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Don’t Look at Linux For Sexism, Look at Microsoft (Although Microsoft Hides the Newest Lawsuits)

Posted in Courtroom, Free/Libre Software, GNU/Linux, Microsoft at 2:58 am by Dr. Roy Schestowitz

Characterising societal issues as a ‘Linux problem’ because of transparency

Manchester station

Summary: A look at the broader scale of discrimination against women and how widespread a phenomenon it is inside Microsoft, the arch rival of Linux

REMEMBER how Microsoft pushed “boobs” into Linux [1, 2, 3] (much to the detriment of Linux) and later “apologised” because it got caught? Many people don’t remember that (or simply didn’t pay attention at the time). This helped remind us that Microsoft is very hard to beat when it comes to chauvinism. Over the years we have covered many examples of sexism at Microsoft [1, 2, 3, 4, 5, 6]. This kind of sexism goes all the way up to the CEO himself and let’s not even mention Microsoft homophobia [1, 2, 3] because that is a separate (albeit related) topic.

Several weeks ago “Microsoft [got] Hit With Gender Discrimination Lawsuit”. To quote a progressive site: “Microsoft is staring at a potential class-action gender discrimination lawsuit filed by a former technician alleging the company denied her promotions and raises.

“Katherine Moussouris filed a complaint against the Seattle-based company claiming her supervisors didn’t like her “manner of style” and gave the promotions she was up for to her less-qualified male counterparts, Reuters reported. She also reportedly received lower bonuses as retaliation for making sexual harassment complaints. According to the complaint, Microsoft’s female employees in Redmond, Washington frequently received lower performance ratings and were often based on subjective observations.

“Microsoft has been criticized in the past for being cavalier towards gender discrimination in its ranks. Last October, CEO Satya Nadella apologized after telling a roomful of women technicians at the Grace Hopper Conference that they shouldn’t ask for a raise, but instead have “faith that the system will give you the right raise.” Nadella backtracked his comments soon thereafter via a mass email to employees: “If you think you deserve a raise, you should just ask.”

“Moussouris is encouraging women who worked for Microsoft in the past six years to come forward, which could help the case gain class action certification. Wednesday’s lawsuit is the first gender discrimination allegation against a major tech company in the wake of the conclusion of former Reddit interim CEO Ellen Pao’s infamous suit against her former law firm Kleiner, Perkins, Caufield & Byers. Pao lost her case, in which her claims were similar in tone to Moussouris, and recently dropped her appeal.”

Will Hill at the Join Diaspora Web site wrote (he personally brought it to my attention while I was away on vacation):

Sexism Lawsuit Against Microsoft

A class action lawsuit has been filed by a former Microsoft employee over rampant sexual discrimination at Microsoft. Katherine Moussouris claims that women are underpaid, passed over for promotions, and face retaliation if they complain. She worked for the company for seven years.

This does not surprise us because we saw and covered similar reports in the past. Microsoft tries to suppress publication of such matters and it is easier because of the culture of secrecy.

By contrast, in Free software communities everything is visible to the public, including to the already-hostile press. One might expect the observer to take this transparency into account and therefore use some judgment. Some people care more about Linux gossip than about Linux news, however, so when something similar happens in the Linux world it can hijack the news feeds for about a week if not longer than that. A lot has been said about Linux in relation to women’s rights, especially this past week (because of Sharp). There are still some new articles about it [1-16], with plenty of discussion in each (it has become quite an Internet storm).

At Microsoft, based on evidence that does not receive much media coverage, females sue the company for millions over discrimination; in Linux one can just make a mess, start flamewars. We can quite safely guess that many Linux developers (especially in top positions) have been wasting time checking what people say about them online rather than write code. A week-long saga, never-ending and self-feeding, is still raging. Even on Friday we still saw at least 3 articles about this drama against Linux culture. Coders are distracted by these flamewars, hence productivity is significantly down.

One of the curious comments I have come across talks about socially-engineering the community. Remember that Intel helped create OSDL and later played a key role in the Linux Foundation, so it cannot be treated as an outsider to Linux development.

To quote one comment, “Conspiracy theory: Would one of those multi-billion-dollar corporations (with NSA connections) spend a few million bucks to social engineer the Linux community?” It’s not as though Intel itself respects women’s rights (not inside the company anyway).

“I’ve asked Sarah Sharp some questions about how she reconciles her attitude towards the free software community and her work with Intel,” Hill wrote. “I have not seen any serious answers to those questions yet.”

Will Hill said, “I have asked Sarah Sharp on Google Plus some questions about working for Intel.” Here is the text of the questions: “Thanks for all the interesting ideas, and prior usb and graphics work, but how do you square these thoughts with working for Intel (1)? Intel is known for nasty things like killing the OLPC project through dumping (2), and partnership with Microsoft, a company that’s everything you complain about and more. Even when Intel is cooperating, the seem to hold back and treat the free software world as second class (2) Intel’s Management Engine and other firmware are direct threats to people’s software freedom, privacy, and ownership of their machines. Is Intel somehow getting internal culture right while doing so many bad things to everyone outside the company? Was your kernel work an official part of your job? How have they responded to your decision to quit that work?”

There are more articles about all this below (we shared almost 20 more in the previous reply), but we don’t really want to feed the cycle of endless discussions.

The lack of women in Computer Science or S.T.E.M. disciplines in general (there are explanations of causes for that, but it’s beyond the scope of this post) is not the fault of FOSS, however it’s fashionable to blame it all on FOSS when one looks for a good, effective smear. This is also done a lot in the political sphere, where it’s fashionable to mistreat or invade one’s neighbours (or very distant nations) using concern for women’s rights.

Related/contextual items from the news:

  1. Matthew Garrett Quits Kernel to Do His Own

    Matthew Garrett, noted developers and self-proclaimed social justice warrior, today announced solidarity with Sarah Sharp’s resignation in protest of rude behavior and the “way [Linus Torvalds] behaves” by providing a Linux kernel with changes rejected by Torvalds. Elsewhere, Jack M. Germain said Slackel offers advantages over Slackware but it’s still not for new users and DarkDuck found most Linux users still use Windows or Mac as well.

  2. Linux Game of Thrones begins

    A Game of Thrones style war has broken out amongst the weirdie beardies of Open Source Land which has now split the Linux kingdom just as “Winter is a Coming.”

  3. The Linux Kernel and Politeness
  4. Looking at the facts: Sarah Sharp’s crusade

    Everyone is free to have his own opinion (sorry, his/her), and I am free to form my own opinion on Sarah Sharp by just simply reading the facts. I am more than happy that one more SJW has left Linux development, as the proliferation of cleaning of speech from any personality has taken too far a grip.

  5. It’s Time to End the War On Stupid People

    On the other hand, it’s little mystery at all: Sarah was the first female kernel contributor I’d ever heard of, and the only one I can readily name now. It’s an uncomfortable answer, because when someone breaks into a space that doesn’t often include their gender or background, we feel we avoid culpability by being nonchalant. No exclusion here, nosiree. Didn’t even notice you were a woman. It’s comforting and dishonest; when someone breaks a boundary of cultural exclusion, regardless of how your reaction may later be judged, the fact is you notice.

    Although apparently nobody noticed when Sarah quietly disappeared over the past year, finally coming out to cite now-familiar complaints about the toxic and hostile atmosphere on LKML and in the kernel community in general.

  6. Pining for the good ol’ days

    Once again, he’s complaining about how the fun from Debian has been lost because making sexist jokes, or treating other people like shit is not allowed any more. He seems to think the LKML is the ideal environment and that Debian should be more like it.

  7. Linux kernel development suffering from the “internet of hate”

    Another Linux kernel developer has left, citing a toxic environment. Jack Wallen proposes the type of motivation used by the kernel devs could unmake a very precious commodity.

  8. On Norbert Preining, Sarah Sharp, and Debian
  9. Linux: Sarah Sharp defines what makes a good community
  10. Is Microsoft Wooing Canonical & Important Departures…

    Well, here’s the third, though it’s completely unrelated to Sharp and Garrett: The call went out in September for nominations for the Ubuntu Community Council elections, and they were returned with a glaring omission: Elizabeth Krumbach Joseph, who will not be running for re-election. She explains in her blog her motivations for moving on, and it’s well worth a read. Perhaps this is understatement, but her absence leaves a notable void in the “adult-in-the-room” department, since Elizabeth was often the voice of reason and sanity — and of course a voice for doing the right thing even when it was unpleasant or difficult for Canonical/Ubuntu — in a UCC group too full of yes-boys and Ubuntu Apocalypse zombies. Her leadership will definitely be missed.

  11. James Bottomley: The Linux Kernel Mailing List Behavior Isn’t All That Bad

    Bottomley, maintainer of the kernel’s SCSI subsystem and other code, argues that things on the Linux kernel mailing list aren’t all that it’s talked up to be.

  12. ​Matthew Garrett is not forking Linux

    When Matthew Garrett, well-known Linux kernel developer and ‎CoreOS principal security engineer, announced he was releasing a [Linux] kernel tree with patches that implement a BSD-style securelevel interface, I predicted people would say Garrett was forking Linux. I was right. They have. But, that’s not what Garrett is doing.

  13. Thick Skin (within Free/Open Source communities)

    The definition of “thick-skinned” in different dictionaries ranges from “not easily offended” to “largely unaffected by the needs and feelings of other people; insensitive”, going through “able to ignore personal criticism”, “ability to withstand criticism and show no signs of any criticism you may receive getting to you”, “an insensitive nature” or “impervious to criticism”. It essentially describes an emotionally detached attitude regarding one’s social environment, the capacity or ignoring or minimizing the effects of others’ criticism and the priorization of the protection of one’s current state over the capacity of empathizing and taking into account what others may say that don’t conform to one’s current way of thinking. It is essentially setting up barriers against whatever others may do that might provoke any kind of crisis or change in you.

  14. Linux Discussion Continues, Fedora Welcomes Chromium

    Folks are still discussing the resignation of Sarah Sharp and Matthew Garrett from Linux kernel development. Jack Wallen said Sharp (and Garrett) are cases of more developers being “turned away, simply because developers had no patience for personal respect.” He said Linux rules with a “sharp and iron tongue” with “foul and abusive language.” He agreed with Dr. Roy Schestowitz in that all this is a “PR nightmare” threatening the “flagship of the open-source movement.” He placed part of the blame on what he calls the “Internet of hate” and said if Linux is to compete with Microsoft and Apple its developers need to “start treating the legions of programmers, who are working tirelessly to deliver, as well as they treat the code itself. Open source is about community. A community with a toxic foundation will eventually crumble.”

  15. Linus Torvalds needs to fix the communication bug that is hurting his project
  16. Respect and the Linux Kernel Mailing Lists


Europe’s Acceptance of and Resistance to Software Patents, Courtesy of Corporate Front Groups and Courtrooms Respectively

Posted in Courtroom, Europe, IBM, Patents at 4:37 pm by Dr. Roy Schestowitz


Summary: A snapshot of recent developments and upcoming developments in Europe, regarding software patents in particular

EARLIER this week we chastised IBM for implicitly promoting software patents in India, just as it had done to promote software patents in Europe. Multinationals generally want to have these patents everywhere, especially if these multinationals are vast monopolies that deal with software. They want to crush competition using patents.

The Free Software Foundation Europe (FSFE) and a front group of IBM et al want to make software patents and Linux co-exist using so-called “non-aggression” pacts, which in practice barely work at all, not just because they cannot retaliate against patent trolls (see how Oracle sued Google over Android, despite their role in OIN). To quote their statement: “The Free Software Foundation Europe and Open Invention Network, with the participation of the Legal Network and the Asian Legal Network, are presenting two round table events with presentations and panel discussion of industry and community speakers, titled “Open Source and Software Patent Non-Aggression, European Context”. The events will be held in Berlin, Germany on October 21 and in Warsaw, Poland on October 22.”

This was also mentioned here and the FFII’s President reacted much like we did, stating: “Probably those 2 associations are doing nothing to prevent swpatv3, or the unitary patent” (more on that in our next post).

“Someone should tell Battistelli, who is a Frenchman, that the EPO must obey the laws of France and many other countries where software patents are not legal.”Some people seem to have grasped the important role which software patents play in the field of operating systems like Android. Free software is probably harmed the most because software patents are a stab at the heart of free distribution. See this new article titled “Apple, Samsung, Phones and Software Patents” for example. It is gratifying to see that more people now attribute the problem and lay the blame on software patents.

Recently, thankfully enough, April wrote about a decision that was widely overlooked in Europe. 6 days ago it stated that “[o]n June 18th, 2015, the Paris High Court (tribunal de grande instance — TGI) issued a ruling in the Orange versus Free case [fr] (both French ISPs); this ruling was published [fr] on September 1st, 2015. On this occasion, the court reaffirmed that software patents are illegal in Europe under the European Patent Convention (EPC). While this reaffirmation is good news, it nevertheless testifies to the possibility of filing software patent applications today in Europe.”

Someone should tell Battistelli, who is a Frenchman, that the EPO must obey the laws of France and many other countries where software patents are not legal. As we shall show in our next post, the EPO is helping member nations and corporations that operate in them bypass the law and patent software, using for the most part a secretive and undemocratic transition into the UPC.


The Alice Case Beats Microsoft’s Patent Troll Intellectual Ventures (Yet Again)

Posted in America, Courtroom, Microsoft, Patents at 6:08 am by Dr. Roy Schestowitz

“The genesis of this idea was when I was at Microsoft.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures

Summary: Intellectual Ventures suffers another major blow as Alice v. CLS Bank (Alice/§101) smashes software patents in the United States

WE finally have some more good news regarding Microsoft’s pet troll, Intellectual Ventures (IV), which has been funded by and works with Bill Gates.

Patent Buddy, which has been good at tracking the post-Alice aftermath, has found this followup to previous IV v. Capital One losses, “Second IV Patent Asserted Against Capital One Also Killed by Alice/101,” he claims, linking to this ruling [PDF].

This is part of a broader trend because as Patent Buddy put it another day, “101 Patentability-USPTO Bypasses Substantive 103 Examination” (101 refers to Alice).

More software patents were being thrown down the drain by a judge last week. To quote Reuters: “A federal court in Delaware has invalidated a patent on multimedia messaging early in a lawsuit against some of the country’s largest cellphone providers, another example of a controversial trend that critics say wipes out patents before they are fully understood.”

“Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes.”“US business method patent applications down 52.4% since Alice,” moaned the patent lawyers in Twitter, pointing to their new analysis which states that: “Companies have pulled back drastically from filing business method patent applications in the US. Managing IP analysed figures for USPTO applications in patent class 705, the class covering “data processing” in which business method patents are placed.

“Patent applications in class 705 not only plummeted after the Alice decision on June 19 2014, but have kept tumbling.

“Some 8,620 class 705 patent applications were filed in the 12 months between July 1 2013 and June 30 2014. In the same period 12 months later, after Alice, the figure was 4,106 – a 52.4% drop.”

Patent maximalists that glorify the world’s biggest patent troll (IV) are now offering their ‘analysis’ (actually, offering by proxy), claiming that “Software Patents Are Resilient in the Wake of Alice Corp. vs. CLS Bank”.

Yeah, right. And the world is cooling down, too. According to News Corp. and other oil tycoons-connected ‘news’ networks. Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes.


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.


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”).


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, 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.


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).


Newegg Uses Its Fight Against Patent Trolls for Marketing

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

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…


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


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.


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.

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

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
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

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,
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

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

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

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

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

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.

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