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06.17.15

SUEPO to SUE Government of the Netherlands for Protecting the EPO’s Thugs

Posted in Europe, Patents at 5:59 am by Dr. Roy Schestowitz

de Volkskrant front page

Summary: The EPO’s abuses culminate in another lawsuit, this time a lawsuit against the selfish political system which harbours these abuses

THE EPO cannot seem to manage the media, which has increasingly turned against it in a very vocal way. Last week we wrote about de Volkskrant slamming the EPO, and not for the first time, either.

After much abuse in Netherlands (we last summarised it on the ninth of June) there is a lawsuit from SUEPO.

SUEPO has this translation of the Volkskrant article. Translated into English it states:

The boss of the European Patent Office posing on the organisation’s 40th anniversary in 2013 © EPA

Government in court over malpractice at the Patent Office

SUEPO, the Staff Union of the European Patent Office (EPO) is taking the Dutch government to court. In February, the Court of Appeal ruled that the EPO in Rijswijk is breaching human rights. Despite this, the Dutch government has not intervened, while Suepo is of the opinion that it should.

By: Anneke Stoffelen 9 June 2015, 06:00

At the five EPO offices, each day the patent researchers consider European patent applications for every imaginable kind of invention and product, from diving goggles to rockets. The Dutch office, based in Rijswijk, employs 2,700 staff.

In February the Appeal Court in The Hague ruled that the EPO is acting in conflict with the European Convention on Human Rights. © ANP

For some time now a vehement conflict has been raging between the staff and the French president of the organisation, Benoît Battistelli, who according to SUEPO is conducting a reign of terror. Battistelli has been unilaterally implementing changes to working conditions. For example, from now on long-term incapacity for work can only be established by a doctor appointed by Battistelli. Staff who express criticism can expect reprisals.

In February the Court of Appeal in The Hague ruled that the EPO is acting in conflict with the European Convention on Human Rights. The ruling states that the executives of the organisation may not frustrate the work of the union and must stop blocking e-mails from Suepo to the staff.

Legal immunity

However, the EPO says that it can ignore the ruling because as an international organisation it enjoys legal immunity. ‘The aim of that is to ensure the integrity of the organisation and to protect its neutral position against national interference’, Battistelli stated in an explanatory letter to staff. The EPO has lodged an appeal against the ruling with the Supreme Court.

The Ministry of Justice is also of the opinion that the ruling by the court of Appeal cuts no ice. In response to clarification requested by MPs, Minister Van der Steur (Justice) wrote ‘Enforcement of the ruling would be in conflict with the Kingdom’s obligations under international law’.

Van der Steur did however say that as a host State the Netherlands shall ‘urge dialogue with the EPO in order to resolve the conflict between the staff and the management’.

Financial interest

However, the government also has a financial interest that means it won’t come down too hard on the EPO. The economy does well from the establishment of international organisations on Dutch soil. In Rijswijk, the EPO is currently building a new office for more than 200 million euro.

According to lawyer Liesbeth Zegveld of SUEPO nothing appears to have changed. ‘After the ruling in February we waited a while to see whether anything would improve at the EPO. That has not happened.’ According to Zegveld the government may not look on passively when human rights are being breached on Dutch territory.

Social dialogue

In the meantime the EPO has hired in the controversial British firm of risk consultants Control Risks in order to investigate its own staff.

The management of EPO points out that a ‘social dialogue’ has started in recent months, in which staff representatives can express their opinion about the policy being pursued.
According to SUEPO those discussions are for appearances’ sake only. ‘The staff are not being listened to and all of the deteriorations in the working conditions remain in place’, says a SUEPO member. ‘Battistelli is only organising the meetings so that he can later say to the judge: look, we’re doing our best.’

In the meantime the EPO has hired in the controversial British firm of risk consultants Control Risks in order to investigate its own staff. A spokesperson says that they are only investigating when there is suspicion of misconduct. But according to lawyer Zegveld union representatives and elected staff representatives are being investigated systematically.

French and German translations are also available in this PDF (copied here in case Benoît Battistelli and/or his circle of thugs try to force it offline, as they sometimes do, e.g. in Croatia).

Innovation Act/PATENT Act: No Reform (for People) to See Here, Move Along

Posted in America, Patents at 5:30 am by Dr. Roy Schestowitz

Reform jokeSummary: Corporate media continues its obsession with a so-called ‘reform’ that simply is not; it’s an accelerated passage of wealth to large corporations

THE so-called ‘PATENT Act’, as we have explained before [1, 2, 3, 4], won’t tackle the big abuses but only solidify them. The biggest abusers will become more powerful.

“These are not reforms. These are reminders that corporations still get whatever they please in Washington.”US politicians, who are funded by the biggest abusers, happily let nothing substantial change (definitely not scope of patenting at the USPTO). The House Committee lets through the so-called ‘Innovation Act’, another misleadingly-named output of lobbyists and corporations that they work for. There are news headlines that mention the corporations-leaning brand ('Innovation Act') by name [1, 2, 3, 4, 5, 6, 7, 8, 9] and many more that do not [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22]. Having reviewed these, we discourage our readers from wasting time on these. What we have here is fee shifting (legal costs) to the smaller entities that already struggle with such fees, unlike large corporations (they have full-time staff for that). If there’s any ‘reform’ here, it’s just the empowerment of large corporations. “America Invents Act Cost the US Economy over $1 Trillion,” says this alarmist headline from Patently-O. It’s a propaganda piece from “President of New England Intellectual Property, LLC” (legal firm) and we are surprised that even Dennis Crouch, who runs the site, let in such sensationalist BS. The ‘reform’ is more about passage of wealth. More to the billionaires, less to the rest of us. The farcical claim of “Cost the US Economy over $1 Trillion” reminds us a great deal of anti-Snowden propaganda with similar kinds of headlines (alluding to estimated ‘costs’ or losses incurred bt the NSA leaks).

The PATENT Act (not Patent Reform) has been reduced into something which everyone is happy with, except the public. Corporate coup is what it really is and as TechDirt correctly points out, it has “basically been watered down to nothing”. Apart from this good article from TechDirt (the corporate media and lawyers’ sites are largely off point) there is also this piece from Brian Fung, who wrote: “The head of a powerful House committee faces a potential revolt from fellow lawmakers — some of them from within his own party — who believe a bill targeting abusive patent lawsuits is being watered down.”

Really? It took them this long to realise that lobbyists have hijacked and diluted every meaningful change that does not aid corporations?

Whether these so-called ‘reforms’ pass or not isn’t all that important. These are not reforms. These are reminders that corporations still get whatever they please in Washington. The system is rigged.

A Glance at Free/Libre Software Foes With Their Software Patents

Posted in Apple, Free/Libre Software, Microsoft, Patents at 4:44 am by Dr. Roy Schestowitz

Summary: A quick roundup of news of interest about patent abusers, especially those who jeopardise the freedom of software

“Ray Niro, one of the lawyers who pioneered the wave of contingent-fee patent litigation, says he’s ready to exit the business,” according to an article cited by a patent trolls expert. Given all the things we have seen coming from Niro, this sure seems like a relief. As Mike Masnick put it: “Anyone remember Ray Niro? He’s the lawyer who so perfected patent trolling that the term “patent trolling” was first used (by future patent troll Peter Detkin) back in the 1990s to describe… Ray Niro for his lawsuits. Niro was the original uber patent troll, demanding settlements and suing all sorts of people. Perhaps his most famous move was that he had control over a patent that he argued covered any use of a JPEG image — and would use it to go after basically anyone who displeased him (if they had any JPEGs on their websites). This included the Green Bay Packers and a resort in Florida. When noted patent system critic Greg Aharonian described that patent as “crap,” Niro sued him for infringing on it as well. Niro also put a bounty on the identify of an (at the time) anonymous blogger who called himself the “Patent Troll Tracker.””

Meanwhile, the world’s largest patent troll IV (which now targets companies that distribute Android) fights more companies in court (not through shell entities/proxies but directly) and another infamous troll, Vringo, targets ZTE (which also distributes Android). Vringo has been behind plenty of anti-Android and anti-Google actions. There are Microsoft connections as we pointed out before (Microsoft gave Vringo patents with which to attack Microsoft’s competition), just like in IV’s case.

Microsoft itself is now being accused of infringing on ‘out-of-band’ patents. As the Washington Examiner put it: “A New Jersey-based software company has filed a lawsuit against Microsoft Corp., alleging the computer giant is infringing on three of its patents.

“StrikeForce Technologies Inc., headquartered in Edison, N.J., filed its lawsuit against Microsoft in the U.S. District Court for the District of Delaware June 5.”

Apple, being Apple, is hoarding more patents and its promotion sites celebrate this [1, 2, 3], even if Apple is a patent aggressor with a notorious track record (especially against Samsung). Samsung too is making headlines for some of its latest patents (Samsung is one of the top companies when it comes to patent numbers in recent years, but it’s hardly an aggressor).

Ericsson, acting similarly to patent trolls in Europe (yes, even in Europe!), is still chasing Apple with patents. Sometimes Ericsson feeds trolls with patents, hurting not only Apple but also Android (which Ericsson itself uses).

Apple’s patents are especially annoying because some of them limit the freedom to develop in my field, computer vision. Here is a new article which alludes to “Apple’s camera software patents.” It says that “June’s co-founders seem like the right kind of people to bring this product to reality. CEO Matt Van Horn helped found Zimride, which spun off the popular ride-sharing service Lyft. Nikhil Bhogal, who serves as CTO, designed the camera software used on the first five generations of the iPhone, and is listed as an inventor on many of Apple’s camera software patents.”

Software patents are still the leading issue, especially if one minds the freedom of software (without it, there is no secure software, among other things). The media does not entertain this debate anymore, or hardly ever does. It’s all about “trolls” now.

Microsoft is Trying to Subsume GNU/Linux and Free/Libre Software

Posted in Free/Libre Software, GNU/Linux, Microsoft, Novell at 4:02 am by Dr. Roy Schestowitz

K. Y. Srinivasan

Summary: Promoting a future of subservience to Microsoft even when it comes to GNU/Linux, Android, and Chromebooks

“Embrace, Extend, Extinguish” (EEE) is alive and well at Microsoft. The word subsume is defined as “to include or place within something larger or more comprehensive,” so it’s a good word by which to describe Microsoft’s treatment of GNU/Linux and Free/libre software, be it in Azure or Cyanogen etc.

Microsoft hired Mr. Srinivasan (above) from Novell to help subsume Linux, the kernel. We are concerned about this latest personality grooming from the Linux Foundation, having noted Srinivasan’s role before [1, 2, 3]. Grooming the Microsoft developers who help Microsoft subsume Linux is not wise. The Linux Foundation presents Srinivasan as “an architect in the Windows Server Division at Microsoft where he focuses on making Linux run well on the Hyper-V hypervisor and Azure cloud environment.” In other words, this man puts GNU/Linux in Microsoft’s hands, managed by proprietary software with back doors. Great, eh? As we wrote last week, it’s an entrapment. Microsoft is trying to do the same thing to Android, putting software that captures users’ voice in it (transmitting it to Microsoft, a notorious privacy violator). Microsoft-friendly authors are right now celebrating the extension of Microsoft’s spying network Skype (with NSA access) to GNU/Linux and Chromebooks. What a terrible thing to be doing.

The stupidest suggestion one can come up with right now is Microsoft buying a GNU/Linux vendor or anything along these lines, but corporate media (Fortune) has Barb Darrow say that it “makes sense for Microsoft to buy hot cloud startup Docker” despite Docker being quite closely tied to GNU/Linux (or UNIX). “Other emerging startups like CoreOS and Mesosphere are also working on capabilities that compete with what Docker’s cooking,” Darrow wrote. “And then there’s the aforementioned Google Kubernetes, which is also open source and free, and also promises similar capabilities. Some analysts have said that the product works better than Docker’s nascent orchestration features.”

Docker already responded to this nonsense, saying that it’s not for sale, but the Microsoft-friendly, Bill Bates-bribed media (yes, he subsidises them) released this puff piece which sells the ‘new Microsoft’ illusion. Microsoft's booster Tim Anderson, in the mean while, contributes to the openwashing of Microsoft using abandoned software.

Microsoft has not changed and it is definitely no friend of GNU/Linux and Free software. The Fortune article (finance-leaning) shows what non-technical writers can do when they don’t actually understand what containers are and how they work (unless it was intentional propaganda). Microsoft buying Docker makes as much sense as Coca Cola buying Nokia or something bizarre like that. Do editors even check what they print? Is this just agenda disguised as an article?

More Political Interventions in EPO Abuse Cases

Posted in Europe, Patents at 3:30 am by Dr. Roy Schestowitz

Benoît Battistelli

Summary: EPO abuses are attracting more political attention, leading to complaints and concrete steps/actions. Articles continue to come, highlighting more of them.

A YEAR ago staff of the EPO complained, but the media did not and politicians certainly did not. The landscape is profoundly different right now because any European politician who follows the press must know about the EPO scandals and utter lack of oversight. Here is a very detailed and helpful summary from Merpel, reporting on what has happened this year (so far). “The social reform programme is being pushed through,” she wrote, “just as Mr Battistelli announced at the end of 2014. However, given that Mr Battistelli has refused to authorise a full complement of staff representatives on the committee that oversees such proposals, it’s hardly surprising that the 10 loyal managers voted his proposals through over the heads of the 9 staff members and an empty seat.”

Battistelli continues to run an authoritarian and oppressive regime. Anyone who does not agree with him will likely find his or her way out and anyone who dares to speak about Battistelli and his cronies negatively behind their back will most likely be accused of “defamation” (that’s what Battistelli calls facts). We have covered some of the facts for nearly a year now and we cataloged everything chronologically. There will shortly be another summary from us, it’s just that things are moving too fast at the moment (this month has been the busiest, with the highest volume of posts on this subject). It’s too dynamic to be worth documenting or summarising just yet.

“In a well attended General Assembly,” writes SUEPO, “staff of the EPO adopted a resolution to be sent to Heiko Maas, Federal Minister of Justice and Consumer Protection. The letter informs Heiko Maas of the investigation of staff representatives and/or union executives by the company Control Risks during the trilateral talks on union recognition.” (source: “Letter to Heiko Maas, Resolution adopted by staff of the European Patent Office” at suepo.org)

Here is the letter [PDF] in German. Translations would help expand the scope/reach of this letter, so we invite readers to help.

“Letter to EU commissioner Elzbieta Bienkowska,” says SUEPO, was also sent. It was sent to the “JURI committee and the Members of the Policy Department C (Citizen’s Rights and Constitutional Affairs) of the EU Parliament.”

Here is the letter [PDF] as HTML, excepting the annexes and other material which was published here before:

To,

the Commissioner ElZbieta Biefikowska,

the JURI Committee, via Pavel SVOBODA
(Chair) and,

the Members of the Policy Department C (Citizen’s Rights and Constitutional Affairs) of the European Parliament, DG Internal Policy, via Dr Udo BUX (Department administrator)

All by e-mail

Amsterdam, 12 June 2015
Our ref. –
Your ref. –

Direct tel.nr: (020) 344 62 15
Direct faxnr: (020) 344 62 01

Re: “The European Patent Office State of Play — In depth analysis for the JURI Committee”

Dear Ladies and Gentlemen,

As counsel of the Staff Union of the European Patent Office (SUEPO), we would like to ask your attention for the following.

SUEPO has read the above-mentioned document with interest. Please allow us, however, to complete the picture portrayed in the report with the following considerations.

While the EPO is undoubtedly capable of providing the EU with valuable services in respect of the Unitary Patent, there are serious concerns that its internal structure does not meet the standards of transparency and labour

____________

1 http:/www.europarl.europa.eu/RepDat2/etudes/IDAN/2015/519208/IPOL IDA(2015)519208_EN. pdf


12 June 2015, page 2

conditions which the EU institution expect of themselves. This project will be in jeopardy if it relies on a system in violation of fundamental human rights and on deficient labor conditions, and if staff performing quasi-judicial work does not enjoy internationally acceptable and agreed legal standards. Let us explain this.

1.On 17 February 2015, the Dutch Court of Appeal in The Hague2 found that the EPO is in breach of fundamental rights, relating to the staff union’s freedom to operate and bargain. The EPO has however refused to remedy the situation. While formally claiming immunity from execution, the President of the EPO has suggested that the Judges of the Dutch Court of Appeal are ignorant and incompetent. In line with this attitude, the EPO has systematically turned down requests for professional mediation to restore social peace. All of this should be seen as an alarm signal about the way the Rule of Law is perceived by the top management and the Administrative Council of the EPO.

2.Another example of deficient labor conditions and the EPO’s far reaching use of powers, is the organisation ́s commissioning of an external company, Control Risks, to carry out investigations and interrogations on elected staff representatives and union officials who voice criticism of the management policies of President Battistelli (Annex 2).

3.Furthermore, according to a recent press report (Annex 3), the EPO has installed machinery to hack the communications from a number of PCs installed in the public areas of the EPO’s premises. Please be also be aware that data protection in the EPO appears to be woefully inadequate (Annex 1).

4. The EPO has drastically weakened the position of vulnerable staff, in particular sick staff. Such staff members are put under increased pressure bordering on systematic harassment. Their freedom of movement as European citizens is severely curtailed. Measures to safeguard medical confidentiality have been weakened. The EPO has gone as far as abolishing the notion of occupational diseases and accidents.

5. Independent sources have found that there is currently no effective mechanism in place to resolve legal disputes. The dispute resolution system is dysfunctional and burdened by huge backlog that de facto leads to such delays as to deny justice for staff. The Administrative Council of the EPO, at the behest of the President and without any democratic control from the Member States, enacts rules and decisions that are not subject to any independent legal or political check other than financial considerations.

____________
2 http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2014:420
Translation in English: http://www.suepo.org/public/su15088cpe.pdf


[...]

EPO data protection is not in line with EU institutions

1.The President of the EPO recently (with effect from 1 April 2014) adopted new guidelines for data protection at the EPO. He did so without informing, let alone consulting the national delegations of the Administrative Council, the body supervising the EPO. The new guidelines have drastically enlarged the scope of the data protection guidelines previously in force: the new guidelines now also concern external users of the EPO, e.g. patent applicants. It is questionable whether European Patent Convention gives the President of the EPO such a competence, cf. Articles 10(2)c) and 33 of European Patent Convention.

2.The new data protection guidelines are not in line with general regulations on data protection applicable to EU institutions and EU public on the territory of the EU (cf. Regulation EC 45/2001 & Directive 95/46/EC). They do not provide the necessary safeguards for the persons or entities affected both inside the EPO, e.g. staff or contractors, and outside, e.g. patent applicants or companies. They do not provide the required independence and authority of the data protection Officer. They miss a function equivalent to the Data Protection Supervisor that exists in all EU institutions. The way the data protection guidelines are currently implemented at the EPO would not be considered as adequate in any EU institution.

3.The reference to fundamental rights, present in both the Directive 95/46/EC and in Regulation (EC) 45/2001, and that was present in the previous EPO data protection guidelines has are been removed from the new EPO guidelines on data protection.

4.Whereas in the EU institutions, data can only be processed for purposes other than those for which they have been collected under very strict conditions, at the EPO, the President is able to decide on a change of purpose, without anybody being able to oppose it.

5.The new data protection guidelines have been drafted to remove any obstacle to the implementation of the controversial – and legally challenged – EPO investigation guidelines. For instance, the EPO guidelines give the EPO investigation Unit the right to operate without any control from the Data Protection Officer.

6.In view of the above, a check by the appropriate EU body seems appropriate before entrusting the EPO with the granting of the Unitary Patent.

[18 more pages in the original PDF, includes news clippings]

SUEPO writes in reference to this article which we covered last week: “The Süddeutsche Zeitung reports that Thomas Petri, the Bavarian Data Protection Commissioner wants to have an external data protection supervisor deployed at the European Patent Office. It has become a matter of public knowledge that publicly accessible computers at the EPO were placed under observation using surveillance technology after the receipt of letters containing [allegedly] defamatory remarks against the Management.

“Data Protection Commissioner Petri previously investigated the data protection arrangements at the EPO in the Spring of 2014 following a complaint and he came to the conclusion that they were deficient. “It emerged that nobody was really in charge”, told Petri.”

Privacy violations are only few among many bigger violations. Members of the French Parliament slam the EPO, perhaps owing to media coverage that keeps them abreast. “The Huffington Post,” wrote SUEPO about this article, “a website partly owned by Le Monde, published a tribune signed by Members of the French Parliament, the French Senate and the European Parliament.

“The signatories regret that the success story of the European Patent Office is “now endangered since 2012 by authoritarian social policies which do not respect the fundamental rights of staff”.”

If any of our French-speaking readers can provide a translation, that would help a lot.

Articles about the EPO’s abuses (at management level) would discourage potential staff and harm recruitment of talent. Who would want to work for an institution that ignores EU law, defies court orders, uses keyloggers against staff, and has the reputation which increasingly mirrors FIFA’s?

The EPO quickly became synonymous with a corrupt “ogre”, much like FIFA. As IP Kat put it yesterday,: “If you thought that the European Patent Office (EPO) was the only international intellectual property administration that was coming under the scrutiny of an increasingly critical world for behaviour that ill befits its status, think again: the African Intellectual Property Organization — better known by its French acronym OAPI — seems to be suffering from the same malaise.”

So EPO has become a yardstick for abuse. There’s clearly an urgent need for a reset. The problem is not the examiners but those at the top who rally them to expand scope and pursue quantity, not quality, while squashing their ability to antagonise.

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