Monday, 9 December 2013

R 15/13 – An Angry Man

This petition for review deals with one of those cases where emotions run high during the oral proceedings (OPs). The professional representative of the patent proprietor, whose patent had been revoked by Board 3.5.03 (case T 2198/10), had the very bad idea of using very strong language in the petition.

In the course of the proceedings, the patent proprietor dissociated itself from the “inappropriate or defamatory comments” made in the petition.

The representative then apologised in a letter and confirmed the apology in the OPs before the Enlarged Board (EBA).

The petition was found to be clearly unallowable. The decision contains an interesting paragraph dealing with the emotional style of the petition, and possible consequences as to its admissibility.

[4] It appears to the EBA that the petition was filed within two months of notification of the decision in question, that the petitioner was adversely affected thereby, that the prescribed fee has been paid in time, and that the petition complies with R 107(1)(b).

[5] As regards R 106, the EBA notes that the petitioner argued, as regards the alleged fundamental procedural violations to which it ultimately confined its case, that it could not make an objection under R 106 because it only knew of the violations on reading the written decision. That argument is called into question by the petitioner's own letter of 15 April 2013 […] in which Dr. V. makes allegations about the reasons for the decision (and the partiality of the Board of Appeal) even before the written decision was issued. However, since the petition is in any event clearly unallowable, this matter need not be decided.

[6] The petition was written in a highly emotive style and included a large volume of derogatory language, much of which (for example, “fabricating the decision”, “partiality”, “stolen patent”, “jealousy and outright bad faith”, “aggressive and corrupt”, and “fraud”) was excessive and without apparent basis in the petition. The EBA considered accordingly whether the petition was “in a reasoned statement” as required by A 112a(4). However, in view of Dr. V’s apology (in his representative’s letter of 18 September 2013) for his use of such language and the actual withdrawal of the offensive allegations at the commencement of the OPs, the EBA did not pursue this further.

[7] Accordingly, the EBA does not find that the petition is clearly inadmissible.

When you have to let off steam, don’t do it in a petition. Buy a punching ball, the use of which will not leave traces in the patent register and in the minds of the judges. And you will not have to apologise afterwards.

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.


Roufousse T. Fairfly said...

Phew, that one's a real beauty!

I thought it was yet another unrepresented private applicant, but it's even better:

That inglourious petition for review was signed by an EPA (I checked the database), who by sheer coincidence (?) bears the exact same name as the original inventor/applicant.

The patent was sold/licensed to a "Patentverwertung" company (I don't want to use that "T" word), and litigated, but was ceded (or tossed?) back to its original owner after the verdict of the BoA was rendered.

The Americans have an adage about lawyers representing themselves, don't they? ;-)

There are two "divisionals" filed in 2007 and 2010 currently pending.

Manolis said...

Roufousse, it is also mentioned in the decision, 2nd paragraph:

"The petition was filed by "Dr. V" who is a European Patent Attorney and the petitioner's professional representative, the inventor of the patent in suit and the managing director of Ladybird Innovations Oy. According to the petitioner's sub-authorised representative, Dr. V. has over seventeen years personally invested considerable funds in the invention the subject of the patent."

Anonymous said...

Maybe Dr. V should start a joint transatlantic practice with Mr. Andrew Schroeder...

Anonymous said...

"The Americans have an adage about lawyers representing themselves, don't they? ;-)"

Probably they do, but I don't know what it is. I would be curious to know it.

oliver said...

Thanks for the Schroeder reference. I am speechless.

sam bergstrom said...

yeah, Dr. V's letter is cold coffee compared to Mr. Schroeder.

The adage in question is, "A man who is his own lawyer has a fool for a client."

Roufousse T. Fairfly said...

Thanks Manolis,

I skipped the introduction of the EBoA decision and went straight to the conclusion, and paid more attention to the remainder of the procedure. I'm usually quite interested in knowing who the parties are, and whether I recognise any names.

The reason why I checked the EPA database is that in one case of mine a private inventor signed "The professional representative", apparently without understanding the meaning of the word. (He also had problems with notions such as "added subject-matter", "novelty", etc.). When I suggested as subtly and diplomatically as possible that a "real" EPA should be consulted, the applicant went very slightly ballistic.

One of the divisionals is quite interesting. The applicant filed the requests that were canned by the BoA, and is making a fuss about the relevance of Art. 111(2) and Res Judicata, arguing that the parties are not the same. The request for review was even filed, but without the apology.

It does have a feel of the applicant appealing an opposition decision rendered the BoA with a examining division responsible for another case...

From the reply filed 24.07.2013:

These points omit to mention th at also the facts have changed, with the filing of the petition. It is irrelevant whether the earlier decision entered into force when res iudicata is evaluated.

Facts have changed. Parties have changed. This situation has nothing to do with res iudicata.
and it would be helpful if the parties would not refer to this unrelated principle, because it is
already clear th at the current case does not concern it.

Instead of res iudicata, the question is: Is the decision of more senior administrators (Appeal
Board members) binding on more junior administrators (Examining Division members) in the constellation of the same request, when facts and parties have changed?

While command-chain considerations and the more executive position of Board members might in practice tempt to suggest so, the fact of the matter remains that the answer is NO.

Was the apology sincere? I also found this choice morsel:

The ED is further reminded that it is a common theme of any workplace in Europe th at more senior officials make mistakes and try to get the junior officials to cover them up. The EPO is no different. However, the EPC does not provide for this. The ED has no binding duty to more senior officials when facts have changed as shown in the Petition. The only duty the ED has is to examine the application vis-à-vis the facts and the EPC.

From this also follows th at any abuse of procedure should be squarely on the past Board members. The Applicant views himself as a victim, and is entitled to defend his rights.

Anonymous said...

I was going to comment that Dr V.'s letter was a doozy, but Mr. Schroeder takes the biscuit.


Anonymous said...

At what point does EPI get involved when authorised representatives submit questionable allegations against employees of the EPO or members of the boards of Appeal?

Anonymous said...

We circulated Mr Schroeders comments in the office.

While we all agreed that this is not helpful in winning over the examiner, unfortunately for the USPTO, we recognized most of the underlying criticisms of Mr Schroeder as valid concerns wrt the quality of US examiners.

The guy has a point, in fact several points.

Anonymous said...

"The guy has a point, in fact several points."

Oh, many of us have had such thoughts before. However, putting them in writing, in a letter which will become a matter of public record, is an entirely different thing.

Also, Mr. Schroeder didn't stop at insulting the hapless examiner...He seems quite an irascible fellow.

Anonymous said...

It seems this mr. Schroeder is suffering from a form of Tourette-in-writing?

PN said...

Any speculations as to why the opponent/apellant chose to withdraw the opposition/appeal after a decision had been pronounced at the end of OPs? I trust the opponent's representatives know G 12/91.

Myshkin said...

I can speculate that the proprietor closed a deal with the opponent, e.g. promising not to bother him with any of his divisionals in return for a withdrawal of the opposition.

The proprietor's letters of 15.04.2013 and 18.04.2013 could be interpreted as confirming this hypothesis.

The letter of 18.04 shows that the proprietor has a very special view of G 12/91. The opponent probably understood, though.