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10 publicly visible posts • joined 1 Dec 2016

Law's changed, now cough up: Uncle Sam serves Microsoft fresh warrant for Irish emails

The questioner

It's retroactive whichever way you cut it

The law that was in force when the relevant data was created and stored did not enable US law enforcement to get their hands on that data (without a warrant).

The CLOUD Act purports to reach a different conclusion on the basis of the same set of facts. That's retroactive under any interpretation.

There would be no retroactivity (in the context of the US legal system) if the new law only applied to data created and stored after the CLOUD Act came into force. But that is clearly not the case here.

Then there is that pesky issue of Irish and EU laws. Those laws have not changed and require US law enforcement to produce a warrant if it wants to get its hands on the data in question. Whilst the CLOUD Act purports to enable US law enforcement officials to side-step this requirement, that Act is unquestionably irrelevant to the interpretation and enforcement of pre-existing Irish and EU laws... which will continue to require a warrant.

Set against this context, one has to question the US government's strategy in this case. I mean, why go to such extraordinary lengths (a protracted legal battle with Microsoft, drafting and passing the CLOUD Act, etc.) when the option of obtaining a warrant was there all along?

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German Bar Association says Nein to patent court block effort

The questioner

Don't believe the hype

The DAV's comments should not be taken at face value. The most recent comments on another Kluwer post illustrate why the DAV's submissions "amount to nothing more that smoke and mirrors, together with desperate attempts to gloss over gaping holes in the legal arguments":

http://patentblog.kluweriplaw.com/2017/12/12/prof-tilmann-fcc-several-reasons-reject-inadmissible-complaint-upca/

Whilst the EPO might be an international organisation that is afforded various privileges and immunities, this does not mean that it can operate without any thought to the constraints imposed by EU law. For example, the EPO's assessment of patentability must respect the provisions of the Biotech Directive. If this does not happen, then there could be serious consequences for the EU Member States. The failure of the DAV's submissions to acknowledge such complexities therefore provides yet another reason to take their views with a pinch of salt.

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Euro Patent Office fails miserably in key accountability case

The questioner

Confidential??

So have all disciplinary proceedings against Mr Corcoran have been terminated or not? Whilst the report of the AC's decision would suggest that this is so, not everything is necessarily consistent with this conclusion. If indeed there are no disciplinary proceedings still pending, then what basis would there be for Carl Josefsson's assertion that "confidentiality obligations" prevented him from revealing the outcome of the case? Or was Mr Josefsson merely referring to the AC's decision on whether or not to reappoint Mr Corcoran as a member of the Boards of Appeal (and using this as a convenient excuse to avoid discussing the AC's decision on the disciplinary proceedings)?

If the outcome is indeed termination of the proceedings but no reappointment, then this is yet another example of the myopia and total ineffectiveness of the AC. If anyone on the AC thinks that Mr Corcoran will be left in peace by the President (even if only for 6 months), then they really have not been paying sufficient attention to how long the President can hold a grudge against those that commit the crime of lèse-majesté.

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Europe's one-patent-court-to-rule-them-all rocked by 'Brexit, EPO reforms, German laws'

The questioner

A scandal?

A little digging reveals the answer, Mr Battistelli's position in St-Germain-en-Laye would indeed appear to qualify as "political office". Indeed, the (opposition) socialist party wrote a blog post discussing Mr Battistelli (http://pssaintgermain.fr/office-europeen-des-brevets-laffrontement-social-tourne-au-drame/), describing him as "conseiller municipal de la liste de droite majoritaire au conseil municipal de Saint-Germain".

Thus, it is pretty clear that Mr Battistelli holds office in St-Germain-en-Laye due to standing as an official candidate of the UMP party (Sarkozy's bunch).

But the line-crossing does not stop there.

First, there are unconfirmed (and unconfirmable) rumours that Mr Battistelli's place of employment is not Munich but in fact St-Germain:

http://ipkitten.blogspot.co.uk/2014/07/7000-epo-employees-in-de-nl-at-be-plus.html

http://www.iam-media.com/blog/detail.aspx?g=e51e85b5-4508-4147-a0cb-e9028c9cad90

Without the details of his contract of employment being made public, we will never know whether there is any truth behind this rumour. However, possible advantages for Mr Battistelli would include: retaining his political position by specifying his primary residence as St-Germain; and qualifying for hefty expenses for travel to his day job in Munich. At least an element of truth in the rumour is therefore not beyond the bounds of possibility.

Secondly, there are a number of official engagements that Mr Battistelli has conducted (or has arranged to be conducted) in St-Germain, for example:

2011 trilateral office meeting (https://www.trilateral.net/news/pressrelease20111110.pdf)

2016 EPO-SIPO meeting (https://www.epo.org/news-issues/news/2016/20161005.html)

2018 inventor of the year award (http://www.epo.org/learning-events/european-inventor/event.html)

This presents a clear conflict of interest, in that the result is money from Mr Battistelli's day job being poured into the very district that he represents in his political office.

So the clear answer is yes, there is a scandal here.

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The questioner
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Re: Fake news

Is it really that simple?

The Standards of Conduct for the International Civil Service (https://icsc.un.org/resources/pdfs/general/standardsE.pdf) may relate to employees of the UN. However, I would have thought that the same standards ought to be applied to senior managers (and particularly the President of) an international organisation such as the EPO. In this regard, paragraph 48 of those Standards could be important:

"In view of the independence and impartiality that they must maintain, international civil servants, while retaining the right to vote, should not participate in political activities, such as standing for or holding local or national political office".

So, does Mr Battistelli's role as deputy mayor in charge of cultural affairs in Saint-Germain-en-Laye counts as "local political office"? I do not know the answer to this question. However, the above considerations do at least suggest that there MAY be a case to answer.

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The questioner

@Anonymous coward

Neither the EPO nor the UPC are EU institutions. However, this does not make Brexit irrelevant to the UPC Agreement.

Firstly, Unitary Patents (which will be handled exclusively by the UPC) are a creature of EU law.

Secondly, the UPC will from time to time be called upon to apply EU law in the context of the cases before it (eg in connection with the Regulations governing SPCs or the Directives governing the "Bolar" exemption or the patentability of "biotech" subject matter).

Thirdly, the UPC Agreement itself specifies that the Participating Member States MUST be EU Member States. Hence the question over whether the UK's imminent departure from the EU will effectively kill the Agreement.

Finally, there is the question of whether it is possible for a court (such as the UPC) having an "international" character to preside over matters involving EU law. This is no laughing matter. To illustrate: there is no obvious way of forcing the EPO (another international institution) to respect EU law, and we have all seen how that has worked out (eg with breaches of the ECHR). It is therefore vitally important to ensure that the UPC is subject to adequate checks and balances. This necessarily involves considering how (or whether) the UPC is FORCED to follow judgements of the Court of Justice of the EU. At present, it is not clear which (if any) mechanisms could ensure this post-Brexit (or, in the alternative, whether the UPC will even be able to ask the CJEU to provide its opinion on points of EU law).

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European Patent Office staff rep blames prez for 'slipping quality'

The questioner
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Re: Removing staff representatives from hiring committees.

You misunderstand. The proposal is to remove all participation of staff reps in the recruitment process for ANY new employees. As the staff reps never had an input into the appointment of their "bosses" (the Pres and his / her VPs), the change just affects new, lower level recruits.

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The questioner

Battistelli's proposed reform of recruitment and retention policies is astonishing in many ways. However, for seasoned observers, two features stand out in particular.

Firstly, all of the reforms aimed at "ordinary" (ie lower level) employees appear to be predicated upon the assumption that the interests of the employer are those of the employees are not aligned, and that the interests of the employer shall always prevail.

A case in point is paragraph 18:

"Studies and surveys have shown a pattern of reduction of motivation after about 6 years. The generous social package implies a high opportunity cost for staff to leave the EPO".

So what does the EPO propose to do about this worrying pattern? Does it express any concern about the fact that experienced employees tend to become demotivated over time? Does it indicate any curiosity about the reasons why such a "pattern" exists in the first place? Does it identify any possibility to make cost savings by improving motivation and retention (ie by avoiding the need to continually train new staff to replace those who knew what they were doing)? Not a bit of it! The proposed solution is to put new recruits on fixed, 5-year contracts, so that:

"The extension of the contract period will be the opportunity for both employee and employer to express their mutual motivation and agreement to continue the employment relationship".

So not so much of a "social dialogue" with the staff, then. More of a social monologue along the lines of "we don't care why you and all of your colleagues are demotivated, improve your performance or you're out".

The situation will not be the same for all employees, however. This is because the reforms propose to create special rules for the management and their hand-picked stooges. Thus, whilst Article 4(1) of the proposed amendments retains the traditional procedure of advertising posts and picking the best candidate, it does away with such troublesome rules for the President, his or her Vice-Presidents and a number of other "special" categories of employees:

"A procedure other than that of competition may be adopted by the appointing authority for the recruitment or appointment of the senior employees referred to in Article 11 of the European Patent Convention (hereinafter referred to as "the Convention"), for principal directors and also, in exceptional cases, for recruitment to posts which require special qualifications".

So, trebles all round in the old boys' club!

It will be a dark day indeed if the Administrative Council approves these proposed reforms.

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Heard of Brexit? The UK vows to join Europe’s Patent Titanic

The questioner
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Re: This is a load of bollocks

Did you read my comments above? Ratifying the UPC Agreement is not without its potential disadvantages for UK industry. This is especially the case given that there is no guarantee that the UK can remain in the unitary patent system (as distinct from the UPC) post-Brexit. Pretending that all will definitely be rosy is just wishful thinking.

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The questioner
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Re: This article is a load of horse sh*t

According to the EPO's own statistics (https://www.epo.org/about-us/annual-reports-statistics/statistics.html#filings), only about 3% of the patents granted in 2015 listed the first applicant as a company based in the UK. So, even allowing for a reasonable amount of UK co-ownership of other granted EPs, the vast majority of EPs are granted to non-UK companies.

If the UK does not participate in the UPC, that will not stop UK companies being able to use the UPC system as enacted by the other Participating Member States (PMSs). Thus, UK companies will get the same benefits as those PMSs, but will not have their freedom-to-operate affected by "unitary" patents: only traditional UK validations of granted EPs. Also, bearing court fees in mind, litigation at the UK courts may well end up being cheaper on average than at the UPC.

Therefore, putting aside the interests of the UK legal profession, do you not think that staying out of the UPC system could provide UK companies with a competitive advantage relative to e.g. French or German companies?

Just a thought.

Personally, I cannot see why anyone would be prepared to risk seeking unitary patent protection when it is far from certain that the UK will be able to stay in the system. Using the UPC I can understand, but the Court is unlikely to get much business if there are no unitary patents for them to get their teeth into (just the very few non-unitary patents that will not be opted out of the system).

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