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08.29.15

Alice v. CLS Bank (Alice/§101) Comes to Squash Software Patents Even in Eastern District of Texas

Posted in America, Courtroom, Law, Patents at 8:29 am by Dr. Roy Schestowitz

Software patents demolition in the United States

Crane reflection

Summary: The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls

WE RECENTLY gave many examples where Alice demolished software patents [1, 2, 3, 4, 5, 6]. The Alice v. CLS Bank case (at SCOTUS) led even the CAFC (overzealously in favour of software patents and their original endorser decades ago) to — believe it or not — overturning decisions/biases. They must all simply obey the new rules/laws and examiners at the USPTO cannot grant patents on software like they used to. It’s huge news, even if many news sites continue to overlook these developments (patent lawyers’ sites try to counter these worrisome — to them of course — developments and precedents using propaganda and cherry-picking of facts).

“Business method patent app[lications] get no respect,” says Patently-O‘s article, according to Richard Beem (patent lawyer). He just says (or whines) that it harms his parasitic business. “The chart above shows the USPTO patent grant rate across a variety of major technology areas,” says Patently-O, but notice the reluctance to distinguish software patents from the rest. The survey does not list “software” separately from other things. Therein lies a potentially strong bias, like that of the originator of software patents, Martin Goetz. He recently wrote no less than two articles dismissing altogether the existence of a “software patents” category/classification.

“If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court.”The EFF, taking note of some recent developments, writes about the quick demise of software patents in the US, owing to courts’ decisions (each reinforcing predecessors). “With Kafkaesque Flourish,” says the title, “the Eastern District of Texas Penalizes Parties for Following the Rules” (we have already written some articles about corruption in Eastern District of Texas courts).

The Eastern District of Texas is the worst court when it comes to patents (favourable to software patents and patent trolls who wield these). To quote the EFF: “In the wake of the Supreme Court’s June 2014 decision in Alice v. CLS Bank, most courts have been quickly and efficiently getting rid of patents that improperly claim “abstract ideas.” In Alice, the Supreme Court held that “abstract ideas,” without more, were unpatentable under 35 U.S.C. § 101. According to one source, at least 150 patents have had claims invalidated as “abstract” since Alice. Those accused of infringing these invalid patents have regularly filed motions to dismiss at the outset of a case, having the issue heard before too much time and energy is spent. Courts have, for the large part, embraced these “Alice motions” and invalidated abstract patents as soon as practicable.”

Here comes the new part: “Following the Eastern District of Texas’s unconventional rules, the defendants filed a letter asking permission to file their Alice motion. Given the potential for wasted time, effort, and money, the defendants very shortly thereafter filed a motion for a stay of the case while the court decided the issue of whether the asserted patent claims are invalid under Alice. The patent owner did not oppose the motion to stay. Presumably the patent owner also recognized that it was more efficient to hear the issue at the outset, without incurring costs that may prove to be wasted if the Alice motion is granted.”

It is nice to see Alice being brought up even in Eastern District of Texas courts. If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court. Even corrupt courts must sooner or later follow the law to avoid being throughly discredited and potentially abolished.

08.10.15

Finjan, Cisco, JDate and Other Companies Acting Like Patent Trolls; New Threats to Linux

Posted in Apple, Courtroom, EFF, GNU/Linux, Google, Microsoft, Novell, OIN, Oracle, Patents at 7:12 am by Dr. Roy Schestowitz

Patents not on engineering (or physical products) anymore

Wheel in Manchester

Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android

THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].

Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.

Open Invention Network

We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).

Earlier this morning FOSS Force published this very long interview with Deb Nicholson, who had worked for the FSF before she moved to OIN. This interview is very good and Nicholson’s views on patents are fine. We shared them here before.

“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”

Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.

“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”

She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).

Finjan

The Finjan-led patent extortion crusade was mentioned here just weeks ago (they are Microsoft-connected) and now, just weeks later, this firm’s troll entity (Finjan Holdings) gets extortion money from a really nasty company, Blue Coat, which some say the EPO hired to spy on people like yours truly and EPO staff. “Finjan Holdings,” as a trolls expert explains, is “a patent-licensing company operating in the cybersecurity space” and it has just “won a hefty $39.5 million jury verdict (PDF) on Tuesday, when a San Jose jury found that Blue Coat Systems infringed five of its patents.”

Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.

Cisco

Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.

“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”

“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”

The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”

Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.

JDate

A new article from Timothy B. Lee helps chastise the bully called JDate, which we wrote about very recently. “JDate,” he explains, “recently sued JSwipe, a mobile dating app for Jews that works like Tinder. Most media coverage has focused on mocking JDate for essentially claiming that it has a monopoly on certain uses of the letter J.

“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”

There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.

The Economist Versus Patents

The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).

“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”

Yes, patent scope is a huge part of the problem.

“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.

Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”

It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?

Patent Propaganda From Lawyers’ Sites

Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”

Yes, they even suggest software patents right there.

“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).

“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”

That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.

“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.

“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.

Design Patents and Linux Gadgets

Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”

The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”

This forever-legal-limbo scenario helps hurt Android, so we cannot just pretend that software patents are not a problem. More FOSS and GNU/Linux site must learn to address these issues as a matter of priority. Not enough are doing this at the moment and it definitely helps our foes. Many people seem to forget that Microsoft still attacks GNU/Linux using patents (albeit more discreetly than before).

08.03.15

Newegg Uses Its Fight Against Patent Trolls for Marketing

Posted in Courtroom, Patents at 6:28 am by Dr. Roy Schestowitz

Newegg
Phoro credit: Raysonho @ Open Grid Scheduler / Grid Engine

Summary: Comments on Newegg’s fight against patent trolls in court, setting an example for other companies

Newegg, founded by a Taiwanese man just 14 years ago, has been an important player in the fight against patent trolls that take companies to court because it has no tolerance towards such lawsuits and it is willing to lose money in the courtroom rather than pay up (it usually costs less to make the trolls go away with extortion money). “Newegg is famous for fighting patent trolls,” wrote a trolls expert the other day, “and the company is currently trying to win fees from several cases where it has won or the troll has given up.”

A week ago Newegg got some positive covers for winning an important battle. Newegg then used this fightback against patent trolls for PR [1, 2]. “Again,” wrote our reader iophk about this original blog post, “a distraction away from sw patents themselves.”

It is true that software patents are the real issue for us, but it doesn’t mean that Newegg tackling one patent at the time for defensive purposes is a bad thing. If only every company did that…

06.28.15

Proskauer Rose LLP is Cherry-Picking Cases to Make Software Patents Seem Eligible Despite Alice v. CLS Bank

Posted in America, Courtroom, Patents at 3:06 am by Dr. Roy Schestowitz

Agenda disguised as professional advice

Cherries

Summary: Naming and shaming those who are trying to reshape the consensus despite a rather consistent pattern of software patents being rejected

THE subject of software patents profoundly affects Free software, which is still under attack from software patents. The recent collapse of many software patents (not all) has been catalogued here for quite some time [1, 2, 3, 4, 5] and we continue to see more confirmatory evidence of this trend. The media which is run by or is at least influenced by patent practitioners does not like to cover this subject and it’s truly a shame that activists against software patents have gone so quiet in recent years. The patent lawyers’ press selects (or cherry-picks) cases that are exceptional and help reinforce software patents, even this month, leaving the public with the false impression that nothing has really changed after the Alice case. We oughtn’t let this case go to waste.

“That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court.”Earlier this month we found some of the latest revisionism from lawyers. Proskauer Rose LLP pushed it by apparently paying (as a press release) for coverage, injecting a pro-software patents piece into lots of lawyers’ sites [1, 2, 3], including The National Law Review, which also went with the typical headline: “Job Applicant Software Patents Not Terminated for Invalidity”. These are the publications that a lot of patent lawyers follow and the intent of Proskauer Rose LLP is probably to give them tips on how to game the system (which is basically what they all do, trying to bypass rules using common tricks). Here is a quote from the analysis: “Although the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank, one Massachusetts court recently declined to invalidate a trio of patents directed to job applicant software. Plaintiff Kenexa had asserted infringement claims against three defendants, and two of the defendants—including HireAbility—subsequently moved for judgment on the pleadings that Kenexa’s patents recite unpatentable subject matter under § 101.”

So, they do acknowledge that “the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank,” but then they go on to just covering one exceptional case where software patents managed to survive in court. That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court. It’s subjective by design. That’s just their job. The clients, and hence the lawyers, have an agenda to push. This is the transaction, but clients deserve an honest, objective advice. It’s not journalism but more like advocacy (what the UK calls “barristers” are literally advocates). Just watch Mr. Quinn trying to sell his ‘services’ while advertising for the Patent Trial and Appeal Board (PTAB). These people openly promote as broad a patent scope as possible (inclusive of software patents) for the same reasons arms and surveillance contractors want war and instability. The more problems the world has, the more business these people receive and the more money they make. It’s the broken windows theory.

06.09.15

When the European Patent Office Lost in Court and Refused to Obey the Law: An Analysis

Posted in Courtroom, Europe, Law, Patents at 6:58 am by Dr. Roy Schestowitz

Battistelli isn’t Napoleon

Arc De Triomph

Summary: Recalling the ruling which the EPO simply refused to accept, leading to heavy political backlash that is now mostly forgotten

THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law. He snubbed a court order against him, whereupon he and his apologists came under fire from Dutch politicians belonging to various political parties. Apparently the Hague (where the ruling was made) takes justice pretty seriously, whereas Mr. Battistelli views himself as above the law, immune from German law and by extension European law. “EPOnia” is what some people in IP Kat jokingly call this ‘magic’ jurisdiction (virtually immune or exempted from the rule of law, where only one man, the Napoleonic Battistelli, has the last word).

“THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law.”SUEPO has just said that “Nederlands Juristenblad, a Dutch legal magazine, published an article about the judgment of the Dutch Court of Appeal in the case SUEPO v EPO.” There is already a collection of translations [PDF], so we decided to manually turn into HTML the English translation. Here it is in full:

Nederlands Juristenblad – 08.05.2015

English translation

Fundamental labour rights and immunity

The case against the European Patent Organisation (EPO)

Cedric Ryngaert & Frans Pennings1

The Court of Appeal in The Hague has created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case, and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction not only erodes the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation adequately protects fundamental rights.

Introduction
In preliminary relief proceedings on 17 February 2015 the Court of Appeal in The Hague declared itself competent to give an opinion on the merits in the case against the European Patent Organisation (EPO)2 brought by two trade unions. This organisation is charged with implementing the European Patent Convention (EPC). The EPO is not an agency of the European Union; even states that are not members of the European Union are member states of the EPO. It is therefore an independent intergovernmental organisation that has a secondary office in Rijswijk. The Court was of the opinion that the EPO was not entitled to any immunity from jurisdiction in this case, in spite of the relevant stipulations in the headquarters agreement between the organisation and the Netherlands, because the unions were unable to bring their claim before any arbitration body.3 The Court consequently deemed the restrictions the EPO

_______________
Authors
1 Prof. Dr. C.M.J. Ryngaart and Prof. Mr. F. Pennings are Professors of international law and social law respectively, at the University of Utrecht
Notes
2 Court of Appeal in The Hague, 17 February 2015, ECLI:NL: GHDHA: 2015:255. The EPO has its head office in Munich.
3 Art. 3, par. 1. Protocol in respect of the privileges and immunities of the EPO; Art. 8 of the Convention in respect of the Granting of European Patents, this is the Convention established by the EPO.


had imposed on trade union formation and communication, and on the right to strike, a violation of fundamental collective labour rights. It ordered the EPO to grant the trade unions unrestricted access to the internal e-mail system of the EPO and to allow them to attend collective negotiations, and prohibited the organisation from applying the stipulations in its employment rules and regulations that restrict the right to strike. However, the Minister for Security and Justice ultimately instructed the bailiff not to enforce the Court’s decision, because such enforcement would mean a violation of the immunity from enforcement protected by international law.

After an overview of (1.) the history prior to the decision of the Court we use this contribution to critically reflect on (2.) the non-granting of immunity from jurisdiction to the EPO pursuant to the right to access to the courts as documented in Article 6 of the ECHR; (3.) the evaluation of the conduct of the EPO in relation to collective actions against the principles of international labour law; and (4.) the Minister’s instruction to not enforce the decision. Our perspective is based on international law on the one hand (par. 2 and 4) and on labour law on the other hand (par. 3).

1. History
It is not the first time that the EPO has been summoned to appear before a Dutch court in relation to a labour law dispute, and that the court had to decide on the EPO’s immunity from jurisdiction. An individual employee, Bertrand, had previously started proceedings against the EPO. In that particular case the Supreme Court judged in 2009 that individual labour disputes relate to the activities of the organisation; based on the criterion of functional necessity such disputes are therefore, in principle, subject to immunity from jurisdiction.4 However, the Supreme Court also stated that this immunity applied only insofar as the EPO provided alternative procedures that gave legal protection in accordance with Article 6 of the ECHR. This is an application of a principle as documented in 1999 by the European Court for Human Rights (ECHR) in the Waite and Kennedy and Beer and Regan cases: the admissibility of the granting of immunity from jurisdiction to an international organisation is dependent on the availability of an alternative that effectively protects the individual’s right to access to the courts.5 The Supreme Court was of the opinion that this legal protection was in fact being provided because individual employees of the EPO had access to a jurisdictional procedure before the International Labour Organisation Administrative Organisation (ILOAT), even if they were not entitled to a public hearing.6

_______________
4 Supreme Court 23 October 2009, ECLI:NL:PHR:2009:BI9632, legal ground 3.3 (ratification of ruling by the Court of Appeal in The Hague, 28 September 2007, ECLI:NL:GHSGR: 2007:BB5865).
5 ECHR, application number 26083/94 (Waite and Kennedy vs Germany); ECHR 18 February 1999, application number 28934/95 (Beer and Regan vs. Germany, legal ground 68 (“For the Court, a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them a reasonable alternative means to protect efficiently their rights under [Article 6 of] the Convention.”)
6 The Supreme Court ruled that it had not been proven or made evident that the Court would reject substantiated requests for a public hearing – even if public hearings rarely ever occurred in practice. HR 23 October 2009, ECLI:NL:PHR: 2009:BI9632, legal ground 3.5


However, neither the Administrative Organisation nor any other international dispute settlement mechanism has any jurisdiction with respect to collective labour law matters between EPO and its organised grouping of employees. After the EPO had restricted the right to strike and had blocked collective negotiations it was therefore only a matter of time before the trade unions of the EPO employees (VEOB and SUEPO) would bring proceedings before the Dutch courts: in 2013 these trade unions, referring, among other things to Article 6 of the ECHR, asked the District Court of The Hague to order the EPO to stop violating the right to strike and the right of collective bargaining; they claimed an urgent interest.

On 14 January 2014 the District Court of The Hague, in preliminary relief proceedings, made a judgement rejecting the immunity of the EPO because the trade unions did not have alternative legal means available that would effectively guarantee their right to have access to the courts within the meaning of Article 6.7 However, at the same time the Court stated that granting (part of) the claims could result in fragmentation of the Patent Organisation, in the sense that in the Netherlands different regulations must be applied than in other participating member states; according to the Court the essence of the immunity would therefore be affected, contrary to the immunity stipulation in the Convention in respect of the granting of European patents (Article 8 of the EPC), which guarantees the functioning of the Patent Organisation as a whole, including the application of organisation-wide and uniform regulations.8 The Court subsequently stated that the trade unions would have to take their claims to the central organisation of the EPO.9 Consequently, the District Court of The Hague first rejected the immunity of the EPO pursuant to incompatibility with Article 6 of the ECHR, and subsequently did confirm it based on the principle of functional necessity. The reasoning of the Court was not very convincing, and the trade unions therefore appealed to the Court of Appeal in The Hague.

In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague

2. EPO’s immunity from jurisdiction: a critical interpretation of the ruling of the Court of Appeal in The Hague
In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague; it stated that the trade unions did not intend the ‘fragmentation’ the Court was concerned about, even though the measures they appealed against were adopted for the entire organisation. With this statement the Court appeared to reject the argument that the absolute immunity, as documented in Article 3 of the Protocol in respect of Privileges and Immunities of the EPO,10 is functionally necessary for an

_______________
7 District Court of The Hague 14 January 2014, ECLI:NL:RBDHA: 2014:420.
8 Ibid legal ground 3.11.
9 Ibid.
10 Protocol in respect of Privileges and Immunities associated with the Convention in respect of the Granting of European patents of 5 October 1973, Treaty Series 1976, 101.


international organisation like the EPO to exercise its powers, at least insofar as there are no cases before courts in other states.11

If the immunity of the EPO is not absolute but only relative, the question obviously arises how relative it is, and particularly: under what conditions can the EPO’s immunity from jurisdiction still be compatible with the right to access to the courts as guaranteed by Article 6 of the ECHR.

This compatibility assessment had come under some pressure in the Netherlands in the Mothers of Srebrenica case. In this case the ECHR had approved the granting of immunity to the United Nations in 2013, even though the UN had not provided alternative legal protection. Nonetheless, it was obvious right from the start that this decision did not have a general scope but only applied to the UN in view of its special status as a collective security organisation.12 In a recent labour law immunity case relating to the EPO itself (Klausecker v. Germany, 2015), the ECHR once again confirmed the Waite and Kennedy requirement that international organisations must, in principle, provide alternative legal protection13; in this case the EPO had met this requirement by suggesting an arbitration procedure for the complainant – a man who was not being hired because he did not meet the physical requirements needed for the job.14

However, none of this means that the absence of alternative legal protection per se necessarily leads to the rejection of the immunity of the organisation. After all, in Waite and Kennedy the ECHR determined that the availability of an alternative is only a ‘material factor’.15 In that sense the Court of Appeal in the case in question was of the opinion that the absence of an alternative judicial process, in combination with the granting of immunity, does not ipso facto lead to a violation of Article 6 of the ECHR.16 According to the Court such a violation only occurs in the case of ‘additional circumstances’, in particular the systematic and far-reaching violation of the fundamental principles of the democratic state under the rule of law.17 However, this restrictive interpretation of the protection supposedly offered by Article 6 of the ECHR is not supported by the jurisprudence of the ECHR. After all, Klausecker already shows that, at least in labour law cases, the presence of an alternative is conclusive if the organisation wishes to invoke immunity18, without the ECHR having imposed qualitative requirements in the case in question with respect to the nature of the underlying violation the organisation has allegedly committed. For that matter, in the light of the accountability of international organisations the availability of a

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11 In this case one of the trade unions had in fact initiated legal proceedings in Germany, but it was a main action rather than preliminarily relief proceedings. If both court cases had been of the same nature one of the cases could have been deferred.
Compare Court of Appeal The Hague 2015 (EPO), legal ground 4.5. However, this deferment arises from the doctrine of lis pendens rather than the principle of functionally necessity informed immunity.
12 ECHR 11 June 2013, application number 65542/12 (mothers of Srebrenica vs. the Netherlands), legal ground 152,
154.
13 ECHR, 6 January 2015, application number 415/07 (Klausecker vs. Germany), legal ground 64
14Ibid., legal ground 76
15 ECHR, (Waite and Kennedy vs Germany), legal ground 68
16 The Court refers to legal ground 164 of ECHR 2013, (Mothers of Srebrenica), (Court of Appeal The Hague 2015,(EPO), legal ground 3.4), although this consideration of the ECHR apparently only related to the special position of the United Nations
17 Court of Appeal The Hague 2015, (EPO), legal ground 3.10
18 ECHR, (Klausecker), paragraph 69 (‘Having regard to the importance in a democratic society of the right to a fair trial, of which the right of access to court is an essential aspect, the Court therefore considers it decisive whether the applicant had available to him reasonable alternative means to protect effectively his rights under the Convention.’).


judicial process for every possible dispute between an individual or association and an international organisation is highly advisable.

Whatever the case may be, the Court of Appeal did in fact qualify the alleged violations of the right to strike and the right to collective bargaining as violations of fundamental rights (see also below – par. 3).19 Furthermore, in the opinion of the Court, the legal protection offered by the EPO with respect to potential violations of the right to collective action and bargaining was ‘manifestly deficient’, as the procedure for ILOAT is reserved for individual employees (see above)20, and because the EPO had not provided its own judicial process to guarantee collective labour rights.21 It is not entirely clear whether procedures that are ‘deficient’ but not ‘manifestly deficient’ do meet the requirements of article 6 of the ECHR. The ‘manifestly deficient’ standard does in any case not originate in the jurisprudence of the ECHR with respect to the immunity of international organisations, but in the jurisprudence relating to the liability of member states for the unlawful acts of international organisations.22 Furthermore, in this latest jurisprudence the ECHR primarily uses the requirement of ‘equivalent protection’; the ‘manifestly deficient’ standard is, in principle, only used to hold the member state liable for the actions of the organisation if the legal protection offered by the organisation in a concrete case is truly inadequate, even if the organisation generally provides ‘equivalent’ protection.23 By upgrading the relevance of the ‘manifestly deficient’ standard the Court appears to imply that only in cases of serious shortcomings there is a violation of article 6 of the ECHR, although the standard of equivalence does require that the legal protection provided by the proposed procedures must, although not necessarily identical to the protection provided by national legal procedures, at least be of a sufficiently high level and therefore definitely not deficient.24 Once again, whatever the case may be, the Court found the legal protection procedures relating to collective action offered – and especially not offered -by the EPO to be ‘manifestly deficient’, and subsequently considered the appeal for immunity on the part of the EPO with respect to these prima facie claims in the absence of any judicial process a disproportional restriction of the right to access to the courts documented in Article 6 of the ECHR.25

It is interesting in this context that the Court discovered a norm conflict between the Protocol regarding the Privileges and Immunities of the EPO and the ECHR, and was of the opinion that

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19 Court of Appeal The Hague 2015, (EPO), legal grounds 3.7 and 3.10.
20 Ibid., legal ground 3.8
21 Ibid., legal ground 3.9
22 ECHR 30 June 2005, application number 45036/98 (Bosphorus vs. Ireland). The Court also cites this case in legal ground 3.6.
23 ECHR, (Bosphorus), legal ground 155-156
24 This is not in any way an academic discussion. One can imagine that an international organisation, other than the EPO, which is not provided any legal access, would still make a rudimentary dispute settlement system with respect to collective action claims available. It is quite possible that such a system is not ‘manifestly deficient’, even if it only provides relatively limited legal protection. In an extreme interpretation even the mere existence of a dispute settlement mechanism meets the guarantees provided by Article 6 of the ECHR, irrespective of the exact procedures used by this mechanism. For a particularly ‘light touch’ assessment of the compatibility of the procedures of the Appeals Board for NATO employees with article 6 of the ECHR see also: ECHR 5 March 2013, application number 39619/06 (Chapman vs. Belgium), (only available in French).
25 Court of Appeal The Hague 2015, (EPO), legal ground 3.10


the latter instrument took priority.26 However, the question on exactly which grounds the ECHR has priority over the Protocol remains unanswered. After all, both instruments are Conventions that the Netherlands is bound by, and there is no fundamental hierarchy between individual Conventions. By propounding this hierarchy regardless – Human Rights Conventions can suspend stipulations from other Conventions – the Court of Appeal creates the impression that the Netherlands has committed an internationally unlawful act by signing, or at least maintaining, the aforementioned Protocol. In this context it is perhaps better to talk about the ‘balancing of standards’27, for which purpose Article 6 of the ECHR, and particularly the interpretation given to this Article by the ECHR, provides information on the scope of Article 3 of the Protocol.28

3. The case considered in the light of international labour law
After the Court of Appeal had rejected the immunity of the EPO it granted a number of claims of the trade unions. Although the trade unions had based their claims on various international Conventions the Court – with one exception (see below) – did not include these in its review. However, those references to international Conventions and principles are useful, as they serve not only as essential criteria for the functioning of the EPO, but can also provide an extra argument to reject the invocation of immunity (see above – par. 2). An important source is the Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Organisation during the conference on 18 June 1998, which stipulates that all member states, even if they have not ratified the Conventions in question, have an obligation to respect, promote and realise the principles relating to fundamental rights that are the subject of the Conventions in question, including freedom of association and the active recognition of the right to collective bargaining, in good faith and in line with the constitution of the International Labour Organisation (ILO) (italics added by authors).29 This means that the right to trade union organisation is a very fundamental right that no ILO member state can evade. Therefore, the states that have established the EPO, and consequently the intergovernmental organisations they have founded, are also bound by these principles. In view of the fundamental character of the right in question it is not permissible for the EPO to invoke its immunity. With their initial claim the trade unions asked that the ability to make unobstructed use of internal e-mail facilities to enable them to communicate with EPO employees in relation to trade union-related matters be restored to them. The Declaration on Fundamental Rights, which is

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26 Ibid. legal ground 3.11
27 In that sense see Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal grounds 30 and 32, in which the Court indicates that the application of Article 6 of the ECHR in immunity cases against international organisations comes down to balancing two standards, and that Belgium did not commit an unlawful act by joining the instrument that provides immunity (the headquarters agreement).
28 Inspiration may be drawn from Article 31 (3)(c) of the Vienna Convention on Treaties (1969), which stipulates that in the interpretation of a Treaty ‘every relevant rule of international law that can be applied to the relationships between the parties’ must be taken into consideration. In that sense Article 6 of the ECHR must be taken into consideration in the interpretation of Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO.
29 Art. 2 of the ILO Declaration on Fundamental Principles and Rights at Work, adopted during the International Labour Conference during its 86th meeting, Geneva 18 June 1998 (www.ilo.org)


elaborated further in Conventions 87 and 98, requires freedom of association and the active recognition of the right to collective bargaining. Article 11 of the ECHR also constitutes a
fundamental right; this Article stipulates the right of association and the right to establish trade unions. Accordingly, these principles and stipulations give trade unions the right to perform their tasks, which include communicating with members and non-members, as the freedom of collective industrial organisation becomes illusory without this possibility. However, the Court does not refer to these stipulations, but, in concurrence with them, does consider that it is in the nature of the activities of trade unions that they are allowed to criticise (the representatives of) employers, also via the internal communication channels.30

The right to trade union organisation is a very fundamental right that no ILO member state can evade

A number of other claims related to the right to strike. The first related to Article 30a of the Employment Rules and Regulations. Although these Rules and Regulations give all employees the right to strike, they define striking as an interruption of the work during a certain period related to the employment conditions. The Rules and Regulations stipulate that the President of the branch can lay down further stipulations and conditions for the application of this Article, and among other things these must stipulate the maximum duration of the strike.

The question arose whether these conditions are compatible with the right to strike. With respect to the European Council this right to strike is documented in Article 6, paragraph 4, of the European Social Charter (ESH). With the exception of the situations documented in the Charter, only restrictions that are prescribed by law and are necessary in a democratic society to protect the rights and freedoms of others and to protect the public order, national safety, public health or common decency can be imposed on the rights in this Charter (Article G of the ESH). The stipulation that the President can determine the duration of the strike goes far beyond that which is permitted by Article G. Without referring to this stipulation the Court is also of the opinion that a strike of which the duration is not known in advance is wrongly rendered impossible.31 After all, the option to organise a strike of which the duration has not been determined in advance is an essential part of the right to strike, otherwise an important effect of this weapon would be lost.

The definition in the Employment Rules and Regulations also refers to an interruption of the work and according to the Court the trade unions justifiably objected to this as well. The Court is of the opinion that other forms of industrial action are also possible, such as go-slow actions.32 Article 6 of the ESH refers to collective actions, including strikes, so we feel that this standpoint is correct. The trade unions also asked that the stipulation in the Employment Rules and Regulations, to the effect that actions must relate to employment conditions, be declared unlawful, as the right to collective actions is not by definition limited to the employment

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30 Court of Appeal The Hague, (EPO), 2015, legal ground 5.3
31 Court of Appeal The Hague, legal ground 5.7
32 Court of Appeal The Hague, legal ground 5.8


conditions of employees. For example, it could also relate to the admission of a trade union into negotiations, safer working conditions, increased workers’ participation or the dismissal of employees. This also comes under Article 6, paragraph 4, of the ESH, which addresses collective actions in the event of conflicts of interests. These are distinguished from political conflicts; however, conflicts of interests are not limited to employment conditions.33

Finally, the request to allow the trade unions into the negotiations and to oblige the EPO to consult about new collective negotiations was granted. In this context the Court did refer to an international stipulation, the aforementioned Article 11 of the ECHR, and particularly the Demir ruling of the ECHR, in which the ECHR ruled that ‘having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions’.34 This means that civil servants cannot be excluded from this right either.

Within the confines of this article we can only briefly look at the relevant standards. However, it does become clear that the quoted standards are fundamental principles that the member states associated with the EPO, and therefore the organisations they have established, must endorse. Consequently the EPO must apply them in its activities. Furthermore, in view of the fundamental character of these rights the EPO cannot invoke its immunity in order not to have to defend itself on the basis of the merits with respect to claims made against it.

4. The Minister’s instruction – immunity from enforcement

Ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory

However, ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory for the unions. By letter of 19 February 2015 the EPO notified the Minister of Foreign Affairs that it had been served with the ruling with enforcement order. Consequently, on 23 February 2015, the Minister of Security and Justice instructed the bailiff that, pursuant to Article 3A, paragraphs 2 and 5, of the Bailiffs Act, the service as the enforcement measures instructed in the service conflict with the obligations of the Dutch State pursuant to international law and that their implementation must be refused.35

This Article stipulates that the Minister can instruct a bailiff that an official act he has been ordered to perform, or has already performed, conflicts with the obligations of the State pursuant

_______________
33 See also Supreme Court 30 May 1986, Dutch Law Reports 1986/688, (NS ruling)
34 ECHR 12 November 2008, application number 34503/97, (Demi rand Baykara vs. Turkey), legal ground 154
35 Ministry of Security and Justice, Directorate General of Justice and Enforcement, Legal and Operational Affairs Department, Instruction ex Article 3a, paragraph 2, of the Bailiffs Act, 23 February 2015


to international law. As a result of this instruction the bailiff is not authorised to perform the official act. To the extent that the act has already been performed it is void. In this instance the obligations pursuant to international law relate to the EPO’s immunity from enforcement. Pursuant to Article 1 of the Protocol in respect of the Privileges and Immunities of the EPO the office spaces of the European Patent Organisation in all the associated member states enjoy inviolability, and pursuant to Article 3, paragraph 2, properties and assets of the Organisation cannot be subjected to requisition, seizure, expropriation or attachment.

Article 3a of the Bailiffs Act combined with the aforementioned Protocol enables the Minister to not enforce judgements and rulings of the Dutch Courts and Courts of Appeal, insofar as they are made against internationally protected persons or entities, such as international organisations (e.g. the EPO), States, or diplomats. With respect to international organisations the Court of Appeal in The Hague has confirmed this practice in a decision from 2007 with respect to the Organisation for the Prohibition of Chemical Weapons (OPCW).36 In this decision the Court implied that the literal meaning of a judgement in respect of the continued payment of wages conflicts with the principle of immunity from enforcement as documented in Article 4, paragraph 2, of the headquarters agreement between the Netherlands and the OPCW. The Court stated that, in principle, the immunity from enforcement is separate from any immunity from jurisdiction37, and that the immunity from enforcement guarantees ‘that the goods and possessions of the OPCW can be used unhampered by any enforcement measure’.38 A fortiori it may be said that imposing a penalty conflicts with the principle of the immunity from enforcement, even more so because a penalty can be imposed without further judicial review, as the Court of Appeal in the Hague decided in 2011 in another case against the EPO.39

In view of the different nature and purpose of the immunity from jurisdiction and enforcement – which is also confirmed in the right of State immunity40 – it is therefore possible that an international organisation does not enjoy immunity from jurisdiction but does enjoy immunity from enforcement. Certainly with respect to the right of State immunity it may happen that a State, in light of the many exemptions from the principle of immunity of jurisdiction41, may not enjoy immunity from jurisdiction but still enjoy immunity from enforcement, because the designation of the seized claims or goods is public.42 As there are fewer exemptions from immunity from jurisdiction of international organisations in place, relatively few judgements and

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36 Court of Appeal The Hague 15 March 2007, ECLI:NL:GHSGR: 2007:BA2778
37 Ibid. legal ground 4
38 Ibid. legal ground 6
39 Court of Appeal The Hague 21 June 2011, ECLI:NL:GHSGR: 201:BRO188
40 Compare parts 2-3 to part 4 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004, UN doc. A/59/508. Although this Convention has not yet come into effect it is assumed that it largely reflects existing customary law. For a comprehensive commentary see: R. O’Keefe, C.J. Tams & A. Tzanakopoulos (ed.), The United Nations Convention on Jurisdictional Immunities of States and Their Property, A Commentary, Oxford University press, 2013
41 For the principles see Article 5 of the UN Convention (see footnote 40) and for the exemptions part 3.
42 For a recent District Court case see 9 September 2014, ECLI:NL:RBAMS: 2014: 6028, in which the Court, with respect to an enforcement procedure against Iraq, determines that ‘at this point it [can] not be determined with any degree of certainty which part of the attached claims has a public and which part has a non-public designation’ (legal ground 4.13).


rulings are made against international organisations that are eligible for enforcement.43 If enforcement is being considered it will, in principle, only be implemented if this has been provided for in the headquarters agreement between the Netherlands and the organisation in question; with regard to the EPO this is insofar as the international organisation has expressly waived its immunity, insofar as it concerns a civil suit in respect of accidents involving motor vehicles, or insofar the/an arbitral decision is being enforced.44

However, the question arises whether the list of exemptions in the headquarters agreement is exhaustive, or whether the immunity from enforcement can also be evaluated against Article 6 of the ECHR. With respect to the EPO the Court of Appeal in the Hague did, after all, evaluate the rather absolutely worded immunity from enforcement of the organisation, as stipulated in Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO (this is the same Article that also provides for the immunity from enforcement), against Article 6 of the ECHR. A lot can be said in favour of the dynamic interpretation of Article 3 of the Protocol – an interpretation in light of later evolutions in respect of the application of Article 6 of the ECHR at the level of the ECHR – also being applicable to the immunity from enforcement. In 2009 the Belgian Court of Cassation, for example, decided, in a labour law case against the ACP (an international organisation of African, Caribbean and Pacific States), that Article 6 of the ECHR also applies to enforcement procedures, and subsequently terminated the immunity of the organisation because it could not envision an alternative enforcement procedure that would protect the complainant’s right to remedy at law.45 After all, any other decision would erode the effective protection offered by Article 6 of the ECHR, and would make it possible for Court decisions that reject the immunity of an international organisation to remain dead letters. From both a national and international constitutional point of view such an outcome would be undesirable.

Article 3a, paragraph 7, of the Bailiffs Act stipulates that the provisional relief judge can revoke the consequences of the instruction. If, in the EPO case or any future case, he evaluates the Minister’s instruction in the light of international law, it is indicated that this Court evaluation should not only relate to the stipulations of the headquarters agreement, but also of Article 6 of the ECHR. In practice this should result in the judgement or ruling of the judge who rejects the immunity from enforcement of the international organisation having to be enforced as well, unless the organisation proposes an alternative form of enforcement that nonetheless provides equivalent legal protection. It is not immediately evident which form of enforcement the EPO

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43 However, see interim judgement District Court the Hague 15 February 2010, ECLI:NL:RBSGR:2010:BL 4892, which rejects immunity from jurisdiction of the EPO in a tendering case with respect to a catering facility run by the EPO, based on the consideration that a catering facility for employees does not manifestly contribute to the fulfilment of the specific tasks the organisation is charged with, and that immunity from jurisdiction is therefore not functionally necessary. However, the Court of Appeal in the Hague considered the penalty the court had imposed on the EPO to be in conflict with the organisation’s immunity from enforcement (see footnote 39)
44 See Article 3, paragraph 1, (a-c) of the Protocol in respect of the Privileges and Immunities of the European Patent Organisation
45 Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal ground 26-27 (with note by C Ryngaert). See also J. Wouters, C. Ryngaert & P. Schmitt, ‘, and Western European Union v. Siedler; General Secretariat of the ACP Group v. Lutchmaya; General Secretariat of the ACP Group v. B.D., American Journal of International Law, vol. 105, no. 3 July 2011, p. 560-567


could suggest that is different from the form stipulated in the ruling of the Court of Appeal in The Hague (providing unrestricted access to the internal e-mail system of the EPO, the admission to collective negotiations, and the ban on applying the stipulations of the Employment Rules and Regulations that restrict the right to strike), and that would still do justice to the international labour law obligations the organisation is subject to.

5. Closing remarks
The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.

To repeat the closing words, for those to whom the above is too long to follow: “The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.”

The minister who defended Battistelli ended up in a major scandal and is permanently out as a consequence of that. Is Battistelli too going to be out this year? We shall see… Battistelli has already threatened to resign.

05.13.15

Does Anyone Still View Cyanogen as Anything But a Microsoft Proxy?

Posted in Courtroom, Europe, GNU/Linux, Google, Microsoft, Patents at 4:33 pm by Dr. Roy Schestowitz

Android and Microsoft

Image from Android Beat

Summary: The marriage of convenience between Microsoft and Cyanogen helps reaffirm CyanogenMod’s status as a Microsoft Trojan horse which must be rejected

MICROSOFT is assaulting Android from numerous angles at the same time. There is no way Microsoft can compete with Android on technical merit, so Microsoft is, as usual, resorting to underhanded tactics and dirty tricks. Our recent article about Microsoft’s assault on Android says that “Cyanogen is confirmed as a Microsoft Trojan horse also elsewhere, so it’s not merely a rumour.”

Stallman asked us for additional references for that, so we provided a few [1, 2, 3], including one from Microsoft’s unofficial mouthpiece ([1] is from the original announcement). Anyone who still thinks of Cyanogen as an independent company is clearly not paying attention. The days of CyanogenMod are gone; now there’s just a proxy called Cyanogen and it is controlled by Microsoft just like Nokia was controlled by Microsoft after Elop had taken charge.

The announcement which unofficially confirmed Cyanogen’s status as a Microsoft proxy was made a few weeks ago, but we think many of the details are still not entirely clear to some negligent observers. It is not stated explicitly, but basically, CyanogenMod would push Microsoft software at the expense of Google et al. software (also Google/Android partners), turning Android into a sort of “Microsoft Android” — a term which some other sites now casually use as well. Android is facing the threat of a classic embrace extend and extinguish manoeuvre by a Microsoft proxy.

“We are having a fundamental miscommunication,” said Stallman. “The CyanogenMod I have heard of is a system distro. Various people have told me about installing in phones.”

That was well before Microsoft harnessed the popularity of CyanogenMod to attack Android, or to turn it into “Microsoft Android” (same thing which was attempted by Amazon, Facebook, and Nokia).

“You are talking about “CyanogenMod” as some sort of entity which can do things,” said Stallman. “That is a total surprise to me. What relationship exists between those two?”

One predates the other and Microsoft needs CyanogenMod to operate like a company, e.g. Cyanogen. Microsoft requires that in order to manipulate CyanogenMod in this turf war against Google and AOSP (Android Open Source Project).

“I will look at those articles,” said Stallman regarding additional links we sent to him. “Does this mean that when people install CyanogenMod on their phones, it standardly includes Skype etc?”

I recently found out that even some companies like HP preinstall Skype on Android tablets (I found out because I bought one for my parents in law). One has to wonder who pays who and what deals are silently being made, not publicly. With respect to Cyanogen’s CM12.1, I think that their latest release contains many Microsoft apps. I have not downloaded CM12.1 or anything like this to confirm it, but it seems like an inevitability. The announcement from Cyanogen (about the Microsoft deal) was made some weeks ago, so we think some of the details are still not entirely clear (they remain to be seen in practice), but basically, CyanogenMod would push Microsoft software (spyware, or ‘cloud’) into phones. We wrote additional articles about it and will continue to write as new details emerge. More Microsoft spyware and surveillance are being spotted by the media even this month, so whatever Microsoft puts on Cyanogen is likely to be as privacy-infringing as is legally allowed (if not well beyond it).

Stallman has been eager to understand what is happening here. We explained that Microsoft ‘embraces’ Cyanogen to make CyanogenMod a distro through which Cyanogen partners will spread Microsoft spyware, hoping that this adequately explains the relationship. Stallman wanted some broader context though. “It leaves the most important question unanswered,” he wrote to us. “Will the CyanogenMod distro that users install contain these Microsoft apps? Does it contain them now?”

Seeing the confusion here, we clarified a little further; CyanogenMod and Cyanogen are synonyms only in the sense that CyanogenMod (CM), previously a username of the guy who founded the company (Cyanogen), are company-product. A quick historical roundup:

  • CyanogenMod (name of person) uses AOSP (Android Open Source [sic] Project) to make his own fork/derivative of Android{tm}
  • CyanogenMod (self named, like Linus and Linux) becomes popular
  • CyanogenMod (the person) is hired by Samsung
  • CyanogenMod leaves Samsung
  • CyanogenMod establishes a company called Cyanogen
  • Microsoft sues Samsung using patents, compelling it to install Microsoft spyware (by default in Android) in order to attain settlement
  • VCs give money for Cyanogen to develop CyanogenMod
  • Microsoft ‘embraces’ Cyanogen to make CyanogenMod a distro through which Cyanogen partners will spread Microsoft spyware
  • (Coinciding with the above) After much lobbying in Europe, Microsoft paralyses Google and dubs Google apps in Android ‘anti-competitive’. This is accompanied by potential legal action.

We hope this adequately explains the relationship between CyanogenMod and Cyanogen and we hope that Microsoft’s strategy in attacking Google is better understood now. It’s an extension of the “Scroogled” PR campaign that Microsoft has sunk so much money and effort into. Microsoft, being Microsoft, is very focused on annihilating the competition rather creating its own products.

We always recommend Replicant and F-Droid, and have done so for years (even at CyanogenMod’s expense). See our articles from 2013. We sort of foresaw what is happening now, including what Microsoft does to Samsung and other Android distributors at the moment (patents as tools of extortion). According to the press in Taiwan, Microsoft now pressures companies to put Microsoft spyware in their distribution of Android or face patent lawsuits/higher patent royalties. This is extortion, blackmail, abuse of retaliatory means etc.

“I think it would help if the FSF issued some kind of statement regarding Microsoft’s behaviour,” I told Stallman, “[especially the attacks which happen] behind the scenes, countering Orwellian charm offensives that seek to paint/frame Windows as “Open Source” and insist that Microsoft “loves” [GNU/]Linux. What Microsoft has been doing recently sure increased the blood pressure levels of many Free software supporters (I wrote a lot about it this year). A high-authority, facts-based response would perhaps help counter Microsoft’s narrative.”

01.28.15

Breaking: EPO Vice-President Željko Topić Loses Defamation Case in Croatia

Posted in Courtroom, Europe, Patents at 2:28 pm by Dr. Roy Schestowitz

Judge Marijan Bertalanič
Judge Marijan Bertalanič, photo from vecernji.hr

Summary: The EPO’s notorious Vice-President, whose appointment at the EPO is still raising some alarming questions, has just lost his case in Croatia (one of many cases), motivating us to accelerate coverage about the persona known as Željko Topić

“BREAKING NEWS FROM ZAGREB,” heralded a source of ours this afternoon (European time). Željko Topić, who faces many criminal charges in Croatia, is failing to silence those who pursue justice against him.

“We just got news from Zagreb,” said our source, “that judgment has been delivered in Topić’s defamation case against Vesna Stilin.” (see background in the many older articles of ours)

“The case was being heard before Judge Marijan Bertalanič of the Municipal Criminal Court of Zagreb. A photo of the judge can be found here” (along with related photographs)

“It seems that Mr. Bertalaničwas not too impressed by Mr. Topić and according to what we have heard he has dismissed the defamation claim against Ms. Stilin.

“This is a first instance judgment so it remains to be seen whether or not Topić will try to appeal it.

“We expect to get a copy of the judgment (in original Croatian) in the next day or two.”

Techrights and its supporters will try to organise an English translation so that people outside Croatia, including EPO staff, are better able to know what Topić is up to. More details are to follow as they become available, but in the mean time, as Topić likes to silence his critics, we wish to add material that needs preserving for future reference. We still have plenty of material to show which relates to the Topić vs. Vesna case, and vice versa, so this is crucial. It’s no secret that Topić is bullying his critics to silence them. Some more documents, other than the famed article from 45lines.com, need to be added to our server now. These documents are currently looking for a new “home”; The old documents, namely the following PDF documents relating to the Topić case at the EPO, were analysed here before. These are currently “housed” on the server of the Croatian NGO Juris Protecta, but they may not stay there for much longer. We request assistance from our readers who are able to mirror these documents in case we too feel pressured to remove these. The documents are as follows:

“We have been told by Juris Protecta,” said sources of ours, “that they are worried that if they publicise the links to these PDFs, their Croatian provider may be pressurised to shut down their website.

“The PDF documents in question are basically those cited in the letters sent to the Administrative Council in December 2013 by Juris Protecta and Vesna Stilin. Those letters have been reproduced in the Techrights article about Battistelli’s “Balkan standards”.

“Juris Protecta is currently planning to circulate something about its earlier letters to the Administrative Council and wants to include links to the PDFs.
However, it is afraid that if it uses the links to its jurpro.hr server, then the Croatian provider might be put under pressure to shut down its website.

“We don’t think that there is any problem with you publicly explaining that Juris Protecta is nervous about the risk of having its server in Croatia shut down.

“You might recall that there was a “hacking”/”cracking” attempt recently on the Croatian new portal dnevno.hr after they published an article with some comments about Topić.”

As a reminder, we too suffered DDOS attacks around the same time we published important articles about Topić, but we could never prove there was a correlation, only a coincidence in timing. There is also a huge amount of cracking attempts (dozens per minute) attempted against us since the DDOS attacks began half a year ago. When it all started (knocking our site offline at times) the only concurrence we could lay a finger at was EPO articles.

“Dnveno.hr was offline for quite a while (we estimate a couple of weeks),” said our sources, “and only seemed to become accessible again after the Croatian Presidential election was finished on 11 January. So the fears expressed by Juris Protecta are understandable and the issue can be mentioned publicly.”

We are going to write a lot more about Topić in the coming weeks if not months. Our multi-layered servers infrastructure is much better protected from DDOS attacks at the moment.

01.14.15

Working to End Oracle’s and CAFC’s Inane War on Interface Reuse

Posted in Courtroom, Google, Java, Oracle at 3:35 pm by Dr. Roy Schestowitz

Nontechnical people in black gowns and white wigs to decide on huge things

Wigs

Summary: The US Supreme Court may soon start dealing with a legal assault on Android and in the process hopefully end the notion of copyright on APIs

SOFTWARE bully Oracle, which pretty much put to rest all of Sun’s Free software except few successful items (e.g. MySQL and VirtualBox, but not OpenOffice) and now attacks Java’s integrity by preventing deviations using abuse/misuse of copyright law, is still at it. The Court of Appeals for the Federal Circuit (CAFC), one of the most ridiculous and insidious courts in the world (both corrupt and biased), let Oracle have its way against Android, essentially sending a warning shot not just to those inspired by Java but everyone who reuses names of/in interfaces. This is dangerous and it is heading for judgment by the highest court, SCOTUS.

“Just like software patents, here we have something that both Free software and proprietary software developers should be united against.”According to some articles about SCOTUS, such as this report from Steven J. Vaughan-Nichols, the case that can affect so many programmers is potentially to be decided by the same court that recently defanged a lot of software patents (much to the regrets of the USPTO). Vaughan-Nichols writes: “Google has had enough of its long-running legal battle with Oracle over whether application programming interfaces (API)s can be copyrighted. The search giant has asked the Supreme Court of the United States (SCOTUS) to bypass further battles in lower courts and address the API copyright issue once and for all. SCOTUS, in return, is soliciting the Obama administration for its view of the case before moving forward.”

Well, it is proceeding pretty much as expected. The British media put it like this:

The US Supreme Court hasn’t decided whether it will hear arguments in the long-running dispute between Google and Oracle over Java copyrights, and it has asked the Obama administration to weigh in before it makes up its mind.

An expert in legal matters of the Free software world recently [1] named this case one of the top 10 “FOSS legal developments of 2014″. It is probably one of the top “legal developments of 2014″ if not one of the top “technical legal developments of 2014″, especially when it comes to programming. The case affects not only FOSS. Just like software patents, here we have something that both Free software and proprietary software developers should be united against.

Related/contextual items from the news:

  1. Top 10 FOSS legal developments of 2014

    The litigation surrounding Android continued this year, with significant developments in the patent litigation between Apple Computer, Inc. (Apple) and Samsung Electronics, Inc. (Samsung) and the copyright litigation over the Java APIs between Oracle Corporation (Oracle) and Google, Inc. (Google). Apple and Samsung have agreed to end patent disputes in nine countries, but they will continue the litigation in the US. As I stated last year, the Rockstar Consortium was a wild card in this dispute. However, the Rockstar Consortium settled its litigation with Google this year and sold off its patents, so it will no longer be a risk to the Android ecosystem.

    The copyright litigation regarding the copyrightability of the Java APIs was brought back to life by the Court of Appeals for the Federal Circuit (CAFC) decision which overturned the District Court decision. The District Court had found that Google was not liable for copyright infringement for its admitted copying of the Java APIs: the court found that the Java APIs were either not copyrightable or their use by Google was protected by various defenses to copyright. The CAFC overturned both the decision and the analysis and remanded the case to the District Court for a review of the fair use defense raised by Google. Subsequently, Google filed an appeal to the Supreme Court. The impact of a finding that Google was liable for copyright infringement in this case would have a dramatic effect on Android and, depending on the reasoning, would have a ripple effect across the interpretation of the scope of the “copyleft” terms of the GPL family of licenses which use APIs.

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