In 2017 Russia has been in the news quite a lot, even though mostly not for good, due to its despicable efforts to influence the elections in the US and the Brexit referendum via social media. We will yet have to see and hopefully learn more about who supported these efforts in the US and UK and whether their impact may even have been decisive for the outcome of these democratic votes. But since we just had Christmas and it is time for New Year’s wishes, let us for now happily remember better past times and, specifically, three (or four) important Russian words we learnt from this great country with a lot of admiration. It just so happens that each of them is a perfect New Year’s wish for the EPO that has likewise been in the news a lot in 2017, and mostly not for good, unfortunately (unless you are satisfied with the official EPO news releases). So, without further ado, here are my good wishes for the EPO in 2018: Mir, Glasnost and Perestroika!
**
1. Mir (Peace)
I strongly hope and wish that the EPO will find back to internal peace, which has been so seriously disturbed over the past years, mostly due to the EPO management’s “very rigid regime with a heavy-handed approach“ (C. Ernst, Chairman of the EPO’s Administrative Council) and a new and very controversial policy that seems to put speed and output before quality – except where it would have been necessary the most, i.e. in the much neglected Boards of Appeal.
I also hope that legal peace will be restored in regard to the much reported case of Mr. Corcoran, of which there is an excellent and up to date summary on wikipedia.
This topic immediately brings me on to my second wish:
**
2. Glasnost (Openness, Transparency)
I wish the EPO and particularly its Administrative Council (AC) Glasnost. At least in my opinion, the Administrative Council is the “window” of the public into the EPO and vice versa. According to the European Patent Convention, the Administrative Council is the one and only control instance of the European Patent Office (if one leaves matters of constitutional law on a side for the moment). This means, however, that the AC should take its role as a control instance seriously, and certainly much more seriously than in the past, and visibly interfere where things go wrong rather than cover them up. Due to its unique position, the Administrative Council also is accountable (and should be held accountable) for the EPO’s policy and the EPO’s management to the public.
However, all of this requires that the AC communicates with the public directly, not through an EPO management filter, and openly. In particular, the AC should have its own website, independent from the EPO, where it publishes and explains its decisions so that the public is able to understand and discuss them. The AC should also be directly approachable by the public and by EPO staff members who feel unfairly treated by their management. Perhaps an Ombudsman would do the EPO good.
Having said that and reverting now to the case of Mr. Corcoran, I cannot but be critical in regard to the current situation. This is what the AC officially stated on the EPO website:
In a closed session, the Council took a final decision in a disciplinary case against an employee appointed by the Council – a case which had attracted significant public attention. This decision was taken with due regard to all relevant elements. The Council expressed its satisfaction at having closed the case. In particular, it underlined its expectation that now – after a long period of intense debate – legal peace would be restored.
So do you, dear readers, understand from this communiqué what the AC’s “final decision” in regard to Mr. Corcoran was? I don’t. And this is my point on Glasnost. I wish the EPO, its AC and all of us more transparency and openness, and definitely a much-improved communication with the public.
It is easy to chime in the AC’s hope that “legal peace would be restored” following its “final decision” and I certainly would love to do. But the question that tortures me is whether these are just pious words for the consumption of the public, or whether they actually reflect a generous decision reinstating Mr. Corcoran into his rights as a Board of Appeal member at least for the time he was unable to fill out this role due to his unlawful (ILO AT) suspension from the office. Unfortunately, this seems to be still unclear.
Mathieu Klos from JuVe reported that Mr. Corcoran has been reinstated but not reappointed. Assuming this is true, the question still remains what exactly “reinstated” means. If it were to mean that he was reinstated just for the 10 remaining days of his regular tenure as Board of Appeal member (which ends on 31/12/2017, i.e. today), but not for the time period that he lost due to its illegal removal from the office – according to the ILO AT decisions -, then I doubt very much that such a decision would restore legal peace. I sincerely hope that the AC found a better and fairer solution than this one. We will see.
**
3. Perestroika (Restructuring)
If Mr. Battistelli’s tenure as President of the EPO was/is good for anything, then it is to demonstrate to the public that the European Patent Organisation has no effective system of ‘checks and balances’ and is too susceptible to abuse of power. The Boards of Appeal are still far from being a truly independent court instance; and it is at least possible, if not even predictable, that this may or will result in constitutional problems in Germany, which may also have an impact on the planned UPCA.
Therefore, it is maybe a good time now to remember decision R 19/12, which in my view is one of the most important internal review papers about the EPO ever written. (Unfortunately, it seems to be only available in German.) As this decision shows, we already had a fairly far-advanced discussion in the years before 2004 about this issue, which led to a “completely worked-out draft of a basic proposal for a revision of the EPC in order to achieve organisational and managerial autonomy of the Boards of Appeal within the framework of the European Patent Organization” (CA/46/04).
21. Im Jahr 2004 wurde dem Verwaltungsrat ein vollständig ausgearbeiteter Entwurf eines Basisvorschlags für eine Revision des EPÜ zur Umsetzung der organisatorischen Verselbständigung der Beschwerdekammern des Europäischen Patentamts im Rahmen der Europäischen Patentorganisation vorgelegt (CA/46/04). Sie würde den Beschwerdekammern unter Leitung eines Gerichtspräsidenten die Stellung eines dritten Organs der Europäischen Patentorganisation neben dem Europäischen Patentamt und dem Verwaltungsrat verleihen und damit dem Gerichtspräsidenten, der auch Vorsitzender der Großen Beschwerdekammer sein sollte, eine vom Amt und dessen Präsidenten unabhängige Stellung einräumen. Der Verwaltungsrat war in seiner Sitzung im Juni 2004 der Meinung, dass das Projekt reif für eine Diplomatische Konferenz sei und auf die Tagesordnung einer solchen Konferenz gestellt werden sollte (CA/85/04, Nr. 68). Auch dazu ist es bis heute nicht gekommen.
According to R 19/12, the AC in 2004 was of the opinion that this project is ripe for a diplomatic conference and should be put on its agenda. “But this also has not happened until today”, noted the Board laconically about 10 years later. There is a rumour that Germany then blocked this project, as the German representatives in the AC were afraid that this might result in a complete uncoupling of the BoA and their subsequent move to a different country. If this was true, I – being a German – could only shake my head about such an undignified Kirchturmpolitik (parish pump politics). Of course, it makes eminent sense to leave the Boards of Appeal in Munich – and in a proper building with the requisite space for offices and hearing rooms -, but the issue of a court’s or board’s venue should never determine the discussion about its proper construction and judicial function.
In my opinion at least, it would be very advisable to enter into a fresh discussion in 2018 on whether the EPO really has the right structure to satisfy the needs of its stakeholders, who (among other things) want and need an independent, efficient, competent, but above all fair judicial body to decide on European Patents and applications. The concept of fairness includes that the parties are given an effective right to be heard, including the possibility to file appropriate requests also in the appeal instance, depending on and in response to the procedural situation. Fairness to the parties should never be sacrificed to procedural efficiency; otherwise we would need no boards of appeal at all.
In addition, it also seems to me that we should have a discussion about Art. 13 EPC and whether the ILO Administrative Tribunal really is the best forum to safeguard elementary staff rights. At least in my opinion there are substantiated doubts in this regard, which may justify a discussion whether a judicial reform of the EPO should also include this aspect.
With this, I wish the EPO and all of our readers a genuinely happy New Year, and may Mir, Glasnost and Perestroika come to the EPO…
…bistrot
That is: fast.
________________________
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Excellent article ! Bravo Thorsten !
FYI internally we all know that if decision R 19/12 was NEVER translated into FR and EN this was on direct instructions of Battistelli fuming that the Boards dared to issue it at the first place (this alone is unacceptable since it deprives the public to access an important piece of legal information in the 3 official EPO languages).
Now the worse part: Battistelli is said (from reliable sources) to prepare himself for the position of : first President of UPC Court in Paris (since the treaty foresees that the first President will be a French citizen)
So if after 6 years of total mis-management of the EPO on all accounts, countries involved in IP matters such as Germany, England, Italy, CH, BENELUX and the Scandinavian, do not put a FINAL END to this circus, expect him back soon for more funny stuff…
With this said let us keep hope in better days AFTER he is gone, since the next 6 months will be deplorable ones for sure
Thank You for this good summary.
Regarding a diplomatic conference: staff has asked several times for it.
The EPC 2000 even inserted a specific article, as at the time of drafting the EPC 2000 the UPC discussions were not closing to an end, and therefore any possibly necessary amendment of the EPC for this was postponed. To discuss these matters, the contracting states decided to meet at at least misterial level at least once each five years to discuss the progress and possible necessary amendments of the EPC.
Furthermore, monsieur Président has been asked by staff during one of his famous “meet the president” happenings, why the AC has not started any preparations for one of these ministerial conferences according to article 4a EPC when the AC asked for proposals regarding the DG3/BoA reforms.
His answer was, that he does not want a diplomatic conference. If politicians would meet, that would be like opening a can of worms: you can set a schedule, but the results will be completely unforseeable.
Also: some 30 years ago, there have been proposals to hire new BoA members only under the condition, that once their technical board has been issued new (or renewed) contracts, their board would move to Berlin. This would’ve resulted in a separation of the BoA from the EPO managements main building within 10 years, thus delivering the increased perception of independence.
The proposal included moving supervisory elements of the EPO (IT development, audit, finances) to Berlin too, and thus over some 20 years stop examination in Berlin.
please correct a typo:
Working link:
https://en.wikipedia.org/wiki/Art._23_1/15,_Art._23_2/15_and_Art._23_1/16
from article:
https://en.wikipedia.org/wiki/Art._23_1/15,_Art._23_2/15_and_Art._23_1/16)
You need to remove the closing bracket in your link to wikipedia under the topic “Mir”.
I wish you a wonderful new year, and thanks for these wishes!
(no need to publish this comment)
Corrected. Thank you, Francesca and Happy New Year to you, too.
Dear Thorsten,
Congratulations on your article. To the point, if not to the liking of the Chairman of the AC, and certainly not to the one of the tenant of the 10th floor.
Some further views on the different topics you mention:
1) Mir
In order for internal peace to come back again, the conditio sine qua non is that the Napoleon of the 10th floor leaves the EPO. What he has done to damage the EPO will however not disappear as quickly as him, and his “bad vibrations” will stay in the office for a long time. Certainly as long as all his minions are still in office, with a special mention to the so called “Head of HR”. I even do not dare to think that what she is doing has anything to do with “human” resources. Once her protector has gone, it is to hope that she will lower her tone, be less apodictic and sure of herself. It is also to hope that all those people will be send back to France, quicker as they came.
2) Glasnost
This might remain a wish, as like all dictators, they are afraid from anything which could bring light into their handlings.
As far as the AC is concerned, the ludicrous situation of the tail wagging the dog, should come to an end, the sooner, the better. The AC should not only have its own website. It should have its own staff, nominated by it, and not by the president. The Secretariat of the AC is made up of persons which are under the hierarchical authority of the president. There are in clear conflict of loyalty/interest. It is high time to change this as well.
The first action of the new chairman in re Corcoran, does not let a lot of hope come up, when it comes to the control function of the president by the AC.
Furthermore, how can an action be taken against a person, when this person is not even heard. What is this for a parody of justice? The AC is wrong when it thinks that legal peace will be restored by simply putting a lid over the problems.
Even if it was not said expressis verbis in its judgement, the mere acknowledgement by the ILO that the sanction taken again Mr Corcoran was illegal, implies for anybody with two cents of gumption, that he should be allowed to do his period at the BA which he could not do due to the sanction imposed on him. The ILO has not just decided that the withheld salary is to be given to him, but that he is reinstated. And that means more than just for a few days! What has been done, starting with the Chairman of the BA, and by the AC, is not even lip service to the ILO judgement.
3) Perestroika
There is not only the question of independence of the BA vis-à-vis of the President. Following the speech of Prof. Broß before the Max Planck Institute in 2018, the document CA 46/04 was mentioned during the discussion. CA 46/04 and CA85/04 should have been followed by actions. And if it is true that Germany torpedoed this attempt for such stupid reasons as explained, it should be a prime duty of the new chairman of the AC, a German, to at least convene the conference of ministers of the Contracting States responsible for patent matters as foreseen in Art 4a EPC. EPC 2000 is in force since December 2007, i.e. for now more than 10 years; it means that already the second conference should have been convened by now. Why such an inaction?
I can only agree that the present messy situation, especially at the BA, is due to the actual tenant of the 10th floor.
The BA are not independent, they are even less than before, even if there has been an attempt to improve the perception of independence (sic) of the BA.
The President of the BA should not merely exercise the right to propose the members of the BA upon delegation by the President of the EPO, cf. R 12d (2) EPC. He should be allowed to decide by himself. One of the problems the BA presently encounter is that the actual tenant of the 10th floor has blocked the nominations of members, as retaliation after R 19/12. By limiting the budget devoted to the BA, the blocking of posts can continue. What are the criterions to be used for assessing the performance of members of the BA, cf. R 12d (3) EPC Why an external committee has to have a say in this matter? I understand something else under independence.
The BA should have their own budget, and not the budget which is given to them by the president. Why the president does have a right to be heard about the rules of procedure of the BA? This is not innocent. If the RoP are not to the liking of the president, he has the power to give less budget to the BA. Continuously raising the appeal fee to the level envisaged by the pseudo manager of the 10th floor also amounts to a denial of justice. No Court in no Contracting state is self-supporting, the more so since there is no value dependent fee, and rightly so, before the BA.
The whole change carried out is merely farcical, and will in the long run cost a lot of money to the users of the system. Why was there never any protest coming up from this side in general, and “epi” in particular?
A reorganisation of the BA along the lines proposed in 2004 should also be such that a revision of decisions of the BA is not only limited to procedural aspects, but also to substantive aspects. Only then it will be possible to consider that the BA and the EBA will have the position of a court. If an applicant sees his application refused or its patent revoked, he has no further mean of redress. But if the opponent loses before the BA, he can continue the battle.
This is an aspect which may play a role, not only before the German Federal Constitutional Court, but also before the CJEU, should it one day say something about the UPC.
There is a lot to be done, and I agree as well, as soon as possible!
Techrights: fingers directly or indirectly. This means not even by a mere link embedded in your libels! It is not because comments are public, that you are entitled to take them over and put them in your publications. I do not want to be used by you.
Thank you, Attentive Observer. A lot of very good observations and suggestions. I hope they will be widely read and taken on board by those responsible. Have a great New Year!
@ Depressed EPO staff
It is not the first time that the story about the actual tenant of the 10th floor becoming the first President of the UPC in Paris surfaces.
For a start, he is not a chicken of the year and has absolutely no qualification as a judge. He has reached the pension age, and I cannot see true judges letting such a parvenu taking their place. He might look as powerful, but only because he hides behind immunity, but there are limits.
I might be naïve, but I am not buying this story. Even if Techrights has mentioned it a few times.
Techrights: fingers off, directly or indirectly, even by mere link!
Future will tell what the current tenant of the 10th floor is up to. I have no own independent information about this, but the only thing I know is that I would be deeply disappointed and even shocked if the Macron government allowed this to happen. In any case, Article 14 of the UPC Statute will have to be observed:
(1) The President of the Court of First Instance shall be elected by all judges of the Court of First Instance who are full-time judges, for a term of three years, from among their number. The President of the Court of First Instance may be re-elected twice.
(2) The first President of the Court of First Instance shall be a national of the Contracting Member State hosting the seat of the central division.
I take from (1) that the President of the UPC’s CFI must be a full-time judge. If you are right and Mr. Battistelli has “absolutely no qualification as a judge”, then this should exclude him from this post.
I add my thanks to Thorsten Bausch, for publishing. I thank Kluwer for allowing the discussion. I thank contributors to this thread. I wish all of you a happy, healthy and successful 2018.
Reading about the post of UPC President, and the rumour that BB will now slide back to Paris and into that seat, I’m with Thorsten and Attentive, in seeing it as dubious. When it comes to disciplinary cases at the EPO, BB routinely sits as prosecutor, judge and jury, but even he would blush to describe that judging experience as “full time” (which seems to be the necessary qualification to be UPC President).
I wonder whether the rumour is a “Chinese Whisper”. Could it be confusion with CEIPI in Strasburg, where BB is (if I understand it right) the only candidate for the Presidency? I would be surprised if BB were to be the only candidate for UPC President. But so many bizarre tings have happened during 2017, at the political level of the EPO’s AC, one hesitates to dismiss any rumoured political happening as not possible.
I commend readers to the text of Angela Merkel’s New Year Address to Germany, reminding us all what Europe stands for. Bravo Chancellor Merkel. But now comes the hard part – putting all those fine words into effect. Are you paying attention, Emmanuel Macron?
Dear attentive Observer
rest assured : I do not have it from Techrigths but from one of my closest friend who disposes upon a solid network in Paris, Bercy (the allmighty Ministry of Finance of which Battistelli was a “high” civil servant for 30 years).
As to Battistelli’s age this may be a problem but not so sure for the moment. Do not bury him to quickly since he will for sure not start gardening or playing Scrabble after the EPO
Do not forget that his narcissistic profile makes him immune to reality. So far his intentions are clear: the next power position with immunity, in Paris (Munich is far too exotic for someone of this taste) and at the Head of the UPC Court.
So either all IP relevant countries do take their responsibilities NOW and put a final stop to his destructive Amoklauf or there is no reasons Battistelli stops it
Dear Thorsten,
Thanks for your kind works.
I think that criticising for the sake of it does not bring much (cf. Techrights). It is better to think about the situation, to show where problems lay and what should be taken into account when attempting to solve those. No more no less. The EPO is too important to be run into the wall by a pseudo manager and its minions, and the AC should do its job, and not merely rubber stamp what has been decided on the 10th floor.
I wish you too a Happy New Year, with lots of good and interesting contributions on this blog. Please continue!
And to Kluwer: thanks for what has happened up to now, but please continue to be a forum of discussion, accepting critical views, be it about the EPO or the UPC.
As far as the future of the Napoleon of the 10th as first chairman of the UPC is concerned, I think it’s own presentation on the EPO home page is very clear:
https://www.epo.org/about-us/leadership-and-management/president.html
If you find anything remotely relating to a function as judge, please let me know. It speaks for itself. Whether a Chinese whisper or not, I think this story should be brought to an end. It leads away from the important things, and there are more important things to discuss!
To Max Drei: a Happy New Year too, and please continue with your contributions! They are always refreshing and appreciated.
Knowing how the vote as Chairman of the AC of CEIPI turned out for the tenant of the 10th floor, he has nothing to be proud of. He was indeed the only candidate. Would the vote have been achieved at the first run, with a vast majority, or even unanimity, as happened in the past, we would have heard it immediately. Silence is sometimes revealing……
Techrights: fingers off! Directly and indirectly, even as a mere link! I do not want to see my comments used by you!!!
Attentive Observer,
I share your concern about the often misguided “attacks” made by Techrights. However, I would add that, amongst the dross, there are some useful nuggets of reliable information that do not find their way into the public domain via any other route.
This brings up a question that I have often considered: why is it that the tragic events at the EPO (which are sometimes very easy to independently verify) receive so little attention from the media?
Perhaps one could also ask whether the EPO’s management “tolerates” Techrights on the grounds that it would rather have whistleblowers publishing “explosive” information in that forum … as this then makes it easy (or at least easier) to dismiss / minimise the significance of the publication.
Uncomfortable questions indeed. But at least we can deduce from Techrights’ publications that there are plenty of potential whistleblowers out there. If the number of “interested” media outlets had even remotely matched the potential pool of whistleblowers then events over the past few years might have played out very differently indeed.
Perhaps we can make a fresh start in 2018. My suggestion would be for epi and the national associations of professional representatives to start getting more proactive in defending the interests of patent applicants in a STABLE European patent system that is based upon a REASONABLE fee structure.
The latter point is perhaps easier to illustrate. For example, are professional representatives happy that they are representing their client’s best interests when they say very little about the fact that the EPO’s own figures (CA/F 18/17) show that their fee income exceeds their outgoings to the tune of hundreds of millions of Euros per annum? Should this not lead to demands for reduction of EPO fees to a level that provides only a much more moderate surplus (in accordance with the requirement from Article 40(1) EPC for the revenue and budget of the Organisation to be “balanced”)? At the very least, should the epi and national associations not be pointing to the surplus outlined in CA/F 18/17 and demanding that the EPO reverse their proposal to increase appeal fees (when there is clearly no objective justification whatsoever for such an increase)?
Thank you Mr Bausch,
We examiners appreciate very much what you are doing. Please accept as new year gift one more Russian word for your list:
gulag.
This is how we feel. Emprisoned and powerless in our (golden?) cages. Blindly undergoing useless restructuring (for example, in the next 3 months everyone will be moving office room at the EPO), scared to speak out for fear of retaliation (every month a list of colleagues who “end service” for no reason is published on our intranet ). Everyone wanting to listen and possibly publish our incredible stories having been silenced anyway.
Counting the days left (180) until “le roi” is gone. Hoping that we don’t end up with an “o rei” at his place.
@6 months
Do you happen to have any insight into the means by which potential publishers have been “silenced”?
Such means will, by necessity, have been exerted outside of the protected environ of Eponia … and so there is a chance that any “foul play” (or morally questionable activities) here could represent an Achilles heel for “le roi”..
Sorry to link to Techrights, but it was the fastest link I could find about Les Échos self-censoring to secure their status as “EPO Official Media Partner” and the money coming with the pieces-to-be-published.
Sorry, forgot the link:
http://techrights.org/2015/06/18/les-echos-epo-censorship/
You don’t need to apologise just because “Attentive Observer” — whoever that it — has an obsession with bashing me. I’ve already been compared to “Daesh” by some anonymous cowards in blog comments: http://techrights.org/2016/07/03/ip-kat-censorship/
Regards,
Roy
Francesca – thanks for reminding me. I think that self-censorship is a widespread problem, even amongst the delegations to the AC. However, in my view, the events of the past few years amply demonstrate the futility (and counter-productive nature) of that strategy when it comes to dealing with the current President. That is, I believe that there is no point trying to “stay in the good books” of a President who takes actions that fundamentally undermine (confidence in) the very system upon which your livelihood depends.
Roy – I don’t see Attentive Observer’s comments as “bashing” you. Rather, I think that (s)he is simply more sensitive than me to the practical effects of your perception bias.
A good example of this is your criticism of the EPO for granting patents on plants. In that instance, you seem to have completely failed to realise that you were effectively criticising the Enlarged Board of Appeal (and a national court) for reaching a common-sense interpretation the European Patent Convention. Whilst that interpretation may not have been to your liking, you have to remember that the Boards of Appeal can only interpret and apply the EPC as it was written (taking into account various factors that help to provide context).
If there was general agreement that a different law should be applied, then both the Biotech Directive and Article 53(b) EPC should have been amended. The Boards would then have applied that amended law. However, this did not happen. Instead, Rules that are subservient to Article 53 EPC were amended… in a way that amounts to a clear subversion of the rule of law in Europe (as a result of lobbying by special interest groups). Even if the outcome is to your liking, are you really happy with the means by which that result was achieved? It is not so different to what has happened with the UPC, you know.
@Depressed EPO staff
I accept what you say, but to me it still remains barely possible that the Napoleon of the 10th floor becomes the first president of the court of first instance of the UPC.
The lead in this matter does not lie with the Ministry of Finance or Industry, but with the Ministry of Justice. That among ENA alumni there are strong ties, is certain. But there are limits. I cannot see that some of the judges of the Paris TGI or of the Paris Court of Appeal, will simply accept that a chap like the tenant of the 10th floor takes precedence. There are also strong ties among the alumni of the “Ecole Supérieure de la Magistrature”. The position of the President of the UPC is not mainly to administer the UPC, it is to take position in matters of procedure and substance. And here the “maire-adjoint” of St Germain en Laye, in charge of “culture”, has no qualifications whatsoever. I might be wrong, and I am prepared to accept this as well, but not naïve.
As gift for the departing despot of the 10th floor, a Scrabble or a pair of gardening gloves would be a good idea. I would add a mirror, preferably enlarging, in order to be commensurate with his ego. Where can I contribute?
Techrights: fingers off! Directly and indirectly, even as a mere link! I do not want to see my comments used by you!!!
@Concerned observer
1) Techrights
I think you brought the situation of Techrights to the point. There are sometimes real nuggets of information to be found, but there are buried in the midst of a maze of conspiracy theories and affabulations, and sometimes meaningless, or as you say “misguided” attacks. It is not by formulating such nonsense that the causes that Techrights claims to defend will move forward. I do not want to contribute to this nonsense.
By the way, the crusade of Techrights against software patents reminds a bit of Don Quichotte’s fight against wind mills. The reason why programs were not accepted, as such, has a very practical background. There are lots of computer languages and they have all different versions, changing with time, and all have their own syntax. It was simply not possible to request from search examiners to be knowledgeable about all those languages, which lead to the exclusion of programs as such. No more, but no less.
It was never the intention of the legislator to forbid inventions implemented by computers. Whether you control a steel mill with a program or with a series of individual circuits is irrelevant. What matters is the control function, and if it is new and inventive, it has to be stated in plain words in the description and the claims.
The situation is a bit more complicated when everything occurs within the computer itself, but here the case law of the boards of appeal has made clear what is patentable or not. For a time the EPO even admitted short excerpts in program language, but all applications stemming from the US in which tens of pages of listing were added, the latter had to be deleted.
The famous decision in the European Parliament about the prohibition of software patents was the result of a strong lobbying action from the free software world, which for once was stronger than the Alliance for Industry. What the late former Prime Minister of France, Michel Rocard; said at the time, showed clearly that he did not know what he was talking about. He was parroting what he was told. There, he missed an opportunity to keep quite.
This does not mean that I am in favour of the software alliance, which tries to get everything patented, even if it is not patentable! On the contrary, but there again, the case law of the boards of appeal, has made things pretty clear.
2) Absence of reaction of interested circles
I have always been surprised at the lack of reaction of the interested circles, be it “epi” or national associations of professional representatives, vis-à-vis the destructive effect of the tenant of the 10th floor on the EPO.
Accepting a 40% increase of patents granted in a hurry, without even questioning the figure or the quality is a poor show. The EPO management can say what it wants, even claiming that quality has improved, no voice against it, beside may be Thorsten Bausch or the odd chap. This is not enough. The same goes with the amendments of the status of the boards of appeal and their exile to Haar. The silence was deafening.
It is amazing that the EPO makes still a lot of profits in spite of the very expensive trips of the Napoleon of the 10th floor. There is probably no country beside the Samoa islands which was not gratified by a visit from him. When at a meeting in Paris or elsewhere in Europe, he turns up with is own car and driver, this is not cheap either.
I take bets that he will want a secretary and a car once he has left the EPO. And he might even get it, with on top some body guards, seen how he is controlling the AC. The whole security measures when entering the EPO are also not cheap, and merely there for the comfort of his ego. All at the costs of the users.
The EPO has not been set up as a cash cow, but as providing service to the users of the system. With all those profits, there are also no reasons for increasing the appeal fee to the levels envisaged. But it looks different if the boards of appeal have to be punished because they are not abiding by the will of the great master of EPO.
In other words, the members of the boards should not be dependent on the president of the EPO, but from the chairman of the boards of appeal, and have their own set of staff regulations, and not merely those applicable to all staff of the EPO. It is only then that they will be truly independent. This was the pretext which led to the house ban of Mr Corcoran. Separation of powers has a deep meaning!
As another commenter said, the present situation at the EPO makes you want to puke.
I hope that 2018 will bring some changes, but to be honest I am pessimistic.
Techrights: fingers off §2)! Directly and indirectly, even as a mere link! I do not want to see my comments used by you!!!
As §1) concerns you directly, it would be unfair not to let you comment one way or the other. But I request a polite reply, and that it is not embedded in a lot of nonsense.
@Depressed EPO staff
I accept what you say, but to me it still remains barely possible that the Napoleon of the 10th floor becomes the first president of the court of first instance of the UPC.
The lead in this matter does not lie with the Ministry of Finance or Industry, but with the Ministry of Justice. That among ENA alumni there are strong ties, is certain. But there are limits. I cannot see that some of the judges of the Paris TGI or of the Paris Court of Appeal, will simply accept that a chap like the tenant of the 10th floor takes precedence. There are also strong ties among the alumni of the “Ecole Supérieure de la Magistrature”.
The position of the President of the UPC is not mainly to administer the UPC, it is to take position in matters of procedure and substance. And here the “maire-adjoint” of St Germain en Laye, in charge of “culture”, has no qualifications whatsoever. I might be wrong, and I am prepared to accept this as well, but the more I think of it, the less likely it appears possible that the first president of the court of first instance is not a fully qualified judge.
Techrights: fingers off! Directly or indirectly, not even by link.