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06.13.16

Another EPO Staff Demonstration Planned for a Fortnight From Now When Battistelli Wishes to Make the EPO Even Crazier

Posted in Europe, Patents at 6:58 pm by Dr. Roy Schestowitz

Summary: More attacks on the basic rights of EPO staff are in the pipeline and provocative comments or spin about these have begun to emerge

THIS week is an important week for the EPO not just because of the spontaneous protest and what inevitably caused it but also because of tomorrow's 'trial' against a judge, whose ‘crime’ seems to be saying the truth about the EPO. No dissent is tolerated by Battistelli, not even within boards that are in principle independent from his regime. Battistelli already went as far as intimidating lawyers, staff unions, apparently spouses of staff representatives, politicians, delegates, and even yours truly. This man is crazy and his loyal confidants (whom he typically brought with him from France or ‘rescued’ from criminal charges in Zagreb) inherited a position with little effective oversight and over the past few years removed any oversight that had remained in tact. It’s quite a coup!

For those who believe that things are as bad as they can get, believe no more. It can get worse unless Battistelli, who is arrogant enough to totally ignore the Administrative Council and grossly defy their demands, gets canned. Here is what SUEPO says about Battistelli’s imminent plans. “The next attacks on staff,” SUEPO calls it, listing the proposals below:

On 29 and 30 June the next meeting of the Administrative Council will take place. The Office has prepared 5 (!) documents for decision that concern staff:

- CA/15/16 on self-insurance for health-care costs
This reform, if accepted by the Council, will give the President the full, unrestricted power to change the cover and reimbursement conditions of the EPO’s obligatory health care insurance whenever he sees fits, as he sees fit.

- CA/29/16 on post-service employment restrictions
This document proposes to give the President full, unrestricted power to decide whether an employee who has left the Office (resigned, retired or dismissed) may during two years take up a given new employment or unpaid activity. The regulations would apply to staff already in place and as well as colleagues who already left. They could seamlessly combine with the obligation for an active employee “to take the necessary steps for terminating … any employment exercised by his spouse where such employment is in any way connected with the Organisation and proves to be incompatible with that of the employee”, if the President so decides. A financial compensation is foreseen in none of the cases.

- CA/52/16 “standards of conduct” and investigations
The proposed regulations would give still wider powers to the Investigative Unit. They would also impose on staff the obligation to denounce their colleagues for any behaviour that is not in line with ill-defined “standards of conduct” or a long list of possible misconducts. Significantly, this obligation does not apply to “documents, deeds, reports, notes or information covered by specific requirements of confidentiality under the legal framework of the Organisation”, i.e. to misconduct by the Investigative Unit or other parts of the administration. Any references to data protection regulations have completely disappeared. We advise staff to read this document.

- CA/53/16 concerns a review of the disciplinary procedures
The change of regulation proposed in CA/29/16, if accepted by the Council, will take dismissals for professional incompetence out of the hands of the disciplinary committee and thereby double the time needed to challenge such a decision via an internal appeal rather than directly to ILOAT. It also introduces a “plea bargain” for employees who accept “unreservedly” the accusations against them. This very much smacks of coercion.

- CA/aa/16 concerns the planned reform of DG3
The document contains all the flaws already criticized in a previous version, and more. The document pretends that the proposals will increase the “perception” of independence of DG3, but in fact limits its independence.

The above seems to be ‘custom-made’ for particular cases and people whom Battistelli wishes to crush. This isn’t the first such incident. For instance, recall the retroactive legislation which we mentioned this morning. This smacks of monarchy disguised or ‘dressed up’ as politics.

SUEPO is not too optimistic about Battistelli getting the sack later this month and it explains why as follows:

What about the resolution of the Council?

In its March meeting the Administrative Council voted for a resolution clearly signalled Mr Battistelli what improvements were expected from him. Mr Battistelli has not just simply ignored the instructions of the Council but did exactly the contrary on several points. We will have to see how the Council delegates, in particular those of the smaller Member States, will react. Will they accept their responsibility for the Organisation and exercise their supervisory role, or will they bow their heads and be beaten – with free „urgent“ medical and dental care (the «urgency» to be decided by the President), prestigious jobs in the Council bodies and a generous share of the EPO’s 13 million Euro co-operation budget as a compensation for their hurt pride?

The Central Staff Committee (CSC) sent all the delegates a letter explaining why the above proposals of the President are wrong, and asking them to vote against these proposals. In order to further encourage the delegates to do the right thing we plan another demonstration on the first day of the Council meeting. Further details will be communicated as soon as possible.

Proposed Article 19 of the Service Regulations

(2) A permanent employee or former employee intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service, shall inform the appointing authority thereof. If that activity is related to the work he carried out during the last three years of his service and could lead with to a conflict with the legitimate interests of the Office, the appointing authority may … either forbid him from undertaking that activity or give its approval subject to any conditions it thinks fit.

(8) The appointing authority may lay down further terms and conditions for the application of this Article to the respective employees; …

CA/29/16

With or without consent from staff and delegates, the Battistelli regime is treating the Appeal Boards like unwanted fossils, essentially demolishing these boards little by little. Some further attacks on the appeals process, as mentioned last week by a reputable blog, are now officially being confirmed by the EPO (warning: epo.org link), effective only a day or two after the Administrative Council’s meeting. There are two new articles today about the EPO Enlarged Board [1, 2] and it is abundantly clear that these boards are needed. To Battistelli, however, these are probably an obstacle or a nuisance to his ‘baby’, the UPC, and so-called ‘production’ (quality control is not desirable when one measures the wrong things with the wrong yardstick).

Looking at IP Kat today, we cannot help wondering; Are there so many Battistelli apologists out there or is EPO management perhaps sending people to IP Kat a week after censorship of the whole blog was attempted? There is a sharp rise in provocative comments and responses to these. Some of these try to spin the above changes as perfectly normal and banal, discrediting those who raise concerns and saying stuff such as this (from someone called “Peeps”, whom we never encountered before):

If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may…

IF
AND
MAY…

Simple Boolean logic demonstrates the narrowness of application.

The polite response to it was as follows:

“Simple Boolean logic demonstrates the narrowness of application.”

Dear Peeps,

Actually, simple legal analysis demonstrates the narrowness of your logic – but you are probably not used to read and interpret legal documents – let me help you out here.

The problem with the passage that you cite actually is with the words “could” and “legitimate interests of the Office”.

How do you decide in advance what “could” lead to a conflict of interests with the Office?

And what are these “legitimate interests of the Office”, pray tell me?

But most importantly, who decides what could lead to a conflict and what are these interest?

Yes, the President.

And the only recourse you have against that is the ILO (7+ years).

You’re welcome.

Not to overuse the term “Internet troll”, is it possible that after the censorship of IP Kat backfired and was quickly abandoned there is a change of strategy managed by the PR agency/ies? watch them throwing more insults [1, 2] at each other, which is probably what pro-Battistelli messaging (or Battistelli apologists) would seek to generate. New pseudonyms like “PB” are being used. We never saw these before…

As we shall show later this week, the huge PR budget of the EPO goes a long way. Prepare for trolls. Imagine how far a bunch of fake letters (or AstroTurfing) can go when addressing the Administrative Council’s delegates. Lobbying behind the scenes can be a lot worse (i.e. more powerful) than public spin-meisters because there is no room for scrutiny of said claims. Battistelli’s EPO is unethical enough to attempt this.

Bought Media Coverage at the European Patent Office

Posted in Europe, Patents at 6:15 pm by Dr. Roy Schestowitz

When does paying the media become a punishable breach of service regulations by Eponia’s standards, especially when the rules are effectively written and rewritten by one man (Battistelli) for chronic self-glorification and systematic assault on dissent?

Battistelli in Handelsblatt

Summary: Handelsblatt one among several publications (EU-wide and even in the US) that the EPO took under its wing — using EPO budget — in order to seed positive press coverage in nations as distant as India

LAST week we gave several examples of paid-for EPO coverage (paid for at the expense of EPO budget for the benefit of few top managers who milked it all for personal gain). So-called ‘media partners’ like this one (the Financial Times) became EPO mouthpieces, joining the likes of IAM and old media partners such as Les Echos. We needn’t explain why this is morally wrong. This is symptomatic of today’s EPO, where truth isn’t being tolerated, waste and abuse are rife, and a President with a management degree believes he’s a judge, a scientist, and maybe the next Nobel, as per his remarks at EIA2016 (God complex/megalomania).

“We needn’t explain why this is morally wrong.”Now, as expected, Handelsblatt delivers puff pieces, having become a mouthpiece of Battistelli. Yes, the EPO literally paid this publication (based on prior years) to become a “media partner” and produce puff pieces like this new one, which the EPO referenced earlier today (how convenient). We suppose there won’t be many critical investigative articles about the EPO (like this one or that older one) any time soon, at least not from Handelsblatt. Handelsblatter? Well, it’s often used as a source supportive of Battistelli's talking points. Expect more of that. Publishers and editors don’t bite the hand that feeds them.

Other German media helped relay the puff pieces from EIA2016 [2, 2] and so did Austrian press (the EPO did its job promoting these puff pieces today), not to mention French media and Cambridge again.

Do not forgot the crucial facts about spending of several millions of Euros (by some estimates) buying media, having already spent outrageous amounts of money on PR agencies (more on that later this week). IPO is apparently “pleased” about a thug and a megalomaniac tyrant having another chance at interjecting himself into the media, even though all of his staff (managers included) hates him with a great passion.

“Do not forgot the crucial facts about spending of several millions of Euros (by some estimates) buying media, having already spent outrageous amounts of money on PR agencies (more on that later this week).”Earlier today there was a spontaneous protest at the EPO (only days after the protest that coincided with EIA2016) and MIP took note of it as follows: “More protests at the EPO in Munich today after disciplinary measures against 2 staff members were maintained by President Battistelli.”

Meanwhile, in an effort to better control the message that the media gets, Team Battistelli offers surveillance (for self-censorship) contracts to BlueCoat providers and today’s reports suggest that BlueCoat sells itself to Symantec, which is quite an evil company that would certainly benefit from another evil company. To put evil appliances (usually purchased by the world’s most authoritarian regimes) inside the back rooms at The Hague is rather symbolic of what the EPO became under Battistelli’s regime.

Will Battistelli bankrupt the EPO by buying the media (controlling the message) before he finally steps down or his term reaches its end?

New Essay: EPO “president and Council are morally corrupt”

Posted in Europe, Patents at 5:23 pm by Dr. Roy Schestowitz

New essay about the EPO

Moral compass and management’s loss of it

The loss of moral compass of the higher management is nothing short of stomach-churning.

Unbridled craving for media exposure, unashamed cronyism in the pursuit of power concentration at the expense of checks and balance, abuse of our common assets for personal and exclusive benefit, vengeful oppression of dissenting opinions and immunity-bragging are now the norm. Coupled to a questionable taste for 1990s pseudo-corporate glamour, such trends have brought the mood in the organisation on par with that of Zamyatin’s dystopia1.

Some leaders are inspirational, some are not. Inspirational leaders always lead by example. Inspirational leaders place all their emphasis on the duties they have, not the privileges they could claim, and certainly not on any immunity they may have. Immunity is the trump card of the irresponsible.

Current higher management’s taste for behind-the-scenes dealings, secrecy and information control is more than a warning sign; it presages the disintegration of the organisation. The collapse of moral values is always a prelude to disintegration.

Science flourishes where art and free speech flourish‘ once wrote N. Stephenson. Given the current atmosphere, our organisation is not on course to flourish.

German/American political theorist Hannah Arendt has taught us that blindly obeying ‘end-justifies-the-means’ policies is a sure path to moral ruin. This has happened to us in a mere four years. The oligarchic drift of the higher management has now gone too far.

And what of the Administrative Council, whose members come to Munich and endorse policies which would be illegal – and immoral – in their home country? Policies should first and foremost be judged on their moral implications.

The idea that anything that can be made legal is always morally acceptable has been discredited in Europe for decades.

Maybe tough decisions on the course of action of our organisation are necessary, but no one – and certainly not the EPO’s higher management – has shown that yet. If changes were necessary, it would surely be possible to put the arguments convincingly to staff, which is an intelligent body of people, and they, in turn, would surely understand the need, and be ready to make sacrifices.

However the policies embodying this course of action can only be accepted from a leader who has moral authority, deriving from his core personal values and transparency.

It is our observation that scientists and engineers are always more efficiently led by scientists and engineers, as do and did Charles Bolden (head of NASA) and Anne Lauvergeon (on the board of companies such as Total and Vodafone).

Austrian thinker Karl Polanyi warned us more than 60 years ago that there is great danger in deciding economic and industrial policies without having defined first the values of the society one wants to live in.

We used to have the spirit of the M.I.T, now we have that of Lehman Brothers‘ summarised a former member of our organisation.

The above text was proposed for publication by one of our colleagues two years ago. We publish it now since we think that it is even more valid than ever before.

EPO staff, national members of parliament, interested circles and the European public must publicly deplore the current system where

  • president and Council are morally corrupt, and

  • are actively engaging in destroying the Organisation which the member states have entrusted in their care

in order to provide an incentive to reinstate a moral authority in the supervisory body and at the higher management levels of the European Patent Office.

____________

1Yevgeny Zamyatin’s book “We”, published in English in 1924, is a novel about life in a future world which has become a single state in which all citizens are permanently under surveillance, and potential dissenters are forcibly subjected to surgery to “correct” their psyche.

Links 13/6/2016: Linux 4.7 RC3, Samsung’s Tizen Focus

Posted in News Roundup at 5:12 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

Leftovers

  • Health/Nutrition

    • Whistleblower: EPA Officials Covered Up Toxic Fracking Emissions for Years

      Why has the Environmental Protection Agency (EPA) failed to take adequate action against disastrous, climate-warming methane emissions from the fracking industry?

      An environmental watchdog alleges that the answer may be a years-long, systematic cover-up of the true data surrounding these toxic emissions.

      That cover-up, the group says, was at the hands of at least one EPA researcher who accepted payments from the oil and gas industry.

  • Security

    • Deception Cybersecurity Pioneer illusive networks Adds Linux and Advanced Forensics in Latest Release
    • San Antonio’s Infocyte Takes Cybersecurity Threat Hunting to Linux
    • Lieberman Software Provides Security Automation at Scale for Linux

      Lieberman Software Corporation is advancing the security of the Linux enterprise by keeping the privileged attack surface in constant motion on Linux systems. The announcement was made at the Gartner Security and Risk Management Summit, where the company is exhibiting this week in booth #719.

    • Mozilla launches fund to vet open-source software

      More and more, developers are using open source tools when building applications and online services because it allows users to openly share and collaborate on code. Because it encourages crowdsourcing and collaboration, open source has opened the doors for amateurs and professionals alike to make better software faster than ever before.

    • Security advisories for Monday
    • Outdated authentication practices create an opportunity for threat hunter Infocyte

      “Having Linux allows us to look at web servers, for instance. If you’re going to bypass the biometrics, you’re going to need to get into that system itself,” Gerritz says. “That’s where we come in, is finding people who have inserted themselves under that authentication layer.”

    • Cable Sees NFV Enhancing Network Security

      Network functions virtualization is all the rage because of the money it can save, and because of the network flexibility it helps afford, but the cable industry is enthused about NFV for yet another, less publicized benefit: the potential NFV creates for improving network security.

    • IoT Consensus – A Solution Suggestion to the ‘Baskets of Remote’ Problem by Benedikt Herudek

      Bitcoin is able to integrate and have endpoints (in Bitcoin terminology ‘wallets’ and ‘miners’) seamlessly talk to each other in a large and dynamic network. Devices and their protocols do not have the ability to seamlessly communicate with other devices. This presentation will try to show where Bitcoin and the underlying Blockchain and Consenus Technology can offer an innovative approach to integrating members of a large and dynamic network.

    • Ready to form Voltron! why security is like a giant robot make of lions

      Due to various conversations about security this week, Voltron came up in the context of security. This is sort of a strange topic, but it makes sense when we ponder modern day security. If you talk to anyone, there is generally one thing they push as a solution for a problem. This is no different for security technologies. There is always one thing that will fix your problems. In reality this is never the case. Good security is about putting a number of technologies together to create something bigger and better than any one thing can do by itself.

    • Email Address Disclosures, Preliminary Report, June 11 2016

      On June 11 2016 (UTC), we started sending an email to all active subscribers who provided an email address, informing them of an update to our subscriber agreement. This was done via an automated system which contained a bug that mistakenly prepended between 0 and 7,618 other email addresses to the body of the email. The result was that recipients could see the email addresses of other recipients. The problem was noticed and the system was stopped after 7,618 out of approximately 383,000 emails (1.9%) were sent. Each email mistakenly contained the email addresses from the emails sent prior to it, so earlier emails contained fewer addresses than later ones.

    • Universities Become New Target for Ransomware Attacks [iophk: "Calgary has no excuse, given the particular tech activity headquartered specifically in their town. Some top Univ executives need firing +fines for having allowed Microsoft into their infrastructure."]

      This week the University of Calgary in Canada admitted paying C$20,000 (€13,900) to a hacker to regain access to files stored in 600 computers, after it suffered a ransomware attack compromising over 9,000 email accounts. In order to receive the keys, the school paid the equivalent of C$20,000 in Bitcoins.

    • Blue Coat to Sell Itself to Symantec, Abandoning I.P.O. Plans

      Blue Coat Systems seemed poised to begin life as a public company, after selling itself to a private equity firm last year.

      Now, the cybersecurity software company plans to sell itself to Symantec instead.

      Blue Coat said late on Sunday that it would sell itself to Symantec for $4.65 billion. As part of the deal, Blue Coat’s chief executive, Greg Clark, will take over as the chief executive of the combined security software maker.

      To help finance the transaction, Blue Coat’s existing majority investor, Bain Capital, will invest an additional $750 million in the deal. The private equity firm Silver Lake, which invested $500 million in Symantec in February, will invest an additional $500 million.

  • Defence/Aggression

    • The Chinese Hackers in the Back Office

      At the N.S.A., Mr. Falkowitz had worked with teams that detected North Korean missile launches. Much of that early work was done with satellites that would look for sudden heat blasts.

      Eventually, Mr. Falkowitz’s team tried a more proactive approach. If they could hack the computers that controlled the missile launch systems, they could glean launch schedules. Area 1 is now taking a similar approach to digital attacks, tapping into the attackers’ launchpads, as it were, rather than waiting for them to attack.

      Hackers don’t just press a big red “attack” button one day. They do reconnaissance, scout out employees on LinkedIn, draft carefully worded emails to trick unsuspecting employees to open them and click on links or email attachments that will try to launch malicious attacks.

      Once they persuade a target to click — and 91 percent of attacks start this way, according to Trend Micro, the security firm — it takes time to crawl through a victim’s network to find something worth taking. Then they have to pull that data off the network. The process can take weeks, months, even years and leaves a digital trail.

    • Before Nightclub Shooting, FBI Pursued Questionable Florida “Terror” Suspects

      The attack on a gay club in Orlando in which 50 people were killed and more than 50 wounded — now the largest mass shooting in U.S. history — demonstrates how potential threats are escaping the FBI’s vast counterterrorism dragnet.

      While it’s unclear whether gunman Omar Mateen’s inspiration was hatred of gays, the Islamic State, or something else, attackers like him are the intended targets of the FBI’s post-9/11 prevention program. Federal law enforcement’s top priority today is to stop the attacker of tomorrow.

      But Mateen’s mass shooting is an example of how dangerous men slip past the FBI’s watch while federal agents focus on targets of questionable capacity.

    • Orlando Pulse Open Thread

      There is so much we need to fix in this country: the guns, the homophobia. But I fear we’re most likely to just throw more policing in the mix, rather than addressing the underlying issues.

    • Omar Mateen and Rightwing Homophobia: Hate Crime or Domestic Terrorism

      US law enforcement is at least initially categorizing the horrific Orlando shootings as “domestic terrorism.”

      I don’t think it probably was terrorism in any useful sense of the term.

    • The Orlando Horror

      Terrorism is a reality – but endless war is not the answer

    • Recent Events in Honduras

      This week’s program looks at recent events in Honduras, including the 2009 coup, the 2012 killing of four villagers by a joint US-Honduran patrol at Ahuas, and the March 2016 assassination of indigenous environmental campaigner Berta Caceres. The guests examine some of the underlying institutions and circumstances there, including the heavily militarized Honduran police, the US “drug war,” and US willingness to use drug trafficking accusations to bring down critics of the country’s ruling party.

    • Hillary Clinton’s ‘Entangled’ Foreign Policy

      Besides bashing Donald Trump, Hillary Clinton offered few specifics in her big foreign policy speech which stressed the value of “friends.” But those “entangling alliances” helped create today’s global chaos, writes Daniel Lazare.

    • Gun Industry Describes Mass Shootings Like Orlando as a “Big Opportunity”

      In recent corporate presentations, leading gun makers celebrated the fact that consumers bought more firearms because of the December terrorist attack in San Bernardino. And, prior to the massacre at a gay nightclub in Orlando on Saturday night, executives were telling investors to expect another big bump — because of the upcoming elections.

      The surge in sales after mass shootings, as we’ve reported, is nothing new: Mass shootings lead to talk of gun control; the National Rifle Association — the gun advocacy group funded significantly by gun and ammunition manufacturers — uses its influence in Congress to block any legislative action; but gun owners, irrationally terrified that the government will restrict or ban firearms, rush out to buy more guns and ammo.

    • Donald Trump Calls Obama Complicit in Orlando Shooting, Escalating Years of Anti-Muslim Rhetoric

      Donald Trump’s first response to the mass shooting at a gay nightclub in Orlando was to congratulate himself “for being right on radical Islamic terrorism.”

      His second response was to accuse President Obama of complicity.

      “Look, we’re led by a man that either is not tough, not smart, or he’s got something else in mind,” Trump told Fox News early Monday. “There’s something going on. It’s inconceivable. There’s something going on. … He doesn’t get it or he gets it better than anybody understands — it’s one or the other and either one is unacceptable.”

    • As FBI Was Rolling Up Ibragim Todashev and Friends in Orlando, Omar Mateen Claimed a Tie

      Described as a tie to the brothers behind the Marathon killing, the claim is just wacky. But perhaps not as much when you consider the close FBI focus on Orlando’s Muslim community. The FBI killed Todashev in May of 2013, and started rounding up and deporting his friends shortly thereafter.

    • Stop Exploiting LGBT Issues to Demonize Islam and Justify Anti-Muslim Policies

      In the late 1990s, Eric Rudolph – raised Catholic and affiliated for a time with a Christian Identity sect – bombed abortion clinics and a gay bar, insisting they were venues of immorality and evil. Last July, an Orthodox Jewish Israeli attacked the marchers in the Jerusalem LGBT pride parade, stabbing six of them, and one of them, a teenager, died of her wounds; justifying his attacks by appealing to Talmudic punishments for homosexuality, he had just been released from a 10-year prison term for doing the same in 2005. Yesterday, a Christian pastor from Arizona, Steven Anderson, praised the slaughter of 49 people in an Orlando LGBT club on the ground that “homosexuals are a bunch of disgusting perverts” and are “pedophiles.”

    • Was Orlando Shooter’s Domestic Violence History a Missed Warning Sign?

      The ex-wife of Orlando shooter Omar Mateen described him as a volatile and violent spouse who abused steroids and beat her during their brief marriage. “He started abusing me physically, very often, and not allowing me to speak to my family, keeping me hostage from them,” Yusufiy told reporters gathered in front of her home yesterday. After four months of marriage, Yusufiy was physically rescued from Mateen by her parents and, she said, filed a police report about his abusive treatment.

    • America’s Many Mideast Blunders

      Official Washington’s neocon foreign policy establishment looks forward to more “regime change” wars in the Mideast and more “blank checks” for Israel, but ex-Ambassador Chas W. Freeman Jr. sees such actions as a continued march of folly.

    • Globalization and the American Dream

      Implicit in all the rhetoric promoting globalization is the premise that the rest of the world can and should be brought up to the standard of living of the West, and America in particular. For much of the world the American Dream – though a constantly moving target – is globalization’s ultimate endpoint.

    • A Tale of Two Terrorists

      Nearly 15 years since its fiery debut, Bush’s “War on Terror” has somehow (and for some time now, too) been banalized into the humdrum of Obama’s permanent war; in light of this, as terrorism continues to simultaneously deviate from and reflect social norms, it seems entirely fitting that the two people vying for the presidency of the United States should be terrorists themselves.

    • Campaign 2016’s Brave New World

      As the U.S. election shapes up as a battle between Donald Trump and Hillary Clinton, the prospect for the public hearing anything approaching a truthful exchange of ideas appears hopeless, writes David Marks.

  • Transparency/Investigative Reporting

    • Newly Released Clinton Email Was Marked Classified When It Hit Clinton’s Unclassified Server

      When her use of an unclassified email server first broke in March 2015, Hillary Clinton’s earliest statements were that no classified information was sent or received.

      She quickly changed her standard reply to say nothing sent or received was marked classified at the time. As recently as Wednesday of last week, she told reporters, “nothing that I sent or received was marked classified. And nothing has been demonstrated to contradict that. So it is the fact. It was the fact when I first said it. It is the fact that I’m saying it now.”

      (The statement is itself an outright lie. Some information — the names of CIA undercover personnel, imminent drone strikes, details on U.S. NSA sources and methods, for example — is inherently classified and does not need to be marked to restate that. In addition, many suspected classified documents that were marked as such were simply retyped minus the marker when they were sent to Hillary. Leaving the marker off does not “declassify” information, and is in fact a national security crime.)

  • Environment/Energy/Wildlife/Nature

    • Ten Degrees Above Average, Alaska is Having Its Hottest Year Since Records Began

      Like the rest of the world, Alaska has been unusually hot this year—and it’s about to get hotter.

      That’s according to the most recent data released by the National Oceanic and Atmospheric Administration (NOAA), as Climate Central reported.

      Between March and May of this year, the meteorological spring, the entire state has been about 10 degrees hotter than normal, with an average temperature of 32°F.

      “That may sound cold,” Climate Central noted, “but warmth is a relative term. That temperature handily beat the previous record hot spring of 1998 by 2°F (1°C), according to NOAA.”

    • Mobilizing for COP21

      Tom Goldtooth is a Diné and Dakota environmental activist based in Minnesota. He has worked on environmental justice issues with tribal governments since the 1980s, and is widely respected as a grassroots leader throughout North America. In addition to serving as Executive Director of Indigenous Environmental Network (IEN), he is a founder of the Durban Group for Climate Justice, co-founder of Climate Justice NOW!, co-founder of the U.S. based Environmental Justice Climate Change Initiative, and a regular policy advisor to indigenous communities. In 2010, he was honored by the Sierra Club and the National Association for the Advancement of Colored People (NAACP) as a “Green Hero of Color.” Last year, just weeks before COP21, he was awarded the Gandhi Peace Award, bestowed upon leaders who strive for world peace.

    • Nuclear ‘Ticking Time Bomb’ Is a Real Threat to New York, But the Feds Don’t Seem to Care

      A little more than a year ago, a transformer fire and oil spill reminded the world that Indian Point, an aging nuclear power plant, sits only about 45 miles north of midtown Manhattan. Later it was revealed that the fire was caused by a short circuit due to insulation failure in a high-voltage coil in the transformer.

    • Revealed: New evidence shows palm oil giant flouting rules to prevent Indonesian forest fires

      One of the world’s largest producers of palm oil appears to have defied instructions from the Indonesian government to stop practices that could cause a repeat of the extreme forest and peat fires of 2015, a new investigation has revealed.

      In November last year, the Ministry of Environment prohibited the palm oil industry from planting commercial crops on already burned land and instructed companies to ensure primary canals are blocked to prevent land being drained.

      Evidence unearthed by a Greenpeace Indonesia field investigation in April suggests that IOI has in fact violated these new rules.

    • Peabody Coal Bankruptcy Reveals Climate Denial Network Funding

      Peabody Energy, the world’s largest private-sector coal company, has provided funds to a network of individuals, scientists, non-profits and political organizations espousing climate change denial and opposition to efforts to tackle climate change, according to newly available documents reviewed by the Center for Media and Democracy (CMD/PRWatch).

      The recipients of funding from Peabody Energy were made public in the company’s recent bankruptcy filings.

    • Revealed: How This Coal Giant Became Treasury Dept. for Climate Denialists

      Peabody Energy, the largest coal producer in the U.S., funded dozens of groups spreading skepticism about climate change, according to new figures that reportedly surprised even environmental advocates with their scale.

      A Guardian analysis of the company’s filings reveal that Peabody gave money to at least two dozen companies including trade associations, lobbying groups, conservative think tanks, and other organizations that campaigned against climate science and fought President Barack Obama’s plans to cut greenhouse gas emissions.

    • Now THAT’s going to make you saddle sore! Hundreds of cyclists ride naked through London in protest against car culture
  • Finance

    • Walmart Canada to stop accepting Visa cards due to ‘unacceptably high’ fees

      Walmart says it intends to join the list of retailers in Canada that don’t accept Visa cards, citing high fees for transactions. It’s a move one retail analyst has said will cause “pain on all sides.”

      All credit cards charge fees to retailers, which generally are between one per cent and 2.5 per cent of the cost what’s being sold. The fees vary depending on the type of card the customer is using — cash-back and premium cards generally have higher fees — and the type of retailer they’re shopping at.

    • EU referendum: Gordon Brown urges Labour voters to stay in

      Former PM Gordon Brown is to tell Labour voters they have the “most to gain” if the UK stays in the European Union, as the party seeks to rally its supporters behind the Remain campaign.

      In a speech later, he will say the EU can deliver policies close to their concerns including tackling corporate tax avoidance and creating jobs.

      Mr Brown will make what he is calling the “positive” case for staying in.

    • Left-Wing Party In Spain Borrows Ikea Style to Promote Anti-Austerity Manifesto

      The Spanish anti-austerity political party Podemos has an interesting idea to make its new platform the “most-read manifesto ever produced”: put it in the form of an Ikea catalog.

      Across pages of photographs depicting the party’s leaders relaxing or working in their sun-dappled homes, Podemos outlines its proposals (pdf) on key political issues, covering familiar ground with plans to reduce unemployment and increase taxes on the wealthy.

  • AstroTurf/Lobbying/Politics

    • Going Global: Bernie Sanders’s Challenge

      As Bernie Sanders ponders his next step, he could fall in line behind the Clinton bandwagon or break free and take his critique of economic injustice to a global stage, starting with a challenge to Brazil’s pro-corruption coup, writes Sam Husseini.

    • How Donald Trump, Hillary Clinton and Others Used Social Media to Reframe News of Orlando Shooting

      As news updates rolled in about Sunday’s shooting at Orlando’s Pulse nightclub, politicians, public figures, activists and journalists took to Facebook and Twitter to send out unfiltered statements about the significance of the massacre.

      For prominent politicians in and seeking office, the shooting represented an obligation to comment as well as a challenge, as the tragedy touched on several highly charged issues and themes in the public sphere, including but not limited to: LGBTQ rights, homophobia, Islamophobia, gun control and terrorism.

  • Censorship/Free Speech

  • Privacy/Surveillance

    • Embarrassed German intelligence official trying to discredit Snowden

      German intelligence mandarin Hans-Georg Maassen of the Verfassungsschutz has told the Bundestag’s NSA committee that it is “highly plausible” that whistleblower Edward Snowden is a Russian spy.

      Obviously, it is very hard if at all possible to know if anyone is a Russian spy. There are even speculations about Chancellor Merkel (who is of East-German descent). But speculations are just speculations.

    • DOJ Warns Calexico Police: Fix Institutional Problems Before Adopting Surveillance Tech

      Law enforcement agencies should not expand their electronic surveillance capabilities until they have addressed core problems of corruption, incompetence, poor oversight, and inadequate training.

      Echoing concerns long raised by EFF, that’s the message the U.S. Department of Justice (DOJ) sent the Calexico Police Department (CPD) following a years-long investigation into alleged corruption by officers.

    • NSA interested in exploiting internet-connected medical devices, spying on IoT

      The NSA has new tricks up its sleeve, looking for ways to exploit the Internet of Things and connected biomedical devices like pacemakers in order to monitor targets and collect foreign intelligence.

      At the Defense One Tech Summit on Friday, NSA Deputy Director Richard Ledgett said, “We’re looking at it sort of theoretically from a research point of view right now.”

      If that involves hackers from the NSA’s Office of Tailored Access Operations (TAO), then it’s practically a done deal when you consider the wide range of devices previously pwned and listed in the ANT division catalog of exploits. It surely wouldn’t be too difficult for the group, since IoT and wireless medical devices are notoriously insecure.

      Ledgett, according to The Intercept, claimed surveillance via biomedical devices might be “a niche kind of thing … a tool in the toolbox.” He reminded the audience that there are easier ways for the NSA to spy on targets.

    • NSA targets the Internet of Things as a new data source

      The Internet of Things (IoT) may be the US National Security Agency’s next potential target for spying and collecting data according to a comment made by its deputy director at a recent military technology conference.

      During the conference, which was held in Washington DC on 10 June, deputy director of the NSA Richard Ledgett said that the agency is considering potential ways it could collect data from internet-connected devices such as smart appliances and pacemakers. According to the Intercept, he said: “We’re looking at it sort of theoretically from a research point of view right now.” IoT technology has yet to become truly mainstream and as such the NSA exploring ways it could utilise this new wave of devices to collect information is in line with the agency’s past activities.

    • Snowden leak reveals Scottish links to GCHQ spy programme
    • Snowden exposes mass surveillance in Scotland by “unknown” government agency
    • Politicians and researchers raise questions over secret Scottish surveillance system
    • Apple vs FBI: NSA reveals why it couldn’t hack San Bernardino iPhone
    • NSA Explains Why It Couldn’t Hack San Bernardino iPhone
    • Could FBI Again Struggle To Get Access To Orlando Terrorist’s Phone?
    • BlackBerry hands over user data to help police ‘kick ass,’ insider says

      A specialized unit inside mobile firm BlackBerry has for years enthusiastically helped intercept user data — including BBM messages — to help in hundreds of police investigations in dozens of countries, a CBC News investigation reveals.

      CBC News has gained a rare glimpse inside the struggling smartphone maker’s Public Safety Operations team, which at one point numbered 15 people, and has long kept its handling of warrants and police requests for taps on user information confidential.

    • BlackBerry: We’re Here To Kick Ass And Sell Out Users To Law Enforcement. And We’re (Almost) All Out Of Users.

      Back in mid-April, it was discovered that Canadian law enforcement (along with Dutch authorities) had the ability to intercept and decrypt BlackBerry messages. This level of access suggested the company had turned over its encryption key to the Royal Canadian Mounted Police. BlackBerry has only one encryption key for most customers — which it maintains control of. Enterprise users, however, can set their own key, which cuts BlackBerry out of the loop completely.

      BlackBerry CEO John Chen — despite publicly criticizing Apple for locking law enforcement out of its phone with default encryption — refused to provide specifics on this apparent breach of his customers’ trust. Instead, he offered a non-denial denial, stating that BlackBerry stood by its “lawful access principles.”

    • US government asks to join key EU Facebook privacy case brought by Schrems

      The US government has asked to be joined as a party in the Irish High Court case between the Austrian privacy activist and lawyer Max Schrems, and the social network Facebook. In a press release, Schrems called this “an unusual move.”

      He told Ars that there are no documents relating to the “amicus curiae”—friend of the court—request yet. “The US government simply appeared via a barrister at the first (administrative) hearing today,” he said. “They will be able to file the documents until the 22nd.”

      Schrems speculated that the US government has made this move because it wanted to defend its surveillance laws before the European Courts. “I think this move will be very interesting,” he told Ars. “The US has previously maintained that we all misunderstood US surveillance.”

    • Now, please focus on Tor and its future

      Having seen the Swedish and the German Pirate Parties going down in flames after infighting, I can recognize some sort of underlying tone in the Tor dispute. Conflicts in tech-oriented communities often tend to spiral out of control and reason.

    • Snowden: Scotland has its own NSA conducting mass surveillance of phone and internet activity

      Documents leaked by Edward Snowden reveal that Scottish authorities have been engaged in gathering data about phone and internet usage in much the same way as the NSA and GCHQ.

    • Secret police phone tap unit was run by Strathclyde Police
  • Civil Rights/Policing

  • Intellectual Monopolies

    • Experts, scientists urge Kerala govt to include IPR in curriculum

      Now, the IPR experts and scientists have submitted a representation to the new Kerala government to include IPR in the educational curriculum from the school level and to set up an IPR Academy. Thiruvananthapuram: Since the last seven years, a proposal to set up an Intellectual Property Rights (IPR) Academy in Kerala remains only on paper. IP literacy is still very low even after two decades since we signed the Trade Related Intellectual Property Rights (TRIPS) at World Trade Organisation. “The proposal to include it in educational curriculum and to set up an IPR Academy will be taken forward by the new government and a clear picture on its modalities will emerge soon,” he said. IPR is already an optional subject for Law students in Kerala.

    • Why you just can’t have a one-size-fits-all IPR policy

      The National IPR (Intellectual Property Rights) policy was released on May 11. This 38-page document will give directions to the government to promote ‘creative and innovative India’. Questions have been raised in some quarters about the need for a new policy now, as extensive legislation has been passed amending patent, copyright, trademark and design laws. Was the report released because of the Prime Minister’s US trip? Will it play into the pharmaceutical lobby?

    • Alongside UN Commitments To End AIDS, Event On Access Brings Tears, Vision

      Last week, United Nations members agreed on a political declaration on ending AIDS by 2030, with some new and old commitments. Alongside the 8-10 June High-Level Meeting on Ending AIDS, a side event looked at issues of access and got into intellectual property rights issues.

    • Myriad Genetics Refuses To Accept That People Have A Right To Access Their Own DNA Sequences

      One of the biggest victories on the patent front was when the US Supreme Court finally ruled that naturally-occurring DNA cannot be patented. The company involved in this case, Myriad Genetics, didn’t give up at this point, but tried to claim that despite this ruling, its patents on genetic testing were still valid. Fortunately, the courts disagreed, and struck down those patents too.

    • Love IP enforcement? Come to Brussels next week for the Commission’s IP Enforcement Conference!

      The AmeriKat currently has a four dedicated IP passions – SPCs, the UPC, trade secrets and remedies. Luckily for her 2016 has so far been an exciting year for all four. In particular, IP remedies in Europe is undergoing a potential renaissance in the form of the Commission’s Consultation on the IP Enforcement Directive (2004/48/EC) which closed on 15 April 2016 (see here).

    • Copyrights

      • “Piracy Monitoring Outfit Uses Flawed Tracking Technology”

        Every day anti-piracy outfits monitor millions of unauthorized BitTorrent transfers. Among other things, the data collected is used to sent stark warnings to alleged pirates. However, according to a torrent site owner the tracking methods of these companies are not all foolproof.

      • Neil Young Onstage: ‘F–k You, Donald Trump’

        In a lengthy Facebook post, Neil Young cleared the air about how he feels about Donald Trump using his songs: “YOUNG CONTINUES TO DENY TRUMP PERMISSION TO USE HIS MUSIC,” the rocker wrote, attaching a short clip of him yelling “Fuck you, Donald Trump” onstage.

      • Not The Onion: Morocco Bans Sharing Newspapers To Protect Publisher Business Models

        It’s no surprise that traditional newspaper publishing is a struggling business. That’s been the case for a long time, leading to a variety of silly proposals to try to prop up their failing businesses. There’s been talk of changing copyright law to ban linking to or paraphrasing newspaper articles online. There’s been a lot of focus on somehow harming search engines, as if they’re the problem that newspapers face. There have been proposals to create a special version of the hot news doctrine to stop search engines from linking to stories. And, of course, over in the EU there’s been a years-long push to “tax” links, which was so broad in Spain that Google News shut down in that country. That law, designed to protect newspapers, actually harmed them.

        However, I don’t think any proposal we’ve seen is crazier than what’s happening in Morocco, where apparently newspaper publishers are lashing out at anything they can think to blame in response to decreasing revenue — including people in cafes sharing newspapers with others. And thus, a compliant government has now banned the practice. No one’s putting any spin on this other than “OMG, newspapers are making less money, and let’s ‘protect’ them.”

      • Pure Bullshit: AMC Threatens Huge Fan Community With Copyright Claim Over ‘Spoiler’ Predictions

        What’s up, Hollywood TV people? Hey, could you do everyone a favor and maybe stop being complete assholes to your biggest fans — and especially completely abusing copyright law to harass and bully those people? Almost exactly a month ago we wrote about HBO abusing the DMCA process to go after people who were predicting what would happen in Game of Thrones, accusing them of violating copyright law in accurately predicting what would happen in the future. As we noted, that’s not at all how copyright law works, but apparently AMC took a look at what HBO was doing and said “hey, let’s do that too.”

      • EU digital copyright consultation: Last chance to have your voice heard

        An important EU public consultation on copyright closes on Wednesday. As well as the official consultation page from the European Commission, there is an easy-to-use site set up by the Copyright for Creativity group that aims to facilitate the process by explaining what the questions really mean. It takes only a few minutes to complete, and automates the entire submission process. There are versions in English, French, German, Spanish, Italian, and Polish.

        The consultation offers a rare chance for members of the public to help shape the EU’s future digital copyright policy in two areas that are highly relevant for Ars readers. The first is the idea of placing a “Google tax” on snippets. More formally called a “neighbouring right” or “ancillary copyright,” it would allow publishers to demand payment from search engines and content aggregators when the latter include short snippets that link to the original text. As Ars explained last year, the approach has been tried in Spain and Germany with disastrous results—a powerful argument not to extend it across the whole of the EU, as the European Commission is still considering.

Report From Thursday Protest in EPO Munich Branch/Headquarters

Posted in Europe, Patents at 7:19 am by Dr. Roy Schestowitz

Munich EPO protest

Summary: Photos and updates from the ground in Munich, where many EPO employees gathered in order to protest abusive management (at the same time as a lobbying event in Lisbon)

THREE days ago we published photos from the EPO protest at The Hague and reports from The Hague and Munich protests. The above is a photo from Munich, which helps demonstrate just how heavy the rain was, much to the delight of Battistelli and his thugs. The very fact that half a thousand people marched the streets in their lunchtime break says quite a lot, especially so given this appalling weather.

In addition, some people who attended the demonstration last Thursday put together this short report:

Despite the absolutely awful weather (pouring rain) some 500 (estimated by the police) colleagues took to the streets in the latest demonstration. They were joined by Ms Gabi Schmidt (Mitglied des Bayr. Landtags; Freie Waehler). Target of the demonstration was the Bavarian Ministry of Interior whom SUEPO intended to ask the Minister to use his political influence to improve the situation at the EPO. The meeting was refused with the argument that the “Innenministerium” is not responsible for the EPO. “Not responsible” or “we only have one vote” is the answer that we hear everywhere. We would like to quote Prof Dr Bross (retired judge at the German constitutional court): “with that form of thinking we can have Guantanamo on German soil.” We appreciate that Ms Schmidt and her colleague Ms Susann Bielefeld (SPD) do not turn their heads and look away but actively support our claim for European norms and fundamental rights to be recognised for staff at the EPO.

Involvement and intervention from Gabi Schmidt was mentioned and commended here before [1, 2, 3, 4]. More politicians gradually become better aware of the absurd situation in Eponia. When will this menacing regime be shut down? Clearly it cannot go on like this.

Spontaneous Protest at EPO Today as Battistelli Still Acts Defiantly, Three Days of ‘Trial’ Starting Tomorrow

Posted in Europe, Patents at 6:58 am by Dr. Roy Schestowitz

EPO room booking
Evidence of room booking (room 131, as expected)

Summary: Battistelli continues to demonstrate that his war on truth-telling not only persists but is intensifying, culminating in the third ‘trial’ tomorrow (after Battistelli failed to get his way in the first two)

THIS morning we published three articles about the latest attack from EPO management against the boards (of appeal) [1, 2, 3]. It is expected that the public will soon be able to see that all the defamation comes from Battistelli, not from the accused judge.

It’s no longer just about a judge. Battistelli’s attack on staff long ago proceeded to staff representatives or anyone who dares say the truth about Battistelli and his goons. For quite a few days now we have expected to hear the decision on the cases of two staff representatives from Munich (we wrote about this last week) and it turned out as we expected. Battistelli is once again spitting at the face of the delegates with their demands of justice or at least perception of justice while making things even worse by attacking staff representatives at The Hague, not just in Munuch. There is a protest going on right now. To quote a quickly-put-together two-page leaflet:

BREAKING NEWS

The requests for review of Ion and Malika have been REJECTED:

the disciplinary measures are maintained in FULL !

We invite all staff to join us in a spontaneous

PROTEST

TODAY (Monday) 13h in the Kurt-Haertel-Passage

a RESOLUTION will be proposed

(see reverse)


Staff of the EPO, gathered IN PROTEST against the decision of Mr Battistelli to maintain the disciplinary sanctions against Ion Brumme and Malika Weaver,

Noting that:

The disciplinary sanctions against Ion and Malika are widely perceived as unfair,

Following a request for review, Mr Battistelli decided to maintain these sanctions in full,

Further noting that:

The new regulations proposed in CA/53/16 do not in any way enhance confidence in future disciplinary proceedings and sanctions, quite on the contrary,

The amended “Standards of Conduct” and the new investigation guidelines proposed in CA/52/16 increase the discretionary power of the President and grant additional competences to the Investigative Unit thereby “legitimising” further interferences with the fundamental rights of staff,

The new regulations proposed in CA/15/16 give the President full discretionary power to define the cover and reimbursement conditions of the EPO’s obligatory health cost insurance,

The regulations proposed in CA/29/16 give the President undue discretionary power over the post-employment conditions of staff at the EPO,

The reform of the Boards of Appeal proposed in CA/aa/16 does not take into account the comments from the Council of from DG3,

The administration has not approached SUEPO for further discussions about a Memorandum of Understanding,

Urge the Administrative Council as supervisory organ of the EPOrg,

to stop the repeated, egregious abuses of power by Mr Battistelli, and

to reinstall Ion Brumme and Malika Weaver in full, pending an independent investigation into the disciplinary and other sanctions imposed by Mr Battistelli on Ion Brumme and Malika Weaver, and on other staff representatives.

Munich, 13.06.2016

Unless Battistelli managed to 'buy' votes, there is no way he can convince the Council later this month that he has done something to appease anyone.

Another message, heralding the above development, stated (similarly to the above):

It is with deep regrets that I have to announce the sad news today:

The requests for review of Ion and Malika have been REJECTED:

the disciplinary measures are maintained in FULL !

Ion remains OUT of the EPO and Malika DOWNGRADED

A spontaneous DEMO will be taking place today in Munich

The call from the Council to appease the conflict in the Office has not been heard:

what initially seemed like a change of course may only have been a short break and the present administration maintains its policy without restraint and at all cost, including human cost.

My thoughts go to Ion and Malika, who after Els, Aurélien, Michael are bearing the personal consequences of the present „InHuman Resource“ policy driven by the EPO President during his term of office. Last but not least my thoughts go to our colleague from DG3, is still awaiting his final judgment (presumably in the coming days-see below) some one-and-half year later after his initial suspension from Office.

The protest is already underway. What EPO workers can do is attend the meeting tomorrow and encourage journalists in Germany (e.g. Süddeutsche Zeitung and the Bayerischer Rundfunk) to do so as well, in spite of the relatively small size of the room. We encourage people to bring small recording devices and leak the recordings to us for publication and overdue scrutiny.

Out-of-Control Battistelli Repeatedly Breaks Office Rules and EPC Rules, Then Tries to Change the Rules (Retroactive Legalisation)

Posted in Europe, Patents at 5:01 am by Dr. Roy Schestowitz

Michael Hayden and Battistelli
Utter disregard for the law a privilege of few

Summary: A look at the abuses from Battistelli, who is breaking rules in a pathetic effort to gag critics, one day ahead of a third ‘trial’ against a truth-telling judge

THE absurdities at the EPO are somewhat reminiscent of GCHQ. Not only are rules being broken (knowingly and consciously) by management. The management tries to hide evidence of this and if the evidence leaks out to the world, then a campaign begins to try to retroactively authorise the abuses. Such is the nature of the EPO under Battistelli and the following relatively new text helps explain this from start to finish (which might be tomorrow or a few days later).

Here is some background information:

Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges in the same case following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquité or autrefois convict (autrefois means “in the past” in French), meaning the defendant has been acquitted or convicted of the same offence and hence that they cannot be retried under the principle of double jeopardy that is mirrored by the “non bis in idem” principle applied by the ATILO in respect of disciplinary cases.

“EPO Law,” on the other hand, is full of abuses. Consider 'Decision 1' Art. 23 1/15 (as HTML) and another which coincided with Board 28's letter to Heads of Delegation of the Administrative Council. Here is the PDF of ‘Decision 2′ Art. 23 2 /15. As we have been noting here for over a week, ‘Decision 3′ Art 23 ?/16 is on its way. To quote the above sources: “Hearing [will be] open to the public. [...] on 14 to 16 June 2016″ (apparently because the EBoA insisted on it).

The above sources give an explanation of the situation as follows (doing a good job at highlighting the Nixonite behaviour of Battistelli amid Watergate):

Third time lucky?

Towards the end of 2014, the Investigative Unit carried out covert surveillance operations on a computer on the first floor of the Isar building as reported in the press and Internet blogs some time later. This computer is public: it was used by visiting delegates and patent attorneys. Subsequently a member of the Boards of Appeal was accused of “anonymous defamation1” of Mr. Topić (VP4) and served a “house ban” (technically equivalent to a suspension). The result was a storm of protest2 and quite rightly so. The Office does not have the right to spy on computers used by Council delegates and third parties. Investigating DG3 members further infringes their independence. For the same reason (infringement of their independence) Mr. Battistelli does not have the authority to suspend DG3 members. The latter aspect was more or less covered-up by the Council retroactively (sic) approving of the action. The alleged victim of defamation, Mr. Topić, appears to have a significant number of cases slowly working their way through the Croatian legal system. Interestingly, Mr. Topić lost his defamation complaint against a former co-worker despite the very serious nature of the accusations that she raised against him3. Hence it is difficult to determine what exactly can be considered “defamatory” in relation to Mr. Topić. The Office, on the other hand, apparently did not hesitate to facilitate the circulation of numerous very dubious accusations against the DG3 member, leaving the impression that a Board of Appeal member with an impeccable resume was in fact an armed nazi stalking the corridors of the Isar building4.

Mr. Battistelli is clearly determined to have the DG3 member removed from office, but seems to be rather lost as to the procedures to follow. The first attempt was via a Disciplinary Committee set up by the Council, to be followed by a dismissal by the Council in October 2015. In making this proposal Mr. Battistelli overlooked Art. 23 (1) EPC which stipulates that members of the Boards can only be dismissed upon a proposal from the Enlarged Board of Appeal. In other words: the President of the EPO proposed to the Council to act in breach of the EPC. The Council apparently had its doubts about the legality of the course of action proposed by the President and commissioned an independent legal opinion which confirmed their suspicions: a Board member cannot be removed from office unless the Enlarged Board of Appeal (EBoA) has decided to make a proposal to that effect.

A first attempt to get the EBoA to issue a proposal for removal from office had already been initiated earlier in 2015 but had failed because the EBoA apparently could not make sense of the mass of
unstructured material that had been thrown at them. It found the request submitted by the Council to be irreceivable due to lack of substantiation. Apparently, the Office management suppressed the publication on the Office website within days despite the decision of the EBoA that it should be published. This obviously is another problem since it amounts to Mr. Battistelli censoring the EBoA, which seems to be a further interference with its independence. Not awaiting the written reasons for the first decision, the Council, apparently at the urging of the President, proceeded to launch a second request for removal from office. This second request suffered from the same flaws and was withdrawn by the Council on 11 February after a delay of several months. The decision in the second request, although flagged for publication by the EBoA, never made it to the outside world but can be found on the Internet5.

The Council then launched a third request which is still pending. In order to accommodate the prolongation of the procedure, Art. 95 SevRegs was changed in December 2015 with retroactive effect (!) so that now not only the Board member concerned, but any Board member can be suspended for 2 years and longer. After 1.5 years suspension, now on half pay, and 5 procedures (investigation, disciplinary procedure and 3 EBoA procedures), one wonders how many times the Council may come back with basically the same case.

Detailing the complete catalogue of procedural errors in this case would go far beyond the scope of [this] article. Suffice it to say that the whole procedure provides a textbook example for the lack of competence that prevails in the Battistelli administration. And whatever the outcome will be, it is clear that there will only be losers: the Council, who did not assume responsibility as appointing and disciplinary authority, Mr. Battistelli who, in this procedure, has breached almost every regulation in the book; DG3 that has seen its independence seriously undermined, and the DG3 member concerned who has been living an uncertain and very expensive nightmare for 18 months, with no end in sight.

______
1Communiqué No. 64 (« Anonymous defamation : EPO staff member apparently involved ») of 03.12.2014, referring back to a
Communiqué of 26.02.2013 (« Defamation Campaign against VP4 »)
2 http://ipkitten.blogspot.de/2014/12/breaking-news-enlarged-board-appeals.html
3 http://techrights.org/2016/01/19/croatian-defamation-lawsuit-an-update/ (access to Techrights is censored in the EPO)
4 Similar accusations were repeated by the President in a letter to Mr. Pierre-Yves Le Borgn’
5 A short overview of the case and links to both decisions can be found on wikipedia: https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15

I have personally been following this saga since the beginning and it is appalling that Battistelli still calls himself “President”. He should have been impeached not with compensation but with legal cases against him. It’s Battistelli who should be on trial, and maybe some day we shall see that too.

Make no mistake about it. It’s not as though EPO staff isn’t aware of what’s going on. It’s mostly the media, which has been greased up by Battistelli, that remains apathetic or unwilling to cover the above scandal (or cover it poorly/improperly if it does at all). Sometimes the media just helps Battistelli defame his victim — a subject on which we might say more one day (we have some insider knowledge of how it came about).

Regarding EPO under Battistelli, one person asked yesterday: “Who is going to be stupid enough to apply for a job at these conditions?” Here is the message in full: “If I understand correctly, the President is introducing new laws meaning that if he fires me for failing to meet 15% yearly increases of examination targets, or because my husband is a patent attorney, he can prohibit me from working for 2 years, cut my pension and apparently also cut my health insurance.

“This sounds crazy when the office is announcing internally that they will recruit hundreds of examiners in the next 3 years to get rid of the backlog until 2020 (4 years). And at that point they will need hundreds of examiners less, of course. Who is going to be stupid enough to apply for a job at these conditions?

“In addition, this is not at all what the council asked. Maybe the President has a plan to destroy the EPO and replace it with a new patent system. Or maybe he is indeed crazy, I don’t know. He is not so young. In any case, what can the council really do? Can they get rid of a President in advance? Can they force him to do anything? ”

This is not compatible with European law. Battistelli “might kill the EPO in the process,” one person wrote yesterday. To quote the entire comment: “I don’t think he has a plan to replace the whole system with something else.

“He is just applying what he has learned and what has been applied to all public agencies and corporations for the last 3 decades, cost cutting at the bottom combined with bonuses for the top floors.

“He might kill the EPO in the process, but that is not very likely without political will to do so.

“He will probably do a lot of irreversible damage that will affect the whole IP profession in Europe, examiners and attorneys alike and also some applicants. After all, if filling a form is all that I need to get a patent, I certainly will consider doing that myself.”

Well, patent lawyers too increasingly realise that Battistelli is against their interests.

We couldn’t help but notice someone still responding to provocative comments if not trolling (which we prefer to altogether ignore and skip). The term “team Battistelli” seems to have been adopted there (it was coined by Techrights). Remember that Battistelli leaving would not be enough as his circle of entryism (i.e. Team Battistelli) now poisons the EPO’s management as a whole. Battistelli has surrounded himself with people as abusive as himself, or at least loyal enough to cover up his abuses.

Association of the Members of the Boards of Appeal Urges EPO Administrative Council to End Battistelli’s Coup

Posted in Europe, Patents at 3:57 am by Dr. Roy Schestowitz

Association of the Members of the Boards of Appeal (AMBA)

Summary: A call for the Administrative Council to take swift action and remove Battistelli along with his outrageous plans (risking collapse of the entire organisation) has just grown louder

As of last night, based on the timestamp in the page, the Association of the Members of the Boards of Appeal (AMBA) had this to say as Battistelli's attacks on the boards intensify (they don’t mention Battistelli specifically, for the sake pf diplomacy):

Open Letter to all Stakeholders with an Interest in Maintaining the Boards of Appeal of the EPO as an Independent Judicial Body

The Boards of Appeal (BoA) are the body within the organisational structure of the European Patent Office taking final decisions on appeals against decisions refusing patent applications and revoking patents. Thus, they must meet the requirements of TRIPS and national constitutional law “Rechtsweggarantie/Access to justice”.

After two years of work, the European Patent Office has produced a proposal for re-structuring the BoA. The President will put this to a vote by the Administrative Council (AC) at the end of June.

The aim is to increase the BoA’s independence, within the limits imposed by the EPC. However, while some aspects of the proposal have a superficial appeal, even minimal reflection on the principles underlying judicial independence shows that the proposals are very wide of the goal, namely to increase the functional independence of the BoA without changing the EPC.

The issue came to the fore after the Enlarged Board’s decision R 19/12 in which the Enlarged Board of Appeal (EBA) decided that its Chairman, who is simultaneously Vice-President of the BoA, was not independent because of his administrative functions within the Office. That the proposals represent a serious deterioration, as compared to the situation before that decision, is evident from the following.

The status quo before R 19/12

  • The President’s respect for the BoA’s judicial independence meant he did not intervene in their functioning, and de facto delegated his powers to the Vice-President, on the basis of Article 10(2)(i) EPC.
  • The BoA were responsible for selecting members and chairmen, and the President then proposed their appointment by the AC.
  • At the end of a member’s five-year term, re-appointment was the default, in the absence of serious reasons.
  • The Rules of Procedure of the BoA were adopted by the Presidium, subject to the approval of the AC. The President played no part.
  • The Office President shared the responsibility with the AC of selecting and appointing the BoA Vice-President, who is simultaneously the Chairman of the EBA – the highest judicial position in the European patent system.

The proposal

- Delegation

  • The President of the Office’s “act of delegation” aims at clarifying his lack of influence over the BoA, but in fact makes clear that he can and will intervene for any number of reasons, including whenever he considers the “interests of the Office” to be at stake.

- Independence

  • The proposal does not codify any new guarantee of independence.
  • There is a problem of external independence. Apart from being accountable to the AC, the President of the BoA is bound also by the BoAC’s “guidance” and “objectives”, and holds his powers only so long as the President of the Office deems fit.
  • There is a problem of internal independence. Key judicial tasks are placed in the hands of a single person, the BoA President. This is aggravated by the following point.
  • The AC can only appoint a President of the BoA that the President of the Office proposes because the latter retains his power to propose the appointment of the Chairman of the Enlarged Board of Appeal.
  • Shoehorning the career structure of the BoA members into the performance-based system of the rest of the Office ignores the BoA’s judicial nature. It also produces strange, not to say inexplicable, results: young members start on unusually high grades and experienced members are downgraded.

- Security of tenure

  • There is, de facto, a loss of security of tenure because re-appointment is subject to a positive recommendation in the light of unspecified reporting and performance criteria.

- The advisory body to the AC (BoAC)

  • The BoAC is to “monitor the independence” of the BoA, but has no means of guaranteeing it, or, indeed, clarity as to what such monitoring entails.
  • The BoAC is responsible for “guiding” and “controlling” the President of the BoA regarding general objectives, performance criteria, the annual report, the budget request and its execution, and even criteria for the distribution of cases, an area that currently falls within the power of the Presidium.
  • The President of the Office is entitled to participate in all meetings of the BoAC.
  • The BoAC, rather than the Presidium, adopts the Rules of Procedure of the BoA after consulting the Office President.

Conclusion

In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.

In our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already be resolved by the Vice-President’s withdrawal from management activities.

Additional considerations

This reform has not proceeded in a way commensurate with the importance or status of the BoA and the user and public interest. There has been a lack of transparency and any meaningful consultation, as can be deduced from the following:

  • The ideas in the project have essentially not changed since the original paper CA/16/15, which was criticised by the Boards, users and some delegates of the Administrative Council.
  • The “consultation” with the BoA amounted to no more than discussing our proposals, no aspect of which was incorporated, and last minute discussion of finished drafts, which were not changed at all.
  • No meaningful consultation took place with any stakeholder. The on-line user consultation invited users to give answers to leading questions about invented problems, and the responses were then misrepresented.
  • The proposal contains several aspects that the AC had regarded as secondary (efficiency, location) or had not been aware of at all (fees).
  • A new location is being pursued without any contact with the BoA.
  • An efficiency study of the BoA was commissioned without informing either the BoA or the AC.

Further information can be found on the AMBA website and in particular in an information pack that formed the basis of a recent panel discussion event in Munich where distinguished judges debated the principles of judicial independence and their application to the BoA.

We encourage any stakeholder with an interest in this matter to make their views known to their national delegations in the AC, who already have access to the proposal.

Yours faithfully,

The Association of Members of the Boards of Appeal

Board 28 has already warned about a "crisis" and the Administrative Council should sack Battistelli for his failure to even listen to the Administrative Council. It’s long overdue. Here are contact details for delegates to the Administrative Council.

Our next post will shed more light on why Boards of Appeal and Battistelli cannot get along and also shed light on the timing of the above letter.

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