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03.26.17

His Master’s Voice, Jesper Kongstad, Blocks Discussion of Investigative and Disciplinary Procedures at the EPO

Posted in Europe, Patents at 1:28 pm by Dr. Roy Schestowitz

Summary: The Chairman of the Administrative Council of the European Patent Organisation is actively preventing not just the dismissal of Battistelli but also discussion of Battistelli’s abuses

EARLIER today we wrote about Jesper Kongstad, Chairman of the Administrative Council, who can in principle get rid of Battistelli. But instead he hiding key facts from the delegates and is protecting Battistelli from these delegates, in spite of many EPO (Office) scandals that put the EPO at risk of total collapse.

“So, not too shockingly, Kongstad remains a chinchilla of Battistelli and also stonewaller of Battistelli, i.e. a key facilitator of the abusive regime and thus an active collaborator.”Readers were not too surprised by what was shown because employees of the EPO generally regard Kongstad to be little more than a chinchilla of Battistelli, totally incapable of supervising the “king” (a word which is in Jesper’s own surname). “During the last AC meeting (March 2017),” one reader explained to us, “several delegations of the Board 28 complained that a proposal concerning the investigative and disciplinary procedures at the EPO had not been put on the agenda of the March 2017 AC. The Council Chairman, Jesper Kongstad, admitted during the meeting that it had not been done, but said that the document would be made available soon. But the delaying tactics was successful – the subject could not be discussed during the March Council.”

Highlighted in yellow are the relevant bits from the relevant document.

AC on UI

AC on UI

AC on UI

AC on UI

“The proposal,” our reader explains, “now available as CA/32/17 had been filed by the delegations of Switzerland, Germany, France and The Netherlands on 21 February, a few days after a discussion during the 16 February Board 28 meeting. See point 8 of the minutes of the meeting.”

Here is the corresponding portion:

AC Board

So, not too shockingly, Kongstad remains a chinchilla of Battistelli and also stonewaller of Battistelli, i.e. a key facilitator of the abusive regime and thus an active collaborator. He is under no obligation to do so. If and when the EPO comes under a serious investigation, Kongstad will have a lot more to worry about than that massive 'farm' of chinchillas in tiny cages all over his mansion (waiting to be slaughtered and sold for their skin). How can human empathy (e.g. for EPO staff) be expected from a skin farmer?

Heiko Maas and the State of Germany Viewed as Increasingly Complicit in EPO Scandals and Toxic UPC Agenda

Posted in Europe, Patents at 8:19 am by Dr. Roy Schestowitz

Summary: It is becoming hard if not impossible to interpret silence and inaction from Maas as a form of endorsement for everything the EPO has been doing, with the German delegates displaying more of that apathy which in itself constitutes a form of complicity

WE PREVIOUSLY wrote about Maas supporting the UPC, which would exacerbate the already-growing problem of patent trolls in Germany. What does Maas want for his country and what does he envision for Europe? The same mess that Battistelli is envisioning?

“The German delegation sometimes expresses strong criticism of Battistelli’s reform proposals during Council meetings,” one reader recently told us. “But in the end, they almost never vote against any of them.

Heiko Maas sale“An example is the recently-endorsed proposal ‘functional allowances’ which authorises the payment of additional boni to some selected managers. Its lack of clear criteria and transparency were criticised in the March 2017 Council meeting. Other examples are two reforms voted in the December 2016 Council meeting: the Internal Appeals Committee reform (which bears a great risk that the composition of Battistelli’s Internal Appeals Committee will be ruled illegal by the ILO tribunal again; it would be the third time), and the removal of the Boards of Appeals to Haar (which was qualified as both unnecessary and non-urgent by many delegations).

“The cartoon apparently makes fun of the German delegation’s indecisive maneuvering.”

Rent a Maas

As a reminder, the head of the German delegation might be Battistelli’s successor [1, 2, 3, 4, 5, 6] and German parliament (Bundestag) recently did a charade of a vote where only 5% of politicians actually voted [1, 2]. It became a publicity stunt of Team UPC and EPO management; no doubt Maas too was pleased. As far as we’re aware, neither he nor Merkel did as little as react to the letter from the International and European Public Services Organisation [1, 2]. It’s a disgrace; it damages Germany’s reputation in Europe and worldwide.

With IP Kat Coverage of EPO Scandals Coming to an End (Officially), Techrights and The Register Remain to Cover New Developments

Posted in Europe, Patents at 7:26 am by Dr. Roy Schestowitz

EPO is playing a game of Whac-A-Mole, but McCarthyism tends to backfire

Kieren McCarthySummary: One final post about the end of Merpel’s EPO coverage, which is unfortunate but understandable given the EPO’s track record attacking the media, including blogs like IP Kat, sites of patent stakeholders, and even so-called media partners

“Great blogs come and go,” said one person about the end of Eponia coverage by Merpel (EPO scandals) and another person asked: “So this is the end of any possibility for people to give their comments on eponia? Where else can we go?”

Well, Techrights remains committed to covering EPO matters to the very end (of Team Battistelli and those who protected it, Jesper Kongstad included). This may take some time, but we’ll get there. I’m not going anywhere, not even if the EPO is attempting to silence me. The more aggressive the EPO becomes, the more enemies it will make, and the more eager they will be to end this aggression. Battistelli and his cronies already know that they are circling down the vortex and they attempt to grab any money they can put their claws on while descending towards the drain. They’re making an implosion or brewing an explosion even bigger (when of if authorities finally tackle these issues and belatedly investigate).

Another person later said:

Dear Merpel

Thank you for your commentary and hard work. It is very sad to see you bow (meow!) out of commenting on EPONIA matters. I do not understand but I am grateful.

You have provided balanced insight into difficult situations, and hope for the unheard.

There must be a reason behind this. If it is personal – so be it – sometimes life takes us away from the path we might have wished to follow and I thank you for your efforts.

If it is something else – whether external pressure or internal frustration – could you try to find another blogger who can take on the mantel of Merpel in this role of providing sensible commentary on EPONIA. Son of Merpel (or daughter of Merpel) has a nice ring to it, someone to take on this difficult, task. Someone must be the “ringbearer” if the present incumbent cannot go on.

Who will take up the challenge – Merpel would you help such a person if they approached you anonymously? I do hope so.

“Cutting, unabashed and your often funny interventions make you special,” another reader (“Ashley”) said. “We will miss you.”

Here is a joke about Battistelli barking:

Personally I never understood that a cat could understand something of this IP business.This is not serious.

I see despite my greatness and endless competence in all matters I do not master, how difficult this is. So a cat talking IP…. Hahahahahah

All of this must be modernised at once: now the cat will be investing its time in more productive actions, eg chasing mice and if below target, the cat will meet the Dog.

Benoit stop barking, quiet please I am dealing with it, calm down my Benoit, calm down, the cat will soon get it trust me

“Raising the profile of the goings on at the EPO might have been better accomplished had the blog posting not been under the pseudonym of a kat,” noted another person. “Why anyone would believe that others will pay heed to such anonymous comments is beyond me.”

Considering the abuse by the EPO’s management against bloggers and apparently even broadcasters, anonymity may make sense. These people are so certain they’re immune from prosecution, so they’ll stop at nothing!

“Thanks Merpel,” wrote another reader. “Giving paws for thought. Enjoy a bit of me-ow time… And ignore the snarky know it all comments. We know you’ve made a difference!”

She has. She helped us too.

The following commenter asked, “can’t you stay one more year”? Well, Battistelli is staying one more year, unless delegates can get their act together and toss out Battistelli prematurely. Here is the comment in full:

During all these years Merpel has been our “radio Londres” the voice of the resistance.
Things would have been much worse without you.
Where would have Laurent found a place to speak, to be listened ?
We have heard the voice of the real Europeans who are the examiners, but also seen the pure mediocrity of those who pretend to be superior but in reality are less than nothing.
Thanks to you (and a few others) he has lost the battle of communication and this made him even more mad and mean than he already was.
I thank you for all, but things here are dark and I fear the last year is going to turn even darker.
Please Merpel, can’t you stay one more year ?

“I used to say of Merpel that her presence on the Eponia battlefield made the difference of forty thousand men,” this reader remarked and another person said:

Dear Merpel, we hate to see you go. Your coverage was precise, the documents good. The problem with the “wider press” is that often they have no clue at IP and especially the special legal construct of the EPO. You did know all that (see your impressive summary in this post) – a tip of the hat! The style of your writing is also something I’ll miss. Oh yes – one last detail re BB: the restriction of internal appeals at the EPO in 2011 already, to the effect that appeals against “general” regulations were not possible anymore, i.e. they had to go to ILO. The start of the deluge there. With all these actions, its hard not to see a master plan in action. The final goal??? All the best to your kittens, Merpel! Maybe one of them wants to continue this sorely needed blog?

That’s actually an important point right there about lack of understanding among journalists. This is so often exploited by EPO management, which attempts to paint staff as spoiled (obsessing over money) while distracting from the serious abuses against that staff.

The following comment corrected a statement made by Merpel:

But a Dutch court decision lifting the immunity of the EPO from national jurisdiction, on the basis that the delay at ILO-AT denied EPO employees effective access to justice, was overturned on appeal.

As I understood the Appeal Court ruling, that’s not quite correct, Merpel.

The EPO’s immunity was lifted not because of delays at the ILOAT but because the Staff Union (as a collective body) has no possibility to bring a complaint before the ILOAT. In other words the (main) reason for lifting immunity in that case was because the Staff Union has no access to the ILOAT.

The position taken by the Dutch Supreme court appears to have been that this did not amount to denial of access to justice. For the Supreme Court it was sufficient that individual Staff Union members could – as EPO staff members – bring individual complaints before the ILOAT.

Earlier this month EPO management lied to staff about ILOAT. They hoped that nobody would challenge them on it, so they posted this internally only.

The following comment said that “at the EPO’s Administrative Council, voters are not so dumb” but many may be corruptible and they are managed or represented by a disgraced Dane who misleads and antagonises them. Here is the comment in full:

We are living through a period in which voters notoriously cast their vote against their own long term interests. Meanwhile, at the EPO’s Administrative Council, voters are not so dumb. They vote quite deliberately in what they callously and ruthlessly perceive to be their own national (and maybe also personal) financial interest. EPO staff are seen as privileged and pampered, and therefore undeserving, so that their warnings of irreparable harm being done to the Organisation by its President are hand-waved away as nothing more than self-serving. How ironic!

How naive is it, to suppose that AC members would vote any other way?

We quite liked the following comment as well. It says that the “IP world value the EPO (as was). If it were otherwise, would any of us be quite so concerned about how bad things have got?”

What is your point? Does the EPO deserve a pat on the back for some of its truly worthwhile achievements? Absolutely! But does this mean that the media should think twice before reporting very disturbing developments in Eponia? Absolutely not!!

Actually, this all goes to show how highly those in the IP world value the EPO (as was). If it were otherwise, would any of us be quite so concerned about how bad things have got?

This was preceded by the statement that “there is a layer of society that considers itself to be above the law [...] but [nothing assures] absolute immunity.”

It is not naïve to assume that AC members (and the EPO management) would respect the rule of law. On the contrary, it is the minimum that the users of the patent system (and the general public) should be entitled to expect.

Whilst this situation has been allowed to persist by the EPO management’s reliance upon legal immunities (and cronyism within the AC), this is no answer to the basic charge – that what has been done is contrary to EU law, the EPC and the European Convention on Human Rights.

I know that there is a layer of society that considers itself to be above the law, but to allow this situation to continue unchallenged would frankly not only be immoral but also a high risk strategy for those involved who do not have (or who cannot guarantee retaining) absolute immunity.

It seems as though, at least here in Britain, it’s mostly us and The Register who are left to cover the EPO saga. The Register‘s Kieren McCarthy can be contacted here and we too can be contacted anonymously.

Everyone, Including Patent Law Firms, Will Suffer From the Demise of the EPO

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

And those bearing the most brunt are probably European businesses, which will fall victim to litigation over dubious patents

Too Much of a Good Thing Can Be Bad
The quality of patents matters, as too much of a “good thing” — as the saying goes — can be disastrous.

Summary: Concerns about quality of patents granted by the EPO (EPs) are publicly raised by industry/EPO insiders, albeit in an anonymous fashion

“It is clear that this blog has been exposed to [EPO] pressure and had ceeded to it in the past,” said one comment to IP Kat readers, after the blog had announced it would stop covering EPO scandals. “The present [EPO] management has reduced the EPO to a money printing machine which suits most applicants and more so representatives just fine.”

So there is finally growing consensus on the EPO‘s management being reduced to just a bunch of greedy people turning the Office into “a money printing machine” (and personal cash cow)? Even if that means that this will kill the Office not too long from now? The emerging consensus regarding the EPO is that its management is a “swamp” that needs draining. Here is the curious comment:

Really it is not too much of a pity that the feline is no longer reporting one what is none of its concerns. It is clear that this blog has been exposed to pressure and had ceeded to it in the past. Non-profit or not, this is a blog run by patent attorneys. The conflict at the EPO is a social question of labour law and human Rights. Here you find patent and TM and copyright attorneys, not experts in interational labour law or human rights. At most educated amateurs, in any case interested ones, It shows how desperate the staff of the EPO has got to be to look and in appearance find support by their natural adversaries. As it is not dignified for the EBOA to publish their decisions on Wikipedia it is not dignified for public officials to publish their concerns on a blog like this. The appropriate fora are others, e.g. that of the SUEPO and maybe even techrights. The applicant’s are not the customers of the examiners they don’t pay their salaries, fees are not prices, their interest is dialectically and diametrally oppossed and should remain so. Applicant’s by default are not interested in quality. The present management has reduced the EPO to a money printing machine which suits most applicants and more so representatives just fine. The vast majority of their income comes from prosecution before offices not before courts Risk of litigation nullity etc are theortical issues. A negiglible fraction of granted patents either get legally enforced or challenged. The reasons for holding a patent are different. Tax optimisation, balance sheet cosmetics and some even less noble aims. Examiners on the contrary work for the public. They protect the intellectual property of the public, not that of the applicant. A fair fraction of them is not even European and hence not a stakeholder in a European organisation.

“No real checking of quality is done” at the EPO. So says the following comment:

I fulhheartedly agree.

As chair I see a decline, as OPPO member I see a decline, and it all boils down to second and chair not having the time to actually check the work. The search checks (which get ISO 9001 recorded) are positive, because the time allowance is such, that you cannot do much more than understanding the subject-matter of the application, and see what was done, and click through the forms. No real checking of quality is done. 2h is really on the short side, at least in my field…
But then, quality is very subjective here..

A previous president, Mr Kober, took a stack of search file, had them duplicated so that another search examiner could do exactly the same file. He expected in most cases the same documents to be cited. This turned out to be illusionary. But, the same application with different searches had different documents, but the differences in which dependent claim may be positive was negligible. Different reasoning, same result.
I fear, this would not be the case anymore, if the same exercise was repeated. Also because the new search tools would find the very similar first done search, and the second search examiner would build on that or even stop the search there….

One person rightly took issue with the supposition that “attorneys and EPO staff are ‘natural adversaries’ and ‘their interest is dialectically and diametrally oppossed [sic] and should remain so’.” There’s a distinction to be made between attorneys and law firms, and moreover between the patent microcosm (or maximalists) and people who are in it for the science. To quote the explanation:

I must remember this next time I chair an opposition. Now, how do I manage to annoy both parties so that they both feel persecuted?? Once more, a comment says far more about the writer. As an examiner, my only aim is to examine applications based on the EPC. I may get it wrong – in either direction – but there really is no interest here in opposing you just for the fun of it. Under the current regime, I stand to gain a lot more from being as generous to you as possible (within the EPC). As for oppositions or appeals, the idea that the judges are adversaries of every attorney is worthy of far wittier analysis than I can muster.

Best wishes for your future dealings. Trust me, we really have never been out to get you (yes, I know, I would say that…)

Looking at the USPTO right now, patent quality has improved. It’s moving in exactly the opposite direction (opposite from the EPO’s). Very soon it might turn out that, based on the Supreme Court, patent maximalism will regress even further. Here is what the EFF wrote regarding Impression Products v Lexmark International the other day:

Today, the Supreme Court heard arguments in a case that could allow companies to keep a dead hand of control over their products, even after you buy them. The case, Impression Products v. Lexmark International, is on appeal from the Court of Appeals for the Federal Circuit, who last year affirmed its own precedent allowing patent holders to restrict how consumers can use the products they buy. That decision, and the precedent it relied on, departs from long established legal rules that safeguard consumers and enable innovation.

When you buy something physical—a toaster, a book, or a printer, for example—you expect to be free to use it as you see fit: to adapt it to suit your needs, fix it when it breaks, re-use it, lend it, sell it, or give it away when you’re done with it. Your freedom to do those things is a necessary aspect of your ownership of those objects. If you can’t do them, because the seller or manufacturer has imposed restrictions or limitations on your use of the product, then you don’t really own them. Traditionally, the law safeguards these freedoms by discouraging sellers from imposing certain conditions or restrictions on the sale of goods and property, and limiting the circumstances in which those restrictions may be imposed by contract.

We wrote about that last year. A Justice who was involved in Alice and is now involved in this case (Stephen Breyer) seems likely to reduce the scope and magnitude of patents, which is why maximalists have been attacking him lately.

Yes, Battistelli’s Ban on EPO Strikes (or Severe Limitation Thereof) is a Violation of Human Rights

Posted in Europe, Patents at 5:55 am by Dr. Roy Schestowitz

British unions must defend their right to strike – and become better at it
Reference: British unions must defend their right to strike – and become better at it

Summary: Battistelli has curtailed even the right to strike, yet anonymous cowards attempt to blame the staff (as in patent examiners) for not going out of their way to engage in ‘unauthorised’ strikes (entailing dismissal)

THE EPO had a general strike one year ago. The Office was half empty. But it only lasted one day, it resulted in paycuts for those who participated, and it took a monumental effort to organise, with permission sought from the bosses under extreme constraints and risk to those voting/joining. This isn’t what we should expect in the 21st century, certainly not in the EPO. The whole thing (the strike and vote for a strike) just came to show how badly oppressed EPO staff really is. For Battistelli and Bergot, moreover, attempts to prevent the strike were self-defeating and they just served to reinforce the point made by disgruntled staff (almost everyone vote for a strike).

The other day we noticed the following comment, which responded to provocation that we refuse to repeat (similar provocation, maybe from the same person, was posted among comments in The Register at the same time). To quote the response alone:

I understand that the examiners have moved to this working practice because Battistelli introduced Rank and Yank. Last year, the EPO granted 90,000 patents, which is 50% more than in the years before. The examiners increased their production by 50% just to compete with their colleagues for a salary increase of about 2,000 euro per year, which only half of the examiners are entitled to receive.

[provocation omitted]

I do not know anyone who works “for the bonus of 2,000 euro”. I certainly don’t. In fact, I couldn’t care less if I get the bonus or not. What is much more worrying is missing your target by such an amount that you get a poor report.

“But it is even worse. A judge remains in limbo, union officials have been fired, the appeal court will be moved to the outskirts of Munich. And the staff in the EPO remains silent. Poor people! They get what they deserve. “Even if you win the rat race, you are still a rat.” ”

Unfortunately we are powerless, with the changes that BB has introduced. We have been been as non-silent as possible, witness the various protest marches that we have held, resulting in occasional negative reports in the (local) press. I’m curious what else it is that you think we should do under the current management – you may have rights in your country (whichever that is), unfortunately, as has been repeatedly demonstrated, we don’t. Obviously, when they decide to start investigating the contents of our private electronic devices, not only will we have no rights, we will also have no privacy.

I am posting anonymously for obvious reasons.

In reply to the above, one person said: “A proper all out strike for a month would have sent a message that could not have been ignored.”

This demonstrates that some clueless people (who don’t know the EPO’s new rules) are eager to just blame the victims. If the staff strikes without permission — as ludicrous as the notion of permission may be in this context — Team Battistelli will replace staff with Google algorithms (this is already done to a degree, limiting their role in decision-making and assessment of prior art). It would further damage patent quality and thus penalise European businesses.

The person in question (maybe just blissfully naïve) said:

EPO staff have nobody to blame but themselves.

A proper all out strike for a month would have sent a message that could not have been ignored.

If people are not prepared to show solidarity and fight for their rights then there is no point whingeing when they are taken away from you.

“I would think twice before blaming the examiners” at the EPO, said a person in response to this. They’re the victim. They are well paid, but they are suffering. The reply to the above went as follows:

Wow. That’s pretty harsh. Whilst I too have never been in the employ of the European Patent Organisation, I would think twice before blaming the examiners in the way that you have done.

You do realise that BB has imposed serious restrictions upon the ability of EPO employees to strike, don’t you? So, in effect, he has taken away the very weapon that you condemn the EPO examiners for not deploying.

And as for fighting for their rights, do you not count taking court cases as far as possible in both Germany and the Netherlands? And what about making repeated pleas to the members of the AC?

Frankly, I think that you should walk a mile or two in the shoes of the examiners… deprived of rights enshrined in European law, badly let down by the “supervisory” bodies (the AC, ILOAT and the national courts) that should be there to protect you, invisible to the majority of the general public, ignored by most mainstream media and politicians, the subject of increasingly draconian rules imposed by EPO management, etc., etc. I would like to see how you coped with all of that!

About time you had treatment for your hypoempathy disorder, methinks.

If they ever go beyond the rules, they will get sacked. Battistelli is merciless and he makes “examples” out of people, even innocent people. Yet the same person persists with the idea of civil disobedience on Battistelli’s ‘production line’, where no anonymity is possible:

Not true.

BB certainly imposed some restrictions on striking but he did not prevent a strike being called if the staff really wanted it. There just has to be a strike ballot and the will to follow through.

Instead of striking, the staff has basically capitulated and even went so far as to churn out a 40% production increase.

While you are at it maybe you should ask the Appeal Boards what happened to their interview with an IP journal and why they voluntarily consented to be censored by BB?

Unless you can explain that one I don’t intend to go for any hypoempathy disorder treatment any time soon.

Someone clarified the rules even further:

Would that it were so simple.
“The President of the Office may lay down further terms and conditions for the application of this Article to all employees; these shall cover inter alia the maximum strike duration and the voting process”

http://ipkitten.blogspot.co.uk/2014/04/the-epo-rules-on-strikes-revealed-to.html

Indeed, BB is not afraid of “outlawing” strikes for which the staff have voted (in spite the draconian rules).

http://www.worldipreview.com/news/anger-as-epo-president-rejects-latest-strike-6767

Looks like you will have to start that treatment after all…

You will also have to explain what you mean about the Boards of Appeal. The structure of the EPO means that issues with DG3 are different to those with DG1. So I am not quite sure what the relevance of DG3′s actions would be to the situation in DG1. Do let me know if I’m missing something, though.

The very notion of a boss rejecting a call for a strike is utterly ludicrous. Therein lies a key issue, yet some people insist that unless EPO workers resign or engage in “illegal” strikes which would cause dismissal, they are part of the problem.

Even the EPO’s Administrative Council No Longer Trusts Its Chairman, Battistelli’s ‘Chinchilla’ Jesper Kongstad

Posted in Europe, Patents at 5:15 am by Dr. Roy Schestowitz

Terms such as “Team Chinchilla” perhaps wrongly assume that the Council still tolerates Kongstad (who kills chinchillas for profit, as his wife demonstrates below)

LANDBRUG photo

Summary: Kongstad’s protection of Battistelli, whom he is supposed to oversee, stretches to the point where national representatives (delegates) are being misinformed

OVER the years, many letters to Jesper Kongstad fell on deaf ears. We have been covering such examples since 2014. The EPO seems to be managed by problematic people at two levels: the Office and the Organisation (or Council). This became apparent again earlier this month when Kongstad protected Battistelli from the Council rather than protect the Council from Battistelli. He got it all backwards, so both EPOs — both the Office and the Organisation — are unofficially defunct.

Not too long ago we saw our analysis cited in IP Kat comments (now that it no longer covers the subject). One comment said:

Protest in front of the main building in Munich.

http://techrights.org/2017/03/14/epo-letter-to-heads-of-delegations/

And in another thread:

EPO Protest Tomorrow, Heads of Delegations Informed Regarding the Reasons

See Techrights : http://techrights.org/2017/03/14/epo-letter-to-heads-of-delegations/

The delegates have been trying to do the right thing. Some of them, especially of the larger nations, want Battistelli ousted. But it recently came to our attention that Kongstad keeps them too in the dark. Maybe it’s time for delegates to oust Kongstad. He is part of the problem and an impediment to any solution.

“The delegates have been trying to do the right thing. Some of them, especially of the larger nations, want Battistelli ousted.”According to reliable information that we received, last year there were attempts to submit a complaint for corporate harassment to the Administrative Council (AC), “to be delivered via Kongstad.” One EPO veteran said that this would help bypass the “hopelessly longer route of an internal appeal, yet there is no guarantee of a positive decision.”

We already wrote about the ILO blasting this process. “They most probably won’t answer at all,” a source told us at the time. “But now,” we learned, “issues like this start to pile up on the AC’s table and the embarrassment becomes harder to hide.”

One person, we’re told, “was clever enough to send a complaint to Kongstad expecting he would bury it in his papers. He did. And when the issue [ultimately] burst out, the AC pulled an ear to Kongstad, asking why they hadn’t be informed. Well done.”

“Maybe it’s time for delegates to oust Kongstad.”So, put in simple terms, Kongstad is keeping delegates in the dark at Battistelli’s behest. Is that the form of behaviour which one can expect from a ‘supervisor’ of Battistelli?

For those who think that the Kongstads have withdrawn their cruel business since the negative publicity began, think again. They’re still active almost every day, posting stuff like the below (lots of dead animals, turned into ornaments in a factory-like fashion). We’re a little surprised that this is considered permissible by Facebook’s terms of service.

Kongstad Chinchilla

Thanks to Merpel, the World Knows EPO Scandals a Lot Better, But It’s a Shame That IP Kat Helped UPC

Posted in Europe, Patents at 4:14 am by Dr. Roy Schestowitz

Also see: IP Kat is Lobbying Heavily for the UPC, Courtesy of Team UPC (competing interests in the same blog)

Bristows LLP and EPO

Summary: A look back at Merpel’s final post about EPO scandals and the looming threat of the UPC, which UPC opportunists such as Bristows LLP still try hard to make a reality, exploiting bogus (hastily-granted) patents for endless litigation all around Europe

Right now, with UPC lobbying in full force (just three days left before Article 50 invocation), some IP Kat circles like Bristows LLP/Bristows UPC (using the blog for lobbying) could probably use Battistelli’s EPO as an ally. Merpel never publicly acknowledged the EPO’s sanctions (blog banned), further actions, or hints thereof as playing a role in self-censorship about EPO scandals. Truth be told, it’s like an NDA scenario; I should know as the EPO tried to gag me about threats that it had sent me. It’s a classic modus operandi and SLAPP-happy lawyers use that sparingly. Shiva Ayyadurai and his lawyer (who attacks the media on behalf of Melania Trump) did this to me earlier this year.

We are gratified for the time Merpel spent shedding light on the EPO. We use a lot of her revelations to this day. In fact, to date, some information that’s in the public domain is a Merpel “exclusive”. That information is still publicly accessible, so the EPO never successfully deleted history. It’s all documented online.

Now that the Administrative Council of the European Patent Organisation sounds like its master's voice (Battistelli) action is urgently needed. After the Dutch election (earlier this month) allies of EPO staff are even fewer. The EPO conflict persists and the issue is anything but resolved, or even near a solution. Merpel is unlikely to change her mind, even if she ever publicly acknowledged that her assumption was wrong (about things improving or reaching a breaking point). “‘Public’ institution threatens non-profit blog that informs the public, blog gives up,” I told her earlier this month, adding, “please don’t give up fighting for justice, for staff and parties affected (all of Europe).”

It certainly feels like IP Kat actually did want to write about EPO scandals, but someone in the blog capitulated to the bullies. Techrights will carry on of course, and The Register too does a good job covering these scandals. This already tarnishes the image of EPO management and politicians cite these articles in support of their motions (recently in Dutch Parliament for instance). It seems like too few people are both capable (have the background knowledge) and willing to expose and tackle EPO abuses. We hope IP Kat will rethink its self-censorship on the matter, but we can’t be optimistic about it. We’ll just assume that no matter the persistence and persuasion from readers, Merpel has already made up her mind. She did not respond to any of the comments urging her to carry on.

“Keep going,” one person wrote, “don’t stop! He will have his Waterloo soon…surely, please God!” (“From: a “customer” of the EPO, that like quality “products”…even if they to wait a little while to get them”).

We need to keep fighting not just for EPO workers but for Europe in general. A lot is at stake here. As the following comment put it: “No strikes anymore, no resistance, nothing. Good bye, EPO!”

Unless something is done to redeem the EPO, the whole institution will be destroyed. Here is the comment in full:

Thank you for your regular reports in the past. It appears that also applicants lost their interest in the EPO. Why should we pay enormous fees for fake quality? I feel sorry for the examiners, but they are digging their own graves by solely looking at production figures in order to get more money. No strikes anymore, no resistance, nothing. Good bye, EPO!

Someone then responds with claims that the “unfortunate reality is that highly qualified, highly intelligent examiners are viewed as mindless drones” under Battistelli. Therein lies one of the core causes of brain drain. Here is the full comment:

We EPO Examiners are not “solely looking at production figures in order to get more money” as you put it. We are doing our best to perform our job as it supposed to be done, in an increasingly hostile environment, whilst trying to keep our jobs; no more, no less. More money does not come into it, and never has.

Don’t forget, examiners are all either scientists or engineers; once you have done our job for more than a few years, it is hard to change jobs, and is especially hard to do if you have a family. The unfortunate reality is that highly qualified, highly intelligent examiners are viewed as mindless drones by EPO higher management, and are treated as such…

The next comment speaks of “dubious (AC / EPO management) practices that are a serious threat to the reputation of all of us who work in the patent microcosm.”

Yes, the term “patent microcosm” was used and they too worry about what Battistelli has done. To quote:

Merpel – many thanks for covering the EPO up to now. The information, insights and commentary that you have provided have been invaluable in shedding light on dubious (AC / EPO management) practices that are a serious threat to the reputation of all of us who work in the patent microcosm.

I do hope that you will be able to pass the baton over to another member of the IPKat family. With the reputation of the EPO now in tatters, it would be a shame if the IP world lost an important source of information that helps it to critically assess the picture painted by the management of the EPO.

“EPOmustGO,” said an anonymous comment. “Replacing the president won’t change anything in its democratic deficiency,” the person added. Actually, while the EPO was never a paradise, it wasn’t ever this horrific. Insiders say that even several years ago things were more or less acceptable.

A more courteous comment said this to Merpel at al:

Guys be proud of the work you did for the benefit of the IP community since the dysfunctionings of the EPO impact the IP community obvsiouly.

Your posts will be missed but hey that’s life.

All the best to you and thanks for work done.

“Now EPO has decided to PACE everything,” the next comment from “Observer” said, “but without listening to its users and exclusively pleasing its shareholders.”

There is also something inherently discriminatory about PACE. It reveals the favouritism. Here is the comment in full:

Warm thanks to Merpel for what she did, but I am sad to see her resign.

I hope that Merpel’s renouncement has not been provoked by threats uttered against her.

It is a pity that a voice like Merpel goes out. In the end, the president of the EPO will be grinning: another one I manage to shut down…..

That things should change at EPO which had entered a certain trot is not to be denied. But did it have to be done with an ax? There is a difference between what is legal and what is moral; what was done looks legal but is certainly not moral.

It is sad to see that how an office which was thriving and having an excellent reputation is driven in the wall by would be managers.

Under other skies it is called shareholder value. Here the shareholders will be happy that they can cash in annual fees much earlier, so that disapproval by the AC is probably not on the table.

I wonder whether this frenzy of quick granting of cases is really in the interest of the applicants at large. I have always heard that it becomes expensive once the patent is granted, and the numerous publications about PACE, i.e. acceleration of search and examination, in old editions of the OJ have never been followed by increasing numbers of such requests. There were certainly good reasons for not following this invitation, unless absolute necessity. Now EPO has decided to PACE everything, but without listening to its users and exclusively pleasing its shareholders.

In the end, one cannot suppress the feeling that what is going on at the EPO is to quickly obtain patents, which are worth what they are, so that litigation can start at the UPC. This would be to the profit of certain applicants, I do not count SMEs under those, supported by certain law firms who have been very active and keen to push the UPC through.

This also touches upon the boards of appeal and the way they have been treated. Why do we need them, if we have the UPC? The less case law the boards of appeal produce, the less chances there are of colliding jurisprudence.

I do not want to see it all as a plot. However, I cannot help but ask questions.

Mind the part about the UPC: “In the end, one cannot suppress the feeling that what is going on at the EPO is to quickly obtain patents, which are worth what they are, so that litigation can start at the UPC. This would be to the profit of certain applicants, I do not count SMEs under those, supported by certain law firms who have been very active and keen to push the UPC through.”

That’s a toxic combination of low quality patents and easy, far-reaching litigation and injunctions. We’ve braced for a disaster, but right now it seems likely that we’ll just say “UPC is dead, long live the next UPC attempt” (maybe later this week). What about all these falsely-advertised UPC jobs that never existed and probably will never exist?

EPO Critics Threatened by Self-Censorship, Comment Censorship, and a Growing Threat to Anonymity

Posted in Europe, Google, Patents at 3:21 am by Dr. Roy Schestowitz

Police get warrant for entire Minnesota city’s Google searches in wire fraud case
Reference: Police get warrant for entire Minnesota city’s Google searches in wire fraud case

Summary: Putting in perspective the campaign for justice at the EPO, which to a large degree relies on whistleblowers and thus depends a great deal on freedom of the press, freedom of speech, and anonymity

WHEN we started covering the social conflict at the EPO (we had already written about the EPO, but different aspects of it, typically but not always software patents in Europe), Merpel had beaten us to it. Merpel started writing about it in early 2014 if not 2013; we only started studying the conflict in early 2014 and published nothing about it until the summer of that year. Prior to that we had written a lot about software patents at the USPTO; remember that this was almost exactly the same time as Alice (summer of 2014), wherein the US Supreme Court ruled against software patents — in retrospect a truly historic decision with profound implications (more so than In Re Bilski).

“In the interim, truth itself got compromised, human rights got abolished, and the workplace atmosphere darkened.”I’ve written about software patents since my teenage years or early twenties (at different capacities), so the subject isn’t new to me. It’s a very important subject, particularly so as more and more things get implemented in software over time. The issues associated with overpatenting visibly irritated EPO staff too. About a decade ago we wrote about and posted many photographs from an EPO walkout. Things got a lot more serious in recent years, as management chose to start a campaign of oppression rather than a process of reconciliation. In the interim, truth itself got compromised, human rights got abolished, and the workplace atmosphere darkened.

IP Kat, to its credit, especially Merpel and Jeremy, wrote about the conflict. But some people chose to move on, possibly at the worst time. “Don’t stop covering the EPO,” one person wrote the other day. “Everything changes, so does the IPKat. Don’t change too much please. It would be good if you could keep some of the charm this blog used to have in abundance under Jeremy, Johanna, Illana, Brigit [sic], David.”

“Jeremy,” another person wrote, “Jeremy! Wherefore art thou Jeremy? Missing you…”

“Many ‘free’ (public) hotspots engage in DPI and try hard to decipher one’s identity, then put the data up for sale.”Well, he retired after he had made a real difference in EPO matters. Since then it has felt like free speech suffered a bit. “I wonder why my comment was deleted,” a person said a couple of days ago, “my question is genuine: what is the point of this post?”

IP Kat censorship has become a real issue that we’ve composed several articles about as some of our readers had their comments deleted. I too had my few comments there deleted. I know the feeling and I know it’s not due to obscenities. And yet, when the EPO censored IP Kat I stood up for them. Now, a year later, rather than the EPO censoring IP Kat it’s IP Kat self-censoring, i.e. not covering EPO scandals anymore.

“The price good men pay for indifference to public affairs is to be ruled by evil men,” Plato said. It seems apt now.

“For some people, this could potentially be threatening to their career (if Google, which is close to the EPO, was ever to drop a hint to Team Battistelli).”“…a thousand quarrels arise and numberless insults of offensive words could be heard across the IP world,” said this person over the weekend (responses to that were posted last night), but many of these insults are heard offline, not online. When asked about it confidentially, it’s clear how stakeholders feel about the EPO.

Thankfully, quite a few insiders and stakeholders have, over the years, left anonymous comments in IP Kat, which at one point added a restriction by insisting that people at least use a pseudonym (that was about 2 years ago). Such pseudonyms only represent growing danger as they enable correlation between disparate comments, potentially posted from different locations (e.g. one from home and another from a public hotspot somewhere). We have all along warned that Google (which owns and operates Blogspot) cannot be trusted for anonymity and we cited court cases to that effect. Things escalated even further in recent weeks (earlier this month) as Google’s practice of activity/log retention is clearly becoming a liability to users. One journalist asked me about it the other day, knowing that I’ve covered privacy for a number of years. It’s worth quoting just so that readers are aware of the pitfalls of Google for anonymity:

Dear Dr. Roy Schestowitz,
I was forwarded your contact information by █████. My name is ████ Walsh and I write for ████ about digital privacy and > cybersecurity issues. I am currently writing a story about Edina Police in Minnesota being granted a warrant to collect every person’s data that searched for a specific name on Google during a 5 week period. The police believe that someone from the area searched for the victim’s photo on Google to create a fake passport.

The implications for digital privacy are obviously huge, as this could set quite a nasty precedent. The warrant is far too broad and if this type of procedure became the norm it is a slippery slope toward blanket search engine surveillance. The good news is that Google does intend (apparently) to fight the warrant. Any quote on the subject from yourself (plus how you would like me to refer to you in the article) would be a valuable addition to the article. Thanks.

My response was this: “The core of the problem is that Google logs and maintains (in the long run) logs of people who search, what they search for, and even compiles this information (for purposes of advertising or customised results) in a fashion that facilitates such warrants. No search engine ought to collect this much information. People who choose to use search engines that do put themselves at risk of wrongful accusations, i.e. a potential legal Hell even if they are entirely innocent. Society which is based on the principles of privacy is required for free inquiry, be it about a particular topic, a person, and a lot more.”

This is true also for comments, not just search. It is likely that Google has the real identity of each anonymous commenter who ever left a comment at IP Kat (based on browser cookies/MAC address/DPI and so on). Many ‘free’ (public) hotspots engage in DPI and try hard to decipher one’s identity, then put the data up for sale. For some people, this could potentially be threatening to their career (if Google, which is close to the EPO, was ever to drop a hint to Team Battistelli). Such leads needn’t be traceable back to Google if Parallel Construction tricks were implemented. We already know, based on one EPO dismissal (Els Hardon), that EPO investigators managed to intrude Google’s GMail. Whether that was owing to hidden cameras, screenshots, keylogging, DPI or even a tip from Google (or spying agencies that intercept Google traffic and are connected to Control Risks) we don’t know. Whatever the case may be, never trust anything from Google to preserve anonymity or even offer true anonymity in the first place (incompatible with Google’s business model).

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Older: Why Anonymous Dissent Against EPO on Google Platforms May be Risky

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