gemini://gemini.techrights.org/2017/11/14/algorithms-replace-examiners/

Summary: Access to justice is severely compromised at the EPO as staff is led to rely on deficient tools for determining novelty while judges are kept out of the way or ill-chosen for an agenda other than justice

THERE are no software patents in Europe. In theory at least. The EPO does not obey the rules and grants software patents anyway — something which the USPTO (birthplace of software patents) is gradually stopping.

What can stop the EPO issuing software patents? Most likely the appeal boards, but they have come under attack from Battistelli and years ago they lost their impartiality. 3 years ago Battistelli went as far as making false claims about one of the judges (painting him as some sort of an armed Nazi) and nothing has been the same since. The appeal boards are still there in spirit (in Haar) and routinely they complain that they are unable to operate as envisioned by the EPC.

IAM’s editor, as one might expect, continues his veiled lobbying for software patents and patent trolls. He has already done that twice in the past week (using the typical euphemisms, FRAND/SEP) and yesterday he carried on by copy-pasting Johann Pitz – a partner of Vossius & Partner in Munich – which speaks of “future EU unitary patent” even though there is no such thing! It’s a fantasy and one of the reasons for that is lack of impariality of judges, including their selection process and renewal of contract. We covered that before. It’s an abomination that would rattle the people behind the EPC (the few who might still be alive).

Also yesterday. IAM wrote this blog post about KIPO (the patent office in Korea) going ‘corporate’, appointing a judge with an obvious conflict of interest (far too many connections to industry). To quote:

> The IPTAB is gaining not only a very senior corporate IP figure, but a substantially pro-patent one. Last year, under Kim’s leadership, LG Electronics launched its first US patent litigation campaign as a lead plaintiff, a big step toward extracting further value from its portfolio. In recent years, Kim has closed IP deals with operating companies such as Microsoft, Ericsson, IBM, Technicolor and Amazon, as well as with NPEs [read: patent trolls] including Evolved Wireless, France Brevets, and PanOptis.

This man may have literally brushed shoulders not only with executives whom he’ll see in court but also patent trolls. That certainly can ruin the impression of independence and some officials just don’t seem to mind.

The importance of preventing such ‘revolving doors’ scenario became more obvious yesterday, in light of the following interesting exchange between one who thinks of EPO hirings in terms like “free market”, perhaps not grasping that the EPO (like the court system) enjoys a monopoly and should thus be subjected to higher standards. As IP Kat has already nuked entire comment threads, we have decided to reproduce this exchange below:

> Some may view your post as cynical, but when you view ANY business operation – and most all business operations are based on that very same concept – why is it that you think that examiners should be excused from the (seemingly) natural market forces that affect everyone else?

> Exactly which “market forces” do you believe are at play with regard to the recruitment of EPO examiners?The EPO is an international organisation that has a monopoly on dishing out (EPC-wide) monopolies. This means that the EPO does not have any relevant “competition”. It is therefore completely inappropriate to apply “free market” concepts to such an organisation.Of course, should its “users” so demand, then it might be appropriate for the EPO to look for ways of reducing costs (and hence reducing fees). But even then, one has to balance any drive to reduce costs against other demands that the “users” of the system may have.At this point, it is important to remember that the “users” of the system include 3rd parties whose freedom to operate will be curtailed by the monopolies that the EPO grants.It is therefore inconceivable that a majority of the EPO’s “users” would ever be in favour of any cost-cutting that compromised the ability of the EPO to conduct high quality examination. From this perspective, it hard to see what justification there could possibly be for adopting recruitment practices that are aimed at “de-skilling” the EPO’s entire examiner base.

> You misunderstand the aim of my earlier comment.It is not that the EPO “has competition” – or not. It is nothing whatsoever to do with the “users” of the system (therein lies nothing but dust-kicking).It is that the EPO may apply what is no more than standard business protocols to its own work.Or do you think that such is somehow off limits? Under what basis would this power to set as “off limits” come from?

> I think that you are rather missing the point.There is no “standard business protocol” when it comes to a patent office. This is because there is no “business” to speak of.Patent offices exist for the sole purpose of being the first (and most important) gatekeeper to a state-sanctioned monopoly. A patent office therefore only serves its purpose if it applies adequately (but not overly) stringent criteria to the grant of a monopoly.So yes, it is “off limits” to consider adopting practices that are liable to render the patent office not fit for purpose.It is interesting to note that the European Medicines Agency values its “skilled” staff so highly that it believes that the new location for the Agency should only be selected from the cities that staff surveys show would provide a high retention rate.The EMA is much like the EPO in that it examines applications to check that they meet suitable standards. So if retaining skilled staff is such a high priority for the EMA, why should it be any different for the EPO? Improvements in efficiency are one thing, but my view is that any “improvements” that would render the EPO incapable of performing its function should never even be contemplated.

As we have been arguing for a number of years, people don’t simply “opt in” for the EPO. They can be sued at any time by any other company using patents granted — rightly or wrongly — by the EPO. The EPO can be very dangerous (and powerful in a dangerous way) if put in the wrong hands and UPC would extend the breadth of reach of European Patents, increasingly granted in error by decreasingly skilled staff at the EPO (if not by algorithms which don’t quite work). █

● 11.14.17

●● Decline of Skills Level of Staff Like Examiners and Impartiality (Independence) of Judges at the EPO Should Cause Concern, Alarm