With new restrictions on standard-essential patent (SEP) injunctions against connected cars and other IoT products, Japan may leave Old Europe behind

Through IAM I became aware of a Nikkei.com article on a Japanese policy initiative regarding standard-essential patent (SEP) injunctions in the Internet of Things (IoT) space (including, inter alia, connected cars). I've tapped some other sources to find out about the status of Japanese policy-making in this area.

At the meta level, two differences between the situation in Japan and the one in the Western world are striking:

1. The new initiative to further restrict access to SEP injunctions comes from the Japan Patent Office (JPO). By contrast, the people working on policy matters at the European Patent Office (under whatever president) and the United States Patent & Trademark Office under Director (and long-time patent trolls' lawyer) Andrei Iancu are pro-patent-holder extremists whose only policy idea is to have more patents, stronger patents, and ever more leverage for owners of patents that for the most part shouldn't have been granted in the first place in light of prior art.

2. Even other policy-making institutions, such as the leadership of the IP subcommittees of U.S. Congress, the European Commission, or the German Federal Ministry of Justice have yet to acknowledge for the first time in history that it may be smart innovation policy to weaken patent rights. In Japan, an undoubtedly very innovative country, they're ahead of the pack. Especially in Europe, one-dimensional, backwards-oriented thinking is prevalent.

The Nikki article explains in its first paragraph that the JPO is working on a legislative initiative to deny SEP holders access to injunctive relief in cases in which their patents make only a minor contribution to IoT-related devices, which (as the Nikkei article clarifies) also includes connected cars and medical devices. It's hard to imagine a SEP that would not make only a minor contribution to an IoT product. Most SEPs are extremely underwhelming as they cover simple protocols of the "Hello, how are you? -- Thanks, I'm fine, how about you?" kind as opposed to rocket science. Even the few SEPs that are better than that merely constitute parts of standards with respect to which thousands of patents have been declared essential, and for every SEP there would have been numerous--often virtually infinite--numbers of viable alternatives at the time of standardization.

Japan wants its high-tech sector to be among the world leaders in IoT. You hear the same elsewhere, especially in the European Union, where one generation of politicians after the other states the ambition to make the economy more innovative while that continent is falling behind the U.S. and East Asia at a worrying pace. By contrast, Japanese policy makers appear to be prepared to not only talk the talk, but to walk the walk. According to Nikkei, the JPO's IoT-related proposal is envisioned to pass into law in 2021.

A JPO committee has outlined several cornerstones of a 2021 patent reform bill. Patent injunction reform has been discussed internally many times.

Not only is the JPO working on patent injunction reform but Japan's Ministry of Industry and Economy (METI) is drafting recommendations regarding SEP royalty rates.

I know that several Japanese car makers and automotive suppliers are watching with great interest what will come of Daimler's and four of its European suppliers' complaints against Nokia. At this point I'm not aware of official antitrust complaints lodged by Japan's automotive industry with the Japan Fair Trade Commission (JFTC), but anything's possible.

The draft patent reform bill Germany's Federal Ministry of Justice published earlier this year is fundamentally flawed and would likely have zero impact on SEP injunctions according to some leading litigators. While it's possible that Germany will enact a revised patent law slightly ahead of Japan, what actually matters is the impact any reform will have on litigation and, by extension, on licensing discussions that are informed by what would happen in hypothetical litigation. In that regard, Japan's approach looks more visionary for the time being.

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Apple and Intel just dealt Qualcomm a post-settlement blow: EPO revokes patent underlying German fake injunction against iPhone 7 and 8

On the legal front, this week was the worst ever for Qualcomm in its corporate history, due to the FTC's sweeping victory in the Northern District of California on Tuesday shortly before midnight Pacific Time. Today, Friday, Qualcomm suffered another defeat--less impactful than the other one, yet significant: a three-examiner panel of the Ppposition Division of the European Patent Office (EPO) sided with Apple and Intel by revoking, as requested by those two Silicon Valley companies, European Patent EP2724461 on a low-voltage power-efficient envelope tracker, a patent that Qualcomm temporarily enforced to prevent Apple from selling the iPhone 7 and iPhone 8 (and the iPhone X, but Apple was no longer offering it anyway) in Germany, an attempt to put pressure on Apple for which Qualcomm had to make a $1.5 billion deposit.

Quite apparently, the recent Apple-Qualcomm settlement agreement, which resulted in the dismissal with prejudice of all infringement and antitrust/contract actions around the globe, did not and does not preclude Apple from continuing to challenge the validity of Qualcomm's EP'461 patent, which I just call the "Munich fake injunction patent" alluding to its enforcement history. (This is not the time and place to speculate on whether that agreement will have to be renegotiated; suffice it to say that a hedge fund manager with formal legal training said, as a guest speaker on a Susquehanna International Group conference call yesterday, that he couldn't find anything in the redacted version of the agreement that would suggest it couldn't possibly happen, and he explained why it's actually even hard to imagine that even the most creatively-crafted clause in the agreement could deprive Apple of whatever rights it might have as a beneficiary of the FTC case.)

On Tuesday, I was first to report and comment on Judge Lucy H. Koh's antitrust ruling; today I was the only third-party person in meeting room 128 of the EPO's main building in Munich. Qualcomm had dispatched a team of eight: four Quinn Emanuel lawyers (led by two partners: lead counsel Dr. Marcus Grosch and recently-named partner Jérôme Kommer), a German professor who served as their expert witness, and three Qualcomm employees from San Diego. Apple and Intel were represented by four patent attorneys from Samson & Partner (including the name partner himself, Dr. Wolfgang Lippich, Dr. Georg Jacoby, and Dr. Martin Vetter) as well as--in an advisory, non-pleading capacity today--Freshfields Bruckhaus Deringer partner Prince Wolrad of Waldeck and Pyrmont and principal associate Dr. Eva-Maria Herring, credited for numerous key court filings such as Apple's answers to several Qualcomm complaints.

Such a rock-star lineup on both sides--14 professionals in total--shows that today's hearing was hugely more important than one might have thought in light of the recent Apple-Qualcomm settlement as well as the Munich Higher Regional Court's decision to lift, pending the appeal (which was subsequently mooted by the settlement), the lower court's injunction because it came down for all the wrong reasons.

The relevance of today's ruling by the EPO's Opposition Division, which Qualcomm can and undoubtedly will appeal to a Technical Board of Appeal (TBA) of the EPO, transcends the scope of, and past and potential future harm caused by, this particular patent as the German federal government is preparing a patent reform package with a particular emphasis on access to injunctive relief. In fact, an "expert talk" (a spokeswoman for the ministry insisted it was not a "roundtable," though I think it was one by any other name) took place just earlier this week--and I'll encourage the officials in charge of drafting the bill to consider this case, which was arguably the highest-profile German patent injunction that ever came down. I'll also remind them of how German media giant Bertelsmann's Arvato services company lost a great deal of business from Microsoft earlier this decade because of the mere threat of a Mannheim injunction>.

Let's look at it this way: because of German patent law--and the way the courts apply it--effectively granting patent injunctions as an automatic conseqwuence of an infringement finding, and because defendants are deprived of a full invalidity defense (unlike in any other jurisdiction, though it's also a tall order to get U.S. juries to invalidate patents), two models of the commercially most successful high-tech product ever--the iPhone--were banned by the Munich I Regional Court even though

• the appeals court found that the lower court erred in three ways, one of which is that the regional court should have reopened the record after the first trial instead of entering an injunction,

• decisions in the U.S. (by the ITC and the United States District Court for the Southern District of California) very strongly suggested that Qorvo's envelope tracker chip simply doesn't infringe that patent, and

• today we know that the patent shouldn't have been granted in the first place (though, again, Qualcomm can and presumably will appeal that holding).

It was a long day (from 9 AM to around 5 PM local time) at the EPO, and I'd rather go into details on the invalidity finding when the written decision is handed down. What I do wish to point out is that the opposition panel (chairman: Manuel Pavón Mayo; 1st examiner: Ali Hijazi; 2nd examiner: Thomas Agerbaek) chose a very well-structured and logical approach today that I really liked. They adopted Dr. Lippich's suggestion to start with claim construction (especially the pivotal term, "offset") so as not to put the cart before the horse (in the U.S., that's just normal; in Europe, it unfortunately isn't, but I hope it will be at some point); just before the lunch break, they determined that the patent was invalid as granted; thereafter, Qualcomm (whose lead counsel is generally very successful with claim amendments as I've seen on other occasions) brought what they call an "auxiliary request," which is an amended claim; Apple and Intel's first attack on the validity of the amended (narrowed) claim failed, but the second one, based on a different closest prior art reference, succeeded after extremely thorough analysis with a lot of back and forth and several breaks that were required to arrive at this well-considered decision (which I therefore believe stands an excellent chance of affirmance).

I also wish to thank the EPO's press office for their support, despite the fact that there were times when I was an enemy of the EPOnia state, though I have for several years now refrained from commenting on their internal matters. Today a highly competent and dedicated panel did some world-class work.

Finally, I'd like to get back to Judge Koh's ruling. On page 104, she also addressed this problem of Qualcomm using non-standard-essential patents such as EP'461 against Intel-powered Apple devices in order to bring Apple back into the Qualcomm fold:

"Once Apple started purchasing modem chips from Intel, Apple challenged Qualcomm’s royalty rates, as Tony Blevins (Apple Vice President of Procurement) testified at trial: 'There are court proceedings where we’re trying to establish what is a FRAND rate for royalty.' [...] In response, according to Blevins, Qualcomm sought patent injunctions around the world against Apple’s handsets: '[T]hey had filed injunctions against Apple and lawsuits on non-SEPs, again, to improve their position . . . on the SEPs.' [...]"

I remember, from watching the San Jose trial in January, how counsel for Qualcomm tried to get an FTC witness to say that Qualcomm's royalty demands would be validated by Qualcomm being able to shut Apple out of a major market like Germany. So much for that one.

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Munich I Regional Court schedules additional June trial over Qualcomm's four zombie patent lawsuits against Apple

Four of Qualcomm's eight Spotlight-related patent infringement actions against Apple in Munich were dismissed in January for non-infringement, while the proceedings relating to the other four cases (two lawsuits per patent targeting different Apple entities) were reopened because Qualcomm had not yet had the opportunity to argue that a panel of three examiners at the EPO's Opposition Division erred when they preliminarily agreed with Apple and Intel that those patents are invalid.

I checked again with the press office of the Landgericht München 1 (Munich I Regional Court) and was told yesterday that "for the time being" the court scheduled another trial session for June 13, 2019. The parties already argued (non-)infringement at a first hearing as well as a trial last year, so presumably the sole focus of the additional June session will be on (in)validity.

Five and a half month later, on November 26, 2019, the EPO's opposition panel will hold a hearing and make its decision (click on the image to enlarge; this post continues below the image):

In German infringement proceedings, defendants' ability to argue invalidity is limited. As opposed to a full invalidity defense, there is bifurcation: full invalidity challenges must be brought in separate fora (the EPO for "young" patents, or the Federal Patent Court of Germany), and the courts deciding on infringement will, at best, stay a case pending the resolution of a parallel invalidation proceeding. The decision on a request for a stay is based on limited analysis as opposed to a full trial. In practical terms, obviousness arguments are hard to prevail on; stays are usually based on indications of non-novelty.

However, when a competent forum deems a patent invalid, its findings bear significant weight with the infringement court. A credible invalidity opinion from a forum within the European Patent Organization (the international organization running the EPO) often has the practical effect of reversing the burden of proof, requiring the patent holder to persuade the court that the related findings are either not well-reasoned or, should a patent not be young enough that the EPO can revoke it Europe-wide, are based on a legal standard that German courts don't apply to the German parts of EPO patents.

Here, the EPO's opposition panel took a preliminary position, with the actual hearing taking place later this year. A preliminary holding like this obviously has significantly less weight than a final (but appealable) revocation decision. But it was important enough to warrant a reopening of proceedings.

Qualcomm isn't going to gain any leverage from those Spotlight (a search feature) cases anyway as iOS 12 contains a workaround. Any "win" would be purely symbolical, as would any potential damages. But Qualcomm is facing huge problems in its patent infringement actions against Apple, which is presumably the reason why it keeps spending a lot of money on cases that won't result in any serious leverage. Qualcomm is desparately trying to prove that its patents (in these cases, non-standard-essential patents) have value, and to portray Apple as an infringer--even when there's already a workaround in place.

Maybe Qualcomm will stipulate to a stay so the Munich court won't have to hold the mid-June trial session and write up an order to stay the case. Given that the EPO will decide only five and a half months later, it's hard to imagine (though I have no idea of what Qualcomm told the court as to why it believes the EPO got it wrong) that Qualcomm will be able to dissuade the court from staying the cases. It's also very, very likely that the EPO will revoke those patents, in which case Qualcomm will have to appeal the Opposition Division's decision to a Technical Board of Appeal. All of his is taking time, but those cases are pretty clearly going nowhere.

Later this month a first hearing in a later-filed Munich Qualcomm v. Apple case over an antenna patent will be held.

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BlackBerry suing Facebook and its WhatsApp and Instagram subsidiaries over five European software patents in Munich

As the former director of the European NoSoftwarePatents campaign I always find it shocking what kinds of patents the European Patent Office (EPO) grants despite the exclusion of "programs for computers as such" from the scope of patentable inventions according to Article 52 of the European Patent Convention (EPC).

Post-grant reviews often do away with those patents, but rarely ever on the basis of Art. 52 EPC per se. What typically happens is that the Federal Patent Court of Germany or other courts of competent jurisdiction categorize some claim limitations as "non-technical" and purposely ignore them in their novelty or inventiveness analysis. Whatever little remains then is often anticipated by, or at the very least obvious over, the prior art. But, unfortunately, efficiency gains (reduced data volumes, increased processing speeds, economic use of screen space etc.) often serve as an excuse for circumventing Art. 52 EPC.

Tomorrow the Munich I Regional Court will hold a first hearing in one of eight BlackBerry v. Facebook/WhatsApp/Instagram cases over a total of five different patents--all of them pure software patents. Patents on "programs for computers as such."

In March 2018, BlackBerry sued Facebook as well as its WhatsApp and Instagram subsidiaries in the Central District of California (= L.A., though geographically it would be SoCal). Facebook's VP of Litigation and Deputy General Counsel, Paul Grewal, issued the following statement:

"Blackberry’s suit sadly reflects the current state of its messaging business. Having abandoned its efforts to innovate, Blackberry is now looking to tax the innovation of others. We intend to fight."

The fact that Facebook still isn't paying BlackBerry any royalties is a good sign. Don't feed the failed-business-turned-troll!

Mr. Grewal used to serve as a United States Magistrate Judge in the Northern District of California. Over the years this blog mentioned him quite often, most notably in connection with Apple v. Samsung discovery and (un)sealing disputes as well as his mediation effort with Oracle and Google, a case that he realized just had to go to trial.

While there has been some media coverage of BlackBerry's U.S. litigation against Facebook (and a countersuit by Facebook), I haven't been able to google any articles on the eight Munich lawsuits, even though a couple of first hearings have already taken place there. This is the list of patents and first hearing dates:

1. EP1734728 on a "method and apparatus for switching between concurrent messaging sessions" (first hearing held on 01/10/2019)

   accused functionality: showing two chat histories in parallel

2. EP1633114 on a "system and method for maintaining on a handheld electronic device information that is substantially current and is readily available to a user" (first hearing held on 01/17/2019)

   accused functionality: automatically identifying user profiles containing partly identical data

3. EP1746790 on a "method of sharing an Instant Messaging history" (first hearing: tomorrow = 02/14/2019)

   accused functionality: sharing messages from the chat history

4. EP1540495 on a "method and system for displaying group chat sessions on wireless mobile terminals" (first hearing: 02/28/2019)

   accused functionality: displaying chat history while text is being edited

5. EP2339799 on an "IM contact list entry as a game in progress designate" (first hearing: 02/28/2019)

   accused functionality: chatting during gameplay

This is another series of Munich cases in which Quinn Emanuel is asserting patents on behalf of a patent monetization-focused client against a Freshfields client. QE is representing Qualcomm against Apple in a series of German infringement cases, and Freshfields is defending Apple. Here, QE is suing Freshfields client Facebook on BlackBerry's behalf.

The BlackBerry company was named Research In Motion (RIM) when it filed the related patent applications. The irony is that "Research In Motion" is structurally similar to the names of many patent trolls, but the company was actually focused on making products at the time and itself the target of lawsuits brought by trolls, with the NTP case (settled for $612.5 million) being the most well-known example, while it's now named BlackBerry, but far more interested in patent monetization while its namesake products became pretty irrelevant a long time ago, thanks to the iPhone and Android.

I was in frequent contact with RIM in 2006, shortly after the costly NTP settlement that happened on the eve of what would most likely have been a U.S. injunction. I remember that they were the first company (of many) to tell me about the problems they had with Qualcomm, and that they were really happy about the Supreme Court's eBay v. MercExchange ruling (on patent injunctions) that year. But times have changed, and now they're asserting software patents against Facebook and its two most famous subsidiaries as if Article 52 of the European Patent Convention didn't exist.

In addition to suing companies like Facebook directly, BlackBerry engages in privateering. Last week, PatentlyApple reported on a declaratory judgment action brought by Apple against a troll named "Fundamental Innovation Systems" that wants (but hopefully won't get any) license fees from Apple over a dozen former RIM/BlackBerry patents.

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USPTO and EPO post-grant reviews: Intel is beating the living daylights out of Qualcomm's envelope tracker patent

There's only been bad news for Qualcomm's envelope tracker patent family this week. So bad in fact that it's impossible to understand why Qualcomm made a $1.5 billion deposit last month to enforce an injunction in Germany that lacks legitimacy and teeth at the same time.

On Tuesday, the United States District Court for the Southern District of California considered it a crystal-clear case that Qorvo's envelope tracker chip found in certain iPhone models doesn't infringe. That's why Judge Dana M. Sabraw entered summary judgment against Qualcomm's related infringement claim. There wasn't even a point in presenting an extremely far-fetched infringement theory to a jury. Previously, the ITC had held the patent non-infringed as well. In the combination of the ITC and San Diego (Qualcomm's hometown) rulings, there is every reason to assume that the German injunction is a monumental miscarriage of justice, and Qualcomm will likely lose some part of its $1.5 billion deposit if there's no settlement before Apple will be able to seek wrongful-enforcement damages.

Also on Tuesday, German website WinFuture.de scooped everyone by finding out from resellers that Apple will apparently have a workaround ready in a month's time. It's illustrative of the utter absurdity of the envelope tracker SNAFU that a workaround would have to be created, replacing a non-infringing (in all likelihood, given the two U.S. decisions) chip. Contrary to what some people on the Internet appear to think, it's not an admission. It's simply that, should WinFuture.de be right (which I tend to believe it is), any infringement allegations by Qualcomm against the modified variants of the iPhone 7 and iPhone 8 would require a whole new determination on the merits, while a contempt proceeding involving the previously adjudicated chipset could be decided against Apple if the court relied on its agnostic--by now, most likely counterfactual--infringement finding again. If the standard in a contempt proceeding required Qualcomm to prove an actual infringement, a workaround would most likely not be needed, but the court might favor the same approach once again and adopt Qualcomm's attorneys' fiction. As the saying goes, discretion is the better part of valor.

Yesterday--Wednesday--delivered the next round of bad news for that Qualcomm patent. Technically it's U.S.-only news, but due to major overlaps it also has important implications for an opposition proceeding before the European Patent Office, which will hold an opposition hearing on May 24 (chairman: Manuel Pavón Mayo; 1st examiner: Ali Hijazi; 2nd examiner: Thomas Agerbaek). The U.S. inter partes review no. IPR2018-01154 targeting claims 15-20 of the U.S. envelope tracker patent is most interesting in this regard as the claims and the prior art references are most similar to the issues before the EPO's opposition division.

The Patent Trial and Appeal Board (PTAB) of the United States Patent & Trademark Office (USPTO), which had previously instituted two inter partes reviews of the envelope tracker patent, yesterday granted two more petitions, resulting in a total of four IPRs targeting this patent, with each proceeding relating to a different set of claims. The following screenshot shows the status of Intel's four IPR petitions, all four of which have given rise to post-grant reviews by now (click on the image to enlarge; this post continues below the image):

In light of the Supreme Court's SAS ruling, which requires the PTAB to either review all challenged claims or none, the partitioning of Intel's validity attack on the envelope tracker patent makes the four decisions on institution even more meaningful. Otherwise, if a single petition had challenged all claims, the PTAB might have granted a review theoretically because of a single claim being reasonably likely to be invalidated. But since Intel's lawyers (from the Wilmer Hale firm) challenged four sets of claims separately, we now know that the USPTO sees a reasonable likelihood of invalidation for multiple claims, and probably even for all claims.

The petitions were all filed in late June, i.e., after the SAS decision, and Intel presumably sought to avoid a situation in which the PTAB would be scared away by a monolithic petition targeting all claims at once if there had been a strong case for invalidation with respect to maybe just one or two claims. But by now we know it was a non-issue. The patent has a huge validity problem.

Should a constitutional law professor (who happens to be the chairman of the board of directors of an organization that has been supporting Qualcomm for some time now) be right and the ITC actually has to conduct a retrial with respect to Qualcomm's first ITC complaint against Apple, the envelope tracker patent would be relitigated, but the likelihood of the ITC deeming the asserted claims invalid would be higher next time around.

Since there will be news from those IPRs sooner or later, I'd like to help everyone navigate the four IPRs by providing an overview of what prior art references are held against what claims in what proceeding:

IPR2018-01153 (claims 1-9) -- instituted on 01/16/19

Intel's petition (PDF)

Claim 1: obvious over Chu + Choi 2010 + Myers

Claim 2: obvious over Chu + Choi 2010 + Myers

Claim 3: obvious over Chu + Choi 2010 + Myers

Claim 4: obvious over Chu + Choi 2010 + Myers

Claim 5: obvious over Chu + Choi 2010 + Myers

Claim 6: obvious over Chu + Choi 2010 (if necessary, + Myers)

Claim 7: obvious over Chu + Choi 2010 + Myers

Claim 8: obvious over Chu + Choi 2010 (if necessary, + Myers)

Claim 9: obvious over Chu + Choi 2010 + Myers

IPR2018-01240 (claims 10&11) -- instituted on 02/06/19

Intel's petition (PDF)

Claim 10: obvious over Chu + Choi 2010 + Hanington

Claim 11: obvious over Chu + Choi 2010 + Hanington + Myers

IPR2018-01152 (claims 12-14) -- instituted on 01/16/19

Intel's petition (PDF)

Claim 12: anticipated by Chu

Claim 13: obvious over Chu + Choi 2010 (if necessary, + Myers)

Claim 14: anticipated by Chu, or obvious over Chu + Blanken

IPR2018-01154 (claims 15-20) -- instituted on 02/06/19 and most relevant to the European proceeding

Intel's petition (PDF)

Claim 15: anticipated by Kwak

Claim 16: obvious over Kwak

Claim 17: anticipated by Kwak

Claim 18: anticipated by Kwak

Claim 19: obvious over Kwak + Choi 2010

Claim 20: anticipated by Kwak

Before the EPO, Intel attacks the relevant European claims as being anticipated by a prior art reference named Hou, but also argues that they're obvious over Kwak + Kim, or alternatively over Stauth + Tanabe. Further reference is made in Intel's European opposition brief to prior art references named Midya, Lee, Wu, Mathe, Kim, Kang, and Chu.

Finally, here's Intel's European opposition brief (Appled raised the same issues and is represented by the same Samson & Partner patent attorneys):

Intel Opposition to EP27244... by on Scribd

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Qualcomm's German motion for contempt sanctions against Apple faces high legal hurdle while iPhone 7 and 8 remain widely available

On Thursday, January 31, the Munich 1 Regional Court had bad news for Qualcomm's eight patent suits (over four different patents from the same patent family) against Apple's Spotlight search. A few hours later, and a day after its most recent quarterly earnings call (a type of event around which Qualcomm likes to announce court filings), Qualcomm shared with a couple of news agencies a motion for contempt sanctions it brought against Apple in Munich. That contempt motion relates to a pair of injunctions granted to Qualcomm in December without an actual finding of infringement (announcement; impact assessment; defendant's dilemma). Qualcomm is angry because the iPhone 7 and 8 remain widely available in Germany (which, based on my online research, is still the case today).

All in all, there are now five types of legal proceeding pending in Germany with respect to the pair of injunctions ordered in December:

1. The appeals court (Oberlandesgericht München = Munich Higher Regional Court) confirmed in early January that Apple had appealed the injunctions.

2. The appeals court furthermore confirmed that Apple had brought a motion to stay enforcement (pending the appellate proceedings). At the time, Qualcomm had not yet responded to it. I'd be surprised if we didn't hear about a decision during this month of February, however.

3. Qualcomm obtained a preliminary injunction barring Apple from telling the media that the iPhone 7 and 8 remain available in Germany at more than 4,000 points of sale.

4. Now Qualcomm has brought a motion for contempt sanctions, giving rise to contempt proceedings.

5. The patent-in-suit is being challenged by Apple and Intel in an opposition proceeding before the European Patent Office. The EPO Register indicates that oral argument has been scheduled for May 24. A panel of three examiners (chairman: Manuel Pavón Mayo; 1st examiner: Ali Hijazi; 2nd examiner: Thomas Agerbaek) will hear the parties and, typically, render a decision (which will be appealable) at the end of the day.

According to news agency reports, the contempt motion seeks to hold Apple responsible for the fact that the iPhone 7 and 8 remain widely available in Germany, asking the court to impose a significant fine or, in the alternative, imprison the CEOs of the defendant entitites (including Apple Inc. CEO Tim Cook). Some German-language media reports have focused on the question of whether Tim Cook is at risk of being imprisoned. He is not. Even if the court were to hold Apple in contempt (we'll get to that in a moment), it simply wouldn't happen. There's always some ignorant, incompetent and lazy journalists reporting on such cases.

When German courts order injunctions, the sanctions threatened in the related orders are described as follows:

• a contempt fine of 5 to 250,000 euros per violation, or as a substitute, imprisonment of the CEO, or

• imprisonment of the CEO.

The first part means that the CEO will be imprisoned if the contempt fine can't be collected ("as a substitute" in a scenario of default). Based on Bloomberg's quote from Qualcomm's press release, it appears that Qualcomm sought fines. Theoretically, this also means that the CEO might end up behind bars, but only if the fine isn't paid, and we all know Apple would pay if it had to.

The second bullet point relates to extreme cases in which courts have imposed multiple fines (which get ever higher) and a company still fails to comply. In that case, a CEO might be imprisoned even if a company was ready, willing and able to pay a fine--because the court would determine that fines won't do the job. But no court would ever consider this when the first allegation of non-compliance is brought, and that's why I can't imagine Qualcomm would have proposed that kind of sanction. Again, Qualcomm's statement to the media doesn't suggest that Qualcomm even tried to persuade the court to skip the step of a contempt fine and go straight to imprisonment.

Therefore there isn't even a need to talk about why there is no possibility of extradition.

So, practically, the question is whether Apple would be fined. The media reports are unclear. One of them refers to some iPhones still having been available in early January "in Apple stores," which may or may not refer to the official Apple Stores (with a capital S). Should that have been the case, it would likely have been an oversight in one or more of the 15 German Apple Stores. Any related fine would be small. But Qualcomm appears to primarily--if not exclusively--complain about Apple not having complied with its obligation to recall the iPhone 7 and 8 from its German resellers.

I heard Presiding Judge Dr. Zigann's announcement of the recall order live in court on December 20, 2018. I remember that the word "seriously" was mentioned in connection with Apple's obligation to ask resellers to return the banned products, and that there was the usual boilerplate in German recall orders about the defendant having to make sure resellers would get their money and any shipment costs back.

On ipwiki.de, a German-language IP-focused Wikipedia-style reference, it is noted that the recall obligation means the defendant must request that its customers return the banned products, but whether those customers comply with the request is their decision and cannot result in any liability on the defendant's part, provided that it has made reasonable efforts to call on its customers to return the banned products.

Basically, Apple's resellers (the major carriers and retail chains) are treating Qualcomm like your average patent troll. There have been other smartphone patent injunctions in Germany that resellers simply didn't take seriously. Instead of fearing that they might themselves become the target of patent infringement actions, resellers tend to just keep selling products while there is demand.

A German publication for the retail channel, Absatzwirtschaft, reported in early January on the implications of the relevant pair of injunctions. The article quotes me several times. It contains screenshots that show how some resellers were actually alluding to the injunctions in a humorous way (which obviously isn't funny if you're Qualcomm and just deposited $1.5 billion to enforce that pair of injunctions). A reseller named cyberport (link to screenshot) described the three banned iPhone models (7, 8, and X; though Apple had already discontinued distribution of the X some time before) as "verboten gut," a German saying that literally means "prohibited(ly) good," which means "too good to be lawful" in the sense of "extremely good."

This actually shows there was quite some awareness of Qualcomm's position that those products infringe (though Qualcomm apparently wasn't sure of its position; otherwise it would have allowed the court-appointed expert to look at Qorvo's chipset schematics, which Qualcomm had actually obtained for that very purpose in a U.S. discovery proceeding.

I guess Qualcomm's contempt motion is going to result in either no fine or in a small fine (assuming that Apple will have done what it's required to do under the law, which is to make a "serious" request that resellers return the related products), and then I wouldn't be surprised if Qualcomm at some point started suing Apple's resellers, though the problem for Qualcomm would be that the most important resellers are major carriers and Qualcomm wants to work with carriers (as some Qualcomm witnesses explained at the FTC v. Qualcomm antitrust trial in San Jose that ended a week ago).

Time is not on Qualcomm's side. The appeals court might stay enforcement, and/or the EPO might revoke the patent-in-suit.

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No quick win for Qualcomm over Apple in Germany: stipulated stay

Four months back, Qualcomm's lead counsel in the German Qualcomm v. Apple cases, Quinn Emanuel's Dr. Marcus Grosch, hoped to obtain a Germany-wide patent injunction against Apple this summer. The related case (one of various patent infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it's unlikely that anything, if ever, will happen in that particular matter before the summer of 2019.

The patent-in-suit, EP2954737 on a "power tracker for multiple transmit signals sent simultaneously," is under massive pressure because of Apple and Intel's opposition to its recent grant. Of the four prior art references cited, Alcatel Lucent's European patent application EP2442440A1 poses the greatest--though not the only--threat to Qualcomm's patent.

At today's trial it turned out that Qualcomm itself recognized that this patent, granted only about a year ago, is not the most defensible one. After reviewing Apple and Intel's petition for revocation, Qualcomm decided to narrow the claim scope by filing an application for a divisional patent that would (if granted, which is a huge IF) be limited to wireless devices. However, Presiding Judge Dr. Holger Kircher of the Mannheim Regional Court indicated in his initial summary of the court's preliminary position that he and his two colleagues were inclined to stay the case pending the EPO's decision on Apple and Intel's opposition--and the divisional patent that Qualcomm was seeking to obtain wouldn't have affected the court's validity assessment where we stand, given that a new filing, which may or may not result in a patent grant, just doesn't enjoy the strong presumption of validity that applies to actually-issued patents.

While the court was inclined to agree with Qualcomm's infringement theory and unconvinced of Apple's defenses (including its claim that Intel, its supplier, had prior use rights), validity was a lost cause for Qualcomm based on the current state of affairs. Therefore, Qualcomm's counsel didn't really see an alternative to a stipulated stay. He'd have preferred to limit the stay to the first decision by an EPO examiner on the new divisional patent application, but Judge Dr. Kircher reminded him of his procedural options: should there be other relevant developments, Qualcomm could bring a motion and the court would take another look at whether the stay might be lifted.

The parties finally stipulated to a stay. The opposition proceeding will likely result in a decision in mid-2019, given--as Samson & Partner's Dr. Wolfgang Lippich (a patent attorney on Apple's defense team) explained--the EPO's internal timelines for opposition proceedings involving patents that are being asserted in litigation.

On the infringement side, the court applied a broad claim construction, particularly with respect to the words "based on". Those words are followed by "a plurality of [components]," but despite Hoyng ROKH Monegier's Klaus Haft (lead counsel for Apple) explaining how the claim and certain paragraphs of the specification require multiple measurements to take place, the court remained convinced that this claim language dictated a rather broad interpretation (which, of course, has implications for validity as well, though validity will have to be resolved in a different forum, the European Patent Office).

By contrast, the court tends to interpret the statute governing prior use rights in Germany (§ 12 of the German Patent Act) rather narrowly. Reference was made today to an internal Intel presentation, but Judge Dr. Kircher's preliminary opinion was that Intel, while it had the relevant technical idea, had not actually implemented it to a sufficient extent by the priority date of Qualcomm's patent. He felt it was more like some people at Intel--and this must actually be about the mobile chipset division Intel acquired from Infineon--had said: "Wouldn't it be a nice idea to do this?" Unsurpisingly, Mr. Haft disagreed and pointed to the multi-year periods it takes from a firm technical decision to the actual availability of a chipset.

Apple had also raised antitrust defenses. However, Judge Dr. Kircher said that only the enforcement of an injunction would have antitrust implications, while Qualcomm could seek damages. Therefore, Qualcomm's allegedly anticompetitive behavior would not justify a stay of the entire case.

Since Apple convinced the court--and, by extension, even Qualcomm--that a stay was warranted, Apple's other defenses (such as its non-infringement theories, prior use, and antitrust defenses) are moot for the time being. Qualcomm now has to deliver a valid patent. Unless and until it does so (which will take time), this case here won't be resumed. Meanwhie, other Qualcomm v. Apple patent infringement assertions will go to trial. For the second half of the year, the Mannheim court has scheduled two Qualcomm v. Apple trials, and the Munich I Regional Court will hold three (there have already been first hearings in those cases).

Qualcomm's quest for leverage has been dealt a significant setback, but will continue without a doubt. But most likely today's stay wasn't the last one in that dispute.

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Why would a patent office be afraid of bloggers? Only if it has something to hide. Like the EPO.

Over the years I've learned not to take things personally, but there are situations when it's hard. I did take it personally when I faced a shitstorm in 2012 after a totally erroneous decision by a judge who still doesn't correctly state the law on the copyrightability of declaring API code. And this morning I saw something that is just absurd. I'm talking about the last bullet point in the following quote from the EPO's official allegations against Elizabeth Hardon, a staff union leader they're now trying to fire:

"(1) actively cooperated with the campaign conducted by C [suspended in-house judge] against the EPO, members of the Administrative Council, and individual EPO staff members.

Specifically, the evidence demonstrates that she:

• discussed with C the strategy for his campaign and provided instructions to him;

• provided C, on at least one occasion, with non-public contact details for all delegates of the Administrative Council, which C used to send anonymous defamatory email messages;

• was in personal contact with at least one blogger habitually attacking the EPO, Mr. FM of FOSS Patents, which resulted in the publication on FOSS Patents of attacks regarding alleged corruption of delegates of the Administrative Council;"

First, I don't disclose sources unless they wish to be disclosed. Also, I sometimes get messages from anonymous sources. Therefore, I can neither confirm nor deny any allegations of someone having been in contact with me, regardless of how truthful or untruthful an allegation is. As for "personal contact", I can generally say that no SUEPO (staff union) person has ever met me or even talked to me over the phone--I listened to some of their speeches at demonstrations in Munich, without approaching them. I only talked to two persons at an EPO demo. I asked one guy to let me take a picture of a banner, and I said hello to an EPO in-house judge I happen to know for a reason that has nothing to do with the labor dispute.

Second, I comment on the EPO situation from time to time (not even very frequently), but "habitually attacking the EPO" is really not the way I view it. On one major issue I even agreed with the president of the EPO (though an expert on suicides tends to agree with SUEPO).

Third, regardless of who my sources are, none of my sources even tried to persuade me to allege "corruption of delegates of the Administrative Council [of the European Patent Organization]." The closest thing to corruption--and "closest" is an overstatement--that I wrote about was that the EPO allegedly pays for the visits of its supervisors (especially those from relatively poor countries) to Munich doctors. I wrote about this because I heard it at a SUEPO demo. I remember that Mrs. Hardon was among the speakers, but I also remember with certainty that the thing about medical care was mentioned by a male speaker at a demonstration about a year ago. Apart from that, I merely mentioned that Administrative Council delegates often hope to become EPO president or vice president, and that this ambition appears to prevent at least some of them from doing their supervisory job right.

Actually, it's only after the above reference to "corruption" in an official EPO document that I start to wonder whether the EPO leadership's hypersensitivity may have a factual reason that I don't know about yet.

Getting back to the first point: even if one wanted to assume arguendo that Mrs. Hardon had communicated with me, there wouldn't be anything wrong about it. Managing Intellectual Property magazine put me on their list of the 50 most influential people in IP in five of the last ten years, and Canadian IP lawyers and blogger Barry Sookman once listed FOSS Patents among the top three patent law blogs in the world. SUEPO must have the right to communicate with someone like me, just like BMW or Allianz couldn't prevent their staff representatives from talking to the general press.

The EPO leadership is just paranoid about bloggers who criticize what's wrong with the way that organization is run. But those EPO folks don't appear to understand that they're only making things worse by the day. They threatened legal action on at least four occasions against TechRights author Dr. Roy Schestowitz, who is still the most prolific writer on the EPO labor dispute. Now they blame a staff representative for my commentary without a factual basis.

What do they have to fear? They must have something to hide.

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Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

• Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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European Patent Office intentionally treats patent applicants and staff unfairly: leaked documents

While I'm currently taking a break from patent (not copyright) blogging, there's a few EPO-related issues I quickly wanted to draw attention to (and would comment on in more detail if I had time).

Dr. Roy Schestowitz, who has been authoring the TechRights blog for nine years, obtained (after I encouraged him to do so) a copy of an internal document of the European Patent Office that stands as incontrovertible evidence of the EPO's institutionalized unfairness. Companies filing large numbers of patent applications receive preferential treatment including highly questionable package deals along the lines of "drop these 500 patent applications and in exchange we'll grant 1,000 other weak applications of yours in short order".

Article 7 of the Universal Declaration of Human Rights states the following: "All are equal before the law and are entitled without any discrimination to equal protection of the law." But the EPO doesn't believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I've previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn't rig soccer matches, at least not the extent the EPO's leadership compromises the patent granting process.

The general press should take much more of an interest in the EPO's corruption. Yesterday I was pleased to see that Heise online, Germany's leading IT news site, has written about this after reading the TechRights story.

I also wanted to point to some new developments in connection with the EPO leadership's repressive actions against staff union leaders. The following letter by SUEPO's (Staff Union of the European Patent Office) Munich chair, Elizabeth Hardon, to the chairman of the Administrative Council (the politburo) of the European Patent Organization speaks for itself:

15-10-08 Letter Re. EPO Elizabeth Hardon by Florian Mueller

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Leadership of European Patent Office pressures staff union to remove links to FOSS Patents blog

What's so outrageous about my two most recent posts on the EPO labor conflict (1, 2) that the Staff Union of the European Patent Office (SUEPO) had to remove its links to (and quotes from) those posts?

On SUEPO's homepage there are now at least two entries that used to point to this blog and now say the following:

Document temporarily removed due to threats of reprisals from EPO management. SUEPO is taking appropriate action to counter the threats.

Here's a screenshot (click on the image to enlarge):

It's not even the first act of censorship against an independent blog. In July it became known that the EPO blocked examiners' access to TechRights, another blog that calls the EPO leadership out on its wrongdoings.

This blog here is critical of what's going on at the EPO but far from SUEPO-aligned.

In the earlier one of the two posts, I actually concurred with EPO president Battistelli on the complicated issue of how SUEPO should deal with a suicide rate that appears to be more than twice as high as that of the average Dutch or German populations but still, in my opinion, is not necessarily attributable to the lamentable situation at the EPO (given that such small statistical samples are not reliable).

In the more recent one, published earlier today, I explained why I didn't agreed with SUEPO's choice to march to a local authority today, given that the EPO enjoys diplomatic immunity and local authorities can only enter the EPO's premises with the EPO president's consent.

What may have riled the EPO leadership is that I published documents from internal proceedings targeting the chairwoman of SUEPO's Munich chapter. The EPO's internal "ServRegs" contain some strict prohibition of such disclosures, which is acceptable in connection with what really needs to be kept confidential but unfortunately also used in areas where the EPO needs more transparency.

Article 20, Unauthorized disclosure: "A permanent employee shall exercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his duties; he shall not in any manner whatsoever use or disclose to any unauthorized person any document or information not alreayd made public. A permanent employee shall not, whether alone or together with others, publish or cause to be published, without the permission of the president of the Office, any matter dealing with the work of the Organization."

Article 22, Disclosure in legal proceedings: "A permanent employee shall not without permission from the president of the Office disclose, on any grounds whatever, in any legal proceedings, information not alreadyy made public of which he has knowledge by reason of his duties. Permission may be refused only where the interests of the Organization or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice."

"Miscarriage of justice" is definitely a major concern with respect to legal proceedings relating to the EPO labor conflict.

Finally, some recommended reading for whomever at the EPO believes that it's a good idea to prohibit links to this blog: the Streisand effect.

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European Patent Office threatens legal action against staff union leader: escalating conflict

Last week, the TechRights blog published a letter by the head of the EPO's investigative unit to Elizabeth Hardon, the chairwoman of the Munich chapter of the Staff Union of the European Patent Office (SUEPO), summoning her to a hearing last Thursday. I also blogged about this development because it shows that the promise of "union recognition" is just a carrot the EPO leadership has been dangling to staff without any genuine desire to improve the internal climate.

Mrs. Hardon has probably never been at a greater risk of being fired, and the EPO is now not only talking about that scenario but additionally threatening "to take any other legal measures against [her]" over the alleged disclosure of the letter that was published last week. Here's the latest letter, signed by Elodie Bergot, Principal Director Human Resources of the EPO (this post continues below the document):

15-09-10 EPO Letter to SUEPO Munich Chair by Florian Mueller

Since I didn't receive a copy of either letter from Mrs. Hardon (whom I listened to at a couple of EPO demonstrations in Munich), I have no idea whether she is the source of the leak. Even if a letter is marked as "confidential," the EPO is so large an organization that the source could be anywhere, especially in light of the fact that presumably more than 99% of the staff is against the current leadership style.

As an employer, I also care a lot about confidentiality. However, confidentiality obligations can only apply to what is reasonably designated as confidential. I find it hard to see how the EPO could realistically demand silence over repressive action against one of the leaders of its staff union. Of course, if this involved third-party secrets (such as patent applications that haven't been published yet), then everyone would have to maintain strict confidentiality.

If, for example, Allianz or BMW (two other large Munich-based employers) threatened to fire one the labor union leaders among its employees, that story would draw press coverage within less than 24 hours.

More than anything else, this appears to be an attempt by the EPO to prevent SUEPO from communicating with the outside world on a level playing field. Obviously, the EPO's own website states the positions of its leadership, and that is something SUEPO has to live with. But SUEPO must at least be allowed to create transparency in such a critical context as this one.

SUEPO is holding another demonstration today as I read on its website. While previous demonstrations involved marches from EPO buildings to diplomatic representations of key EPOrg member states, staff will "march to the local Labour Inspectorate, Gewerbeaufsichtsamt" today. That one is an institution of the Bavarian government (part of the administration of the district of Upper Bavaria, to be precise). In a letter addressed to that institution, SUEPO argues that the German government has a particular duty of care for the many EPO employees based on its territory (and notes that approximately 25% of the EPO staff are German citizens).

I understand SUEPO's desire to draw attention to certain issues, but as the law stands, German authorities are not allowed to supervise the EPO in any way other than the influence the German government has by virtue of its status of being a contracting state and, therefore, being represented on the Administrative Council of the EPOrg.

Just like in my previous post on the EPO labor conflict, my message to EPO staff is that you can't have your cake and eat it. In a perfect world for you, you would have all the benefits (including tax benefits) of being employed by a famous international organization and would be under the protection of local authorities. That won't work. You either have to bite the bullet, stay at the EPO, enjoy certain privileges but also live with the fact that you won't have all the rights that your colleagues right across the street at the German Patent and Trademark Office don't have (though German patent examiners are not allowed to go on strike, by the way). Or you have to determine that the overall "package" you get at the EPO is still better than your best alternative on the job market. If you elect to take that package, you must accept certain structural shortcomings.

Far be it from me to justify human rights violations, cronyism, or crookery. Certain aspects of what the EPO leadership (including the Administrative Council) does are truly problematic and unacceptable. But instead of demonstrating in front of a Bavarian government agency that has no legal basis for helping you, you should think hard about whether you want to stay or leave. While Art. 20 of the Protocol on Privileges and Immunities of the European Patent Organization says the EPO should cooperate with national authorities in certain areas, Article 1 (2) of the PPI comes with the following practical restriction:

"The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action."

As a reaction to my previous post, someone told me that only a privileged few could simply choose their job. Obviously, with thousands of EPO employees affected, there are thousands of individual situations. But in general engineers and other scientists with multilingual skills are definitely in demand. As I wrote last week, most EPO employees would simply have to accept an initial pay cut (especially from an after-tax point of view) if they decided to work in the private sector. Some might reach their previous income level again over time; others might never reach it again. But if you left, then the Gewerbeaufsichtsamt of Upper Bavaria would indeed be responsible for your labor conditions.

I also don't consider it a valid argument that many EPO employees may have bought a house in the Munich area and would have to stay here due to long-term mortgage arrangements. First, there are many tech jobs in the Munich area itself. Second, if you had to move to another city or country, German banks would have to accept that you rescind your mortgage contract. Third, house prices have gone up a lot in Munich in recent years, so you wouldn't have to sell at a loss.

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In the face of repression, EPO employees should quit their jobs to promote innovation in industry

Political initiatives to improve the terrible situation at the EPO appear to be "too little, too late." Now that the summer vacation season has ended, it's apparent that things keep getting (even) worse.

Skeptics of the EPO leadership's intentions with respect to "union recognition" have already been proven 100% right. Contrary to resolving conflicts with the staff union, president Battistelli (aka Blatterstelli) and his minions have only one objective with respect to SUEPO: total suppression. As you can read in this TechRights post, the EPO's Investigative Unit (which would be more appropriately named Stasi) scheduled an "interview" of the staff union's Munich chairwoman for today. Her name is actually no secret: Elizabeth Hardon. She's one of the signatories you find here (this post continues below the document):

15-09-07 SUEPO Flyer on Suicide by Florian Mueller

I have heard from EPO staff that Mrs. Hardon was demoted last year by personal decision of Mr. Battistelli, on a basis that my sources consider unfair. She may now even be fired.

The above PDF document, which actually contains a SUEPO flyer as well as correspondence between SUEPO and Mr. Battistelli, relates to a very sad incident: the fifth suicide of an EPO employee in 39 months. But in this regard I neither support Mr. Battistelli nor SUEPO. I agree with either one to a limited extent and mostly disagree with both.

Mr. Battistelli -- and this is the first time for me to agree with him and it may also be the last -- is absolutely right that it was not enough for SUEPO to wait for a limited period of time before it tried to gain political mileage out of the latest suicide. Should Mr. Battistelli's representation (which I don't doubt in this particular case) be correct that the widow didn't want anyone to talk about the personal circumstances of this tragic incident, then SUEPO should have respected that forever, not just for two weeks.

The part of Mr. Battistelli's letter that I find ridiculous is where he asks for a climate of trust for his reforms, some of which violate long-standing principles of European labor law.

Another problem that SUEPO has here is that even five suicides in 39 months (almost one tenth of a percent of the EPO's workforce) are too small a number to be statistically reliable. There are definitely serious issues at the EPO, but small statistical samples have too much variance. Five suicides can happen among thousands of EPO employees even for circumstances that have nothing to do with the social and human rights conflict at that organization. SUEPO has far stronger -- and ethically less debatable -- arguments to demand a change for the better.

Should those suicides have had anything to do with the social conflict at the EPO, those people would have died for the wrong reason. I'd like to quote the following from TechRights:

"Staff at the EPO needn't be suicidal or depression-leaning. Many employees — and examiners in particular — are highly qualified, often with Ph.D.-level degrees and many years of technical experience."

I'll take this one step further: EPO employees who are unhappy about the situation should try to find a better way to vote with their feet than taking to the streets of Munich (and other cities) to no avail. They should quit their jobs at the EPO and take jobs in the private economy. Engineering jobs, especially.

Dear EPO Employees: if you truly wish to promote innovation, the EPO is the wrong place to be. If you believe that this system -- broken beyond repair -- is good for innovation, you just believe and propagate the same lies that the EPO leadership you hate so much has been telling for a long time.

If you want to help Europe to be more innovative (let's face it: Europe has a major innovation problem), bring your education, your skills, your talents and your energy to the table where you can contribute to the creation of actual products. Wouldn't it be so much more rewarding for you to learn about customers using products you helped create than to grant patents, most of which won't be upheld in court (at least not in the form in which you grant them) when seriously challenged (see 1 and 2)? Apart from that, most of the patent applications you process aren't filed by European companies anyway.

I know that your net salaries at the EPO may not be immediately matched by private sector employers (though it may happen if you get promoted over time). You would have to accept an initial pay cut. But money should never be the only reason to go to work. For you, the risk-reward ratio is actually much better than for patent attorneys. Patent attorneys -- who make far more money on the patent applications you process than you do, as you know -- have to invest a lot more time and money in their education, and when they start to make serious money, the likelihood is next to zero that they could reach the same income level in an engineering capacity (they'd have to get very senior management positions at large corporations). Your situation is different.

For the overall economy, a bloated patent system with too many examiners and too many patent attorneys is a waste. It's a waste because Europe needs scientists and engineers to create true innovation.

Let me tell you about my own perspective, too. I've been fortunate to do some really interesting patent-related work for some time without ever having received formal training. Last year I founded an app development company and closed down my consulting firm. I've also reduced my patent-related blogging a lot, as you can see in the right column here. It's so much more enjoyable to create "real stuff" that people will use (I'll launch both games early next year) than to deal with discussions of what the state of the art was in 1997 or how a certain claim term should be interpreted. I don't want to be a hypocrite: I'm convinced I'll make far more money with my apps than I ever would have with consulting (and my consulting business was actually quite successful in all respects). But even if I knew that I was going to make only half as much money in app development, I would still prefer it by a wide margin.

It's self-delusionary for you to think that the EPO is the best place for you to work, or the best place for you to promote innovation. Start a new life. European industry needs you to build, for example, electric and self-driving cars before that market will be dominated by Silicon Valley companies. Your scientific knowledge, your overview of the state of the art, your experience in analyzing technologies, your ability to express yourselves in the three official languages of the EPO -- those assets are underutilized where you presently are.

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