Maintaining convenient illusions using sheer lies and distortion of facts
Summary: The creative writing skills of some spinners who work for Battistelli would have staff believe that all is fine and dandy at the EPO and ILO is dealing effectively with staff complaints about the EPO (even if several years too late)
ON “ILOAT decisions,” as per what the EPO‘s ‘Employment Law’ wrote a week ago (Target group: DG4, DG5, President-DG0, DG1, DG2, BoA), there aren’t many facts or much information. Lazy(ier) EPO staff might actually believe these ‘Employment Law’ people, in spite of the Office’s history defying labour law and then falling back on “immunity” (after losing high-profile cases). We don’t honestly think that ordinary staff is gullible enough to swallow this spin from ‘Employment Law’. It’s just an echo chamber (“DG4, DG5, President-DG0, DG1, DG2…”), telling one another what they want to hear and might actually believe. The statements can later be (re)used for lobbying purposes.
“Lazy(ier) EPO staff might actually believe these ‘Employment Law’ people, in spite of the Office’s history defying labour law and then falling back on “immunity” (after losing high-profile cases).”We wrote many articles on the subject and thought a rebuttal would be in order. “That’s how the ILOAT decisions were presented to the EPO staff,” a source told us, giving us the complete text for independent assessment.
Shall we start? In quotes, in the remainder of this article, are the EPO’s own words.
“ILO is not at all effective at dealing with EPO complaints. The ILO has repeatedly complained that it’s unable to cope with the load. It always blames the EPO.”“Report on the 123rd session of the ILOAT At its 123rd session, the Administrative Tribunal of the International Labour Organization (the Tribunal) delivered 97 judgments involving 21 Organisations. In total the Tribunal dismissed the complaints in 60 judgments and granted them, partly or in full, in 37 judgments.”
Notice the artistic pretense here (intended to disguise gross imbalance): 21 organisations. Among nearly 100, of which EPO is just one. About half of all the complainants are coming from the EPO. Mind this crucial omission. Does that not merit a mention? The above offers no breakdown of which organisations actually had judgments delivered. It is widely recognised as a fact that the ILO typically returns the complaints to complainants or to the Office (in other words, doing nothing at all, sometimes citing inadmissibility). ILO is not at all effective at dealing with EPO complaints. The ILO has repeatedly complained that it’s unable to cope with the load. It always blames the EPO.
“The EPO just implemented a workaround to more or less dodge compliance.”“The judgments have been exceptionally delivered in two steps with 4 judgments on 30 November 2016,” the EPO said. We’ll get to that, as we have repeatedly covered these judgments last year.
“The EPO took specific measures to address the orders contained in the two judgments delivered in November 2016.”
The EPO just implemented a workaround to more or less dodge compliance. We wrote about that. It’s a total disgrace.
The EPO says: “These judgments concerned the composition of the Appeals Committee (No. 3785) and the competent authority to hear a request for review (No. 3796).”
This has not been addressed.
“Nice selective quoting right there.”Now watch Team Battistelli leaping to exploit “immunity!” by stating: “The judgment delivered by the Dutch Supreme Court on 20 January 2017 whereby the Court upheld the legal protection available to staff of the EPO through the internal…”
What on Earth does it have to do with that? The judges there clearly did not understand, as per the ILO’s own statements, that ILO was incapable of dealing with the EPO’s ‘scatterback’ of complaints.
“As for the EPO,” says the EPO, “33 judgments were delivered in total, with 2 judgments on 30 November 2016 and 31 on 8 February 2017. In his introductory statement of the public delivery on 8 February 2017, the President of the Tribunal noted with satisfaction that: safeguarding the role of the Tribunal in the legal protection of staff of international organisations.”
“Notice terms like “high success rate”. It’s utterly offensive to the victims of Team Battistelli.”Nice selective quoting right there.
“Out of the 33 judgments involving EPO, the following figures are worth highlighting. 25 judgments confirmed in full the position of the Office. This is a high success rate in absolute (i.e. when compared to the EPO’s own figures) as well as relative terms (i.e. when the EPO is compared to other international organisations).”
Notice terms like “high success rate”. It’s utterly offensive to the victims of Team Battistelli.
“3 judgments in which the substance of the challenged decisions was not at stake but where, due to the length of the procedures, moral damages have been awarded to the complainants (Nos. 3782 and 3795 for the duration of the internal appeals procedure and No. 3792 for a medical issue).”
How much was that damage (compensation)? They don’t want to say. It’s so meager that it’s typically offensive; it doesn’t even cover the lawyers’ bills.
“…Team Battistelli will brush these under the carpet.”“2 cases were lost on the substance (No. 3781 regarding school fees – Article 120a ServRegs – and No. 3788 regarding the computation of reckonable experience).”
Yes, just 2.
“3 judgments referring cases back to the EPO for resuming the internal procedures, without any comment on the substance of the challenged decisions. The decisions concerned relate to the right to strike and the New Career system (Nos. 3786 and 3796).”
In other words, Team Battistelli will brush these under the carpet.
“On the substance the following needs to be highlighted. In judgments Nos. 3786 and 3796 the Tribunal confirmed its case law (No. 3700, consideration 7) concerning the competent authority to hear a request for review or an appeal. Hence the Tribunal interpreted the applicable provisions (Articles 107(2), 109(2), 109(4) and (110(1) ServRegs) as follows.
“For employees appointed by the President, all requests for review must be lodged with, and decided by, the President; For employees appointed by the Council: requests for review against individual decisions concerning them and taken by the Council must be lodged with, and decided by, the Council, whereas requests for review against individual decisions concerning them and taken by the President must be lodged with, and decided by, the President.
“Furthermore, the Tribunal conveyed the following messages to the stakeholders. Defendant organisations need to handle staff requests and internal appeals diligently (judgments Nos. 3782, 3795 and 3792). Thus the Tribunal confirms its case law that dealings between an organisation and its staff should comply with the duty of care and due diligence.
“The overall message from the EPO: don’t complain about the EPO.”“Complainants should pay attention to the following messages. Care needs to be taken to identify the right decision to be challenged and to exhaust all internal means of redress before filing a complaint (judgments Nos. 3779, 3780, 3791, 3811).
“If a given situation has already been settled through previous judgments further cases raising the same topic will therefore be rejected on the same grounds (judgments Nos. 3786, 3789, 3806, 3810).”
More creative nitpicking:
“Several cases were found to be clearly devoid of merits as they raised “entirely unsubstantiated allegations [of harassment] and amount[ed] to mere assertions” (judgment No. 3806, consideration 6) and a further complaint was considered as being “no more than a collateral attack on judgment 3426″ (judgment No. 3807, consideration 4) or “speculative assertions” (judgment No. 3808, consideration 5).
“Contact Claude Rouiller (ILOAT) at
email@example.com to tell what the EPO thinks of his Tribunal.”“To conclude, the Tribunal stressed again the respective responsibilities of the stakeholders for the functioning of the legal protection of staff through a system of internal and external means of redress. It is of paramount importance for all stakeholders to preserve it by using it in line with the above.”
The overall message from the EPO: don’t complain about the EPO. The ILO is too weak and understaffed to handle these complaints and we’ll waste EPO budget on lawyers who will exhaust them to the point of inaction.
Of course, anyone who read the above message might have been led to the belief that all is “greener pastures” at EPO and Battistelli is just a victim of meritless complaint. Contact Claude Rouiller (ILOAT) at
firstname.lastname@example.org to tell what the EPO thinks of his Tribunal. It’s disgraceful. He ought to know about this. █
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IP Watch too has noticed the EPO’s shameless lobbying for software patents at CeBIT
This EPO presentation from just months ago spoke of software patents (“CII”). Photo credit: EPO Patent Information Conference 2016 (Grant Philpott)
Summary: The EPO’s promotion of software patents, even out in the open, is an insult to the notion that the EPO is adhering to or is bound by the rules upon which it maintains its conditional monopoly
WE HAVE just read with great interest this report from IP Watch, which published some critical articles about the EPO lately, in spite of the risks associated with the EPO’s bullying of journalists and bloggers. Last year we took note of the EPO’s promotion of software patents in Europe, specifically (although not limited to) CEBIT in Hannover [1, 2].
An “EPO Official Aggressively Promotes Software Patents At CeBIT Fair,” IP Watch wrote in a report this afternoon, helping/seerving to remind us that the EPO is a rogue institution which ignores all the rules in the name of increasing grants and destroying patent quality (not to mention validity rates). To quote IP Watch:
At the world‘s biggest computer fair, the CEBIT in Hannover, Germany today, an official of the European Patent Office promoted patents for computer-implemented inventions (CII), also called software patents by critics. CII continues to grow considerably, according to EPO.
While mathematical methods, programs for computers, and presentations of information are excluded by the Europe Patent Convention, that in no way stops CII, said EPO’s Georg Weber. There is a fix in the European Patent Convention which allows the software patenting nevertheless, he said.
Article 52.3 states that patentability for computer programs (and some other subjects) are excluded “only to the extent to which a European patent application or European patent relates to such subject matter or activities as such,” Weber said.
The EPO therefore would grant CII patents after a two-hurdle test. To pass hurdle one, an application just has to have a “technical character.” When someone has an algorithm, but no one knows what the algorithm is doing, it cannot be patented, Weber explained to the CEBIT audience.
“If it is used for encryption, though, it is already technical and the first hurdle is passed,” he said.
With statements like these, we doubt Georg Weber will impress anyone but Team Battistelli. Software patents are extremely unpopular inside and outside the profession of programmers. What’s behind all this and whose idea was it to promote software patents in European expos? Can they not see how damaging this is to the reputation of the EPO? Judging by some of the latest comments posted regarding news articles, people have come to accept that the EPO flagrantly and intentionally disregards the EPC. That makes the EPO somewhat of an invalid office — one that defies the very treaty that gave it an existence (and monopoly in Europe).
“That makes the EPO somewhat of an invalid office — one that defies the very treaty that gave it an existence (and monopoly in Europe).”Some people out there, e.g. IAM, didn’t get the memo that the EPO just flagrantly violates the EPC. Earlier today IAM published this thing from Turkey (let’s not start an argument about its membership in the EU, as opposed to the EPO), titled “Direct applicability of European Patent Convention while invalidation actions pending”
“Article 138/3 of the European Patent Convention,” says the author (patent microcosm), “is inconsistent with Turkish national patent law, so the IP courts and the Turkish Patent and Trademark Office previously refused to apply Article 138/3 in national invalidity proceedings. However, recently the Istanbul IP Court applied Article 138/3 and accepted claim limitation in national proceedings.”
“Maybe IAM should put at risk all these perks from the EPO and belatedly produce a report about the EPO.”As we all know (thanks to know-it-all tyrants with giant egos), the Rule of Law in Turkey currently suffers a similar crisis to that inside the EPO, which neither obeys the EPC nor ILO (among many other things). To think that the EPO under Battistelli still has anything to do with the EPC is like believing that the Central Intelligence Agency spreads “freedom and democracy” or “Microsoft loves Linux”.
IAM, a loud promoter of software patents (and even trolls that use these), is still close to the EPO. It helps bolster the illusion of patent quality under Battistelli while Battistelli's PR firm pays IAM. Maybe IAM should put at risk all these perks from the EPO and belatedly produce a report about the EPO. Right now these people willfully opt to be silent about it, and occasionally promote the UPC. Unlike IP Watch… █
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Finding balance between restrictions and collectively-beneficial liberalism
“The copyright laws attempt to strike a balance between protecting original works and stifling further creativity.” Bridgeport Music, Inc. v Dimension Films, opinion of the court (2004)
Summary: As the US Supreme Court (SCOTUS) starts delivering some decisions we take stock of what’s to come regarding patents
AS EXPECTED, the Justices at SCOTUS bring forth some new output for law firms to comb through before analyses/interpretations get published by the hundreds/thousands. First there was today’s decision on uniform copyrights (just covered in our latest daily links, under the copyright section, with three reports we’ve found within hours).
“To summarise, in the area of copyright the Justices sidle with the maximalisms, whereas in the area of patents it’s not quite as depressing.”Professor Crouch took note of the Lexmark case, which is still ongoing (orally). To quote a portion: “Truthfully, most of the oral arguments involve Justice Breyer explaining to other members of the court that Lexmark’s approach violate’s Lord Coke’s 300 year old maxims – “that’s been the kind of basic legal principle for an awfully long time.” Lexmark’s primary answer: “the common law changed a lot after Lord Coke.” In the two most recent IP Decisions by the Court – Star Athletica and SCA Hygiene – the majority ruled in favor of the IP rights-holder over Justice Breyer dissents in both cases.”
We’ve already covered this case before. MIP, in the mean time, takes note of the laches defence, writing this afternoon that “The Supreme Court rejected wholesale the Federal Circuit’s stance that laches be an available defence in patent law, in its SCA Hygiene v First Quality ruling” (we wrote about this last night).
“We certainly hope that in the coming days, weeks and months the Justices will recognise that for patent law to be respected and be seen as legitimate it needs to adhere to public interests and be limited to what is reasonable.”To summarise, in the area of copyright the Justices sidle with the copyright maximalisms, whereas in the area of patents it’s not quite as depressing. The likes of IAM and Watchtroll will no doubt write about that soon; IAM has just published this rant from a law firm, asserting that “Patent Trial and Appeal Board, state anti-troll laws and anti-patent Supreme Court and Federal Circuit decisions have eroded patent protection.”
No, these have improved patent quality — something we should all celebrate unless we make money by peddling patent feuds. We certainly hope that in the coming days, weeks and months the Justices will recognise that for patent law to be respected and be seen as legitimate it needs to adhere to public interests and be limited to what is reasonable. This means, among other things, that the ruling on TC Heartland (last update a couple of days ago) should be made against patent trolls infesting the Eastern District of Texas. █
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When even Kluwer Patent Blog speaks out against you perhaps it’s time to resign, Mr. Battistelli
Summary: The disdain and the growing impatience have become a huge liability not just to Battistelli but to the European Patent Office (EPO) as a whole
THE EPO was, for many consecutive decades, vastly superior to any other patent office, including the American one that’s the de facto patent office across the world (because of the economic might of the US). The EPO was never the biggest patent office, but it was at least the best. That can no longer be said, as the Administrative Council was reckless enough to put a politician in charge — a person whose disdain for science and paranoia go over a decade back. In turn, after a multi-year coup, the Administrative Council became subservient to this politician. Stakeholders hate him and recognise that he must go, but nobody seems capable of firing him anymore. He created and fortified a kingdom, which not even a bailiff is allowed to enter. He and his cronies pocket EPO budget and secretly/covertly build themselves luxury palaces with bars and baths at the top floor of a patent office! Guess who foots the bill. Is this a patent office or a sultanate? EPO staff certainly isn't tolerating it.
We haven’t had much positive stuff to say about Kluwer Patent Blog (a UPC propaganda blog, filled to the rim with fake news), but Kluwer folks were at least courageous enough to publicly speak against Battistelli in the rather distant past. Today it happens again and people have already noticed:
Kluwer Patent Blog has a long article detailing the situation at the European Patent Office:
President Battistelli under pressure to improve ‘unacceptable’ social situation at EPO
About the 40% increase in granted patents they asks:
“But is this really what the economy needs, as the EPO claims?”
Another new comment said:
Shameful hardly begins to describe the situation. A serious threat to the very foundations of patent law in Europe would be a more accurate description.
The EPO is there to uphold the law, as set out in the EPC. Now we know that, when it so desires, the EPO ignores provisions of the EPC that its management finds “inconvenient”. We also know that the AC allows the EPO management to get away with this.
This all begs the question: which provisions of the EPC can we rely upon the EPO to properly enforce?
If rumours are to be believed, which rumours would certainly explain developments that I have personally witnessed, then Article 84 EPC will be the next “casualty”. Also, the EPO’s extraordinary decision to suspend examination of certain plant (product) patent applications suggests that even more fundamental provisions (including Article 113 EPC) could be under threat.
Not the most sustainable situation, really… and one that should be of grave concern to us all.
This means that even Team UPC is getting visibly fed up with Battistelli. Behind the relatively polite and diplomatic language there is a great deal of distrust and the blog post at hand contains little or nothing that we haven’t already covered. It’s just taking stock of many recent events across Europe (all of which covered here before), e.g.:
The Dutch Government has warned the social situation at the EPO will have to improve soon. The International Labour Organisation (ILO) has complained it is not acceptable that over half of the workload of its Tribunal is generated by complaints filed against the European Patent Office. Parliaments in Germany and France have called for action to ‘uphold the fundamental rights’ at the EPO. Pressure on president Benoit Battistelli to resign or finally change things seems higher than ever. Will it happen?
‘The Council had an exchange of views on the social situation at the Office and on the issue of the appointment procedure for the next President.’ Just one single phrase in the press release was dedicated to the ongoing social unrest at the EPO, after the 151th meeting of the EPO Administrative Council, 15 and 16 March 2017 in Munich.
It hardly reflects the mounting pressure that EPO president Benoit Battistelli has had to face over a wide range of issues that have led to a disastrous social climate at the EPO: the controversial introduction of a new career system and rules on sick leave, Battistelli’s failure to review staff investigation guidelines and disciplinary procedures, as had been requested by the supervisory Administrative Council (AC) in a Resolution of March 2016; conflicts with the Boards of Appeal over their judicial independence; failure to recognize the SUEPO trade union and the dismissal or demotion of several union leaders, among others.
But is this really what the economy needs, as the EPO claims? The German legal website JUVE recently published the results of a survey (English version here) among 186 technology companies worldwide, which revealed serious concerns about the functioning of the European Patent Office. 87 percent of the respondents said Battistelli is not doing a good job. Less than one third is happy with the reform of the Boards of Appeal. 54 percent wants Battistelli to step down and only 8 percent says he must stay. Also, there is growing concern about the effect of the EPO unrest on patent quality, according to the survey.
Still, Battistelli’s term as president ends in July 2018 and though he is under high pressure to improve the social situation at the EPO, it is not likely he will leave sooner than that. The appointment procedure for the next president, mentioned in the EPO press release was initiated and shortly discussed last week and the intention is to agree on a text for a vacancy notice in the next meeting in June, with the selection procedure for a successor possibly starting in October.
To put it quite bluntly, it seems like they’re worried about their clients (see this leaked letter from Dutch patent attorneys) and maybe even the UPC, which will likely collapse thanks to Battistelli as its shameless flag bearer. Speaking of which, Team UPC, which dominates (or is) “The UPC Preparatory Committee” (it’s not quite what it sounds like, it's wolves guarding the sheep), allegedly had one of its typical closed doors meetings some days ago. To quote: “The UPC Preparatory Committee met for the last time last week in the Hague. It was an opportunity for the Preparatory Committee to agree minor amendments to the Rules of Procedure, which it will soon publish.”
Is there any chance that Team UPC too will soon lobby to oust Battistelli? It’s not impossible. In fact, it would be a very rational thing to do as Team UPC has more than just the UPC at stake and under Battistelli the whole patent industry of Europe may soon collapse (see comment above). █
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This is where EPO budget goes… (budgetary scandals again)
Even a shower! What kind of guests does Battistelli bring over?
Summary: The Office is scrambling to hide evidence of its out-of-control spendings, which will leave the EPO out of money when the backlog is eliminated by many erroneous grants (or rejections)
THE EPO moves from bad to worse. 0% of stakeholders support Battistelli (the same goes for staff), so it can’t get any worse than this, but what happens to the reputation of the Office as a whole?
“What’s worth noting or showing here is not the photos in their own right but the clandestine nature of the Office, even in this case.”Watch the photos above; this is where the money goes while Battistelli and his cronies continue to pocket more of the EPO's budget and there are rumours that Battistelli wanted his own limousine too (even his own private elevator, but we were unable to verify this). He already spends millions on bodyguards which are neither needed nor acceptable (until he tells some bicycle tale).
One one comment said: “He’s doing a great job of pushing the boundaries and proving where the flaws in the system are by exploiting them for his own profit” (posted on this new article from Kieren McCarthy).
What’s worth noting or showing here is not the photos in their own right but the clandestine nature of the Office, even in this case. Well, the photos say it all really (there seem to be a lot more based on their numbers), as well as the attempts by the Office to take down these photos (which is why we reproduce them here, a sort of Streisand Effect). Here is how McCarthy put it:
Very few people have seen the 10th floor of the European Patent Office’s ISAR building in Munich since it’s been renovated – and for good reason.
Although hundreds of staff once worked on that floor, EPO president Benoit Battistelli decided that – at the same time the patent office budgeted €205m to construct an entirely new building in the Hague – he would turn the top floor of the ISAR building into his own private office.
The cost of that renovation is impossible to ascertain due to it being lumped in with the massive construction costs of the new building. But thanks to new pictures of the penthouse on the architect’s website, recently noticed by eagle-eyed EPO staff, it is likely to have stretched into millions of euros.
“A grand palace for King Battistelli,” one staffer remarked on the pictures, using a common nickname for the man whose behavior is increasingly more like a 17th-century monarch than the administrator of an international organization.
If the EPO attempts to resort to McCarthyism against McCarthy (e.g. the architect and/or the EPO using copyright for takedown requests), we’ll keep our copies here. We encourage readers to spread these photos around to deter against censorship attempts.
Similarities to the shrine of Trump (many point out similarities in behaviour)? Whatever it is, Trump is still a President and so is Battistelli. Sometimes it pays off to skirt the rules and Battistelli is a perfect example of that. █
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