Where there’s light there may be justice (unlike at the USPTO, where profit trumps justice)
Summary: A roundup of patent news regarding software in particular, with concerns about quality control both at the USPTO and the EPO
BEGRUDGINGLY but inevitably the USPTO will need to realign as per the SCOTUS‘ rulings and stop issuing abstract patents on software methods. This is definitely going to upset a lot of patent lawyers, but it’s not them who set the rules (they’re not objective as they have their own motivations, usually just money, not science). Gene Quinn has just gone bonkers again. He wants examiners in patent offices to be replaced (almost) by just a filing system and based on today’s IAM-hosted words of 'wisdom', the EPO may be sinking to Turkish patent standards, or looking for middle ground where there’s a “post-grant opposition system” (grant first, ask questions or sort out the mess later).
“What we have in common here is declining quality control at patent offices.”Based on this new article by Jakob Pade Frederiksen at MIP, the EPO’s “Appeal Board condemns examination delay” (that’s the headline). How about more than 12 years? Consider the following paragraph: “While the recently released EPO performance statistics for 2015 show an increase in the number of grants compared to the previous year and a decrease of backlog of searches by two thirds, delay in examination of pending cases is still of concern to some. A recent appeal decision rendered in the field of computer implemented inventions reveals that excessive examination delays do not amuse the Boards of Appeal. More specifically, in decision T 823/11 rendered in December 2015, Board 3.5.07 has ruled that duration of examination proceedings of more than 12 years must be regarded as excessive and amounts to a substantial procedural violation.”
What we have in common here is declining quality control at patent offices. It’s all about the money! And whose? But at the same time the courts compel the offices to admit their errors. Let’s look at some recent court cases. 2 days ago we mentioned Sequenom, which we had also mentioned last year and in 2014. Sequenom, based on this new report (“Sequenom Asks the Supreme Court to Clarify the Limits on Section 101″), is freaking out after SCOTUS eliminated many abstract patents. Based on this patent lawyer, on the other hand, “US Pat 8,180,858, Survived 101/Alice Attack in Delaware” (words like “Survive” and “Attack” make it sounds like “Alice” is a ruthless warrior rather than SCOTUS fixing patent law). “Prior Stats Were 8/10 Alice Kills,” notes the same patent lawyer, still associating software patents that got invalidated (because they’re bogus) with death. To quote the thing in full: “J. robinson of Dist. Ct. of Delaware Rejected 101/Alice Arguments in 4 decisions issued in past week; Prior Stats Were 8/10 Alice Kills” (meaning, the large majority of them are invalided by Alice when properly challenged in a court of law). One software patent can do a lot of damage in the United States; that is what I told this lawyer regarding this tweet (“US Pat 6,928,433, Apple Paid $100M for Infringing; Asserted Against 7 Others”) as it reminded me of other such Apple cases (the patent owner/assignee is Canadian in this case, just like i4i). All in all, wrote this lawyer, “11% of Patent Reexams Appealed to Beijing IP Ct. Were Reversed; 11% of PTAB Decisions Appealed to Fed. Cir. Have Been Reversed.” We actually consider this patent lawyer to be a “good guy” because he is quite honest and looks at the breadth of things, unlike people who read or write IAM ‘magazine’.
“The USPTO wants no legal challenges because hey, who needs quality control anyway?”In other news of interest, the Court of Appeals for the Federal Circuit (CAFC) has just demolished a gaming patent based on the aforementioned criterion. To quote a lawyers’ site: “Under 35 U.S.C. § 101, patent-eligible subject matter is defined as any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, with the caveat that laws of nature, natural phenomena, and abstract ideas are not patent eligible. The purpose of the exceptions is to prevent patents from preventing access to “the basic tools of scientific and technological work.” The examiner rejected the claims as directed to patent-ineligible subject matter under 35 USC § 101, taking the position that the claims were directed to an abstract idea as the claims attempted “to claim a new set of rules for playing a card game.””
On the other hand, or by contrast, “Computer Modeling Breast Prosthesis Survives 12(b)(6) § 101 Challenge,” said another site, also one that’s in the patent maximalism fold. Speaking of this fold, Lexology has just reposted two articles that we mentioned here some days ago [1, 2]. They amplify the patent maximalists’ messages (usually patent attorneys). Patently-O has been relatively quiet over Easter, but yesterday we found this update about the USPTO, where patent maximalism is embedded because of profit motives. To quote Patently-O: “The U.S. Government has also filed its responsive merits brief. The brief appears to be a joint effort of the Solicitor General (DOJ) and the USPTO and does a solid job of justifying its positions [...] The PTO is looking for a strong decision in this case to effectively shut-down the myriad challenges it is currently facing.”
“They tell us it’s good because “R&D” or something along those lines, neglecting to point out that a lot of Merck’s funding actually comes from taxpayers and the profits get pumped not into “R&D” (or even marketing) but pocketed by billionaires who own the company or have stakes in it.”The USPTO wants no legal challenges because hey, who needs quality control anyway? A lot patent lawyers (or their clients) just want it the easy way; they want to bombard the system with patents (not applications) and not ever face rejection. Wild West. Now there’s a whole new software ‘industry’ dedicated to fooling patent examiners into accepting bogus applications. That’s just another arms race and the potential gains are big (at someone else’s expense). To give this new example from MIP: “A jury in the Northern District of California has ordered Gilead Sciences to pay $200 million in damages for infringing Merck and Ionis Pharmaceuticals patents for compounds and methods used to develop medicines for the treatment of hepatitis C, including Sovaldi and Harvoni.”
So a massive company, Merck, will get to keep its prices artificially high while destroying a smaller company and taking away its money. They tell us it’s good because “R&D” or something along those lines, neglecting to point out that a lot of Merck’s funding actually comes from taxpayers and the profits get pumped not into “R&D” (or even marketing) but pocketed by billionaires who own the company or have stakes in it. So much for ‘innovation’.
Remember what patent offices were conceived and created for. Have we not lost sight of that? █
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Maybe the funding from patent trolls has something to do with it…
Summary: Whatever IAM says, it’ll never use the “T” word (trolls) or even acknowledge the existence of them
MR. Wild, editor in chief of IAM ‘magazine’ (basically a Web site), insists that the term patent troll is meaningless, even when given a definition of it from Wikipedia. We can almost empathise because it’s not easy for Wild, whose salary is partly composed of patent trolls’ payments, to acknowledge the problem.
“IAM hides the reality of it pretty well.”According to Wikipedia, Openwave “has changed its name to Unwired Planet” (for what we wrote about Openwave see these search results). It’s essentially a kind of patent troll. This new article from Wild neglects to say that Unwired Planet is basically a patent troll armed by Ericsson in order to do the ‘enforcement’ (extortion) without risking (counter) litigation. It’s the same kind of trick Microsoft uses against the competition, notably GNU/Linux/Android. What we find rather amazing/stunning/remarkable is that while reading IAM in general (as I have done for a few months, almost exhaustively) one can come across a lot of patent trolls and see them all groomed so well — to the point where they seem like legitimate companies. IAM hides the reality of it pretty well.
There are good reasons to boycott Rovi, for example, especially now that it’s going after the competition using software patents and also works with the world’s biggest patent troll (Microsoft’s troll), but one wouldn’t know this based on IAM ‘magazine’. They wouldn’t even call Intellectual Ventures a troll.
“They wouldn’t even call Intellectual Ventures a troll.”On patent trolls in China, to give another new example, IAM says almost nothing with the “T” word; it calls them NPEs to improve their image. Right here one learns about the “threat to Taiwanese companies by US NPEs” (they mean patent trolls). Where is the “T” word? What the author means to say is US patent trolls in Taiwan, including “Microsoft Licensing” (e.g. versus Acer's Linux, based in Taiwan), but with media like this, what are readers going to deduce? To quote a whole paragraph: “Of course, policymakers may simply have concluded that a wait-and-see approach makes more sense than a massive investment in patent aggregation at a time of uncertainty in the patent system – after all, the threat to Taiwanese companies by US NPEs has recently diminished somewhat. If the island does make another effort at setting up an SPF, it may even be advantaged by its late start. As far as I can see, the existing SPFs have largely focused their efforts on acquiring US patents up to this point. Would a fund starting out today pursue the same strategy, given the potential that we might keep seeing more NPE litigation in Europe and less in the US? There are certainly interesting models to study in neighbouring countries, and their public record of successes and stumbles will continue to grow this year.”
“Money on the table always contributes towards corrupting the media, which is why we, for example, issue no call for donations.”What we are trying to show here is that IAM, having accepted money from all sorts of patent trolls, is not telling readers the full story. Money on the table always contributes towards corrupting the media, which is why we, for example, issue no call for donations.
Mr. Wild is trying hard to discredit me in Twitter (using his personal account, not IAM’s), but maybe he should introspect instead and come to grips with what really drives the agenda over at IAM. He oughtn’t just blame the messenger who points this out. █
“Maybe this world is another planet`s hell.”
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Summary: More non-solutions to an actual severe (and growing) problem which boils down to low patent quality, notably software patents
The VENUE Act was covered here several times earlier this month and it’s now the word (or term) on many people’s lips, even friends of patent trolls, who in unrelated articles state: “The Venue Equity and Non-Uniformity Elimination Act 2016 would restrict patent suits to district courts where the parties are incorporated or where they have physical facilities tied to either the development of the technology at issue or alleged infringement.”
The VENUE Act, in spite of its catchy name, is not a solution. It’s just an effort to slow down the problem as it increasingly exacerbates, usually in Texas. “VENUE Act aims to lessen ease of filing patent lawsuits in Eastern District of Texas” says the headline of this new article. To quote from it:
A recently proposed bill in the U.S. Senate may be the key to curbing the rampant patent lawsuit abuse in the plaintiff-friendly Eastern District of Texas jurisdiction.
Proposed by Republican Sens. Jeff Flake (Ariz.), Cory Gardner (Colo.) and Mike Lee (Utah), the Venue Equity and Non-Uniformity Elimination Act (VENUE Act) targets a very specific part of the problem with patent abuse known as forum shopping.
“The VENUE Act would make it harder for companies to file a suit in districts that don’t have meaningful connection to the suit,” Daniel Nazer, staff attorney with the Electronic Frontier Foundation and Mark Cuban Chair to Eliminate Stupid Patents, told the Southeast Texas Record. “This bill is really about making sure disputes are filed somewhere that makes sense.”
Instead of allowing a patent owner to file wherever they would like, the bill requires an individual to bring a lawsuit in the city where the invention was created or where the company being sued is based or manufactures its product. In other words, small California startups would no longer be sued by a California inventor in the Eastern District of Texas if the VENUE Act was signed into law.
This is not the solution however. Like several ‘reform’ proposals before it, this merely serves to give the illusion that problems are being tackled even when they’re not. Another site, owned by a front group of large corporations to mostly focus on patent trolls, speaks about something called ITC reform, whatever that actually is (a little vague). Matt Levy (CCIA) writes:
The last couple of weeks have seen two good patent bills introduced, first the VENUE Act, and now the Trade Protection Not Troll Protection Act. This bipartisan bill closes loopholes at the International Trade Commission that patent trolls have been exploiting.
The International Trade Commission (ITC) is an agency whose main job is to protect American industries from unfair competition abroad. If a U.S. company thinks another company is importing goods unfairly produced, it can ask the ITC to investigate. If the Commission finds that the importer (called the respondent) has violated the trade laws (which include infringing U.S. patents), it can issue an exclusion order. The order instructs customs to block the products in question at the border.
The ITC handles a fair number of patent cases, because the ability to get an exclusion order is essentially the same as an injunction in district court. And that is where patent trolls come in.
The ITC has many problems, but that doesn’t mean that within the ITC (enforcement by embargo/sanctions) exists a solution to the overall problem, which is low-quality patents (e.g. on software) being granted with virtually no quality assurance. The USPTO increasingly looks like a filing office, not an examination office. We shall deal with that in a later post tonight. █
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A workaround that only patent aggressors and software patents proponents like IBM can coexist with
Photo source (modified slightly): The 10 Most Powerful Women in Technology Today
Summary: Oracle (from OIN) suing Google (from OIN) over Android (Linux-based) and seeking nearly $10,000,000,000 in ‘damages’ serves to show that OIN is not a workaround/solution to the key problem, which is software patents
Apple’s patent war on Android is still in headlines this week [1, 2, 3] and there are a lot of articles about Oracle‘s case against Android in our daily links. No doubt, given that Oracle had joined OIN, its attack on Android proved that OIN is far from a solution. Oracle wants to recover the cost of buying Sun by just using patents that Sun workers worked towards, along with copyrights. “The case will have major ramifications for software patents and licensing the world over,” this one report said.
Here is a new article about the Linux Foundation and OIN. To quote the relevant part/s:
Meeting legal requirements is one of the key elements that large software companies factor in to their release cycles. They have teams that check for software patents that may impact their code, make sure that every copyright is acknowledged and look at the detailed usage clauses in any third-party software that they use.
One of the reasons for doing this is to avoid expensive litigation from companies often referred to as patent trolls. These are companies that have purchased large software patent libraries. Their business model is to then use those libraries to bring lawsuits against developers and over the last decade we’ve seen a number of high profile lawsuits against companies such as IBM, Microsoft, Google and others. Some of these have been dismissed by the courts but others have been upheld costing hundreds of millions of dollars in both fines and costs.
While open source developers might think that they are immune from this type of issue they are not. It may be that a piece of software that has been released as open source is later alleged to have infringed a software patent. This would mean that anyone using that software could be found guilty of an infringement.
To help reduce the impact of patent claims Google, IBM, Red Hat, SUSE, NEC, Philips and Sony created the Open Innovation Network. The goal was to create a pool of defensive patents that could be used to protect Linux and developers using Linux. This has been successful with over 1946 companies signing up to the OIN to use their patents to defend themselves from attack.
When you work on software patents for a company — no matter how benign a company — you never know who will get/use them. See the response I got from Red Hat staff (Alexandre Oliva) after writing this, having called for Red Hat to stop pursuing software patents and defang all existing ones. As Oliva put it, “when I realized this, some 6 years ago, I started campaigning for Red Hat to turn its Patent Promise into an actual license, but no luck so far. until this major problem is fixed, no more patent applications from me…”
A longtime critic of OIN, Florian Müller, was among the first to point out that OIN was not effective because one OIN member (Oracle) sued another (Google). He now has this new post which says: “There’s an interesting parallel between Apple v. Samsung (meaning their first case, with respect to which the Supreme Court has granted certiorari) and the Oracle v. Google Android-Java copyright litigation: in both cases, most of the damages at issue are based on the theory of a disgorgement of infringer’s profits, and at first sight, the amounts claimed by the right holders appear very high. There are even more similarities. For example, in both cases, the defendants are key Android players. But there are also some important factual differences, not limited to the fact that design patents and copyright are different types of intellectual property.”
These high-profile cases come to show the dangers of software patents (Novell’s ended up in Microsoft’s, Oracle’s and Apple’s hands and Red Hat’s could end up anywhere, depending on who buys it and when) and the uselessness of OIN. The real reform people should campaign for is abolishment of software patents themselves. The next post will deal with other deficient reform ideas/strategies. █
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A series of articles which depend on input from sources
Summary: Relationships between the European Patent Office and Microsoft are explored further, especially inappropriateness therein
YESTERDAY we wrote about the EPO's special treatment of Windows users, whereupon we received some feedback about the Web-based alternative, which we already knew about (and it hardly changes anything we wrote anyway). In fact, one reader wrote to tell us about “Microsoft at EPO” and explained what Web-based means inside the EPO. To quote: “Interesting post about the EPO’s tendency to fraternise with the Dark Side. Thanks. It really is absurd in 2016 that the EPO should expect its customers to use Windows. However, the EPO is catching up; it also has a web-based portal, which is of course platform independent. Mind you, “platform independent” means something different in EPO-speak; it means that you can use the web-based portal if you are using Firefox (or something called “Internet Explorer”, whatever that is) on Microsoft Windows. You need an EPO smart card and a Gemalto USB smart card reader, but the EPO only supplies instructions for setting up the card reader for Windows. It is possible to install the reader drivers on a Mac, or on Linux, but the EPO is a bit coy about how this might be done. For Mac, you first have to phone EPO technical support, and they will email you the link to download the card-reader drivers (the link is not public, because Mac is unsupported). For Linux, you must first obtain the special phone number of an EPO IT guru, explain who you are and why you want to use Linux, and if he is in a good mood he will send you his own personal unofficial copy of the Gemalto drivers for Linux, while warning you of the tribulations which await.”
“Mind you, “platform independent” means something different in EPO-speak; it means that you can use the web-based portal if you are using Firefox (or something called “Internet Explorer”, whatever that is) on Microsoft Windows.”
–AnonymousWe are still hoping that someone will shed light on the financial/technical relationship between Microsoft and the secretive EPO (where checks and balances hardly even exist and the presidential contract was taken back into the dark when Battistelli took over).
In order to equip us with verifiable and undeniable information we are still pursuing leaks of Battistelli’s contract (which should not be secret in the first place, his successor shared hers) and we are also hoping that someone will leak the EPO’s contract with Microsoft (for IT) to us. We bet they grossly overpay, based on what we learned in the past and what some journalists told us. The EPO is very sensitive when it comes to people who explore its relationship with Microsoft, now increasingly notorious for corrupt contracts and bribes (with court rulings confirming this, so no point sending me more threatening letters, Mr. Battistelli). █
“I would love to see all open source innovation happen on top of Windows.” [even Ubuntu/Bash?]
–Steve Ballmer, Microsoft CEO
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Welcome to the new and ‘reformed’ EPO…
Airport-grade security checks have arrived at the EPO
Summary: A week after the Administrative Council’s historic meeting the EPO only gets more militaristic (shades of Martial Law), not the opposite, as if terrorists dressed in suits are soon going to take over the EPO
THE President of the EPO (for now), Mr. Benoît Battistelli, has no idealogical rivals. He can’t, he’s from Ecole nationale d’administration. No opposition is allowed or tolerated. In Battistelli’s eyes, his opposition is just Nazis and criminals. In his own little mind he keeps pretending he's fighting terror and he is milking terror attacks for personal sympathy (a politician’s tactic).
“There is more hiring of people from the military (also Belgian) and promotion of such people.”Battistelli has already been warned, but he is not changing anything for the better. There is more hiring of people from the military (also Belgian) and promotion of such people.
“I see that following the President’s allegations that members of the BoA are plotting to overthrow him through violent activity, he now believes that authorized representatives may seek to smuggle illicit material into the office,” wrote one new comment this morning, citing this little nugget (
epo.org link) which says:
Visitors to the EPO are advised that, as from now, their bags and luggage will be subject to a visual inspection by security.
This measure will be applied in all EPO buildings at all sites.
Thank you for your co-operation.
Does anyone think that patent lawyers, for example, would bring in a bomb or something like that? This isn’t a plane and it’s not even public transportation. Now, consider Battistelli's bodyguards addiction and general paranoia. Why does the EPO need to assume a state of heightened security? There have been no incidents of violence at the EPO, except by the management (institutional violence).
“No way,” told me one person, “they have had minutes of training in what to look for and what to do if they find it.”
USB keys perhaps? The latest attempt to catch/silence whistleblowers (deterrence at the very least)? We don’t know for sure, but we can only speculate.
what next? Strip searches? Groping? Colonoscopy? Welcome to the European Patent Office, where visitors are subjected to keyloggers and hidden cameras in public terminals. And now also airport-grade security theatre. Where is this going to end? █
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See Lawrence R. Goldfarb (Wikipedia)
Summary: SCO case not over yet, and it remains unclear who’s still subsidising the case
The SCO case “rises from the grave again,” says today’s headline from the British media (which broke the story). This story looks like it could be from 2009, 2010 and all the way to 2016. It just never ends. Where does the funding even come from?
“Well, SCO rises from the grave or maybe the reporting was just not accurate. We have been told this for 7 years and even 2 months ago we doubted this was the end of it all.”Well, SCO rises from the grave or maybe the reporting was just not accurate. We have been told this for 7 years and even 2 months ago we doubted this was the end of it all. The reason we didn't really believe it's the end of all that litigation is Groklaw’s pattern (or media quoting Groklaw) of stating it’s all pretty much over. Groklaw is still uploading PDFs which relate to this case and British media cites them (magically knowing where files are located). To quote The Inquirer: “In a filing, Judge David Nuffer argued that “the nature of the claims are such that no appellate court would have to decide the same issues more than once if there were any subsequent appeals”, effectively suggesting that the case had more than run its course.
“On 1 March, that filing was backed up by the judge’s full explanation, declaring IBM the emphatic victor in the long-running saga.
“”IT IS ORDERED AND ADJUDGED that pursuant to the orders of the court entered on July 10, 2013, February 5, 2016, and February 8, 2016, judgment is entered in favour of the defendant and plaintiff’s causes of action are dismissed with prejudice,” stated the document.
“To successfully E.E.E. something you must give the impression of good intentions.”“Now, though, SCO has filed yet again to appeal that judgment, although the precise grounds it is claiming haven’t yet been disclosed.”
It also states that “it’s unclear who continues to bankroll the case.” Well, maybe ask Microsoft. It insists that it “loves Linux” while pulling an E.E.E. on it (even just a few hours ago). To successfully E.E.E. something you must give the impression of good intentions. █
“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”
–Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft
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“The surest way to corrupt a youth is to instruct him to hold in higher esteem those who think alike than those who think differently.”
Summary: For future record and for preservation’s sake, five German articles/letters about the EPO in one place
SUEPO has just translated or at least published translations of some recent articles in German. It’s about the EPO before and after the Administrative Council’s meeting. Since then virtually nothing has changed for the better, so a strike is expected a week from now.
We have gone through translations of articles which Techrights has not yet translated (SUEPO did some duplicate effort by translating about half a dozen articles that we had translated beforehand) and highlighted bits of interest for those who have grown tired of seeing the same stories over and over again (with variation in words rather than substance).
The following article by Katja Riedel of Süddeutsche Zeitung was published when the meeting of the Administrative Council began, so it was probably composed before it even started.
15. March 2016, 18:53 Close up
L’EPO, c’est moi
The European Patent Office is facing a major crisis, and Benoît Battistelli is to blame. Critics accuse him of dictating and not discussing.
By Katja Riedel
Views are widely divided as to what significance the next few days will have for Benoît Battistelli. While those around him are keen to maintain the appearance of normality, his opponents are insisting that the President of the European Patent Office (EPO) is stuck in the middle of a deep diplomatic crisis – indeed, the deepest of his six-year period in office, which has not exactly been lacking in conflicts.
Patents and their economic value ceased being an issue a long time ago. The spotlight is on the divisions between the Frenchman and those loyal to him on the one hand, and sections of the workforce on the other – a conflict in which neither side
is pulling any punches. Battistelli’s opponents are now hoping for a showdown at the meeting of the Administrative Council, which can potentially overrule him, scheduled for Wednesday in Munich. The EPO boss has already recently been at odds with the Council in a dispute over the external investigation into a number of spectacular sackings. The Office, however, is taking a low-key approach: “We are not expecting anything to happen”, says the PR chief executive. No major upsets, no cutting of the Gordian knot – and certainly no resignation.
The strife at the EPO is not only about the reforms which, at the behest of the 38 Member States, Battistelli has been pushing through since 2010, but rather about the boss man himself, and the world which he comes from. The 68-year-old is said to be a person who dictates, not discusses, according to people who have known him for a long time. A man who can quickly be riled if he encounters resistance. He is reputed to be deeply imbued with the centralized French system. What is meant by this is the self-assurance that he acquired at the Ena, that elite Strasbourg college which is seen as the gateway to the key positions in French politics and administration. Perhaps this is why Battistelli has for so long allowed so much to accumulate around him apparently undisturbed. He does not meet his critics face to face, but looks down on them from above, from the top floor of his Munich headquarters, from where he determines the fate of the Office.
It appears that Battistelli has long believed that everything could be turned off, like a dripping tap: The placards demanding his withdrawal as boss of the EPO, placards which lampoon him as the “Sun King”. And the allegedly incriminating documents from his office, and the rumours leaked and spread via Internet forums. One does not need to be a friend of the Frenchman to appreciate that Battistelli would not be prepared to put up with these attacks for much longer. With a stroke of his pen he wanted to get rid of powerful opponents – but this time he may have gone too far. In January Battistelli kicked out the lady chief executive of the union Suepo, together with two of her colleagues, and slashed their pensions. The allegation was that they had threatened other staff representatives, according to Battistelli and an investigation report. The attorney representing the union executive rejects all the accusations, and the dismissal triggered new protests. The Administrative Council then proposed that the controversial disciplinary procedures be investigated by an outside body. For the power-conscious Battistelli, this was an affront. He is supposed to have stormed out of a meeting in a rage, slamming the door behind him. And the Administrative Council has now issued a sharply worded ultimatum, which rapidly circulated on Internet forums and gave opponents the opportunity to hope for a showdown.
The Battistelli circle are insisting that this is by no means the case. The letter was only a draft, a diplomatic tussle, and the demands long passé. Battistelli himself is said to be in the best of moods. But whether that is a poker face or real confidence, the next few days will tell.
Days later came another article by Katja Riedel of Süddeutsche Zeitung. There was relatively firm action, which served to refute Battistelli’s “poker face” gesture. The article does show the shortcomings though. It was published after the Administrative Council’s meeting and the massive protest.
Despite protests, European Patent Office’s Battistelli remains in office
The EPO Administrative Council has adopted a resolution in which the subliminal message is plainly one of condemnation. The wording contains orders for action on the part of the beleaguered President.
By Katja Riedel
Despite loud protests and ongoing demands for his resignation by the workforce, the boss of the European Patent Office (EPO), Benoît Battistelli, continues to remain in office. The Administrative Council of the organization adopted a resolution at its meeting with Battistelli, which was ongoing since Wednesday, which contains orders for the President to act – and also indicates annoyance about his actions. Nevertheless, the Council did not challenge his position at the head of the EPO. They did, however, express serious concerns about the fact that for many months a bitter struggle has been raging between the management and staff of the Office. Battistelli’s opponents had hoped that he would resign, or that the Administrative Council would dismiss him. The employees are up in arms about his stringent reforms, while Battistelli is aiming to trim the Office towards greater efficiency. Staff members have also repeatedly been complaining about serious attacks on their fundamental rights, and also about a range of internal investigation procedures. The Administrative Council, on which representatives of the 38 Member States sit, had already ordered Battistelli last year to restore social peace within the Office, but since then the situation in the international organization, with 7000 employees, has escalated still further. In the interim, a number of leading members of the staff union Suepo have been dismissed by Battistelli, with accusations of serious personal misdemeanours and talk of smear campaigns against the Office management. The union members, by way of their attorneys, vehemently deny any wrongdoing.
Contrary to the demands made just a few weeks ago by the Administrative Council, these controversial disciplinary proceedings are not now going to be investigated by an outside agency, which has been a major cause of dispute between Battistelli and the Chair of the Council. Instead, the agreement now contains the proviso that Battistelli can allow future cases to be examined externally, and agreed on with the Council – a request, not an instruction. The same applies to the engagement of a mediator, which Battistelli has also up to now rejected. It seems unlikely that the resolution is going to calm things down.
Also published on the same day was this article that’s relatively short and does not add anything too new or unique:
Move by Administrative Council aims at ‘Social Dialogue’ within European Patent Office
Thursday, 17.03.2016, 14:34
In the ongoing conflict at the European Patent Office (EPO), the executive management and the staff representation body Suepo look set to abide by the wishes of the Administrative Council and start getting together again.
This was the aim behind a resolution adopted by the Council at its meeting, which EPO President Benoît Battistelli is also said to have agreed to, according to a spokesperson from the inter-state patent authority speaking on Thursday to the Deutsche Presse-Agentur. The key issue in the resolution is to press ahead with the social dialogue at the EPO rapidly, as well as reviewing and reforming disciplinary procedures. On Thursday there was initially no-one available at Suepo to make a comment.
Battistelli has been at the top of the inter-state authority for five and a half years, and is pushing for reforms. These include tightening up on working practices and monitoring performance and time off, something which has prompted a great deal of criticism from the staff representation organization. The EPO recently officially recognized the FFPE-EPA, a union in the European public service sector, although this is said to represent far fewer EPO employees than Suepo, which so far has not been officially recognized.
donaukurier.de, which had published other articles on this subject, wrote and published the following long articles (relatively important or new information highlighted).
Fear, Bullying, Sackings
Munich (DK) At the European Patent Office in Munich, the conflict between the President and the staff is escalating. There is widespread talk of human rights violations, and of being spied on, like the Stasi secret police. But the police and the office of the State Attorney are unable to intervene, because the Office enjoys immunity. Today could be the day of reckoning for the management.
The decisive clause is in Article 8 of the European Patent Convention. This governs the immunity of the European Patent Office (EPO). What exactly falls under this ruling is specified elsewhere: It is written there for instance that “The authorities of the States in which the Organization maintains premises may only enter these premises with the agreement of the President of the European Patent Office”. Put plainly, this means that although the headquarters of the European Patent Office are located in the middle of Munich, beside the River Isar, no German laws apply there. The Convention, an agreement ratified by 38 European states and forming part of international law, stipulates that no police, state attorney, or other national or state body is allowed access. “If the legal protection of an organization is set down in the conventions, then German courts don’t get a look in,” emphasises Sebastian Kolbe, an expert in labour law from the Catholic University of Eichstätt. Former Constitutional Court judge Siegfried Bross even goes so far as to say that, with intellectual constructs like these, Guantanamo could be replicated on German soil.
For many of the staff at the European Patent Office, over the past few months this immunity ruling has become something of a nightmare. Within the Office a bitter conflict has been raging between the management under President Benoît Battistelli, a Frenchman, and a large section of the workforce. And the workforce cannot count on making any recourse to national courts. There are plenty of employees who talk about the fear that reigns among them, but no-one dares to be quoted by name for fear of reprisals. The Office itself flatly rejects any connection between five suicides which have occurred among staff members in the past four years and the circumstances which prevail at work. According to an EPO spokesperson, the Office has worked very closely with the families concerned. “In none of the cases could any causal connection be established between the work and the tragedy.” He went on to speak of the cases being used for exploitation.
It is true that the EPO staff are for the most part very high earners, as well as enjoying a number of taxation privileges. “But anyone who quits or is dismissed, loses everything,” says one female employee, as the Office has its own social
security system and its own schools. Handing in one’s notice means that the children have to leave their school, and there’s no unemployment benefit – not even Hartz IV. Pension claims can be curtailed too.
The conflict is taking no hostages. Among other things, in the past few months two staff council members have been sacked, who were also leading members of the in-house staff union Suepo, and a third has been downgraded. The accusation against
them was alleged defamation of the Office, and having bullied a colleague on the staff council. “An individual and serious instance of misconduct was brought to light,” according to the EPO press office. The sackings are said to be the result of a proper disciplinary procedure, and apparently had nothing to do with the fact that the people concerned were members of the staff council.
What under German law would be virtually impossible, given the high degree of protection of personnel representatives afforded by labour legislation, is possible within the EPO with relatively no trouble at all – throwing out a member of the staff council. Their status is hardly comparable with that of German staff council members, though: The staff council is indeed consulted on some issues, and can submit recommendations, but according to the EPO Code it has no rights of joint discussion with any binding effect.
The background to the dispute lies in the reforms which Battistelli, armed with very wide-reaching powers, has been pushing through since his appointment to office in 2010, and with which he aims to make patent examination more efficient. Many of his measures have incurred resistance from the workforce, and there have even been claims of infringement of human rights.
One bone of contention, for example, is a new ruling regarding sick pay. According to the Federal Ministry of Justice, which is responsible within the Federal Government for the EPO, this ruling stipulates that employees who report sick must be at home between 10.00 and 12.00 hours and between 14.00 and 16.00 hours, which the Office is entitled to check on. According to a Ministry spokesperson, however, the EPO has hitherto restricted this to absolutely exceptional cases. Suepo represents the situation as substantially more serious. Sick employees are only allowed to leave their homes for visits to a doctor which have been notified beforehand, even if the illness lasts for weeks or months. It seems, too, that the doctor appointed by the Office must be allowed access to their homes. The Office spokesperson’s response is that the EPO is an international organization, and would therefore be unable to abide exclusively by German practice. In other Member States, it seems that such rulings are entirely normal. Their aim appears in any event to achieve reform: According to the EPO, since the introduction of the ruling levels of absence due to illness have been “quite substantially reduced”.
Added to this is the “Investigative Unit”, which according to Suepo is notorious in the EPO and regarded by staff members as “worse than the Stasi”. According to an internal guideline, accused persons are obliged to provide unrestricted co-operation with the Investigative Unit, and the right of refusal of testimony does not exist. The investigators have the right, if improper conduct is suspected, to search offices and examine computers. Suepo speaks of “police state methods”, and criticizes the fact that the investigating personnel report only to the President, who is therefore legislator, prosecutor, police and judge, all rolled into one. The Ministry of Justice, according to its own assertions, has several times called on Battistelli to change these guidelines, but so far without success. The risk of self-incrimination, and the prohibition on involving an attorney in the preliminary investigation, are seen as particularly unacceptable. Conversely, the Patent Office is emphatic that Battistelli is prepared to discuss these guidelines. 2016 is said to be the year of consolidation and assessment of the reforms.
The possibilities of Suepo having any effect on the Office are, however, limited. The Union is not recognized by the EPO as a negotiating partner, although it maintains that it represents almost half of the 7,000 or so employees. Instead, at the beginning of March the Patent Office announced a “trail-blazing agreement” with the FFPE-EPO union. President Battistelli spoke of a “milestone in the resumption of the social dialogue”. It seems that from now on the union will be formally recognized as a social partner.
But the FFPE-EPO only numbers some 75 members, and is said to be restricted to the EPO base at The Hague, according to Suepo sources. On the FFPE-EPO homepage, between its establishment in 2008 and the announcement of the concluding of the agreement a few days ago, there is not a single entry. The union did not respond to an enquiry. The Patent Office, however, stresses the fact that the little union is an offshoot “of one of the largest unions in the European public service sector”, and hails the agreement as the beginning of a closer relationship with the unions.
At the same time, Benoît Battistelli made it known in the press release that the”Memorandum of Understanding” signed with the FFPE-EPO is apparently open to all other unions within the European Patent Office. An invitation which Suepo has declined with thanks, since it views the agreement as an “agreement to gag”.
What happens next is at present unclear. Today and tomorrow the Administrative Council meets, which comprises representatives of the 38 Member States. Up to now, they have stood behind the President, but most recently there have signs that they will no longer be covering his back. By way of example, media reports suggest that the Danish chair of the Administrative Council, Jesper Kongstad, has been calling on Battistelli to improve the atmosphere at work, and to allow for an external investigation of the measures taken against the three union executives. Until then, the disciplinary measures should be lifted. In a letter from Kongstad to the other members of the Council, which is doing the rounds on the Internet, he complains that a serious dialogue with Battistelli recently proved impossible, because he left the meeting prematurely. In response to the question as to whether Battistelli is still the right man for the job, the Justice Ministry spokesperson was evasive: “It is also in the interests of President Battistelli to restore social peace in the EPO. To this end, the German side is in regular dialogue with him.”
If the President does not agree to the dismissals being investigated, the Suepo executives still have the possibility of recourse to the International Labour Organization (ILO) in Geneva, but it could take years for a decision to be forthcoming from there. The workforce at the Patent Office appear determined to continue the fight. Last week, 91 percent of more than 4,000 participating employees voted for a strike. Before that, though, the decisions by the Administrative Council will be awaited.
Intervention by Banavrian politicians was also noteworthy at the time [1, 2] and SUEPO translated one statement about it as follows:
FREIE WÄHLER, Free Voters, want the European Patent Office to toe the line / Schmidt: Bavaria’s status with regard to the protection of employees must be secured – and that means in the whole of Bavaria
By the Editorial Board
Tuesday, 15. March 2016 16:01
Gabi Schmidt – landtagsabgeordnete.eu
(BWP) “Bavaria cannot stand idly by when in the European Patent Office, with its headquarters in Munich, human rights violations are being committed”, declares Gabi Schmidt, social policy spokesperson for the FREIE WÄHLER Free Voter fraction in the Landtag, Bavaria’s regional parliament. On the occasion of the meeting tomorrow of the Administrative Council of the European Patent Office, the FREIEN WÄHLER are seizing the initiative in support of the employees by tabling an emergency motion. In the light of the serious accusations being made by the staff against their employer, action needs to be taken – and taken rapidly. “Even if the European Patent Office is an institution which exists outside any particular state, we must not and cannot shirk our responsibility for what happens on Bavarian soil”, so Schmidt demands.
Employees have reported trickery and subterfuge: For example, the Patent Office is said to have made telephone calls or even unannounced visits, in cases where a staff member has reported sick, simply to check on whether they are really at home, which allegedly means that the person concerned is not even allowed to go for a walk. “There is no identifiable concordance here with German and Bavarian working standards”, says Schmidt, who goes on: “We are therefore calling on the State Government to commit, on a Federal and European level, to raising the employers’ standards. We FREIEN WÄHLER demand that our tried and trusted German and Bavarian standards also apply to the European Patent Office – without any ifs or buts.”
It is likely that next week the press will cover the EPO again because of the strike. █
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