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02.20.17

PTAB Petitioned to Help Against Patent Troll InfoGation Corp., Which Goes After Linux/Android OEMs in China

Posted in Courtroom, GNU/Linux, Google, Patents at 1:47 pm by Dr. Roy Schestowitz

Google uses IPRs to eliminate everything that’s left of this parasite

InfoGation Corp.Summary: A new example of software patents against Free software, or trolls against companies that are distributing freedom-respecting software from a country where these patents are not even potent (they don’t exist there)

InfoGation Corp. [sic] (corporations typically make things) is not a real company. Maybe it used to actually do something in the distant past, but now it’s just a pile of patents. Their Web site is a one-page stop, the classic troll-themed Web site, referring to “technology” (for so-called ‘licensing’) rather than actual products. Search the Web for the term “InfoGation Corp.” and just about every single result will be about some lawsuit, which is rather telling.

“Search the Web for the term “InfoGation Corp.” and just about every single result will be about some lawsuit, which is rather telling.”Under the “Patent Trolling Archives” section, the Patent Investor described InfoGation Corp. as an “assertion entity” (fancy name for troll), noting that after it had gone after Taiwan’s HTC (the first time we wrote about InfoGation Corp.) it also attacked other Google partners, mostly in China, e.g. ZTE and Huawei. Google stepped in to defend these partners.

Watchtroll is bashing PTAB, essentially by calling the patent holder, InfoGation Corp., “small software developer” (yes, software patents) and saying that those challenging the patents merely “gang up”. This is quite a lot of Watchtroll FUD in quick succession, e.g. after it had published a piece we debunked this morning. We don’t want to start a line-by-line rebuttal; instead we’ll just say that Watchtroll has been grooming this troll for quite some time (it wrote quite a lot about it in the past). It also exploits it for PTAB bashing — an old tradition at Watchtroll. Is PTAB going to trash some more software patents, thus taking InfoGation out of business once and for all? We sure hope so. This would help deter trolls and discourage further litigation such as this.

02.13.17

The Federal Circuit Grapples With Extreme Measures Like Embargoes Over Patents

Posted in America, Courtroom, Patents at 3:15 am by Dr. Roy Schestowitz

War on generics, or when judges choose between life and death

Amgen embargoes

Summary: The latest developments from the Federal Circuit (CAFC), which has been increasingly hostile towards patent maximalism in recent years, leading to less frequent death knells by court

THE Federal Circuit (CAFC) and the USPTO have changed a great deal since Alice. It’s no longer easy to be granted and then enforce (have upheld) software patents. That’s a positive development of course.

We typically write about how the ITC helps US giants embargo their competition, using as little as a few patents and hardly even a proper trial. Based on the “UPDATE FEBRUARY 8″ in MIP, the “Federal Circuit has stayed the permanent injunction for Praluent pending Sanofi and Regeneron’s appeal. The story published below on February 7 has been updated to reflect this.” Well, the story as it originally appeared said this:

Last month’s granting of an Amgen permanent injunction motion in its cholesterol drug patent dispute with Sanofi and Regeneron would “give another arrow in the quiver” of those seeking permanent injunctions in similar cases, if it is upheld on appeal

Saying she was caught “between a rock and a hard place,” Judge Sue Robinson in the District Court of Delaware last month decided to grant Amgen’s motion for a permanent injunction against Sanofi and Regeneron in an infringement suit over competing cholesterol drugs.

This is about cholesterol drugs, i.e. a classic case where lives are at stake (notably cardiac problems). What is noteworthy here is that the ruling by CAFC can mean the life (or death) of many people who are unable to afford some overpriced drugs from Amgen. Here is another new article (IAM “report”) about CAFC:

Drug manufacturers cannot avoid infringement by dividing method between physicians and patients

[...]

Thus, the Federal Circuit removed any doubt as to whether drug manufacturers may avoid infringement by dividing the steps of a patented method for drug administration between physicians and patients. Under such circumstances, infringement cannot be circumvented by instructing physicians to require that patients perform a step of the method before administration of the generic drug. Accordingly, entities seeking FDA approval to market generic versions of patented drugs should take caution and ensure that any instructions for administration of the drug do not merely divide the steps of a patented method between two or more parties. This case should come as welcome news to many existing patent holders, providing another tool for more effective exclusion of market competitors and potentially increasing the value of patented methods for drug administration.

This simply means that the CAFC chose the side of the maximalists in this case. Who would have trouble sleeping at night? The executives, the judge/s, or those who will die needlessly?

“Who would have trouble sleeping at night? The executives, the judge/s, or those who will die needlessly?”“In a short opinion,” Patently-O wrote about another CAFC case, “the Federal Circuit has reversed a lower court infringement claim — holding instead that Watson’s generic product does not infringe.”

So sometimes they get the balance right. Patently-O‘s Crouch, separately, has an ongoing rant (and paper) about CAFC’s “judgments without opinion” as he calls these [1, 2]. We sure hope that CAFC will be hearing also from affected patients. The EPO certainly does not care about them.

02.01.17

The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English

Posted in Courtroom, Europe, Law, Patents at 7:43 am by Dr. Roy Schestowitz

Holland fights to market itself as safe haven for unaccountable (and often abusive) organisations

Dutch decision on EPO

Summary: A recent decision on the EPO (from a high Dutch court) is now available for reading in English

OUR previous coverage on this subject, namely EPO management getting away with anything on Dutch territory, pretty much said everything that needed to be said. Here are 5 articles about it (there are more):

Yesterday afternoon we found this update in SUEPO’s Web site. It said the following:

Judgment of the Dutch Court of Cassation issued on 20 January 2017

JUDGMENT OF THE DUTCH COURT OF CASSATION IN SUEPO v EPO ISSUED ON 20 JANUARY 2017
Dutch courts have no jurisdiction in European Patent Organisation dispute
The European Patent Organisation can invoke jurisdiction immunity in a dispute with trade unions. That is the ruling issued by the Supreme Court 5 today, and means the Dutch courts have no jurisdiction to examine disputes brought before them between the European Patent Organisation (EPOrg) and two trade unions: the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO). Previous rulings by the court in preliminary relief proceedings and the Court of Appeal in The Hague 10 have been set aside by the Supreme Court.

Original judgment text is in Dutch. English translation is available.

We have local [PDF] copies of both [PDF] English translations. We have uploaded these PDFs for long-term preservation (as SUEPO is under attack and sometimes pressured to censor itself).

01.31.17

Battistelli Brags About Being Unaccountable, But He is Wrong and is Probably in Defiance of the Law

Posted in Courtroom, Europe, Patents at 10:01 am by Dr. Roy Schestowitz

SCREENSHOT of 'The rights and obligations of an international organisation'

Summary: In spite of breaking EPO rules on a regular basis, and despite defying laws of states where the EPO is based, Battistelli is happy to insinuate that he is guilty of nothing

THE premier source of scandals, Battistelli’s EPO, never ceased yielding further embarrassments, such as the above so-called ‘blog’ from Battistelli (warning: epo.org link), belatedly promoted by his obedient marketing bunnies some time yesterday.

“Battistelli has surrounded himself only by colleagues who agree with anything he says and try to get him out of scandals by somehow justifying his abuses…”Repeating any of it would merely amplify the lies (almost everything Battistelli says these days is a lie) and we don’t have time for a complete top-to-bottom rebuttal. What we will say, however, is that when Battistelli brags about being above the law he not only reminds his staff what an utterly disgusting person he is (a disgrace to France, say numerous French politicians, as recently as December). Battistelli seems to be suffering some sort of God complex or psychopathy — the same thing many people accuse Trump of having. Battistelli does not uphold the law; he violates the rules of the Organisation itself while the Chinchilla that's intended to supervise him does nothing. Battistelli has surrounded himself only by colleagues who agree with anything he says and try to get him out of scandals/trouble by somehow justifying his abuses (Minnoye, for example, said they would flagrantly ignore the highest Dutch court). These are the people who receive promotions and the accompanying payrise.

We recently found a much better ILOAT judgment than the one published here yesterday. It’s about not consulting the GAC/GCC (staff representatives) before making decisions. See judgment #2874 and in particular the part that says: “As the GAC was not consulted, the decision to place the complainant on the BEST list is flawed and must be set aside. The underlying question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the GAC.”

We have decided to reproduce the entire decision below (emphasis in yellow added by us):

Organisation internationale du Travail
Tribunal administratif

International Labour Organization
Administrative Tribunal

108th Session

Judgment No. 2874

THE ADMINISTRATIVE TRIBUNAL,

Considering the complaint filed by Mr A. J.-J. d. D. against the European Patent Organisation (EPO) on 30 April 2008, the EPO’s reply of 29 August and the complainant’s e-mail of 6 October 2008 informing the Registrar of the Tribunal that he did not wish to enter a rejoinder;

Considering Article II, paragraph 5, of the Statute of the Tribunal;

Having examined the written submissions and decided not to order hearings, for which neither party has applied;

Considering that the facts of the case and the pleadings may be summed up as follows:

A. Amongst other activities, the EPO processes international applications under the European Patent Convention and the Patent Cooperation Treaty. One of the purposes of filing an international application is to ascertain whether a claimed invention is likely to be patentable before incurring the expense of applying, perhaps unsuccessfully, for patents at national or regional level. Under the procedure that was in place when the European Patent Office – the EPO’s secretariat – was set up each application was first submitted to a search examiner, who carried out a search in order to identify similar technology already known as a result of a written public disclosure. The inventor could then choose to obtain a more detailed opinion provided by a substantive examiner. In 1989 the formerly separate roles of search examiner and substantive examiner were combined through a pilot project known as “BEST” (Bringing Search and Examination Together). Examiners were to be trained to perform both search and examination duties so that applications could be dealt with by the same examiner (a “BEST examiner”). The BEST project was implemented at the Office, first in Directorate-General 1 in The Hague (Netherlands) and later in Directorate-General 2 in Munich (Germany). In June 1997 the Administrative Council approved in principle the Office-wide extension of BEST and instructed the Committee on Patent Law, whose mandate is to advise the Council inter alia on any legal matters concerning a revision of the European Patent Convention, to study the project in the context of the Convention and to submit its conclusions and recommendations. A majority of the Committee on Patent Law recommended that a diplomatic conference be held with a view to amending Articles 16 and 17 of the Convention as well as provisions of the Protocol on the Centralisation of the European Patent System and on its Introduction (hereinafter “Protocol on Centralisation”). This recommendation was endorsed by the Administrative Council and the proposed amendments were adopted in 2000 by the Conference of the Contracting States.

The complainant, who was born in 1966 and has dual French and Swedish nationality, joined the Office in 1991 as a search examiner and subsequently worked as a substantive examiner. By e-mail of 6 October 2004 his director informed him that his name had been put on the waiting list for transfer to BEST. In a further e-mail of 25 October she provided clarifications on this matter, stating inter alia that transfer to BEST was no longer done on a voluntary basis only. On 13 December 2004 the complainant was invited to take part in BEST training as from 6 April 2005.

On 18 January 2005 he lodged an appeal with the Internal Appeals Committee, requesting that the order to transfer him to BEST be cancelled and that the lawfulness of BEST be examined by the Committee. In its opinion delivered on 19 December 2007 the Committee found that the Office had failed to consult the General Advisory Committee (GAC) prior to deciding the compulsory Office-wide implementation of BEST, in breach of Article 38(3) of the Service Regulations for Permanent Employees of the Office and it recommended that the implementation of BEST be submitted to the GAC for its opinion. The Committee also recommended by a majority that a “symbolic” amount of 500 euros be awarded to the complainant in moral damages. By letter of 14 February 2008 the complainant was notified that the President of the Office had decided not to endorse the Committee’s recommendations and that his appeal had accordingly been rejected. That is the impugned decision.

B. The complainant submits that the Office-wide implementation of BEST breached Article 38(3) of the Service Regulations because the President of the Office failed to consult the GAC. Referring to the case law, he contends that in a similar case where the GAC was not consulted, the Tribunal set aside the impugned decision. He acknowledges that, in the present instance, setting aside the decision to implement BEST Office-wide might cause major disruptions but he points out that removing him from BEST would not occasion such disruptions and that, in any event, every examiner should be given the choice whether or not to work as a BEST examiner.

He also submits that since 1996 he has been the subject of repeated attacks from his line managers who sought to have him transferred to BEST. This, he says, had a negative impact on his self-esteem and health, thus entitling him to compensation in excess of the symbolic amount recommended by the Internal Appeals Committee.

The complainant asks the Tribunal to order that the GAC be consulted on the Office-wide implementation of BEST. He also asks the Tribunal to quash the decision to transfer him to BEST, at least until the outcome of the GAC’s consultation. He claims 10,000 euros in moral damages and 5,000 euros in costs.

C. In its reply the EPO objects to the receivability of the complaint insofar as it relates to the lawfulness of BEST. It submits that the GAC and the Internal Appeals Committee are both advisory bodies and that neither they nor the Tribunal are competent to rule on the lawfulness of the amendments adopted by the Conference of the Contracting States. It considers that the claim that every examiner should be given the choice to work or not as a BEST examiner is also irreceivable, because the complainant cannot challenge “an injustice purportedly suffered by his colleagues”.

On the merits the EPO contends that the complaint is unfounded. Article 38(3) of the Service Regulations did not require consultation of the GAC as the decisions to implement BEST Office-wide and to amend Articles 16 and 17 of the Convention and provisions of the Protocol on Centralisation were taken by the Conference of the Contracting States. They were thus binding on the Organisation and the President could not ignore them. Furthermore, the Office-wide implementation of BEST was an organisational matter which fell within the President’s power, under Article 10(2) of the Convention, to take all necessary steps to ensure the functioning of the Office. Referring to a Note concerning the Office’s Policy and Criteria for Migration to BEST, the EPO points out that all examiners had to be transferred to BEST and that the only possible exceptions were on the grounds of age or health reasons. It adds that an employee’s duties cannot be considered as acquired rights.

The Organisation argues that the complainant has failed to provide evidence that he was the victim of harassment. It points out that if, as he asserts, his health has been impaired, he can turn to the relevant medical authorities.

CONSIDERATIONS

1. In 1989 the EPO launched the “BEST” pilot project, which brought search and examination together in order to process more patent applications without increasing the number of staff members.

In June 1997 the Administrative Council approved in principle the implementation of BEST Office-wide and instructed the Committee on Patent Law to study the project in the context of the European Patent Convention and to submit its conclusions and recommendations. The Committee recommended by a majority that a diplomatic conference be convened for the purpose of amending Articles 16 and 17 of the Convention as well as the Protocol on Centralisation. The proposed amendments were adopted in 2000 by the Conference of the Contracting States. In essence, they removed mention of specific branch offices (The Hague, Munich and Berlin) and replaced them with a general reference to the Organisation to reflect the merging of search and examination duties Office-wide.

2. The complainant joined the Office at its branch in The Hague in 1991 as a search examiner. He was transferred to Munich in 1996 and worked as a substantive examiner. By an e-mail of 6 October 2004 his director informed him as well as all other non-BEST examiners, that they had been put on the official waiting list for transfer to BEST in the course of 2005, subject to the condition that training should not start before March 2005. In an e-mail of 25 October 2004 she pointed out that transfer to BEST was no longer voluntary.

3. The complainant lodged an appeal against the decision to transfer him to BEST and asked the Internal Appeals Committee to rescind it and to examine the lawfulness of BEST under the Convention as the decision to make BEST compulsory for all examiners had not been submitted to the GAC as required by Article 38(3) of the Service Regulations. In its opinion dated 19 December 2007 the Committee unanimously recommended:

“1. that the compulsory Office-wide implementation of BEST be submitted to the GAC for opinion as soon as possible [...] and that a decision be taken on that basis on whether [...] BEST [...] is to be maintained in its present form;
[...]
3. that in all other respects the appeal be dismissed as unfounded.”

It recommended by a majority that the complainant be paid the symbolic sum of 500 euros in damages. The minority opinion found that no personal injury was identifiable as a result of failure to consult the GAC and that therefore the complainant had no claim to damages.

4. The complainant was notified by a letter dated 14 February 2008 of the President’s decision to reject his appeal as irreceivable in part and unfounded in its entirety. The letter stated inter alia that the President was of the opinion that the introduction of BEST was not in the competency of the GAC as defined in Article 38(3) of the Service Regulations. Both that Committee and the Internal Appeals Committee acted as consulting bodies to the President and had no competency concerning the decisions taken by the Contracting States. The complainant’s request to examine the lawfulness of BEST was therefore considered irreceivable.

5. The complainant bases his complaint on Article 38(3) of the Service Regulations, which states:

“The General Advisory Committee shall, in addition to the specific tasks given to it by the Service Regulations, be responsible for giving a reasoned opinion on:
- any proposal to amend these Service Regulations or the Pension Scheme Regulations, any proposal to make implementing rules and, in general, except in cases of obvious urgency, any proposal which concerns the whole or part of the staff to whom these Service Regulations apply or the recipients of pensions;
- any question of a general nature submitted to it by the President of the Office;
- any question which the Staff Committee has asked to have examined and which is submitted to it by the President of the Office in accordance with the provisions of Article 36.”

6. The Organisation submits that the Office-wide implementation of BEST did not require consultation of the GAC under Article 38(3) and that the President was entitled under Article 10(2) of the European Patent Convention to reorganise the duties assigned to examiners. It notes that the complainant may only challenge the order that he himself work as a BEST examiner and not the lawfulness of BEST in general. The Organisation is of the opinion that, according to “Article 2 in conjunction with Article 4(3)” of the Convention, the President’s role in implementing the decision of the Conference of the Contracting States to apply BEST Office-wide was very limited: he “had no discretion to accept or ignore it, he simply had to implement it”. The Organisation further notes that the Tribunal’s case law has determined that the head of an international organisation “is empowered to change the duties assigned to his subordinates” and has the “executive authority to assign staff to different posts” (see Judgments 265 and 534, under 1).

7. The Tribunal held that “Article 38(3) does of course [...] apply to cases where the Service Regulations and Pension Scheme Regulations are to be amended or ‘implementing rules’ are to be made, and the legal status of staff is thereby to be affected. But it goes further: it applies to cases where ‘any proposal’ is made ‘which concerns the whole or part of the staff’. So it casts a wide net that goes beyond mere changes in legal provisions.” The Tribunal has also held that “Article 38(3) does not interfere with the President’s exercise of his decision-making authority, but seeks to ensure that the proposal shall go through a formal process in which the staff have a right to be consulted through the General Advisory Committee” (see Judgment 1488, under 9 and 10). Furthermore, in accordance with the provision of Article 10(2) of the European Patent Convention, the President “shall take all necessary steps to ensure the functioning of the European Patent Office, including the adoption of internal administrative instructions and information to the public”, and unless otherwise stipulated in the Convention “he shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively”. The exercise of these powers is, thus, subject to Article 38(3) of the Service Regulations and the GAC must be consulted on “any proposal which concerns the whole or part of the staff”.

8. The Organisation is correct in asserting that the Tribunal is not competent to rule on the lawfulness of the amendments to the Convention. However, that does not mean that the President could choose the method for implementing the amendments without consulting the GAC. He could have dispensed with that consultation only if the amendments themselves foreclosed any choice as to the method of implementation. This was not the case; there were several factors not mentioned in the amendments in question which could be relevant in choosing a method of implementation. Therefore, there should have been a consultation of the GAC.

9. As the GAC was not consulted, the decision to place the complainant on the BEST list is flawed and must be set aside. The underlying question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the GAC. The complainant must return to his previous non-BEST duties until that has been done.

10. The Tribunal agrees with the Organisation that the complainant has failed to prove any harassment or to follow proper procedure to assess alleged health problems and therefore disregards them in the calculation of damages. Considering the failure to consult the GAC and the time spent by the complainant acting as a BEST examiner, the Tribunal awards him 3,000 euros in moral damages. As the complaint succeeds, the Tribunal awards him 800 euros in costs.

DECISION

For the above reasons,

1. The President’s decision dated 14 February 2008 concerning the complainant’s internal appeal is set aside as is the earlier decision to place the complainant on the BEST list.

2. The question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the General Advisory Committee.

3. The Organisation shall pay the complainant 3,000 euros as compensation for the moral injury he suffered.

4. It shall also pay him 800 euros in costs.

5. All remaining claims are dismissed.

In witness of this judgment, adopted on 5 November 2009, Ms Mary G. Gaudron, President of the Tribunal, Mr Giuseppe Barbagallo, Judge, and Ms Dolores M. Hansen, Judge, sign below, as do I, Catherine Comtet, Registrar.

Delivered in public in Geneva on 3 February 2010.

Mary G. Gaudron
Giuseppe Barbagallo
Dolores M. Hansen
Catherine Comtet

This decision is very relevant as it shows that Battistelli must actually learn to respect the Office’s own rules, or else risk breaking the ‘law of Eponia’ (which he regularly breaks anyway). How many decisions and proposals has Battistelli passed in complete defiance of the rules of the Office and the Organisation? What does that say about the governance of the EPO?

01.30.17

Everything Benoît Battistelli Does Without Staff Consultation is Without Merit, More So Amid Union-Busting Catastrophe

Posted in Courtroom, Europe, Patents at 7:09 am by Dr. Roy Schestowitz

The European Patent Organisation has truly become a “swamp” without any accountability or adherence to rules

The EPO swamp

Summary: By attacking union leaders, many of whom are also staff representatives, Battistelli discredits if not invalidates everything he has done, an old ruling from the International Labour Organisation serves to show

THERE was a lot of discussion recently, including over the weekend, about the lack of legality of what EPO management tries doing to staff. There is no concept of justice at the EPO, except in theory, as Battistelli is crushing the union and thus staff representation. Going several decades back, we find precedence, too. Decisions where statutory consultation hasn’t properly taken place are quashed, for example, such as in this ILOAT judgement.

We have highlighted few key items in the full decision, which is almost 5 pages in length.

SEVENTIETH SESSION
In re HOFMANN (No. 2)

Judgment 1062

THE ADMINISTRATIVE TRIBUNAL,

Considering the second complaint filed by Mr. Dieter Gerhard Hofmann against the European Patent Organisation (EPO) on 18 December 1989, the EPO’s reply of 5 March 1990, the complainant’s rejoinder of 10 May and the Organisation’s surrejoinder of 30 July 1990;

Considering Article II, paragraph 5, of the Statute of the Tribunal and Articles 38, 84 and 107 of the Service Regulations of the European Patent Office, the secretariat of the EPO;

Having examined the written evidence and decided not to order oral proceedings, which neither party has applied for;

Considering that the facts of the case and the pleadings may be summed up as follows:

A. The EPO has concluded with insurance brokers, van Breda and Company International, on behalf of several insurance companies a “collective insurance contract” for the protection of staff. Title II of the contract covers “Death and total permanent invalidity insurance” and applies to staff who qualify under the EPO Service Regulations.

Article 84(1) of the Regulations reads:

“The benefits payable shall be as follows:

(b) in the event of death of the permanent employee or permanent invalidity totally preventing him from performing duties corresponding to his level of employment in the Office: a lump sum equal to 2.75 times his annual basic salary …”;

and 84(4):

“One third of the contribution, calculated by reference to the basic salary of the permanent employee, which is required to meet the insurance of the risks under paragraph 1b) shall be charged to the employee, but so that the amount charged to him shall not exceed O.6% of his basic salary.”

The monthly premium is set in the collective insurance contract, and every five years the EPO reviews the amount with van Breda. It did so late in 1987.

The complainant, who was born in 1949, is a permanent employee of the EPO. Up to the end of 1987 his contribution came to 0.1881 per cent of basic salary. Thus his pay slip for December 1987 showed an amount of 7,053 Deutschmarks as basic salary and a deduction of 13.27 Deutschmarks therefrom as his contribution to the premium for death and invalidity insurance for that month.

By circular 163 of 20 January 1988 the Personnel Department of the Office informed the staff that the premiums were put up as from 1 January 1988 because of a rise in the number of successful claims in the last few years. For any permanent employee below the age of 55, like the complainant, death insurance was thenceforth to cost 0.374 per cent and invalidity insurance 0.0638 per cent of basic salary, a total of 0.4378 as against the 0.1881. The complainant’s pay slip for January 1988, which he got on the 26th, showed a deduction of 30.88 Deutschmarks as his one-third contribution to the premiums.

On 18 April 1988 he lodged an internal appeal under Article 107 of the Service Regulations against the increase on the grounds that the EPO had failed to consult the General Advisory Committee (GAC), a body comprisingrepresentatives of both staff and management, as Article 38(3) of the Regulations required. That provision says that
the Committee shall “be responsible for giving a reasoned opinion on” any proposed amendment to the Regulations or implementing rules “and, in general, except in cases of obvious urgency, any proposal which concerns the whole or part of the staff …”. Over 450 other staff members lodged similar appeals at about the same time.

In its report of 23 May 1989 on the complainant’s and the other appeals the internal Appeals Committee, holding that the EPO had acted in breach of 38(3), recommended levying contributions at the old rates until the President had got the GAC’s opinion and refunding the amounts overpaid with interest at the rate of 8 per cent a year from 1 January 1988. But by a communiqué of 4 October 1989, the impugned decision, the Personnel Department announced that the President of the Office had rejected the appeals.

B. The complainant submits that the increase in premiums and therefore the impugned decision were unlawful: Article 38(3) applied, it was not complied with, and there was no “obvious urgency” warranting an exception. Not until the GAC held its 63rd meeting on 3 December 1987 in West Berlin did it hear of the EPO’s intention to put the premiums up. A staff representative at once objected to the lack of consultation, but the GAC was unable to give a “reasoned opinion” by 1 January 1988 since it did not have full information, the subject was complex, and the Christmas break was near. It was wholly the EPO’s fault that no consultation took place. It had known for five years that the insurance contract would have to be renewed by the end of 1987 since clause 2 said so. The duty laid down in 38(3) is all the stricter because it has authority to increase the financial burden on its staff by varying the terms of the collective contract: 38(3) is the only safeguard the staff have. Proper explanation and discussion of the big increase in premiums were called for. Judgment 744 (in re Snell) affords a precedent for enforcing such a requirement.

The complainant asks the Tribunal to set aside the decision to increase his contributions, order that they be restored to the figure of 0.1881 per cent of basic salary and that he be paid the amounts wrongfully deducted since 1 January 1988 plus interest at the rate of 10 per cent thereon, and award him 2,000 Deutschmarks in costs.

C. The EPO submits that the complaint is unfounded. It points out that it had not yet signed with van Breda the codicil to the contract embodying the new provisions when it informed the GAC of the increase at its meeting on 3 December 1987. It then told the members of the GAC that it was ready to discuss the matter and to put full information at their disposal. It did not sign the codicil until 19 April 1988. The GAC might, if so minded, have given an opinion on the outcome of the negotiations, and the staff representatives might have asked it to meet for the purpose before the end of the year.

Negotiations are not worth starting until late in the year, when the brokers have the most recent data available for the purpose of reckoning new premiums. Yet there was an urgent need to reach agreement on the new rates since they were to come into effect at 1 January 1988 and it was undesirable to apply them retroactively. The staff representatives never asked for the further information offered. The President put the matter on the agenda of the GAC’s meeting on 13 April 1988 – a week before the codicil was signed – and the Committee then discussed it, but again the staff representatives apparently did not think it worth carrying further.

The GAC was asked in November 1988 whether it wanted to state an opinion on the subject and it declined to do so. It then reaffirmed an earlier practice of delegating its supervisory function by appointing a staff representative and a management representative to follow the negotiations with the brokers on the matter of premiums for medical insurance. Having had no reason to believe that it wished to depart from that practice, the President cannot be taken to task for not seeking the GAC’s opinion on the matter of death and invalidity insurance.

D. In his rejoinder the complainant asks what the legal basis can have been for charging the staff higher rates of contribution from January to March 1988 when the EPO did not sign the codicil until 19 April 1988. It is specious to argue that the Administration was willing to discuss the matter. What it told the GAC on 3 December 1987 merely shows up its awareness of its failure up to then to enable the GAC to give a reasoned opinion. Since there was no time thereafter for the GAC to consider the matter properly before the new rates came in, the offer of information and discussion was pointless.

The matter was not urgent: the EPO did not even put it on the agenda of the GAC’s December 1987 meeting, and the President did not exercise his discretion under 38(5) to set a time limit for the GAC’s opinion.

The fact that in earlier years the GAC, with the staff representatives’ consent, delegated the task of overseeing thereview of medical insurance premiums just means that the staff representatives took a flexible approach to that rather complex matter. Such delegation did not apply to death and invalidity insurance. Had the GAC been told in time that the clauses of the contract on such insurance were to be altered it might have taken the same approach. It neither expressly nor by implication waived its right to be consulted. To bring it in only when the decision could no longer be changed was a travesty of consultation.

E. In its surrejoinder the EPO submits that the complainant’s rejoinder in no way weakens the force of the arguments in its reply. It maintains that there was an established practice, which the complainant does not dispute, of delegation of its supervisory function by the GAC. There is no reason not to apply the same procedure to insurance of the risks of death and invalidity as to medical insurance. In both cases the premiums are similarly reckoned. The staff representatives on the Committee were not diligent in seeking information. Since they knew that the time had come to revise the premiums they could have taken the initiative and asked the Committee to take up the matter.

CONSIDERATIONS:

1. The EPO is party to a collective insurance contract with a consortium of six insurance companies, administration of the contract being delegated to a firm of insurance brokers, van Breda and Company International, who are responsible for negotiating the terms of renewal of the contract. Under Article 84(4) of the Service Regulations the employee shall pay one-third of the contribution required to meet the costs of insurance against death and total permanent invalidity, provided that the amount shall not exceed 0.6 per cent of basic salary.

In January 1988 the EPO decided to increase the rates of contribution by its staff in the period from 1 January 1988 to 31 December 1992 to the cost of insurance of risks under those heads. The present challenge to that increase rests on the alleged failure by the EPO to follow the procedure for consultation set out in the Service Regulations.

The procedure for consultation

2. Article 38 of the Regulations establishes joint committees for the Office comprising a General Advisory Committee and local advisory committees. Article 38(3) reads:

“The General Advisory Committee shall, in addition to the specific tasks given to it by the Service Regulations, be responsible for giving a reasoned opinion on:

- any proposal to amend these Service Regulations or the Pension Scheme Regulations, any proposal to make implementing rules and, in general, except in cases of obvious urgency, any proposal which concerns the whole or part of the staff to whom these Service Regulations apply …”

Article 38(5) further provides:

“Opinions of the joint committees which are required in respect of administrative decisions must be delivered within the time limits laid down in each case by the President of the Office, such time limits being not less than fifteen working days. Once the time limit has expired, the opinion shall no longer be required.”

The EPO’s reply

3. The Organisation maintains that the absence of an opinion by the General Advisory Committee (GAC) does not make the challenged decision unlawful. It points out that not until 4 December 1987 did it complete negotiations with the brokers about the premiums to take effect at 1 January 1988 and the matter was therefore urgent. It cites the minutes of the GAC’s 63rd meeting on 3 and 4 December 1987, which under the heading “General Information” record that, the GAC had been told that because of an increase in the costs of death and invalidity insurance there would be a substantial increase in the contributions payable by employees and that, if the GAC wished, the Administration would give more details and data about the negotiations.

The President of the Office put the matter on the agenda of the Committee’s 64th meeting, which took place on 13 April 1988, but the Committee gave no opinion. At its 67th meeting, on 24 and 25 November 1988, it agreed to delegate its functions in the matter to a representative of the Administration and a representative of the staff on condition that it should be informed of the outcome of the negotiations.The EPO submits that that was an established practice of the GAC’s and that, in the absence of any decision to the contrary, the Committee intended to dispense with the requirement of giving “a reasoned opinion” on the new rates of contribution.

The Tribunal’s ruling

4. The first issue is whether the decision to increase staff contributions to the costs of death and invalidity insurance was a proposal within the meaning of Article 38(3).

The answer is that it was, because the payment of contributions for such coverage was compulsory and indeed one of the conditions of service.

5. Secondly, did the proposal fall within the exception in Article 38(3) as a “case of obvious urgency”?

It was known that the previous insurance contract would terminate at 31 December 1987, and by 4 December it was clear that there would be an increase in staff contributions. It cannot therefore be properly argued that the increase was unforeseeable. Although the negotiations were not completed until 4 December 1987 the Administration must have been aware before 3 December 1987, the date of the GAC’s meeting, what the brokers were asking for and whether other insurers could offer lower rates. Consultation in the context of Article 38 entails giving the GAC enough information to enable it to come to “a reasoned opinion”. Merely telling it that the Administration would give it more details and provide data on the negotiations if it so wished did not comply with Article 38, which is plainly intended to make for proper consultation between the two sides.

6. As the Organisation admits, though the matter was put on the agenda of the GAC’s meeting on 13 April 1988, the President set no deadline for it to give an opinion. At that meeting a staff representative asked whether copies of the documents setting out the proposals by van Breda and the counter-proposals by the EPO could be made available to the Staff Committee. On 30 August 1988 the Office gave the Staff Committee document GAC/6/88, and the GAC discussed it at its 67th meeting, on 24 and 25 November 1988. The two sides disagreed as to whether an
opinion was necessary and, as was said above, that was when the Committee decided to delegate its function to a representative of the administration and a representative of the staff.

The Article 38 procedure calls for joint consultation: it does not transfer decision-making authority from the Administration to the GAC. The submission of document GAC/6/88 to the Committee and its decision to delegate its function fulfilled the requirements of Article 38, because by 24 November 1988 the GAC was in a position to give a reasoned opinion.

7. In the light of the foregoing the decision to apply the higher rates of contribution to the complainant from 1 January 1988 cannot stand. They did not become properly payable until 26 November 1988. The complainant, who has never disputed liability to pay contributions at the old rates, must be repaid the difference between the amounts reckoned at the old and the new rates for the period from 1 January 1988 to 25 November 1988. But inasmuch as he remained fully covered during that period by insurance against the risks of death and total permanent invalidity the Tribunal will not order the payment of interest.

DECISION:

For the above reasons,

1. The decision to increase the complainant’s contributions to the costs of death and invalidity insurance is quashed from 1 January 1988.
2. The decision is confirmed as from 26 November 1988.
3. The EPO shall pay back to the complainant the amounts wrongfully deducted for the period from 1 January 1988 to 25 November 1988.
4. It shall pay him 2,000 Deutschmarks in costs.

In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Miss Mella Carroll, Judge, and the Right Honourable Sir William Douglas, Deputy Judge, have signed hereunder, as have I, Allan Gardner, Registrar.Delivered in public sitting in Geneva on 29 January 1991.

Jacques Ducoux
Mella Carroll
William Douglas
A.B. Gardner

Updated by PFR. Approved by CC. Last update: 7 July 2000.

Also of relevance to this are ILO Judgment 1291, Judgment 982, and Judgment 1600. We don’t know much about Dieter Gerhard Hofmann (he would be in retirement age by now), but his case remains relevant to this date.

01.29.17

Revealed: Lack of Justice at the European Patent Office (EPO), No Valid Courts

Posted in Courtroom, Europe, Patents at 6:53 pm by Dr. Roy Schestowitz

It is a textbook example or hallmark of a regime when there is no recourse to the principles of natural justice and management is basically above the law

No EPO justice
Large version

Summary: A quick glance at the perception of utter lack of justice at the EPO, even as far as EPO employees are concerned

THIS morning/afternoon we asked for ‘leaks’ related to a comment seen only hours earlier. It was about lack of justice at the EPO, whose entire basis and reason for existence is supposed justice (in relation to patents).

Published on the SUEPO Web site on Friday was the above notice, which we have anonymised a tad bit to reduce chances of reprisal against the author (leaving some uncertainty around identities). As many people may have noticed for various reasons, Trump and Battistelli become ever more similar by the day, as over the weekend the Trump Administration too defied court orders (see our latest daily links for references/coverage). What is the point or purpose of state-sanctioned courts if i) they deliver no real justice and ii) the state (or management) exempts itself from the law and from the courts’ rulings?

01.28.17

An Unexpected Reality: The Court of Appeals for the Federal Circuit Emerged as a Champion in Fighting Software Patents in the US

Posted in America, Courtroom, Patents at 10:17 am by Dr. Roy Schestowitz

Software patents impose a “deadweight loss on the nation’s economy”, said Circuit Judge Haldane Mayer a few months ago

Haldane Robert Mayer

Summary: How the highest court below the Supreme Court lends a hand to the destruction of software patents in the United States (and by extension perhaps the entire world)

THE Federal Circuit (CAFC) has been growingly supportive of patent reform. CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice.

CAFC is far from perfect, but it used to be one of the worst and now it’s actually one of the best. From being a big proponent of software patents (back in the Rader days) it’s now an opponent of them. Even Mayer, traditionally the proponent of software patents, is now strongly against these. The longer it goes on for, the lower the certainty software patents enjoy. See this new article titled “Federal Circuit Continues The Case-By-Case Approach For Determining Patent Eligible Subject Matter”.

“CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice.”According to this new article, changes are afoot. “Since a preliminary injunction is ordinarily awarded well before any final judgment on the merits,” Patently-O explained the other day, “nobody actually knows which side will win the case. Because of the powerful nature of injunctive relief, the courts have long required that the party seeking relief to at least prove that it will likely win the case. Although termed a “factor” in the four factor analysis, it is actually a necessary element that must be proven before relief will be granted. “The movant must establish both “likelihood of success on the merits and irreparable harm” for the court to grant a preliminary injunction.””

As Patently-O points out further down: “With the broader construction, the Federal Circuit remanded to consider whether the presented prior art creates an invalidity problem.”

“What we don’t wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder.”There are two principal criteria for invalidation: one is prior art and another is triviality or abstractness tests. With both ‘tools’ at hand, software patents are in a rather weak position at this Federal level. What happens a lot post-Alice is, companies attempt to sue others using software patents and merely burn their own pockets. IAM has this new “report” titled “Monetary consequences for falsely alleging patent infringement” and Patently-O, writing again about CAFC, mentions pre-AIA law in relation to a particular case which is deems likely the “Last Inventorship Case”. To quote: “Based upon these (and a few other) facts, Mylan argues that (1) the ’patent had been derived from someone at the FDA – and therefore the patentee was not the “inventor” as required by pre-AIA law, 35 U.S.C. 102(f); and (2) the invention would have been obvious in light of the FDA communications. On appeal, however, the Federal Circuit affirmed the lower court holding siding wholly with the patentee.”

While we are still waiting to see what happens to AIA and the USPTO Director under Trump (there are conflicting rumours about that) we sure hope to see more of the same progress — something along the lines of reducing patent scope. Red Hat’s OpenSource.com published “making-us-patent-system-useful-again” only a few days ago. “In the U.S. patent system,” it said, “if maintenance fees are not paid, an issued patent goes into the public domain. Find out how to search the database.”

Remember that the original purpose of patents was exactly that. The temporary monopoly was a reward or compensation for doing that.

What we don’t wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder. That is exactly what software patents have done to programmers. Take Compuverde for example; based on its new press release, it has nothing to brag about except software patents (which are rather useless in the US these days).

As we noted earlier in the week, software patents do get accepted by CAFC on rare occasions, but one cannot rely on any of this. In almost 80% of the cases last year CAFC agreed with PTAB, which is still killing a lot of patents and certain firms — not law firms of course — are loving it enough to pay for press releases about it.

01.26.17

US Supreme Court Poised to Limit Patent Scope Even Further and Hamper Trolls-Friendly Courts

Posted in America, Courtroom, Law, Patents at 8:46 am by Dr. Roy Schestowitz

Progress being made… (and the infamous patent on the progress bar would be a thing of the past)

Progress bar

Summary: The steps taken by US Justices, who view patents from a compassionate point of view rather than a maximalist perspective, undo decades of a patent gold rush

THE USPTO became “Great Again” under the latter Obama years (maybe the past three years). “Key Patent Law Decisions Of 2016″, a new article from the patent lawyers’ platform, recalls that “[t]he U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit wrestled with a number of important issues of patent law in 2016, including in three Supreme Court opinions (with more on the way) and three en banc Federal Circuit opinions. The issues in these cases were diverse and wide-ranging, including administrative review of patents in the U.S. Patent and Trademark Office (“PTO”) and the International Trade Commission (“ITC”), recognition of a new patent agent privilege, and the Supreme Court’s first design patent decision in more than a century.”

“The patent microcosm is still moaning about decisions that are years behind; it wants a resurgence of patent maximalism, i.e. the misguided belief that the more patents we have, the better off the economy will be (not just their own bottom line).”We have covered most of these and pointed out that SCOTUS limited patent scope in 2016, just as it had done in 2015 and 2014 (Alice, Mayo and so on). This is fantastic news to patent reformers and we hope that reformist policies will persist under Trump. Posted behind paywall yesterday was the article “The Supreme Court’s Impact on Patentable Subject Matter”. The patent microcosm is still moaning about decisions that are years behind; it wants a resurgence of patent maximalism, i.e. the misguided belief that the more patents we have, the better off the economy will be (not just their own bottom line).

The EFF, which has been habitually attacked by the patent microcosm (Watchtroll called it “a leftist anti-patent activist coalition” [1, 2]), has just released a statement titled “EFF To Patent Office: Supreme Court Limits On Abstract Patents Are a Good Thing”; it’s a powerful statement which cites Alice — a decision which is now killing software patents. To quote:

“EFF has submitted comments to the Patent Office urging it not to support efforts to undermine the Supreme Court’s recent decision in Alice v. CLS Bank. The Patent Office had called for public submissions regarding whether “legislative changes are desirable” in response to recent court decisions, including Alice. We explain that, far from harming the software industry, Alice has helped it thrive.

“Every software engineer, system administrator etc. that I speak to absolutely loves Alice. It was belated (by decades) justice to the software profession and it gives many software companies peace of mind.”“When the Supreme Court issued its ruling in Alice, it was a shock to a patent system that had been churning out software patents by the tens of thousands every year. Back in the 1990s, the Federal Circuit had opened the software patent floodgate with its ruling in State Street and In re Alappat. That decision held that any general purpose computer could be eligible for a patent so long as it is programmed to perform a particular function. In Alice, the Supreme Court substantially moderated that holding by ruling that a generic computer is not eligible for a patent simply because it is programed to implement an abstract idea.

“Courts have applied Alice to throw out many of the worst software patents. Alice is particularly valuable because, in some cases, courts have applied it early in litigation thereby preventing patent trolls from using the high expense of litigation to pressure defendants into settlements. While we think that the Federal Circuit could do more to diligently apply Alice, it has at least been a step forward.”

Every software engineer, system administrator etc. that I speak to absolutely loves Alice. It was belated (by decades) justice to the software profession and it gives many software companies peace of mind. I personally know some people whose employer/customers got attacked by patent trolls and suffered severely as a result. These patent trolls, as usual, relied on software patents.

Speaking of patent trolls, are they about to lose it all? SCOTUS intends to look into their breeding ground, as Above the Law noted this week, under the title “Leaving The Heartland?”

To quote:

By accepting the case, the Supreme Court has already indicated it is willing to consider the question of whether the Federal Circuit has taken too expansive a view of venue in patent cases. If the Supreme Court decides that restrictive language in the patent venue statute controls, then patent cases will be permitted only in districts where either the defendant is incorporated or has a physical place of business. Since relatively few regular patent defendants meet either criteria in the EDTX, the thought is that the EDTX’s patent litigation well will quickly dry up. Which may be a boon to technology companies located on either coast, many of which would not miss the EDTX one iota. At the same time, the robust infrastructure that has arisen to support patent litigation in the EDTX would be adversely affected, likely to the economic detriment of the region.

Trump will likely nominate if not appoint a Scalia replacement. If all the rest of the Justices keep their seats, then we expect (as do others, including scholars) the Supreme Court to deal a mortal blow to patent trolls

Promising times ahead.

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