08.28.21

About Half of the Supposed ‘Growth’ in Patents is Abstract Stuff or ‘Software-Related’ (Patents That Courts Would Quite Likely Reject)

Posted in America, Courtroom, Europe, Patents at 9:37 am by Dr. Roy Schestowitz

Illustrator promptSummary: Despite a disturbing mass-granting trend, wherein quality and legitimacy of patents may matter no more (it’s all about quantity, not quality), the courts are pushing back, both in Europe and in north America; so unless they can miraculously put the courts at the hands of patent maximalists — basically what Team UPC is hoping to achieve to no avail — there’s a massive avalanche ahead (millions of tentatively invalid or fake patents)

LATELY we’ve been writing a great deal about corruption that enabled the lowering of patent quality, human rights, and standards of the sciences (we’re meant to think granted patents and innovations are surrogates). Donald Trump’s regime contributed its fair share to this fiasco (Hungarian/Hungary-born litigation USPTO ‘mole’), but we have our own 'Trumps' right here in Europe (with cross-pollination). They don’t even need to win an election and rally a bunch of violent mobs. We’ve written more than enough about EPO dictators Benoît Battistelli and António Campinos shamelessly promoting patents on software using a plethora of laughable and usually meaningless buzzwords and hype waves. Across the Atlantic they lobbied for the same, seeing that since 2014 (Alice at SCOTUS and 35 U.S.C. § 101) software patents have been mowed down by the thousands in the Federal Circuit and Patent Trial and Appeal Board (PTAB), mostly via inter partes reviews (IPRs), i.e. post-grant.

“Lately we’re been writing a great deal about corruption that enabled the lowering of patent quality, human rights, and standards of the sciences (we’re meant to think granted patents and innovations are surrogates).”Earlier this week Eileen McDermott (editor of Watchtroll) wrote about these fake patents and dubious verdicts. She wrote* : “The U.S. Court of Appeals for the Federal Circuit (CAFC) today reversed a jury verdict for Juno Therapeutics and Sloan Kettering Institute for Cancer Research (Juno), wiping out a $1.2 billion judgment for the entities. The CAFC found that the jury’s verdict with respect to written description was not supported by substantial evidence.”

“CAFC, which still isn’t too eager to allow any of these patents, is without its chief judge Prost (not in charge anymore).”A day or so apart Raymond Millien (also over at Watchtroll) said: “In First Half of 2021, 63% of U.S. Patents, 48.9% at EPO and 40.1% in China Were Software-Related” (so basically questionable if not outright fake patents, even where the law forbids them).

CAFC, which still isn’t too eager to allow any of these patents, is without its chief judge Prost [1, 2, 3] (not in charge anymore). But it’s still insistent. Steve Brachmann (Watchtroll) wrote: “Federal Circuit Affirms [Section] 101 Invalidation of Secure Transaction System Patents in Victory for Apple and Visa…”

“We must confess that we try really hard to find more sources for ‘news’ or noise about patents, but many of the blogs we used to follow have shut down or simply became inactive, especially blogs vocally in favour of software patents.”Here in Europe I constantly find stories about European Patents perishing in courts; well, software patents are also fake patents across the Atlantic — in American courts too…

That’s certainly a relief and good news to software developers.

We must confess that we try really hard to find more sources for ‘news’ or noise about patents, but many of the blogs we used to follow have shut down or simply became inactive, especially blogs vocally in favour of software patents. Their influence is waning, but they will never admit it. That’s just how they operate, projecting confidence to clients while egging them on to pursue more lousy patent and file more lawsuits (even actions that likely go astray at the end, i.e. enriching nobody but the law firms).

To be most frank, having written literally thousands of posts about these issues already, we’d rather focus on new material and revelations. “EPO Exposé: The Besieged Baltic States – Part VI” is due to be published tonight. There has been a lot of interest in this series. We’re also grateful to readers who shifted over to gemini:// and take advantage of better (and lighter) protocols.
____
* All links are omitted in this case because Watchtroll is the only site we refuse to even link to because of its highly aggressive tone and blood-lust-type stance, especially when its founder was still in charge there, constantly attacking judges — left and right — for merely doing the right thing. He has since then softened his tone somewhat.

08.24.21

Expecting the Administrative Council of the European Patent Organisation to Actually Follow the Law…

Posted in Courtroom, Europe, Law, Patents at 2:24 pm by Dr. Roy Schestowitz

Video download link | md5sum 4449a20ad1a87e19292b30bd9031f5f5

Summary: The representatives of staff of the EPO, the Central Staff Committee (CSC), are approaching the Heads of Delegation of the Administrative Council of the European Patent Organisation along with their Chairman; they’re politely asking for better safeguards against systematic abuses of the law, including abolition of workers’ basic rights

The Central Staff Committee (CSC) of the EPO has distributed a letter, an open letter, and readers of Techrights typically ensure that we too can see a copy. This letter only partly concerns the unlawful regulations of Benoît Battistelli — regulations which António Campinos continued to exploit while keeping 100% silent on the court’s outcome (he doesn’t seem to care what tribunals say unless those tribunals are controlled by him).

“The intent is to raise awareness and garner sympathy from the Administrative Council of the European Patent Organisation (mostly a bunch of legal hacks rather than scientists).”The letter from the CSC mostly concerns the internal Appeals Committee, which was mentioned earlier this year and several times last year. The intent is to raise awareness and garner sympathy from the Administrative Council of the European Patent Organisation (mostly a bunch of legal hacks rather than scientists).

“On 7 July 2021,” the CSC said, “the Administrative Tribunal of the International Labour Organization (ILOAT) delivered several important Judgments on the rules governing the exercise of the right to strike at the EPO. The ILOAT found that virtually every single one of the strike rules blatantly and obviously violated the fundamental right to strike, that the President exceeded his competence when drawing up Circular No. 347 in 2013 and that the Circular is therefore unlawful in its entirety and is set aside. Already in 2015 a national court in The Hague, the so-called Gerechtshof, found that the EPO violated fundamental European rights. In view of the long list of violations of the fundamental right to strike identified by the ILOAT, the question can be raised of why a majority in the internal Appeals Committee (ApC) reached a completely opposite opinion, based on the same facts and arguments.”

Then they spoke of the internal Appeals Committee (ApC). “The members of the ApC are laypersons. However, the Chair and Vice-Chairs are expected to possess the qualifications required for appointment to high judicial office or be lawyers with experience in the area of employment law acquired at national or international level (see Article 111(3) ServRegs). A reasonably objective and informed person might question whether they would at times give up their independence and impartiality.

“The damage caused by the ApC’s massively wrong assessment of the strike rules and their application is considerable, both for the Organisation and for its staff.

  • The Organisation is now stigmatised in the public eye as an employer that has been violating fundamental rights of its staff for over eight years and has been depriving them of an important tool for collective bargaining.
  • Staff have also definitively lost confidence in the internal means of settling disputes.

Much of the rest of the publication is included in letter form, as shown in the video above, and we’ve decided to replicate it as HTML so that it makes it into IPFS and Gemini space.

European Patent Office | 80298 MUNICH | GERMANY

Reference: sc21102cl – 0.3.1/1.3.1
Date: 13/08/2021

To the Chairman and
the Heads of Delegation of the
Administrative Council of the
European Patent Organisation

OPEN LETTER

System for the settlement of disputes – Proposals for strengthening the Appeals Committee

Dear Mr Chairman,
Dear Heads of Delegation,

On 7 July 2021, the Administrative Tribunal of the International Labour Organization (ILOAT) delivered several important Judgments on the rules governing the exercise of the right to strike at the European Patent Office1, introduced in 2013 with decision CA/D 5/13 and Circular No. 347, as well as on subsequent implementing decisions. ILOAT found that virtually every single one of the strike rules blatantly and obviously violated the fundamental right to strike, that the President exceeded his competence when drawing up Circular No. 347 and that the Circular is therefore unlawful in its entirety and is set aside2. The ILOAT furthermore ruled that a salary deduction for absence due to strike participation of 1/20th of the monthly remuneration per day of absence instead of 1/30th as for all other unpaid lawful absences was punitive3 and that the President had abused his power when applying the strike rules and through his interpretation of Circular No. 347, of which he was the author4, justifying high moral damages.

Already in 2015 a national court in The Hague, the so-called Gerechtshof, found that the EPO violated fundamental European rights5.

____
1 Judgments Nos. 4430 to 4435
2 Judgment No. 4430, consideration 16 and decision
3 Judgment No. 4435
4 Judgments Nos. 4432 to 4434
5 The decision of the Gerechtshof was later on set aside by the Dutch Supreme Court, the Hoge Raad, only on the ground that the Organisation could invoke its immunity from national jurisdiction and that the Dutch courts therefore have no jurisdiction (see Judgement of the Gerechtshof Den Haag).


Based on the same facts and arguments the internal Appeals Committee (ApC), by a majority, concluded in the underlying internal appeal procedures that the new strike rules as well as the salary deductions were lawful, that the President did not act ultra vires when laying down the strike rules in Circular No. 347 and that he did not abuse his powers in applying them6. The ILOAT found that the ApC had erred in all these points. In view of the long list of violations of the fundamental right to strike identified by the ILOAT7, this is remarkable and raises the question of why a majority in the ApC reached such an opposite opinion. The members of the ApC are laypersons. However, the Chair and Vice-Chairs are expected to possess the qualifications required for appointment to high judicial office or be lawyers with experience in the area of employment law acquired at national or international level, pursuant to Article 111(3) ServRegs. A reasonably objective and informed person might question whether they would at times give up their independence and impartiality, codified in Article 112 ServRegs.

The Staff Representation has already pointed out several times8 that the unilateral selection and appointment of the Chair and the Vice-Chairs by the President (Article 111(2)(a) ServRegs) does not ensure the required balance in the ApC and does not promote confidence in its opinions. The Staff Representation has therefore repeatedly requested to be involved in their selection and that the GCC be consulted on the appointments, to no avail9.

Internal appeals are procedure where a Committee is composed with an equal number of members appointed by the President and by the Staff Representation, however with the Chair taking alone all procedural decisions (Article 111a(1) ServRegs), leading the debate and making sometimes the difference in the opinions. Therefore, a mutual agreement on their appointment is key for arriving at balanced opinions accepted by staff and for preventing from overloading ILOAT with complaints which could have easily been settled internally. This was the reason why the GAC10 had to be consulted on the appointment of the Chair and Vice-Chairs since the founding of the European Patent Organisation11 until 2013. However, with decisions CA/D 8/12 and 9/12 this consultation process was abolished and the Chair and Vice-Chairs have since then been unilaterally appointed by the President.

____
6 Only in the internal appeals procedure underlying Judgment No. 4432 the ApC concluded that a postponement of a strike ballot had been unlawful, but despite the blatant abuse of power no moral damage was awarded.
7 See, in particular, Judgment Nos. 4430, cons.16 and 4435, cons.15 to 17
8 See for example the letter to the Administrative Council of 31 January 2020
9 Although Staff Representation has been granted an observer status in the last selection procedure for a new chair, this cannot be a substitute for being able to appoint members to the selection board and for the required consultation of staff representation in the GCC.
10 Replaced by the GCC with decision CA/D 2/14
11 Article 110(4) ServRegs, version 1977 (CA/D 9/77)


The damage caused by the ApC’s massively wrong assessment of the strike rules and their application is considerable, both for the Organisation and for its staff.

The Organisation is now stigmatised in the public eye as an employer that has been violating fundamental rights of its staff for over eight years and has been depriving staff of an important tool for collective bargaining, as their right to strike has been severely obstructed at a time when many fundamental reforms were pushed through (inter alia “social democracy”, the new career system, the new salary adjustment procedure, the new rules for the education allowance, …).

Staff have also definitively lost confidence in the internal means of settling disputes and will, in most cases, eventually file a complaint with the ILOAT for protecting their rights. In addition, there is a high risk that many other decisions in appeal cases were also based on opinions where the ApC erred in law.

In view of the fundamental importance of legal certainty and legal peace and in order to restore staff’s confidence in the opinions of the ApC as soon as possible, and to prevent that disputes have to be settled outside the Organisation, we urge you that the Administrative Council takes steps to ensure that:

• Staff Representation is allowed to appoint members to the selection board for the Chair and Vice-Chairs of the ApC,
• the GCC is consulted prior to appointment of the Chair and Vice-Chairs,
• no Chair or vice-Chair may be appointed who does not find consensus in the GCC.

Yours sincerely,

Alain Dumont
Chairman of the Central Staff Committee

cc.: President of the EPO
Administrative Tribunal of the International Labour Organization

In short, there seems to be a tendency to enshrine unlawful rules as “the law”; moreover, “there is a high risk that many other decisions in appeal cases were also based on opinions where the ApC erred in law.”

This is by design; in the past we saw EPO dictators intervening when the ApC got it right; so, as usual, there’s not even any regard/respect to those appointed to assess legality within the EPO.

08.03.21

Four Weeks of Non-Compliance: EPO Only Accepts Courts That It Rigs and Controls

Posted in Courtroom, Europe, Patents at 4:56 am by Dr. Roy Schestowitz

ILO-AT time
4 weeks tomorrow

EPO President, ILO-AT, I have diplomatic immunity
The media in the US calls such behaviour “fascistic”

Summary: Compliance is for suckers, believes the “Mafia” which runs the EPO; it is not even responding (for three weeks!) to letters from the victims who won the cases; this is bad for Europe's image and it sets a dangerous precedent

Willy Minnoye speaks
There’s no “Real Judge” in the world’s highest or even Supreme Courts, Mr. Vichy and his cohorts believe

08.02.21

[Meme] Vichyite Battistelli Committed Crimes and His Buddy António Snubs Courts That Confirm These Are Crimes

Posted in Courtroom, Europe, Patents at 8:33 am by Dr. Roy Schestowitz

António Campinos builds on top of Benoît Battistelli‘s actions to euthanise the EPO for a quick 'cash grab'

I will commit the crimes; I will leverage and cover them up

Summary: Staff of the EPO is coming to realise (or reaching acceptance of the fact) that the spirit of Battistelli — not just people he left in charge of the EPO — dooms the Office and there’s no way out of this mess

07.30.21

[Meme] Rowan and António Sittin’ on a Tree…

Posted in Courtroom, Europe, Law, Patents at 4:33 am by Dr. Roy Schestowitz

Have they climbed up some tree? Behold; they need to come down… off their high horses or the 10th floor… sooner rather than later… because the silence and inaction contribute to the perception of non-compliance with court rulings (except fake courts which they control).

ILO-AT issues ruling on strike regulations; May-June, Late June, Early July, End of July

Summary: How much longer can Team Campinos keep issuing tons of noisy and self-congratulatory puff pieces to (perhaps) distract from the elephant in the 10th floor of the Isar building (EPO HQ)? Staff won't wait for eternity.

07.17.21

The EPO’s Enlarged Board of Appeal Acknowledges That It’s Rigged Even After a Shuffle

Posted in Courtroom, Deception, Europe, Law, Patents at 4:40 pm by Dr. Roy Schestowitz

Video download link | md5sum 285911316fb6b32f5b7f2da3cb8998fe

Summary: The Enlarged Board of Appeal (EBA/EBoA) does what the Office basically rigged it to do; it’s approving unlawful measures

IT recently became a lot more apparent that the tribunals at the EPO had been rigged, first by Benoît Battistelli and then again by António Campinos. Time after time, especially when it comes to very big questions, the Enlarged Board of Appeal would rule in favour of the Office, irrespective of the underlying facts. Yet worse, they’d deal with legitimate concerns and arguments by setting them aside as inadmissible or something along those lines.

On Friday, i.e. yesterday, the Enlarged Board of Appeal did that yet again, just as we expected. The video above deals with so-called ‘media’ (in the pockets of litigation firm) coverage from that day. We’ll probably deal with this topic again some time in the near future.

07.08.21

ILOAT Finally Overturns Battistelli’s Vichyite Strike Regulations

Posted in Courtroom, Europe, Law, Patents at 1:31 pm by Dr. Roy Schestowitz


The Judgments of the ILOAT’s 132nd Session were announced in Geneva on 7 July 2021

Summary: An explanation of the blow suffered by António Campinos and the person who gave him the job; ILOAT (or ILO-AT) belatedly — or eight years late! — assessed Battistelli’s Vichyite strike regulations

There was some good news for EPO staff from Geneva on Wednesday when the Administrative Tribunal of the ILO announced its judgments from the recent 132nd Session, held between 24 May and 28 June 2021.

A significant number of the judgments related to Benoît Battistelli‘s notorious “Strike Regulations” which were adopted eight years ago in June 2013.

“But despite such clearly expressed reservations, the Administrative Council turned a blind eye to the palpable defects in the proposals tabled by Team Battistelli and – like a bunch of headless chickens – voted to adopt these manifestly flawed measures whose illegality has now been exposed for all to see.”On 27 June 2013, following a proposal by the President of the Office [PDF], the Administrative Council adopted decision CA/D 5/13 [PDF] amending the EPO Service Regulations (which entered into force on 1 July 2013).

Amongst other things, CA/D 5/13 created a new Article 30a of the Service Regulations concerning the right to strike.

Article 30a sets out some basic rules concerning strikes, defining what is meant by a “strike” and indicating, amongst other things, that a call for a strike can be initiated by a staff committee, an association of employees, or a group of employees, and that the decision to start a strike must be the result of a vote by the employees. Paragraph 10 of Article 30a authorises the President of the Office to lay down further terms and conditions for the application of Article 30a.

Relying on that provision, on 28 June 2013 the former Vice-President of DG4, Mr Željko Topić – acting on behalf of the President – issued Circular No. 347 containing “Guidelines applicable in the event of strike”, which likewise entered into effect on 1 July 2013.

At the time of their adoption in 2013, Battistelli’s Strike Regulations were strongly criticised by EPO staff representatives and the staff union SUEPO. This criticism was shared by outside observers of the social conflict at the EPO which was being escalated to new heights by Battistelli’s authoritarian management style à la France Telecom.

An article entitled “The President Repeals A Fundamental Right?” authored by Sylvie Jacobs, the Chairperson of the EU staff union, Union Syndicale Fédérale, which appeared in the January 2014 issue of the USF Newsletter [PDF], Agora, described Battistelli’s régime at the EPO in the following terms:

“EPO President Battistelli’s HR policy reveals a serious lack of understanding of fundamental rights of workers, in particular their right of association in the form of a trade-union.”

Later that year, in November 2014 [PDF], a position paper issued by the staff union SUEPO entitled “Social Conflict at the European Patent Office” noted that “such measures are unprecedented in Europe, apart from Italy’s Carta del Lavoro (B. Mussolini, 1927) and Spain’s Fuero del Trabajo (F. Franco, 1938).”

In drawing comparisons between Battistelli’s oppressive Strike Regulations and those of fascist-corporatist régimes that flourished in Europe during the inter-war period of the 20th century, SUEPO forgot to mention the example which was probably closest to Battistelli’s heart: the Labour Code or “Charte du Travail” adopted in 1941 by Philippe Pétain‘s Vichy State. The repressive labour and social policies of Pétain’s État Français were closely modelled on those of Fascist Italy.

Vichy Battistelli
Did Maréchal Pétain’s Vichy State provide the role model for Battistelli’s repressive regime at the EPO?

With Judgment no. 4430 [PDF], the ILOAT delivered on 7 July 2021, the ILOAT belatedly hammered another long overdue nail into the coffin of “le Système Battistelli” at the EPO, by striking down Circular No. 347 as manifestly unlawful.

This long-awaited judgment is good news for all those who opposed the tyrannical regime of Team Battistelli over the last decade.

While this significant legal victory is a cause for celebration, it should not be allowed to obscure the precarious legal situation of the staff of the EPO and other international organisations who are dependent on Tribunals like the ILOAT to defend their rights.

Notwithstanding the fact that Circular No. 347 has been found to breach the fundamental rights of EPO staff, it remained in force for eight years!

During this time it was used repeatedly to underpin the Corsican despot’s managerialist “Reign of Terror” and impede any kind of internal dissent and collective action on the part of EPO staff against the excesses of the Office Administration.

Even more outrageous is the fact that at the time of the adoption of the Strike Regulations in 2013, the small number of delegations on the Administrative Council that made any attempt to evaluate the proposed measures had grave doubts about their compliance with international conventions.

An internal memorandum from the Norwegian Department of Labour dated 26 June 2013 [PDF] expressed the following opinion:

“The Department of Labour is therefore skeptical about a solution with an administrative regulation and about the content that, at a quick glance, seems extremely dubious in respect of its compliance with applicable international conventions.”

But despite such clearly expressed reservations, the Administrative Council turned a blind eye to the palpable defects in the proposals tabled by Team Battistelli and – like a bunch of headless chickens – voted to adopt these manifestly flawed measures whose illegality has now been exposed for all to see.

Will any lessons be learned from this débâcle?

One would like to think so, but unfortunately the track record of the Administrative Council and the senior management of the Office over the last decade doesn’t provide much reason for optimism on this front.

[Meme] Will EPO Comply?

Posted in Courtroom, Europe, Law, Patents at 8:02 am by Dr. Roy Schestowitz

Dynamic interpretation!
Compliance or fixing?

Summary: EPO management has lost a number of important cases at ILO-AT (regarding its attacks on over 1,000 members of staff and unlawful regulations); will it comply with the rulings?

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