Wednesday, July 15, 2015

Leadership of European Patent Office blocks examiners' access to directory of potential prior art

Somehow the leadership of the European Patent Office manages to demonstrate at least once per month in one or more contexts that it is far more concerned about public debate and the consequences it could have on some people's posts there, and far more interested in self-aggrandizement and self-service, than it is focused on the organization's number one job, which is not primarily to grant patents but actually to prevent bad patents from being granted. If its primary task were (as the EPO leadership misrepresents its responsibility all the time) to grant patents, the organization could be 10% of its current size and would still be overstaffed because it would merely have to publish substantively-unexamined filings, check on simple formalities, and collect fees.

What the EPO's leadership also demonstrates month after month is its utter contempt for fundamental human and, especially, workers' rights. Politicians are increasingly aware of this.

No European (EU and non-EU; the EPO is not an EU body) institution has ever been in such a terrible crisis as the EPO. The use of hidden cameras and keyloggers (even in areas accessible to visitors) was approved by the organization's data protection officer for no reason that anyone could seriously consider sufficient justification for such a measure. The alleged wrongdoings had nothing to do with decisions on granting, rejecting, upholding or revoking patents. There was no physical threat to anybody at the EPO. The organization's leadership just couldn't accept that a member of a board of appeal distributed information concerning an EPO vice president who is innocent until proven guilty but failed to convince a court in his native Croatia that a journalist should not be allowed make allegations of the kind that would be more than enough for an honorable and reputable organization to replace him.

The latest from the EPO is that its staff can no longer access the TechRights blog, which is written by a free and open source software activist from the UK, Dr. Roy Schestowitz. Here's a letter, dated July 10, that the Central Staff Committee of the EPO wrote to complain about this act of censorship (this post continues below the document):

15-07-10 EPO Central Staff Committee Re. TechRights by Florian Mueller

TechRights had also heard about this issue from internal sources ("European Censorship: Tyrants of the EPO Blacklist Techrights, Web Site Not Accessible Office-Wide"). TechRights has been very critical of the EPO's president and the aforementioned vice president, as well as the overall leadership, for a long time. It's not known whether the two posts on the EPO that TechRights published shortly before the censorship played a role:

I, too, have had my disagreements with TechRights, and often felt treated unfairly and subjected to conspiracy theories. Its political positions are clearly to the left of mine. And again, Mr. Topić is innocent until proven guilty, and while I linked to TechRights stories on his legal matters in Croatia, I have no opinion on them other than what I've said before: the Administrative Council of the EPO is not doing its job because otherwise it would replace him just for reputational reasons rather than take the risk that there ultimately turns out to have been some fire behind all the smoke. Unfortunately, the Administrative Council is in cahoots with the EPO president, who in turn is in cahoots with his closest circle of friends and trusted sidekicks.

Here's by far and away the biggest problem that I have with the EPO's decision to block its employees' access to TechRights:

Patent offices should not block examiners' access to anything because prior art can potentially be found anywhere, either directly or indirectly.

It's less likely in the case of TechRights that one would find prior art directly on that site because it's not a source code repository or technical documentation site.

However, it's anything but unlikely that someone researching information about technical innovation relating to Linux and numerous other free and open-source technologies could find useful links there. TechRights has been around for almost a decade (almost twice as long as this blog) and opinionated posts on policy issues are not the only thing it publishes. TechRights very frequently (mostly on a daily basis) provides link collections such as this one, which contain numerous technical news from the free and open source software community. It doesn't own those links exclusively, so theoretically examiners could discover the same information elsewhere, but as a matter of principle, examiners should have all tools, repositories and portals at their disposal when they go on a search for prior art.

A patent office that is serious about patent quality should not take even the slightest risk that an examiner may, due to the blocking of a website, fail to identify prior art that could prevent a bad patent from issuing.

It also--another important consideration--shouldn't prevent examiners from educating themselves about the state of the public debate over patent policy. TechRights follows European and U.S. patent policy. I'm not saying that it provides exclusive insights, nor would I vouch for its accuracy in all respects, but there can be no doubt that it does provide, and I mean this nonjudgmentally, a unique perspective on things.

EPO staff can still read TechRights at home or on mobile devices, a fact that makes this attempt at censorship absolutely ridiculous. But it should also have access from its desktop computers at work just in case anyone finds links to prior art there.

The EPO leadership has just scored an own goal: by blocking access to TechRights, it has now raised the profile of that blog.

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