Like anyone seriously thought that Battistelli would obey the law, for a change…
Summary: The compositions of kangaroo courts at the EPO continue to be absurd, in spite of a ruling from the International Labour Organisation (ILO), which insisted that change must be made following a lot of mistrials
EARLIER THIS year we heard about escalations in Battistelli’s attack on staff, emboldened by a Dutch court’s decision to maintain Battistelli’s immunity. In December the International Labour Organisation ruled that for a couple of years Battistelli’s EPO had not offered justice to workers] (a hundred if not several hundreds people are affected by this gross injustice).
Of high relevance to this is the following statement from the written determination:
This morning, EPO workers (i.e. colleagues) had disseminated among them information about what had been happening behind the scenes (quiet before the storm?). In a nutshell, Battistelli’s ‘herculean’ actions continue to rattle or threaten staff representatives and thus provide less incentive to keep one’s place there (or even join). These aren’t mere deterrence tactics but union-busting tactics. Anyone can see that.
“In Judgement 3785,” said an insider, “ILOAT declared the composition of the internal Appeals Committee (ApC) illegal for the years 2014 (partly), 2015 and 2016. With CA/D 18/16, the Office and the Administrative Council reacted and revised Article 36(2) of the Service Regulations in December 2016. Staff representation considers that this proposal is flawed as not responding to the requirement of the ILOAT regarding the balance representation of parties [excerpt of the Judgment can be seen above]. The CSC counterproposal to the B28 remains uncommented so far.”
So the more things ‘change’, the more they stay the same. The person who leaked this to us remarked: “I would suggest that a copy should also be sent to Mr Rouiller, President of the ILOAT [and Former President of the Federal Tribunal (Supreme Court of the Swiss Confederation)] who poignantly declared his satisfaction as the EPO is implementing “some” of the rulings issued by the Tribunal. Sounds like Mr. Rouiller spoke too early. A corrective disapproval would be welcome.”
It turns out, based on letters which are circulating these days, that ILOAT should escalate its actions (not that it has much authority or power over the EPO, as long as immunity remains and Battistelli prevails).
“The nominations made by the CSC in December,” wrote the insider, “were turned down by the President who called in January the 25th on individual elected Staff Representatives to volunteer for the ApC, in accordance with new Article 36(2)(a) ServRegs, last sentence, first alternative. Besides one staff representative, none of the elected Staff Representatives Office-wide responded positively to the call (see exemplary letter below).”
Here is one such letter from one week ago:
“It seems that the President decided to selectively apply its own rules and proceeded on 13 February 2017,” said the insider, “with the drawing of lots (new Article 36(2)(a), last sentence, second alternative) only to complement the three further members of the ApC. And the “winners” are…:
1) ███ ███ (███ ███)
2) ███ ███ (███ ███)
3) ███ ███ (███ ███)
“The Administration was not in a position to indicate who would be a full member and who would be alternate [so folks] are awaiting a decision of the President of the Office about the new complete composition. The mandate of the members will end on 30 June 2017.
“In fine, the ApC is now composed with
· one volunteer* appointed “ex officio”, who was previously member of the declared illegally composed ApC;
· one Staff Representative, who is the complainant of the ILO Appeal which clarified the illegal composition of the ApC;
· and two SRs [staff representatives] with who sent beforehand a letter to the President explaining the reasons why they were not eligible for the job and the drawing of lots.
“It is hard to see how a flawed rule, applied “flexibly” by the captain of the ship, with more than questionable results does serve the interest of Staff and the Office in an adequate and balanced manner?
“Without being a lawyer, under these conditions the quote from the CH [Swiss] delegation in the AC [Administrative Council] takes a particularly acute meaning: “There is a great risk, that we will see ourselves in a short while in the same situation as today”. Just with a more complicated legal situation.
This issue has already been raised (2 days ago) in Munich:
Central Staff Committee Members Munich
13 February 2017
Dear Mr. President,
We refer to your letter of 26 January 2017, in which you asked all staff committee members to volunteer for a function in the Appeals Committee. We further refer to the email of 10 February inviting all CSC and LSC members to attend a drawing of lots today.
Already when you called for volunteers in December 2014, the CSC sent you a letter explaining why it could not nominate. There were also no volunteer from among the CSC. The same reasons remain valid today. Accordingly, you will have noticed that we did not volunteer this time, either.
At this stage, we would like to notify you that we will not be available for being included in the pool for the drawing of lots. We specifically request that you do not include us in the pool of eligible staff members within the meaning of Article 36(2)(a) ServRegs.
In addition, we wish to draw your attention to the following facts:
1. We stood for election in the Central Staff Committee in 2014. We had no intention to be members of the Appeals Committee, nor was there any such obligation then in the Service Regulations. We have a legitimate expectation to be left to carry out our duties as staff representatives, without being saddled with additional burdens we have never considered taking on.
2. In a meeting with PD43, PD53 and Director 5.3.2. on 8 December 2016, we apparently came to a common understanding about the staff members which would be eligible for sitting in the Appeals Committee, e.g. excluding so-called “repetitive” appellants or members of the Boards of Appeal. The outcome of these discussions as well as our repeated requests to broaden the pool of eligible staff members available for appointment by the CSC were ignored later, most notably in the GCC meeting on 12 December 2016 when you submitted the proposal to amend Article 36 ServRegs.
3. As members of the Central Staff Committee in the biggest place of employment, we are not only dealing with all the central issues which fall under the competence of the CSC, but we are also directly or indirectly advising individual staff members about their rights, and in some cases act as counsels in internal appeals. This role was and is an integral part of our duties as staff representatives. There would be a direct and fatal conflict of interest if we were also to sit in the Appeals Committee. (Please refer to the statement of VP4 and VP5 of 30.09.2014 and to your Communiqué 61.)
4. If you were to coerce us into participating in the Appeals Committee, we would not be able to act impartially as staff representatives. If you were to oblige us to resign from the staff representation to avoid that quandary, you would be violating the principle of freedom of association.
5. Within the framework of the Working Group on resources for the Staff Committees, a specific budget for external expertise was requested – including lawyers to advise staff. We did so promptly upon taking up our tasks as elected staff representatives, as we realised that we could not cope effectively with all the workload involved in advising staff. PD43 has refused to make such budget and technical means available to us until today. Therefore, the Office itself bears a fundamental responsibility in creating the situation in which we cannot sit in the Appeals Committee.
6. At this point in time, there are even more severe problems of capacity for the remaining members of the CSC in Munich than in the previous years. Contrary to your assurances in CA/4/14 and in Communiqué 48 that the time budget for the staff representation would not be reduced with the introduction of “Social Democracy”, the figures show a massive decline. Moreover, the Office has imposed more and more constraints and hurdles in 2016, making our job exceedingly difficult – particularly for those exonerated from examiner duties only to 50%. It is simply physically impossible to take on (additional) demanding projects like the Appeals Committee. SUEPO members or officials amongst us have been particularly targeted.
Putting us in an impossible bind is not in the best interest of staff, the Office and of its reputation. It is also inadvisable to proceed in any way that could cause the Tribunal to condemn the EPO as it did in judgments 3694 and 3751. We trust that, upon careful reflection, you will not go down this road. We firmly believe that there are other ways to solve the issue, all within the current legal framework. We draw your attention to the letter sent by the CSC on 7 February 2017 (sc17016) which entails proposals which would immediately resolve the deadlock of the Appeals Committee.
From our side, we can only reassure staff, the President, and the Administrative Council that we will not act contrary to well-established legal principles and our ethical principles. We will not bring ourselves into any conflict of interest situation that will harm staff members, produce further undue workloads, and harm the sense of justice in our Office.
The undersigned CSC members in Munich.
And on the same day at The Hague (we haven’t had time to transcribe):
Justice cannot ever happen in darkness or in secret (secrecy betrays trust and breeds suspicion), so Techrights believes that the above should be publicised, excepting names. We urge our readers to contact Claude Rouiller (from Switzerland, so English, German and French should be fine) immediately and tell him that Battistelli takes him for a fool. According to this page, his E-mail address may still be
firstname.lastname@example.org. This is the kind of thing that Dutch authorities must become aware of, otherwise the Netherlands will become renowned not for international justice (e.g. ICC) but for the very opposite. It has already become quite a farce which we wrote nearly a dozen articles about. Among them:
- Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says
- EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses
- Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s
- Leaked: Team Battistelli, Exploiting a Controversial Decision From the Netherlands, is Trying to Squash SUEPO
- The EPO’s Freedom to Disregard the Law and Abuse Employees is “Being Taken up by the Council of Europe”
- The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English
- “Team Battistelli Continues With Intimidation Tactics”
- The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine
- Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity
Remember that the basis for the High Court’s decision to let the EPO off the hook is the supposed supervision — in the legal sense — by ILO, which obviously continues to not safeguard staff’s rights (too many referrals back to the kangaroo court) as Battistelli virtually snubs the ILOAT. This is part of an ongoing and never-ending pattern. The EPO views itself as above the law and it acts accordingly.
Help put an end to the "Mafia" that the EPO has become. Many people’s lives — not just economic welfare — may be at stake. █
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EPO money travels a long way, even to the Financial Times of London
Summary: The misuse of publications for the purpose of lobbying by Battistelli and Team UPC (a small group of opportunists looking to exploit change that they themselves introduce) is worth noting, for its frequency is on the rise again
YESTERDAY we announced this new petition which accompanies this motion in the British Parliament (no press release has been issued yet). Half a dozen British companies have already signed the petition and we expect more in the coming days/weeks (Douglas Carswell is still the sole sponsor of Early Day Motions 940).
The EPO spent a lot of money promoting the UPC. This is, as one can tell, misuse of EPO funds; but then again, who would ever hold Battistelli accountable for budgetary abuses (many of which we have covered here before)?
Promoted by proponents of software patents in other countries is this new blog post from the chief of IAM, a so-called ‘magazine’ (more like a front group) that got paid by the EPO's PR firm and was supported by the EPO to lobby for UPC even in the United States. In our view, based on extensive evidence, this is a mercenary publication that also acts/serves as the EPO's propaganda mill.
This is what Joff Wild wrote:
[W]hat we can now say is that the UPC is on the radar screen of the British anti-EU right in both the legislature and the media. If a few MPs do sign the early day motion and the story is picked up by more influential outlets, such as the Daily Mail and the Daily Telegraph, it is not impossible that the government could be forced into reassessing its position. Since the referendum, Theresa May has seemed to give special deference to the concerns of the most vocal anti-Europeans and in order to avoid an argument, it is conceivable that she might do so again – especially as there is so much uncertainty surrounding the UPC’s legal status.
Team UPC has been trying — by its very own admission (as noted by Wild a few days ago) — to keep the untenability of the UPC under the radar and out of sight for the above sites. That is not going to work for them anymore.
“This is, as one can tell, misuse of EPO funds; but then again, who would ever hold Battistelli accountable for budgetary abuses (many of which we have covered here before)?”Oddly enough, someone told Douglas Carswell (a Conservative who turned to UKIP to give them legitimacy and improve the tarnished ‘brand’ of the Leave campaign) that “EDM [Early Day Motion, which is going to happen soon is] to prevent ratification of the Unified Patent Court welcomed by Joff Wild [of] @IAM_magazine”
“Not welcomed,” Wild/IAM responded, just “noted. But it’s interesting the piece has been picked up by a senior UKIP spokesperson. Shows UPC is big issue for the party.”
We find it baffling that Some people out there think that after the EPO and its proxies had paid IAM to promote UPC (as they did, repeatedly in fact) they’ll suddenly bite the hand that feeds.
We don’t believe that the UPC will ever be ratified; even if it miraculously (probably by some nefarious means) gets ratified, after Brexit it’s very much uncertain that Britain can somehow remain in the UPC. The whole thing is an exercise in insanity.
“We don’t believe that the UPC will ever be ratified; even if it miraculously (probably by some nefarious means) gets ratified, after Brexit it’s very much uncertain that Britain can somehow remain in the UPC.”Earlier today the EPO wrote that “Poland joins the Federated European Patent Register” (just a minuscule page update), but remember that Poland is also a barrier to UPC (just like Spain, Germany, the UK and more, contrary to the misleading headline from IAM). The EPO does not like to tell the whole story; neither does IAM. Let’s deconstruct IAM’s headline, “With the UPC just two ratifications away, the anti-EU press and politicians in the UK finally make it an issue”; it’s not “just two ratifications away” (alternative facts), the media reporting the facts is not “anti-EU press” (or fake news), and it has been an issue for quite some time (we wrote hundreds of articles on the subject and politicians too occasionally spoke about it). FFII communicated with UKIP about it as distantly as months ago.
Throw aside the propaganda from IAM (whose editor is admittedly against Brexit) and be selective about sources of information because IAM is tainted by EPO and UPC money.
Speaking of tainted publications, we are surprised to see a complete halt (for about a month now) to UPC misinformation from Bristows at IP Kat; did the Kats finally realise that it was discrediting the blog? Or that becoming an echo/megaphone of Team UPC (Bristows UPC in this case) is harmful to their image? One comment, found earlier today, took note of it:
Looks like IPKat has been caught taking a “Kat Nap” on the UPC front, as some interesting developments have not been reported here.
For a start, the UK government has indicated that it will be placing before Parliament an “affirmative Order” (that is, a SI that must be approved) to allow the PPI for the UPC to have effect under UK law.
Second, ratification of the UPC has hit the tabloid headlines.
Looks like, if there is one, we could be in for an interesting debate in Parliament. Whilst the govt might try to stick to the line that the UPC is not an EU court, I am not sure that all Parliamentarians will appreciate the “fine distinction” (to borrow Kevin Mooney’s words) that this characterisation relies upon. The multiple references in the PPI to the EU (even including two references to EU law) could make this a bit of a tough sell!
Expect Team UPC to resort to dirty tricks; front groups like CIPA are already busy behind closed doors, trying to grease up politicians like Jo Johnson and lying to him about the expected impact of the UPC (the same old lies about benefits to SMEs). The FFII’s Benjamin Henrion, linking to this latest nonsense from UPC hopefuls, warns about the workarounds that Team UPC is attempting to exploit. “Hacking the UPC after the UK has signed,” he called it. Yes, that’s what they are trying to do with their ‘fluid’ documents that are only being shaped behind closed doors (or paywalls, or highly-tolled garden gates) by committees stuffed with wolves dressed up as sheep. █
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Summary: Battistelli lies about patent quality once again, incidentally on the very same day that serious leaks regarding patent quality got published (and need distracting from)
TODAY, Valentine’s Day, the EPO decided to repost/recycle black humour about patent quality. Odd choice of day. It’s not April 1st yet. Yesterday morning we published what we deem a fairly explosive leak in which even Battistelli's own staff (management) had debunked him on patent quality. On the same day the EPO published this co-called ‘blog’ by Battistelli, who is a terrible serial liar whose staff can never believe anymore. Today, a day later, the EPO promotes this ‘blog’, which says nothing new. It’s just a recycling of something rather old — something that we already covered. The EPO basically ‘googlebombed’ “patent quality” just a few weeks ago with a PR charade. Now Battistelli does a ‘blog’ about it and says:
But protecting quality is not enough. Our task, in line with both our reputation as a leader in this field – and our obligation to our users – is to continue to make constant improvements.
What reputation? The one he killed? Nowadays at the EPO, anything goes; patent quality has become farcical, as even leaks serve to reveal. Companies and sole inventors spend a fortune to just have an examiner or two spend an hour or two before issuing a determination. It’s unbelievable, yet that’s what Battistelli’s policies mandated and have come to require from staff (or else they get “disciplined” and/or dismissed). Is this just a small step away from the EPO as a registration office, as insiders already envision?
“Learn more about the conditions an invention has to meet in order to become a patent with this self-paced course,” the EPO wrote. Do these people need to learn about the self-paced (pardon the pun) examination too? A pace that’s induced by unreasonable demands from management and line managers? A pace that’s so ridiculously high that no proper examination/search can be carried out at all?
“Battistelli seems to be hellbent on destroying the EPO while perpetually lying about it. He doesn’t even seem to mind being widely viewed as a liar (also receiving 0% approval rating from both staff and stakeholders)”Ladas & Parry LLP wrote and published an article about “Poisonous Divisionals” today [1, 2] — a subject which we covered here before. It often seems like the only division of the Organisation which is capable of proper examination these days (thanks to being isolated from Battistelli, at least until 2014 when Battistelli attacked them too) is the group of appeal boards. They too seem to be going the way of the dodo (or Haar), thanks to Battistelli’s “production” insanity. By the time the entire Organisation is destroyed and examiners are made redundant Battistelli will have already left the building (possible still forever pursing the UPC, which rumours say he wishes to head). EPO whistleblowers are sorely needed right now. Battistelli seems to be hellbent on destroying the EPO while perpetually lying about it. He doesn’t even seem to mind being widely viewed as a liar (also receiving 0% approval rating from both staff and stakeholders). █
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Also a megaphone for patent trolls like Intellectual Ventures…
Summary: The lobbying against the interests of India (among other countries that reject patent maximalism) as seen in the trolls-funded IAM ‘magazine’
IT IS widely known and globally recognised that software patents are not valid in India. India is actually quite strict about it, unlike the EPO and USPTO.
One item of news that we covered the other night was the Chamber of Corporates' (CoC) 'ratings' for propaganda purposes. They are trying to shame countries that don’t do what US-based mega-corporations want them to do and IAM, not too shockingly, props up this propaganda in the piece “US corporates see mixed IP progress across Southeast Asian markets; TPP may make things worse”. Here is how it starts before it moves on to the Chamber’s so-called ‘ratings’:
IP Bridge CEO Shigeharu Yoshii told this blog in a recent interview that the improving IP infrastructure in the ASEAN countries has given his firm the confidence to pursue numerous IP-centric business opportunities in the region. In fact, the Japanese patent fund published an ‘Asia Strategy’ earlier this week whose first sentence was: “IP Bridge is casting its eyes towards ASEAN”. But the release of the US Chamber of Commerce’s latest IP index suggests that the views of large US corporates about IP developments in south-east Asia over the last year are decidedly mixed, while the Trans-Pacific Partnership’s (TPP) possible abandonment, in the wake of President Trump’s confirmation of the US’s withdrawal, will not could endanger some of the bright spots.
If you look only at the Chamber’s ratings for the patent environment, Singapore has remarkably edged ahead of the US due to continued questions about patentability in the latter.
Creative, which is based in Singapore, has become a creative patent troll; the legal chief (Anan Sivananthan) has just quit though. The company was trying to leverage a bunch of old patents because it’s unable to sell anything and in the process it attacked Android OEMs. It won’t be long before Creative’s patents are all expired and the company can just file for bankruptcy; “Dolby Digital AC3 US patent has expired,” Benjamin Henrion wrote the other day about another audio Luddite, saying that “Dolby threatened VLC devs http://is.gd/578wUP http://is.gd/B9jb0t http://is.gd/6mdgeK”
Is this the kind of future India would want to bring upon itself? Certainly not. India thrives in the area of software (many millions of IT workers) because it is safe to develop there, not despite lack of software patenting.
It has meanwhile emerged, based on another IAM “report”, that the patent office in India makes available a fast lane for the rich (similar to what the EPO does). We were not aware of this and here are the details:
Over the years the Indian Patent Office (IPO) has accumulated a huge backlog of pending patent applications. At present, the IPO is examining patent applications filed between May 2012 and July 2012 – that is, it is at least four years behind. The impact of this delay is clearly reflected in the stagnation in patent filings over the past four to five years and the large number of pending patent applications which have been abandoned by applicants. Until 2016 there was no straightforward way of expediting the examination of patent applications in India, but the patent rules have now been amended to allow this.
Under the amended rules, a request for expedited examination can be filed along with payment of the official fee, which is:
Rs60,000 for large entities;
Rs25,000 for small entities; and
Rs8,000 for individuals and start-ups.
This lack of neutrality in processing of applications means more profit opportunities for the Office and it is utterly ridiculous. Is India copying the very worst aspect of neo-liberal policies in the West? When did this horrible option creep in and why? █
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SUSE (or MicroFocus) won’t even tell customers when its systems are in fact compromised
Summary: The same old and very notorious behaviour we found in Novell persists at SUSE under MicroFocus leadership; security neglected and keeping up appearances more important than honesty
TECHRIGHTS wrote many thousands of articles about Novell. We know Novell extremely well and we have documented its terrible behaviour for over half a decade, well before we began focusing on the EPO for example. As we shall show later, in a separate post, Microsoft’s and Novell’s “IP Peace of Mind” is making a comeback (as of last night), but right now we wish to focus on the crack I first wrote about on Monday (it has since then generated some press coverage, e.g. [1-3] below).
“Remember that no evidence has been presented by SUSE and moreover the gross negligence here is a bad sign in general.”A lot of people still miss the key point. IDG even went ahead with a rather misleading headline, as did Softpedia; rather than state the actual news (that OpenSUSE got cracked) the title says or overstates the ‘damage control’ from SUSE, diverting attention to what was not affected rather than what was affected (a politician’s trick). We used to see lots of that kind of spin back in the Novell days and the 2 articles below, having sought comment from SUSE, give SUSE the benefit of the doubt here. Remember that no evidence has been presented by SUSE and moreover the gross negligence here is a bad sign in general. That’s just “faith-based” security. My article about it was so short that it was mostly a screenshot, yet we understand that further coverage is on its way. So let’s elaborate a little. “They were using an outdated version of WordPress and got zapped,” one person wrote to me after I had published my findings. “It was just the front-end, no code was touched.” But says who? SUSE? Can we believe them?
“Nobody has yet covered that issue as properly as we hoped (poor security practices at SUSE) and the fact that they COMPLETELY FAILED or refused to publicly acknowledge what had happened is a serious aspect of it.”Whatever caused the defacement, it shows that they lost control of their platform. They did get cracked. Softpedia reported that “openSUSE devs immediately restored the news.opensuse.org website from a recent backup” (so the back end too appears to have been compromised).
Nobody has yet covered that issue as properly as we hoped (poor security practices at SUSE) and the fact that they COMPLETELY FAILED or refused to publicly acknowledge what had happened is a serious aspect of it. We waited patiently to see if an announcement would be made by then, even a reassurance that users should not worry. But nothing came out! To this date (half a week later). They attempted to cover it up, which is BAD BAD BAD. For a so-called “Enterprise-Grade” thing which SUSE tries to market itself as (selling SLE*) this is a serious breach of trust. Who would trust SUSE now?
“If someone injected a back door inside SLED and SLES, SUSE would probably say not a thing, only belatedly removing it and then lying about the whole thing, just like Microsoft does.”3 news sites and my own site wrote about it, but not a single word has been uttered by SUSE. They know they got cracked and they are not telling anyone, except when journalists ask them for comment (and press them with evidence).
OpenSUSE has a history of security issues in its sites (see “openSUSE Forum Hacked; 79500 Users Data Compromised” from 2014). Where are the reporters who are willing to ask SUSE some tough questions? Don’t let this slide. If someone injected a back door inside SLED and SLES, SUSE would probably say not a thing, only belatedly removing it and then lying about the whole thing, just like Microsoft does. █
In the news:
Softpedia was informed by Dr. Roy Schestowitz that the openSUSE News (news.opensuse.org) website got defaced by Kurdish hacker MuhmadEmad on the day of February 6, 2017.
It would appear that the server where the news.opensuse.org website is hosted is isolated from the rest of openSUSE’s infrastructure, which means that the hacker did not have access to any contributor data, such as email and passwords, nor to the ISO images of the openSUSE Linux operating system.
We already talked with openSUSE Chairman Richard Brown, who confirms for Softpedia that the offered openSUSE downloads remain safe and consistent, and users should not worry about anything. The vigilant openSUSE devs immediately restored the news.opensuse.org website from a recent backup, so everything is operating normally at this time.
The openSUSE team acted quickly to restore the site. When I talked to Richard Brown, openSUSE chairman, he said that “the server that hosts ‘news.opensuse.org’ is isolated from the majority of openSUSE infrastructure by design, so there was no breach of any other part of openSUSEs infrastructure, especially our build, test and download systems. Our offered downloads remain safe and consistent and there was no breach of any openSUSE contributor data.”
The team is still investigating the reason for the breach so I don’t have much information. The site ran a WordPress install and it seems that WordPress was compromised.
This site is not managed by the SUSE or openSUSE team. It is handled by the IT team of MicroFocus. However, Brown said that SUSE management certainly doesn’t want any such incident to happen again and they are considering moving the site to the infrastructure managed by SUSE and openSUSE team.
In the latest Linux news, the news.opensuse.org got hacked and displayed “KurDish HaCk3rS WaS Here” for a while Monday and while the site has been restored, no comment on the hack has been issued. Elsewhere, Debian 9.0 has entered its final freeze in the last steps in preparations for release. FOSS Force has named their winner for top distro of 2016 and Swapnil Bhartiya shared his picks for the best for 2017. Blogger DarkDuck said MX-16 Xfce is “very close to the ideal” and Alwan Rosyidi found Solus OS is giving Elementary OS a run for its money. Phoronix.com’s Michael Larabel explained why he uses Fedora and Jeremy Garcia announced the winners of the 2016 LinuxQuestions.org Members Choice Awards.
openSUSE’s news portal was compromised Monday by a hacker or group of hackers called MuhmadEmad, via the message left in its place. A Kurdish flag with the message “HaCkeD by MuhmadEmad – KurDish HaCk3rS WaS Here” was displayed for hours before it was taken down and the site’s content restored. Roy Schestowitz has a screen capture and said that openSUSE has not yet publicly acknowledged the hack. Swapnil Bhartiya spoke to Richard Brown, openSUSE chairman, who said that site was isolated from most SUSE infrastructure, especially the distribution code. There was no breach of any contributor data either. The site in question is run by MicroFocus, but all are investigating to make sure it’s an isolated incident.
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The bad news keeps coming in faster than we’re above to cover these
Let’s talk about bicycles again?
Summary: By using “Russia” as a distraction (recycled old news) and refusing to even respond to a highly critical survey, in our humble assessment the EPO hopes that reporters won’t pay attention to what really happens at the Office
IN THE coming days we shall write a lot about the latest UPC lies. Yes, there’s still plenty of fake news and alternative facts out there. The UPC is for software patents and for patent trolls; it’s certainly not for SMEs.
Currently, thanks to the appeal boards, the EPO is still somewhat limited in its ability to grant software patents. As even Bastian Best, the loudest European proponent of software patents, has just put it, “[m]aking software quicker is not patentable [...] since the EPO Board of Appeal 3.5.06 had to decide whether the reduction of the execution time of a computer-implemented method is a technical effect and thus potentially patentable.”
We have enormous respect for the work of the Boards of Appeal and it hardly surprises anyone that Battistelli attacks them, not just their independence but also their staff. Battistelli has patent maximalism in mind and he wants them replaced by UPC courts, which rumours say he wishes to later preside over.
The EPO is meanwhile distracting from all the negative publicity (we wrote half a dozen articles about the EPO yesterday alone). Today it ended up reannouncing or recycling old news because it’s still rogue and failing and there is nothing new to tell the public. More patent maximalism and more litigation got promoted under the headline “EPO launches Patent Prosecution Highway pilot with Russian patent office” (warning:
epo.org link). To quote:
“We’re pleased to be able to launch this programme with Rospatent,” said EPO President Benoît Battistelli. “The fast-track treatment will enable companies and inventors from Europe and Russia to obtain patents more quickly and efficiently, boosting business and innovation in both our regions.”
This is not news, it’s merely a distraction from real news (more on that later tonight).
“Such cynicism,” one person wrote last night in relation to Battistelli’s attacks on staff. “I can’t really blame you, but I won’t respond other than to say that I will certainly be doing what I can.”
To rescue the EPO from the tyrant, Battistelli, this person is eager to be “doing what I can” and we invite readers to send us information as we very much depend on information. Battistelli disseminates lies all the time and tries hard to prevent information from reaching reporters; fear and intimidation tactics are routinely used, with even innocent scapegoats to make an example of.
“You call it “cynicism”,” responded a person to the above, “I call it realism. But at least we now know thanks to Techrights that “the methods used by the EPO’s Investigative Unit compare favourably with Congo-standards.””
We wrote about that last night. The EPO is a horrifying place these days. █
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Self-serving front groups of the patent maximalists want more patent chaos
Summary: The patent microcosm is racing to salvage that dying old system which yielded many thousands of lawsuits per year, many of which were initiated by patent trolls and were frivolous by intention (but focusing on small companies that cannot afford legal defense)
NOW that advocates (profiteers) of software patents are in a state of disarray (ad hominem attacks as the last resort) we would like to draw some attention to various new bits that highlight their tactics.
David Boundy of Cambridge Technology Law LLC, for example, is taking shots at PTAB (yesterday’s guest post at Patently-O) and milking Cuozzo to challenge the status quo of restrictions against software patents. To quote the conclusions:
The full paper gives a number of other examples of questions that come out differently depending on whether they’re argued as patent law issues or administrative law issues. There are many differences between the powers of an Article III court and of an agency tribunal, differences between appellate review of an Article III court vs. judicial review of an agency, differences in the arguments that an appellant and appellee can raise, and differences in limits on raising new issues on appeal. Unfortunately, Cuozzo’s brief did not exploit those differences or cite the applicable administrative law.
The key take-away is that almost every PTAB proceeding and appeal presents a “target rich environment” of administrative law issues. Teams that include administrative law expertise will successfully exploit many opportunities that are invisible to teams without that expertise.
Because of internal tensions in the Cuozzo decision, many issues remain to be decided by the Federal Circuit, and will be decided differently depending on how well parties match their argument turf to courts’ choice of decision turf.
The Cuozzo patent case was covered here many times before. See for example:
Yesterday we wrote about how IBM (through IPO as a front group) lobbies for software patents and at around the same time we also became aware of AIPLA, PhRMA, and ABA doing something similar. As MIP put it a few days ago: “The American Intellectual Property Association (AIPLA), Pharmaceutical Research and Manufacturers of America (PhRMA) and the American Bar Association (ABA) each responded to the USPTO’s review process with remarks detailing the impact of decisions Alice and Mayo has had on their respective members and industries.”
The problem is, these front groups don’t respresent ordinary businesses. They represent the patent microcosm and large corporations. These are naturally patent maximalists, who profit from people getting sued over alleged infringement of patents (many cannot even afford going to court to demonstrate their innocence). The above groups don’t want patent scope to be narrowed; to them, the more patents, the merrier. The USPTO will hopefully not be foolish enough to overlook that simple fact. Alongside the USPTO, PTAB is thankfully crushing software patents and other patents on abstract concepts like business “methods”. See new blog posts such as “COVERED BUSINESS METHODS PATENTS — NOT SO BROAD!” or “The Challenges of Protecting and Commercialising IP in Casino Games”. Everyone with some common sense can agree that patents on thoughts (or thought process) and patents on games are truly outrageous. Strategies are not something that should be monopolised.
To quote something more sane, for a change, here is EFF poking fun at the latest “Stupid Patent of the Month” (which is a software patent, as usual). To quote:
Song lyrics are some of the most searched-for topics on the Internet. This has lead to fierce competition among lyrics sites. If you scroll to the bottom of one of these websites, you’ll see the claim: “Song discussions is protected by U.S. Patent No. 9,401,941.” We are honoring this “song discussions” patent as January’s Stupid Patent of the Month.
The patent (we’ll call it the ’941 Patent) is owned by CBS Interactive and discloses a “computer-implemented system” for “processing interactions with song lyrics.” It explains that other websites display lyrics in a “static form” and suggests there is a “lack of mechanisms for increasing the engagement of users with song lyrics.” The patent suggests allowing users to interact with lyrics by allowing them to “select a segment,” displaying a “menu of options,” and allowing the user to enter an “interpretation of the selected line.”
The patent dates back to an application filed in February 2011. Although it is 23 columns long, in our view the patent does not describe any software or Internet technology that was remotely new or innovative at that time. Rather, it describes common and mundane features, such as a “menu of options,” “user-inputted text” and a “user interaction database,” and applies these features to a lyrics website. That should not be enough to get a patent.
The EFF has done some reasonably effective advocacy against patent trolls recently. Sometimes it even speaks explicitly about (and against) software patents. Together with TechDirt they have been publishing their series of “Stupid Patent of the Month”, even in the face of legal threats (and action) against both sites. As a reminder, one "Stupid" patenter sued the EFF, one charlatan who claims that he invented (and decades later patented) E-mail sued TechDirt (the EFF is defending TechDirt in this case), and that same charlatan threatened me too. █
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Summary: In spite of the gradual death of software patents, those who profit from them maintain the illusion that everything is alright, IBM hoard them and attacks with them, law firms mislead small and vulnerable businesses to entice them into these worthless ‘assets’
A LOT of time has passed since we last covered the USPTO, but it doesn’t mean that it’s all good news. The other day, for example, we warned that a terrible person, Randall Rader, wants to become the Director of the USPTO (still a self-serving hopeful, in spite of the widely-covered scandals) and software patents, which have been stubbornly pushed forward by Mr. Rader, are now dying, more so — or a lot faster — since he got the boot (or resigned in disgrace from CAFC).
What’s Up is Down?
On a couple of occasions in recent days the article “Software Patents Get Struck Down After Alice” got bumped up. To quote one copy of this new article:
Many software-oriented patents are being struck down as a result of Alice and Section 101. Some people say this leaves legal departments with more budgets to sue competitors more than they have in the past.
This is bizarre ‘logic’ and facts do not support it. First of all, the demise of software patents has led to far fewer lawsuits, as has been repeatedly proven by several different data sources (we covered these). Secondly, if your existing patents (never mind new ones that are harder to be granted) are less potent, what is the point or motivation for suing?
One large firm that continues to be aggressive with software patents is IBM. It not only applies for a lot of patents but it also attacks with them (by “attack” we mean suing small rivals that can barely defend themselves, unlike the patent microcosm which describes invalidation of bogus patents as an “attack” — inverting the narrative).
As we noted here a month ago, IBM is now cloudwashing all sorts of dubious patents (trying to pass them off as novel using buzzwords like “cloud” — a word which in itself does not make them eligible). IBM is basically a thug company; it’s a company that collects these (hoarding) for the purpose of litigation and shakedown in bulk (Microsoft does the same thing and targets vulnerable companies like TomTom amid deep financial issues). IAM, which fancies litigation and bullying (proudly so), called it “Big Blue’s new groove” in its latest issue, but we just call it anything but “groove” or groovy. It’s despicable and it makes IBM look fiendish.
Citing the Gartner Group (a dubious firm), the following new article mentions patent trolls but calls them “NPEs”, just as it cloudwashes software patents. Have a look:
Cloud Computing: Software Patent Claims and the Risks to Service Availability
As the public cloud services market continues to mature and grow – up from $178bn in 2015 to $209bn in 2016 according to research company Gartner – the concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation. At a time when data security and privacy risks are front of mind for cloud service providers (CSPs) and their users, the intellectual property (IP) risks to cloud service availability posed by NPE patent claims are rising up the business agenda.
NPEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold. NPEs are uniquely well placed to monetise their patents at each stage of the litigation cycle. They have access to capital and all necessary forensic and legal resources; and an NPE doesn’t practise its patents so is immune to a counterclaim that a defendant might otherwise be able to bring against a competitor, or a cross-licence that the defendant could otherwise offer.
The term “cloud” is meaningless rubbish that alludes to particular server arrangements. It’s not a growing market; not necessarily; it’s just an exercise in rebranding and liars for hire (Gartner) exploit this kind of nonsense to make their false predictions a self-fulfilling prophecy (by merely redefining what “cloud” means as they go along). The second part alludes to “cross-licence”; this is what IBM is trying to accomplish, with a money flow going into IBM’s coffers without them lifting a finger. One might therefore start to describe IBM as somewhat of a large patent troll, akin in fact to Microsoft’s (more on that in a separate post, scheduled for later today).
Insulting the Intelligence of SMEs
It is troubling to see that IBM’s patent aggression is making a comeback (it’s not entirely new) and it’s saddening to see that using all sorts of buzzwords attorneys and their clients are hoping to receive new software patents. Marks & Clerk, a proponent of software patents (obviously, as they profit from it!), recently said that the EPO now makes it easier to get software patents (than at the USPTO). The other day the firm advised small companies to pursue patents and it alluded even to software patents. To quote the relevant part (with our remarks in square brackets]: “An invention doesn’t even need to be a product to be considered patentable [in other words, a troll too can pursue patents]. Many people think that software is unpatentable. That is incorrect [depends where]. If software achieves a technical effect and is new and inventive, it is patentable. The most famous example of a software patent is the patent that covers Google’s “Page Rank” algorithm (i.e. the algorithm which powers Google’s search engine and which transformed the company into a tech unicorn) [but that’s an old patent predating Alice]. You or your business might have developed exciting software which does something that no one else has thought of. A patent might be just what’s needed to convince investors that your concept is the “next big thing” or alternatively provide you with an asset that can be sold or licenced for additional revenue [or waste of money, paid to lawyers at Marks & Clerk who cannot even win a case over software patents].”
That’s putting aside the fact that a small (practicing) firm’s chances of successfully suing a giant like IBM are slim, unless getting sued by IBM (in retaliation) is something it thinks it can afford. █
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