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Summary: Some of the latest material to and from French MP Le Borgn’, who is being informed by EPO staff representatives rather than lectured by Benoît Battistelli, with convenient references to Battistelli’s ‘media partner’ in France
ABOUT a week ago we wrote about the latest actions from Pierre-Yves Le Borgn’, who is genuinely concerned about the EPO scandals (he has been active in this area for a while). Some sources of ours try to frame it as political opportunism and partisanship, but whatever the motivations, the outcome would help not only French nationals. There are now some new developments as SUEPO sent new comments regarding the letter of the EPO’s President to Pierre-Yves Le Borgn’.
As SUEPO put it yesterday: “In an apparent effort to put a positive “spin” on his position, Mr Battistelli’s letter (translation in English) can at best be described as being economical with the truth. In an effort to put the record straight, SUEPO Central establishes in a paper the facts that will clearly refute a mere selection of his more amazing statements.” (see the remainder in the paper below)
“A new document was published on the blog of French MP Le Borgn’,” a reader told us. “It is a strongly worded point-by-point rebuttal by SUEPO to Battistelli’s letter, as well as a summary of his misdeeds.
“Hopefully an English translation will be coming on SUEPO’s web site,” this reader told us. This person definitely does not work at the EPO, but the world is watching and more people get involved over time. This morning I spoke with a journalist from the BBC, so expect coverage there too. Also see this new article from LabourNet Germany. English language articles too are being spread right now, in the biggest technology-centric British media (e.g. The Register last night).
Here are all the relevant documents journalists should be aware of:
The PDFs above are mirrored because of a history of EPO censorship against SUEPO's Web site. There is some English in these documents, as quoted below:
Comments on letter of President Battistelli to Pierre-Yves Le Borgn’ dated 20.11.2015
In an apparent effort to put a positive “spin” on his position, Mr Battistelli’s letter (translation in English) can at best be described as being economical with the truth. In an effort to put the record straight, we establish the facts that will clearly refute a mere selection of his more amazing statements.
Part 1: Allegations of harassment amongst staff representatives
The second paragraph is a key part of the letter, wherein it mentions six resignations from the staff representation. One particular case in The Hague is attributed to a “campaign of harassment”. It is later implied that all elected staff representatives who either were not SUEPO members or who express opinions contrary to the union have left the staff representation. In the context of a response to Mr Le Borgn’s reaction to the news of the suspension of three staff representatives in Munich, the President seems to suggest that these “facts” alone justify all the suspensions.
The truth is:
1. Of the three suspended staff representatives, two are accused of an alleged misconduct that is totally unrelated either to resignations in the staff representation, or to harassment of staff representatives.
Evidence: first pages of the reports setting out the reasons for the disciplinary procedures against two of the three suspended colleagues.
2. The initial accusation of harassment raised against the third staff representative who has been suspended has not been maintained in the disciplinary procedure. The same elected official is now accused of allegedly harassing other colleagues, this time in Munich. Yet none of these purportedly “harassed” colleagues has actually filed an individual complaint.
Evidence: first page of the report setting out the reasons for the disciplinary procedures against the third suspended colleague
3. Two colleagues elected since the introduction of Social Democracy to the local staff committee in Munich have resigned. These colleagues were both “SUEPO candidates” who resigned primarily or exclusively because they received threatening letters sent by the President and/or Ms Bergot. Moreover, two other colleagues in Munich who were not “SUEPO candidates” are still active, i.e. they have not resigned. There is a similar situation in The Hague. In other words, there is no simple one-to-one correlation between being “SUEPO candidates” or not and these resignations, as is suggested by Mr Battistelli.
Evidence: The colleagues who resigned from the Staff Representation are all in a position to confirm this.
4. It is important to note that apparently none of the alleged victims has filed an individual complaint. The investigation into the alleged harassment by one colleague which was later expanded to embrace other staff representatives seems to be solely based upon a complaint filed by Ms Bergot, Principal Director HR. Even if acting on the harassed party’s behalf, Ms Bergot has a rather blatant conflict of interest.
Evidence: first page of the report of Control Risks on the third colleague.
a) The second paragraph of Mr Battistelli’s letter grossly misrepresents the basic facts and may lead the reader to draw the wrong conclusions.
b) The accusations against all three suspended staff representatives are both vexatious and absurd:
- A public comment on the allegations that form the basis of the cases against two of the three suspended staff representatives, ridiculing the Office, can be found here: http://ipkitten.blogspot.de/2015/10/epo-bids-to-save-litigating-employees.html
- Public comments on the specific case against the third colleague can be found here: http://ipkitten.blogspot.de/2015/10/when-harassment-gains-new-meaning-epo.html
- Public comments on the suspensions in general can be found here: http://ipkitten.blogspot.de/2015/11/eponia-land-of-suspense-and-suspensions.html
Note that IPKat blog, although often humorous, is a highly respected and influential, independent IP blog, see https://en.wikipedia.org/wiki/IPKat
Part 2: Allegations against the suspended member of the Boards of Appeal
Paragraph 3 on the second page simply repeats allegations against the suspended Boards of Appeal member that were apparently raised by the Investigative Unit. Amongst these are “storing weapons and Nazi propaganda”.
Even should such allegations eventually be found to be true, then the President of the EPO’s action publicly commenting on a pending procedure would represent:
(a) a serious breach of confidentiality,
(b) an offense against the presumption of innocence,
(c) an unacceptable interference with an on-going procedure,
(d) and a potential case of him defaming our suspended colleague
The President should, however, have known that the Enlarged Board of Appeal had already dismissed the case because the accusations were too generic and unsupported by a detailed correlation to any evidence available that would allow the accused to defend himself adequately and have allowed the EBoA to assess the case in accordance with proper judicial standards.
Evidence: Decision of the Enlarged Board of Appeal of 17 Sept. 2015 (the reasoning of which was only published recently), pages 24, 25 and 33.
a) Under such circumstances, it is incomprehensible that the President of the EPO continues to publicly accuse the suspended Board member in such an outrageous and misleading manner.
b) As always, the comments of IPKat on this topic are worth reading: http://ipkitten.blogspot.de/2015/11/why-enlarged-board-rejected-ac-in.html
Part 3: Remaining parts of the letter
The remaining parts of the letter are of a comparable level. What is particularly striking is the contrast between the noble principles and intentions expressed by Mr Battistelli and the reality.
The question arises as to why Mr Battistelli insists on making statements that are so readily refuted: whether it proves to be deliberate or just defiant, only time will tell.
It is worth noting that for ‘evidence’ (in the original letter), Battistelli cited his own ‘media partner’, Les Échos [1, 2, 3, 4]. There is a huge budget for this kind of propaganda right now. The management of the EPO wages a war on truth itself. It’s a losing battle, but there will be victims, including — potentially — casualties of suicide.
See below for more context. That’s Pierre-Yves Le Borgn’ speaking in French about the EPO. █
Translation of the video below can be found here.
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The poetic irony in The Hague, home of the ICC where a person who is accused of crimes does not relent but persists with bad behaviour
The International Criminal Court (ICC). Author/photographer: Vincent van Zeijst
Summary: Reminder to European Patent Office (EPO) staff that the EPO’s management has a history of union-busting and serious violations of the rules; a call to join protests later today and later this week
THE management of the EPO is once again going to witness the ‘horrifying’ — to managers — sight of its very own staff protesting against the management and the institution under current management. The staff does wish to destroy the EPO, it is pursuing a fix. Anyone with some common sense can see that a fix is sorely needed at many levels and in many areas.
The EPO scandals now make the mainstream media in Europe and it’s even in English for a change (this was published some hours ago). Well, my jaw was on the floor when I read a statement from the EPO saying: “As a European public organisation the EPO fully respects freedom of the press as a core value of an open society” (there are other funny statements like “the EPO has a duty of care for its staff, who are its primary responsibility” or “all necessary measures to protect its staff and their families”). Ladies and gentlemen, let’s pick up our collective jaws and carry on… Eric Arthur Blair must already be turning in his grave.
“Anyone with some common sense can see that a fix is sorely needed at many levels and in many areas.”A staff protest is imminent. The protest is going to take place later today. We strongly encourage all staff to attend the protest in order to discourage union-busting and also media SLAPP-ing. Over the weekend we showed why it was really just shameless SLAPP (see our responses to legal letters) and a war for silencing reporters or critics (a long-held tradition at the EPO). We are not trying to take away from the focus (or steal the thunder) of protecting staff representatives, just to cover an additional angle. See this thread in IP Kat, in particular comments further down* which refer to SLAPP against Techrights and say “In the past it seems that he has had much better luck in other jurisdictions … ” (alluding to the Croatian affairs)
From what we can gather, Željko Topić most likely demanded an ‘apology’ (before he lost his court case) — the very same thing that the EPO tried to get out of me, under legal pressure and threats. Later on Battistelli linked to this (quite likely forced) ‘apology’ as ‘proof’ that Topić was innocent, as we covered here many months ago. This is a familiar modus operandi after what Techrights experienced.
“Later on Battistelli linked to this (quite likely forced) ‘apology’ as ‘proof’ that Topić was innocent, as we covered here many months ago. This is a familiar modus operandi after what Techrights experienced.”Why do we mention Topić again (other than him being mentioned in new comments)? Well, Vice-President Topić, with his dubious legal status, several criminal charges (in Croatia) and previous efforts to crush EPO protests (in the name of ‘security’, as if pushing people to the side of the road would make them any more secure), refused to give authorisation for a General Assembly of EPO staff in The Hague (that’s not today but last week). What was coined “Balkan standards” is now coming to The Hague then?
Remember how the EPO was trying to characterise (in the media at least) the latest massive staff protests as violent? Well, here we go again. We are gratified to have obtained details of how Topić was attempting to crush last week’s peaceful assembly (if not today’s protest too). Here are the raw details.
“Remember how the EPO was trying to characterise (in the media at least) the latest massive staff protests as violent?”“For your information,” our source told us, correspondence, was leaked. “Controversial EPO Vice-President Željko Topić,” we’ve been told, “recently refused to give authorisation for a General Assembly of EPO staff in the Hague which was scheduled to take place on 24 November 2015.” [that's last week]
More details can be found below.
“Mr. Topić had already made quite a name for himself as a “union-buster” back in 2007 in his then role as Director-General of the Croatian State Intellectual Property Office.”
Here is a translation of an article from Croatia, showing Topić’s extensive ‘experience’ attacking staff (emphasis in yellow is ours):
TRADE UNION OF STATE AND LOCAL OFFICIALS AND EMPLOYEES OF THE REPUBLIC OF CROATIA
Tuesday, November 20, 2007
STATE INTELLECTUAL PROPERTY OFFICE: Bullying of “unwanted” civil servants
(SDLSN, 20 November) During the last month, staff at the State Intellectual Property Office (SIPO) have addressed a number of petitions to the various Government bodies and staff unions, accusing Mr. Željko Topić, M.Sc. of bullying and other unlawful and arbitrary actions.
Staff union representative, Ms. Jadranka Oklobdžija warned that Mr. Topic neglected to carry out an assessment of his subordinates for three years in a row, thus denying them the rights arising from their assessment.
The reason for such a reaction on the part of civil servants and the representative of the local branch of the staff union SDLSN, Ms. Jadranka Oklobdžija, is the manner in which Mr. Topić is running the Office. The last straw was the decision on the establishment of an “expert working unit” tasked with the design and implementation of the SIPO project entitled “The selection and storage of non-administrative mail” at a separate location remote from the Office headquarters in Savska 118.
The civil servants and the local branch of the staff union accuse the Director of having established this “expert working unit” in breach of the provisions of the current Regulation on the Internal Organization of the SIPO, where there is no mention of any such units. They also question the appropriateness of this ostentatiously named project, because despite the fact that the new unit has been set up to deal with archive materials, it is located at a site remote from the main office where the archive materials are stored.
That there is something wrong with this project of Mr. Topić is indicated by the fact that, according to its head, all of the people appointed to this “expert working unit” (10 in total) are “from other sectors and departments, mostly people against whom Mr. Topić bears a personal grudge for whatever reason or those who have been on sick leave for longer periods.”
The members of this “punishment battalion” are afraid that it is being used as a way to remove them from their current positions for which they still have valid civil service appointments. They fear that “Commandant” Topić’s plan is to declare them redundant which could result in the cancellation of their civil service status.
That their fears may be justified is evidenced by the fact that Mr. Topić has submitted an amended Regulation on the Internal Organization of the SIPO, which provides for reduction of positions by about 15 percent, to the Central State Office for Administration for prior approval.
Mr. Topić came up with an original method for getting rid of “unwanted” civil servants – assign them to a pointless project and isolate them from the State institution until they can be disposed of.
However, at the same time as these “unwanted” civil servants isolated in inadequate working facilities at a site remote from the SIPO headquarters are waiting to see what will happen to them, the SIPO Director seems to be in the process of recruiting new employees in the area of documentation management, i.e. the very task for which the “expert working unit” was formed. Two new prospective employees are due to be assessed on 22nd November, i.e. this Thursday.
Apart from the violation and complete disregard for all the applicable civil service regulations, Mr. Topic is also in breach of the provisions of the Collective Agreement for civil servants which expressly prohibits the transfer of a staff union representative to another position within the same Government body and imposes an obligation on the management of State bodies to engage in prior consultation with local staff unions in relation to the adoption of any regulations affecting the labour rights of civil servants, such as the Regulation on the Internal Organization of the SIPO.
In view of the above issues, the staff union intends to report this violation of the Collective Agreement to the Joint Commission responsible for monitoring application of the Agreement which has an obligation to inform the Government about the adoption of such regulations, and, if the violations of staff rights continue, to file a criminal complaint against Mr. Topić.
In the meantime, the inspectorate of the Central State Office for Administration should conduct an administrative audit of the SIPO in order to clarify the situation from the perspective of the competent inspection body.
The staff union is also urging the Croatian Government not to accept the amendments to the Regulation on the Internal Organization of the State SIPO until all the relevant facts regarding the legality of the actions of Mr. Topic and the exercise of his functions as Director of the SIPO have been established.
Notice from the above how similar it is to what the EPO is currently doing, with some variations here and there. It makes one wonder if Battistelli’s recruitment/addition of Topić to his team was like an acquisition of staff-crushing assets. Here is the E-mail exchange with Mr Topić concerning SUEPO’s request to hold a General Assembly in The Hague on the 24th of November, 2015.
It starts as follows:
Sent: Friday, November 18, 2015 6:43 PM
To: VP4 OFFICE; Zeljko Topic
Subject: RE: general assembly of staff in The Hague
Dear Mr Topić,
Please be informed that the SUEPO Committee of The Hague intends to organise a general assembly of staff on Tuesday 24 November 2015 at 11.30 in EPO premises (room to be defined), in particular to allow staff in The Hague to express solidarity with their Staff representatives.
We look forward to your answer,
On behalf of the Committee of SUEPO‐TH
PS: I have copied (Facility Management) for information
Remember that was the time shortly after the crushing of staff representatives.
Here is a relatively sensitive response from the man who many people internally refer to as “Putin”:
On Behalf Of Zeljko Topic
Sent: Thursday, November 19, 2015 4:24 PM
Subject: RE: general assembly of staff in The Hague
Dear Mr R…,
I take note of your request, sent to me in your capacity as Chairman of SUEPO The Hague. May I ask you to please clarify the agenda and purpose of this all staff General Assembly, which, you are hereby reminded, can be held for topics of general interest to all staff and not to discuss specific ongoing individual procedures.
Vice‐President DG 4
Reply was as follows:
Sent: Friday, November 19, 2015 4:51 PM
To: VP4 OFFICE; Zeljko Topic
Subject: RE: general assembly of staff in The Hague
Dear Mr Topić,
The general assembly is intended to:
‐ Show solidarity of staff with their Staff representatives (as already mentioned)
‐ Report about the latest changes planned at the EPO (eg tax adjustment reform)
‐ Possibly adopt a resolution of SUEPO members
We look forward to your quick answer,
On behalf of the Committee of SUEPO‐TH
PS: I copy (Facility Management) for information
Although nothing insensitive was said, two days have passed and not a word, so then comes another message:
Sent: Friday, November 20, 2015 2:40 PM
To: VP4 OFFICE; Zeljko Topic
Subject: RE: general assembly of staff in The Hague
Dear Mr Topić,
We are at a loss to understand why it takes so long to authorize our general assembly. Could you please answer this second reminder before 15.30. Should the EPO refuse to allow the meeting, SUEPO has to organise it outside the EPO, with associated costs and a need to book a big room.
Thank you for letting us know before 15.30 today whether you authorise the General Assembly.
On behalf of the Committee of SUEPO‐TH
PS: I copy (Facility Management) for information
Now comes rudeness:
On Behalf Of Zeljko Topic
Sent: Friday, November 20, 2015 3:43 PM
Subject: RE: general assembly of staff in The Hague
Dear Mr R…,
May I begin by drawing your attention to the fact that I do not appreciate you imposing any ultimatum on me, especially considering that in both your emails you fail to provide the requisite clarity.
What you have provided to me so far does not appear to fulfil the requirements for a General Assembly for all staff, which can be approved for topics of general interest and for all staff (not SUEPO members only) and should certainly not turn out to be a full on demonstration held on the premises of the Office.
You will understand that I must exercise proper duty of care in this respect and evaluate all possible safety and security issues, also taking into account the experience of violent demonstrations organised in The Hague in the recent past. Finally, I reiterate here that any affair concerning an individual staff member or specific administrative procedures, is subject to strict confidentiality and the Office has a duty to take all measures to protect the Office’s and the specific staff member’s interests alike.
Given these circumstances, your request cannot be approved.
Vice‐President DG 4
See the pattern again? He speaks of “experience of violent demonstrations organised in The Hague in the recent past.” These have nothing to do with EPO and probably have more to do with fairly radical causes. Perhaps that’s where the bogus allegations of “violence” come from. It’s imaginary.
Here is a prompt reply (just half an hour later):
Sent: Friday, November 20, 2015 4:26 PM
To: Zeljko Topic; VP4 OFFICE
Subject: RE: general assembly of staff in The Hague
Dear Mr Topić,
I do not appreciate your disingenuousness and lack of courtesy. I have made a request according to the rules, in good time, so as to be able to hold a General Assembly next Tuesday. It is your duty to answer within a reasonable time so as not to frustrate our right of peaceful assembly through inertia.
This was not an ultimatum. It was a second reminder, and implied an expectation that you, too, follow protocol. You now refuse to allow a legitimate Union, SUEPO, to gather peacefully for its own purposes. You seem to ignore or wilfully to breach the fundamental rights involved in the freedom of association, which is enshrined even in Article 30 of our Service Regulations.
This is yet another act of censorship that is duly noted and will be presented in Court. Further, you will have to justify yourself before the Administrative Council, who will be informed forthwith of your decision.
With consternation and determination,
On behalf of the Committee of SUEPO-TH
This is rightly being called an “act of censorship” (one of many in the EPO) and people need to remember the history of Topić's war against the legitimacy of a widely-supported (by a lot of staff members) union.
“We hope that many people will attend these protests to make the management aware that it is vastly outnumbered in this war.”Several protests are coming to different cities. We hope that many people will attend these protests to make the management aware that it is vastly outnumbered in this war. We will write about protests and translate articles afterwards, to the extent that we can.
“Actions continue at the European Patent Office,” SUEPO’s site said on Monday, revealing that “The next demonstrations will take place on:
- Tuesday 01 December, starting at 12:00, In front of the Dutch Ministry of Economy in The Hague.
- Friday 04 December, starting at 12.30h in front of the Isar building in Munich.
“With these demonstrations staff protests against the persistent attacks on its staff representatives, culminating in the suspension of and disciplinary procedures against 3 Union officials in Munich.”
“Please attend to defend staff because this attack on representatives is an attack on everyone.”So there is a staff protest starting at 12:00 today. We have known about it for a while, but decided not to spoil the element of surprise, which makes it hard — strategically — for EPO management to derail it. Please attend to defend staff because this attack on representatives is an attack on everyone. It’s a classic 'decapitation' strategy.
Here are some more details about these protests, especially the first one. A protest of all staff is to start today at midday, not to be confused with the General Assembly planned for Tuesday the 24th of November at 11:40, as initially planned (at “De Broodfabriek”, situated in Volmerlaan 12, Rijswijk). Here is the message published at the time:
Dear SUEPO members, dear Colleagues,
Following the recent events described in our earlier paper “Witch hunting against SUEPO officials and Staff representatives” we timely requested from Mr Topić, VP4, the authorisation to hold a General Assembly in the EPO premises, in accordance with the rules in force in the EPO “social democracy”. On Friday afternoon, after two reminders, VP4 finally turned down our request, shamelessly breaching the freedom of association of staff.
We have thus booked a large meeting room outside the EPO, “De Broodfabriek” one block away from the Rijsvoort building, at about 10 mn walking distance from the other EPO buildings. Address: Volmerlaan 12, 2288GD, Rijswijk (map below). On the agenda:
- Feedback about the above mentioned events
- Solidarity with your Staff representatives in The Hague & Munich
- Legal actions from our lawyers
- Forthcoming demo in The Hague
The GA is taking place outside block time (10:00-11:30; 14:00-15:00) to allow for your safe participation. It should end around 12:30 at the latest, but we will remain available for discussion and questions after that time.
GET INFORMED & SHOW SOLIDARITY !
COME IN NUMBERS
That was about a expression of dissent (not protest) which was effectively postponed by one week (when time is precious because people are already suspended). The document cited in this statement says the following in order to provide some background to the uninitiated (the names of the people were already named in the media and there is no danger of retaliation, given that unions are already under attack):
Witch-hunt against SUEPO officials and staff representatives
Dear SUEPO members, dear colleagues,
Yesterday we informed you about the events that, last Friday, caused Jesús Areso and Laurent Prunier to fall sick. Their respective physicians have confirmed the illness. Apparently not content with the result, the Office yesterday had the audacity to send a “medical controller” to their respective homes; they are now both summoned for a visit with the Medical Adviser. As if Jesus and Laurent were pretending to be sick. After making them sick, now they question whether they are sick? Or maybe the Office does not trust its own OHS? It is not yet clear who initiated this process, but it is a disgrace, and intolerable. We are informed that the lawyers are already “on it”. Laurent and Jesus are very grateful for the expressions of solidarity and offers of support.
Meanwhile, in Munich, all hell has broken loose. No less than 3 staff reps/union officials (Elizabeth Hardon, Ion Brumme, Malika Weaver) have been suspended on what we understand to be vexatious grounds, notwithstanding the President’s propaganda. The security guards are receiving orders in real time to prevent colleagues to hang out posters and to remove the ones that have been already hung up. In actual fact, we have from very reliable sources that the Office is already contacting the press to launch a PR campaign.
Why this, why now? The timing is suspect. This week, the Board 28 gathers to discuss the social aspects of the EPO – read: the famous “social study”. An honest social audit would be disastrous for Battistelli. He MUST someway create waves to block it. Going on the offensive, attacking those that gave cause to the Council to consider the audit, is his strategy.
If you are outraged, scared or feel sick, you are normal. Time has come to give Battistelli and his crew a clear message: enough is enough. This management by “fear, isolation and punishment” has to stop.
What are YOU going to do? You can write personally to your country’s representative in the Council, urging them to take responsibility for the governance of the Office. You can address your hierarchical line with clear demands to be channeled upwards (it is about time Directors take some responsibility). You can create or join support groups. You can prepare actions to support your staff reps who risk being sacked. Just use your imagination, act – and let us know what you did.
Your SUEPO Committe The Hague
We now know more about the media campaign that we heard about last week. External media people are co-opted and there is propaganda in the making, regardless of the staff’s widely-held views, even in the Central Staff Committee [1, 2]. It’s not just SUEPO and its members. It’s almost everybody, except perhaps people who are too afraid to show solidarity for their colleagues. Nearly a week ago someone sent us the following petition, stating the legal basis for supporting the unions. It’s a petition in support of staff representatives Elizabeth Hardon, Malika Weaver, and Ion Brumme, who according to the petition “have been suspended on Tuesday 17 November 2015 and will be subject to a disciplinary procedure soon.”
The petition states:
We fail to understand how the misconduct(s) alleged against them could be of a nature incompatible with their continuing in service (Article 95 ServRegs). They seem to have been targeted because they are very committed staff representatives and also prominent SUEPO executives.
We, the undersigned, consider the decision to suspend them utterly unfair and undemocratic. We hereby request that their suspension be lifted and any disciplinary procedures against them immediately stopped.
The likes of Topić want to destroy good people as part of their 'decapitation' strategy. See how even illness is used — if not shamelessly exploited — as a pretext for crushing staff in both cases (compare to the aforementioned article from Croatian media). Topić has experience from Croatia and later this month we will show more EPO exploitation of illnesses (if not deaths in the family) to crush unions. If the representatives are not successfully defended, it will only increase fear and enable the management to crush people further down the chain. Remember that the EPO contracted some union busters from England. These people are ‘professionals’. But it doesn’t mean they’re unbeatable. Making the staff actually believe that the staff is powerless and unable to resist is perhaps their strongest weapon.
“Making the staff actually believe that the staff is powerless and unable to resist is perhaps their strongest weapon.”The newest stuff that we’ve gotten a hold of includes further information about today’s protest. It follows some other recent actions. “Yesterday,” it says, “a massive General Assembly took place in The Hague: due to the Administration ban, it took place at 10 minutes walking distance from the Office, in a kind of concert hall which looked very packed with 800 to 1000 participants. Besides the acclaimed speeches a remarkable number intervention came from the floor calling for more concrete actions to support our colleagues. The call from the floor for a symbolic ONE DAY strike with maximum participation was greeted by a massive and unambiguous show of hands.”
The petition above too was mentioned: “As announced last week, a petition is circulating in Munich. The petition will be handed out to a notary to protect signatories from the risk of retaliation. Staff from all POEs are invited to join in and help collecting the signatures…”
Those who are interested will know where to drop the forms.
Under “Enemies everywhere” we too are mentioned, as noted here before. Examples are also mentioned as follows:
1. In the past months, the EPO President has made it abundantly clear that the EPO has many internal Enemies: potentially any staff members – hence the surveillance -, the Staff representation institutions – hence the limitations – and its representatives – hence the investigations and the disciplinary procedures.
2. In the past weeks, it was made clear that the EPO has enemies in the interested circles: Member States Delegations of the AC seem to have been threatened of consequences for their actions by the President. The exchange of letters last week has shown that elected national Parliament Members, like Mr. Le Borgn’, allegedly represent a threat to the organisation. This is new for the whole EPO history.
3. Since yesterday, it is becoming also clear that the enemies are everywhere, in the media and elsewhere: accordingly bloggers and even lawyers receive the same treatment of legal threats and intimidations…
One can wonder what the next step will be?
Now that the protest is imminent it is safer to publish details of today’s protest:
TUESDAY 1 DECEMBER – LUNCH TIME – TRAVEL BY BUS
In front of the Dutch Ministry of Economy – The Hague
The social situation at the EPO keeps deteriorating. Mr Battistelli and Ms Bergot are attacking and determined to crush Staff representatives and SUEPO Officials. Three are suspended in Munich and are risking dismissal. Others are being targeted by vexatious acts to such extent that their health has suffered.
1000 staff members have already shown their support and solidarity on 24 November by gathering in a General Assembly outside the EPO premises (since Mr Topić had forbidden it
inside the Office). Staff in The Hague has sent a clear message to management. We must now continue to raise awareness with the Dutch authorities. The Netherlands are a country renowned for its Democratic tradition. The totalitarian practices now spreading in the EPO cannot be tolerated on Dutch soil.
•Removal of all threats to all Staff representatives. Those suspended should be reintegrated at once;
•Urgent labour inspection of the EPO by the Dutch Arbeidsinpectie, or other agency accredited to the Dutch government, in conformity with the Art. 20 of the EPO PPI (Protocol on Privileges and Immunities);
SUEPO in Munich will organise also a demo on 10 December, a few days ahead of the Administrative Council December meeting.
In The Hague, on Tuesday 1 December from 12:00, we will demonstrate in front of the “Ministerie van Economische Zaken”, Bezuidenhoutseweg 73, close to the Central Station, see map overleaf. EPO partners and pensioners are welcome to join!
Authorisation by the local authorities is in process. Gathering/starting point and detailed route are being finalised. We will keep you posted.
The logistics of it are probably known to many, so we shall omit them from the above. Techrights strongly supports these actions and hopes that this long articles helps convince more people to attend without assisting Team Battisteli in retaliatory actions. █
* There is also an update there regarding Mr. Van der Eijk, who was the subject of rumours and speculations.
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Summary: How García-Escudero Marquez, the sister of a Spanish Senate speaker, got controversially appointed to succeed the (now) EPO’s Vice-President Alberto Casado Cerviño
THIS week we shall turn our attention to a potentially very interesting EPO story. In order to kick-start this series we must provide readers with some background, which means translating an article originally written in Spanish. It is, for the most part, self-explanatory. One just needs to know that Alberto Casado Cerviño is Vice-President of Directorate-General Operational Support at the EPO.
El Confidencial, 17.11.2011 – 06:00 H.
Industry [department] appoints Pío García Escudero’s sister before the application deadline ends
Ten days before the elections of 20 November, the director general of the Spanish Patent and Trademark Office, Alberto Casado Cerviño, appoints Patricia García-Escudero
Ten days before the general elections of 20 November , the director-general of the Spanish Office for Patents and Trade-Marks, Alberto Casado Cerniño, appointed Patricia García-Escudero Marquez, the sister of the speaker of the [Partido Popular] in the senate, to a civil service position at the highest level. The post attributed is the one of deputy director of the department of Judicial Coordination and International Relations. The seriousness of the matter is that the legal delay was not respected, and the beneficiary’s name appeared of the organisational chart of the entity even though the deadline for applications won’t expire until next Tuesday [22 November 2011].
The vacancy notice which led to García-Escudero’s appointment was published 1 November and provided 15 working days for filing applications. The appointment announcement of the new deputy director who will lead the communications department, dependent on the Presidential Support Unit, managing one of four departments of the Spanish Patents and Trademarks Office, occurred however last Thursday [10 November 2011].
The cat got out of the bag as the Sevach blog on public law, which explained how all positions with open selection are actually a “chronicle of a job award foretold”. The director of the public company [sic - they mean the SPTO] which is subordinated to the Department of Industry, Commerce and Tourism designated a person related to the [Partido Popular] precisely at the time when polls show [Partido Popular politician] Mariano Rajoy as the winner of the elections coming next Sunday [against the PSOE incumbent José Luis Rodríguez Zapatero].
In this specific case, the qualifications required to lead the Department of Judicial Coordination and International Relations required a superior command of English and French, but a degree in Law wasn’t deemed essential. Patricia García-Escudera holds a diploma in Biology from the Complutense University in Madrid. Furthermore, the call for applications demanded preferably experience in communications and marketing. Coincidentally, the sister of the [Partido Popular] speaker in the senate came from the public relations department of the [SPTO]. “Computer skills” are also demanded for this high-ranking position for which any civil servant can apply for, but without requiring any corresponding university diploma.
50,000 Euros gross salary per year plus productivity bonus
The position for which Casado Cerviño appointed García-Escudero comes with a specific allowance of 24,332 Euros to which should be added the A-category allowance (13,935 Euros plus 535 euros every three years) as well as the allowance for belonging to level 30, at the top of the scale (11,625 Euros). In addition to this gross annual salary received, a productivity bonus will be included, dependent on the specific personal contract. In many positions of the same category this can often exceed 1,000 Euros per month.
If this favour to the [Partido Popular] isn’t enough for Casado Cerviño to keep his directorial job in case of a change of government, his son Alberto Casado Fernándes will sit on 30 November the fourth selection examination for admission of qualified professionals at the autonomous bodies dependent on the entity where his father works.
Context will be provided in future parts of this series, so stay tuned and protect our right to free speech, e.g. by attending staff protests. It reminds us of the story of Bergot’s controversial appointment, which we covered earlier this month (see part one, part two, part three, and part four of “EPO: It’s Like a Family Business“). █
“No government can love a child, and no policy can substitute for a family`s care.”
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Summary: An important discussion regarding the role of IAM (Intellectual Asset Management) in the debate about EPO abuses
TWO days ago we wrote two articles which mentioned how IAM had put at risk a source, despite repeatedly being asked not to do so. It didn’t exactly shock us because we generally view IAM as a pro-patent Establishment (USPTO, EPO management, software patents, large corporations) site. Sharing evidence with them is unwise. There was an article earlier this month (from AOL) titled “Innovating In A World Of Patent Lawsuits”; well, in the view of the likes of IAM, it’s all about “Profiting In A World Of Patent Lawsuits”. The more, the merrier. That’s how they make money.
Why do we write this article? It’s just a word of warning to anyone who deems IAM trustworthy. The EPO is now spending of nearly a million dollars on the media. IAM writers already have a history of receiving money from the EPO, by their own admission.
“It’s just a word of warning to anyone who deems IAM trustworthy.”We already saw IAM relaying EPO management’s talking points. That was a month and a half ago, only two weeks after the EPO had passed around the contract involving the million-dollar contract. The article that IAM published at the time was basically a sort of EPO ‘damage control’, replying to my allegations about preferential treatment of selected large corporations. That was very shortly before the EPO sent me nastygrams — something which IAM dropped hints of (days before it actually happened). The EPO spokesperson said something which only served to insinuate “defamation”. Remember that what I wrote at the time wasn’t inaccurate, it was just strongly-worded. This whole EPO program was created for Microsoft because of Microsoft (EPO effectively, on the balance of probabilities, changed its rules in exchange for Microsoft paying a lot more money in the form of patent applications).
I asked someone in the legal community if IAM was likely doing all of this internationally or even maliciously. “Although you may be right,” I was told, “I’d be personally a little surprised if IAM betrayed a confidential source; Joff Wild is no lover of TechRights, which is a matter of common knowledge…”
Regarding evidence that we shared with IAM (potentially but not necessarily including details about a source), we made some further inquiries as well. We were asked: “Can you be sure that IAM has not received the original documents via another source?”
“It effectively served material to Team Battistelli, on a silver platter, by publishing what I repeatedly told them must not be published.”The item that the EPO was bullying me (with legal threats) over was definitely not provided by another source. I can’t tell for sure if IAM was acting as some kind of courier for the EPO’s management here, but it’s not impossible. It effectively served material to Team Battistelli, on a silver platter, by publishing what I repeatedly told them must not be published.
For those who wonder what this was all about, the gist of the blog post in dispute is as follows:
- Microsoft uses patent extortion — or racketeering as per RICO Act — to coerce companies (at least 4 companies so far this year) into Microsoft’s Linux-hostile agenda. There are threats of litigation or actual litigation at hand (with conditional settlement) to achieve this. It’s a subject Techrights has been covering extensively since 2006.
- Microsoft pressured the EPO into the whole preferential treatment farce. We know this for sure.
- An EPO employee is shown in his (leaked) E-mail pressuring those below him to concentrate on granting patents to Microsoft (before all others), thereby helping Microsoft against European companies like TomTom (see the 2009 lawsuit and ‘settlement’).
- This EPO employee has been publicly promoting the UPC, despite his job being the granting of worthy patent monopolies (proper, thorough prior art search, never too rushed), not setting or lobbying on matters of law.
That’s all stuff that we can support with concrete evidence, hence I stand by what I said. They just caught me off guard at (almost) midnight on a Friday. My solicitor’s response explains why that’s an act of trickery.
It will be interesting to see if IAM has something to say on this matter. Judging by the many tweets they sent our way yesterday, they still don’t have a very effective rebuttal. █
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People Power [1, 2] is power in numbers
Over 1 Million in Tahrir Square demanding the removal of the regime and for Mubarak to step down.
Photo source: Jonathan Rashad
Summary: Where things stand when it comes to the EPO’s standoff against publications and why it’s advisable for EPO staff to stage standoffs against their high-level management, which is behind a covert crackdown on independent media (while greasing up corporate media)
THERE is an occasional need for us to remind readers that the EPO besieges Web sites that upset its agenda, which judging by its priorities is to appease large corporations even when these are foreign (outside the EU). This is further exacerbated by privatisation of some key/core functions of the EU, such as litigation, investigation, and PR (the EPO has those internally, but it hires or contracts ‘reinforcement’ from the outside, where accountability is even worse or non-existent, and different laws may apply, e.g. in the US).
In the first two parts of this mini-series [1, 2] we showed how the EPO had been trying to silence us.
What has really become of the EPO? It doesn’t seem to behave like a public service run by public servants. It operates recklessly, misuses or poorly uses public funds, and has established a rogue reign of occupation over Europe, enjoying exemptions from laws and regulations that are consistent with human rights.
“How can it be?”
Some people actually ask that. They’re rather shocked by the very idea that this is even possible. But it is. Moreover, this rogue institution is becoming so threatening (menacing its opposition) that it sometimes seems untouchable even to European politicians. It’s like a very effective occupation of an institution, which revels in immunity/impunity and flaunts the privilege.
Back when the first batch of threats were no longer being dispatched I sent the following message to just a couple of people whom I trust:
A letter came in today. It seems like the EPO dumped their lawyers who sent me the bullying letters, perhaps realising that these did not comply with protocols and only caused an embarrassment to the EPO.
It looks as though the EPO is now approaching another firm; it’s not clear if anything will come out of it, but for the time being, I shall carry on writing as usual.
“Thanks for the update,” told me one person. “If they get better lawyers, those should understand proceeding is not a good idea.”
“The previous [legal] firm’s attempt did seem somewhat amateurish…”
–Anonymous“The previous firm’s attempt did seem somewhat amateurish,” told me another person, who is a professional in this field.
Please note that in our coverage no names have been mentioned, no sentences quoted from legal letters, no legal documents shown and so on.
For those who follow the EPO scandals, don’t expect legal documents to be published. I’m not getting down to the low level of the EPO’s thugs (who ‘leaked’ allegations from an ongoing ‘investigation’ to the media, in order to float the ‘armed Nazis’ narrative, thus discrediting critics). I am also not going to name people who are responsible for this, as that would make personal an institutional kind of abuse.
Judging by what I saw online two weeks ago, the vultures were still circling around me, as the following screenshot was taken from my LinkedIn account, showing that the EPO’s lawyers were keeping themselves occupied.
“Mishcons are an aggressive firm,” one person said to us. Well, the EPO itself is aggressive, so there’s no surprise there.
“Actions by staff (in the form of showing of public/internal backlash) help shield journalists and bloggers from retaliatory tactics, SLAPP, etc.”A little update from the EPO would be appreciated, but they refused to even supply the media with a comment, based on the WIPR article. They probably don’t know what to say as it can only make things worse. Basically, there’s no update and there has been no update for nearly a month. A legal firm (as above) said it had taken control of the matter, which probably meant the previous firm got dumped. It has been over 3 weeks now. I did notice that one secretarial (I think) member of staff at that firm was ‘checking me out’ in LinkedIn, but that too was almost three weeks ago; maybe an effort to get some additional ‘information’ on me or just innocent curiousness? Given the context, it is unpleasant curiosity. I haven’t added anything meaningful to LinkedIn since 2006 when a ‘friend’ had me set up an account there (I am in principle against such ‘social’ media, which gets more intrusive and privacy-infringing over time, after changing terms of services for people to waive away more their basic rights).
Given what Techrights has been writing and publishing recently (not to mention the EPO’s ‘spontaneous protests’) we hope they’ll realise that going after bloggers isn’t a wise decision. The math doesn’t add up as they have more points to lose than to gain in the long run. Actions by staff (in the form of showing of public/internal backlash) help shield journalists and bloggers from retaliatory tactics, SLAPP, etc. This is why we urge everyone at the EPO (except high-level management) to attend the imminent protests.
“They don’t seem to know what they are doing and what they’re up against, hence they hired peripheral union busters like CRG (Control Risks).”The EPO’s high-level management is really struggling these days; it took them no less than 4 days to come up with an answer to the basic question of who’s behind the SLAPP, as it was invalid a claim to begin with, so they had to try and use some dubious artistic interpretation of the law. They don’t seem to know what they are doing and what they’re up against, hence they hired peripheral union busters like CRG (Control Risks).
Tomorrow we start covering another (new) EPO scandal and we encourage staff to attend the public demonstration, at the very least to protect staff representatives if not journalists too. The more people attend, the more scared the high-level management will feel. It’s getting out of hand because they cannot just fire thousands of their highly-qualified specialist staff (examiners for example). Power comes from and is proportional to absolute numbers. █
“I am Legion, for we are many”
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“A SLAPP is a lawsuit, filed for the improper purpose of trying to silence criticism, or to prevent someone from pursing their own right of redress. The typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP suit may also intimidate others from participating in the debate.”
Summary: Legal analysis by various people explains why the EPO’s attack dogs are all bark but no bite when it comes to threats against publishers
THE EPO‘s dubious attack on our free speech appears to be a lot more dubious than people even care to recognise because they don’t know about the EPO’s immunity and impunity (it’s effectively above the law, but just conditionally). UK Defamation Law does not permit the EPO to do what it threatens to do. As some of our readers pointed out to us:
We saw the article about the EPO’s legal threat against you.
Here are a few comments off the top of our heads.
First of all we noticed that the article objected to contained a reference to Grant Philpott. The “edit” to the WIPR article involved removing Philpott’s name (as he was named in the original WIPR report).
For what it’s worth, Philpott is British and he used to be in the British Army (many years ago). This is no secret. We have no idea what significance if any this might have to anything or if it’s just coincidental. [...] However, we think that all of this may (hopefully) backfire on Battistelli and his crew. [...] Our understanding of the situation is that if the EPO does go to court it will have to lift its immunity. That could be quite dangerous for them.
You need to be aware of the Protocol on Privileges and Immunities (PPI) [...] look at the PPI in particular Article 20: “(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.”
If the EPO decides to go to court, then it will be obliged under Article 20(1) PPI to “co-operate [...] with the competent authorities of the [U.K.] in order to facilitate the proper administration of justice [...] and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.”
On that basis, we suppose that you could lodge requests for discovery of documents etc. and that the EPO would have to comply if they want to pursue any action against you.
They shouldn’t be allowed to misuse a UK (or other national) court in an attempt to prosecute you while at the same time being allowed to hide behind their cloak of immunity. Refer to the legal principle of “equality of arms” which should apply in a UK court.
If the EPO tries to get “serious” about court proceedings, then maybe you can request that the court obtains a binding undertaking from the EPO that it waives its immunity from jurisdiction and execution for all matters relating to the case including any counter-claims that you may make against them.
This could be the biggest mistake that Battistelli has made so far.
By trying to muzzle free speech outside the EPO he is moving outside of his normal “comfort zone” where he gets to make and break the rules as he pleases. There is also a high probability that this attempt to take legal action against a “blogger” could attract a lot more “mainstream” interest in the whole affair (à la Streisand).
We are sceptical that Battistelli really wants to go before a national court with stuff like this. It sounds more like scare tactics – but maybe he is sufficiently bonkers to try it…
We will be following developments with close interest. [...] we are not experts in UK defamation law but we had a quick look at the Defamation Act of 2013 and we noticed a few things that might be relevant for your situation.
Under Section 1 of the Act, “harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
The EPO is not a “body that trades for profit” so it is not covered by that Section to begin with. Anyway, it’s doubtful that they could show any “serious financial loss” from Techrights publications.
We also noted that according to the Wikipedia page relating to the Defamation act: “Non-natural persons performing a public function do not have an action in defamation against any statement concerning that function.”
If that interpretation of the law is correct – which it seems to be – then it’s difficult to see how the EPO could possibly have any success in trying to initiate a defamation action against Techrights in a UK court.
That’s just our opinion but hopefully lawyers can confirm.
“You might find this amusing,” they added later, “click on the photo of the author at the top of the article.” (posted by this person just one week after the threatening letters started to come)
One person asked us: “Can you tell me if [this person] is on the EPO staff or if they have engaged an outside firm? It might be worth investigating the nature of his previous practice record.”
“Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.”Well, what’s perhaps troubling here is that private companies are again being used by the EPO. The EPO already has its own (in-house) lawyers. Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.
The above isn’t out of the ordinary. We recently learned that WIPO too tried to silence a blog with legal threats. It happened some years ago. The blog received, according to what we learned, “a phonecall from one of the Deputy Directors-General followed by two legal letters before action, only to discover that, as a body established under an international convention, WIPO didn’t have the legal power to sue or be sued in any national court. This may be so for the EPO, one way or other.”
Well, apparently, based on what PatentBuddy wrote in Twitter last week, WIPO also threatened Gene Quinn (another blogger) in a similar way. It happened not too long ago. Why the overreach? Was this SLAPP as well?
“By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now).”Well, many states in the US have anti-SLAPP laws (not all states, but see for instance California SLAPP Law). There are also things like blogger protections (depending on definition of journalist, blogger, forum etc. with salaried/non-salaried being a factor). Why are public bodies taking the risk of trying to keep bloggers quiet? Can they not foresee backlash?
By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now). There seems to be serious institutional abuse there and in recent months the British media too started covering these matters (in big numbers, citing Techrights). Private Eye picked up this story and publicised the scandals (using evidence from Techrights). That’s why the EPO must be so worried. English-speaking media has very broad reach, unlike Croatian media for example. We therefore assume that they just try to intimidate or silence the site. Well, the site is already BLOCKED (for the first time in history) from within EPO offices. They clearly try to keep it quiet, to keep staff unaware of it, but the harder they try, the more sources (whistleblowers) turn to to the site with new and explosive leaks. We even got some more earlier today… we’re now drowning in material.
“This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later).”Based on the wrong name being in the legal letter (they address me by a completely wrong surname*), they’re on some kind of a new campaign to silence the media. I’m not the only target and I was warned about this recently. More people now come out (privately at least) and speak about growing pressure from the EPO (see what was posted here last month, there is a long history to it and the story of
unitary-patent.eu may be one of very many). For reactionary leverage, some suppose, victims of EPO bullying could invoke the Streisand Effect and let people raise awareness of what EPO is attempting to do here. That kind of coverage would definitely annoy the majority of EPO workers (there are around 7,000 of them), and maybe lead to more effective and much broader a standoff/demonstration.
This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later). Based on the letters, this is action from the EPO itself, not an individual. SUEPO’s site was also recently silenced (back in September), probably using a similar kind of letter, maybe even from the same firm.
“There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels.”We often wonder if, even after publication, a lot of publishers silently censor their articles (removing words or entire paragraphs) without us even noticing it. We started saving articles about the EPO for this reason (for later comparison, as recently shown here). Journalists and publishers are made afraid to the point where very serious violations can go on and on. People commit suicide and next month we are going to write about what motivates (at least some of) these suicides. We have more damning information about the EPO, but we keep it under the wraps because it’s so damning that it would put people’s careers at risk if published (the subject of the articles being at risk, not the sources). There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels. █
* Wrong name being addressed to indicates they may have reused a template, as they have been muzzling other people as well (this other name too is German and the EPO is based in Munich).
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The European Patent Office (EPO) is strong-arming bloggers
Summary: Using external legal firms (not the EPO’s own lawyers), the EPO has been trying — and failing — to silence prominent critics
THE EPO‘s war on journalists has been covered here for almost a week. 5 days after WIPR broke the story it is still the most popular topic at that news site and this story has since then attracted wider and further media attention. There are 5 large threads in Reddit right now, in five different sections, posted by numerous individuals and groups we don’t know and aren’t typically focused on legal matters. This is going mainstream!
We are starting to find out some interesting things from interesting people. Another news site told us, “you are not the only person coming under pressure from the EPO right now.” It also prudently responded and advised us by saying “do assume, if you are not already, that your private e-correspondence is being monitored and read.” Recall the following older articles of ours:
This article will present my solicitor’s response to the EPO’s lawyers, who are actually — like much of the EPO's staff these days — from a private company that we won’t even mention. What the EPO has done here is amazing. It’s amazingly stupid. They took a crisis that mostly involved the ‘IP’ community into a mainstream audience. The EPO is now a laughing stock in many circles and emergency funds are now being retrieved from the taxpayers’ pot to hopelessly undo the damage (it will only backfire again, we can guarantee it).
“They took a crisis that mostly involved the ‘IP’ community into a mainstream audience.”As we know that not only Techrights was subjected to legal bullying by the EPO, we wish to make as much information as possible widely available. It can help any future victims of EPO bullying, as it includes legal material which shows how to respond to the EPO and call their bluff.
I spent 6 hours this morning going through piles of material. I was hoping to get a full E-mail trail (in and out, incoming and outgoing) suitably picked and redacted where required. It all started with a legal letter from a firm contracted by the EPO. Readers are advised to remember that we start this chronology a month and a half ago (15/10/2015 onwards), so some of the text below should be treated and read in contextual relation to the time and what was known back in October, well before additional information got leaked and covered on the Internet.
“The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday.”THREE LEGAL LETTERS have been sent by the EPO’s first law firm and another by the second one. We’re not talking about one legal letter here, contrary to some belief (as witnessed on the Web). Today’s publication of facts will be split into 3 PARTS in order to better organise the material and make it easier to cross-reference in the future.
The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday. It was sent not just to one E-mail address of mine but to several, saying: “Please see attached legal letter for your urgent attention.”
How the legal firm found several of my E-mail addresses is itself a bit of a mystery, but either way, these people were very eager to ensure that I read this mail late at night on a Friday. We won’t name the firm or the people who sent those letters. Also, as they demand confidentiality in all of their letters, we cannot or will not publish them. We won’t break the rules like the EPO so habitually does. We leave the dirty tricks to the EPO. We’re cleaner than them.
“We won’t break the rules like the EPO so habitually does.”Techrights wishes to thank David Allen Green (Preiskel & Co.) not just for doing a sterling job but also doing this out of goodwill. “I should be able to do this one pro bono,” he wrote to us at a very early stage, “still finding out.” David Allen Green was upset at the EPO’s behaviour and was immediately engaged in helping us, even on a weekend (remember that nastygram was sent late on a Friday night). David asked me for permission to respond to the lawyers and state that: 1. the letter sent was not in accordance with the pre-action protocol; 2. it is denied EPO has capability to sue; 3. the post was taken down without any admission of liability; 4. you require 14 days to provide a substantive response.
We ask dear readers to carefully consider the situation these people put me in late on a Friday night. It’s a kind of entrapment. If David Allen Green didn’t jump in as early as Saturday, the course of action from the EPO would probably have been more severe, not because it’s permissible but because they can exploit lack of awareness of the law, or even misrepresent the law (a familiar EPO trick). Here is the first response sent to the EPO’s contracted (external) lawyers, who seem to have sent similar nastygrams to other people.
I have been approached by Roy Schestowitz in respect of your letter which was attached to the email below.
Your letter is remarkable. The letter does not accord with the relevant pre-action protocol. Indeed, it looks like that you are not even aware that there is a pre-action protocol.
But that is not the worst thing. The “urgent” letter was sent at 22:57 on a Friday, with a supposed deadline of noon the following Monday (that is, today). This is akin to simple legal bullying. It was clearly intended that Mr Schestowitz would be intimidated and be forced to act without proper access to legal advice.
It gets worse. Not only do you seem unaware of the pre-action protocol, you do appear to know that the Defamation Act 2013 is in force, which requires your clients to meet a test under section 1. You don’t even mention the appropriate statutory test, let alone attempt to show how your clients meet it.
And finally: the European Patent Office is a public body. Under the Derbyshire principle it would not be able to maintain an action in defamation.
I am currently putting the paperwork in place so that I can be formally instructed by Mr Schestowitz. As such this email is sent on his behalf but I anticipate to be formally acting for him very shortly. I am only writing now because of the misconceived deadline you selected.
It is not accepted that your letter is a valid letter of claim, and so my client’s position on this point is reserved. However, and without limitation to the foregoing sentence, you will now get a formal and substantive response to your letter within the 14 days set out in the protocol (that is, by 30 October 2015). In the meantime my client has taken the posts down without any admission of liability.
If your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.
My client’s position is reserved.
David Allen Green
The EPO’s goons then sent another nastygram. By that time, David Allen Green had already consulted specialists/domain experts, who brought up a legitimate point, so he responded as follows:
Thank you for this latest letter. I will take instructions.
In the meantime, I have now discovered the European Patent Office has no legal personality. If the EPO is not a legal person it cannot maintain an action in defamation or otherwise.
Can you please tell me exactly who your client is in respect of the threatened claim by EPO?
“They are becoming comical,” I said, at the very least “because yet another article which is factually correct they are trying to get removed now. Even large broadcasters serve to support my claim — hence they want to retaliate. They don’t like the bad publicity, which now [at that stage] reache[d] everyone in Munich.”
Remember that all of this was happening while the press was still hammering hard on the EPO for preferential treatment favouring large applicants. The EPO was hoping I would retract what I showed and perhaps help them censor the media (which was always linking to Techrights for evidence). Attempts to censor the original source of leaks or force a public apology/restraction is a classic censorship strategy. I just had to fight back.
Here is what my solicitor then wrote:
We have read the second letter, and I am still taking instructions and will reply substantially by the stipulated deadline tomorrow.
In the meantime, however, note the following, including the renewed request for information.
So far: you have sent an initial letter which did not mention the relevant protocol, including making a threat on behalf of one named client (“EPO”) who cannot maintain an action in defamation (under the Derbyshire rule) and does not even have legal personality. You also forget to set out anything at all about the section 1 test in the initial letter.
With respect, you do not seem to actually know what you are doing. It looks like you are dabbling in defamation law. You are making basic errors almost every paragraph.
You have now – desperately – come up with “malicious falsehood” and “confidentiality” – but you do not set out the bases of your claims in respect of either claim. You should have realised the significance of the Derbyshire rule before you sent your threatening letter. But you failed to do so, and now you are now threatening actions in “malicious falsehood” and “confidentiality” without even providing basic information about how you clients make out the elements of either cause of action. It just looks ridiculous.
I asked you earlier today at 10:40 (below) to set out who your “EPO” client was; and despite the supposed “urgency” I have not had a reply, some five hours later.
Please respond by 1700 today stating which legal person your “EPO” client actually is. Otherwise I will assume you actually do not know.
David Allen Green
A later letter stated:
Further to the below, this is the response to your second letter (of today’s date).
There is nothing whatsoever in the second letter to justify a deadline of tomorrow. So your client(s) can wait until the letter we are sending to you on or before 30 October 2015, in which we will deal substantially with both letters.
You said this morning this matter was “urgent”. I immediately sent you a straightforward query about the identity of one of your named clients, who is not even a legal person. Despite the purported “urgency” neither of you have bothered to respond at all, in over six hours.
In the interests of keeping costs proportionate, I do not propose to correspond further with you on either of the letters sent until the substantive response on or before 30 October 2015.
For completeness, and also in the interests of inter partes co-operation to control costs, I can tell you that my client reserves his right to plead a defence of truth to the claims, and this means that any pre-trial injunction you might seek would not be granted, pursuant to the rule in Bonnard v Perryman  2 Ch 269.
And, as I set out in the email below, if your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.
David Allen Green
Without much regard to the part about “keeping costs proportionate”, the EPO continued rather than relented with legal letters. Another one “came in on Friday,” my solicitor told me, “just an attempt to recover on the “no legal personality” point.”
Finally, here is the detailed letter sent to summarise all the points, including some of the above:
I refer to my email below. I have looked at your letters carefully, and I have also discussed the contents with specialist counsel.
As you are both aware, the purpose and intention of the pre-action protocol is to facilitate the early exchange of information, so that cases can be properly dealt with. Accordingly, I am writing this email so as to obtain additional information which we require to consider your claim.
1. Legal personality
In respect of the European Patent Office, I am still not clear as to which legal person is seeking to threaten and maintain an action in defamation. In your first letter you said you were acting for the European Patent Office. Now you are saying you are acting for the European Patent Organisation. (It is just as well they have the same initials!) But the position of the European Patent Organisation is not what you set out in your initial letters, and now the position is confused and nees further clarification, as I set out below.
2. EPO Immunity from suit, from and costs and disclosure orders
Is your “EPO” client (whoever it is) formally waiving its legal immunity to countersuit and, more importantly, to liability for any costs and disclosure (and other) orders? Are you even aware that your EPO client’s immunity from suit (and to comply with costs and final orders) is at stake here? The position on your “EPO” client’s immunity from costs orders needs to be clarified as a matter of urgency, as it affects the costs sanctions and disclosure regime.
In any case, the Derbyshire rule provides a complete defence to any claim your EPO client can bring.
If your “EPO” client is daft enough to put this trite proposition to the test, then I will seek indemnity costs from your client from the moment this obvious truth was pointed out to them. You say (in your 20 October 2015 letter) that you “reserve” your position on Derbyshire, as if some magical proposition will somehow appear which allows you to get around it. You will not get round it; your “EPO” client simply cannot maintain an action in defamation, as a matter of public policy.
In respect of alleged meanings, it is currently impossible to work out your clients’ respective positions. This is for two reasons.
First, as mentioned above, your letter of claim does not mention the European Patent Organisation, and nor do the words complained of. You need to set out how my client’s words refer or relate to an organization which is not named by him, and how you say the words complained of apply to the European Patent Organisation. There is an “identification” issue which you simply have not addressed.
Second, your letters do not separate out the potential claimants, and indeed your inconsistent use of the apostrophe when mention your clients’ (or client’s) makes it impossible for us (and the court) to work out which of your clients you are talking about at different parts of your letters. Perhaps you did not know; but this needs to be clear at the earliest possible stage.
5. Libel bullying and the public interest
Without limitation to any of the above, there remains the horrible and discrediting issue of libel bullying. Here I want to raise the issue of the public interest. The work of the EPO is a matter of legitimate public concern. There is, as your client knows, a significant public debate as to the work of the EPO; a debate to which the EPO is itself contributing, and which is taking The effect of sending libel threats such as yours will be to inhibit that debate.
This is plain in your demands that entire articles be taken down, rather than just the words complained of. This cannot be justified. In essence this appears to be an exercise by a public body to discourage public criticism.
6. Further information now required
In essence, before we can properly reply to any threat that either of your clients may wish to bring, we now need the following information:
a. Separate letters before action for each client in respect of defamation, separating out their respective alleged meanings and words complained of;
b. An explanation as to why the EPO is not covered by the Derbyshire rule;
c. Confirmation that your EPO client is waiving immunity from countersuit, and waiving immunity in respect of compliance with costs and disclosure orders and final orders (together with an executed legal instrument by the President of the European Patent Organisation confirming this formal waiver);
d. A separate explanation in respect of each client of how that client meets the section 1 test in respect of defamation;
e. An explanation as to why your clients were demanding entire articles should be brought down rather than just the words complained of, and how this does not constitute “libel bullying”.
Please provide this information within seven days, by 6 November 2015, so that the aims of the protocol can be achieved.
7. Next steps
Once we have the information requested, and subject to what it says, we can then in turn set out the relevant defences under sections 2, 3 and 4 of the Defamation Act 2013. Facts will be defended as facts; honest opinions will be defended as honest opinions; and a public interest defence will also be set out. My client intends to defend his words on the bases available to him under the Defamation Act 2013.
So that the protocol will be complied with, I would then provide the defence(s) to you within 14 days of your provision of the information requested above, that is by 20 November 2015. In the event that your clients issue proceedings immaturely, and before 20 November 2015, your clients are put on notice of the costs consequences. I am acting within the scope and spirit of the protocol so as to resolve this at pre-action stage, and so should your clients.
If you do not provide the requested information by 6 November 2015, then we will regard the matter as having come to a close.
My client’s position is reserved.
David Allen Green
In the next couple of parts we intend to show where things stand. It looks as though the EPO ran away with its tail between its legs. We thank David Allen Green (of Preiskel & Co.) for that. █
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Summary: Lessons from US media, which focuses on the dire situation in Texas courts, and how these relate to the practice of granting patents on software (the patent trolls’ favourite weapon)
OUR primary concern about the EPO has always been the effort to expand the scope of patents to software (so as to make more money and help multinational oligopolies which constantly lobbied Europe for it).
“At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders.”
–The AtlanticIt has always been pointed out, on numerous occasions in fact, that patent trolls rely mostly on software patents. These trolls already knock on Europe's door, having been extremely damaging to the economy of the US, where they crushed a lot of small businesses. This new and very long article from The Atlantic recalls how things changed more than three decades ago, with so-called inventors like Martin Goetz. The article speaks of “dramatic changes in the treatment of what, in the 1980s, came to be known as “intellectual property,” combined with the general retreat from antitrust enforcement” (to benefit oligopolies).
The article says this “had the effect of vastly concentrating the geographical distribution of power in the technology sector. At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders. In 1991, Bill Gates reflected on the change and noted in a memo to his executives at Microsoft that “[i]f people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.””
Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.
“Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.”Public complaints in the US are mostly over patent trolls these days. The complaints rightly focus on East Texas, the trolls' docket. Another new article says: “East Texas is known for its Piney Woods, Caddo Lake, maybe for sweet potatoes. It’s also the patent lawsuit capitol of the country. More patent infringement cases are brought to Eastern District courts than anywhere else. There’s pressure to root out the so-called “patent trolls”.”
Published on the same day, this new article rightly observes that “software technology is becoming a treasure trove for Patent trolls.” To quote in context: “In furtherance to my recent post on Patent trolls or the Non Practicing Entities (NPEs), I would like to discuss here in this post about how software technology is becoming a treasure trove for Patent trolls. Cloud based business products are one of the major business fields today. Software-oriented platforms such as C (SaaS) providers are primary targets for the Patent trolls.”
It is vital to realise the strong correlation between software patents (patents on abstract concepts) and patent trolls in order to ensure that the failings seen in East Texas don’t reach Europe as well. █
“Americans learn only from catastrophe and not from experience.”
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