What were the most popular articles of the Kluwer Patent Blog in 2018? A look at the list shows that – even more strongly than in previous years – one topic drew more readers than anything else: the functioning of European Patent Office.

Episodes of last year’s series on the EPO by Thorsten Bausch – top author in the chart – ended as numbers 6, 5 and 2. They were all written in the first half of this year, which was also the last half year of the notorious EPO presidency of Benoît Battistelli.

Nr 6 of the list, The EPO’s Vision (V) – Trust, was a sad display of what this principle meant to Battistelli: ‘… if trust is supposed to be the EPO’s vision, why does the EPO President apparently believe the EPO needs an “investigative unit” (aka as “Stasi” in examiners’ speech)? Because he trusts his employees and just wants to confirm what a great job they all do and how high quality their products are one year after another? If www.jungewelt.de is to be believed, the motivation is a different one. And if all of the EPO’s relationships are to prosper through trust, why did the President’s investigative unit consider it appropriate to install a keylogger on the public computers in the EPO’s Patent Attorney rooms in the Isar building?’

The experiences described in nr 5 of the list, The EPO’s Vision (II) – “expert, well supported and motivated staff”, offered an insight into the atmosphere of fear and intimidation at the EPO under Battistelli. ‘Every examiner who wanted to be a little bit more open to me cautioned me not to mention her/his name by any means, as he/she might be subjected to severe sanctions if it came out that he/she was a source of the information just relayed to me. I find this very strange, to say the least, as we are not talking about professional or personal secrets here, but about the way in which the EPO generally works.

The nr 2 article in the chart, the third of Bausch’ series, The EPO’s Vision (III) – Quality, discussed whether reforms under Battistelli had led to improvements of patent quality. Bausch pointed out, among others, that in a poll among colleagues ‘…. two thirds responded that quality has decreased over the last 2-3 years, one third responded that quality has stayed about the same, and exactly none (zero) responded that there was an improvement in quality.’

Articles nr 3, 4 and 7 reported about decisions of the ILO Administrative Tribunal (ILOAT) concerning leaders of the SUEPO union and others who had come into conflict with the former EPO president, and had been fired or demoted by him – with silent support of the Administrative Council. In spite of ILOAT judgments that they should be allowed back in their old jobs, this did not always happen. On the contrary, after a legal battle of three years culminating in an ILO decision that the Irish judge Patrick Corcoran should be reinstated, attempts were made to transfer him from Munich to The Hague to do work he was not qualified for (it seems this decision was reversed by Battistelli’s successor António Campinos).

The nr 7 on the list, Constitutional Law Alert for the EPO, reported about a parliamentary motion in the Bavarian State Parliament to do something about the lack of legal protection in cases such as Corcoran’s: ‘… motions like this should really ring the alarm bells both at the Administrative Council level and in the German Ministry of Justice. We cannot and should not just sit and watch what happens on the Isar riverbanks. The EPO has deserved better and our constitutions demand it.

Article nr 3 in our blog’s chart, Landgericht München: Patrick Corcoran is Innocent and Acquitted of all Charges, made clear that Corcoran didn’t ‘win’ his case on procedural grounds only: ‘decisions of the ILO and the EBA went in favour of Mr. Corcoran for procedural reasons only. This made me curious whether there is anything to the accusations raised against Mr. Corcoran on the merits, or whether – using the EBA’s words – “unsubstantiated or groundless, made-up allegations were used as a pretext for getting rid of an irksome judge”. (…) To put it succinctly, Mr. Corcoran was acquitted of all charges both by the Local Court (Amtsgericht München) and on appeal by the Regional Court of Munich (Landgericht München)’. 

Article nr 4 in the list, Tribunal ILO reverses dismissals and downgrading of SUEPO leaders, concerned ILOAT judgments in other EPO cases: ‘Battistelli’s decisions to dismiss SUEPO leaders Elizabeth Hardon and Ion Brumme and to downgrade their colleague Malika Weaver were wrong and must be set aside.’ Although it seems that this decision has been respected and carried out by EPO president Campinos, and he has encouraged employees to share their views, social conflicts and problems at the EPO are far from over. Former SUEPO leader Laurent Prunier, for instance, was fired on questionable charges as well and is still waiting for a review of his case.

Unitary Patent

Notably down in popularity in this year’s list are the Unitary Patent system and the Unified Patent Court. For years they were at the centre of European patent lawyers’ attention, but last year the harsh reality dawned on many observers that the future of this patent system is highly uncertain, due to both the Brexit and the German constitutional challenge.

The most important blogpost on the UP project in the list, nr 9, dates back to April, probably the moment there was most optimism the system would become a reality after all: UK celebrates World IP Day by announcing UPCA ratification.

‘(…) of course, there is Germany which remains a real remaining obstacle in the way of the UPC. But vitally, serious discussions can now start about enabling the UK’s continued participation in the UPC system after Brexit (including after the end of the transition period after 31 December 2020), and that is probably the point of greatest significance arising from today’s announcement. Can agreement be reached on that? Can it extend to the unitary patent part of the package, which is clearly more difficult given its status as an EU right. Hopefully the answers to these questions will be “yes”. There appears to be a will, and as the saying goes: where there is a will, there’s a way.’

The mood has changed since April however, not only because of serious doubts about the possibility to maintain the UK as a non EU member within the Unitary Patent system, but also because of the uncertainty about the timing of the decision of the German Federal Constitutional Court in, and the likely outcome of the challenge of the UPCA ratification.

Nr 8, International Investment Arbitration, the European Patent Office, and the Future Unified Patent Court, an article on the relevance of international investment agreements (IIA) for patents, makes a reference to the Unitary Patent system as well. ‘Should proceedings before the future UPC not comply with the standards of treatment under an IIA, which was signed by a Contracting Member State to the Agreement on a Unified Patent Court (UPCA), the investor whose rights under the IIA would be infringed by acts of the UPC could initiate arbitral proceedings on the basis of the IIA against the Contracting Member State.

Equivalents

Number 10 on the list is the article Actavis and Equivalents – One Year On. It  discusses the UK Supreme Court decision of 12 July 2017 on patent infringement, which caused a shockwave across the UK patent community.

‘What should the correct approach be? Those practitioners who have studied the development of the law of patent construction in the UK, or who have been in the field for a long time, will recall that pre-Improver (decided in 1989), in Catnic (decided in 1982), and in several House of Lords cases pre-Catnic, the Courts decided that the first question should be to identify what the patentee had described as the essential features of the invention. In relation to those features, variation would not be permitted. However in relation to non-essential features, variation was permitted provided the variant did not have a material effect on the way the invention worked and that this was obvious to the skilled person. The author considers that this approach – essentially putting the third Improver/Actavis question first, might be easier to apply and lead to fairer results.’

Finally, our number one of the list, the most read article of 2018! This concerned, again, the EPO: Leading German patent law firms criticize European Patent Office.

The article describes the initiative of four leading patent law firms in Germany – later joined by another ten patent law firms – to publish an open letter expressing ‘great concern’ about the developments at the European Patent Office. The firms wrote ‘that when “the aim is to terminate proceedings as quickly as possible (…), the quality of the search and examination of applications must suffer”. The rather high fees, moreover, “can only be justified by giving the examiners sufficient time for an indepth assessment of each single application”. Patents with an erroneous scope of protection distort and hinder economic competition and might unhinge the patent system’.

The letter was published half June and was directed to outgoing EPO president Benoit Battistelli, the (then) chairman of the Administrative Council Christoph Ernst, principal director user support & quality management Niclas Morey and future EPO president António Campinos. Later last year, the firms were invited for a meeting with Campinos and other EPO officials in Munich, which resulted in the start of a ‘constructive dialogue on patent quality’.

In 2019, the EPO will of course enjoy the continued attention of this blog. It is the first complete year for António Campinos as EPO president and it will undoubtedly be much clearer next year whether he is willing and capable to change the ‘persistent atmosphere of intimidation’ at the EPO, as it was recently described. Much sooner however, probably in about a week’s time, another huge issue will be clear and reported on: what happened with the Brexit vote, whether there will be a deal or no deal and whether there are still chances for the Unitary Patent system to survive.

 


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9 comments

  1. So far we have not seen much of a change inside the Office. 95% of the people responsible for the misery are still in place and have not even been rebuked. I doubt that we will see real change to the better any time soon.

  2. Michel, I doubt your word “responsible”. Responsibility lay with the AC and the immediate past President alone.

    Instead of thinking about the EPO, imagine a police force, in which the Chief of Police has a huge ego, which dominates those who try to impose political control over him. Members of the public never meet the Chief. Their experience of the Force is with those police officers who do the bidding of the Chief.

    Now imagine a new broom Chief of Police. Does he (or she) fire all the assistant and deputy chiefs, or even issue “rebukes” all round? Surely not. The organisation must continue to function. The biggerst mistake the Americans made in Iraq was to dismiss the entire police force, just because all police officers were doing Saddam’s bidding. They should have left them “in place” and refrained from “rebuking” them.

    Instead, the new Chief requires all his senior assistants to turn over a new leaf and do what the new Chief requires. Most humans can adapt to a new boss. Most will obey. Few will wilfully disobey their superiors. Instead, they will more likely resign.

    What evidence do you have, that this has not happened? Perhaps the new Chief is still figuring out which amongst his (or her) assistants are the Bad Hats that are incapable of reform, serial abusers, and nothing more than incurable villains that will disobey the new rules, and continue to bring the organisation into disrepute.

  3. Dear MaxDrei

    your point is valid under optimal conditions (theoretical ones) but not in real life.

    For instance recently at Air France you had a major social fight (with guess who at head of the company : an énarque of course). Eventually, he had to leave the company (lose a referendum on his course of action) and the social conflict went on.

    A new boss arrived (a canadian). Within 15 days he had met with all unions (it took FIVE months to Mr Campinos to meet with SUEPO alone), the HR chief resigned and a solution to the social conflict was found.

    At EPO the HR chief largely responsible for the social mess and deterioration of staff careers, motivation and in fine quality, is still seating comfortably.

    NONE of the pending cases of the abusively sanctioned staff reps and union officials has been solved, NOT A SINGLE ONE (Els Hardon is still in the dark and Laurent Prunier still dismissed his case pending at ILOAT)

    Wake up MaxDrei please: as a new boss Mr Campinos had space (and the moral duty) to change a few heads (of course I agree with you: not fire the entire HR dept.). This would have send a clear signal to all stakeholders.

    Instead, he chose to keep them at their positions (where guess what: they continue to act as they did under Battistelli since they are programmed to perform like this).

    Campinos is wasting his credibility with “sweet” communiqués full of hot air and storytelling which fool no one (staff is highly educated and understand too well the manipulation).

    The pressure on production remains the investigative unit, the management style by fear too (recruitment of new staff has become an issue, newcomers resigned after 2 to 3 years, experienced staff retire). This is the recipe for an industrial disaster since the only asset of the EPO is (was) its STAFF.

  4. Maxdrei, you have no idea how wrong you are.
    Most of these people are even worst than BB and were carefully handpicked by him. They’re merciless, incompetent, shameless. Everyone who was unlucky enough to cross their road has plenty of proof of that.
    They should have been immediately fired or “promoted away” where they could not bring further nuisance. The fact that they all are still at their places is a clear sign of what the new president’s intentions are.

    Unfortunately.

  5. Dear Max Drei,

    As far as the AC is concerned, I fully agree. It was the tail wagging the dog, and if the members of the AC have a minimum of self-respect, they have to change their attitude towards the high management of the EPO. For the other part, I might only agree partially with what you have said. For sure the organisation has to continue, and hence firing the minions of the preceding president might not be possible immediately.

    The difficulty is compounded by the fact that as of 01.01.2019 three new VP have taken office. They also need to get their bearings. But still, if he does not put aside some of those minions, and I think primarily of the head of (in)human resources and of international cooperation, he will never gain the confidence of staff. Some signs have to be given, but nothing seems to occur. Or is he waiting for the new VPs to do the dirty job for him? We should know pretty soon.

    The time is nearing when the new president has to show some real signs of change. Simply adding a new buzzword, efficiency, is not what staff wants. He should review the appalling decisions taken by its predecessor against staff representatives, and not ban a person who has been recognised as innocent to a foreign country. I doubt it is in the interest of the EPO that Mr Corcoran has been transferred to The Hague.

    To me, it is not only the AC to blame, the profession has its part of responsibility. During all the time the EPO higher management played havoc, the profession in form of the epi was not heard and is still not audible. One wonders why? It had to be some German firms to ring the alarm bell, and as ít was a small number of them, they can be dismissed at once. But an objective look at decisions from the Boards and from national instances, shows that the quality is clearly degrading. And we have not yet arrived at what has been granted in the last few years after production rose by 40%.

    As far as the UPC is concerned, rumours stayed rumours, not to say they were fake news or the expression of the wishful thinking of those lawyers having contributed to the UPC and who are desperate to get a return on their investment. But this perspective is dwindling the longer times go. Whether the Brexit is a hard or a soft Brexit, the future participation of UK in the UPC is very doubtful, contrary to what the same group of lawyers may say.

    As far as equivalents are concerned, the House of Lords decision might have been in vain as the example chosen was not the most compelling. And it might well end up with the nullity of the patent due to lack of inventive step as it has already happened in an EPO contracting state, at least in first instance. The only lesson to keep is: if you have the guts, slapdash drafting can be rewarded.

    Again the question of arbitration, is something exclusively reserved for lawyers who can act as they think fit. Arbitration, why not, but then with judges and not just lawyers, and with a second instance. Why should investors have an extra forum in which only they can attack states, but when they do not keep the promises they made when getting public money for those investments, states can only resort to “normal” justice? No civilised country need such a specific forum to settle disputes between investors and governments.

    Techrights: FINGERS OFF!!!!

  6. First of all, thank you KPB – and in particular this year, Thorsten Bausch – for your activity. It is rather telling that the only news or reliable information about the EPO came from you. Not always good news, but at least a little light in the dark.

    I’ll refrain from adding to the comments above, except to say that management is, so far, less visible. Why, I don’t know. But that is neither effective or comforting.

    Good luck for 2019 to you all.

  7. in an ILO decision that the Irish judge Patrick Corcoran should be reinstated, attempts were made to transfer him from Munich to The Hague to do work he was not qualified for (it seems this decision was reversed by Battistelli’s successor António Campinos).
    Alas, the room allocation shows that Mr. Corcoran has been assigned a working space in our wonderful and modern building. Which is situated in The Hague.

      1. Rumours have it, that the President would cancel the transfer, but cannot do so as long as Mr Corcoran is registered sick leave (as the systems apparently don’t take any changes when “special leaves” are active),
        And registering being back can only be done in The Hague.
        The head of inhuman ressources apparently was able create a catch-22 for this kind of situations….

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