Tony McStea


Bubendorf 21 November 2017

Ding, dong, the witch is dead (?)

From mid-2018, the EPO will have a new President, António Campinos from Portugal, currently the Executive Director of the EUIPO at Alicante. From a strictly biased point of view, I say, how can someone with that for a first name possibly be bad? Of course, the tendency is to think that ANYONE could be better than the autocratic, divisive “l’état, c’est moi” Benny the Batt, whose relations with the SUEPO, the EPO’s staff union, have been somewhat less than cordial. Changes to the EPO’s service regulations have included, among other things, a fast-track disciplinary procedure for “professional incompetence”, overseen by Le Président soi-même, the ability to withhold salary from a staff member, if s/he has “failed to perform assigned duties while at work” and the charging of the costs for an unsuccessful appeal to staff.

In a survey of 2649 of the EPO’s 6770 employees, 82% said that their working conditions had deteriorated over the past three years, with 58% saying that this had had a negative impact on their health. Under Benny and his French Mafia, there have been highly questionable demotions and sackings of senior members, plus instances of self-harm and even suicide. The SUEPO even took the EPO to the Dutch Supreme Court to prevent what it saw as violation of EPO worker’s rights, but the Court merely upheld the EPO’s immunity as an international organization. Having now suffered the traumatic operation, we can only hope that the patient recovers.

So now we know, to borrow from the 1960s’ doo-wop hit (yes, unfortunately I do):

Who put the bomp in the bomp bah bomp bah bomp
Who put the ram in the rama lama ding dong
Who put the bop in the bop shoo bop shoo bop
Who put the dip in the dip da dip da dip

It was Ingve Stjerna:


a German IP lawyer and noted sceptic on the Unitary Patent/Unified Patent Court who launched the challenge to the proposed new system in the German Constitutional Court. A great many folk would therefore disagree with the next line of the song:

Who was that man?
I’d like to shake his hand

The basis of Dr. Stjerna’s complaint (insofar as it is known) is that the UPC membership is not the same as the EU membership (remember Awkward Squad member Spain?) and that any such agreement would confer unequal rights upon non-EU countries over EU member states (and of course the UK is en route to becoming one of those non-member states). The Court must now decide whether it will render a decision on the case and has referred the complaint to third parties for comment.

And what of the DisUK? Will it ratify? The Scottish Parliament has (perhaps they really should be independent…), but Westminster is a mess, dependent on a bunch of Loyalist nutters from my homeland for a parliamentary majority, with its Prime Monster clearly on the ropes and with even worse people as possible successors, and going nowhere very rapidly on its Brexit talks with the EU. The Russians described the British Army in the Crimea as “lions led by donkeys”, but one gets the impression that the donkeys are merely the leader of a large herd of Anglophone “Daily Mail”-reading donkeys. One (this one anyway) suspects that the ratification of the UP/UPC is low on the list of priorities and sinking rapidly. So, end of an EU Unitary Patent for another generation?  As Doris Kappelhoff famously warbled, que sera, sera.  That was in a film “The man who knew too much”. Alas, we still know all too little.

The EPO is becoming more electronic and more paper-free and this is proving to be a headache. We all have smart cards, one per representative, so one card must serve double duty for both Givaudan and my Teemacs micro-patent firm. This is good, because two of them would be at least twice as smart as I am. But, as I recently found out, it has other problems.

On its on-line website, the EPO provides electronic mailboxes. I signed Teemacs up for one of these, but, as there was never anything in it, I stopped looking. In any case, I use the Epoline monitoring system for the Teemacs EP cases.  Then Claudia, the Givaudan attorney who oversees the formalities side of the business pointed out that she’d received a refund of a renewal fee. There was no decision in the EP file indicating abandonment – was there one somewhere? No. We checked the EPO Register – there was an office action and a noting of loss of rights, which we’d never received. So we rang the EPO, and a very helpful lassie with the distinctive accent of That Other Bit Of Ireland looked and said, “They’re in your electronic mailbox.” “But Givaudan doesn’t have an electronic mailbox!” we said.

It transpired that, since February, the EPO had unilaterally been sticking any correspondence for Givaudan bearing my name as professional representative in the Teemacs mailbox. Several of these were already in further processing territory. So we fired off a re-establishment of rights request for the lapsed application, stating all these facts. However, last time I looked, the EPO was STILL putting Givaudan stuff in the Teemacs mailbox. It seems a bit like that West Coast hostellery where you can check out any time you like, but you can never leave. However, there is light at the end of the tunnel, which actually isn’t a train coming in the other direction. The EPO has seen said light and is going to give me a separate Givaudan smart card.

The Great Permextred Affair has been the subject of great attention on this side of the planet. The UK Supreme Court’s judgement basically overturned ages of UK infringement law. I bumped into old Sandoz colleague and author Philip Grubb at one of the regular Basel Intellectual Property talks. “This makes half my book obsolete!” he grumbled. Now the revised Protocol on EPC Article 69 did introduce the concept of equivalents into the EPC:

“For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is equivalent to an element specified in the claims.”

(The Protocol is the bit that basically says that thou shalt not interpret claims in the British or the German way, but somewhere in between, consistent with causing the maximum possible confusion for all parties). However, I don’t think that anyone expected that the Supreme Court would tack so far towards the German position. The Swiss Supreme Court has just followed suit, overturning a Swiss Federal Patent Court decision. The latter had said, like the first instance UK decision, that, if you said sodium, you didn’t say potassium. The Swiss Supreme Court said that the reason for the limitation was important – the skilled person would not conclude that the patentee intended to exclude infringement by other salt forms of pemetrexed, although the claim only claimed the disodium salt of pemetrexed.

We recently ventured to London to see the big daughter’s documentary, made as part of a Masters in Science Communication in Imperial College. All the documentaries (25-35 minutes) were shown in a Notting Hill cinema, and we enjoyed it. What I didn’t enjoy were people on the Tube offering me a seat. Oh dear, is it THAT obvious?

And with that I wish my readership all the best for the Festive Season and every success for 2018.

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