“I hope that German police will arrest this corrupt Balkans gangster [Željko Topić] and transfer him to Croatia for trial soon” –Rikard Frgačić, an early victim of Topić (in Croatia)
Summary: Benoît Battistelli’s right-hand man, Željko Topić, is under the false impression that yet more threats against staff of the EPO will help contain the crisis rather than further inflame it
Željko Topić must never have heard of or learned about the Streisand Effect. He and his circle of bullies (which includes several people and is headed by Battistelli) just don’t know a thing about crisis management.
Topić is finding himself in the shoes of Richard Nixon (recall Watergate), falling deeper into the mud at every step as he attempts to cover up the abuses, usually with even worse abuses than before.
Based on this letter just published by IP Kat, Topić and by extension the EPO’s management as a whole decided continue with aggression, having refused to conduct some kind of peace negotiations with the union.
“Topić has quite a history bullying his critics in his home country, Croatia, only to formally lose against them (after costing them a lot of money, agony, and several years in court.”The management’s aggression shows poor taste and zero tact. Over the past year or two the name of the EPO have been associated with negative things and the reputation is thoroughly tarnished; rather than respond politely and calmly the management chose to become even more aggressive, proving and at times further legitimising their critics’ gripes. So they really think that more threats are going to be constructive and actually help end the revolt? Of course it is only going to inflame (and get involved) more members or staff and ultimately serve to discredit the abuser, proving yet again that this circular and wide-ranging cycle of gagging/muzzling/censorship by retribution (or threats thereof) remains impractical and counterproductive. It doesn’t even work because despite threats from Battistelli, SUEPO is back to publicly posting new material today (see the SUEPO site for updates).
Topić has quite a history bullying his critics in his home country, Croatia [1, 2, 3], only to formally lose against them (after costing them a lot of money, agony, and several years in court [1, 2, 3, 4]). Strategic lawsuit against public participation, or SLAPP, is what this strategy is best known as.
Here is the latest from Topić and Raimund Lutz, another member of Battistelli’s mob:
To all staff
It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer’s fees.
Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality.
Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law.
More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void.
For example, Article 13 of the agreement reads as follows:
‘Where an external lawyer has been retained, as defined above,
- (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO’s Legal Advisor.
- (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
- (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.’
This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO’s lawyers restricts unlawfully the staff member’s freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way.
In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.
As a result, staff may consider contesting such contracts as void.
In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so.
If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office.
The Office’s services remain at the staff’s disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.
Vice-President DG 4
Vice-President DG 5
As Merpel points out, “the EPO urges its litigious colleagues to take great care to guard against the breach of its human rights by staff union SUEPO. Both real and fictional Kats have memories that are admittedly fallible, but Merpel has this vague recollection that EPO’s concern for human rights has been demonstrated more vividly by its defiance of them than by their protection. Was this organisation not called to account earlier this year by a Dutch court, in a judgment that the EPO ignored, trumpeting its immunity from national law? Yet it is the very same national law to which the EPO now, extraordinarily, turns.”
Watch this space for follow-ups as so far this month we have been writing about the EPO more than once per day. It’s only getting worse for them by the day. Battistelli’s EPO is a force of occupation (by corporate interests), much like TPP. People are clever enough to see this and there is hard evidence becoming available. If any of our readers has the EPO’s “Closer contacts with major applicants” document, please consider anonymously leaking it to us. We have some important articles on the way. █
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Photo from EPO.org
Summary: Rumours are swirling around Wim Van der Eijk’s absence, suggesting that he too may be a victim of Benoît Battistelli’s iron fist
THE EPO is out of touch and Van der Eijk may be out of work, based on the latest rumours.
“Still it is not clear what are the long term plans as a move would lead to mass resignations from DG3, replacing DG3 with the UPC appears to be impossible without a diplomatic conference?”
–AnonymousSeveral days ago we wrote about Van der Eijk's unlimited sick leave, which seems likely to have little or nothing to do with sickness (as we explained yesterday). As Chairman of the Enlarged Board of Appeal (EBoA) and DG3 VP, Van der Eijk is probably the only remaining potent threat to Benoît Battistelli because the boards are, in principle, independent from Battistelli’s corruptible EPO (in practice Battistelli just breaks the rules).
Over at IP Kat we are seeing some interesting comments. Among them:
Mr Battistelli’s plan:
Get rid of the present VP 3,
Introduce “his” reform of the Boards of Appeal;
Install there his choice of new VP3.
The new chapter in the EPOsaga: “Taming the boards”
The present VP3, Mr Van der Eijk, is on unlimited sick leave and thus out of function. Nervous breakdown? Most likely.
Another comment says:
According to what I have heard from multiple sources the move of DG3 is not for reasons of independence, but simply retaliation for having angered the top management, mainly by R19/12 and refusal of the enlarged board to agree to the dismissal of the DG3 member under investigation.
Still it is not clear what are the long term plans as a move would lead to mass resignations from DG3, replacing DG3 with the UPC appears to be impossible without a diplomatic conference?
Also quite obviously the german delegation in the AC would be strongly against weakening Munich as Europe’s patent capital, so all those plans might go nowhere as the other delegations will be very reluctant to outvote Germany in that matter.
Perhaps the best possible explanation is this:
1) EPO Enlarged Board tells Chairman: “disobey President when necessary”
The European Patent Office (EPO) Enlarged Board of Appeal (EBA) has issued an interlocutory decision in case R2/14
2) The present VP3, Mr Van der Eijk, is on unlimited sick leave and thus out of function.
who would ever think that there is any connection between 1) and 2)
One can see more context in the threads, but most comments are of no relevance to this. We kindly ask anyone with information to conside contacting us anonymously. We really wish to get to the bottom of this and end the uncertainty.
“The EPO should be a member of the Council of Europe,” Florian Müller wrote today, “but it’s not because it wants free rein to violate human rights.” █
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The United Kingdom — and by extension Europe — now a platform of choice for some major patent trolls
Summary: Worst-case scenarios are becoming a reality as Android backers officially attacked by patent trolls using standard-essential patents in London, England
SOFTWARE DEVELOPERS across Europe hate software patents. Ask them. Seriously, just ask them. Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software). It helps protect them and assert that their own work cannot be exploited/ripped off. That’s just the nature of software, which is a lot like poetry or musical compositions.
The Danish creator of Ruby on Rails (RoR), David Heinemeier Hansson, wrote the other day: “Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”
“Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software).”As we have shown here before, no software patents are “good”, hence there is no such thing as “bad patents” or “bad software patents” (a term often used by apologists of them, such as IBM). Patents in the hands of “good” companies are not secure either; they can be sold and fall into hostile hands. See Sun and Oracle for example (Sun patents are now being used against Linux/Android). See Novell’s patents, which fell into Microsoft’s hands through CPTN. There are many more examples like that.
“Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”
–David Heinemeier HanssonRoR’s creator, a hugely popular developer (not just in Europe), said a couple of days ago: “Shame on Ericsson for arming a patent troll with a large stockpile of outdated yet weaponized patents for a cut” (he spoke about Unwired Planet).
For those who are not familiar with Ericsson and Unwired Planet, here is an article from 3 days ago. It makes everything quite easy to follow: “Unwired Planet Inc. has 16 employees and no products. What it does have is a portfolio of more than 2,000 patents, mostly acquired from Ericsson AB, which it says on its website are “considered foundational to mobile communications.” The Nevada-based firm wants more than just recognition.”
So a European company, Ericsson, is now the motor of patent trolls, much like Nokia after Microsoft took over. How did this happen? Well, we covered this over the past few years and we warned that this was going to happen, despite software not (officially) being patentable in Europe.
London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas. Huge damages are at stake and the target is Free software, not some proprietary software, hence free distribution itself is being threatened. Believe it or not, this may have the same impact on Free software on phones in Europe as the FCC on Free software on routers/hubs in the US. The Ericsson-backed troll is now attacking Android (Free software and Linux-powered). Making it impossible to dodge the lawsuit, we are dealing with standard-essential patents (SEP) here, meaning that in order to conform with standards one must infringe. The patents boosters say that Huawei, Google and Samsung are the target of the lawsuit. To quote: “Tomorrow Unwired Planet is scheduled to begin a series of face-offs against Huawei, Samsung and Google at the Patents Court in London. At issue are alleged infringements of five standard essential patents (SEPs) owned by the NPE that were transferred to it as the result of a deal done with Ericsson back in 2013.
“London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas.”“Over on the ARS Technica website, Joe Mullin talks about coming to a UK court being “a high-cost, high-risk scenario that’s unappealing to trolls”. He’s right. And that’s why trolls – whose business model is based on asserting poor-quality patents to leverage the high cost of US patent litigation to extract relatively low-cost, pre-trial, licensing-based settlements from alleged infringers – would never take a case as far as a courtroom in the UK (or anywhere else for that matter).
“Unwired Planet, though, is not a troll. It is a patent licensing business looking to secure a global agreement from entities it believes are infringing high-quality SEPs. It may not like trials (who does?), but it is not afraid of them because it feels it has a good chance of winning and is willing to pay to find out if it is right, especially as the ultimate prize is potentially a collection of eight or even nine figure global licensing deals. Seen in such a light, its choice of the Patents Court in London makes a fair bit of sense.”
The proponents of software patents, people such as IAM's biased (for their own financial gain) writers, helped patent trolls come to Europe. IAM said that “Unwired Planet patent suit in London against Huawei, Google & Samsung again shows Europe is now NPE venue of choice”. Patent Buddy, a more moderate voice, noted the importance of this: “Unwired Planet Will Fight SEP Suit Against Huawei, Google and Samsung in London, Not a US Court” (where this typically takes place).
It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins). Now that there are some software patents in Europe, authorised by the corrupt EPO, large companies are using loopholes and cheats to get more of them and then sue. As Patently German clarified the other day, “the German court essentially follows the EPO, the language even being a bit more generous” (but it’s the EPO that led to it, even back in Brimelow’s days).
“It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins).”Germany’s exceptional lenience on software patents granting was mentioned here this morning and it is likely to be a topic we will revisit in the near future. Jonas Bosson (FFII Sweden) wrote that “#TPPA is “all fields of technology” a trick force patents on abstract matters, such as math and data processing? http://en.swpat.org/wiki/Trans-Pacific_Partnership_Agreement …”
These terrible ‘treaties’ play a growing role in corporate takeover of Europe and based on this latest update, “The UK has joined the Unified Patent Court (UPC) protocol agreement, representing a ‘milestone’ for the country.”
Yes, a ‘milestone’ for corporations taking over the country and most of the continent it’s technically a part of.
The FFII’s President expressed his concerns earlier today by stating: “FSF, despite its 30 years, still spending too few of its resources on fighting software patents and the unitary patent court #FSF30″
Australia Dubs It “Innovation Patent System”
This whole software patents and ‘treaties’ chaos (laws rewritten in bulk) is becoming a growing problem not just in Europe but also in Australia, where activists like Sturmfels (mentioned before in [1, 2, 3]) oppose a push for software patents. The patent maximalists ridicule the likes of him with insulting weasel phrases and belittling words. To quote a new blog post titled “‘Free Software’ Advocates Aside, Submissions to IP Australia Overwhelmingly Support Innovation Patent System”:
Needless to say, such comments lack anything resembling either evidence or detailed reasoning. They also fail to address the fact that abolition of innovation patents would affect all industries, and not just the ‘software industry’ (whatever that may be), including those represented by other submissions in support of innovation patents. In any event, these near-identical submissions are so clearly the result of an orchestrated campaign that they can hardly be regarded as constituting independent contributions to the consultation process. Furthermore, they are at odds with the submission made by BSA | The Software Alliance as noted above.
Other parties making submissions in favour of abolition of the innovation system include Melbourne-based free-software advocate Ben Sturmfels, on behalf of a group of nine like-minded individuals, and Open Source Industry Australia Ltd, which argues that ‘abolition of the innovation patent system will be an important first step towards delivering a more efficient, effective and equitable patent regime for Australia’.
Even Microsoft front groups like the Business Software Alliance (BSA) play a role in the lobbying. To quote:
“BSA | The Software Alliance, which represents the global commercial software industry (counting among its members Adobe, Altium, ANSYS, Apple, ARM, Autodesk, AVEVA, Bentley Systems, CA Technologies, Cisco, CNC/Mastercam, DataStax, Dell, Intel, Intuit, Minitab, Oracle, PTC, salesforce.com, Siemens PLM Software, Symantec, Tekla, The MathWorks, and Trend Micro), and which argues that the innovation patent system should be retained, and improved in line with a number of the recommendations in ACIP’s original report”
The above are all proprietary software giants, hardly small businesses. It’s clear whose interests are served by monopolies on algorithms.
IAM Not Speaking for India
IAM is meanwhile returning to the situation in India, claiming that India’s small businesses want software patents (citing this article which doesn’t really focus on patents) and saying in Twitter: “Limited scope of patent protection, rather than cost, is what is driving high-tech Indian SMEs out of the country” (total nonsense).
“Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe.”The patent lawyers (like the people who operate IAM) want patent trolls and large corporations that hire them to just carry on with patent chaos because patent lawyers profit from it. This is true not only in Europe but also in the US. Watch how IBM is lobbying for software patents in just about every country, India included. The same goes for Microsoft and other patent aggressors. Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe. Microsoft is not a person. It is also treated like a V.I.P. by the increasingly corruptible (up for sale to corporations) EPO. █
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Revolt is much needed and justified right now
Summary: Battistelli’s bullying of people whom he is not even allowed to bully turns out to have gone on for a lot longer than promised, and there is no sign of light at the end of this tunnel
Battistelli is clearly out of control. What we wrote last week about the EBoA (enlarged board of appeals) was likely correct, based on what we are now learning in private (more on that another day). To make matters worse, the illegal suspension of a judge turns out to be an almost eternal limbo. It’s like garden leave, only much worse and nearly perpetual. As IP Kat put it this morning: “Following interventions from the Enlarged Board, external national judges and many other quarters, the Administrative Council took the matter in hand, formally suspended the Board Member until 31 March 2015, and promised a speedy and thorough investigation of the matter. ‘Speedy’ means different things in Eponia than where Merpel lives, but six months after that March date it appears that there has been progress of a sort.
“Among the items listed on the Agenda for the forthcoming AC meeting is this disciplinary case. The AC will review the allegations, then review the defence and response submitted by the person involved, and will then apparently review the decision of the Enlarged Board in this matter before coming to a decision.
“Battistelli just wants total control and he cannot stand the idea that Dutch courts deem his actions illegal or that judges whom he is not authorised to punish (because they’re structurally independent) say the truth about him and his corrupt reign.”“This could mean what is says, i.e. that the AC will come to a disciplinary decision this month. However, watch this space, as Merpel has reason to suspect that the story will not come to a neat close, or at least not this month.”
Well, the AC’s Jesper Kongstad is in pretty much in the pocket of Benoît Battistelli, who suspended this judge, and he is also connected to Zeljko Topić, whom the judge is alleged to have spoken about before he got illegally suspended. What kind of ‘justice’ can one expect to come out? As Merpal noted later in her analysis: “The EPO management has been seeking to reform the Boards of Appeal, and apparently a necessary part of this project is to get them out of Munich. The fact that the more senior members have family ties there, children in school and college, and may ultimately be forced to resign if there is a long-distance move, is neither here nor there (or is that the whole point?). Regardless, it was long understood that Mr Battistelli favoured sending the Boards to Berlin, but the little birdies hiding from Merpel in the trees along Erhardtstrasse are chirping that the new plan is to send the Boards to Vienna. Nice city to be sure, but it’s a long commute after dropping the kids to school in Munich each morning. Merpel will keep you posted.”
Battistelli just wants total control and he cannot stand the idea that Dutch courts deem his actions illegal or that judges whom he is not authorised to punish (because they’re structurally independent) say the truth about him and his corrupt reign.
Watch what commenters are going to say in the coming days at IP Kat. This might help provide new (but potentially unverifiable) information from within the EPO, currently one of Europe’s most corrupt institutions. Demonstrations and strikes are a non-issue, except when the staff union gets gagged by menacing threats from Battistelli. █
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The international community, including the British and European communities but excepting international corporations, their patent lawyers and politicians whom they shrewdly lobby, is intentionally being kept in the dark
Manchester Community College at night
Summary: European patent laws are being covertly overridden so as to allow broader scope of litigation, higher financial damages, speedy injunctions, and even software patents; the European public is intentionally kept in the dark about it, hence kept unable to express scepticism or issue truly effective objections
WE recognise the fact that many of our readers these days work for the EPO. It is a European institution where secrecy prevails as it helps impede outside scrutiny (which is sorely needed). Other European institutions favour secrecy for the same reason (e.g. so-called ‘trade’ agreements). We started writing about the EPO because of lobbying for and emergence of software patents in Europe, well before the UPC (with prior names in the McCreevy and Barnier days) that ushers them in. As a software specialist myself, this affects me personally; as an activist, I know this affects many others, and not just in Europe. It is a huge injustice and it can potentially become a lot worse. Action right now is imperative because lobbyists are pushing very hard for the UPC and they try to shape it; this includes monopolists like Microsoft (based on last week’s Bloomberg report) — those that aren’t even European, let alone people (corporations are not people).
Several weeks ago we wrote that "EPO Managers, Patent Lawyers, Commissioners and Other Non-Technical Personnel Tackle Democracy, Alter Laws in Bulk and in Secret". Dr. Ingve Björn Stjerna (shown to the left) has since then sent us two links, noting that he wrote about this subject in his reasonably recent papers. “I just read your above-mentioned blog post,” he wrote to me. “Specifically with regard to transparency and democracy in the UPC context, do you know my papers “Law-making in camera” (accessible here) and “The sub-sub-suboptimal compromise of the EU Parliament” (accessible here) from 2013? Having a look might be worthwhile.”
I spent this weekend going through his papers and I warmly recommend that every single EPO employee does the same. They’re informative and not too lengthy. The topic is relevant and timely. It’s not an externality; the overall outcome is the direct impact of those who are involved in the patent ‘industry’; it’s all about protectionism for corporations and it is against democratic values. It is antithetical to the core values of Western nations.
“It is antithetical to the core values of Western nations.”The author, whom we mentioned here earlier this year, describes himself as “Certified Specialist for Intellectual Property Law [from] Düsseldorf” and the abstract of his first paper about it
[PDF] states: “As it is well known, the “unitary patent“ package has been adopted and now the ratification of the inter-governmental Agreement on the court system by a certain quorum of the Member States is necessary for the “unitary patent“ system to enter into force. Less well known is the fact that, during the legislative process, circumstances were withheld from the public which the political front apparently regarded as dangerous for the entry into force of the “legislative package”. An exemplary case is Council document 15856/11, an opinion of the Council’s Legal Service on the compatibility of the “unitary patent” court system’s amended structure with opinion 1/09 of the European Court of Justice (CJEU). Until very recently, this document was available to the public only in extensively blackened form. Requests for complete access to the document filed on the basis of EC Regulation No 1049/2001 were repeatedly refused on the ground that this could delay the ratification process in the Member States or even call into question the entry into force of the Agreement. The document, additional parts of which were made accessible to the public shortly before the publication of this article, shows why: In it, the Legal Service notes that the structure of the adopted court system may still violate European law. A report on the strange understanding of transparency and democracy exercised in the legislative proceedings for the “unitary patent” package.”
The second paper
[PDF] has the following abstract: “As is well known, in its meeting on 11 December 2012, the European Parliament adopted the so-called “patent package”, consisting of the Regulations on the “unitary patent” and the translation regime while agreeing to the conclusion of an intergovernmental Agreement for the creation of a “Unified Patent Court System”. The “unitary patent” Regulation is based on a compromise proposal of the (former) Cyprus Council Presidency which was discussed by Legal Affairs Committee of the European Parliament in a special meeting on 19 November 2012 from which the public was excluded. An audio recording of the meeting, which recently became available, shows the motives for the acceptance of this “compromise” which one of the rapporteurs called “sub-sub-suboptimal” and “a bad solution” there. The course of this meeting shall afterwards be described and assessed in more detail.”
“The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof).”The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof). Like with many secret ‘trade’ (corporate sovereignty) and censorship/surveillance bills, there is a notorious tendency to change the name of what’s being attempted (for passing), primarily in order to dodge negative associations and injurious publicity. These can be overnight stunts. Now it is known as UPC, but tomorrow politicians might decided to rename it again. Any politician knows this trick; another common trick is to wrap some piece of legislation or law with “pedophiles”, “terrorists”, “pirates”, and “drugs”.
Nobody (among the public) voted for the UPC but patent lawyers (as in “law”) ignore the law and rush ahead. To quote a British law blog: “The UK Government has now selected a location just on the edge of the City of London for the EU’s Unified Patents Court. This will house the London section of the Central Division, with specific jurisdiction in the life sciences areas, a major contributor to the UK economy. With this decision the Unified Patents Court looks one significant step closer to being a part of IP strategy for all innovative businesses wishing to do business in Europe.”
To quote another British law blog: “With the new court term looming, last week IPSoc, the society for junior IP practitioners, hosted its final educational event of 2015, “The UPC: A Panel Debate”. For those readers unfamiliar with the society, IPSoc is an intellectual property society run by juniors, for juniors (and for a nominal annual fee). The organization arranges four educational events, four social events and one fancy annual dinner each year for its members (which the AmeriKat was lucky to attend a couple of years ago).”
“Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback).”Put in simple terms, AmeriKat (Annsley Merelle Ward, who likes to dissociate herself from her views), known to us for several years as IPKat‘s biggest software patents booster, pretends that the UPC is already in effect and is inevitably here. Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback). They play a major role in giving momentum/inertia to politicians whose interests conflict with those of the public, which is mostly kept uninvolved (because it is uninformed, by design).
“The proposed Unified Patent Court fee for revocation proceedings is €20,000,” explains one patents-centric blog (of patent lawyers). “The EPO fee for opposition proceedings is €775. David Lewin expands on how and why you should be taking full strategic advantage of the EPO’s opposition procedure…”
To them it’s all about money. UPC means more power for large corporations and more money for lawyers who serve these corporations’ agenda (large clients pay the lion’s share of profit). At whose expense? European SMBs and European citizens at large. “And with it,” concludes the post, “completing the enhanced European patent system – will come the Unified Patent Court (UPC).”
Step by step they extinguish national sovereignty and abandon long-established laws, which were put there for a reason and evolved over time with public input and facts-based analyses (prioritising public interests, not private interests).
“This is the hallmark of an autocracy.”Why is UPC hardly mentioned in general news sites and newspapers? When did citizens ever vote on it, let alone been given the chance to vote on it (e.g. to oppose)? This is the hallmark of an autocracy.
“UPC will see major patent litigation,” explain patent lawyers, “which is resulting in a lot of ‘scaremongering’ going on” (well, obviously).
“EPLAW’s hon president Pierre Veron,” according to this, said that (probably paraphrased): “The first 4 or 5 preliminary injunctions under UPC will be issued quickly for legal certainty” (more injunctions, to whose advantage?).
Merck Sharp & Dohme’s James Horgan is quoted (or paraphrased) as saying that various “telecoms are most nervous about getting injunctions on preliminary actions under UPC [...] Opting out patents under UPC could be a ‘major headache’ [...] it won’t be patentees but law firms who shape the UPC system” (without even consulting the European public, which has nothing to gain from the UPC).
The patent lawyers are aided by their lawyer friends, who wear “politician” hats. “Ironically,” Managing IP (London-based) noted, “Commissioner EB [Elżbieta Bieńkowska] is from Poland – which has decided not to join the #UnitaryPatent (at least for now)!”
“It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents.”Bieńkowska wrote: “Welcome Italy to #UnitaryPatent: a step further towards unitary protection of #innovation in Europe.#Competitiveness”
What is she talking about? It has nothing whatsoever to do with innovation and definitely not with competitiveness (the propaganda word used in europe.eu). It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents. It harms European business. What was Bieńkowska thinking when she wrote this? Corporate tool or just gullible (or “useful idiot” as Stalinist Russia famously put it)? Other politicians, including some British ones like Lady Neville-Rolfe (Tory who fast-tracks/rams down the throats of Brits the UPC before consent is expressed or referendum takes place), are selling away democracy in Europe. It’s a horrible thing to witness, especially because many people don’t even know that this is silently going on. Passivity among the public, caused by lack of communication, drives the UPC. Managing IP joins the misleading “Competitiveness” chorus by writing: “EU Competitiveness Council to sign Protocol on provisional application of #UPC Agreement tomorrow http://www.consilium.europa.eu/en/press/press-releases/2015/10/1-compet-indicative-programme/ … (w/ Family photo!)”
The family of lawyers (politicians, patent lawyers etc.) is working hard to serve itself at the expense of European citizens, who are kept almost totally in the dark. Amid uncertainty and darkness, Germany, where much of the EPO is based, is now authorising software patents. To quote Patently German: “It is thus quite clear that the FCJ would not have accepted the patent application in its original wording, related to a mathematical method for the determination of the state of a (not further defined) object. Only the restriction of the method to the attitude determination of an airplane provides the required concrete technical application. Would the application also be allowed if the claims were directed not to the attitude determination of a real airplane but one simulated on a computer ? My guess is yes, it would, as in accordance with the rationale expressed by headnote c) of the decision a more reliable knowledge about the attitude of an airplane and thereby influence on the functioning of the attitude detection system (thus the relation to the purposeful use of forces of nature) is obtained also by performing the method of the invention on a flight simulator.”
German pundits say “on ruling by top German court” that “math method patent-eligible if related to using forces of nature” (that is essentially applicable to many if not most software patents, including those in my fields).
Welcome to ‘new’ Europe, where people have no say and corporations get anything they ask for. They even bypass European laws, or rewrite them in private to better suit their interests/convenience, driving competition out of the market and artificially driving up prices. █
“They [EPO examiners] claim that the organisation is decentralising and focusing on granting as many patents as possible to gain financially from fees generated.” —Expatica, European Patent Office staff on strike
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Intimidation and retribution tactics a new low for EPO
Summary: More threats from Benoît Battistelli (threats of termination and legal actions on top of it) help hide the abuses of Battistelli and his fellow thugs at the EPO
TOMORROW we have a very long post coming, regarding the EPO and the UPC. We have meanwhile been trying to figure out why the SUEPO’s Web site has been so quiet as of late and the answer can be found in recent articles. We belately caught up with them this weekend (my wife and I were on vacation at the time of publication).
This one recent article in German, similar to this one
[PDF] which covers a recent controversy, makes the reason crystal clear.
Please bear in mind that my German is very weak, so not only my reading comprehension is limited; the translation too is incomplete and it goes like this:
Escalating dispute in the European Patent Office
A unionist fears for her job. Is she being made an example? The Patent Office is silent regarding the allegations.
By Thomas Magenheim-Hörmann
Munich – If staff were threatened with expulsion in a big German corporation/organisation, especially a senior trade unionist and council boss, the outcry would unquestionably be enormous. Although the European Patent Office (EPO) in Munich operates based on different standards, even there the story makes big waves. “I am to be terminated and in great danger,” says an employee at the centre of this situation. “I” is the council boss Elizabeth Hardon, also union chairman at the Munich-based union SUEPO and thus part of two organisations. There is a Dutch legal fight raging on for two years now — a dispute between management and staff, in which the gloves are drawn out.
At its centre is the French Office President, Benoit Battistelli, who reformed his extra-state authority with an iron fist. Once he even stopped a demonstration of the workforce. Then it was revealed that employees were spied on in the office using bugs and hidden cameras. SUEPO mails are censored. Now [Battistelli] goes after a unionist.
Recently, Hardon was summoned by an internal investigation department. Hardon should have a colleague present while being bullied. The “confidential and personal” invitation was made accessible by SUEPO, internally, before being publicised. Later, she also appeared on an external blog, bringing up SUEPO but wanting to have nothing to do with it. Thereafter, the unionist received a second letter from personnel manager Elodie Bergot, where her “reasonable steps” and “legal measures” were announced — those which one may translate as expulsion.
Hardon had violated confidentiality obligations, even if they related to their own personal matters. Hardon herself and SUEPO are now condemned to silence. Nobody is allowed to talk to journalists without permission from Battistelli. Disciplinary consequences would otherwise result.
Not all the ‘cows’ are at the office. “The search is only for a pretext justifying kicking them out,” says a patent examiner. He wants to remain anonymous. If Hardon must go, new elections for the council are due. “But who then will still be a candidate who is not fully compliant?” Asks the EPA staff. Anyone contrary [to Battistelli] is dumped — this is the lesson that should be taught here.
The Patent Office does not wish to comment on the case. It concerns an ongoing process and about this one EPO can basically say nothing, regrets a spokeswoman. The same applies to a personnel manager at the council. Battistelli himself insisted on a previous occasion against criticism of his style of reform. He only set up what was commissioned by the 38 European member states of the Patent Office. Workers speak against persistent harassment of critical minds and even censorship. The Office insists on home visits to sick employees, which would be impossible under German labour law. But the office is not subject to national law. Therefore, it also ignored the ruling of a Dutch court, which had criticised various violations of the law in the course of reforms.
What remains is a requirement of the Bavarian Data Protection Officer Thomas Petri [and referral] to an external data protection for the office. A heavy burden is on the unionist when it comes to talks between SUEPO, which seeks official recognition of the union. For such a dialogue to become possible, the Patent Office (38 nations) and Battistelli recently committed, so as to restore the industrial peace in the house. Battistelli now shows, as in the example of Hardon, of how little seriousness this was for him to have trade unionists shake hands, says an EPA employee. The EPO staff will be back to monthly protests against the reforms and the methods by which they are to be enforced, says [one person] defiantly. Whether [Hardon] is fired Battistelli can decide, so any resistance breaks [the deal], estimates another insider. One way or another, a deplorable finale promises to take place at the big authority on German soil.
For anything that can be cited as fact, please refer to the original article in German, not the above, as the translation is of low quality and almost definitely contains serious inaccuracies (especially in particular sentences). █
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Photo from EPO.org
Summary: Rumours suggest that Benoît Battistelli’s affairs at the EPO may have something to do with Wim Van der Eijk’s longterm absence
IT IS widely known by now that, due to (probably legitimate) criticism of Željko Topić, Battistelli (arguably) illegally suspended a judge and attacked the EBoA (among other boards).
“The present VP3,” says this comment, “Mr Van der Eijk, is on unlimited sick leave and thus out of function.”
Well, “unlimited sick leave” at the notorious office which treats sick staff like liars and cheats must really mean something. Remember how the EPO framed the suspension of a judge in order to overcome serious legal issues, or create uncertainty and doubt. It’s like assassinating someone, then calling it an “unfortunate accident”.
To quote some sarcastic comments about this: “Sounds like a bloody malingerer to me. He should be immediately summoned to a medical examination by one of the President’s doctors. And of course subject to strict “house arrest” …”
Another one says: “The President has an interest in keeping VP3 at home as at work he does only damages, i.e. he’s unable to control the chairs and the members who are too independent and do not obey orders.”
Another goes like this: “VP3 has always been a silent subordinate of the President and never had the guts to show disagreement with the mad line imposed upon the staff. Now, under house arrest, he has the time to meditate and understand the true nature if [sic] the President. Too late for coming out!”
Here is an important new comment: “VP3 has been appointed by the Administrative Council under Article 11 EPC and thus subject to the disciplinary authority of the Council – not that of the President. It is not clear whether the President can actually impose “house arrest” on him.
“Apart from that he can only be removed from office as the Chairman of the Enlarged Board of Appeal on a proposal of the Enlarged Board of Appeal (Article 23(1) EPC).”
“Given how Battistelli historically dealt with boards like these, one shouldn’t be hastily accused of making a mountain out of a molehill.”The latest mystery, to put it politely or even just prudently, is why he’s away for so long.
“For your information,” told us a source, “the Vice-President in charge of the EPO Boards of Appeal (known internally as DG3) is on extended sick leave [...] Mr van der Eijk is the Vice-President of DG3 (VP3) and also the Chairman of the Enlarged Board of Appeal.” [Wikipedia says "Wim van der Eijk (born ca. 1957) is a Dutch civil servant, currently Vice-President of the European Patent Office (EPO), head of the Boards of Appeal of the EPO, known as DG3 (Directorate-General, 3, Appeals), and Chairman of the EPO Enlarged Board of Appeal."]
Given how Battistelli historically dealt with boards like these, one shouldn’t be hastily accused of making a mountain out of a molehill. Also remember the gag orders that Control Risks and the I.U. use against staff like Elizabeth Hardon whilst under investigation/interrogation [1, 2]. “The Enlarged Board of Appeal,” as someone explained to us, “is one of the few instances which – at least on paper – enjoys some independence from the EPO President although he seems to have been doing his best to interfere in its workings over the last year or so.
“Internal rumour at the EPO has it that some recent decisions of the Enlarged Board of Appeal have not been to Battistelli’s liking.”
We covered this before. The Enlarged Board of Appeal and other boards have been under bombardment (at times silent) by Battistelli and his ilk.
Our source “can’t say at this point whether there is any connection between these events and the sudden mysterious “indisposition” of VP3. But it definitely looks like there is something fishy going on behind the scenes.”
As we explained about a year ago, the Administrative Council is now in Battistelli’s pocket and largely subservient to him.
“If the Administrative Council was doing its job properly,” told us another source, “they should investigate what exactly is going on. But if past performance is any indicator, they are more likely to stick their heads in the sand at the upcoming quarterly meeting on 14th/15th October.” █
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Summary: A big story about the EPO and Microsoft working in a sort of collusion-type setup so as to serve Microsoft’s patent agenda, which involves aggression, even against European software that is Free (as in freedom)
AS ANYONE who has read this blog for a while ought to know (even based on yesterday's post, which is very hot in Reddit right now), Microsoft viciously attacks its competition — including Free/libre software such as GNU/Linux — using software patents, even in Europe (recall the Dutch company TomTom for instance) where software patents are in principle not legal. Now we know why the EPO lets that be. It very much affects Free software and Linux, which Techrights is principally about. It also helps show how Microsoft’s dirty tricks continue, carrying on behind closed doors; Microsoft — like the EPO — thinks it is above the law.
Days ago we learned about Microsoft’s ‘special’ relationship with the EPO under Battistelli’s lead. We kept quiet about it because the security of our sources is paramount. It reminded us of Microsoft’s ‘special’ relationship with Sarkozy et al. Well, now that it’s out (Merpel posted fragments from it at 4AM this morning), we are ready to show what several sources have independently leaked to us. Comparing the material from different sources helps verify authenticity. It is largely (but not only) based on the latest SUEPO publication. There is an article about the investigation of Control Risks in there, but we’ll leave that for another article as it deals with a separate subject.
As we noted last week and also yesterday (noting that Microsoft had begun lobbying regarding the UPC, trying to shape European law despite being a US company), there is serious corruption here and it helps remind everyone in Europe who the EPO really serves. It’s all about multinational/foreign giants, not European companies (let alone European people). The EPO is grossly discriminating against small companies. It’s truly an abomination. Corruption seems to be rampant across Europe — contrary to common belief outside the EU.
Rather than bore readers with repetition of arguments and a story, we are going to highlight parts of the article from Merpel and remind readers that Microsoft exploits software patents to launch legal battles against Linux and Free software-friendly companies, despite software patents being illegal in Europe.
From the first part of Merpel’s article:
EPO queue jumping part 1 – Don’t be an SME”
“Here’s an interesting thought experiment about how patent offices should operate. Two patent applications are pending at the European Patent Office (EPO). Imagine that one was filed several years ago by Microsoft, and the other was filed at the same time by (say) an Italian SME which files “only” 10 patent applications per annum.”
“However, this pilot programme seems different, both in terms of purpose and in terms of execution. There is something imbalanced in having high-ranking EPO officials make a pilgrimage to the premises of large applicants “to ensure that we do not lose workload market share”. There is an element of bending the knee involved that makes Merpel uncomfortable.”
“The implications of this are astounding. Smaller applicants are being discriminated against because they don’t have the clout of threatening to pull their business from the EPO. But if you’re a major contributor to the EPO’s coffers, your cases will get priority at the expense of smaller applicants.
“Merpel hopes this is all untrue, but it has the “stranger than fiction” quality that is characteristic of many EPO stories that have proved accurate. Anyone who knows more and who can comply with the normal rules of comment etiquette, please do tell!”
Here are the relevant original bits:
Changing priorities in DG1 Earlier this year the Office issued two internal memos entitled “Closer Contacts with Major Applicants”. The reason given was to
“foster a better esprit de service, not least to ensure that we do not lose workload market share to other major Offices”.
We cite further:
“The ICT cluster has had close contact with both Canon and Microsoft recently and their experience prompted this pilot… The pilot started on 1.4 for ten major applicants…. For the 10 applicants, there will be one DG1 director in direct contact with one person in the company… The idea is that the DG1 director will be in regular contact … with his counterpart from the applicant and that at least once in the pilot year there will be a high level visit (PD, directors, DG2 and DG5 representatives where necessary) to the company.”
One of the early off-shoots was that directors and examiners were gently reminded that the Office had entered in a closer cooperation project with Microsoft, so could the examiners please take care of a list of [overdue] Microsoft files for which the deadline [for the examiner to issue a communication] had expired? We obviously have no problems with reminders to examiners to prioritise files that are overdue. But such reminders should cover all files that are similarly overdue, not just those of a specific applicant.
Merpel did a fine job explaining what’s wrong with the above and went on to commenting on the EPO's corruption of French media, publishing part two just 3 minutes later (at 4AM her time). To quote the outset: “Part 1 of this guide to getting your application examined earlier started with a thought experiment: should a multinational’s application get examiner more quickly than an SMEs. The answer is no, but the EPO may be subtly reminding examiners to prioritise such files nonetheless at the expense of smaller applicants. Now for an even easier thought experiment. You can do this one with your eyes closed, which of course is the recommended approach for all thought experiments anyway. Two applicants (Señor Lopez from Barcelona and Monsieur Durand from Marseille) file their patent applications at the EPO on the same day. Both applications are in the same technical area. Also, both are first filings for which the EPO is committed to providing a search report and written opinion at an early stage.”
We recommend Merpel’s original article about this. As always, with the pseudo-anonymity offered by Google’s Blogspot (in the NSA PRISM programme, which isn’t too far from Control Risks staff), there are also many comments there, sometimes from EPO staff.
IP Kat beat Techrights to it regarding this scandal not just due to lack of time (we have returned from vacation) but because we are careful not to compromise sources. IP Kat thankfully reported this corruption before we did, so if anyone gets caught, it won’t be our fault. We thought twice before publishing anything at all about this. If any of our readers can share information of value with us, please ensure anonymity (a lot more important than encryption in this case), then message
firstname.lastname@example.org. Provided the information does not put anyone at risk, we promise to give it the attention it deserves. █
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