were born).

SIPO is an atrocious patent office which unfortunately reaffirms the view/perception that China makes low-quality things. Earlier today the EPO said that “SIPO [had] changed how often and when it publishes its patents. Read here more about the change…”

“Battistelli aspires for what we called “SIPO Europe” just under a year ago.”As EPO workers ought to know, Battistelli is close to SIPO — to the point of inviting Chinese officials to his home town in France (for professional work). Battistelli aspires for what we called “SIPO Europe” just under a year ago.

According to this blog post from three days ago, the “Spanish Supreme Court clarifies that “problem & solution approach” is not legal doctrine” (which is a big deal).

To quote:

For many years, Spanish Courts have considered the “problem & solution approach” developed by the European Patent Office (“EPO”) to be a very useful tool for the purpose of trying to make an objective assessment of inventive activity. Unlike in other jurisdictions such as Germany, in Spain this method has become the natural instrument used by the Courts to examine inventive activity. Its use in judicial decisions, including those emanating from the Supreme Court, is so frequent that in a recent case, one of the parties alleged that it had become legal doctrine. In particular, that party, in an appeal filed before the Supreme Court, alleged that in its judgment of 29 December 2014, the Court of Appeal of Navarre had infringed this legal doctrine because it had failed to apply the “problem & solution approach.”

[...]

All in all, the main teaching of this judgment is that although the “problem & solution approach” is a very valuable method, other methodologies may be used.

The subject was incidentally brought up again in comments on a bunch of event (echo chamber) reports from Bristows. One comment spoke of “making a scapegoat out of the EPO’s “Problem and Solution Approach”.”

Thanks for that Report, which I read with a sinking feeling in my stomach, that panellists are creating unnecessary difficulties and misunderstandings and (as usual) making a scapegoat out of the EPO’s “Problem and Solution Approach”. Why is this ever the case, I wonder.

My point is that what disclosure you need to include in the original patent filing for Europe is not what the Panel Chair said it was.

The reaction from the USA, that such drafting imperatives (stating “the problem”) are incompatible with drafting for the USA, might be right. But, gentle readers, what if “stating the problem” is not actually required?

The way I see it, the EPO explores obviousness by toggling between the technical features recited in the claim and the technical effects they deliver. In his definitive book on drafting in Europe and the USA, Professor Paul Cole equates patentability with “A difference, that makes a difference”. If I may state it in other words “A new combination of technical features that delivers a technical effect”. What one needs in the original application, therefore, is not only a disclosure of the features but also of the effects delivered by that specific combination of technical features. No more than that.

Do the courts of the USA punish drafters and patent owners for saying in the application as filed what effects one gets with the claimed feature combination? I suspect not. But if they do, it is not helping to achieve the aims of the patents clause of the Constitution of the USA, to “promote the progress” of Useful Arts ie technology.

Amirite? Or do you disagree with me? Will other readers comment, please.

Watch the response:

Agreed re the “no more than that”. Also I thought a technical effect canhelp in the US too (Enfish) or did I misunderstand?

A US view of Paul Cole’s Fundamentals of Patent Drafting (I haven’t seen one?) and whether US practice has since moved on/changed would be helpful. I believe a copy of the book is still given by CIPA to students joining the patents profession in the UK.

CIPA is now instrumental in running IP Kat (which is why, we often assume, IP Kat no longer covers EPO scandals).

And again from the original commenter:

It occurs to me that some readers might retort, in reply to my posting above, that EPC Rule 42 “Content of the Description” makes it mandatory to recite “the problem” in the application as filed. I have two thoughts on that.

First, when was a patent application ever refused by the EPO, or an issued patent ever revoked, for the reason that the application as filed failed to disclose “the problem”?

Second, if you read the text of Rule 42, after reading my posting above, and with knowledge of the EPO’s Problem and Solution Approach to the analysis of obviousness, you can discern the beautiful clarity and simplicity of the EPC’s substantive law of patentability, how it optimises, in a First to File context, the promotion by the patent system of progress in the useful arts.

Sadly, the EPC is history. We have lost count of how many times Battistelli blatantly violated the EPC. It’s not even funny. It’s a very serious matter. Don’t expect Campinos to be much different or hold Battistelli accountable for it. He is, after all, not an Italian ICC judge.

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