Jesper Kongstad. Photo from the Nordic Patent Institute.
Summary: Amid unrest and suspicion of misconduct in the EPO’s management (ongoing for months if not years), Transparency International steps in, but the EPO’s management completely ignores Transparency International, refusing to collaborate; the PR chief of the EPO is apparently being pushed out in the mean time
KONGSTAD was the subject of our coverage before. We mentioned him in previous parts of exclusive EPO scandal stories. Mr Jesper Kongstad had already been mentioned in several past posts because he’s suspected to have played a role in an inadequate appointment, potentially motivated by nepotism. The suspicion is not a one-man whisper campaign. Staff at the EPO too seems to be concerned. The EPO is not new to scandals.
As we showed some weeks ago, the EPO’s management had oversight dismantled (related original documents are to be found here) and later on we were told about a letter to Kongstad from Cobus de Swardtz
[PDF], the Managing Director of Transparency International (TI), which calls itself a “global coalition against corruption”.
There was a lot more to come, but we chose to sit aside for a while, letting things take their natural course without publicising anything in particular. The silence needed to be broken when the letter was circulated internally. The following document was published some weeks ago, which basically means that its contents are freely available to quite a lot of people. We too received a copy. At the time, Transparency International had already waited a few weeks (after it sent a letter to the Chairman of the Administrative Council) and the Administrative Council did not respond. As far as we know, Kongstad never responded. Administrative Council seems to prefer to just keep quiet about it. The interesting thing is that Transparency International was invited by the EPO staff representatives to examine the governance of the EPO. This is public knowledge. Kongstad must either be very arrogant or he has something to hide.
In the future, in order to facilitate public pressure on the Administrative Council, we are going to reveal for our European readers some contact details so that they contact their national representatives on the Administrative Council in relation to the various issues concerning EPO governance. Details of the national delegates can be found in the EPO’s Web site. They are mostly the heads of national patent offices who are subject to instructions from the competent government Ministry. Any kind of public campaign should also target the corresponding government Ministries and/or Prime Ministers as that is where the buck really stops at a national level.
The following is a portion from a letter we got hold of. The letter provides some background and contains references:
EPO & Transparency
Transparency International (TI) critically examines how national political systems all around the world address corruption risks and foster integrity. They publish and encourage best practice in integrity and expose the effects of conflicts of interest and lack of transparency. Recently, TI also assessed how the EU institutions deal with ethics, how they ensure transparency and accountability, and how they ultimately prevent corruption. The Central Staff Committee suggested to the EPO Administrative Council that a similar study be done for the EPO. TI has signaled its interest in the matter. But until now the Council cloaks itself in silence.
The governance of the EPO
The EPO still has the governance system that it was created with. Oversight is in the hands of the Administrative Council. The Heads of the national delegations in the Administrative Council are almost without exception heads of national patent offices. The delegates are in a situation of conflict of interests since the EPO is at the same time the main competitor and a major source of income for the national patent offices. The meetings of the Administrative Council and the majority of its documents are not open to the public. Maybe significantly the Office has started to publish the salaries of its staff, but the salary and benefits of the President are not disclosed, not even to the Administrative Council.
The European Patent Organisation sets its own financial regulations, independent from national or European law1. Adherence to these rules is controlled by a Board of Auditors of consisting of three individuals who are appointed by and reporting to the Administrative Council, on 5-year renewable contracts. Their reports (CA/20/yy) tend to be rather mild and the (few) critical comments are routinely ignored by the Office. The most recently appointed auditor is a close co-worker of Mr Battistelli from his time in the French patent office. Maybe not surprisingly, the most recent Audit report (CA/20/14) is even milder than usual. An attempt by the Brimelow administration to strengthen the audit system through the creation of an Audit Committee2 was supported by Mr Battistelli in his function of Chairman of the Council, but annulled by him as soon as he became President of the Office3. Note that the Organisation’s immunity blocks third parties from effectively challenging its financial decisions. The Staff Committee challenged the decision of the Office to use a direct placement procedure in favour of an external consultancy. The Board of Auditors even agreed that an invitation to tender would have been justified. Even if clearly justified, the complaint was recently dismissed by ILO-AT as irreceivable4.
1 Article 50 EPC
2 Bossung, Otto. “The Return of European Patent Law in the European Union”.
IIC 27 (3/1996). Retrieved June 30, 2012.
3 CA/140/08 «Audit Committee: possible models», resp. CA/55/11, «Disbanding the audit committee»
Immunity, or impunity?
The lack of transparency and the lack of truly independent financial and political control would seem to pose a serious risk for the integrity of the EPO and consequently for the European patent system. This is particularly worrying at a time that the EPO is to be given the additional responsibilities for the Unitary Patent. The staff representation has repeatedly requested a discussion on, and a modernisation of, the governance of the Organisation5, thus far to no avail.
Transparency International is a global civil society organization that aims at stopping corruption and promoting transparency, accountability and integrity at all levels and across all sectors of society6. TI has developed a methodology to assess how well national governments ensure the integrity of their institutions. The beauty of the methodology is that it is systemic. It does not rely on leaks and/or scandals but assesses whether the necessary legislation and mechanisms are in place to prevent, detect and combat corruption, and abuse of power. They check how well these mechanisms function in practice. An adapted version of this methodology has been used to assess various EU institutions. For the EU institutions Transparency International found that the EU has done a lot to put their house in order in recent years, but that strong foundations are being undermined by complex rules, complacency, and a lack of follow-up7.
What is the Council waiting for?
With a letter dated 6 June 20148 the Central Staff Committee (CSC) again raised the issue with the Chairman of the Administrative Council. The CSC drew the attention of the Council to the report of Transparency International on the EU Institutions and suggested that a similar study be done for the EPO. We note that the EU institutions cooperated with the Transparency study. Transparency International has reacted to the letter of the CSC9. It has offered its support and experience in promoting a culture of integrity and good governance in the EPOrg. Just recently Transparency International sent a reminder of its letter to the Council.
4 ILO-AT 3343
5 CA/93/07 «Governance of the EPO: a staff perspective»,
9 see annex
The Transparency International story has been reported via another channel. The investigation was ignored. To quote WIPR: “A staff committee at the European Patent Office (EPO) has said its requests for the office’s governance to be assessed by a corruption specialist have been ignored, WIPR can reveal.
“The office’s central staff committee (CSC) said it had recommended to its supervisory body that anti-corruption organisation Transparency International (TI) carry out a study on the everyday running of the office, to ensure accountability.
“The CSC said its own attempts at convincing the Administrative Council (AC) were ignored, and has revealed that a letter sent directly to AC chairman Jesper Kongstad from TI has also yet to receive a response.
“TI’s letter, seen by WIPR, was sent in July this year and said the EPO’s governance has at times come under criticism.”
That basically sums up how the EPO’s management behaves; the modus operandi is to ignore or destroy any regulatory apparatus or oversight, External ones are ignored, internal ones are brutally (but almost silently) squashed.
There is probably no harm in waiting for while as there may be a follow-up by Transparency International. For the time being the situation is clear; an external audit is being ignored by the Administrative Council. Jesper Kongstad doesn’t appear to have made any response.
“For the time being the situation is clear; an external audit is being ignored by the Administrative Council.”Curiously enough, as also reported by WIPR just a few weeks later, there was a “[m]ysterious departure for EPO communications chief” (i.e. PR). “According to sources,” says the article, “a recently uncovered trademark application at the German Patent and Trademark Office in Schröder’s name bearing the words “f**k the US” may have been a contributing factor.”
A source tells us a slightly different story however. Some believe that Battistelli is planning to maneuver another French “crony” (Vincent Bénard, formerly of Airbus) into this key PR position, meaning that the previous occupant of the position, Oswald Schroeder, had to be “eliminated”. Whether he was set up or fell into a trap due to his own stupidity one cannot say for sure. “Oswald Schröder left “by mutual consent” on October 10,” says the article. It seems like he got pushed out. One just need to put some of the details found within the article together.
Battistelli’s regime can now tighten its grip and surround itself with more cronies that can perhaps push out challenges, such as Transparency International’s. █
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Summary: Jesper Kongstad, Benoît Battistelli, and Zeljko Topić are uncomfortably close personally and professionally, so suspicions arise that nepotism and protectionism play a negative role that negatively affects the European public
THE scandals at the EPO are numerous and longstanding. Oversight is minimal if not inexistent and there is lots to be worried about. In this part of the series we wish to focus on Mr Jesper Kongstad. He is not quite what it seems on the surface. As we are going to show in later parts (weeks ahead), Kongstad became a target of interest in an ongoing investigation from the outside (Battistelli has already eliminated inside overnight).
“Oversight is minimal if not inexistent and there is lots to be worried about.”The Kongstad situation will today be mentioned in brief. It will be covered without yet mentioning that investigation (intentionally unnamed) as there are some ongoing developments that would be better off covered when it’s all finished and concluded. There is no longer a problem in mentioning the Kongstad situation as the information about earlier links to the Croatian SIPO is publicly accessible. Kongstad’s close links to Battistelli have also been mentioned on the IPKat blog which said three months ago: “Back in 2010, when Benoît Battistelli was first appointed as President of the European Patent Office (EPO), there was a certain lack of transparency in the election process. As a blog post by IAM Magazine reported at the time, mischievous rumours quickly emerged from the EPO staff union newsletter (PDF link) to fill the vacuum of information regarding the circumstances of Mr Battistelli’s appointment.
“Battistelli’s original contract was negotiated in secret with Mr Jesper Kongstad, the then Acting (and now actual) Chairman of the Administrative Council. It was rumoured, intriguingly, that the contract specified that Mr B’s place of employment was the Parisian suburb of Saint Germain-en-Laye (the town of which he was deputy major, the spiritual home of football team Paris Saint-Germain and the birthplace of Louis XIV, the Sun-King), and that it contained an annex granting him full pension rights at the end of his five-year contract. While Merpel, whose nine lives invariably make any sort of pension annuity unaffordable since the pension must last so much longer than expected, can see the attraction of having full pension rights after a relatively short employment stint, she wonders what advantage or reason could lie behind deeming Mr Battistelli’s place of employment to be 700 km west of where his office is actually located, if there is any substance behind that improbable rumour. The union newsletter, SUEPO Informs, also reported that Mr Kongstad refused to show the final contract negotiated with Mr Battistelli to the Administrative Council (‘AC’), despite repeated requests by its apparently quite powerless members.”
The EPO’s staff representatives have initiated contact with investigators by now. This was mentioned very briefly in the print version of the article published in “Die Welt” on the 24th of August (entitled “Stress at the Munich Kremlin”). We covered this before, so it’s not completely secret that outside investigators may be starting to show an interest in the EPO’s mysterious conduct (or misconduct).
Our sources have more to say about this. Their research indicates that the EPO President Benoît Battistelli, formerly the Director of the French INPI, and the Chairman of the Administrative Council, Jesper Kongstad, who is the current Director of the Danish Patent and Trademark Office, have long-standing professional connections with Topić. This gives rise to the suspicion that Battistelli and Kongstad are putting professional and/or personal loyalties before the public interest in this matter and are colluding to prevent any independent investigation of Topić’s appointment.
The 2009 annual report of the Croatian State Intellectual Property Office records details of a study visit of senior Croatian officials of the authorities for the enforcement of intellectual property rights to the partner Danish institutions in Copenhagen and a return visit by Danish officials to the partner Croatian institutions in Zagreb. It also includes this mention of a “twinning project” between the Danish Patent and Trademark Office and the Croatia SIPO which took place in the context of a European Union Assistance Project
The Web site of the Danish PTO confirms the existence of the Croatia twinning project. The Danish PTO website also provides evidence of co-operation between the Danish PTO and the Croatian SIPO going back as far as 2004.
A further spicy detail in this saga is the fact that Topić’s former deputy at the Croatian SIPO, Ms. Romana Matanovac Vučković, has been working as a consultant on an EU-funded project co-administered by the Danish PTO.
According to her personal Web site: “Since 2013, she has been cooperating with Pohl Consulting & Associates GmbH from Berlin and the Danish Patent and Trademark Office as a consultant in the project of legal assistance in the field of intellectual property at Kosovo, also funded by the European Union.”
The EU Kosovo project has a budget of ca. 1 million Euros [1, 2]. Ms. Matanovac Vučković was previously a deputy Director of the Croatian SIPO under Topić (ca. 2005-2008). During that period, she was also Croatia’s “alternate representative” to the EPO’s Administrative Council as confirmed by the following extract from the EPO Official Journal 2008: “During her time at the Croatian SIPO, Ms. Matanovac Vučković acted as head of an official body under the SIPO’s remit which was called the “Council of Experts on Remunerations for Copyright and Related Rights”. This appointment was controversial in Croatia and it was alleged to be unlawful due to a “conflict of interest” because Ms. Matanovac Vučković had previous worked for the Croatian Composers’ Society (HDS) and the private company “Emporion” which was involved in managing musical royalty payments. According to informed sources, her previous employment should have disqualified her from an appointment to the Council of Experts. It was claimed in the Croatian press that Ms. Matanovac Vučković only secured the position due to her connections with the Croatian President Ivo Josipović.”
Sources (in Croatian) can be found here and the English translation was published by us last week.
More information is to follow next week, reinforcing the allegation that the EPO’s abuse goes all the way to the very top. █
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Summary: It has become increasingly official that software patents are being weakened in the United States’ USPTO as well as the courts; will software leaders such as India and Europe stop trying to imitate the old USPTO?
YESTERDAY we wrote about the measurably huge decline in the number of patent lawsuits in the US. There is some more good news in the form of figures.
Andrea Peterson, writing for the Bezos-owned Washington Post, says that “Software patent approval rates sink in months following Supreme Court case”. The patent lawyers, understandably, are stressed about this. They spent so much time attacking the decision or trying to characterise it as anything but a game changer. We gave dozens of examples at the middle of this year. Here again are a couple of patent lawyers using a straw man: “it is doubtful that all software, computer-implemented and business method inventions will be affected by Alice. For example, software inventions that improve the functioning of a computer, or improve other technical fields, may still be eligible for patent protection. Still, while the full effect of Alice is yet to be determined, entities seeking to patent inventions directed to software, computer implementations, and business methods, need to ensure that inventions are sufficiently innovative and directed to concrete ideas.”
“The patent lawyers, understandably, are stressed about this.”Mike Masnick already caught the news from the morning and wrote: “The impact of the Supreme Court’s ruling in Alice v. CLS Bank continues to reverberate around the industry. We’ve already noted that courts have been rapidly invalidating a bunch of patents, and that related lawsuits appear to be dropping rapidly as well. And, now, a new analysis from a (pro-patent) law firm suggests that the US Patent Office is rejecting a lot more software patents as well.”
Software superpower India does not have software patents, but after meeting executives from Microsoft (which has enormous influence over the Indian government), Amazon, Facebook and other patent aggressors it looks like things may change. According to this article about Modi’s trip to the US:
The US-India Joint Statement signed during Modi’s visit to the US has opened the doors for two Indian laws that have been passed by the Indian Parliament. One is on patents – the Indian Patents Act – that contain some measures to keep drug prices low for the people, which the US and its pharmaceutical industries have been trying to change for the last decade. The second is on nuclear liability, again anathema to the US nuclear industry.
Here is a little something about privacy too: “The Modi visit is also important for what he did not raise with the US government. There was no mention of the NSA spying in India, which included the BJP as well. There were six political entities in the world that the NSA spied upon officially, and one of them was the BJP. India is also one of the 33 countries that have signed a 3rd Party agreement with NSA giving it access to our telecommunications and Internet infrastructure. That means India not only allowed NSA to spy on any entity or any person in India but also provided them the physical access required for such spying. Modi not only did not utter one word of protest against such spying against his own party, but also made clear his intention to continue such relationship under Defence and Homeland Security clauses of the Joint Statement.”
It is sad to say this, but India seems to be assimilating to the US system when it comes to patents and also when it comes to militarisation and surveillance.
As we showed before, the corrupt EPO is bringing Europe closer into alignment with the corporations-run USPTO while the USPTO itself is moving away from software patents these days. We covered this aspect of the situation several weeks ago.
Our next post will focus on some more scandals from the EPO. █
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Summary: How the European Patent Office facilitated the inclusion of previously-connected elements that are best known for misconduct and dirty politics
WHEN we last wrote about the Battistelli-run EPO we provided evidence to show that the EPO had gone rogue. But just how rogue has it gotten? Let us recall who makes up the management in the EPO and look at some professional (or rather unprofessional) background, as we did in the first part of this long series.
We believe that readers will find the appended text useful, especially now that an English version exist and people can be brought up to date based on the original sources. First, here is some text prepared to summarise developments which occurred over the last year or so. Original (Croatian language) text is available online, but here is the English translation:
How Josipović protected Vojković:
Associate of Josipović who exercised supervisory control over HDS-ZAMP* on behalf of the Government was a former employee of ZAMP and EMPORION
The research associate of Ivo Josipović and former employee of HDS-ZAMP, Romana Matanovac Vučković, omitted information from her curriculum vitae concerning her employment in the company Emporion Ltd., owned by Marko Vojković, a friend of Josipović. In an interview with Index journalist, she confirmed that she omitted this information because she considered it to be irrelevant. It turns out, however, that it is precisely this information which is of crucial importance because it confirms the claims of Vesna Stilin, former employee of the State Intellectual Property Office (SIPO), that the appointment of Romana Matanovac Vučković to the position of head of the Council of Experts for Copyright and Related Rights was illegal.
The rules which applied to others did not apply to Josipović’s associate, Romana Matanovac Vučković
To remind our readers, Romana Matanovac Vučković was appointed to the aforementioned position in 2005, after leaving HDS-ZAMP, while in the meantime she worked at the Zagreb School of Law. According to the Law on Copyright and Related Rights an independent expert should be appointed to the position of head of the Council: “The Council of Experts is not a lobbying body to which representatives of interested parties or government bodies may be appointed, but only and exclusively independent experts.”
However, Romana Matanovac Vučković was given this position despite being a former employee of HDSZAMP and Emporion, which, at that particular moment, was under inspection by the Ministry of Finance and the SIPO because of suspicious payments.
In a letter from whistleblower Vesna Stilin, it was noted that prior to the appointment being made, in response to the publication of the vacancy notice for the position being the then director of HDS-ZAMP, Tomislav Radočaj, and Mirjana Puškarić, an official of the SIPO, submitted their applications.
What proved to be a stumbling-block for Tomislav Radočaj, did not prevent the appointment of Romana Matanovac Vučković.
In a petition which Stilin sent to the Ministry of Finance, the Office of the President, the Prime Minister and the Minister of Science this week, it is claimed that the SIPO turned a blind eye to this illegal practice. When warned about the impermissibility of Romana Matanovac Vučković’s appointment to the Council of Experts , the sole inspector in the SIPO responded laconically: “She is a special case!”
In her petition to the highest state officials Vesna Stilin, the former assistant director and one of the founders of the Croatian State Intellectual Property Office claims that “the Director General of the SIPO [i.e. Topić] misrepresented my aforementioned warning [about the Council of Experts appointment] as ‘seriously disturbed relations with the Deputy Director’ [i.e. Romana Matanovac Vučković]”.
French expert concluded that Matanovac must resign
It is noted that the appointment of Romana Matanovac Vučković was the subject of repeated discussions within the EU CARDS project for Copyright and Related Rights and the conclusion of Patrick Boiron, chief advisor for the aforementioned project, was that Romana Matanovac Vučković should resign as head of the Council of Experts because of the specified legal prohibitions, and in particular in view of the fact that she had once worked for HDS-ZAMP whose fee list is based on the Council’s advice, all of which raised reasonable doubt about her impartiality.
According to Vesna Stilin, Boiron argued that such an appointment would not have been accepted in France because in the case of Romana Matanovac Vučković not only was there was one legitimate reason for objection, but two [i.e. previous employment at both HDS-ZAMP and Emporion]. Apart from breaking the law by appointing an official subject to a conflict of interest, the SIPO turned a deaf ear to the suggestions from the EU to hire an increased number of official/inspectors (at least 5) for the Department of Copyright and Related Rights. Only one inspector was appointed, which according to the opinion of Vesna Stilin, continued the illegal practices concerning the appointment of SIPO officials. It seems that such appointments were intended to ensure that the supervision of HDS-ZAMP was kept under the control of a very small circle of people.
How did ZAMP obtain official documents?
In order to demonstrate the problematic nature of the connection between the SIPO and HDS-ZAMP, Vesna Stilin drew attention to the issue of illegal leaking of official data from the SIPO to ZAMP. In her petition she stated that a confidential SIPO letter relating to the “Emporion case” was recently published on HDS-ZAMP website as proof that business cooperation between ZAMP and EMPORION was legal. Vesna Stilin warns that this was a violation of the law because “HDS-ZAMP was not supposed to have been given this official letter at all!”
She recalls that “the correspondence between the two government bodies, the Ministry of Finance and the SIPO, according to which each conducts the inspection of HDS-ZAMP within its area of responsibility, should not be available to HDS-ZAMP, especially if one of the government institutions has expressed its doubts about operations of the association in question and requested the verification of their suspicions by another state institution.”
“I was bribed!”
In her petition to the Ministry of Finance, Vesna Stilin also expresses concerns about the possible corruption of the staff of the SIPO. She describes one example of this. In June 2006, during the visit of a Macedonian delegation to the SIPO in connection with HDS-ZAMP, in response to a question from the head of the Macedonian delegation Olga Trajkovska to the sole Office inspector asking “how was her cooperation with ZAMP”, the SIPO official gave the following cynical reply:
“Excellent, I was bribed and we have great cooperation!”, the petition states.
Vesna Stilin noted that this statement was uttered in front of several members of the Macedonian and Croatian delegations, so she informed the Director General of SIPO [i.e. Topić] about it, as well as the State Attorney’s Office and Prime Minister Jadranka Kosor. Despite the fact that she has written on more than one occasion to the Ministry of Finance, the State Attorney’s Office, President Josipović and Prime Minister Milanović, Vesna Stilin has received no response to her letters.
Željko Topić remains in office as Director General of the SIPO despite the fact that he was appointed as part of the HDZ contingent [i.e. under the previous HDZ government of Ivo Sanader], while Romana Matanovac Vučković has left her position at the SIPO in the meantime. Today she works as assistant professor at the Faculty of Law in Zagreb at the Department headed by Tatjana Josipović, the wife of the Croatian President.
* Croatian: Hrvatsko Društvo Skladatelja – Zaštita Muzičkih Autorskih Prava HDS-ZAMP (Croatian Composers’ Society – Protection of Musical Authors’ Rights) is a “collecting society”, i.e. a professional service that deals with the exercise and protection of music copyrights and royalty payments on the basis of the approval of the State Intellectual Property Office and in line with the Copyright Act.
In October 2013 the Croatian NGO Juris Protecta made a submission to the EPO’s Administrative Council (AC):
Ladies and Gentlemen,
Members the EPO Administrative Council
and Staff of the EPO,
As students of the “Arbeits- und Wirtschaftswissenschaftlichen Aufbaustudiums” (AWA) at the Technical University of Munich during the 1970s we followed the construction of the headquarters of the European Patent Office with respect and pride. This building was intended to be centre for the protection of intellectual property in Europe. Many of my colleagues subsequently became patent attorneys. Unfortunately, on the occasion of the 40th anniversary of the signature of the European Patent Convention, we are forced to conclude that our initial admiration no longer seems to be justified in view of the current composition of the senior management team of that institution.
It is our sincere belief that least one of the members of the senior management team does not properly belong there. That person is the former director of the Croatian Patent Office in Zagreb, Mr. Zeljko Topic. Unfortunately, it is common practice in Croatia that the leading positions in the state administration are reserved for people who have close links with the regime and connections to the mafia-like vested interest lobbies and it was in this manner that Mr. Topic, who comes from the provincial town of Banja Luka in Bosnia, began his career at the Patent Office in Zagreb.
Mrs. Vesna Stilin, a career civil servant, worked in the Croatian Patent Office since its inception in 1992 as Deputy Director General, later as an Assistant Director General until she was dismissed from her position in April 2008 by Mr. Zeljko Topic who at that time had risen to occupy the position of Director General of the Patent Office, again. At that time Mrs. Stilin had been on regular annual leave. Upon returning from vacation, she discovered that her office had been cleared so that she could not resume her work. The reason behind Mrs. Stilin’s expulsion appears to have been due to the fact that she had previously applied for the position of the Director General coupled with her attempts to draw attention to various breaches of duty and violations of the law alleged to have been committed by Mr. Topic, who had also been a candidate for the position of Director General. The alleged breaches of duty and violations of the law committed by Mr. Topic subsequently became the subject of several administrative and judicial proceedings. Mrs. Stilin has collected voluminous documentation about these matters and this documentation is available to anyone who is interested.
Under strong lobbying from the Croatian President, the newly elected socialist government decided to extend the mandate of Mr. Topic in 2012 despite that fact that the Croatian media had reported on numerous irregularities in which he was alleged to have been involved as Director-General of the Croatian Patent Office. There were reports of various official investigations, inter alia concerning allegations about the bribing of the Croatian Minister of sciece Dragan Primorac, whereby the Patent Office under the direction of Zeljko Topic provided the Minister and his wife with a brand new Audi A6 car free of charge. Mr. Topic was also alleged to have also taken possession of a new Mercedes Benz Limousine after the expiry of the lease agreement between the Patent Office and the leasing company.
It appears that various anonymous letters concerning these matters have been submitted to the German Ministry of Justice and the European Patent Office. However, so far the investigation of the circumstances surrounding the appointment of Mr. Zeljko Topic as Vice President of the EPO has only been carried out in a very superficial manner. According to internal and external reports, the current President of the EPO is protecting the disputed Vice President Topic. Against this background, the motives which induced the incumbent President to endorse Mr. Topic’s candidature as Vice-President must be questioned. Certainly it cannot have been due to his professional competence. It would also be necessary to examine whether or not sufficient research had been carried out into Mr. Topic’s previous activities prior to his appointment as EPO Vice-President. It seems that during the selection procedure for the Vice President Mr. Topic was considered as the clear favorite from the very start. If that is the case, it would amount to a serious error of judgement on the part of the incumbent President who will have to face the consequences.
We therefore propose that an independent investigation should be carried out under the direct supervision of the Administrative Council with the aim of clarifying the circumstances surrounding the selection and appointment of the disputed Vice President Topic. Such an investigation should include within its scope an examination of the role played by the incumbent President of the EPO in the affair.
The undersigned remains at your disposal should you have any further queries concerning the above matters.
JURIS Protecta e.V.
Association for the advancement of the rule of law in Croatia
Tel +385-98-212 449
Juris Protecta made a further submission to the AC in December 2013 and said: “It seems as if Balkan practices in appointing senior officials have now become an accepted European standard. ”
URGENT AND IMPORTANT!
Dear Ladies and Gentlemen,
We refer to our letter dated 14th October 2013 in which we have made submissions concerning the appointment of Mr. Zeljko Topic as a member of the senior management team of the EPO.
The letter can be read at http://jurpro.hr/pdf/TOPIC-mail_from_14-10-2013_Text_E.pdf (English) or http://jurpro.hr/pdf/TOPIC-mail_from_14-10-2013_Text_D.pdf (German).
The former Deputy Director General of the Croatian SIPO Mrs. Vesna Stilin has addressed the Administrative Council of EPO with her letter dated 4th December 2013 which can be read at: http://jurpro.hr/pdf/Vesna_Stilin_Letter_from_4-12-2013.pdf .
The copies of the relevant documents can be found at 1- I) http://jurpro.hr/pdf/Annex_1-I.pdf ; 1-II) http://jurpro.hr/pdf/Annex_1-II.pdf ; 2) http://jurpro.hr/pdf/Annex_2.pdf ; 3) http://jurpro.hr/pdf/Annex_3.pdf ; 4) http://jurpro.hr/pdf/Annex_4.pdf ;
It is further noted that no action in this regard appears to have been taken by any member state of the Organisation so far. It seems as if Balkan practices in appointing senior officials have now become an accepted European standard.
Zlatko Zeljko, President
At the same time, the former Assistant Director of the Croatian State Intellectual Property Office, Ms. Vesna Stilin, addressed a letter to the AC [PDF]. Here it is as HTML:
Biokovske stube 4, 10 000 Zagreb, HR
Zagreb, December 4th 2013
EUROPEAN PATENT ORGANISATION
Dear Ladies and Gentlemen,
Some time ago, I received a query from an anonymous source in Munich asking if I could provide any information as to whether or not there was any substance to accusations which had been published in the Croatian media concerning Mr. Željko Topić, the former Director General of State Intellectual Property Office of the Republic of Croatia (SIPO). Following his appointment by the Administrative Council of the EPO, Mr. Topić has occupied the position of Vice President DG4 of the European Patent Office since May 2012. In view of the evident public interest in the controversy surrounding his appointment, I hereby address these submissions to the Administrative Council of the EPO.
By way of introduction, I would like to inform you that I was previously a former Deputy Director General of the Croatian SIPO and later an Assistant Director General in charge of the Copyright and Related Rights Department.
To the best of my knowledge, apart from various civil proceedings, initiated by several persons (from SIPO and outside of SIPO), there were at least two criminal law cases pending against Mr. Topić prior to his appointment to the position which he now holds in the EPO. One of these cases concerned the circumstances surrounding my dismissal from the SIPO, and the other one concerned matters which the Ministry of Education, Science and Sport as the government department with supervisory authority over the SIPO had failed to properly investigate despite its statutory obligation to do so. Evidence to support these assertions is enclosed (Annex 1).
My dismissal from the post of Assistant Director General of the SIPO in 2008 was based on statements of an untruthful nature by Mr. Topic which prompted me to sue him for defamation. In appeal proceedings held before the County Court (Komitätsgericht) in December 2012, for the second time, a verdict was delivered in my favour(Annex 2). The case was remitted to the court of first instance. The case is still pending before the County Court for the third time. Additionally, I filed criminal charges against Mr. Topić with the Prosecutor’s Office (Annex 3). The latter case which includes a charge relating to bribery is likewise still pending. (Annex 3). A key accusation here is that Mr. Topić effectively „bought“ his re-appointment as Director General of the SIPO by bribing the former Minister of Education, Science and Sport, Mr. Dragan Primorac, who proposed to the Government that Mr. Topić be re-appointed for a second term in 2008 (Annex 4). There is extensive documentation about this matter, including a complaint which I filed with the European Court of Human Rights in Strasbourg. I can provide copies of this documentation on request. As a tactical manoeuvre in response to the legal actions which I had initiated against him, Mr. Topić belatedly filed a private action for defamation against me at the Municipal Crimial Court in Zagreb on 22 April 2013. However, Mr. Topić’s complaint was dismissed by the court which recently delivered its judgment in my favour (Annex 5).
I am also in possession of documentation which shows that Mr. Topić ignored the recommendation made by independent EU experts in field of Copyright and Related Rights in the context of the Community Assistance for Reconstruction, Development and Stabilisation (CARDS) Programme for South-Eastern Europe (Official Reference No. 96-022 and 60 343) where the EU provided Croatia with about 2 million € to assist the development of the SIPO, including its Copyright and Related Rights Department. At that time the number of legal staff in the Copyright and Related Rights Department was insufficient as there were only two persons at the SIPO, including me, responsible for dealing with these matters. However, instead of increasing the number of legal staff in accordance with the recommendation of French experts and as formally agreed in his own commitment given to the EU on behalf of the Republic of Croatia, Mr. Topić proceeded to effectively abolish the Copyright and Related Rights Department, by reducing the personnel dealing with these matters to a single person who was involved in the so-called HDS-ZAMP* affair. Mr. Topić’s actions in this regard were carried out without any coherent explanation and, according to my considered opinion, in an illegal manner.
It is a matter of record that the President of the EPO, Mr. Benoît Battistelli, sponsored Mr. Topić’s candidature for Vice President of DG4. Would he have done so if he had been fully informed about these matters, in particular the criminal proceedings pending against Mr. Topić prior to his appointment? It should be emphasised here that, in contrast to Mr. Topić, it appears unlikely that the other candidates for the position were the subject of criminal proceedings and such public controversy in their home countries.
I believe that it would be in the public interest for the Administrative Council of the EPO to initiate an impartial and objective investigation into the circumstances surrounding Mr. Topić’s appointment and, where appropriate, to exercise its disciplinary authority in the matter. On the face of it, it would appear that Mr. Topić abused the trust of the President of the EPO by concealing or misrepresenting important facts such as those relating to criminal cases pending against him in Croatia. Either that, or Mr. Battistelli was aware of the aforementioned matters and, despite this, supported Mr. Topić’s candidature. For the moment, it is only possible to speculate about these matters. The truth can only come to light if a proper independent and impartial investigation is carried out.
Some of the major political scandals in Croatia in recent times have been those relating to the prosecution of the former Prime Minister Ivo Sanader on corruption charges, accusations against the former Minister of Education, Science and Sport, Dragan Primorac (who Mr. Topić is alleged to have bribed), and the HDSZAMP affair relating to the collection of royalty payments for musicians. The details of these various political scandals may not be familiar to people who are not well acquainted with Croatian current affairs but I am willing to assist any impartial inquiry conducted under the auspices of the Administrative Council by providing a more detailed explanation accompanied by supporting evidence, including the documentation referred to above.
* The HDS-ZAMP affair relates to alleged irregularities and conflicts of interest in the area of musical copyright management. The name is derived from an acronym for the Croatian composers’ society – a „collecting society“ which is responsible for protecting the rights of of copyright holders on musical works and, in particular, for managing the collection and distribution of royalty payments.
Annex 1: Minutes of proceedings before the Criminal Court of Zagreb – May 4th 2010,
Letter from Ms. Stilin to the Ministry of Science – June 21th 2012
Annex 2: Court Judgment Kž-368/2012-5 from December 12th 2012
Annex 3: Criminal charges against Mr. Topić, from January 9th 2013
Annex 4: E-Mail correspondence betwen Croatian President Mr. Ivo Josipović and Ms. Stilin
Annex 5: Court Judgement 9.K-99/2013 from September 30th 2013
Copies of the annexes referred to in Ms. Stilin’s letter can be accessed above.
The EPO’s Administrative council failed to make any response to these submissions, so Juris Protecta proceeded to file a Petition with the European Parliament requesting it to carry out an independent investigation into the matter. The Petition is pending before the European Parliament and is expected to be discussed during one of the forthcoming sessions of the Petitions Committee in September or October of this year (that’s this month). The story was given some coverage earlier this year in May by the Geneva-based IP news service Intellectual Property Watch, as noted here before.
Our first Techrights article in this series included some Croatian press cuttings and our sources sent the most recent version (Croation press cuttings up to September 2014) for those who understand Croatian. It’s the same as before but further expanded. This now embodies the most recent version which includes a translation of this article.
The relevance of the material above is that it shows how corrupt people came to occupy positions of power in the EPO, in part thanks to nepotism and a corruptible process (more on that in future parts of this series). “The EPO’s Administrative Council,” say our sources, “is actively and improperly colluding with the EPO President Mr. Battistelli in protecting Mr. Topić’s appointment from any independent investigation.”
There is additional information indicative of long-standing professional connections between Messrs. Topić, Battistelli and Kongstad. We will present it separately in some future date (there is an ongoing investigation which we wait to see resolved).
“This causes us to suspect,” say our source, “that both the EPO President and the AC Chairman are placing personal and/or professional loyalties before the public interest in this case.”
Some of this covered in Part III about Battistelli, whose relations with Topić we will provide more proof of. There is a connections between the patent offices
[PDF], but also between these individuals (not just organisations they work for). The 2008 annual report of the Croatian State Intellectual Property Office records details of a visit to the Croatian SIPO by a delegation of the French National Intellectual Property Institute (INPI) headed by Battistelli and shows a photograph of Battistelli and Topić signing an Agreement on Bilateral Cooperation
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Summary: More criminal activity from Microsoft in Romania and a new TV programme that sheds light on Microsoft’s dirty assault on Free software in France
Bribes can be passed in all sorts of ways (e.g. promise of a job for a spouse, revolving doors, nepotism with verbal contracts). We have given many examples of Microsoft bribes over the years and last year it was reported that Microsoft had bribed officials in some of the largest countries in Asia and there was an investigation into it; maybe Microsoft bribed or somehow silenced the investigators too has we have not heard anything about it since then (some of these countries, however, have in the mean time shunned Microsoft). Some of the bribes we covered involved OOXML, a deeply monopolistic ’cause’ which had bribes given to officials in many countries including Romania, where Microsoft routinely uses infiltration as a strategy. For Microsoft to impose NSA back doors on the whole world takes some audacity and it shows that no strategy is beyond the acceptable; just watch how the NSA took a whole country (Syria) offline, cracked the network of a national technology giant (Huawei), and actively supported assassinations, even of US informants. No nation should ever even consider using Microsoft anywhere in its infrastructure, but what happens when bribed are introduced? Now we have yet another example of Microsoft corruption in Romania:
‘Microsoftgate’ scandal rocks Romania
The Romanian National Anti-corruption Directorate (DNA) is currently seeking approval to begin criminal investigations for office misconduct and corruption in an unfolding scandal the press has dubbed ‘MicrosoftGate’. EurActiv Romania reports.
The accusations are related to public procurement procedures for Microsoft licenses intended for schools. Ministers are suspected of having taken bribes for facilitating the conclusion and ensuring the continuation of an illegal contract with Fujitsu Siemens Computers for leasing Microsoft licenses at over-inflated prices.
The case started last summer after the Control Body of the Prime Minister was notified about the existence of a series of irregularities at the Ministry of Information Society and the Ministry of Education concerning the leasing of IT educational licenses.
Several former ministers, heads of the Secretariat-General of the government, as well as Microsoft officials, have been questioned by Romanian prosecutors. More recently, the Chief Prosecutor of the DNA requested that the general prosecutor of the office attached to the High Court of Cassation and Justice seek approval from the Senate, the Chamber of Deputies, the Romanian president and the European Parliament to start criminal investigations against nine former Romanian ministers.
Microsoft is not quite a “company” per se; it is almost like a crime syndicate that uses rogue (tainted) contracts for revenue and bribes officials for them. A government delegate once compared Microsoft's methods to “Scientology cult” and this new TV programming from France shows just how far Microsoft “lobbying” goes.
Thanks to the working group transcripts of April we managed to get an automated translation too English. Transcript below:
Journalist : France today begins its digital. So we have to buy hardware: tablets, computers, interactive whiteboards, but also virtually non-existent in the hexagon educational software. The British market, however, is overflowing already. We are in London, BETT, the show for educational technology. Everyone from digital to school has given them appointment.
English students in uniform, singing around shelves.
Journalist : We find Mrs. Becchetti-Bizot, the new head of digital in Education.
Speaker : I present the company Education City.
Journalist : It came out what could soon equip our schools.
Jamie Southerington, commercial Education City : Let me show you what we can offer in French. We have activities for students of three years. If you have an interactive whiteboard in your classroom, it was the software that allows children to learn the alphabet by singing. Well, just press here.
Catherine Becchetti-Bizot, responsible for the direction for the educational digital : I am very surprised by the richness and diversity of what is proposed by the vitality of small businesses that are there and really trying to adapt to the needs of the teaching community.
Reporter : Today the Department of Education is ready to provide all children in tablets?
Mrs. Becchetti-Bizot : The Department is not ready to buy for all, it would be impossible, can you imagine the price that would be! However it is ready to partner, to imagine consortia with communities and businesses, perhaps, perhaps! I do not know if we’ll do it, but we will try to do that, to effectively we can encourage, facilitate equipment.
Journalist : Partnerships who dream because the industrial market to win is huge. Globally, it is estimated at 100 billion euros and growth forecasts give the spin: more than 1500% in the next decade.
Today, the market leader in educational tablet is Apple. Yet the brand has no official stand on the show, preferring to highlight its suppliers of content, the famous educational software.
Why is Apple company absent the show?
Mark Herman, Albion : Because we no longer need to explain what an iPad. Everyone knows what it is. However one has to take people by the hand and let them demonstrations to show them the educational potential of our software. Then they can decide if they are interested or want to buy from our competitors and that is where we are useful. We are here to advise schools not to force their hand. But you know, we have equipped schools, there has been incredible changes and it’s a real motivation for us.
Reporter : For industry, this software is the best way to attract customers in their nets. Once purchased, you become dependent on their computer system. In most cases, your Mac software is usable by a computer or a Mac tablet. Ditto for the PC. We went to the other giant digital, Microsoft. To discover their marketing strategy, they invite us into a showroom software and educational materials to Paris. This place was named immersive class.
Teacher : That’s it. You sit in the pit there.
Journalist : Set up two years ago at the company’s headquarters here the teachers and students are invited to discover tomorrow’s school according to Microsoft.
Nao Robot : Hello. I’m Nao, a humanoid robot. I come from the planet Saturn.
Journalist : That day, a retired teacher, hired by the multinational, we made a small demonstration in front of some guinea pigs.
Prof : What is it?
Kids : It’s the land.
Prof : We’ll have to write the names of the planets. You take this pen, here you choose a color.
Journalist : The goal: to seduce the students and their teachers to schools to sell a classroom of the future, turnkey.
Prof : Let’s go get a picture of a book.
Children : Oh! Lava and smoke!
Prof : Well, that comes out. After it comes out of where?
Journalist : The man who had the idea of this showroom is Thierry de Vulpillières, education manager at Microsoft France.
“…the law forbids to advertise in schools. So to get around the problem, Microsoft has found another strategy. We’ll show you how, for years, the American company infiltrates National Education to sell its products.”Thierry de Vulpillières, head of Microsoft France Education : We at Microsoft. Our subject is to help the passion for the education of teachers and students. 55% of French children are bored in school. It’s a shame. Well it’s because we will move the way we teach and we will involve more students these tools come naturally fit into this new way of learning. What we want is that indeed all students can benefit from digital. I would love there to be 11 million tablets in the hands of every student.
Journalist : The difficulty of Thierry Vulpillières: the law forbids to advertise in schools. So to get around the problem, Microsoft has found another strategy. We’ll show you how, for years, the American company infiltrates National Education to sell its products. The man who found out about roses is Alexis Kauffmann, a math teacher. In 2008 he went to the site Innovative Education Forum, a forum sponsored by the National Education, where teachers have educational projects. Alexis discovers a photo that plot, that of this little Asian girl sitting in a classroom.
Alexis Kauffmann, math teacher : I was able to show that the site of the first forum of innovative teachers using the images we found on the official websites of Microsoft. You could tell they were a little sloppy, they have not even taken the trouble to make up the task of changing images.
Journalist : Oh yes, they reversed.
Alexis Kauffmann : Yes they reversed.
Reporter : Alexis wants to know why a photo is featured on the Microsoft site. He then discovers that the multinational is behind these forums and continues to fund discreetly.
We went to the last forum for innovative teachers. This year it is held at the Regional Council of Aquitaine. In the lobby, teachers present their projects.
Teacher : There is no class, in fact, it is a space that is completely open to life. One lot in life …
Journalist : On the platform of representatives of teachers, the Regional Council and the Ministry of Education
Jean-Yves Capul, Deputy Director of Digital Development, Education : Management of Digital Education was wanted by the Minister as a direction for educational purposes. This is the pedagogy and not technology that is the heart of this direction, even if the aim was to combine the two aspects, education and information systems and technology.
Journalist : In the audience in the front row, sitting behind the plant, Thierry de Vulpillières, Mr. Microsoft. Alexis Kauffmann came asking for more transparency in the financial involvement of the multinational forum.
Alexis Kauffmann : What is the sum allocated by Microsoft for this type of event, for example?
Thierry de Vulpillières : Me I do not give a number. The sum is marginal today on the organization of this forum. Unfortunately. I’m glad you ask me …
Alexis Kauffmann : Since the first time, Serge Pouts-Lajus launched a number, it was almost 50% of the budget.
Thierry de Vulpillières : I think it has never exceeded 50%, but actually it was in the order of 50%.
Alexis Kauffmann : It’s hard, even when enough!
Thierry de Vulpillières : Absolutely! And we are very proud to support that event.
Alexis Kauffmann : Okay.
Reporter : Thierry de Vulpillières will not say more. Sponsorship remains discreet. Some teachers do not even have knowledge.
This is an event that is largely funded by Microsoft. It inspires you what?
Christophe Viscogliosi economics professor : That I did not know already, first. And secondly it would have been better than the national education fully fund this type of forum.
Journalist : Why?
Professor of Economics : There is a potential conflict of interest. I did not necessarily want to be forced to use Microsoft products in progress.
Reporter : Thierry de Vulpillières is the only industrial digital world present here. From stand to stand, it maintains its network with faculty.
Thierry de Vulpillières Laurence June This is not the first forum.
Laurence June, Professor of French : No.
Thierry de Vulpillières And paradoxically it seems that we are in a stand of handicrafts. You see son and wool. This is a teacher who was one of the first teachers to use Twitter.
Professor of French Twitter that allows students to communicate, that is to say we are in a classroom, but it opens. We did projects where communication was contacted politicians, writers and journalists. Short exchanges, which led us to do larger projects, meetings, writings and exchanges.
Journalist : Adept Internet, the teacher becomes a target for Microsoft representative. This morning he offered his ten tablets Professor of French class was fortunate to have five computer stations, this is not the case all the time. Perhaps we will have tablets.
Journalist : Microsoft?
Laurence June, a French teacher : Yes.
Thierry de Vulpillières : Small areas will land home.
Professor of French : The good news. The forums also allow these exchanges there.
Journalist : Ten tablets offered to try to take the market in an establishment of seven hundred students. Microsoft has set up a well-rehearsed with faculty and hierarchy lobby. We were able to get that invitation sent to certain officials of the Ministry of Education. The Academy of Paris invites them to discover digital innovation at Microsoft headquarters. Program immersive class. Remember, the showroom Microsoft invented for the promotion of the classroom of the future. Alexis Kauffmann is the neutrality of the school that is harmed.
Alexis Kauffmann : What is outrageous is that academic information day, training, study, around digital is found in Microsoft. It has absolutely nothing to do with Microsoft, simply. Do we imagine the Ministry of Agriculture organize study days at Monsanto for example? No!
Journalist : We went to present the invitation to the new director of digital education.
On May 28 there was the Academy of Paris organized a day of innovation at Microsoft headquarters.
Catherine Becchetti-Bizot : Yes, the rector of Paris made the event at Microsoft headquarters.
Reporter : You do not see that it’s a bit much, it may be a collusion of interest.
Catherine Becchetti-Bizot : Yes, I found out the same day.
Reporter : Were you there?
Catherine Becchetti-Bizot : Ah, I was not there! I would not go there because I think there is a confusion of genres. I do not disagree with the President, I think there is a kind of naivete that there was no will to promote Microsoft. Reporter: But you are against?
Catherine Becchetti-Bizot : I am neither for nor against. I think it is not a policy of the Ministry of Education to organize that, with Microsoft in particular, things of that guy, and it will actually fit. It’s also one of the immediate projects I have in opening this direction is clearly align our corporate partnerships.
Journalist : Multinationals have powerful lobbies and nothing seems to stop them in their conquest of the school of the future. Recently they attacked an amendment to the law of rebuilding the school. The amendment proposed that our school prioritizes the use of free software. Free software is the bane of high-tech enterprises. They can be created, shared, and modified by anyone and they are almost always free. A system that competes digital giants. It’s Green MP Isabelle Attard offering this amendment to the Assembly in favor of free software.
Isabelle Attard, MP for Calvados : This amendment has been fully validated by the Culture and Education Committee for first reading in the Assembly, the Senate also. And when the text comes in second reading in the Assembly, we see that the union of the digital sector, Syntec, just sent a press release to alert precisely this amendment accepted by the Assembly and the Senate, on the overhaul law school.
Reporter : Here’s the press syndicate of digital companies. A very alarming statement: “These provisions will handicap seriously most firms already in this industry.” He was sent to the press, all members and to the Minister of Education at the time, Vincent Peillon. While Isabelle Attard amendment would have allowed the state to make significant savings, Vincent Peillon back.
How do you explain this?
Isabelle Attard : Because there is a lobby and incredible pressure from the largest proprietary software and, as I said, Microsoft is the biggest.
Journalist : We have tried repeatedly to contact the former minister for him to explain his reverse. He refused.
Anyone who still treats Microsoft like an ordinary company does this at his or her own peril. Microsoft is a criminal organisation and it should be regarded as such. █
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Summary: A weekly roundup of news about patents in the United States and elsewhere, with special focus on software patents
Free/libre software has much less to worry about now that software patents are getting weaker if not fewer, too. There are changes that affect not only software patents but patents as a whole. In the US, for example, patents on genes/genetics were ruled illegal not too long ago. Here is an explanation of why Australia might soon follow suit. Titled “Australian Court Disagrees With US: Claim Genes Are Totally Patentable”, the article reminds us that “Last year, the Supreme Court made an important ruling in the Myriad Genetics case, effectively saying that genes aren’t patentable, even if you can separate them out from the rest of a strand of DNA. Myriad Genetics had isolated two key genes related to breast cancer, BRCA1 and BRCA2 and argued that only it could test for those genes, because of its patent. The Supreme Court soundly rejected that, noting that you cannot patent something in nature, and clearly Myriad did not “make” the genes. Unfortunately, as we’d noted just a few months earlier, a court in Australia had come to the opposite conclusion, saying that Myriad Genetics had legitimate patents on BRCA1 and BRCA2. That case was appealed, and there was some hope that after the US’s ruling, higher courts in Australia might see the light. Not yet apparently. An appeals court has agreed that genes are patentable Down Under, which means that such important genetic tests there are likely to be much more expensive and limited.”
Australia, quite infamously as we pointed out before, was one of the countries that succumbed to US lead on software patents, so on genetics too there might be changes afoot. Here is a timely reminder that India still wrestles with software patents, having done so for years. India is famous for its heroic opposition to patents on medicine where life is at stake.
One new article from the Indian press quotes a few people who follow this closely. One of them “said that many of the companies that work on open source software and related segments have raised their opposition while the originator companies are demanding for a patent.”
Actually, many proprietary software patents are also against software patents. It is not a FOSS issue but a CS issue (computer science, not closed source).
“Currently,” continues this article, “software is not patentable under the existing Act and it needs to be registered under copyright. Many experts think that a patent would be stringent than a copyright is and would be advisable for the innovators to protect their software from infringement.
“The draft has been issued in the public domain for comments and the government has to consult every stakeholder on it. The issuance of the guideline is in final stage, he said.
“As per the Intellectual Property Office report, about 80% of patent applications at the Indian Patent Office are filed by foreign global technology companies. In the past decade the number of applications by foreign applicants has risen from about 8,221 to 34,276, said industry leaders.”
So these patents have a strong correlation to and with digital colonialism. Why would Indians ever accept them? The multinational corporations surely want these, but what’s in it for India itself? India has fantastic software engineers of its own. It need never be dependent on multinational entities, especially for software.
Here is a US-based pro-software patents site (run by patent lawyers) saying that “Big Banks Get Software Patents Despite Alice”. It is selective and selection-centric spin. The reality, on the whole, is the very opposite. The pro-business, News Corp-owned Wall Street Journal very recently published “Hard Times for Software Patents” followed by the detailed report titled “Courts Nix More Software Patents” and “Federal Courts Reject More Software Patents”. It says what one ought to expect.
Speaking of large corporations and software patents, watch what BMC is doing. The British press said that “BMC has accused ServiceNow of violating seven of its patents (5,978,594, 6,816,898, 6,895,586, 7,062,683, 7,617,073, 8,646,093 and 8,674,992), spanning incident management, performance analytics, configuration management, discovery, orchestration and change release management.
“The company lodged its suit on Tuesday in the generally litigant-friendly US District Court for the Eastern District of Texas.”
BMC is acting like a patent troll and attacks small rivals. Witness the glory of software patents! The weapon of abuses indeed, injustice galore!
Contrariwise, Van Lindberg from Rackpace (very large company) says that they have killed a software patent and potentially a troll. The title says “Another Patent Troll Slain. You Are Now Free To Rotate Your Smartphone.”
Here is more on that: “Over the last few years it’s been great to see companies like Newegg and Rackspace decide that they’re not going to give in to bogus patent troll lawsuits. As we’ve discussed, it’s almost always easier, faster and cheaper to just settle and pay up whatever the troll is asking for. That’s part of why trolling works. Fighting a patent lawsuit — even a totally bogus one (i.e., not infrigning) — on a clearly invalid patent will still cost many hundreds of thousands, if not millions, of dollars. If the troll is offering to settle for tens of thousands of dollars, many, many companies will do the obvious short-term cost-benefit analysis and settle. It’s hard to directly fault them for this — but it only makes the problem worse for everyone else. Not only does it fund the patent trolls to keep suing others, often they’ll use some of that money to buy more bogus patents and shakedown companies over that new ones as well. On top of that, settling patent threats just puts a big “sucker” sign on your company, meaning that more trolls will start circling. Making a stand and saying that you will not compromise or deal with trolls actually helps in the long run by scaring off some trolls. Both Newegg and Rackspace have been getting a lot of publicity (and goodwill) for their anti-troll efforts.”
Here is a somewhat comical take on a troll that decided to attack the government. The headline says it all: “Patent Troll Told That It Can’t Sue The FTC For Merely Investigating Its Shakedown Scam”
Well, “just when US starts correcting them,” writes Dr. Glyn Moody, Europe, with the corrupt EPO, decides to “Repeat US’s Past Mistakes”:
Back in May, I wrote about a very interesting paper discussing some potential pitfalls of the new Unified Patent Court. Given the magnitude of the change that it and the unitary patent system will bring, it is extraordinary that we still don’t really know how things will work out in practice. That makes another paper called “The Unified Patent Court (UPC) in Action – How Will the Design of the UPC Affect Patent Law? ” particularly welcome, since, as its title suggests, it explores how the new UPC is likely to shape the contours of patent law in Europe.
Since the new paper appeared, there has been a further US Supreme Court ruling, Alice v. CLS Bank, that has already led to no less than 11 software patents being thrown out by lower courts. Indeed, there is every indication that the era of completely insane software patents is drawing to a close in the US. It is therefore deeply ironic – and rather frustrating – that at precisely the moment when sanity starts to break out in the US, the EU incomprehensibly decides to take exactly the same path of madness that produced so many problems across the Atlantic.
Those are all good ideas, but it’s rather depressing that we must already be thinking of ways to minimise the damage the new UPC is likely to cause Europe’s economy in general – and the world of software in particular.
In the coming weeks we will continue to show how the EPO turned rogue and corrupt. It would be foolish to adopt software patents when the US relents.
Here comes another smackdown of a troll. As Mike Masnick put it: “We recently noted that a bunch of courts had been killing off bad software patents thanks to the Supreme Court’s ruling in Alice v. CLS Bank. And now, that ruling is even leading the trolls themselves to give up. Notorious patent troll Lumen View recently dropped its appeal in its case against the website FindTheBest, saying that the ruling in Alice made it clear it wouldn’t win…”
Steven J. Vaughan-Nichols wrote about this trend as a whole, saying that patent trolls are starting to get trampled. He also quotes OIN:
First, the Open Invention Network (OIN), whose members include Google, IBM, NEC, Philips, Red Hat, and Sony, now has more than a thousand licensees in its Linux and open-source, defensive patent pool. In an e-mail , Keith Bergelt, OIN’s CEO said, “The OIN license is becoming part of a broader set of community norms and is increasingly being integrated into the culture of open source/Linux-centric companies. It is for many the foundation around which their IP [intellectual property] strategy is built and a critical enabler of patent non-aggression and freedom to operate.”
We recently wrote about the podcasting troll winning against CBS, but this is definitely not over. As TechDirt put it: “The trial (in East Texas, of course) for CBS came first and the jury sided with Personal Audio, because that’s how East Texas patent juries typically roll. In a moment of semi-kindness, the jury awarded Personal Audio $1.3 million, rather than the nearly $8 million they supposedly requested. This story is really just a stepping stone, however. CBS has made it clear that it will appeal the case to CAFC, and given how software/business method patents are getting tossed out left and right these days, the company has a decent chance of prevailing. Meanwhile, the EFF reminds us that it’s still working hard to invalidate the patent at the Patent Office, which would help accelerate the process of killing off these bogus lawsuits.”
CBS is a bad company, but hopefully it will win on appeal.
Here is Matt Levy quoting the partly pro-software patents Michael Risch while saying: “We cannot continue the excesses of the past. Invalid patents don’t benefit innovation, they block innovation. And we have a patent system where a substantial portion of the issued patents, if not most, are invalid. And the patents in the software area are even worse.”
At the end of the day we will hopefully see patents on software universally invalidated. Until then we will have rumour mills and speculations (e.g. about prices) telling us that Free software is not free, thanks in part to lack of comprehension of what patents really are for and how they affect the industry (it’s a poor article which reveals its author’s ignorance on this subject). We have already covered this issue before (it’s about Samsung and Microsoft). █
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Inner circle of Battistelli
Summary: A preliminary look at Battistelli’s reign and how regulatory powers got abolished, leaving the EPO reckless and largely unaccountable
THIS is our third (hopefully among many) outline of EPO abuses. It’s the third instalment in a multi-part series about the European Patent Organisation/Office, which is rotten to its core. EPO — like Google — has enjoyed positive public perception for too long. It’s time to shatter the myths of professionalism and innovation.
Having studied dozens of documents and articles about this topic (usually translations because the English-speaking press mostly overlooks these issues), we are shocked to see just to what extent the EPO engages in dirty tactics, conflicts of interest, and revolving doors. It’s no better than the FCC or CAFC.
Readers who saw the first Techrights article on this topic (focusing on Topić’s appointment) sent us some valuable feedback. Alex Weir, for example, told us: “I read with interest your piece on corruption in the EPO, from my personal experience there have been questions regarding the EPO and corruption in relation to EC contracts and relations with China since the late 1990s, I am sure if you dig you will come up with more evidence.”
Today’s article focuses on Battistelli, the EPO’s President. As we keep getting sent more dirt about the EPO it is hard to say just how many future articles will revolve around his own scandals, which are unique because they show how abuses can go all the way up to the top (EPO President is the highest position).
One person told us on Diaspora that “Richard Stallman has said that the EPO is corrupt a few times, before this man [Topić] was put in charge.
“Thanks for bring up the issue.
“It seems to be the fault of the European Commission,” he added, citing this as an example. Quoting Stallman: “The EU administrators said they would let each country decide whether to allow genetically modified crops, but the proposed implementation is a trap. It has legal flaws, so these one-country bans might then be overturned.
“It is not unusual for the European Commission to make treacherous proposals. For instance, the “computer-related inventions” directive was written so it would appear to rule out software patents, but in fact would have authorized them. ”
“He wrote a lot about the EC’s nasty trick at the time,” said the person about Stallman. We too covered it for years, in video form also. The EPO derives its power from an administration which in its own right is relatively immature (like the Union) and ripe for abuse.
So let’s take a look at what Battistelli is not so well known for.
“Here is a link to an interview with Mr. Paul Ernst,” said our source, “who was a member of the (now abolished) EPO Audit Committee.
“His comments on the function of the Audit Committee and its abolition may be of interest.”
Here for example (with emphasis added) is what he said about the Audit Committee:
The dissolution of the Audit Committee at EPO was justified with the argument that the Audit Committee’s tasks are already carried out by Internal Audit and the Board of Auditors (BOA). What is your view on this?
Paul Ernst: The reasoning behind the decision reveals a lamentable ignorance of the fundamental role of an Audit Committee.
The Audit Committee can be seen as an answer to the famous question „who audits the auditor?“
The Audit Committee reports directly to the Administrative Council, whereas Internal Audit reports to the President and has no right to address the Administrative Council directly.
The Audit Committee protects the independence of both audit functions and observes the coordination between Internal Audit and External Audit, and the follow-up given to audit recommendations.
The Audit Committee should also raise its voice if a significant conflict of interest is discovered, e.g. a close relationship between a member of the BOA or the Internal Auditor or the Chair of the governing body and the chief executive.
There is no other institution that plays a similar role. These are significant differences that demonstrate that the Audit Committee does not duplicate the work of the Internal Auditor nor the Board of Auditors.
“Note,” said our source about Battistelli, quoting the following part: “The Audit Committee should also raise its voice if a significant conflict of interest is discovered, e.g. a close relationship between a member of the BOA or the Internal Auditor or the Chair of the governing body and the chief executive.”
“This is precisely the situation that exists between Battistelli (chief executive) and Angermann (member of the BOA),” explains our source. “However, as there is no longer any independent Audit Committee, it cannot raise its voice in the matter … how convenient for Battistelli.
“The problems of EPO governance arising from the abolition of the Audit Committee have been noted by the French Senator Jean-Yves Leconte in an open letter which he sent to French Ministers earlier this year.”
To quote: “En supprimant de facto l’indépendance de l’audit externe des comptes (budget de l’organisation 2 000 M€) la transparence sur les évolutions de l’OEB ne sera plus de mise. Et ceci sera aggravé par l’absence de contrôle interne crédible lié à l’évolution des relations internes à l’institution” (full text of the letter is available in French).
“The point to note here,” says our source, “is that the French Government is fully informed about the various problems at the EPO but it nevertheless supported Battistelli’s re-appointment in June of this year.”
“The problems with the EPO’s audit mechanisms were mentioned briefly in a report by WIPR in June of this year,” said our source, pointing us at the article “EPO staff in Battistelli fight”. The article states: “Staff have also claimed that the “overall governance” structure has been weakened by the audit committee being abolished without the administrative council knowing, and that Battistelli has put a “previous collaborator” from the French Patent Office in the “key post” of external auditor.”
Full details of this were made available to us in the form of copies of the Administrative Council documents referred to above (for readers’ information and for future reference).
“These documents are not classified as confidential so in principle they can be made publicly available,” explained our source.
The documents are as follows:
- CA-140-08-EN – 2008 – Audit Committee: possible models
- CA-32-09-EN – 2009 – EPO Audit Committee: draft terms of reference
- CA-33-09-EN – 2009 – Draft decision setting up an Audit Committee
- CA-D9-09-EN – 2009 – Establishing an Audit Committee of the Administrative Council
- CA-100-11-EN – 2011 – Internal appeal against CA/D 4/11
- CA-D4-11-EN – 2011 – Decision of the Administrative Council
- CA-55-11-EN – 2011 – Disbanding the Audit Committee
Notice the trend based on the chronology. Audit no more!
Next week we are going to show the ‘special relationship’ between Battistelli, the notorious Topić (known for corruption in his home coutry), and other administrative elements that seemingly collude to keep themselves and their networks in power, feeding off the European economy to do a disservice to Europe. In parts 4 and 5 we are going to shed more light on how the EPO was captured by hawks and wolves — people who should have never acquired such positions of power where they exploit a public institution for power and greed. █
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Summary: Italy is not only moving to Free/Open Source software but also to GNU/Linux while at the same time barring Microsoft from forcibly tying Windows to new PCs
“Last year,” says Pogson, “I wrote about Udine using FLOSS in their infrastructure. Well, it’s in the news again.”
There were several reports recently about Turin following the footsteps of Munich and the main report surprisingly came from the CBS-owned ZDNet, albeit from a guest writer.
Well, guest writers in ZDNet (people from Italy) now tell the story of Italy moving to GNU/Linux in the public sector. It is not exactly news. Here is another one that says: “The City of Udine is moving from Windows for OpenOffice – and may soon ditch Microsoft at an operating system level too.”
That means GNU/Linux!
And if that’s not enough, Italy is now barring Microsoft from imposing the inclusion of Microsoft Windows (NSA-infested malware) in computer sales. As the FSFE reported some days ago: “Italy’s High Court has struck a blow to the practice of forcing non-free software on buyers of PCs and laptops. According to La Repubblica, the court ruled on Thursday that a laptop buyer was entitled to receive a refund for the price of the Microsoft Windows license on his computer.
“The judges sharply criticised the practice of selling PCs only together with a non-free operating system as “a commercial policy of forced distribution”. The court slammed this practice as “monopolistic in tendency”. It also highlighted that the practice of bundling means that end users are forced into using additional non-free applications due to compatibility and interoperability issues, whether they wanted these programs or not.”
Pogson added that: “When I approached the Canadian Competition Bureau on the matter, they parroted that I had no standing, not being in competition with M$. Shame on them. Who is in competition with M$ when M$ has eliminated the market? They should do their job and protect consumers and businesses from an unfair tax on goods and services in Canada. What’s your government doing to protect your freedom of choice in operating systems?”
That’s a fair point. Notice how Microsoft is using its abuses to eliminate reports about its abuses. We saw that in areas other than operating systems.
It sure looks like Germany and Italy and rapidly moving away from Windows. Perhaps all those explosive revelations about NSA espionage (especially in Germany) will accelerate the migrations. To deny bundling of Microsoft Windows with PCs is to basically protect many citizens from being malicious spied on by foreign governments. █
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