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09.28.16

Cementing Autocracy: The European Patent Office Against Democracy, Against Media, and Against the Rule of Law

Posted in Europe, Law, Patents at 7:23 am by Dr. Roy Schestowitz

Rule of law
Reference: Rule of law

Summary: The European Patent Office (EPO) actively undermines democracy in Europe, it undermines the freedom of the press (by paying it for puff pieces), and it undermines the rule of law by giving one single tyrant total power in Eponia and immunity from outside Eponia (even when he breaks his own rules)

THE situation at the EPO has gotten so bad that the EPO is now buying the media for some Milan spin (among other spin) to help sell the UPC to the gullible public officials. This culmination in lobbying demonstrates the moral depravity to which Battistelli and his goons are willing to sink.

The UPC is an assault on EU democracy (and in the UK what we are seeing in that regard is total disregard for the referendum), which is effectively being stolen by lobbyists and patent lawyers of large corporations. The “UPC [is] on the Council agenda of this Friday,” Benjamin Henrion wrote, “I told you so. Italian minister seems to lobby for Milan without even a discussion in Parliament.”

We first wrote about it last night. Italians should protest that day, along with their media (already covered UPC).

Was the public consulted on this? Why does the media, which was paid by the EPO, support this with some puff pieces that involve Team UPC? How corrupt can things get and when will European politician start to genuinely care? And not just because they perceive it as an opportunity to promote their political party, e.g. in France…

The Battistelli regime has gotten so oppressive recently that SUEPO is silent (not a single word for three weeks) and the attack on the appeal boards intensifies behind closed doors (the secretive Board 28). “This Office has really become a banana republic,” one comment says today. “Looks like a last, desperate attempt of Battistelli and his henchmen to avoid that at the next AC the disciplinary case is closed,” this person notes, in relation to the news about Battistelli trying to prevent the scapegoat from getting his job back (or basically return to work before the end of his term). Here is another new comment about it:

If the matter were not so serious for the accused (or should that be former accused and/or victim?), this Wile E Coyote-esque persistence would draw a chuckle.
As one person has pointed out, late filed submissions are required to be prima facie relevant and OK, maybe, if you can give us another reasoning because the one you have come with isn’t good enough, isn’t normally the procedure to follow.
I note that, in the Social Study (?), PWC have found that the office’s actions have met the requirement of the EPO’s legal framework. The mind boggles about what wouldn’t.

We wrote about the PWC 'study' just after its release on Friday. It’s hogwash. It’s just ammunition for lobbying in next month’s Administrative Council’s meeting (there are also court rulings from the Netherlands coming up very soon).

One person added that “there is no “Res Judicata” at the EPO, nor does ILO-AT require this of its member organisations (and the EPO is not a member of ILO-AT).”

Another person remarked on “the issue of res judicata” as follows:

They would not go for the same accusations.

Actually, rumors were circulating around the last meeting of the AC that the president had a completely new strategy to deal with the suspended member of the AC, since the first one did not work.

A new accusation would have been made according to which the suspended member had discussed with an external IP lawyer a case in front of the BoA, thus contravening the requirement of confidentiality for anyone working at the office.

That would have been considered as “misconduct” – the punishment for which we all know is dismissal.

I have no further details – such as “when did this discussion take place”, “was at an informal meeting”, “which proof did they have”, “did the office require the Lawyer to testify” or anything else.

I understand the defense of the suspended member was aware of these rumors.

We shall be keeping a close eye on this. If anyone out there has access to internal affairs of Board 28, please consider getting in touch with us. Information lapses and secrecy currently achieve nothing but harm staff. This also harms the EPO as a whole by making redemption improbable.

09.18.16

Patent Trial and Appeal Board Under Attack by Law Firms, Which Will Soon Infiltrate It in the Form of ‘Bar Association’

Posted in America, Law, Patents at 1:26 pm by Dr. Roy Schestowitz

PTAB

Summary: The vultures that are patent law firms keep circling around PTAB and hoping to destroy it, if not from the outside then from the inside, potentially regressing and ruining great progress for US patent quality since Mayo and Alice

THE Patent Trial and Appeal Board (PTAB) has been invaliding software patents in large numbers. It’s hardly surprising that proponents of such patents hate PTAB with a passion. They would destroy it if they could. They’re still trying.

Watch blowhard Watchtroll attacking his government for actually adding/embedding some quality control in the patent system, even insulting people in the process (his latest ‘masterpiece’ is titled “Happy Birthday AIA: Celebrating an Unmitigated Disaster and the Destruction of American Innovation”). The same site also attacks AIA right now. It’s America Invents Act (AIA) which brought PTAB into existence. Here is what the USPTO wrote about AIA the other day, under the title “Five Years of Patent Pro Bono Success”. The Director of the PTO praises or at least marks a milestone which gave birth to PTAB (a good thing), but not everyone agrees, especially greedy lawyers. Watch this new article titled “AIA at 5 Years: PTAB’s Tectonic Change in Patent Litigation”. Published in Wall Street media, the article quotes lawyers but not the people affected (programmers or scientists for instance). What a wonderful way to generate a one-sided sob story for law firms.

As we have noted here for a number of years, PTAB is crushing software patents and this is a good thing. Michael Loney has had some decent coverage about it and “Pondering four years of PTAB proceedings” is one of his latest articles about it. He notes that there will be a “bar association solely dedicated to the Patent Trial and Appeal Board,” but quite unfortunately it “has been formed by more than 45 law firms” (i.e. the wolves guarding sheep). Is that really necessary? Here is the press release about it and another article titled “New bar association focuses on US Patent Office’s PTAB” (from a rather decent news source, for a change).

Anyone who fails to see the sheer bias of patent law firms against the PTAB must not have paid attention. Here is a new example, this one from Michael Dever of Buchanan Ingersoll & Rooney PC, where patent law firms basically call “trolls” people who crush invalid patents that should never have been granted in the first place. They reject the term trolls when it comes to abusive entities that are bullying small companies but happily use the term to refer to invalidation of invalid patents. They also, by connotation, blame this on PTAB (IPRs).

Well, after a lot of PTAB coverage Michael Loney managed to speak to the recently-appointed chief judge of PTAB. This judge, according to Loney, “believes his biggest challenge is taking the Board into a new introspective phase. He talks to Michael Loney about rule changes, PGRs’ potential, Cuozzo, motions to amend and ditching the death squad reputation” (a reputation created by nasty law firms in the first place, as we noted here many times before).

Does this judge, David Ruschke, care to see that patent law firms are his enemies? They’re trying to destroy AIA, PTAB, and even his own job. They compare people who assess patents and ensure quality to “death squads” (and those who petition for review “trolls”).

Now, watch this latest article from Loney. It sounds as though he tries to slow PTAB down. Managing IP just won’t let them bury those software patents without FUD, will it? “Much of the talk since the Patent Trial and Appeal Board (PTAB) became active concerned how the Federal Circuit would deal with appeals of Board proceedings,” Managing IP says. That’s hardly a problem because in case of a backlog they can hire more staff or just proceed to more IPRs (in the interim). “The first question,” Managing IP says, “was would the appeals board be able to cope, given the unexpected popularity of PTAB filing. This is still an open question, with some strain beginning to show.”

That’s total nonsense. If they have growing demand for reviews (IPRs), then they should hire more people. It’s as simple as that. It’s a non-issue.

Holders of worthless software patents can run away to CAFC (which created software patents in the US) after PTAB does its work; that gives them no guarantees and that is absolutely fine. They don’t have this privilege carved in stone.

Here is Patently-O having a go at CAFC on PTAB initiation decision. It says that the “court also sided with the Board on Wi-Fi’s substantive argument – affirming the Board decision that the prior art anticipates.”

In other words, as one might expect, CAFC too decided that PTAB does the right thing.

One more article from Managing IP now speaks about the effect of PTAB on biotechnology/pharmaceutical patents — apparently a growth area of appeals. To quote:

Biotechnology/pharmaceutical companies were slow to use the Patent Trial and Appeal Board. This is now changing, though this patent type has lower institution and invalidation rates

The birth of the infamous “patent death squad,” (the PTAB, for those less inclined to dramatic flair), has had powerful effects on patent holders. But while the technology sector dove headfirst into the uncharted waters, biotech and pharmaceutical companies hung back for some time.

The PTAB was, at first, a mystery, and then was filled mostly with challenges against what some practitioners refer to as “junk patents”, so those seeking to invalidate valuable pharmaceutical patents were reluctant to try their luck before the Board. AIA petitions can also be high risk-high reward.

Putting aside the sob stories and the repeated use of the smear (“patent death squad,” as even Managing IP calls it), what we have here are unjust patents that were erroneously granted facing the axe, potentially saving many people’s lives (once invalided, opening the door to generics for instance). See this crude new rant from IAM, which is protesting the UN’s request that life should be put before patents. Also see this blog post about Teva’s recently-invalided patents (covered here last week). To quote: “In the last two weeks, the PTAB has invalidated three patents covering Copaxone®, a multiple sclerosis drug marketed by Teva with annual sales of over $3 billion. Challenged by generic manufacturers Mylan and Amneal, the patents specifically covered a long-acting form of Copaxone®, known as “3-times-a-week COPAXONE® 40 mg/ml,” which Teva developed when the original version of Copaxone® was coming off patent protection.”

So one rich company might enjoy fewer monopolies and poor people might enjoy better access to drugs they need to survive. How is that a bad thing given that these patents should never have been granted in the first place?

PTAB serves an important function and that’s why a patent reform (AIA) introduced it in the first place. If patent law firms get their way, they will ultimately destroy, diminish or reduce the capacity of PTAB. They’re no friends, they’re vultures.

09.03.16

Specialists in Public International Law Bemoan Privacy Violations at the European Patent Office

Posted in Europe, Law, Patents at 1:25 pm by Dr. Roy Schestowitz

Bretton Woods Law

Summary: Some privacy takeaways from the analysis of Bretton Woods Law (commissioned by EPO staff) and more examples of serious privacy violations inside the European Patent Office

PRIVACY is significantly eroded by authoritarian regimes for the purpose of crushing dissent and the European Patent Office (EPO) is no exception. Eponia is highly authoritarian and it even hired autocrats like Željko Topić for top positions. A lot of the illegal surveillance inside the EPO began or culminated around the time people were chatting about criminal charges against him (for sure a story worth telling one day).

A letter was sent to Heiko Maas, Federal Minister of Justice and Consumer Protection in Germany, just over a couple of months ago. “A SUEPO lawyer addressed Heiko Maas and informed him of the latest reforms and developments at the EPO,” explained an insider. Suffice to say, Maas has done virtually nothing (he has a reputation for this in Germany), but let’s assess the privacy violations based on another legal office. A few days ago we saw the following new comment in IP Kat:

The EU data protection Regulation does not apply everywhere in Europe. For example, the European Patent Organisation (EPO) has its own data protection Regulation.

The document “BREACHES OF BASIC AND FUNDAMENTAL RIGHTS AT THE EPO” by Bretton Woods Law (Specialists in Public International Law) explains (from page 17 to 23) why the EPO data protection regulation fails to meet the standards of both EU data protection law and the national data protection laws of the Contracting States.

https://www.suepo.org/documents/43577/55400.pdf

Summary of deficiencies in the current EPO data protection framework:

- Fundamental rights: The reference to the respect of fundamental rights had been removed from the EPO data protection regulation (page 18).

- Lack of independent oversight: At the EPO there is no independent supervisory authority. The EPO president supervises himself the data processing he has implemented. (page 21)

- Change of purpose: The EPO data protection regulation allows the EPO President unilaterally to decide that data may be processed for purposes other than those for which they have been collected.(page 21)

- Transmission to recipients outside the European Patent Organisation: The EPO President may authorise a transfer or a set of transfers of personal data to a third country or international organisation which does not ensure an adequate level of protection.(page 21)

- Lack of any effective means of redress in circumstances where the rights of data subjects are infringed (see pages 22 and 23 – the intervention by the German data protection authorities).

Conclusion:
A wide range of personal data from both patent applicants and EPO staff are processed at the EPO. The situation at the EPO falls far below the standards expected and the rights enjoyed by citizens in the rest of Europe.

The above reminded us of what the EPO does with Europatis — a scandal which we covered here last year in the following articles:

  1. Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
  2. Europatis: “Turnover of €211,800 and Zero Employees”
  3. Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
  4. Summary of the EPO-Europatis Series
  5. Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO

Privacy violations are so serious inside the EPO that detailed accounts of mock trials or investigations are being ‘leaked’ by EPO management to the media, in order to essentially defame the accused (a judge in one case). One of the reasons for strong data protection around one’s medical record is the potential for blackmail and discrimination. In light of this we’re reminded of a document we saw several months ago (it’s a letter to Mr. Topić actually). It spoke about the unacceptable state of medical data protection at the EPO (it would be totally unthinkable at the USPTO). Here is the complete text

European Patent Office | 80298 MUNICH | GERMANY

Mr Željko Topic
Vice President DG4

R. 707

European Patent Office
80298 Munich
Germany
Central Staff Committee
Comité central du personnel
Zentraler Personalausschuss
Tel. +49 -89- 2399 – 4355
+43 -1-52126 – 305
+49 -30-25901 – 800
+31 -70-340 – 2028
centralSTCOM@epo.org
Reference: sc16075cl –0.3.1/4.3
Date: 14.04.2016

Nomination of Ms R. de Greiff as Director Health and Safety

Dear Mr Topic,

On 24 March 2016 you announced on the Intranet the appointment of Ms Raffaella de Greiff as new Director Health and Safety with effect from 1 April 2016, this after serving as ad interim Director of one of the two EPO medical departments since Dr Koopman retired almost two years ago.

Ms de Greiff has a degree in “industrial relations” but no medical qualification. A non-medical person can manage a medical unit, but normally only subject to certain strict requirements:

● medical confidentiality is respected;
● non-medically qualified managers do not have access to any medical information;
● medical files and H&S staff when handling such files remain under the direct supervision of medical doctors;
● medical doctors remain free to carry out their medical duties without interference from managers in medical issues.

So far, the Office has not introduced any such formal guarantees and safeguards.

We refer in particular to the Gazette of January 2016, page 20, which includes a diagram showing that the units that administer such medical files (“Medical advisory and general administration” and “Occupational health and safety”) are under the direct authority of the Health & Safety Director and not of the medical doctors (medical advisor or OH physician), who instead appear to enjoy a consultancy role. The whole Health & Safety department led by Ms de Greiff is in turn under the authority of Ms Bergot (PD Human Resources). This new structure is problematic in several respects.


Firstly, Ms de Greiff is neither bound to nor protected by the Hippocratic Oath. If Ms Bergot, as her superior, demanded access to information from the medical file of a staff member (be it a MAU or an OH file), then Ms de Greiff would not have the authority to refuse such an order; neither would she be able to intervene if PD43 were to obtain medical information by other means.

In other words, the strict confidentiality of staff medical files kept in the EPO can no longer be guaranteed.

Secondly, medical doctors are responsible for ensuring the confidentiality of any and all medical data in their possession. If it cannot be guaranteed that non-medical personnel will not have access to medical information, then medical ethics oblige the doctors not to enter or amend any staff data, collected either by themselves or by external doctors working for the EPO, in the EPO medical databases. If they did nonetheless, they would risk losing their medical license.

Under such circumstances, it is unclear how the EPO medical department is supposed to function properly.

Thirdly, we have already raised a number of questions concerning the MAU which to date have never been answered. With the new structure, similar concerns now also apply to the former Occupational Health Department.

We respectfully request you to acknowledge receipt of the above
observations and take a position on them.

Yours sincerely,
The Central Staff Committee
cc.:
Mr B. Battistelli; President of the EPO
Ms Dr Bosch and Mr Dr Schüder
Ms R. de Greiff
Ms E. Bergot

This medical data protection letter, contained in the original PDF, has the signatures of many staff representatives, not just SUEPO representatives. This is an important letter regarding a serious problem which is widely known about (word of mouth and more). When will the EPO realise that this is totally unacceptable in the 21st century? In this particular case the abuse of privacy of staff cannot even be excused/justified using a war on unions/dissent/whistleblowers. It’s just an authoritarian regime’s dream.

08.01.16

The USPTO’s Dark Legacy of Software Patents Still the Cause of Spurious/Frivolous Litigation, Residue Which is Software Patent Trolls and Lawyers Will Try to Change the Law

Posted in America, Apple, Courtroom, IBM, Law, Patents at 5:45 am by Dr. Roy Schestowitz

Mosquito crossing

Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101

WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”

Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.

“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.

Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf

“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.

What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).

The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf

Texas again. It figures.

“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”

Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO.

07.14.16

EPO Management on Trial Tomorrow, But It Stated Upfront It Would Not Obey the Legal Ruling While It Rigs Its Own Rulings

Posted in Courtroom, Europe, Law, Patents at 2:44 pm by Dr. Roy Schestowitz

EPO management even lies to EPO staff about its rulings, which are based on highly dubious proceedings

China and The Hague
Today’s news

Willy Minnoye caricature
February 2016

Summary: Hearings in The Hague begin (or resume) tomorrow, but whatever the outcome may be, Team Battistelli arrogantly reminded us that it would refuse to respect rulings from the highest court at The Hague, much like China’s government

THE links in yesterday’s daily summary (we posted two summaries yesterday) contain a couple dozen stories about China refusing to honour a ruling from The Hague. Maybe it’ll be a convenient subject for discussion on Battistelli’s next SIPO journey as the EPO too ignores The Hague, except when it comes to setting up branches near The Hague. EPO management is about to go on trial again (Supreme Court) and according to this report it will begin tomorrow. SUEPO is understandably quiet as preparations are required.

Lawlessness at the EPO has become the standard. Laws and rules are habitually broken (even by the President himself), external trials are snubbed, independent judges are crushed, and internal ‘justice’ uses bogus or fabricated evidence in order to implement anything the President asks for. Writing about the immunity of Battistelli, one person shared the following:

Indeed, no. He even enjoys more immunity than “us employees”, as he gets full diplomatic immunity according to the Vienna agreement… Even from his sending state, as all member states must accord it to him….

The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.

“The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda,” says the above. But they quite evidently did not. Battistelli has managed to totally distract everyone from the abuses for which he and his goons come under fire from courts at The Hague. Who needs immunity when one controls the agenda of a meeting that only takes place 4 times a year? The game is rigged. Writing about the “outmanoeuvred” hypothesis (Battistelli manipulating the Administrative Council), one person asks: “Really? With only one vote against (NL) and two abstentions (HU, IT)? C’mon…”

This serves to show just how rigged it all was. They didn’t even discuss the pressing issues like Battistelli’s abuses and demands from Battistelli. Later on a debate developed around whether Battistelli got what he wanted or not. It went like this:

…the latest amended document isn’t perfect, but it is a million miles from what Battistelli wanted.

He’s presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That’s why it has taken so long.

Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn’t going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA’s suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)

Further proposals followed, but weren’t good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.

Of course, on each occasion BB’s PR machine has issued a communique on the AC’s behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?

One person asked, “could it be that BB [Battistelli] is creating side-shows about issues that really do not matter that much to him” or distracts from abuses against his staff? Here is the full comment:

I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.

Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a “victory” if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?

There is also the possibility of “sacrificial pawn” tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.

I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear… not even committing acts that, if judged under national laws, might land him in jail.

I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.

The following comment said that the “latest outcome” is what Battistelli “wanted all along” as the appeal boards lost their independence (the EPO lied about it).

sorry but I can’t agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.

All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.

The debate missed the point that Battistelli controls people by appointment now. The latest comment said this:

Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.

From my perspective, the conclusion that “neither is it favourable to BB” just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal – whereas the reform that we got does not meet either of those criteria.

Compromise is of course a very “European” way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played – and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.

“Breaching provisions of the EPC and making threats to the EBoA,” as the above put it, are just two among dozens of Battistelli abuses. In tomorrow’s hearing only few among these will be considered by the court. If Battistelli was found guilty for only one of those dozens of abuses, he would not obey the ruling. That would only further embarrass the Office.

06.26.16

Patents Roundup: Bad Quality (USPTO), Bad Analysis (India), Bad Microsoft, Bad Actors (Trolls), Bad Scope (Software Patents), and the Ugly

Posted in America, Law, Patents at 3:36 pm by Dr. Roy Schestowitz

Learning from bad aspects or what has gone awry in the patent world

A bad dog

Summary: A mishmash of news about patents, mostly regarding the United States, and what can be deduced from that at the moment

THIS coming week promises to be rather big and historic, at the very least in Europe. It’s not just because of Brexit and its impact on the UPC but also because of the Administrative Council’s meeting. Big news is definitely afoot. In order to get some less important news out of the way in preparation for tomorrow (I’m getting back home after 3 days’ holiday), below are bits and pieces of relevance. It’s all from outside Europe.

“With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment?”

USPTO’s Neglect of Patent Quality a Bursting Bubble

IAM, which is preaching under the guise of 'journalism', actually bemoans not the quality of USPTO patents being terrible and truly worth of cleanup by PTAB. Instead, it keeps moaning about the ‘worth’ of patents, as if not quality control is the problem but lenience of courts etc. “Judge Newman alone again as she warns of devastating loss of public confidence in US patent system” is the latest headline. IAM being IAM, it’s amusing to see how shallow the agenda is to see.

“It sure looks like pride is harder to derive these days from USPTO employment.”For details about the low quality of today’s USPTO patents, see the new article titled “General Mills Granted A Design Patent On A Tortilla Bowl Because Why Even Pretend Anymore?”

To quote the opening part alone: “While we’ve talked in the past about how absurd design patents can get, it’s worth pointing out that, hey, shit’s not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the “invention” in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple’s design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of “inventions” that barely work up the sweat of an “inventor” should seem absurd to you, as should the frequency with which the public is left wondering where exactly the “invention” is in any of this.”

“Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying.”With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment? We were recently contracted in relation to someone who works for the USPTO and does not wish to be described as such. It sure looks like pride is harder to derive these days from USPTO employment. Today’s USPTO is not what it used to be; rubber-stamping millions of patent applications for large corporations whose managers become USPTO Directors isn’t so scientific anymore.

Trying to Push Software Patents Into India

Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying. Last week, for example, Germany’s Bastian Best asked: “Targeted advertising is patentable in India if a piece of hardware is claimed?” Software patents are not legal in India, but Kenneth Saldanha, one of those hoping to change that, wrote:

A Software Patent in India is a tricky issue. First of all, let us understand what a Patent is. A patent is essentially a set of rights granted to a person in respect of something new (an invention) created by him. This ‘something new’, under the Indian law i.e. the Patents Act, 1970 is called an ‘invention’ and includes a software as well.

No, not really. India’s Patents Act excludes that and those hoping to change that are the same people who say software patents are possible and legal in Europe (or Germany, which is consistently more lenient on the matter). Even Battistelli’s EPO cannot change that, not without the UPC or some other new loophole.

Microsoft Bought a Patents Dud and Engages in Trolling (Through “Microsoft Tech Licensing”)

“Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll).”“At a glance,” IP Watch wrote some days ago, “Microsoft’s portfolio of US patents currently stands at approximately 50,000, compared to LinkedIn’s US patent portfolio of 1,085. Microsoft is well known for asserting its patent rights and has even created a licensing entity Microsoft Tech Licensing Ltd.”

Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll). We wrote over a thousand posts on this subject alone.

Even Microsoft-connected sites have already explained why “Microsoft’s LinkedIn Acquisition Is a Bad Move”. Compare that to other failing companies (LinkedIn had gotten into serious issues before Microsoft placed a bid) that actually have a lot of patents. As IAM put it the other day: “In terms of IP value creation Blackberry is one operating company worth keeping a close eye on. The Canadian tech giant has a huge portfolio of assets – around 38,000 – and has a brand with global cachet; but it is slowly withering in its legacy handset market and is transitioning away from manufacturing devices.”

“Will software patents ever make a comeback in the US? We sure hope not.”We previously wrote explanatory posts on how BlackBerry (or RIM) was becoming a patent troll. Thankfully, many of their patents would no longer be valid or possible to uphold in a court of law. Not in the US and not even in Canada (home country). See the paper “Patents and the Wealth of Nations” by Stephen Haber from Stanford University, published almost 2 months ago.

The Fight Against Patent Trolls Continues

“There are even uglier aspects inside law firms which focus on/pertain to patents and their clients.”Writing about the pro-patent trolls Halo decision, a comment from someone called Mike at IP Kat says that “influential Senator Orrin Hatch has filed an amendment to a funding bill criticizing the Supreme Court’s decision in Halo. Basically, it states that Congress considered the Seagate test and did not act to change it, thus Congress’ intent is for the Seagate test to govern.”

Destruction of Software Patents Continues

Remember some old news about CAFC ruling against software patents, in this case a “patent infringement claim filed by software company Rosebud.” There have been so many such cases since, including a lot from the court that initially authorised software patents in the US. Will software patents ever make a comeback in the US? We sure hope not.

The Ugly Side of Patent Practice

A few days ago Patently-O wrote about “Sexism in Patent Practice”, taking note of what’s characterised as “stories of appalling sexism. Each had been taken as the assistant for the actual lawyer. Each had been called things like “missy” and the like. And each had experienced this at high levels of practice, in recent years, not at some point long ago.”

“That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.”There are even uglier aspects inside law firms which focus on/pertain to patents and their clients. “Commission finally targets Patent Boxes as tools of fiscal evasion,” Benjamin Henrion wrote, “not sure they cover EU2EU transfers” (reference in europa.eu). Prior to it, Francisco Moreno wrote about this as well, but in Spanish (“Exit taxation en paquete anti-evasión de la Comisión:si sacas patentes fuera de la UE pagarás en función de su valor”), his native language.

This serious subject was covered here before [1, 2, 3, 4, 5, 6]. That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.

06.23.16

Patent Lawyers Love (and Amplify) Halo and Enfish, Omit or Dismiss Cuozzo and Alice

Posted in America, Law, Patents at 12:32 pm by Dr. Roy Schestowitz

Lobbying or marketing dressed up as ‘analyses’

Selective perception
Reference: Selective perception

Summary: By misinterpreting the current situation with respect to software patents and misusing terms like “innovation” patent lawyers and others in the patent microcosm hope to convince the public (or potential clients) that nothing in effect has changed and software patents are all fine and dandy

THE USPTO gradually moves away from software patents, whereas the EPO moves closer to them. That’s quite a twist and an unexpected development, but that’s where we are today.

Two days ago we wrote about the Cuozzo decision. We are very pleased as it is another major blow to software patents. Patent lawyers’ sites are still talking about it, but not so much (interest has been lost exponentially). Patently-O, for example, says about another case that “Chief Judge Prost likely held the decision release to await the Cuozzo affirmance that implicitly supports the court’s ruling here.”

“In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy.”Cuozzo coverage from MIP’s Natalie Rahhal said that the “Supreme Court’s decision in Cuozzo v Lee maintains the different standards for claim construction used in the Patent Trial and Appeal Board (PTAB) and the district courts. The ruling indicates that the Court believes the USPTO is performing its inter partes reviews (IPR) in accordance with the America Invents Act (AIA).”

In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy. TechDirt wrote about the decision as follows:

Supreme Court Says, Yes, The Patent Office Can Review Crappy Patents Using Broad Standards

Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn’t have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there’s a “reasonable likelihood” that it will invalidate some of the patent claims due to the submitted evidence.

In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used “the broadest reasonable construction” of the claims rather than the “ordinary meaning as understood by a person of skill in the art.” CAFC sided with the PTAB, saying that the law says that you can’t appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.

There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before. More than a month after Enfish Arent Fox LLP publishes “Enfish Database Case Brings New Twist in Software Patentability Saga” (no, not really). Growing desperate there for good news, don’t they? Enfish is old news and it was quickly contradicted by the very same court only a few days later.

“There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before.”Here is IP Kat‘s very latest on SCOTUS. It mentions the Halo case (pro-patent trolls) and says: “Is the U.S. Supreme Court pro-patent or anti-patent? One of my favorite books on patent reform is by economists Adam B. Jaffe and Josh Lerner titled, “Innovation and its Discontents: How Our Broken Patent System is Endangering Innovation and Progress and What to do About It,” published in 2004 by Princeton University Press. One of the insights from the book is the recognition of how patent legal protection moves like a pendulum throughout history. Notably, we tend to swing either too far in favor of protection or too far away from protection. We have trouble finding the middle way. On June 13, 2016, the U.S. Supreme Court in Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer (Halo) made it easier to obtain enhanced damages for willful infringement in patent infringement cases.”

It’s not a bad post actually and a comment on the above says: There is a clear common theme among most of the patent cases decided by the US Supreme Court in the last couple of years: the CAFC should stop laying down hard-and-fast rules for judging inventive step, patent-eligibility, damages, attorney fees, injunctions, etc. etc. etc. If there is a connection with fear for patent trolls, it is probably that inflexible rules create too many opportunities for abuse.”

“Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers…”In this particular case not patent scope but the scope of damages was at stake. Those quite likely to benefit from this decision are patent trolls, which most often use patents on software (hence the relevance to patent scope too). IP Kat has also just published this
analysis from Taly Dvorkis (Allen & Overy LLP). It’s about the Halo case as well. Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers… this particular analysis was posted by a Bristows employee and longtime proponent of software patents, the UPC, etc.

To be frank, my feelings towards IP Kat soured recently, especially in light of the censorship. It’s not about my particular comment but about input I receive about other people whose comments too are being censored, presumably for not concurring with the ‘party line’ (I have repeatedly asked IP Kat on what basis my comment was deleted and I am still waiting for a response, probably in vain). The worst situation is one where people like Merpel hardly write anymore and people from patent law firms write the lion’s share of the blog’s articles. “I’m fully aware of this,” told us someone from the EPO about IP Kat. “Unfortunately I have to agree with you and since Jeremy left the Kat their EPO reports leave a lot to be desired. Also the frequency of reporting (as you already mentioned in Techrights before) dropped remarkably. I suspect pressure from the Dark side…” (EPO management, which earlier this month banned IP Kat).

06.18.16

The Rule of Money and Power, Not the Rule of Law, at the European Patent Office

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

Corporate agenda at all costs, even is that means stomping on the rule of law

Sepp Blatterstelli and FTI Consulting
The golden rule: the law of rule, not the rule of law

Summary: The European Patent Office (EPO) gets chastised for its gross abuse of the law and receives flak for even breaking its own rules, in another desperate effort to give Battistelli whatever he wants, even when he cannot lawfully have it

THE EPO‘s North Korean standards of 'justice' are putting everyone off, both inside and outside the Office. Even the media has begun speaking about it, in spite of the risk of bans (EPO management — like North Korea's regime — resorts to site-wide censorship of news sites that don't repeat its party line). No wonder top examiners are leaving. Even some top managers are leaving. It’s quite an avalanche which Battistelli has kick-started and does not know how to stop. Battistelli “is doing all the wrong moves,” one insider/reader told us, “shooting himself in the foot. [...] he’s so full of himself that he doesn’t care about the outside world, but he still has two years left, which is a lot of time” (enough time to destroy what’s left of the EPO ‘brand’).

A lot of online discussion has appeared in recent days, much of it in the form of comments about the so-called ‘trial’ against a judge, as previously covered in [1, 2, 3, 4, 5]. This article strives to summarise some of the better comments and shed light on how people — even people from inside the Office — view Battistelli’s gross subversion of justice. It is mostly self-explanatory although there are refutation attempts (e.g. that Battistelli did not issue a threat) which we need to rebut.

Let us begin with the following informal summary of what happened last Tuesday:

DG3 disciplinary case: decision from the Enlarged board of appeals EBoA

- The Enlarged board of Appeal has a public Oral Proceeding in the DG3 disciplinary case. From some prior information, it became obvious that the President had found it necessary to send a long threatening letter to the EBoA.

- Despite the pressure, the hearing was public. During the public part, Mr. Kongstad, the Chairman of the Administrative Council, was asked whether the Council distanced itself from the allegedly “threatening letter” (sic!). Since the answer received was not considered satisfactory, the Enlarged Board announced (according to IP Kat) the EBoA could not in the circumstances pursue the procedure, which accordingly was terminated without the EBA proposing removal from office of the respondent.

- Clearly this courageous decision will have consequences and will feed the debate on the independence of Board of Appeals, topic in discussion in the Reform proposal (CA/43/16), and which has been abundantly been criticised by AMBA, the Association of the Members of the BoA. Clearly a lot more is at stake than the personal case: how could the European public believe and trust the BoAs absolute judiciary independence when, according to the “court’s” own perception, that independence is not unambiguously ensured?

- As far as the Disciplinary case is concerned, it means that unless the case is referred for the FOURTH time to the EBoA, the suspension and sanctions against [the] DG3 [judge] should be removed at the next session of the AC. But… [...] at the EPO, so the weirdest things are possible.

When asked whether the ‘trial’ was definitely over one person with inside knowledge told us: “I don’t know but from the letter I assume that it’s postponed and not definitely closed. Battistelli may try another time and the longer this drags on the worse it is for him but reemploying the judge doesn’t seem to be an option.”

This seems like a case of forever uncertainty (not knowing what will happen), until the judge’s term in the Board reaches the end. In fact, “probably this will be the tactic but I would imagine Battistelli still trying” (to fire him).

“The Administrative Council is complicit,” told us this person, “because they voted to prolong the suspensions in general to 2 years, which is scandalous [...] it’s shameful but nobody want to deal with an institution above the law [...] difficult legal situation” (the EPO's management has already gloated about ignoring the highest court at The Hague).

One person asked a few days ago: “Does anybody know what regulations apply at the EPO?”

Well, the EPO’s management insists that it’s above the law and Battistelli breaks his own rules, so does that matter? Here is the comment in full. It’s about surveillance:

Under EU data protection law (Regulation (EC) No. 45/2001) covert surveillance measures have to be approved by a “prior checking procedure”:
“In cases where the risks to your fundamental rights are high, the institution concerned is obliged to assess the implications of that surveillance on privacy and data protection (also known as an impact assessment). This impact assessment must then be submitted to the EDPS for prior checking i.e. before the surveillance becomes operational.”

https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Factsheets/Factsheet_4_EN.pdf

Does anybody know what regulations apply at the EPO ?
Is such retroactive rubber-stamping permitted ?

One response to this was as follows:

In addition to that Bulgarian judges appear to be well versed in the ramifications of covert surveillance operations:

http://sofiaglobe.com/2016/01/15/bulgaria-former-court-chief-gets-suspended-sentence-in-eavesdropping-trial/

The Bulgarian Judges Association seems to understand a thing or two about the “separation of powers” doctrine:
“Judges Association Urges Politicians Not to Jeopardize Law-Based State”

http://www.bta.bg/en/c/DF/id/1015331?PageSpeed=noscript

The names of those involved, Kathrin Klett and Anna Dimitrova, were disclosed as follows:

One should keep in mind that the EBoA in this case comprised two external legal members (Kathrin Klett (CH) and Anna Dimitrova (BG))
(see http://www.epo.org/law-practice/legal-texts/official-journal/2016/etc/se1/p2.html and https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15).
They are national judges of their respective countries and it can be assumed that they are well prepared to discern if the letter of the president represented a threat to the board or not.

Here is one person pointing out that three members of the Investigative Unit (it’s not much bigger than that) were summoned, presumably because their ‘evidence’ was illegally collected and/or made up:

Interesting to read that the EBA had invited three (!) members of the Investigation Unit as witnesses to its hearing. Both the chairman of the AC and the president of the EPO must have immediately understood this meant that the EBA would not simply endorse the alleged pieces of evidence put forward against the accused judge, but make an issue also of the way these have been obtained.
Although an invitation to hear witnesses must have been issued largely in advance of the hearing, and put to the president´s attention by his legal staff – who happens to also represent the AC in the procedure (!!) – the president waited for the very last day to send his explosive letter.
This is pretty like launching a bomb on a moving train.
But why did the procedure so direly need to be derailed? And why did the chairman of the AC deliberately not defuse the bomb?

“If the President thinks,” added one person somewhat sarcastically, “that the behavior of the Enlarged Board of Appeal is unlawful, then he should perhaps go to the German courts to get help in this matter.”

Battistelli would never go to a national court like the German courts because that would expose him to all sorts of scrutiny and Hell. Battistelli prefers to keep everything inside the bubble of Eponia, where he is king, judge, jury, accuser, executioner and so on.

“Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli,” one person pointed out in relation to this leak which we published 4 months ago. Here is the comment in full:

I’m not normally one to see a conspiracy where a cock-up adequately explains events, but:

The AC has now tried three times to instigate proceedings to remove the Board member. Each time they have screwed up such that the proceedings could not continue. They are surely by now well aware of the standards of evidence and argument which will be required to persuade the EBOA to make a recommendation of dismissal, and yet each time they have failed to even get their case off the ground far enough to discuss substantive matters. To misquote Wilde: to screw up one attempt may be regarded as a misfortune. To screw up two may be regarded as careless. To screw up three…?

At first this level of incompetence seems hardly to be believable. Having failed twice now, surely they should have gone in with a watertight approach on the third attempt if they were serious?

Well – what if they’re not seriously trying to remove the Board of Appeal member? Recall that Mr Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli. Maybe the larger AC players, having lost patience with BB but unable to remove him due to his grip on the smaller members, have decided deliberately to undermine the credibility of their own case to remove Battistelli by other means.

So here we have the EBOA asking Kongstad to distance himself from BB’s threats. Kongstad fails to do so – preserving whatever impression of loyalty to BB may remain. But in doing so, he torpedoes the proceedings against the Board of Appeal member, in a manner which drags BB’s already-soiled reputation further into the mire. Sure, it also makes Kongstad look bad at first glance – but the major damage is to Battistelli. Hey presto, an opportunity for Kongstad to persuade the rest of the AC that “regardless of the merits of the case”, they must reluctantly come to a decision to expel BB for the sake of the reputation of the Office…

Even if the smaller members vote in sufficient numbers to save Battistelli, the loss of support of the bigger members should surely be inevitable (if they have any sense of decency). Devoid of the support of DE, CH, FR, NL, maybe GB, surely his authority is drained and maybe the big players are then banking on the idea that he can either be brought to heel, removed with a final push at a later date once he fails to comply with them again, or persuaded to fall on his sword.

In other words, Kongstad avoids any public statement either against Battistelli, or in favour of the suspended Board member. He appears to remain loyal or neutral to the last, while at the same time ensuring that the proceedings fail in a manner designed to cause maximum embarrassment to BB.

It would be no crazier than anything else we’ve seen from the EPO lately.

Well, to be frank, nobody should assume that the EPO’s management will behave in accordance or adherence to its own rules, let alone national or international laws. Eponia is basically a rogue monarchy.

Here is another bunch of comments regarding whether this constitutes a threat or not (violation of Battistelli’s own Code of Conduct), without actually seeing the letter that was received from Battistelli and then passed to Mr. Kongstad:

Not a threat to declare an action by EPO employees unlawful? That is a very serious threat, because the EBA members, being EPO employees, would then disobey the statutes and could be accused of not acting in the interest of the office. You know what that means: investigation unit and sanctions, perhaps even dismissal. I do call that a threat.

Do not forget that under Article 10(2)(h) EPC the President may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11(3) (the members of the Boards of Appeal).
Is the potential “threat” becoming clearer ?

Here is the part which raises the possibility that Battistelli made his threat in an effort to hide his goons’ illegal activity, in the same way the FBI and USDOJ often do this in the United States (when Parallel Construction cannot be used to mask the illegal surveillance):

The picture that is emerging here is that one of the aims of the President was to prevent public discussion about the covert surveillance measures.

Does anybody know what regulations cover the use of these measures at the EPO ?
Obviously the EPO is outside the scope of the EU data protection law such as Regulation (EC) No. 45/2001.

Does it have any regulation to cover this matter or is the use of covert surveillance at the EPO completely unregulated ?

Can anybody help on this ?

Justice at the EPO and even outside of it (in independent branches of the Organisation) has become a farce:

I think you illustrate what I was saying. Article 10(2)(h) EPC existed for 30+ years without the Boards feeling unduly threatened by it.

However, the current relations between the Boards and the President are so fragile that they do now feel threatened, even when no explicit threat is made.

Here is a response to the above comment:

How can you claim that no explicit threat was made if you haven’t seen the contents of the letter ?

As far as is known the President expressed the view that it would be “unlawful” to hold a public hearing.

Thus if the Board held a public hearing it would – according to the President’s view – have committed an unlawful act. Or to use the favorite Eponian terminology these days – the members would have been guilty of “misconduct”. And everybody inside the EPO knows what that means. Since December 2015 Board members can be suspended for a minimum of 24 months on a proposal from the President.

Under these circumstances who could blame the Board for requesting clarification from THEIR appointing authority (the Council) to which the President is also subordinate (or supposed to be)?

It is OBVIOUS that the onus was on the Admin Council to clarify the matter and to state UNAMBIGUOUSLY whether or not it shared the President’s view about the “unlawful” nature of a public hearing.

If the Council did share the President’s view then it would be likely to follow any proposal that he made under Article 10(2)(h) EPC.
If it did not share the President’s view then the Board had no reason to feel threatened.

The Council Chair should have given a clear and unambiguous answer to this question and it was his failure to do so that resulted in the termination of the proceedings.

PS: The safeguard of Article 34(2) of the Service Regulations has also existed for Staff Reps. and their nominees for 30+ years: “The fact of of performing such duties shall in no way be prejudicial to the person concerned.”
It was respected (more or less) by all previous Presidents who kept their staff rep bashing activities within the bounds of reason.
That was until the current Pres decided to ride roughshod over it and “prosecute” staff reps and their nominees on trumped-up charges of “misconduct”.

So the nervousness of the Enlarged Board members is very understandable.
After all they are dealing with a person who once told them to their faces “In my opinion you are not judges !”

Now it seems that someone has finally had the courage to tell him “On s’en fout de votre opinion, Monsieur Battistelli”.

Well, based on information we got, it is indeed fair to call it a threatening letter, especially given Battistelli’s history of witch-hunting people (even by making up serious allegations and ‘dirt’).

As the following commenter put it, the “fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards.” Here is the comment in full:

All we know (from the accused BoA member’s lawyer) is that the President’s letter used the word “unlawful”. You seem to acknowledge that.

But we have not been told of any actual explicit threat. As far as we know, he didn’t actually say “If you hold these proceedings in public, I will do XXX”. Everything else that you describe is just fear of what the President might do.

That fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards. That is the reason for the fragile relations to which I referred. It is the reason why the Boards are nervous. It is the reason why the independence of the Boards is a big issue.

I said all of this in my previous post. You are not saying anything which contradicts it.

The debate over whether there was a threat or not carried on:

I think there is a slight misunderstanding among commenters about what is meant by “threat” in this case. Yes, individual members of the EBoA who are EPO insiders (some were external persons) could indeed consider the President’s letter personally threatening. But I think they meant that the President’s interference was a threat to the integrity of the proceedings, by attempting to forbid the public hearing and by refusing to allow the EPO employees called as witnesses to testify. No fair hearing could be possible in such circumstances.

I guess the issue was not merely whether the members of the EBA themselves felt directly threatened in their job by the intervention of the president. Also the respondent (accused member of the boards) and the public at large had to be absolutely confident that the judges in charge would conduct the procedure and decide freely and in full independence, rather than acting as BB´s puppets. The AC actually is the sole authority which could have given this guarantee in the circumstances, but it failed to do so despite having been offered several chances, apparently.

As a somewhat sarcastic response to the above consider this:

You mean, like the Disciplinary Committee which examined the cases of the three Staff Representatives? Certainly, if they felt threatened and under pressure from Battistelli, they could turn to their appointing authority which is … oh, is Battistelli.

Freely and in full Independece! Urrah!

And in response to the sarcasm:

I like that.

Actually, I shall add it at the end of my grants to dispel the impression in the public that I’m granting only to reach Battistelli’s targets.

I shall remove the “Urrah”, though – it doesn’t fit the code of conduct.

“Barbi” (a frequent poster) made the following good point:

If there were no threats in that letter, BB will not pass up on the opportunity to penalise the EBA for groundlesly failing in ist duty to deliver the requested dismissal for the judge. So that, if he does not request a penalty for the EBA at the next AC, it will mean that the EBA can prove that threats were there in the letter.

The “consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee,” pointed out the following person:

There’s a huge difference between writing in a letter that the procedure is “unlawful” and actually providing legal arguments in support of that statement – arguments that the EBoA would have certainly discussed and admitted or rejected, depending on their merit – and merely alleging that the procedure is “unlawful”.

As someone noticed above, the consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee – weapons and nazi memorabilia will be found in your office.

It sure seems like Battistelli has accomplished the unthinkable. He managed to make everyone (even managers) distrust him. He keeps some of them complicit by dangling Euros, but at the end of the day everyone knows that he controls people by fear (or terror). How ironic it is that he keeps exploiting terrorist events to paint himself as a sympathetic victim.

Battistelli has basically helped ‘prove’ that today’s EPO offers no notion of justice (this is essential/fundamental in a system which revolves around a patent justice system), just horrible libel against those who try to uphold justice. As one person put it the other day: “Thank you Mr. Battistelli: you probably have dispelled in the public at large the last doubts that the dismissal and degradation of the three Staff Representatives has been conducted in a fair and independent way.”

There are quite a few comments about this over at The Register as well, in response to an article about Battistelli’s attacks on the boards.

“Surely someone has the power to fire him,” one person wrote. “A good article would explain what is necessary to dismiss him or if it isn’t possible report why not. I’ve read umpteen ElReg article about Battistelli but can’t recall any mention. It reminds of Katrina Percy, chief executive of Southern Health NHS Foundation Trust who refuses to resign despite a number of damming reports. The fact that both of them are refusing to go confirms they need to go.”

“I’d say surely someone has that power,” responded another person. “He’s just very very good at sucking those particular balls/ballettes so that he won’t get fired. With that kind of behaviour he should be fired, that’s what is certain. And those of you familiar with Futurama know with what he should be fired and to where.”

“In theory he can be fired by the Administrative Council which appointed him,” another person pointed out. “But since he comes from their ranks, they will protect him as one of their own just as they have done so far. Especially the Chair of the AC Kongstad who negotiated Battistelli’s secret contract.

“Yes that’s right a contract so secret that not even the ordinary members of the appointing body know what is in it. Only the Chairman has seen it.

“And don’t imagine that voting for BREXIT will help you. The EPO Is not an EU institution. Even after a BREXIT, the UK will remain a member of the EPO.”

Here is another (longer) comment from there:

A comment over on IPKat may shed some light on this point:

=== When the computers in the public – public – area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

=== From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO’s Investigative Unit to the organisation’s internal data protection officer asked whether the spying described above “would have been authorised”—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for “alleged dissemination of material which was, as was also alleged, defamatory.”

=== Which means that the data collected from the public computers were obtained illegally.

They cannot be used. Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

Here is a less serious comment about Battistelli:

Mr. Battistelli sounds like a candidate for an award we used to have in the US, whereby worthy individuals were recognized for their unique contributions, arrayed in ceremonial finery and dispatched on a Victory Tour.

The colloquialism was “Tarred and feathered and ridden out of town on a rail”.

One recipient was heard to remark, “If it wasn’t for the honor of the thing, I think I’d rather walk.”

But surely your tumbrels aren’t all gone?

As another person put it: “If he was appointed then surely there is a way to get rid of him? An extreme method would be to tell him he’s fired and send security guards in to escort him off the premises. Why can’t this be done?”

A cynic might think that Battistelli hired 6 bodybuards (grossly overpriced) to protect him from firing (as well as protect his bulldog and Bergot) inside Eponia where police is not allowed without his prior approval. His bulldog is not even attending court sessions he's summoned for, perhaps thinking that Zagreb is like Eponia and the law is not obligatory.

One person notes: “in the most recent articles about this nut-case, is who he is answerable to – surely *someone* is able to fire him, he’s not a head of state.”

“Apparently he is,” it’s noted, “effectively.”

Lastly, writes one person, “[a]s far as I can see, that ship has long sailed,” quoting the original author as saying: “It is not known why Battistelli is so insistent on the appeals board hearings being held in private, or whether the appeals board is pushing for them to be held in public, but many suspect that what comes out in the course of the proceedings could be damaging to the president’s standing.”

One of our readers who’s familiar with the whole situation is “quite skeptical” that Battistelli is on his way out. “There was a moment at the beginning of last year when I thought Battistelli could be deposed,” said this reader, “but now I can’t see a majority in the Administrative Council.

“Battistelli can buy a lot of the representatives and the ones of the big countries are not that decided to get rid of him.”

We wrote about this before. It is outrageous and it serves to show that the notion of justice is outlandish and foreign to the EPO, whereas cronyism if not bribes is the ‘norm’.

“Ask the partner to give you heads up on customer situations – bribe them!”

Steve Winfield, Microsoft

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