EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

06.15.16

Benoît Battistelli Apparently Breaks the Rules Again and Says That Transparent Trial is Unlawful, Threatens Those Involved

Posted in Europe, Patents at 9:53 pm by Dr. Roy Schestowitz

Battistelli seems to have had another tantrum/temper attack which he’s already quite infamous for

Battistelli versus EBoA

Summary: The effort to make the hearing (or ‘trial’) secretive backfires on Battistelli as the media (that which Battistelli isn’t paying or manipulating with PR agencies he spends millions of Euros on) catches up and reports more widely the absurdity of this whole situation

We have already published numerous articles about the so-called ‘trial’ against a judge who said the truth about the EPO [1, 2, 3, 4]. The more one knows about it, the more infuriating it can become (it seems as though the judge is being defamed in the media, probably with direct involvement from Team Battistelli and maybe FTI Consulting as well).

As of midnight (a few hours ago), The Register has this article (screenshot above) which summarises some of the latest developments (but not all). To quote:

President of the European Patent Office (EPO), Benoit Battistelli, has been caught threatening an independent appeals board looking into the case of a judge he summarily dismissed.

In an extraordinary turn of events in Munich this week, a planned public hearing of the organization’s “Enlarged Board of Appeal” was abandoned after it said it had received a “threatening letter” demanding that the hearing be held in private.

The board did not say who the letter was from or precisely what threats it contained, but several sources have confirmed it was sent by Battistelli, and in it he warned the appeal board that holding its hearing in public was “unlawful.”

It is not known what Battistelli threatened to do if the board continued with its plan to hold the meeting in public, but under recent reform plans that his office has drawn up, the EPO president has introduced a range of measures that would effectively give him the right to hire and fire the president of the – supposedly independent – Board of Appeals.

According to those familiar with events, the appeal board responded to the letter by pointedly asking the chair of the EPO’s Administrative Council whether he agreed with the letter’s contents.

According to a brief public statement made just before the appeal board shut down its meeting, the chair refused to disown its contents. In response, the appeal board refused to continue with its disciplinary proceedings.

Someone also leaked to us SUEPO’s report. Since we already saw the original and can confirm it is the same, including the typos (like “treats” instead of “threats”), we might as well paste the comment below and add the formatting to it:

Further details, according to an internal post of SUEPO:

15/06/2016

Enlarged Board of Appeal dismisses the case against the DG3 member amid treats by the EPO President Battistelli

Newsflash

Public oral proceedings before the Enlarged Board of Appeal (“the Enlarged Board”) were scheduled to start yesterday, 14 June, at 9.00h, to decide on the request for removal from office of a member of the Boards of Appeal by the Administrative Council (Article 23(1) EPC). The Administration required members of the public to enrol on a list with their name and the information whether they were EPO employees or external to the Office. About 25 badges allowing entry to room 109 were then distributed essentially according to the order of the list.

The hearing did not start as scheduled. During most of the day a conference in camera (i.e. not the hearing as such) took place. The discussion apparently centred around a letter sent a few days ago by the President of the Office to the Enlarged Board. Essentially, it appears that the President condemned the decision to make the hearing public as “unlawful” and affecting the proper functioning of the Office. The exact content of the letter is, however, unknown.

The Enlarged Board apparently perceived the letter as a threat and asked the Chairman of the Council whether the Council endorsed – or not – the position taken by the President. Apparently the EBA did not receive a clear and/or reassuring answer.

The Chair only officially opened the hearing at about 17:15h. In the presence of the public, a decision along the following lines was announced (note: this is not verbatim):

The EBA received a letter from an authority which is not a party to the proceedings and which they perceive as a threat. The AC, as the disciplinary and appointing authority of the members, was asked whether it endorsed that letter. The Chairman of the AC did not distance himself from the letter. Under these circumstances, the Board cannot continue the proceedings and consequently does not propose to remove the respondent from office.

After the above announcement the Chair requested the public to leave the room.

SUEPO central

One person wrote about the typo, which is also in the original:

How nice of the President to have distributed treats to staff.
Jolly ungrateful of the EBA to have complained about this.

Here is a more serious comment:

Presumably, such a letter passed over the desk of the head of the legal division. It beggars belief that he didn’t consider the ramifications this would have on the case being heard. Having received such a communication seeking to influence the decision of the EBoA members, the members could have each declared themselves unable to take part in accordance with A.24(2) EPC but instead took the pragmatic decision to end the proceedings. Well done!

“Here [is] a further summary of the recent events,” says this commenter, linking to an article of Mathieu Klos from Juve (quite a few people have spotted this report by now, but we need an English translation).

The thing about this judge is, Battistelli tried to get rid of him repeatedly, i.e. many times, over a long of period of time (causing stress to the judge whose wife was apparently somewhat involved too — not the first time we heard of a spouse being subjected to abuse by proxy, probably by Team Battistelli), costing the Office reputation, money, time, and productivity.

Here are some tidbits from the article:

http://www.juve.de/nachrichten/namenundnachrichten/2016/06/eklat-am-epa-battistelli-greift-in-amtsenthebungsverfahren-ein

(link to a Google translation)

Ugly: the Court had requested the testimony of 3 witnesses from the Investigative Unit, but the President did not authorize them to depose because they could reveal how the computers were monitored, while the has always maintained that proper rules were followed …

A broader overview of this article was as follows:

The apparent source of the Juve article is the accused BoA member’s lawyer, Senay Okyay. This lends it some authority.

But where is Battistelli’s threat? From the other reports here, I would have assumed it was explicit: “If you hold these proceedings in public, then I will do [something bad]“.

But according to Juve, Frau Okyay merely reports that “The President described a public hearing as unlawful by the statutes of the Office.”

Certainly, it was both wrong and stupid for Battistelli to attempt to interfere directly like this. The right people to argue this issue were the Admin Council’s representatives (who are of course employed by Battistelli). Perhaps they had already tried and lost.

But in different circumstances, I think an appeal board or a national court would just have ignored such an intervention, perhaps rebuffing it with some trenchant comments. And then they would have continued to make an independent decision about whether to hold the proceedings in public.

So what this incident underlines is the fragile state of relations between the Boards of Appeal and Battistelli. Because of all the very real threats that Battistelli actually has made to the Boards (unwelcome reforms, removal to Berlin or Vienna), they are ultra sensitive.

The result is that the Enlarged Board feels threatened by a letter which, in different circumstances, they might just have ignored. They fear how Battistelli might retaliate, even if he makes no explicit threat.

The independence of the Boards of Appeal is still as big an issue as it ever was.

Questions remain, however, about whether it all ended and whether the judge will get his job back (it might be impossible as long as Battistelli remains in Office, simply because he would not reconcile). To quote a comment about this:

I wonder whether the Enlarged Board really closed the case, by taking a final decision on the merits. All reports are a bit vague on this point. If a decision had been taken, it would probably have been announced with the public present. It would make sense to simply put the whole procedure on hold, since every decision would be tainted by interference in the independence.

This approach would leave the current request from the Council in pending, with the procedure suspended. The nice side effect is that any new request – #4 according to my count – would not be admissible, due to the procedure still pending.

Another person wondered: “Did Juv[e] not also report that the President refused to allow witnesses from the EPO to be heard? Hardly a threat admittedly, but certainly interference.”

“It is rather revealing that Battistelli cannot stand the idea that his defamation of a judge will become evident and lay bare for all to see; maybe there’s also an element of penis envy because the judge is far more qualified than Battistelli and so are his colleagues at the board.”Battistelli cannot recognise a fair trial because it’s not his area. He is not a scientist and not a judge either. The accused judge is both. It is rather revealing that Battistelli cannot stand the idea that his defamation of a judge will become evident and lay bare for all to see; maybe there’s also an element of penis envy because the judge is far more qualified than Battistelli and so are his colleagues at the board. They’re just a lot more modest and professional. Battistelli is coming to grips with his inability to get his outlandish desires fulfilled (something he rarely encounters these days), whereupon he just acts like a spoiled brat instead. It’s self-discrediting.

What next for Battistelli? Buying some more media contracts and enhanced PR cooperations? How can the public be distracted/taken away from all that negative publicity now that it’s in the mainstream media? EIA2016 is already old news and millions of Euros down the toilet. This was just a truly stupid and spurious festival whose real purpose was to glorify or launder the reputation of a serial human right abuser, whom a retired high-level judge spoke about to Juve, making a comparison to torture sites and repeatedly shaming Battistelli (with his own reputation as a famous judge on the line).

At this stage, Battistelli would be wise to step down like Ciaran McGinley. He might lose his job (or face immense pressure) later this month anyway.

Update: As of moments ago, someone posted an excellent explanation of why what Battistelli had done is totally unacceptable. To quote it in full:

The President described a public hearing as unlawful by the statutes of the Office.

Yes, of course: the narrative now is “The President only wanted to help and they overreacted”.

Please, read again Art 23(1) EPC:
(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.

Clearly, the Enlarged Board had decided otherwise, and in general they seem to be well-versed in the procedure – contrary to the President who has previously attempted to convince the AC to dismiss the member of the BoA without even passing through the EBoA, as the rules require.
If the Enlarged Board had decided otherwise, the President should have no say in that.

I think an appeal board or a national court would just have ignored such an intervention

They probably would, with the difference that:
1) Angela Merkel would never write a letter to some judges to tell them how to proceed:
2) the proceedings in a national court are public. Not so at the EPO, where Secret Trials are held on the pretense of confidentiality.

You did not refer to the fact that the President barred the witnesses from the Stasi – ehm, Investigative Unit, to appear at the proceedings.

Let me explain you why.

When the computers in the public – public – area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO’s Investigative Unit to the organisation’s internal data protection officer asked whether the spying described above “would have been authorised”—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for “alleged dissemination of material which was, as was also alleged, defamatory.”

Which means that the data collected from the public computers were obtained illegally. They cannot be used.

(Btw, Techrights has still a copy of the request to the DPO with the date clearly visible.)

Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

To conclude, the president is trying to interfere with the proper administration of justice: did the Enlarged Board really overreact?

There is something rather awkward about the following comment because it seems to give Battistelli a carte blanche and it also dismisses the claim (which we heard from several sources) about a “threat”. The comment says:

The President’s refusal to allow EPO witnesses to be heard is neither a threat nor interference. However, it does weaken the case against the accused BoA member.

Perhaps requesting that the oral proceedings be public (guessing that the President would then withhold the witnesses) was a clever tactic by Frau Okyay?

Regarding the first line/sentence, it seems to have gone far beyond “refusal to allow EPO witnesses,” but we don’t know enough because it’s all shrouded in secrecy — a secrecy induced by Battistelli himself (no wonder).

As for the second paragraph (above), the rules are very clear about this and Battistelli disregards the rules.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Patent Trolls' Lobby, Bristows and IAM Among Others, Downplays Darts-IP/IP2Innovate Report About Rising If Not Soaring Troll Activity in Europe

    Exactly like last year, as soon as IP2Innovate opens its mouth Bristows and IAM go into "attack dog" mode and promote the UPC, deny the existence or seriousness of patent trolls, and promote their nefarious, trolls-funded agenda



  2. Links 20/2/2018: Mesa 17.3.5, Qt 5.11 Alpha, Absolute 15.0 Beta 4, Sailfish OS 2.1.4 E.A., SuiteCRM 7.10

    Links for the day



  3. Replacing Patent Sharks/Trolls and the Patent Mafia With 'Icons' Like Thomas Edison

    The popular perceptions of patents and the sobering reality of what patents (more so nowadays) mean to actual inventors who aren't associated with global behemoths such as IBM or Siemens



  4. The Patent Trolls' Lobby is Distorting the Record of CAFC on PTAB

    The Court of Appeals for the Federal Circuit (CAFC), which deals with appeals from PTAB, has been issuing many decisions in favour of § 101, but those aren't being talked about or emphasised by the patent 'industry'



  5. Japan Demonstrates Sanity on SEP Policy While US Patent Policy is Influenced by Lobbyists

    Japan's commendable response to a classic pattern of patent misuse; US patent policy is still being subjected to never-ending intervention and there is now a lobbyist in charge of antitrust matters and a lawyer in charge of the US patent office (both Trump appointees)



  6. The Patent Microcosm's Embrace of Buzzwords and False Marketing Strives to Make Patent Examiners Redundant and Patent Quality Extremely Low

    Patent maximalists, who are profiting from abundance of low-quality patents (and frivolous lawsuits/legal threats these can entail), are riding the hype wave and participating in the rush to put patent systems at the hands of machines



  7. Today, at 12:30 CET, Bavarian State Parliament Will Speak About EPO Abuses (Updated)

    The politicians of Bavaria are prepared to wrestle with some serious questions about the illegality of the EPO's actions and what that may mean to constitutional aspects of German law



  8. Another Loud Warning From EPO Workers About the Decline of Patent Quality

    Yet more patent quality warnings are being issued by EPO insiders (examiners) who are seeing their senior colleagues vanishing and wonder what will be left of their employer



  9. Links 19/2/2018: Linux 4.16 RC2, Nintendo Switch Now Full-fledged GNU/Linux

    Links for the day



  10. PTAB Continues to Invalidate a Lot of Software Patents and to Stop Patent Examiners From Issuing Them

    Erasure of software patents by the Patent Trial and Appeal Board (PTAB) carries on unabated in spite of attempts to cause controversy and disdain towards PTAB



  11. The Patent 'Industry' Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

    Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way



  12. Makan Delrahim is Wrong; Patents Are a Major Antitrust Problem, Sometimes Disguised Using Trolls Somewhere Like the Eastern District of Texas

    Debates and open disagreements over the stance of the lobbyist who is the current United States Assistant Attorney General for the Antitrust Division



  13. Patent Trolls Watch: Microsoft-Connected Intellectual Ventures, Finjan, and Rumour of Technicolor-InterDigital Buyout

    Connections between various patent trolls and some patent troll statistics which have been circulated lately



  14. Software Patents Trickle in After § 101/Alice, But Courts Would Not Honour Them Anyway

    The dawn of § 101/Alice, which in principle eliminates almost every software patent, means that applicants find themselves having to utilise loopholes to fool examiners, but that's unlikely to impress judges (if they ever come to assessing these patents)



  15. In Aatrix v Green Shades the Court is Not Tolerating Software Patents But Merely Inquires/Wonders Whether the Patents at Hand Are Abstract

    Aatrix alleges patent infringement by Green Shades, but whether the patents at hand are abstract or not remains to be seen; this is not what patent maximalists claim it to be ("A Valentine for Software Patent Owners" or "valentine for patentee")



  16. An Indoctrinated Minority is Maintaining the Illusion That Patent Policy is to Blame for All or Most Problems of the United States

    The zealots who want to patent everything under the Sun and sue everyone under the Sun blame nations in the east (where the Sun rises) for all their misfortunes; this has reached somewhat ludicrous levels



  17. Berkheimer Decision is Still Being Spun by the Anti-Section 101/Alice Lobby

    12 days after Berkheimer v HP Inc. the patent maximalists continue to paint this decision as a game changer with regards to patent scope; the reality, however, is that this decision will soon be forgotten about and will have no substantial effect on either PTAB or Alice (because it's about neither of these)



  18. Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

    Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles



  19. UPC Optimism Languishes Even Among Paid UPC Propagandists Such as IAM

    Even voices which are attempting to give UPC momentum that it clearly lacks admit that things aren't looking well; the UK is not ratifying and Germany make take years to look into constitutional barriers



  20. Bejin Bieneman Props Up the Disgraced Randall Rader for Litigation Agenda

    Randall Rader keeps hanging out with the litigation 'industry' -- the very same 'industry' which he served in a closeted fashion when he was Chief Judge of the Federal Circuit (and vocal proponent of software patents, patent trolls and so on)



  21. With Stambler v Mastercard, Patent Maximalists Are Hoping to Prop Up Software Patents and Damage PTAB

    The patent 'industry' is hoping to persuade the highest US court to weaken the Patent Trial and Appeal Board (PTAB), for PTAB is making patent lawsuits a lot harder and raises the threshold for patent eligibility



  22. Apple Discovers That Its Patent Disputes Are a Losing Battle Which Only Lawyers Win (Profit From)

    By pouring a lot of money and energy into the 'litigation card' Apple lost focus and it's also losing some key cases, as its patents are simply not strong enough



  23. The Patent Microcosm Takes Berkheimer v HP Out of Context to Pretend PTAB Disregards Fact-Finding Process

    In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts



  24. Microsoft Has Left RPX, But RPX Now Pays a Microsoft Patent Troll, Intellectual Ventures

    The patent/litigation arms race keeps getting a little more complicated, as the 'arms' are being passed around to new and old entities that do nothing but shake-downs



  25. UPC Has Done Nothing for Europe Except Destruction of the EPO and Imminent Layoffs Due to Lack of Applications and Lowered Value of European Patents

    The Unified Patent Court (UPC) is merely a distant dream or a fantasy for litigators; to everyone else the UPC lobby has done nothing but damage, including potentially irreparable damage to the European Patent Office, which is declining very sharply



  26. Links 17/2/2018: Mesa 17.3.4, Wine 3.2, Go 1.10

    Links for the day



  27. Patent Trolls Are Thwarted by Judges, But Patent Lawyers View Them as a 'Business' Opportunity

    Patent lawyers are salivating over the idea that trolls may be coming to their state/s; owing to courts and the Patent Trial and Appeal Board (PTAB) other trolls' software patents get invalidated



  28. Microsoft's Patent Moves: Dominion Harbor, Intellectual Ventures, Intellectual Discovery, NEC and Uber

    A look at some of the latest moves and twists, as patents change hands and there are still signs of Microsoft's 'hidden hand'



  29. Links 15/2/2018: GNOME 3.28 Beta, Rust 1.24

    Links for the day



  30. Bavarian State Parliament Has Upcoming Debate About Issues Which Can Thwart UPC for Good

    An upcoming debate about Battistelli's attacks on the EPO Boards of Appeal will open an old can of worms, which serves to show why UPC is a non-starter


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts