[Patents] Re: disgruntled examiners at EPO

[PILCH Hartmut phm@a2e.de]

> "Good patent examiners are regularly kept down because of envy of their 
> superiors. They hate to see it when an examiner does more and better work 
> in 
> less time and quits early"
> Does this really need comment? Actually, there is one point here which I am 
> told was the subject of debate within the EPO: are examiners paid to do a 
> certain amount of work or to sit at their desks? Those of us who have to 
> contact examiners will agree with the official line, that they are paid to 
> do both. Or does Mr Pilch think that they should be allowed to go home when 
> they feel they have done enough work?

It is probably just an ordinary phenomenon that occurs among peer groups
in many fields.  If you are very good and do work quickly, you'd better
not let other people notice or at least control well how you let them
notice.  This is perhaps true throughout Europe and Asia, and maybe a
little less in America.  It is more true in bureaucratic organisations
than in companies.
 
> "Talented people often get depressed and/or drunk". One problem in all 
> patent offices is that the job attracts misfits. It was the same in the DPA 
> and UKPO. 

The ones I'm talking about were not misfits but are very effective at work
and, after their retirement from the EPO, highly respected as consultants
of patent law firms.

> I'm not aware however that this is a bigger problem in the EPO than
> elsewhere.

That is of course difficult to say.  Many of the phenomena have been
described in books like Parkinson's Law and "Der Campus" (German novel
about the university atmosphere).  People in the academia and official
world too often use the extra free space that is given them for their
creative development just for the purposes of power games, often without
even noticing it.
 
> One final comment. Mr Pilch is fond of assertions along the lines that
> "the EPO leadership is composed of persons who violate the written
> law".  Presumably this is about "technicity". I advise Mr Pilch to
> read the minutes of the Munich Diplomatic Conference. 

Thanks for the hint.  Are these available on the Net?

> They are quite surprising. They show that at the time nobody had much
> idea of what was meant by "programs for computers.. as such" and that
> the delegations were content to let the EPO interpret this, which is
> what it's done.

Even if so, at least German law had a very clear and sophisticated
jurisdiction from the sixties up to such BGH cases as Antiblockiersystem
(1980) and Flugkostenminimierung (1981), which was systematised in
Benkhard's BPatG of 1988 commentary and restated in a verdict of the
BPatG 

        http://swpat.ffii.org/vreji/papri/bpatg17w6998de.html

The matters are theoretically clear.  The BPatG reasoning is very
consistent, while the EPO theories, which it explicitely rejects, are not.
There was no need for the EPO to develop an unsystematic caselaw of its
own, when it is perfectly clear what a computer program is and how a new
physical-world process (like Antiblockiersystem) may be differentiated
from the computer program as such which sometimes happens to be used to
express or implement this process.

A legal dissertation

        http://swpat.ffii.org/vreji/prina/drtw.pdf

analyses the EPO caselaw and shows that it is muddled and provides no
consistent definition even for those concepts on which the TBA decided in
1997 to base its future jurisdiction.

The treatise in Lamy Droit Informatique 

        http://swpat.ffii.org/vreji/papri/lamy97fr.html
        (summary only)

again shows that the French legal concepts behind the exclusion of
computer programs are quite similar to the German ones and that
programming freedom was intended also in France.

The only apparent reason for deviating into unchartered territories using
unsystematic reasoning is the wish to "give our cutomers more value for
their money", which according to some annual reports is the patent
office's purpose of existence.  In reality, it should be the other way
around:  patent attorneys work for the "customers" and the patent office
works for the public's interest in being undisturbed.

This thinking itself is to me a sign of utter disorientation, and that
alone shows to me that there cannot be a positive selection process at
work in the EPO's system of personell recruitment and promotion.  This
prejudice of mine is confirmed by numerous reports from insiders of the
EPO.

It is also confirmed by some other gross failures of the EPO

- the failure to publish patent descriptions as digital texts for free,
  the continued efforts to make money out of keeping back information.
- the Basic Proposal, which mainly aims at transferring power from
  everywhere to the EPO.  
- the fierce resistance of the EPO to criticism of its basic proposal,
  both from software patentability opponents and from opponents of the
  centralisation of the patent system, the unwillingness to act as a
  neutral platform for everybody
- the increasing flood of crappy patents to which the EPO proudly points
  and the disinterest in patent quality assessments and debates
  about the overall economic merit.

I have even come to think that if the patent system is to be made to work
and to be internationalised, then patent offices are actually the biggest
obstacle.  It would suffice for various countries to agree on certain
standards of publication for patents and schemes for rewarding patent
busters (those who successfully prove the invalidity of a bad patent).
Instead of thousands of government officials in concrete and glass
buildings of various countries, we now have a rapidly communicating
Internet Community.  Governmental patent examination doesn't work anyway,
and it can easily be privatised.  By making the patent applicant
responsible for providing a high quality patent description and requiring
him to deposit a reward sum for a patent buster, one could create a market
for private patent examiners, and it would be up to the law courts of
various sovereign states to decide patent disputes according to the
standards that their countries wish to adopt.  It is time to unmix all
these functions. The European Patent Office has shown itself to be a
dysfunctional institution outside the scope of democratic political
control and with an unsatisfiable thirst for more and more functionless
concrete+glass buildings and more and more unlegitimated power.

All this may, as you point out, not be directly related to software. But I
believe that it is time that we take up more issues than just software
patents.  As one patent examiner told me:  single-issue lobbies are
unlikely to win.  If we take up some issues that unite us with vaster and
more general interests, the patent office may think twice about the stir
that it is going to create by removing Art 52.2c.  The European Patent
Office has already for some time lost most of its legitimacy, and only a
small lobby is needed to tilt the balance and accelerate a process that
otherwise might still take a very long time.  Frontally attacking
information society will cause more than just a small stir.  And the stir
won't go away.

-phm