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Dutch Court Rules Against SUEPO (in a Reversal), But EPO Management Would Have Ignored the Ruling Even If SUEPO Won (Updated)

Posted in Europe, Patents at 9:46 am by Dr. Roy Schestowitz

Correction: Based on the translation we have received, this is not final yet. See the translation added to the bottom.

Does the 'slayer' Willy Minnoye accept this ruling (because it’s in his favour)?

Willy Minnoye caricature

Summary: SUEPO loses a case against EPO management, but the EPO’s overzealous management was going to ignore the ruling anyway

THE EPO‘s management is so extremely arrogant that it perceives itself as above the law, immune from courts (even at The Hague which is famous for some of its courts), and totally unaccountable. If Eponia was a real nation, it would probably be something like North Korea, where reporting is frowned upon and unhappiness (in public) is barely an option. Dissent is a heinous crime and the Internet is blocked from inside the country ‘for protection’ (like the EPO blocking Techrights).

“Dissent is a heinous crime and the Internet is blocked from inside the country ‘for protection’ (like the EPO blocking Techrights).”Willy Minnoye, speaking on behalf of the EPO’s top-level management, said he would ignore the ruling from the highest Dutch court if it ruled in favour of SUEPO, the Staff Union of the EPO. To say so publicly on Dutch television is to basically insult the citizens of the Netherlands, a host country of the EPO (Minnoye is not Dutch by the way).

“Severe defeat for SUEPO, Union and Labour rights, Human rights in The Netherlands” was reported to us this afternoon after “SUEPO [had] lost the case in cassation!” [sic]

Here is the report about it (in Dutch). Stay tuned as we shall update this article with a manual translation very shortly.

Update: Petra Kramer has produced for us a translation of the aforementioned article and as far as we are aware, it’s the first English translation of the news (with our highlights added):

AG: Dutch judge unauthorized in dispute between European Patent Office and unions

The European Patent Office (EPO) was right to claim immunity from jurisdiction in a dispute. That means that the international organization can not be brought before the Dutch courts in disputes about the official activities of the organization. The Dutch court has no jurisdiction to adjudicate in a dispute between the Rijswijk-based European Patent Office, a unit of EPO, and the trade union association of the European Patent Office and the umbrella union for employees of EPO. Advocate General Vlas wrote today in his opinion, an advice to the Supreme Court.

A conflict arose between the EPO and the union union of EPO (VEOB) and the umbrella union for employees of EPO (SUEPO). The reason for this conflict are, among others new lines crossed in the service rules of the European Patent Office. VEOB and SUEPO find that the rules restrict the right to strike too much and that EPO should recognize them as social partners in collective negotiating. This case concerns the question whether the granting EPO immunity constitutes an impermissible restriction on the right of access to justice within the meaning of the European Convention on Human Rights.

A preliminary injunction judge dismissed EPO’s claim on immunity but rejected the claims of VEOB and SUEPO – the withdrawal of the strike rules and recognition as social partners. According to the court VEOB and SUEPO can address their demands to the central organization. On appeal the court also ruled that EPO can not rely on immunity. The court upheld the claims of the unions. Against this judgment the EPO brought an appeal in cassation. The State supports the position of EPO as intervener. According to the Minister of Justice, the State need to abide by agreements on immunity of international organizations.

Advocate General Vlas states that the right of access to justice in accordance with the European Convention on Human Rights is not absolute. According to Vlas, VEOB and SUEPO’s rights must be sufficiently guaranteed by the EPO in existing internal dispute procedure with an appeal of individual employees and employee representatives at the Labour Tribunal of the International Labour Organisation in Geneva. The core of the right of access to justice guaranteed by the European Convention on Human Rights is therefore not affected, says Vlas.

A conclusion is an independent, non-binding, legal opinion to the Supreme Court. The Advocate General is a member of the Public Prosecutor at the Supreme Court. The prosecutor at the Supreme Court is an autonomous, independent part of the judicial system. It does not belong to the Public Prosecutor.

It is expected that the Supreme Court will deliver its verdict on 20th January 2017.

New Paper Provides Evidence of Sinking Patent Quality at the EPO, Refuting the Liar in Chief Battistelli

Posted in Deception, Europe, Patents at 9:32 am by Dr. Roy Schestowitz

So much for patent quality claims

US patent 6368227 B1
Being better than the USPTO is not the same as having acceptable patent quality (US 6368227 B1)

Summary: In spite of Battistelli’s claims (lies) about patent quality under his watch, reality suggests that so-called ‘production’ is simply rushed issuance of invalid patents (one step away from rubberstamping, in order to meet unreasonable, imposed-from-the-top targets)

PATENT QUALITY at the EPO has sunk pretty low, as insiders tell us and staff representatives say as well (they have this new paper about it [PDF] — a paper which somebody leaked to us). It seems to be the consensus inside the EPO that patent quality is far from what it used to be; it’s only EPO management that keeps lying about it and the above was published internally because “the President is advertising our quality all over the world.” Yes, the liar in chief is now making a career out of lying about everything. He calls himself “President” but acts like the world’s worst boss, whose words are less than worthless. Some believe that he was intended to morph the EPO into the French model, which would basically render all the examiners redundant. The worst case scenario is, the guy is a ‘liquidator’ of the EPO. He’s put in charge to destroy it.

“The analysis is particularly relevant now that the President is advertising our quality all over the world.”
      –Internal document
A few days ago we saw this article in German about patent scope at the EPO. “European Patent Office discussed the objection of doctors in the world against the patent for the hepatitis C drug Solvaldi / decision on 5 October expected,” says the automated translation. Also recall those letters regarding patents against cancer patients. If someone can prepare a translation of this article, that would be appreciated. Mathieu Klos from Juve has also just published an article in German for which we could use a translation. It’s Battistelli talking points in ‘interview’ form and the summary is automatically being translated as: “The European Patent Office has reformed its Boards of Appeal in July. Until the beginning of 2017, the reform must be implemented. For a new Board President must be found. Critics complain that the reform does not bring enough independence for the EPO-court. JUVE interview EPO President Battistelli Beno it take a position and explains why the renewal fees for the EU patent reduce not necessarily when the UK, the EU and thus the new European patent system should leave.”

We could use an English translation, so if someone can provide an outline or a complete translation, that would be great. Automated translations just aren’t so reliable and there is room for misunderstanding that might impact our credibility.

Without the Boards of Appeal we can expect patent quality to decline even further without that decline being publicly acknowledged. This may be one plausible explanation for Battistelli’s attack on these boards. An EPO mouthpiece has this new article which speaks about one particular aspect of European patents. It says: “The grounds of opposition are set out in Article 100 EPC. To paraphrase, these include that the subject-matter of the European patent is not patentable under Articles 52 to 57 (novelty, inventive step, industrial application, specific exclusions and non-inventions), that the patent is insufficiently disclosed and that the subject-matter of the patent extends beyond the content of the application as filed. The only substantive pre-grant criteria for patentability which is not also a ground for opposition is that of Article 84 EPC (that the claims shall be clear, concise and be supported by the description).”

“Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls.”Under Battistelli, as we have shown here before, oppositions are being suppressed (made more expensive, time being prohibitive, and so on), so obviously the quality of patents will decline, without this decline even being detectable.

Why does this matter? Two main reasons:

  1. Businesses are willing to pay the EPO a lot of money in order to properly check if their patent, once scrutinised in a court, will be upheld, in which case all the pricey legal proceedings will bear fruit and monetary compensation for patent infringement will be granted
  2. Small businesses are afraid of being falsely accused of patent infringement (i.e. attacked by a patent that should never have been granted in the first place) as to them it can be a matter of life or death (bankruptcy)

The latter case is more relevant to us because it alludes to the plea of the vulnerable and the powerless, whereas in many cases (1) above is applicable to large companies that stockpile or hoard patents by the thousands. Legal fees are very high (too expensive for most, who would rather settle quickly) and even if the accused is found not guilty (e.g. of patent violation, as the patent is ruled invalid) the financial cost is enormous and can never be redeemed from the accuser/plaintiff (except in rare cases like NewEgg’s). Here is a new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP. The headline is “EPO: Unjustified Threats Bill; What is it?” (the EPO did it to me, misusing defamation law) and here is what it says:

Provisions exist in the United Kingdom to prevent unjustified threats of legal action relating to infringement of patents, designs and trademarks. The provisions were originally conceived with the intention of stopping the holder of an IP right from damaging a person’s business by threatening their customers or distributors with an infringement action of the IP right. The current provisions, however, are inconsistent across different forms of intellectual property and are worded such that an innocuous communication from an IP rights holder may be interpreted as an actionable threat. This results in an increased risk of litigation proceedings between the parties. This is contrary to the overriding principle enshrined in the UK’s Civil Procedure Rules, which encourage pre-action correspondence and negotiation in order to ensure that disputes are dealt with at proportionate cost.

The UK’s government issued a draft Bill setting out proposals to address some of these issues. The Intellectual Property (Unjustified Threats) Bill 2016 would update legislation relating to unjustified threats to provide greater consistency and clarity.

For example, the Bill proposes positive definitions for “permitted communications” to provide a safe harbor to allow rights holders to communicate with potential infringers, without running the risk of a threats action. In this way, parties should find it easier to comply with the Civil Procedure Rules by exchanging information prior to the start of any litigation.

Remember that the lower the quality of EPO patents, the more damage will be done to the European economy, including by foreign entities like patent trolls. See what is going on in the US, where the USPTO blessed almost every application. Lots of litigation and now a lot of invalidations (at a very high cost to the accused).

Battistelli Locks EPO Staff Union Out of Social Conference So That He Can Lie About the Union and the Social Climate

Posted in Deception, Europe, Patents at 8:23 am by Dr. Roy Schestowitz

The liar has quit pretending to even be capable of handling the truth

Battistelli liar
Source (original): Rospatent

Summary: The attacks on staff of the EPO carry on, with brainwash sessions meticulously scheduled to ensure that Administrative Council delegates are just their master’s voice, or the voice of the person whom they are in principle supposed to oversee

LATE on a Friday (one week ago) the next stage/phase of new EPO propaganda began, with the release of 3 documents commissioned to help Battistelli lie to the Administrative Council and the entire world. A fortnight from now another stage/phase will begin, namely a so-called 'conference', probably decorated or accompanied by shallow media coverage (planted puff pieces*). EPO management does a good job demonstrating that it’s not only a chronic liar but also a manipulator of the media, at huge expense to the EPO (other than growing reputational cost).

SUEPO sent the following letter to Battistelli earlier this week, with a copy sent to the Delegations of the Administrative Council:

27 September 2016
su16116cl – 4.6

“Social Conference” of 11 October 2016

Dear Mr Battistelli,

We refer to the letter addressed to you on 20.09.2016 from SUEPO The Hague on the subject of the Social Conference, which remains unanswered.

SUEPO, who represents about half of the EPO workforce, has not been invited.

Over the past two and half years you have consistently threatened and/or heavily sanctioned the majority of the elected officials of a Union you called in public a “mafia like organisation”. In the circumstances, we will obviously not attend voluntarily. (If you want to oblige any of us to attend as “members of Staff Committees”, we would only participate under duress)

We truly regret seeing that, rather than fostering social dialogue by respecting the terms of the March resolution of the Administrative Council (CA/26/16), you have chosen to continue persecuting SUEPO and its elected officials, most recently in The Hague, cf. minutes of the Board 28 meeting of 8 September.

We also regret that you do not seem to take seriously the requirements of a bona-fide social conference. If its aim is to launch a program to restore social peace, it is inconsistent for you to refuse to discuss the results of the Technologia survey, or to consider our counterproposal for a framework agreement between the EPO and SUEPO.

Yesterday morning we published leaked Board 28 documents. As we noted at the end, these demonstrate that the Board (i.e. Kongstad et al) are ever more complicit in Battistelli’s abuses. Team Battistelli, we should remind readers, is said to be buying votes or buying (one might say “bribing”) the delegates. As one new comment puts it, the “AC representatives [delegates are] being showered with “gifts” by the very body that they are supposed to oversee” (source).

Here is the comment in full:

AC representatives being showered with “gifts” by the very body that they are supposed to oversee? If this is true, and if there is concrete proof of the same, would that not mean that the representatives concerned would need to declare a conflict of interest and step aside?

Oh, I forgot. There is no one to call them to account. And there would be no one to replace the representatives if they did step aside. Hardly a model of good governance, though. One might even go as far as to say that it is a model of governance that could easily be corrupted if undesirable types managed to secure powerful positions within the Organisation. God forbid that this ever happens!

As the Administrative Council and the Board (overlapping entities) have become ever more complicit in Battistelli’s abuses and the likely destruction of the EPO (for their short-term personal gain), we are planning to expose some unpleasant truths about the Administrative Council next week.
* Managing IP, an EPO mouthpiece nowadays, was planning to help Battistelli lie about the social climate at the end of this month, using a placement in the form of an ‘interview’ with Battistelli (part 2), but this has not happened and they failed to get a response from AMBA, which is understandably scared. Yesterday they began speaking and spreading the falsehoods about the EPO's crushing of the boards (under the guise of “independence”). Haar is somewhat of a suburb quite some distance away, so saying that “Boards will remain in Munich” is a lie. To quote further: “In addition to predictable concerns among users of the EPO as regards preservation of quality and independence of appeal decisions, the EPO’s ambitions with regard to cost coverage are seen as problematic by many due to the future increase of the appeal fee. A four- or five-fold increase of the appeal fee may well prove prohibitive to appeals, even in respect of clearly flawed first-instance decisions, or may put a heavy economic burden on parties to proceedings in respect of cases which are subject to multiple appeals in respect of the same patent or patent application.” We should remind readers that payments and working conditions are eroding, motivating what’s left of staff at the Boards to simply leave, giving the impression that these Boards are dying naturally on their own.

Unprecedented Levels of UPC Lobbying by Big Business Europe (Multinationals) and Their Patent Law Firms

Posted in Deception, Europe, Patents at 7:45 am by Dr. Roy Schestowitz

Business Europe on UPC
Original: Business Europe on UPC [PDF] (we wrote about Business Europe, which is a front group, several times before [1, 2, 3, 4, 5])

Summary: A quick look at some of the latest deception which is intended to bamboozle European politicians and have them play along with the unitary [sic] patent for private interests of the super-rich

THE EPO and Team UPC, along with their largest clients, try to take over Europe and rewrite the law.

Kingsley Egbuonu from MIP (close to the EPO) continues his Unitary Patent and UPC “progress [sic] report”, this time noting that “EU Ministers reiterate support for the system; legal opinion on UK’s participation; The Netherlands ratifies UPC Agreement; legislative process for ratification underway in Italy; new Italian course added to list of UPC representation qualifications for European Patent Attorneys; official timetable for launch of UPC may be revised; Unitary Patent system ready and UPC preparations to continue” (all sounds incredibly optimistic).

“The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe).”Judging by this “progress [sic] report,” one might be led to believe that the UPC is inevitable and only a matter of time; but it’s far, far from it. “We understand,” Egbuonu notes below, that the “UK IP Minister Baroness Neville-Rolfe did not make any statement on the UK’s position, considering the UK government is still deliberating over Brexit strategy, rather she commended the preparatory work done so far.”

The UK isn’t going to ratify the UPC, which puts the whole shebang in existential danger (across the whole of Europe). Everyone seems to know it except Team UPC, which invested so much in this change (de facto theft of democracy) that all resources are now being thrown at lobbying. Take Bristows and its self-nuking statements for instance. Bristows is still lobbying to have its talking points interjected into ‘news’ papers which the EPO paid for PR. Here they are saying: “Milan challenges London for patent court – Our Alan Johnson comments on the @FT https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4 … pic.twitter.com/DyqpSJfFBA” (FT was paid by the EPO for this kind of bias).

It seems as though the UPC will be officially dead next month, but Team UPC is working super-hard at the moment. It includes ‘hijacking’ the media for their own selfish purposes. Bristows is being amplified (almost the entire piece is Bristows) by WIPR and an article composed by Bristows staff keeps getting referenced as ‘proof’ that “European business urge continued UK involvement in UPC on eve of Competitiveness Council meeting” (utterly misleading headline).

“Usual suspects sent letters to lobby for UPC, wait until we send our letters too.”
      –Benjamin Henrion
What Bristows means by “European business” is just “Business Europe”, which is a misnomer. Here we have Bristows lobbying for itself and meddling. To quote: “Views on UPC expressed ahead of today’s Competitiveness Council meeting.”

Competitiveness in Europe would require demolishing the UPC, but international monopolies and oligopolies want the opposite of competitiveness; they just want protectionism to cement their market position and marginalise competition (e.g. by means of patent lawsuits or threat thereof).

Looking at some of the latest junk from Bristows (relying on front groups and generalising based on them), one can see dissent in various other new comments about the UPC; these comments are not sharing the sentiments of Bristows’ propaganda (about 5 more such comments yesterday). One of them said that selective “letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry.” Writing about “Business Europe” (Big Business Europe and Multinationals with Branches in Europe), here is the complete comment:

That all firms having been heavily involved in the preparations of the UPC want it to come alive is understandable, be it only because of the time and efforts invested in it. That their might not be a return on investment is bitter for all of those them. But c’est la vie.

The letters from Business Europe and consorts are a wonderful pro domo plea. But they all stem from Big Industry. Did you expect that Air Liquide would be against the UPC?

On the other hand, we were always told that the UPC is primarily there for the benefit of the SMEs.

I do not see any federation of SMEs, but the French CGPME having participated in such a plea. The CGPME being one among the plenty members of the UJUB, even if it had a restrictive opinion, it would be overthrown by all the other members.

I get the feeling that lots of people have lost track of the political reality. How can a sensible person advocate immediate ratification by the UK of the UPC Agreement when the terms of the Brexit are not even known? There might be ways for UK to continue its participation, but this means accepting EU law. I dare think what the EuCJ will have to say if UK participates to the UPC after Brexit and does not fully accept EU law supremacy. But then why the Brexit?

Why on earth push for something which nobody knows how it will end up? That UK participation would be good is certain, but as somebody in charge in the UK said Brexit means Brexit.

It is clear that if the UPC does not enter into force because of the lacking ratification of the UK, it will be delayed for a while. And then the can of worms will be opened again. But that is a reality which is tangible and which should be accepted.

Whether we like it or not, it is time to look at reality and not hope for something which has been lost.

The “Big Business Europe UPC letter,” Benjamin Henrion remarked, is “not supported by CEOE, the Confederation of Employers and Industries of Spain” (Spain is generally against the UPC, to its credit, but language has a lot to do with this opposition). “Usual suspects,” he added, “sent letters to lobby for UPC, wait until we send our letters too.” He told me that he was unable to find any video stream/access to the proceedings (the perception of transparency) and later added: “Is there any video recordings of EU Ministers Council meeting of today?”

We have seen nothing of that sort yet. Team UPC has no sense of shame and no respect for democracy at all. Sometimes it feels like politicians are on the same bandwagon.

Here is a timely new comment about UPC (found this afternoon):

That’s the problem with the UPC, it is not counter-balanced by an elected parliament, such as the European Parliament.

It is an undemocratic monster.

If the UK is out, the bare minimum would be to reintroduce art6 and art8.

It’s not just an “undemocratic monster” but an antidemocratic monster. It must be scuttled.

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