For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 17 March 2014

Unrest at the EPO - Strikes are in the air

Lean, mean and highly
trained: the EPO strike force
Merpel has, as is her wont, been prowling the corridors of power.  This time she has been visiting her favourite corridors, those of the EPO, usually populated by anxious European patent attorneys and their clients, waiting to find out whether the 10th Auxiliary Request complies with Article 123(2) EPC, and now with their laptops and mobile printers under their arm as well.

But this time, she has found something different.  A correspondent (to whom a Katpat - you know who you are) has alerted the IPKat to news of a STRIKE planned at the EPO, and so Merpel went to investigate.

Just a year ago, readers will recall, examiners at the UK Patent Office Intellectual Property Office were taking industrial action over pay and progression.  Now, the EPO employees are also announcing strike action.  Their demands are more wide ranging.  They are apparently encapsulated in the acronym PEACES, as follows:
  • Presidential communication:
1. the President needs to clarify his remarks regarding Chinese prior art in the ManagingIP.com interview via a Communique and to request a correction,
2. the CSC should be allowed to publish one page in the Gazette to put into context the President's trivialisation of the present social unrest as a situation normal at the EPO.
  • E-mails: removal of the 50 recipients cap, abolishment of the block on all union e-mails to staff and withdrawal of the warning letters sent to staff.
  • Adoption of Social Democracy: introduction of separation of powers and social dialogue
  • Change of Disciplinary committee: re-nomination of a DG3 member as Chairman in order to continue the 30-year independence of this body
  • Evolution of the Investigation Guidelines: amendment of Circ. 341 and 342 in line with European Law
  • Strike Regulations: withdrawal of Circ. 347 (new strike regulations)
The Managing IP article referred to in the first item seems to be this one.

In furtherance of these objectives, a strike ballot has been held, and 4119 out of the 6803 eligible employees have voted, which represents a quorum (40% is required for a quorum).  Of these, 3697, around 90% of the votes cast, are in favour of strike action.

It has been notified that the strike will be held on 21, 24 and 25 March, and 14, 15, 16, 17 April.

Merpel is only a feline, and a fictional one at that, so she does not know much about the internal conditions of the EPO.  There seems however to be great dissatisfaction at the current governance by the President of the EPO.  Moreover, the dissatisfaction appears intense and widespread.  As ever, the comments section is open to those with further light to shed on this matter.

70 comments:

SG said...

Surely "ESPACE" would be a better acronym?

Anonymous said...

Can't they just demand a bigger pay rise and more holiday like normal people?

Anonymous said...

"We are outraged that the President should suggest that strikes are a normal state of affairs! So outraged, in fact, that we're going to go on strike to demonstrate how wrong this perception is"

Anonymous said...

@Anon 13:10

Tells you something about the EPO that that's not one of their demands!

Anonymous said...

Shame they coundn't find an "H" to argue about. Could I suggest one? Handing back bonuses received? Clearly these didn't serve their purpose of pacifying the workforce.

Anonymous said...

As a national patent examiner I find it outrageous that EPO patent examiners complain about their working conditions. As a measure to tackle present unrest I suggest that Battistelli hire some of us, we'd be happy to work for half the salary that our EPO colleagues enjoy and half their perks.

Anonymous said...

Should they really hand back the bonuses they didn't accept ?
If you would scratch the surface a litle, this is a strike action against the use of dictatorial measures which have resulted in an atmosphere of fear and suspicion! Would you like it if you have no right to be silent if there is an investigation against you (for reasons you are not told about until very late in the day), to have a doctor come to your home to check you are sick, even if your own doctor has sent you home, to have the office administration decide when a strike can and cannot be held? And no effective chance of appeal against decisions of the administration because appeals are likely to take 10 to 15 years to be heard?
If you think that this is not sufficient reason to go on strike, then welcome to 1984!
P.S. This might also explain why I am stay anonymous - I'd likely to be subject to investigation for saying what I just said and might even lose my job!

Anonymous said...

Good grief. Organised labour, and the protection of rights under withdrawal of labour, was a (needed) extreme response to the exploitation of workers by their employers during periods when the balance of power shifts such that mistreatment of employees is rife. It is a nuclear option, which is to be resorted to when there is no other option and the severity of the injustice faced by the workers is such as to justify the action. It certainly garners no sympathy when it is well-paid and well-conditioned bureaucrats who resolve their grievances in this way. John Doherty would be revolving in his grave!

Anonymous said...

Anonymous @15:39. In each state that is home to the EPO, there are those who can tell you what life under a dictatorship was like. On the borders of Europe, a de faccto dictatorship is splitting a sovereign state to maintain his sphere of influence. "Dictatorial" is not a word to be used lightly, especially by those who enjoy protections and provisions undreamt of by those in the private sector whom they serve.

Anonymous said...

Ref Anon at 14:59

Dictatorial or measures to try and kick a public sector workforce into shape?

A very "European" dispute.

Right to be silent? Are you for real?

Doctor check? Why not? So many seem to have days off someone has to do something. If you are actually ill what is the problem?

The other items are trivial.

These are insufficient reasons to strike. Perhaps if you worked in the real world and not Narnia you may be a little more appreciative of what are exemplary working conditions and work that little bit harder to justify them.

Applicants are really sick and tired of EPO employee whinging and really wish they would just up their game and get the work done diligently.

As an Applicant I really wish we had an effective route of complaint against individuals we come across who are not doing a good job. All we can really do is grin and bear it. Well customers of the EPO are heartily sick of this thinking and these excuses for a strike just take the biscuit!

Anonymous said...

I am glad to see that for so many commentators the fundamental rights of employees accepted by all Memberstates of the EPC for their own citizens do not apply to EPO employees just because they are paid well!

Anonymous said...

Well all of you commentators who take such a dim view of over-privileged EPO staff whingeing might like to cast a critical eye on some recent senior EPO appointments and check out the kind of people who are "kicking the public sector into shape" ...

http://www.45lines.com/money/item/326-a-wron-man-sitting-at-the-epo

Anonymous said...

It’s clear that patent examiners at the EPO are overpaid and enjoy social benefits that go beyond what the organization can afford. It’d be unfair that European SME’s had to pay extremely high renewal fees for the EU patent just to pay for those privileges. When so many European workers are going through dire straits something must be done to curtail the excesses of the pampered workers.

Anonymous said...

The quality of examination at the EPO has plummeted in recent years. Examiners are allowing applications through to tick their boxes. Either they have become lazy and ir incompetent, or are under orders from EPO management. perhaps the EPO believes that third parties will deal with important patents and do their job for them. However, no company has the resources to do the EPO job for then, and why on earth should they?

I'm all for workers striking when they believe it necessary and I can't even have an opinion on whether I believe they have good reasons. However, EPO working conditions are exceptional in comparison to the majority of all other employees so things would have to be pretty bad to cause such unrest, in my view. I'm not sure how the President's comment that there are a few problems with Chinese prior art is worthy of contributing to the workers' case. What is this issue? are examiners refusing to apply the EPC in respect of Article 54(2)?

Anonymous said...

Last time I looked the EPO is still recruiting. All the jalous respondents may apply for a post.
(wonder if they have the competence to succeed).

Anonymous said...

Fundamental rights of EPC states? The EPO is a supranational organisation, only bound by natonal laws to the extent of the EPC and the relevant Protocols (Art 8 EPC). Many of the benefits its employees enjoy result from the resulting exemption from national laws and regulations. Would EPO employees like to enjoy a German public sector employee's woring conditions, pay, tax, pensions and schooling arrangements, rather than those of the EPO? Or those of a private sector worker in the UK? Sorry, no sympathy from this corner of Europe for the oppressed and downtrodden of the EPO.

Anonymous said...

Anonymous @ 0800:

Sure, I could join the EPO payroll. I imagine I could get in. Frankly, I would find the work of an Examiner uninteresting and unsatisfying. But no-one suggests that it is a fundamental right of a worker to enjoy, be satified in or be interested by their work!

I am private sector principally for the satisfaction of cutting through a bureaucracy to help my clients thrive and generate wealth, rather than public sector, creating, enforcing and expanding that bureaucracy at the expense of the entrepreneur.

You really want a challenge? Come and sit on the other side of the fence, and face the challenges, at once terrible and stimulating, of building and running a business with your own capital at stake, managing an unsubsidised family, and at the same time creating real value for those who use your services. I do it because when I get up on a Monday morning, more often than not I am excited about how my week will unfold. Are you the same?

Let me turn the question on you, disgruntled EPO employees: if you don't like the conditions at the EPO, why not come to the private sector and escape from the "dictatorship", as another Anonymous above branded it?

Anonymous said...

" Anonymous said...
Last time I looked the EPO is still recruiting. All the jalous respondents may apply for a post.
(wonder if they have the competence to succeed).

"

Superiority complex, but can't spell.

Anonymous said...

I am not fluent in all 3 languages so am ineligible for a job at the EPO. This requirement is unnecessary and is simply politically motivated. The world is full of multi-lingual individuals and good luck to them. However, I see my other strengths as more valuable and the EPO would find a significant improvement in both quality and quantity if I worked there.

One more small point: I live in the UK, not the Netherlands or Germany and have a family that would be difficult to uproot. If the EPO had offices in all member states then they could increase the quality and national diversity of their intake.


Anonymous said...

"I am not fluent in all 3 languages so am ineligible for a job at the EPO."

"I live in the UK, not the Netherlands or Germany and have a family that would be difficult to uproot."

Learning languages and moving abroad, possibly uprooting their families, is a price most examiners have had to pay. So, before calling them "privileged", one should keep in mind that they have paid for their "privileges".

I also think, on the other hand, that working in the "golden cage" can lead to a loss in perspective, which makes some of the comments and demands of EPO examiners rather hard to sympathise with.

But finally, I think that we would all, examiners, applicants, representatives and the public in general, benefit from a better, more transparent governance of the EPO. I certainly agree that having to wait 15+ years to have a labour dispute heard at the ILO tribunal is completely unacceptable. Justice delayed is justice denied. But, dear examiners, please take a moment to consider in that light what patent applicants, owners and alleged infringers sometimes have to wait to get a decision in opposition, examination and even limitation cases at the EPO...

Anonymous said...

let's be positive about the situation.
the EPO employs quite some scientists and engineers, who could stay unemployed otherwise in a current economical environment.

at the same time, a bit overkilled in benefits. happens...

probably one day can be changed, by paying a tax to the EU directly, for example.

MaxDrei said...

All manner of thoughts occur to me, including the following:

1. EPO staff do not know how lucky they are. They should compare themselves with employees in less cushy jobs, rather than wax nostalgic about earlier years when productivity targets were not so demanding, and EPO management was more relaxed. Brooding about people better off than you are always makes you resentful and sick.

2. Everybody knows that in every big organisation there are free-loading bad apple cheats, who take sick pay when they are not sick. If management does not do something to manage the cheats, morale falls, throughout the organisation, to the detriment of all.

3. But the counter-measures have to be subtle. Otherwise they simply exacerbate the situation.

4. Compare the USPTO. Trumpeted by the US Govt as the best of all places to work, its critics like to assert that the prevailing management style is that "Until morale improves, people, the beatings will continue."

5. Compare WIPO. There they had to resort to discreet collecting of staff DNA samples, to root out the bad apple. Morale at the EPO has not yet sunk that low, one hopes.

6. One joins the EPO if one wants to be the one telling everybody "No, you can't have what you are requesting". They can dish it out alright, but perhaps they are not so keen to take it? No wonder they are delicate flowers, difficult to manage.

7. Readers, go to DG1's Examination Mattetr sevent. There you can see what nice helpful competent intelligent people the EPO fortunately has as Examiners.

Anonymous said...

Have you got any independent source for this information? So far IP Kat seems to be the only source.

Having phoned the EPO, they seem confused about this themselves.

Since I have Oral Proceedings on the 25th, I'd very much like to know for sure what is going on...

Anonymous said...

Here are the facts on pay and benefits, for those who have never read them:

http://www.epo.org/about-us/jobs/why/salary-benefits.html

Anonymous said...

Anon at 3.54pm

I'd give them another call. We have an OP on 25th as well but the EPO has confirmed it is going ahead.

Anonymousse said...

Chillax you guys.

OPs ahould not be affected by the strike action.
Staff involved with OPs are not supposed to strike and the staff union neither expects not encourages them to do so.
If in doubt, phone the examiners directly but your OP should not be affected. The strike is targeting the Office Administration (President & sidekicks) not the users of the system.

Anonymous said...

OPs should not be affected by the strike action. The staff union has issued instructions to its members that if they are scheduled to participate in an OP then they should not strike. The aim is not to disrupt the service to the public but to send a message to the President.

Anonymous said...

What, if any, was the outcome of the strike of 2008?

"EPO staff strike over patent quality
The European Patent Office (EPO) was hit last week by a strike by staff who were demanding not better pay and conditions but the freedom to help create better quality patents.24 Sep 2008

"

Anonymous said...

Sending a doctor to verify illness seems way over the top, even if it's only for long term absence (which, surely, it must be).

Any further detail on this?

Anonymous said...

I believe that there was also a strike last year (on 2 July 2013). Re oral proceedings, I understand that they were not interrupted/cancelled.

For more information, people might want to have a look at http://www.suepo.org

and this one re EPO staff demonstrations on 26 June 2013: http://www.suepo.org/public/su13089cp.pdf

Personally, if I was an EPO examiner I would be extremely unhappy about all of this.

Anonymous said...

The problem examiners have is that if they leave before they have worked ten years, their pension rights are nil (their contributions are repaid). As a result, there must be a significant number of dissatisfied employees just waiting for the 10 years to be up before moving on to a better paid, more interesting position. For these time servers, managing low moral would not be a simple task.

Anonymous said...

One short explanation from an EPO employee.

We do not strike for more money (or to prevent less money) or better financial conditions generally. We strike, inter alia, to counter things which outlaw union activity. In particular, as an example, the President has decreed that only he is allowed to organise strikes and he will decide who gets to vote. Any other industrial action is unauthorised (by him) and thus subject to disciplinary measures (appointed by him, investigated by him, decided by him, appeals decided by him etc.). Thus the union (SUEPO) is not allowed to have a ballot of its members which can result in industrial action. The union (or any other group of more than 10% of all employees) may ask the President to organise a ballot (seriously, he organises it, not them). He may (and has already) deny the request for other reasons e.g. he doesn’t think it is a valid request or it is too soon after another strike. His gaff, his rules! The vote must be held amongr all employees (including himself!) and a 40% quorate is required. Thus SUEPO, with about 30% of employees, is still required to get another 10% of non-member employees to vote i.e. non-union members can vote against the union or even prevent a vote being quorate by not voting.

Note that SUEPO is not allowed to send e-mails or printed copies to anybody so that no campaigning is allowed. Staff may not send emails to more than 50 people (No, 2 emails to 26 is also not allowed!) .Also the office gives one notice of a ballot but does not make further comment.

The consequence? Normally 1000 out of 6500+ employees will vote in a union ballot. The first after the new ‘law’ saw ca. 4600 vote and ca. 4100 vote in favour of strike. Thus he managed to unite staff and get the biggest ever vote for a strike. Recently, the latest vote, during holiday time, had more or less the same result. Earlier the President had refused to organise a ballot as he didn’t think it was appropriate even though it had had more than 1300 signatures i.e. about 20% of staff.

Anonymous said...

Only an EPO examiner could say: "Personally, if I was an EPO examiner I would be extremely unhappy about all of this. "

Anonymous said...

"Staff who leave before completing ten years' service are paid a severance grant, which includes their pension contributions plus interest."

What is meant by 'includes'? Is the grant limited to the individual's contributions, or does it include those made by the EPO, possibly plus a little extra? Lack of clarity here?

Anonymous said...

"What is meant by 'includes'?"

The severance grant is paid to cover some of the expenses of moving your family back to your home country.

The ex-employee has the contributions _they_ have made to their pension returned to them with interest. The EPO's contributions are not paid to the employee.

Anonymous said...

IP Watch has a new article covering the story.

http://www.ip-watch.org/2014/03/19/european-patent-office-staff-calls-strike-president-battistelli-reacts/

Anonymous said...

Could one of the esteemed examiners reading this blog explain the lack of examination prior to granting patents these days?

An explanation of the grant of EP1651270, which was subsequently demonstrated to be wholly unworthy, would be welcome. This is just one example of many I encounter on a daily basis.

MaxDrei said...

The EPO file of 1651270 is indeed interesting, and a useful reminder of what "Quality" we might expect, amongst B publications, if Examiners lose their enthusiasm to examine conscientiously.

The first communication of the ED is to propose grant on the docs "as published". Keeping that fact in mind, read the grounds of the OD Decision to revoke.

The ED signed off in 2006 though. What with the bar having been raised, cases don't go through to grant quite so easily, these days, do they?.

Then again, if Examiner morale now plummets, I suppose we must resign ourselves to seeing a resurgence of such unimpressive EPO-B publications. So we should urge EPO Management and workers somehow to sink their differences as quickly as possible.

Anonymous said...

Ah yes MaxDrei, some words of wisdom at last.

Unfortunately, the current President of the EPO (+ his senior management team) has bugger-all clue about the niceties of patent "examination".

He comes from the INPI which if I'm not mistaken is essentially a "registration" office.

Top management at the EPO view it all as a sort of an accounting exercise, the "raw" applications come in and are to be shipped out as quickly as possible as "finished products" (quality is of secondary importance here). Looks good for the statistics. Great for giving press conferences and getting one's managerial ego stroked in public.

All in all, it tends to remind me of the old medieval "indulgence trade" ... and we all know what that led to ... don't we ?

Anonymous said...

Max, I could give you similar examples granted very recently. I'm sure you could too, hence your question was probably rhetorical.

The IPRP didn't appear to find its way to the EPO file, but that in itself was a waste of paper, like they always are. The EPO are just a money making organisation that produce nothing of value.

Any examiners with time on their hands today care to explain? Tomorrow will do when you aren't so busy.

Anonymous said...

RE: Anonymous @ Wednesday, 19 March 2014 12:47:00 GMT

>Only an EPO examiner could say: "Personally, if I was an EPO examiner I would be extremely unhappy about all of this. "

Nope - partner in a UK patent attorney firm. Like I said, have a look at what's on the SUEPO website, articles in the Munich papers etc.

Anonymous said...

The only professional language that can be used to influence EPO management is to file well-reasoned oppositions. If that number grows, the system quickly will get overloaded more than it is now. It will show badly on the statistics. There is no doubt that feedback like this will be beneficial for the system, because it will force it to improve its primary task, the examination process.

The sad thing is that big business is happier with registered rights than well-examined rights. It is the smaller industry that wants quality. This means that whereas big industry throws money at the system, sometimes letting some of that money drip on "the profession", that group of users will not contribute to increasing the amount of oppositions. This will be the task of the smaller users, and it is expensive if one company has to shoulder it. However, if users came together in interest groups, the cost would be a contribution, it could be considered a professional subscription.

Furthermore, the “profession” could do it pro bono, just like it tolerated to act on EQE Examination boards pro bono for almost innumerable years. One may truly consider if spending time on oppositions might not have had a greater effect on the quality of granted European patents than spending time on correcting EQE exam papers. I have not done the statistics, but it would be interesting if each firm of patent attorneys with more than 5 associates were to file minimum 5 oppositions per year at EPO on behalf of improving the system. How many oppositions would that amount to? How many toes would they tread on? How many oppositions per year would teach the EPO to do a good job in the first instance? Or perhaps rather permit the examiners to do a good job, if the managerial environment presented in this post and comments are to be believed.

Kind regards,


George Brock-Nannestad

Anonymous said...

pro bono for almost innumerable years
EQE's pro bon definition would be promoting himself to BoA or at least to somewhere

Anonymous said...

An explanation of the grant of EP1651270, which was subsequently demonstrated to be wholly unworthy, would be welcome. This is just one example of many I encounter on a daily basis.


can't understand such an emphasis on some single grants. percentage of those cases is small anyway.

anything important will meet an opposition. everything else will be paid for or dropped, which is perfectly OK.

system will regulate itself. only relatively high percentage of oppositions can rise the question of quality, and in no way some particular grants...

Anonymous said...

I typically have other counsel handle the EP prosecution, but I want to drop a note to Anonymous @ 13:19 and George Brock-Nannestad.

You are fooling yourself to think that quality examination will be driven by outside of the Office - that applicant behavior will have the effect you think it will.

More and better oppositions will only create more and better oppositions - not better examination in the first place.

I draw this conclusion (perhaps in error) from the US experience. No amount of post grant review will change the quality of the examination.

That is like thinking that the placement of a band aid or two will prevent any cuts of running through plate glass windows after you put the band-aids on.

If you want to improve the quality of the examination, then you must improve the quality of the examination in the first instance.

Or to put it somewhat crudely, "Do the Fn job right the first time through"

Anonymous said...

I think you are wrong George. I and other attorneys within 'big business' try to get patents granted that will hold up to scrutiny. It is always helpful to get something through when you know it is a bit weak, but that would be the case for all patentees.

Such patents are detrimental to all parties, big or small.

Oppositions cost money even if attorneys worked pro bono to draft the case. No company can afford to file oppositions without a business case.

How would an interest group determine which case to oppose? Their is a 9-month window and oppositions are only filed when someone is tracking the patent and has an immediate or predicted future interest in the technology. Most patents of concern aren't picked up by third parties until long after the expiry of the opposition period. When conducting clearance searches, rarely do I identify a problematic patent in time to oppose.

As for the final point, I think the EPO are quite happy with third parties filing numerous oppositions. Third parties do their job for them and it makes them a lot of money. The EPO is also untouchable as far as users and governments are concerned so why would they see this as a problem?

Anonymous said...

"can't understand such an emphasis on some single grants. percentage of those cases is small anyway. "

This is just one example of many where not even a cursory examination took place. Filed and straight to grant. A computer program applying the most basic of EPO examination guidelines would have rejected this one. This was not given as an example where the examiner simply erred or had a different opinion. All grants are single grants. 10,000 Single grants like this creates 10,000 problem patents and significant mistrust (now justified) of the patent system

"anything important will meet an opposition. everything else will be paid for or dropped, which is perfectly OK."

No they won't and no it isn't. Go through the last 100 cases on Bailii and you will find that the majority of patents never underwent an EPO opposition.

MaxDrei said...

I want to reply to George B-N, on poor examination requiring the filing of many oppositions.

We should compare and contrast UK and DE thinking, and the key issue of bifurcation.

Prior to 1978 the UK Patent Office simply did not examine for obviousness. But that was OK in those days because everybody knew that obvious subject matter would be found invalid by the court, if ever the patent was asserted.

In Germany, there is bifurcation, and patents are not found invalid (by the court in Munich) till years after the D'dorf court has enjoined the supposed infringer. That is why 70% of all oppositions at the EPO have always been filed by Germans. Big in-house patent depts in Germany (largely preoccupied with administration of the Employee Inventor Law) find opposition drafting an excellent diversion, and a good training exercise for the aspiring leaders in the Department.

In general, people on the European mainland are not frightened of infringing, because they suppose that it will be very likely that the validity of the asserted claim can be put in enough doubt to beat off the preliminary injunction threat.

Thus, for the EPO to improve quality to the extent that everybody supposes the granted claims to be valid might indeed have an unexpected consequence, that European industry becomes even more innovation-averse. We don't want that, do we?

Perhaps that's what the EPO President is thinking?

But it really is an insult to the EPO user community, for the Prez to bang on about ever better "Quality" while continuing to doze in the control room, and allow B publications of less and less credibility to issue.

Anonymous said...

RE: Or to put it somewhat crudely, "Do the Fn job right the first time through"

Be careful what you are wishing for. It might become a motto of eESR that you might need to forward to a client ...

MaxDrei said...

That last anon contributer at 14:39 makes a good point about being careful what to wish for: for those who draft patent applications nothing else will do, than to get it right first time. Conversely, for the EPO, there is a plurality of opportunities eventually to "get it right".

Interesting for me is how DG1 handles observations under Art 115 EPC. One has the feeling that they are regarded as a nuisance, to be set aside at the slightest excuse, rather than taken seriously. Is that because the Examiners get no points for the time involved?

Anonymous said...

The best and simply silly reason.... E-mails: removal of the 50 recipients cap ...... seriously!

Anonymous said...

I have no problem with my patent applications being examined properly. It is something I expect, but rarely see.

Anonymous said...

Expressing myself on these matters I am part driven by idealism, bordering on the naïve, and part experience.
It entirely depends on the technical field and the size of the operation for it to be included (by me; I admit to using my own yardstick!) among the “big industry” that I mentioned. Throughout history there have always been companies/groups that consider the number of patents (big portfolios) to be more important than the quality of each individually, and in some fields they have even been able to lower the contribution to the art to the ridiculous and yet obtain a right to prevent: I am thinking about the various term extension schemes for pharmaceuticals that fall completely outside “normal” examination standards. Such changes in legislation were obtained by big lobbying.
Anyway, companies with big portfolios have a habit of approaching smaller companies with broadly phrased allegations that since they have so many patents, “inevitably” one or more must be infringed. At this time, the burden of disproving patentability falls on the smaller companies so approached. Disproving may have to be performed in each relevant country. If this patent family is based on a European patent, this is where one wished the baby had been stillborn (best) or that somebody had killed it just after birth; in other words opposition.
Systematic opposition by an industry with a large population of small companies did bring about some remarkable changes, both in avoiding infringement, because patents were eliminated by opposition, and in the license rates to be paid in those much fewer cases were a certain patent was essential to the businesses. Furthermore, it brought about a change in the quality of examination by the patent office (a small office, the Danish patent office).
Briefly, the Danish radio industry had won a few hard-fought and expensive legal battles against some of the big radio cartel members in the 1930s and it created an association (with 25 members!) in 1940 to observe patent applications laid-open-for-opposition and to shoot down any that could be an impediment to the industry, all in order to prevent having to fight it out in the courts. The office had the largest private library on electronics in Denmark, with a subscription to 117 journals at its height. Until it was wound down in 1979 it had filed 500+ oppositions and had won two thirds. The association was involved in a laboratory to devise alternative technical solutions, and it filed patent applications as provocations just to have them refused, in order to create a precedent for use in later oppositions. And from about 1960 there was a noticeable increase in the quality of the patent office work.
From 1962 a European collaboration sprang up, because it turned out that several countries had similar associations, and a huge cross-European information exchange ensured that prior art that had been successful in one country was distributed to the others. Annual meetings were used for informing each other about license negotiations and to make maximum use of most-favoured-nation clauses. All of this activity has left virtually no documentary trace. The European activities also wound down about 1980, and to my knowledge only one industry association still actively files preventive oppositions.
The reason for the demise of a 40-year long activity was that in the end there was not sufficient uniformity in the activities of members to create rationalisation in opposition work, brown goods becoming more and more merely far-eastern imports. The strange thing is that the software industry (cottage industry to SEMs) who is so opposed to the patenting of anything software does have sufficient uniformity to make centralised opposition pay. Yet the industry does nothing, except wailing.
I felt giving a history lesson rather than going into a discussion of the merits of the patent system might be better at this stage. So, the question still is: what do we want our patents to be.

Kind regards,


George Brock-Nannestad

Anonymous said...

Perhaps that's what the EPO President is thinking?

More likely he is preoccupied with finding new sinecures for his cronies.
Check out the latest appointment:
http://www.epo.org/about-us/organisation/communiques.html

138th meeting of the Administrative Council of the European Patent Organisation (Munich, 12-13 December 2013)

"The Council appointed Frédéric Angermann, Senior Auditor at the French Court of Auditors, as member of the Board of Auditors, with effect from 1 January 2014. Mr Angermann will succeed Michel Camoin, to whom the Council paid tribute."

Now check out Mr. Angermann.
http://www.lesechos.fr/21/03/2007/LesEchos/19882-41-ECH_frederic-angermann.htm

Ooops, he used to work as Secretary General at the INPI.

Yes folks that's right !
The newly appointed "external auditor" of the EPO is an old buddy of the President from the INPI. Well that really boosts confidence in the independence of external audit doesn't it ... ?

Article 49 EPC anyone ?

http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar49.html

Anonymous said...

Naive is one way of describing you views George, but I'd stretch that to ignorance with your criticism of the pharmaceutical extension schemes. In what way are 'normal examination standards' relevant?

The baby analogy is inappropriate.

Anonymous said...

GBN,

An additional point in regards to your history lesson.

The current witch hunt against "Trolls" is directly related to the fact that the so-called "Trolls" eliminate the advantage that the Large Corporations had with their patent-nuclear-you-must-infringe-something tactics.

This advantage - that "Trolls" remove that nuclear threat - is rarely pointed out.

It is completely unsurprising to note that the very term "Troll" was coined by such a large corporation and its use was not to the benefit of the public, but to its own court case.

Anonymous said...

Thank you kindly for the latest remarks, but apart from being naïve I am also obtuse (dull-witted to those who not usually see this adjective confessed to), and I simply do not understand arguments that are not developed. This applies to the “Troll” remark.

My own remark concerning extension was also not developed, but it related to the fact that there is no supplementary evaluation of whether the “new use” that argues extension fulfills normal patentability standards (novel; inventive step with respect to prior art, viz. the patent itself). It is more or less an administrative procedure. I would much rather see the old British system revived, in which you could apply for extension via the courts if circumstances had prevented the inventor from obtaining the benefit of his invention in its normal lifetime. This would ensure extension when required and reasonable, in all fields of technology, not just certain chemical fields. As to the baby analogy, I know patent attorneys and inventors who regard the application as their baby and hate examiners for killing it. And I would elaborate further: no revision of the patent granting system should throw the baby out with the bath water. So, you see, the baby analogy is not really that distasteful.

Kind regards,


George Brock-Nannestad

Anonymous said...

George, you appear to have no understanding of the SPC regime. The patents have already been examined for patentability and no SPC is granted without examination to determine whether the requirements of the SPC regulation are met. Have you not noticed the numerous referrals from court to the ECJEJCU court over the last decade or have you been too busy testing Schrodinger's cat theory, but not with cats?

I'm looking forward to all those examiner's explanations today as to why they don't bother to examine patents even though that is what they are very highly paid to do. Once they've had their elevenses anyway. No rush ladies and gents as I wouldn't want you to strain a muscle.

Anonymous said...

"I'm looking forward to all those examiner's explanations today as to why they don't bother to examine patents even though that is what they are very highly paid to do. Once they've had their elevenses anyway. No rush ladies and gents as I wouldn't want you to strain a muscle."

Well then clever clogs, why waste your time with mere examiners, why not go directly to the Great Panjandrum himself ?

"The quality of granted patents is our key priority, and I am happy to say that the EPO was ranked first for the quality of its products and services in the latest poll among users."
http://blog.epo.org/patents/filing-figures-trends/

Do you dare to question the word of the President ?

Careful now or he might set his Investigative Unit on you ...

Anonymous said...

1st among many? Or was the EPO the sole choice on the voting form?

What you have kindly pointed out to this 'clever clogs' (Why? Is it because I dare to challenge the diligence and commitment of EPO staff?) is that EPO examiners need to hide behind their President, which explains why he feels the need to take responsibility for everything himself. When your cubicles have no toilet paper do you sit there and shout for Mr President to bring a new roll? No running in the EPO corridors now, children!

Anonymous said...

Sallary at EPO in Munich is not high compared to good salaries in industry. An automotive engineer friend has moved from Wolfsburg to BMW after 3 years of professional experience as a project leader after he has been offered by EPO less than by BMW.

Anonymous said...

No running in the EPO corridors now, children!

Have respect to those who can't run anymore ....

Anonymous said...

What you have kindly pointed out to this 'clever clogs' (Why? Is it because I dare to challenge the diligence and commitment of EPO staff?) is that EPO examiners need to hide behind their President, which explains why he feels the need to take responsibility for everything himself. When your cubicles have no toilet paper do you sit there and shout for Mr President to bring a new roll? No running in the EPO corridors now, children!

I fear that you may have misunderstood the point Mr. Evidently Not-So Clever Clogs.

The point was, why do you want to chew the cud with mere Indians when you could be talking to the Great Chief himself.

He has affirmed the "quality" of EPO "products". If you are so brazen as to doubt his word, why not take it up with him personally ?

Anonymous said...

The post has – like most blog comment trees – grown quite a bit away from the woeful interpersonal relationships that I perceive exist in the EPO organisation.

My branch, the matter of quality of examination generated by the provocation of oppositions has now fallen under the event horizon at IPKat, but I would like to close the argument properly, rather than letting a matter dangling. Hence a rebuttal.

So, all-right, all-right, I have now read the SPC regulations! I confess that until now my knowledge was based on blog comments and hearsay over the years, and we know how unreliable these sources sometimes are.

My original understanding of what the European council regulations say has not been changed at all! If the anons had read properly, they would realise that I said (at Thursday, 20 March 2014 17:52:00 GMT): “.....in some fields they have even been able to lower the contribution to the art to the ridiculous and yet obtain a right to prevent: I am thinking about the various term extension schemes for pharmaceuticals that fall completely outside “normal” examination standards.” To be more explicit, I merely said that a time-limited right to prevent (the extension time) was granted without examination on the merits of the contribution to the art (e.g. the regime comprising a Paediatric Investigation Plan). There is no examination whether the use for children (which is what paediatric means) fulfills the patentability criteria, coming post-expiry. But the regulation Art. 3 merely requires “a valid authorization to place the product on the market as a medicinal product”, and of course that the basic patent is in force.

I think it is a rhetorical trick to claim that adhering to the examination according to the regulation amounts to sufficient examination in patent terms, which is what I wrote about. The regulation is, like so many historical extensions of the patent rights given separately to chemical matters, the product of efficient lobbying.

Kind regards,


George Brock-Nannestad

Anonymous said...

George,
That is not what you you said. You argued about a 'new use' that provides exclusion not fulfilling patentability standards.

Anyway:

If no-one tests their drugs in children, there will be no drugs approved for use in children. The SPC regulation will have been the subject of lobbying by competing groups. The pediatric extension is given as a reward for the expense and risk involved. The SPC only relates to patent term and the scope of protection is narrower than during the original patent term. The contribution of lobbyists is irrelevant to the discussion.


As for the not-so-clever-clogs comment from Ms-having-a-day-off-Examiner, I am asking the question of examiners because it is they who are supposed to do the examining, not the president. My previous sarcastic remarks should be considered repeated.

It is, however, now clear that the EPO examiners are unable to justify or defend their own work. Either that, or they have all taken advantage of the convenient timing of their strike to take an extra long weekend break and travel home to mummy and daddy to get their washing and ironing done.

Anonymous said...

To return to the original topic...
Staff are on strike but OPs are excluded by the staff I.e. examiners will still carry them out. Also, the office can (and does) requisition all essential staff for e.g.
keeping IT going and accepting all submissions etc.
With regard to the bonuses - staff refused them in 2013 and the President, huffily, withdrew them. They were based on reaching a set production I.e. a bribe to produce more thus disregarding quality (there was a vague and undefined 'quality target' element. Ask BB if we reach the targets and what they actually are - don't expect a value!
Finally, it isn't about money and never has been. It's about certain liberties you hold - freedom of association, access to justice, respect for the rules. BB has set himself up as law-maker, prosecutor, judge, appeals judge and has abused that. When he gets a decision from a lawyer which is not 'right', he ignores the decision and then removes the lawyer to be replaced by a non-lawyer on a contract controlled by BB (senior staff are on contracts). He has also recruited senior staff from INPI's upper echelons (and their spouses...).
If you're happy with that, fine. But I see that not many people here do want to go and work at the EPO.
In the meantime, staff, particularly in DG3, wish to make correct decisions and to be given the opportunity to so do. Failing to recruit and boosting targets for mgt machismo and getting a contract renewal, isn't good for you.

Anonymous said...

This guy is a nightmare descended from medieval nightmare. This Palpatine character has managed to sink EPO in the last year to Syrian / Krimeean / Iranian / Turkish conditions.

Bati, go to Vladimir, he might have a need for you.

Anonymous said...

There is repetition here with the argument that "no commentator wants to work for the EPO because it is such a miserable existence, therefore us disgruntled examiners are right to be disgruntled about everything".

Us commentators simply wish to do other things with their life, irrespective of the money the EPO pay.

I don't want to play football for Manchester Untied, but that wouldn't make Wanye Rooney justified in arguing that his 300K per week is insufficient compensation for being expected to tie his own shoe-laces. If Wayne argues that 300K per week is just because that is a fair value for the contribution he makes to the club's financial fortunes through gate revenue, shirt revenue and TV revenue, then I'd say he has a good case.

Unfortunately, as is clear from the relevant comments, or lack thereof, no EPO examiner is willing or able to justify their existence, let alone the high benefits they receive. All we hear is self-righteous whinging. You have had you chance to comment on quality and have all failed to do so, with those making reference to the subject doing so while hiding behind the skirt of your president.

Anonymous said...

"This guy is a nightmare descended from medieval nightmare. This Palpatine character has managed to sink EPO in the last year to Syrian / Krimeean / Iranian / Turkish conditions.

Bati, go to Vladimir, he might have a need for you."

What a shocking comparison to make. Unbelievable!

Anonymous said...

My hubby works for EPO. I am in the management in a private company. I had to sign the declaration that my sallary and benefits are confidential to anyone but tax authorities, but my hubby is every year obliged to submitt the details of my earnings to the EPO. They say this allows to calculate his contribution for my health insurance, but I have compulsory insurance of my own, and anyhow this information is not collected by the insurer, but by the EPO.

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