JUVE Patent: Why is Bayer so vocal about its opposition to oral proceedings conducted via video?
Jörg Thomaier: Bayer is being very vocal against the compulsory part of it, because we don’t see there being any power from the authorities to force everyone into video conferencing. We have the right to be heard, according to the European Patent Convention, and the right to be heard does not mean just calling in. Of course, on one level video conferencing is more than just being on the phone. But it’s still not the same as having a live discussion.
“The right to heard is not just calling in via video”
Which problems can arise with oral hearings via video conference?
I am not against video conferencing. I think it’s very useful for many things. It’s easy, there’s much less travelling, and it saves a lot of time and money. If all parties say, “Great, we’re going to do it on video,” then the office may do it on video. But in a central and important case, where a company takes a core patent and pays to defend it before the Boards of Appeal, you should be able to defend your patent.
A company must have the right to show up and look the other parties in the eye, because a lot of communication between people is non-verbal. It’s just not the same on video.
What about the number of parties?
Sometimes Bayer is involved in proceedings where we discuss our heavily-disputed plant patents. This can include up to 13 opponents – this is, to say the least, very difficult to manage with that many participants. Firstly, technically, because sometimes the systems break down and the hearings get messed up on the video.
Secondly, vivid discussions are slowed down in large video meetings with too many contributors. At least with the option of a hybrid hearing, some of these 13 parties will say, “Yes, we will attend but it’s fine to be there via video.” But other parties will want to be active.
What do you see as the alternative to compulsory video hearings?
I am pushing for hybrid hearings. If I am the defending party and want to be there to defend, I will be there. And if the attacking party says it’s OK on video, they should be able to participate by video.
When should the EPO hear an oral proceeding in person, as opposed to via video?
In a complicated case. There could be a lot of back and forth questions, which is much harder to do on video. Secondly, it’s down to the importance. I think that only being there in person could satisfy EPC Article 116 regarding fair treatment, so we would know that Bayer has done everything possible to defend an important case for the company. So, it comes down to importance and complexity.
How has Bayer’s experience been so far in video conference oral proceedings?
Video hearings are effective, and they do work. We did face some technical trouble because the technology used by the EPO is not always compatible, because like in many large companies we have a sophisticated firewall system. Sometimes, it is really complicated to get a stable connection to the EPO base and their system.
Currently, the Enlarged Boards of Appeal use Zoom, and the examining parties use Skype. I’m not saying they should use just one, of course they can enable others, but EPO as the service provider should be more flexible. But generally, I would say video does work. Sometimes it’s a bit difficult with filing amended claims and so on, because theoretically they need to be in writing and signed, but there are sophisticated solutions.
From an in-house perspective, how does conducting oral proceedings via video conference change the relationship with your counsel?
Firstly, because Bayer had technical troubles, we met in a large meeting room at the patent attorney firm. We dialled in, so our in-house team and outside counsel sat together in one room. We were still hindered by the masks we wore and the distance we kept. But we were at least able to directly communicate.
“After the pandemic, people are more likely to hire local counsel”
The other option is a separate chat channel, to ensure everyone can have the discussions that you would usually have over the table. But again, that’s a technical question which parties can resolve.
After the pandemic, I would imagine that there will be a greater tendency to hire counsel locally, close to your headquarters. Certainly, after the pandemic I will dial in from a conference room from Bayer, and our outside counsel will come in, so we can sit together.
Have any other companies – pharmaceutical or otherwise – filed such an opposition to the Enlarged Boards of Appeal?
There are some associations in which the discussion is the other way around, driven mainly by the non-pharmaceutical, non-life sciences industries. With some technology and in some industries, it is generally more about the number of patents than a single patent. But in the pharmaceutical and crop industry, one main patent tends to protect your product. If that fails, you’re done. So that’s where you’d say, I want the opportunity to be heard live.
On the other hand, I can understand the logic that some companies want a quick and efficient method. That’s where the EPO should also offer a hybrid model. If you look from the patentee’s perspective, it’s their opportunity to defend a patent. If the patentee loses the patent at the Board of Appeal in the appeal, it’s gone. It’s finally over.
“The EPO is obliged to have full and fair proceedings”
But if you are the attacking party and you lose at the Board of Appeal, in almost all countries you can still go to the regular court and try to attack the patent again. Nothing lost.
So I expect the voluntary ratio of full video hearings will not be as high as the EPO would like, because of the importance specifically it has for patentees. But from my perspective the EPO should live with it because their obligation is to have full, fair proceedings and processes to end up with validly-executed and examined patents.
Patent attorneys have put video conferencing under scrutiny for a lack of data security. Is this a worry for Bayer?
It was never a worry for us, as almost all patent proceedings are public. So even if someone comes in, then that’s OK. But data security falls under the title of a technical issue which parties can resolve. In MS Teams, the initiator can block the recording option for anyone. If the EPO issue the invites, which they should do if it’s a hearing, they can ensure that participants are not recording. So, it’s very rare that they are still in the prosecution period and still not published and secret.
What are your expectations for the outcome of next week’s G 1/21 proceedings?
It’s very difficult. After seeing how the Enlarged Board of Appeal decided on Rule 28, nothing is impossible. I have the impression that the corrective means for which the Enlarged Board of Appeal is in the European system did not work for Rule 28. Because, from my perspective, the EPO definitely overstepped what they could do, because they changed the law by regulation. But we are convinced that it would not be OK for the EPO to force people into video conferencing.
This interview was conducted by Amy Sandys
MTE 2021– COVID-19 INTERNATIONAL INNOVATION AWARDS
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Google wants to abolish degrees: they will be ‘replaced’ by 6-month certificates
Google will soon start accepting learning certificates issued by its experts instead of traditional university degrees: is this the beginning of a revolution?
Important news at Google. The web giant has announced its intention to abolish traditional degrees, replacing them with its own certificates of learning. The news comes directly from the official blog of the world’s most used search engine. Learning or career certificates are documents issued by Google experts to those who successfully attend online courses lasting about six months. These are lessons given by experts who deal with very technical subjects with an extremely practical approach. The courses cover subjects such as web programming, big data analysis, user interface design, social network management and the creation of online advertising campaigns. In all these areas, Google has declared its intention to consider its courses as equivalent to the four-year degrees awarded by traditional American and European universities.
Why does Google want to abolish degrees?
But why does Google want to abolish university degrees? According to statements by Mountain View executives, the goal is twofold and very noble. Firstly, replacing traditional degrees with career certificates would mean widening the pool of students who can acquire a degree. The cost of Google’s courses has not yet been revealed, but it should be around 300 dollars: much less than the cost of a university tuition fee for four years. The second objective of Big G is to facilitate the entry of young people into the labour market by providing them with effectively useful and immediately spendable skills. Google’s courses will be held directly by the company’s employees and will offer all the information needed to start working immediately.
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Has Tesla Acquired Another Innovative Battery Startup?
Everyone loves a good mystery, especially when it has to do with Tesla and a potential battery breakthrough. In regards to Tesla’s rumored acquisition of a Canadian battery startup, we know just enough to spin an intriguing story (at least we hope you, dear readers, will find it so).
Automakers are naturally secretive about their technologies, especially ones that are still in development. Tesla is certainly no exception in this regard, so we won’t expect the company to release any details about this matter any time soon. However, TechCrunch has pieced together enough from publicly available information to indicate that Tesla has acquired Toronto-based Springpower International, the developer of an innovative manufacturing process that could make Tesla’s batteries cleaner and cheaper.
At Tesla’s Battery Day last September, Senior VP of Engineering Drew Baglino described a new process for making nickel-metal cathodes. The current process generates large quantities of wastewater, which contains bits of metal, ammonia, and other toxic chemicals. The new process reuses water and produces little waste. Baglino said it has the potential to reduce operating costs by 75%.
Just a couple of weeks earlier, Tesla purchased a number of patent applications from Springpower International, one of which describes an innovative process similar to the one that Baglino mentioned. In Springpower’s process, “the bulk of the aqueous solution used for the wet chemical reaction can be recycled…so that the total process has little or no effluent generated during production of the cathode precursor material.”
Since then, Springpower’s former website has disappeared, and several of Springpower’s top techies are now working for Tesla.
Springpower was founded in March 2010, and received a $3.4-million grant from tech incubator Sustainable Development Technology Canada in 2018. James Sbrolla, who mentored the young company and helped it to secure the government grant, told TechCrunch that, although he hasn’t been in contact with Springpower lately, he wasn’t surprised to hear about the rumored Tesla acquisition.
“It’s a group of smart people, no question about it,” Sbrolla told TechCrunch. “Technology like Springpower’s gives tremendous upside with a reduced environmental footprint, and being attached to a larger organization makes scaling much quicker and easier.”
Acquiring Springpower would fit nicely with Tesla’s long-term goal of bringing more of its battery technology in-house. “Now that we have this process, we’re going to start building our own cathode facility in North America,” said Baglino on Battery Day. While the California carmaker will continue to use suppliers such as Panasonic, LG Chem, and CATL (for reasons of scale, if nothing else), it is always on the lookout for new ways to make its batteries safer, greener, and cheaper.
The new cathode manufacturing process is just one of many incremental improvements Tesla has in store for its batteries (and other components) and the techniques used to make them. Over the next few years, the cumulative results could be nothing short of revolutionary.
Nokia sharpens patent firms’ focus on diversity
Finnish telecommunications giant Nokia has launched its Equity, Inclusion and Diversity (E,I&D) Scorecard. The company will evaluate, via quarterly and annual quantitative and qualitative assessments, whether its panel firms are taking steps to implement an effective E,I&D programme.
Assessments will score law firms based on factors such as recruitment policies, pay equality, and availability of mentoring and pro bono initiatives. It also examines the percentage of billable work carried out by employees from different backgrounds, engagement with D&I organisations, and the presence of a dedicated E, I&D team.
For Nassib Abou-Khalil, chief legal officer at Nokia, the company’s visible commitment to hiring diverse teams is a fundamental aspect of Nokia’s future company direction.
In conservation with JUVE Patent, Abou-Khalil says, “Promoting inclusion and diversity is high on Nokia’s agenda, and we are collaborating with our suppliers and other stakeholders to make I&D a major differentiator to Nokia.”
“Practical examples include, for instance, trainings to suppliers and asking them to share their inclusion & diversity plans with us.”
The initiative is not unique to patent law firms, with Eversheds Sutherland, Roschier, Bird & Bird, Quinn Emanuel, McKool Smith, and Alston & Bird in the first participating group.
However, Nokia’s visibility in rolling out its programme should provide a benchmark for IP and patent firms going forward.
Steps in the right direction
Observers often criticise the European patent market for its lack of women and/or those identifying as Black, Asian or minority-ethnic in senior positions. The issue has recently come to light, for example, in the UK’s hire of two judges for its IP bench. Furthermore, recent studies have also discussed how to address the issue of ‘hidden disabilities’ and other, less obvious indicators of diversity such as sexuality and gender.
Thus, for larger, multi-jurisdictional patent law firms, the onus is on their ability to respond to market pressures. At historic law firms such as Bird & Bird and Eversheds Sutherland, as market demographics changed during the latter half of the 20th century, the companies began integrating equity, inclusion and diversity into their corporate strategies.
Nowadays, however, equity and inclusion often form part of hiring formulas and pitching structures. As such, patent firms tend to take such requirements more seriously. The kind of directive, such as Nokia’s EI&D scorecard, are becoming more widespread in IP and patent law.
If a potential client extends its own diversity requirements to the law firm, there is a greater chance of in-house and law firms sharing core values of equity and representation. Thus, it is likely that other in-house teams will follow suit in their law firm selection process.
Nassib Abou-Khalil says, “Overall, we are very pleased to see more focus being put on equity, diversity and inclusion topics in the legal industry, with more and more companies launching initiatives to promote diversity not only internally but through the companies they partner with.”
He continues, “Many companies, though, have opted for a carrot or stick approach. However, we have taken a unique approach to prioritise dialogue, collaboration and by helping partners drive change to create a more inclusive diverse and equitable legal profession.”
Boutiques offer fresh perspective
Some lawyers suggest that there is less opportunity for boutique law firms to fill diversity quotes. This is especially the case if the firm is based away from global cities such as London, which are known for having diverse populations. In other, less diverse cities, boutique firms can have greater trouble attracting and displaying a broader demographic of employees.
On the other hand, some boutiques are, alongside historic law firms, comparatively young. For example, Nokia also works with Arnold Ruess in Germany. Founded just ten years ago, its partnership is younger than some more longer-established firms. Such boutiques, created in a more modern era, have the ability to implement diverse practices from the outset. This is something that Nokia’s new initiative reflects.
Abou-Khalil says, “We chose the six panel law firms to pilot the scorecard with, and are planning to extend the scorecard to all law firms we use in the future.”
Women in front
One leading patent partner notes that the IP sector in general provides a good mixture of, for example, female partners across the board. However, in patent specifically, firms could do more to encourage applications from, and retention of, female patent attorneys and patent litigators at partner level.
Clemens-August Heusch, VP head of global litigation and disputes at Nokia, says, “As a sector of IP and patent law, life sciences and pharmaceuticals tend to attract more women. But engineering and mechanics are always one step behind.”
He says, “At Nokia, we are encouraging more women to take up STEM subjects at a high school and university level. There is absolutely no reason why it should always be men in this sector.”
Nokia’s drive for inclusion
Abou-Khalil says, “What makes Nokia’s approach unique is that it focuses on collaboration, partnership, support, and encouragement to create a network where Nokia’s Legal & Compliance organisation and the key law firms it uses hold each other accountable to progress equity, inclusion, and diversity representation.”
Abou-Khalil says, “Once we roll out the scorecard to all firms, they will not be alone in this improving their E, I&D practices, but will have the support of Nokia and a network of other companies to learn from. Our goal is not to put anyone at a disadvantage. Rather, to work collaboratively with all our law firms towards making a positive impact improving Equity, Inclusion and Diversity in the legal profession.”
And this initiative is not the first time that Nokia has extended a commitment to fostering greater diversity. In 2020, it launched a partnership with Diversity Lab, “an incubator for innovative ideas and solutions that boost inclusion and diversity in law… in collaboration with top law firms and legal departments.”
One example of its work is its “Mansfield Rule for Legal Departments 2nd Edition,” a movement to broaden the pool of eligible candidates in legal leadership positions.
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