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05.07.17

The Patent Microcosm’s Failed Push for Software Patents Resurgence in the US and Similar Attempts in India and China

Posted in America, Asia, EFF, Patents at 6:15 pm by Dr. Roy Schestowitz

Only China still makes it easy to receive and assert (in a court) software patents

Panda in Asia

Summary: A roundup of developments regarding software patents around the world, ranging from legal actions in the US to misleading coverage from sites connected to the patent ‘industry’ and objections from the Electronic Frontier Foundation (EFF)

THERE is no lack of ridiculous patents at the USPTO, as we have just demonstrated with a new example. Regarding the EFF’s “Stupid Patent of the month” which we wrote about before (last week), Joe Mullin wrote:

Paying for a ride to get around town isn’t new. The first gas-powered taxicabs date to the beginning of the 20th century, and the horse-drawn “hackney coaches” of London date to the 17th century. In the vehicle-for-hire business, it’s all about efficiency and execution, not “invention.”

That long history notwithstanding, the US Patent and Trademark Office has granted patents that claim monopoly rights to, essentially, calling up a taxi—on a computer.

As we stated last week, that is a software patent, just like the patents that Oracle and Microsoft have just been sued over. As The Register reported just four days ago:

The University of Tennessee Research Foundation (UTRF) and Saint Matthew Research (SMR) on Tuesday filed lawsuits against Microsoft and Oracle alleging the infringement of database patents.

The UTRF exists to commercialize intellectual property arising from research at the University of Tennessee; SMR is a California-based limited liability company with an exclusive license to the patents at issue.

The matter of fact is, none of this would happen if the USPTO hadn’t granted so many software patents. Thankfully, however, the courts are doing their job and eliminating such patents one by one. Legal firms are now cataloging opportunities for skirting the law (“7 Post-Alice patent cases that survived 101 rejections – Clearing some cloud of doubts on software patent eligibility”) and patent maximalists in the form of ‘news’ site ask, “SCOTUS To Solve The Post-Alice Puzzle?”

It’s not a puzzle, it’s a determination, and SCOTUS isn’t revisiting it any time soon (maybe never). That’s just wishful thinking or lobbying by the patent microcosm. They try to pressure the Justices to undo Alice.

There is no lack of examples of lobbying, even from the past week alone. 4 days ago one ‘news’ site of patent maximalists wrote supposed ‘advice’ for those seeking a patent. Here is a portion:

For startups in the early stages of development, securing a patent can be an easy thing to put off or forgo altogether. In the legal technology community, however, getting proprietary technology patented is perhaps not such a bad idea, especially where software development is concerned.

No, it’s horrible advice. To pursue software patents right now would be a waste or time and money. Moreover, for startups (as stated above) it would barely help; they would be outnumbered by patents of very large firms (like IBM) and defenseless in the face of patent trolls.

Over at Patently-O a few days ago there was this article about Section 101 which said this:

In Blue Spike v. Google, the patentee has asked the Supreme Court to further elucidate its test for eligibility under Mayo, Alice, and Myriad with the following three questions presented.

May patentable subject matter under § 101 properly be assessed by over-generalizing patent claims to a “gist”?
May a district court properly assess patentability under § 101 prior to authoritatively construing the patent’s claims?
May a district court adjudicating a motion for judgment on the pleadings on § 101 patentability grounds properly consider questions of patent enablement under 35 U.S.C. § 112?

We have an interesting case here where the district court expressly stated its approach to Mayo/Alice Step 1 is to distill the claimed invention to its “gist” and ask whether that gist is an abstract idea.

In its lawsuit against Google, Blue Spike asserted five related patents: U.S. Patent Nos. 7,346,472 (the “’472 Patent”), 7,660, 700 (the “’700 Patent”), 7,949,494 (the “’494 Patent”), 8,214,175 (the “’175 Patent”), and 8,712,728 (the “’728 Patent”). Looking at asserted claim 1 of the ‘472 patent as an example: the claim requires comparing a query signal with a reference signal. The process involves creating an “abstract” (essentially a hash or digital fingerprint) of each signal that uses “perceptual qualities” of each signal, and then comparing those abstracts.

We wrote about this case before. The EFF called the firm a “patent litigation factory” and there is no way to respond to it other than challenge the patents one by one. That’s where Alice comes in and becomes rather handy.

Speaking of the EFF, it wants the patent microcosm to leave Michelle Lee alone (she is defended by patent reformers) and told in an announcement that “Congress Should Leave Alice Alone”. The EFF’s Vera Ranieri wrote:

Since Alice, lower courts have routinely invalidated some of the worst abstract and vague patents. We’ve highlighted many of these abstract patents in our Stupid Patent of the Month series. There was also the patent on a “picture menu” that was used to sue over 70 companies. And the patent on using labels to store information in a data structure that, on being invalidated as abstract, ended an astonishing 168 cases.

Recently, we’ve heard that certain patent owners are lobbying Congress to modify 35 U.S.C. § 101 and legislatively overrule Alice. Many of these advocates like to claim that the software industry and innovation have been seriously harmed by Alice. But what has really happened?

Currently, five of the top 10 companies by market capitalization are information technology focused, a significant shift from ten years ago when only Microsoft made the cut. Tesla, who famously announced they were abandoning patents, is now the highest valued U.S. car maker. The 2017 Silicon Valley Report from Joint Venture Silicon Valley noted “seven straight years of economic expansion” in the Bay Area, a region known for its innovation.

Smaller innovators are also going strong. The Kauffman Index of Startup Activity shows a sharp increase in activity between 2014, the year Alice was decided, and 2016. Employment in the innovation and information products field in Silicon Valley grew by 5.2% between 2015 and 2016, more than any other category, and venture capital investment remains strong. Thus if Alice were in fact “decimating” the industry as one judge on the Federal Circuit predicted, there is little evidence of it. To be clear, this isn’t to say that Alice is the only reason the industry is thriving, but it is a reminder that software patents and the software industry are not the same thing.

Later on in Twitter they added: “Abstract patents harm innovation. Congress should not undo court case limiting them” (nice to see the EFF adding its weight to this).

An immature response from the patent microcosm, as usual, was attacking the EFF rather than its message. One of them wrote about the “EFF’s mission” that it is “proudly serving our corporate masters to make it easier to steal other people’s IP…”

As Benjamin Henrion told him, “the patent industry wants to abolish 101 and patent everything…”

Yes, it’s the patent ‘industry’ which wants to “steal” everything from developers like us. When we try to gain back control they say that we “steal”. Steal what? The right to write our own code, in our own way, in our programming language of choice?

Thankfully, in addition to this new case mentioned earlier, there is the Nintendo case that we wrote about last week. As expected, the patent microcosm tried hard to ignore it (almost no site mentioned the outcome) and Watchtroll did not just attack the judge, for a change. Watchtroll has in fact neglected to mention the case, instead allowing John M. Rogitz from Rogitz & Associates to do a little piece. Here is what he wrote about it:

In fact, when discussing those cases the Federal Circuit went so far as to note that Claim 1 “does not even require a computer” and “the invention can be practiced verbally or with a telephone.” Even where RecogniCorp’s Claim 36 recited use of a computer, “it does exactly what we have warned it may not: tell a user to take an abstract idea and apply it with a computer.”

This would have been all over the blogs of patent maximalists if the outcome was in their favour. But as usual they’re cherry-picking. So much for integrity and honesty.

Managing IP, which obviously said nothing about the above case, has instead mentioned another case from the same court, namely Helsinn. Michael Loney wrote that “the Federal Circuit has ruled the America Invents Act did not change the meaning of “on sale” and the bar applies if the existence of the sale is public, even if the details of the invention are not publicly disclosed…”

Where were IP Kat, IAM, Patently-O and so on? It has been 9 days since the judgment (nearly ten days in fact) and nothing is being mentioned about it. Dennis Crouch certainly found time to entertain extremists and corporate lobbyists with USTR’s ‘Special’ 301 ‘Report’ (meddling in other nations’ affairs). Why nothing about RecogniCorp and Nintendo?

IAM and Managing IP have instead resorted to all sorts of sponsored nonsense from China (China’s Supreme People’s Court rules in patent infringement retrial) and from India, where LexOrbis tells the Indian Patent Office examiners how to do their job (it keeps lobbying a lot for software patents recently, without even understanding how they work). The audacity of them, joining IAM’s endless lobbying for software patents in India. Here are some recent examples of IAM doing this so far this year:

The very latest from IAM about India is “Indian smartphone upstart says its patent prowess will put it way ahead of domestic rivals”, i.e. more patent maximalism in India.

When will they even give a mere impression of balance? Managing IP has another strategy for patent maximalism in China, stating that “China is often criticised for failing to adequately protect intellectual property rights and it’s said that systemic issues plague its IP regime, leaving foreign IP owners at the mercy of an unpredictable system.” It did another article about China a few days ago.

Remember that China has already been pressured to grant software patents and a month ago, on April first (interesting choice of date), it further reinforced or reiterated support for software patents.

USPTO Shoots Itself in the Foot by Granting a Patent on Paper Bag

Posted in Apple, Patents at 5:26 pm by Dr. Roy Schestowitz

Patent: a piece of paper about a piece of paper?

A paper bag patent

Summary: Symptoms of lenient patent examination outside the realm of software; is this a “rotten apple” or special treatment for rotten Apple?

THE USPTO has lost it again. Every now and then the EFF points out “Stupid Patents” (of the month) and the above certainly merits the title. It only got press attention because the media is obsessed with (and paid by) Apple. It’s a symptom of a problem which we also see at the EPO (Apple being granted ridiculous patents that examiners tell us about).

“What is the worth of a US patent?”So Apple has just patented a paper bag (nothing complicated about the so-called ‘invention’) and the outcome of it is bad reputation for US patents as a whole (the improvement in the software domain notwithstanding).

A company with a US patent has just reached bankruptcy and then rescued, says IAM. Days ago it claimed that “Pantech had previously assigned an issued US patent and pending application to Intellectual Discovery in November last year. Again, the latter of these was filed after Pantech’s buyout from bankruptcy.”

“If silly patents on paper bags are being granted, then maybe the so-called ‘invention’ is worth even less than the paper on which such patents get printed.”What is the worth of a US patent? What is the true worth of an EP (European Patent)? If silly patents on paper bags are being granted, then maybe the so-called ‘invention’ is worth even less than the paper on which such patents get printed.

Qualcomm Has Collapsed Since the Antitrust Actions Began

Posted in Antitrust, Apple, Patents at 5:09 pm by Dr. Roy Schestowitz

Qualcomm shares

Summary: The shakeup at Qualcomm gives room for hope that regulatory agencies will end patent injustice and let the market be driven by performance, not protectionism for companies that cannot perform

THE one company that barely makes anything but patent deals is Qualcomm [1, 2, 3, 4]. In our past articles we gave some background and in our latest article we showed the effect on the stock when Apple stopped paying.

“Qualcomm’s desire to gain leverage over Apple is obvious,” Florian Müller wrote, “but (for now) I can’t see how it could portray Apple as an “unwilling licensee.””

Joshua Wolson from Dilworth Paxson LLP said that FTC’s Qualcomm Investigation Is Important” a few days ago when he wrote (mostly behind paywall):

America fashions itself as a cradle of innovation. We encourage entrepreneurs and try to provide robust intellectual property protection to encourage inventions and innovations. American inventions and inventors impact the world over, however. Indeed, we live in an interconnected world. Our devices are connected. Our personal networks are interconnected. Increasingly, our legal and regulatory structures are interconnected, as well. This is particularly true when it comes to antitrust enforcement.

We intend to keep watching this case as it impacts just about any Android OEM and most companies that work with GNU/Linux on devices. Qualcomm now faces serious regulatory actions in several continents and how it pans out can impact laws pertaining to software patents, FRAND, and SEPs.

The Malicious Campaign to Slow Down or Cripple the Patent Trial and Appeal Board (PTAB)

Posted in Courtroom, Deception, Patents at 4:45 pm by Dr. Roy Schestowitz

The patent microcosm wants to reduce patent quality (for profit)

PTAB

Summary: The primary mechanism for defense from patents on software (and patent trolls that exploit these) is still under attack from those who profit from patent maximalism, i.e. low patent quality and frivolous litigation

THE impact of Alice and § 101 is profound. The patent microcosm is in somewhat of a panic because, in its own view, it's all just a storm (to their business model of litigation).​

Assisting this microcosm are a few sites which we took note of before. Dennis Crouch of Patently-O, for example, is still hoping to slow PTAB down and help patent trolls etc. — those who rely on software patents the most. The other day he reprinted a piece from Saurabh Vishnubhakat of Texas A&M University School of Law (near the capital of patent trolls). When Patently-O covers a PTAB ‘case’ it’s usually a pro-software patents one (Cuozzo in this case) and this one is no exception. To quote:

The Federal Circuit’s panel decision in Achates Reference Publ’g, Inc. v. Apple Inc. held that PTAB decisions to institute IPR are unreviewable even where the § 315(b) time bar may have been violated. The en banc question here is whether to overrule Achates.

The USPTO’s interest in the case was clear from the large group of agency employees in attendance, including members of the PTAB and the Solicitor’s Office as well as Director Michelle Lee herself. The USPTO also formally intervened in the case and designated Mark Freeman from the DOJ Civil Division’s Appellate Staff to argue.

On another day last week Patently-O again complained that the Court of Appeals for the Federal Circuit (CAFC) isn’t wasting its time delivering a written judgment on every appeal from PTAB (as that would be almost infeasible). “The Federal Circuit,” Patently-O wrote, “has denied Leak Survey’s petition for rehearing en banc on the issue R.36. Perhaps ironically, the court has continued to remain silent on its justification for issuing judgments without opinion. Although the Supreme Court has generally empowered appellate courts to issue summary affirmances without explaining reasoning for their judgment, the statutes provide special rules for cases arising from patent and trademark cases. On the patent side, 35 U.S.C. § 144 requires the Federal Circuit to hear appeals from the PTO, “review the decision,” and, once a decision is reached “the court shall issue to the Director its mandate and opinion.””

How long is Crouch going to keep ‘harassing’ them in an effort to stifle the work of PTAB? Currently, CAFC agrees with PTAB about 80% of the time, based on an exhaustive survey of cases (both last year and this year). The thing about the patent maximalists is, they want more litigation and patent feuds. That’s just what they make money from and PTAB together with CAFC disrupt that. The patent microcosm is hoping to slow down PTAB, as we pointed out before, and Michael Loney says that they may be succeeding as after a record month there’s this slump: “The 121 Patent Trial and Appeal Board (PTAB) petitions filed in April was the lowest since the 118 in March last year. This follows a record quarter for filing at the start of this year, with 246 petitions filed…”

We certainly hope to see PTAB’s invalidation rate going up and number of petitions accelerating over time, in spite of smears and personal attacks from the patent microcosm.

A couple of days ago Morrison & Foerster LLP published this piece at IP Watch in which it said:

Thus, it appears likely that the Commission and the ITC Judges will be required to increasingly consider parallel IPR proceedings in ongoing Section 337 investigations, particularly where IPRs are at “advanced” stages.

What it means to say is, there are ITC cases (impending embargoes) that are hinged on dubious patents which may be about to get trashed by PTAB. Earlier today we wrote about one such case involving Microsoft’s patent troll Intellectual Ventures. We certainly hope that Alice, leveraged by PTAB judges, will help stop such trolls.

How the Invalidation of Software Patents Has Helped Victims of Patent Trolls

Posted in America, Patents at 4:17 pm by Dr. Roy Schestowitz

“Alicestorm” is what patent maximalists like to call it because it’s stormy to patent predators

Alice

Summary: The ongoing collapse of a lot of software patents in the United States enables defendants to protect themselves from trolls, or sometimes altogether avoid/dodge litigation

THE ARGUMENT that patent trolls rely on software patents has been repeated here for about a decade and defended using other sites, including some which examined the underlying cases and corresponding patents. We believe that in order to tackle patent trolls we must concentrate on eliminating all software patents.

Thankfully, owing to Alice and then § 101​ (more about this later tonight), software patents are dropping like flies. More software patents have in fact just been trashed in the US, as reported in “3D Camera Exposure Patent Invalid Under 35 U.S.C. § 101​” earlier this month. To quote:

The court granted defendant’s motion to dismiss because the asserted claims of plaintiff’s 3D camera exposure patent encompassed unpatentable subject matter. “A patent claim that recites a solution to a problem but not the means of achieving it is not drawn to patent-eligible subject matter…”

There are other such cases, slightly older cases, which we will revisit later tonight. These serve to show the continuing trend. Software patents are definitely not coming back, at least not any time soon (because the US Supreme Court isn’t picking any cases that can overturn Alice and thus alter § 101​). We are gratified to see this, but at the same time we see a massive lobbying campaign to thwart Alice and its effect on § 101. We report about this every week and will deal with the subject in isolation later on.

The noteworthy news, based on this new article from Forbes (behind a malicious spywall, as usual), is that Alice helps a great deal against patent trolls. As this new anti-trolls campaign put it: “Founder of @gustly Daivd Rose explains how the section 101 & Alice rulings helped him beat a #patenttroll…”

Here is a relevant portion:

Using Courts In The Fight Against Patent Trolls

[...]

But the bigger question answered by the ruling was that the computer implementation component was not enough to validate a patent. Still avoiding the term “software”, the Supreme Court ruled that just because you can make a computer do it, does not…

The word “software” has become a ‘dirty’ word in the sense that mentioning it is a risk leading to loss of a patent (invalidation), but a lot of these patents do boil down to algorithms and are thus abstract, ineligible. Sometimes PTAB, not just the courts, help formally extinguish such patents, as we shall show later on…

Patents of Microsoft’s Largest Troll, Intellectual Ventures, Are Sold to be Used Offensively

Posted in Microsoft, Patents at 3:46 pm by Dr. Roy Schestowitz

When Microsoft does not sue directly, as it habitually does, one can count on Intellectual Ventures to step in, if not one of the many shells or shadowy clients of Intellectual Ventures

Related (March 2017): It Certainly Looks Like Microsoft is Already Siccing Its Patent Trolls, Including Intellectual Ventures, on Companies That Use Linux (Until They Pay ‘Protection’ Money)

Ballmer on patents
Full, 6-frame explanation of Microsoft’s strategy

Summary: Intellectual Ventures, the world’s largest patent troll which came from Microsoft, remains active and its shadow can be found in newly-filed patent cases, including requests for embargo

MICROSOFT loves to pretend to have changed its patent stance (the media habitually helps such pretenses), but Microsoft is a breeding ground to patent trolls, including the world’s largest. Michael Loney from Managing IP calls this nasty patent troll a “PAE”, which is certainly something it is not. The FTC recently published a study warning about such trolls and the ITC occasionally helps trolls, by means of embargoes.

Mr. Loney has written:

A recent Intellectual Ventures lawsuit filed with a companion ITC complaint may be a sign of what is to come in patent assertion entity litigation, with one observer describing it as “a formidable new change”. The ITC has now instituted the investigation against car manufacturers and parts makers

So a massive patent troll is trying not just to tax companies (including those which distribute Linux) but also to embargo, i.e. ban them from the marketplace.

“So a massive patent troll is trying not just to tax companies (including those which distribute Linux) but also to embargo, i.e. ban them from the marketplace.”The ‘new Microsoft’? The mask slips off again?

Another new post, this one from friends of Microsoft and Intellectual Ventures, notes that this nasty patent troll of Microsoft is passing patents to other companies and these patents are used for litigation right now. To quote the relevant part:

Of the 11 grants that ASML and Zeiss are asserting, four were picked up from Intellectual Ventures via a Dutch corporate entity called Tarsium BV (the patent nos. are 6,731,335, 7,297,916, 8,149,312 and 8,625,017). The remaining seven originated with HP and also found their way to ASML/Zeiss via Tarsium. IV appears to have transferred its patents to Tarsium in November 2014, but it has only just shown up in the USPTO assignment database as part of a nunc pro tunc assignment with a recorded date of April this year. IV picked up the quartet of grants in 2011 from an entity called Crosstek Capital LLC as part of a portfolio of more than 300 assets — prior to Crosstek they were owned by Magnachip Semiconductor.

Although IV has built a portfolio that stretches into the tens of thousands, as its sale to Tarsium shows, it has also been open to making sales. As this blog exclusively reported in April, the firm has stopped making acquisitions for its most recent fund and has significantly upped its rate of sales.

So it is indeed like an arms broker. It fuels litigation now.

“Intellectual Ventures, for instance, has used thousands of proxies and now it’s just selling patents for others to carry out the litigation.”The unfortunate thing is, these patent trolls are morphing to hide their real identity. Intellectual Ventures, for instance, has used thousands of proxies and now it’s just selling patents for others to carry out the litigation. Will US politicians take note of it?

Dennis Crouch says that “Congress Continues to See Need to Reduce Abusive Patent Litigation,” but if firms like Intellectual Ventures foster legal chaos not directly, will it be noticed at all? As Crouch put it the other day, the “approach here is that patent litigation reform is being linked with civil litigation reform generally – and Republican control suggests making it more difficult to bring claims. Recognize that a number of influential parties, including IPO, have called for reforms to strengthen patent rights – so far that is getting no traction among Republican leadership.”

“They just want ‘protection’ money based on unspecified threats. This is clearly racketeering and should be treated as such.”This ought to be a bipartisan issue. A lot of people out there are hurt by patent trolls; consider this new story of Kevin O’Connor. As this new campaign against trolls put it, a “letter Kevin O’Connor’s #smallbiz received from a #patenttroll didn’t even name the #patent in question…”

They just want ‘protection’ money based on unspecified threats. This is clearly racketeering and should be treated as such. From a legal perspective, this is quite likely a violation of the law. What’s worth noting here is that Microsoft now exercises a strategy of proxying at two levels; first it outsources a lot of the trolling activities to Intellectual Ventures, which in turn outsources the litigation to thousands of shells (based on the mainstream media’s reports). Microsoft too has its own in-house troll, called “Microsoft Technology Licensing”.

But hey, Microsoft says it “loves Linux”… it even distributes free buttons that say so.

Revisionism About Microsoft Software Patent Deals Implicating GNU/Linux

Posted in Deception, GNU/Linux, Microsoft, Patents at 3:00 pm by Dr. Roy Schestowitz

When legal threats against companies that distribute Free/Libre open source software are framed as diplomacy

Historical revisionism
Reference: Historical revisionism

Summary: Sites of the patent microcosm are still rewriting history and distorting the record of Microsoft’s patent aggression against Free/Libre open source software — aggression that continues to present and gets disguised using euphemisms

THE relationship between Microsoft and Toyota goes back to the years before Toyota moved from Windows to Linux (or Android) and as covered here earlier this year, Microsoft compelled Toyota to pay a sum of money for patents pertaining to file systems, operating systems, UIs and so on. In other words, Microsoft — still proclaiming that it “loves Linux” — attacks Linux with patents. It’s taxing and preying on Linux, using worthless patents that are likely not eligible but leveraged in bulk in order to make legal defence too expensive.

As always, Microsoft relies on media allies to distort what is happening and paint blackmail as some kind of amicable agreement. IAM, for example, is once again grooming Microsoft with its patent extortion — essentially patent racketeering tactics against Linux. IAM seems to be doing this every month if not every week, perhaps hoping that repetition of lies will somehow make them stick. Here is the latest example, which also drags Xiaomi into it:

No one who reads this blog needs reminding how that turned out, but Microsoft’s recent deal making also shows how parts of the industry are becoming more collaborative. Earlier this year the windows giant announced a new patent agreement with Toyota which was the first for its new auto licensing programme. Toyota North America’s Frederick Mau insisted that the deal was about than just a licence; instead, it was “one more step in a collaboration with Microsoft to create better vehicles for our customers”, he said.

That deal was also another example of the IP value creation pivot the software pioneer has made, with a move away from a royalty based approach to licensing. “It has only been in the last few yeas that I have been involved in true win-win deals for both sides,” Minhas stated, offering the 2016 deal with Xiaomi as a leading examples of the change in Microsoft’s approach.

This is hogwash. Not just the part about Toyota but also Xiaomi, which needed to pay Microsoft for patents because it uses Linux (or Android). Days later IAM also published Ben Husband’s self-promotional puff piece for Carpmaels & Ransford LLP, a British law firm that said:

Microsoft recently announced a new patent licensing agreement with Toyota that includes broad coverage for connected car technologies. This is unsurprising, since the nature of connected car technology means that technology companies, with their enormous experience in developing communications, software and data-processing technologies, are ideally placed to work with established car companies ‒ the collaboration and licensing opportunities would be substantial.

But software patents are no longer a thing; and besides, did Microsoft threaten to drag them into the court (like it did Samsung a few years ago)?

What we have above are some examples of the ‘softening’ of Microsoft’s image at the hands of patent maximalists who love to see ‘protection’ money, litigation, and generally a whole lot of aggression. That’s what they profit from.

Where does GNU/Linux stand in all this? It stands to lose.

ILO Gives the European Patent Office Unfair Advantage in Disputes With Staff

Posted in Courtroom, Europe, Patents at 7:38 am by Dr. Roy Schestowitz

When people start receiving envelopes such as these they know justice is unlikely to ever be served (waste of time and money, good only for lawyers)

ILO envelope
Institutional Laziness Organization?

Summary: Dispute resolution cannot be attained at ILO because ILO does not properly enforce labour law, does not give staff adequate opportunity to respond, rarely issues an actual judgment (deferrals instead), and lets the EPO dodge compliance with rulings

THE EPO is habitually abusing the law and nonchalantly abusing its own staff. Incredibly enough, time after time it somehow dodges justice; it keeps getting away with it. Staff is in shock, not in awe, as there seem to be no safeguards for them, not even ILO (whose sole job is to ensure justice from a peripheral, independent angle). Something is seriously wrong and truly dysfunctional here. See what happens in WIPO (Switzerland) for parallels. Is this civilised Europe or have international bodies, especially those residing on European soil, descended to standards of third world countries? How can this be? Whistleblowers from these bodies face incredible retribution. They live in police states, sheltered by a bubble of immunity and impunity. There are de facto monarchs. They are above the law.

Claude RouillerReaders have begun writing to us with additional feedback. A lot of them got severely abused by the EPO, but few have the courage to speak about it, or to air their ordeals publicly (it’s like the EPO is blackmailing them). We have been hearing many complaints about Albert Koopman, for instance — a doctor whom we last wrote about one week ago. Why does his name keep coming up? How many people feel victimised by this man?

We have begun learning not just about abuse of ill and/or disabled people at the EPO (we have plenty of material related to that). We gradually learn about ILO’s apathy towards them, if not discrimination towards them. “ILO will only check whether the EPO follows their internal rules, but will not check the validity of these rules,” one person wrote the other day, alluding to Claude Rouiller's ILOAT. Well, the problems were explained in a document from SUEPO quite recently. “There we go,” told us another person. “Useless auditing process then.”

Here is the full comment about it:

A new document about the tribunal of ILO was just published by SUEPO. It is worth reading.

2 things are worth mentioning. First, there has been a change in style in ILO decisions under Battistelli’s time: the number of summary dismissals has increased considerably. Basically, there were none before Battistelli.
Second, and I feel this is even more important, ILO will not exercise any normative control. In plain English: ILO will only check whether the EPO follows their internal rules, but will not check the validity of these rules.

What does this mean in practice? In practice, it means that the EPO staff has to follow their end of the contract (like not talking to the press under penalty of losing their pensions) while the EPO council is free to change the terms of the contract at their leisure.

I think that the people seeking employment at the EPO ought to know.

Some people go further and raise suspicion that ILO is just rubbing the EPO’s back rather than policing it or enforcing labour law. See the following E-mail for example (redacted by us):

Date: ██████
From: ██████
To: trib@ilo.org
Cc:
Subject: URGENT procedural requests in re AT █████ and in re AT █████

In re AT █████ and in re AT ████

Dear Mr. Butler, dear Sir or Madam,

With regard to your e-mail of █████ 2017 (last in the e-mail exchange as attached) and to the EPO’s reply of █████ 2017 to this complaint which I received yesterday on ██████, I have the following comments, questions and requests:

1. Thank you very much for noting my request to join these two cases, yet I understand from you that they are not currently joint yet.

2. Given your earlier instruction (in some of my other cases, cf. your e-mail of ██████ 2015, among others) to remove cross-references to documents provided in other procedures it is unclear to me how I can “provide additional arguments and evidence” in reply to the EPO’s new allegations in their latest submission in re AT ██████, for instance on my alleged additional meetings with Dr. Koopman within the medical committee procedure, without being allowed to refer to such new allegations by the EPO and refute them. Could you please clarify?

3. In view of my fundamental right to reply to the EPO’s new allegations in re AT █████ I maintain my procedural request under 6. of my e-mail of █████ 2017 (as attached).

4. In view of the term of 30 days granted to me for my rejoinder in re AT ██████ in reply to the EPO’s extensive reply of ████ pages with ████ Annexes [Editor's note: massive numbers!], this term having started from the day of receipt, i.e. from yesterday, and in view of the extremely generous extension of 60 days provided to the EPO’s two specialised professional lawyers for their reply, I urgently request an extension of 90 days for my rejoinder in re AT █████ due to my chronic illness and to my personal obligations, my own administration, my social life, necessary repair works at my home, and the like.

Please confirm receipt for this e-mail.

Awaiting your prompt reply,
Sincerely yours,

████████████

What we are seeing above is a rather perversely disproportionate action; it’s asymmetric legal warfare against discriminated, abused (and as usual, then maligned) EPO staff with a chronic illness. We have heard from (and written about) similar cases involving other people, so there is certainly a pattern here. The EPO uses deep pockets (stakeholders’ money) to overwhelm and overburden the victim with legal fees, potentially bankrupting some. What kind of inhumane place has the EPO become and why does ILO shelter the EPO so much? Is ILO part of the problem? People are dying over this

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