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Alice v. CLS Bank (Alice/§101) Comes to Squash Software Patents Even in Eastern District of Texas

Posted in America, Courtroom, Law, Patents at 8:29 am by Dr. Roy Schestowitz

Software patents demolition in the United States

Crane reflection

Summary: The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls

WE RECENTLY gave many examples where Alice demolished software patents [1, 2, 3, 4, 5, 6]. The Alice v. CLS Bank case (at SCOTUS) led even the CAFC (overzealously in favour of software patents and their original endorser decades ago) to — believe it or not — overturning decisions/biases. They must all simply obey the new rules/laws and examiners at the USPTO cannot grant patents on software like they used to. It’s huge news, even if many news sites continue to overlook these developments (patent lawyers’ sites try to counter these worrisome — to them of course — developments and precedents using propaganda and cherry-picking of facts).

“Business method patent app[lications] get no respect,” says Patently-O‘s article, according to Richard Beem (patent lawyer). He just says (or whines) that it harms his parasitic business. “The chart above shows the USPTO patent grant rate across a variety of major technology areas,” says Patently-O, but notice the reluctance to distinguish software patents from the rest. The survey does not list “software” separately from other things. Therein lies a potentially strong bias, like that of the originator of software patents, Martin Goetz. He recently wrote no less than two articles dismissing altogether the existence of a “software patents” category/classification.

“If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court.”The EFF, taking note of some recent developments, writes about the quick demise of software patents in the US, owing to courts’ decisions (each reinforcing predecessors). “With Kafkaesque Flourish,” says the title, “the Eastern District of Texas Penalizes Parties for Following the Rules” (we have already written some articles about corruption in Eastern District of Texas courts).

The Eastern District of Texas is the worst court when it comes to patents (favourable to software patents and patent trolls who wield these). To quote the EFF: “In the wake of the Supreme Court’s June 2014 decision in Alice v. CLS Bank, most courts have been quickly and efficiently getting rid of patents that improperly claim “abstract ideas.” In Alice, the Supreme Court held that “abstract ideas,” without more, were unpatentable under 35 U.S.C. § 101. According to one source, at least 150 patents have had claims invalidated as “abstract” since Alice. Those accused of infringing these invalid patents have regularly filed motions to dismiss at the outset of a case, having the issue heard before too much time and energy is spent. Courts have, for the large part, embraced these “Alice motions” and invalidated abstract patents as soon as practicable.”

Here comes the new part: “Following the Eastern District of Texas’s unconventional rules, the defendants filed a letter asking permission to file their Alice motion. Given the potential for wasted time, effort, and money, the defendants very shortly thereafter filed a motion for a stay of the case while the court decided the issue of whether the asserted patent claims are invalid under Alice. The patent owner did not oppose the motion to stay. Presumably the patent owner also recognized that it was more efficient to hear the issue at the outset, without incurring costs that may prove to be wasted if the Alice motion is granted.”

It is nice to see Alice being brought up even in Eastern District of Texas courts. If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court. Even corrupt courts must sooner or later follow the law to avoid being throughly discredited and potentially abolished.


Alice v. CLS Bank (the Alice Case/§101) Continues to Crush Software Patents in the United States

Posted in America, Law, Patents at 4:09 pm by Dr. Roy Schestowitz

One important case has put potentially hundreds of thousands of software patents in a mass grave

Manchester cemetery

Summary: Patent scope in the United States continues to be narrowed down as more software patents get their wings clipped

“US Pat 6,326,978, Display for selectively rotating windows,” wrote Patent Buddy was “Killed by CAFC” (using Alice as precedent).

This is consistent with the outcome of Alice (Alice v. CLS Bank at SCOTUS level) as we have covered it in the past few months [1, 2, 3, 4, 5].

Despite all this, patent lawyers say that “US software patent suits being filed at higher rate than in 2013″. To quote their sources: “An analysis of patent litigation by Managing IP using the Docket Navigator database has revealed that software patent lawsuit filing is not only up on 2014, but has rebounded to exceed the levels in 2013.

“When Managing IP last carried out this analysis in December 2014, the figures revealed a plunge in software lawsuit filing. This was attributed to the Supreme Court’s Alice v CLS Bank ruling on June 19, which held that merely claiming an abstract idea is insufficient to establish patent eligibility.”

Irrespective of the number of lawsuits, many of them are lost (legal toll becoming a burden to the plaintiff) because of Alice; that is very important. Patent lawyers are trying to convince their existing and prospective clients to keep patenting software, so they only tell part of the whole story.

“Patent scope is clearly a key problem.”It is clear that swpats (software patents’ shorthand) continue to collapse in the United States and this month is no exception. Examples continue to be covered, just not by media of patent lawyers (they lie by omission, as we have explained before).

“CAFC Refused to Re-Hear Case,” wrote Patent Buddy, “First Patent Kill by Alice” (the latest such example).

Here is some analysis which says: “In its first substantive application of Alice v. CLS Bank in 2015, the Federal Circuit has once again shot down claims for not meeting the patent-eligibility requirements of 35 U.S.C. § 101.”

When it comes to the USPTO, which adapts to these developments slowly but surely, a patent lawyer in London says that the judicial exceptions are now very broad.

Patent scope is clearly a key problem. It’s not about patent trolls, however they’re defined. Some sites continue to focus on “Companies Sued The Most Over Patents In 2015″ (without scaling for the size of companies, hence serving as propaganda that frames large corporations as the biggest victims), but we all know that the patents themselves, not the users thereof or the target of lawsuits, open the door to misuse, abuse, and anti-competitive behaviour, as our previous post demonstrated (Apple versus Android).


Blackmail and Lies From the Press and the Government of New Zealand Attempt to Sell to the Public a Deal That Broadens Patent Scope

Posted in Australia, Deception, Law, Patents at 8:22 am by Dr. Roy Schestowitz

More protectionism for more large companies, even those coming from outside of New Zealand

John Key

Summary: Corporate conquest or takeover of New Zealand culminates in empty promises from government officials and blackmail against citizens of New Zealand, especially the country’s dairy industry

THE DEBATE about software patents in New Zealand is very important because it set the tone for similar debates in Europe and Anglo-Saxon-dominated countries such as Australia and Canada. It usually revolves around lobbying from US giants against local companies in New Zealand. The lobbying is done through law firms and front groups, but sometimes it’s done more directly (risking backlash and brand erosion for the likes of Microsoft and IBM).

The fight is back in a big way and there are many articles in the local media, as well as the international media. The Institute of IT Professionals has just had the corporate media in New Zealand lobbying for TPP, as expected, despite it being an evil secretive deal, enabling more systemic looting by the world’s super-rich. Some myths and classic nonsense get propagated, but there is also criticism of the secrecy, for instance: “Despite some of the potentially positive matters outlined below, we still hold concerns about the detail – or rather, lack of it. As the negotiations are being held in private, the actual wording being negotiated is restricted to negotiators and other government officials only. This means we and others can’t undertake independent analysis of the impact of what is being agreed until negotiations are complete.”

Rob O’Neill, who has used his role at the CBS-owned ZDNet to fight back against software patents in his country, now explains “​How New Zealand’s software patent ban can survive the TPP”.

“Officials give assurances there will be no changes to software patents, ISP liability and parallel importation,” he wrote the other day. Does he really trust these officials given their terrible track record on other secrets? Remember how John Key repeatedly lied about surveillance. It was only when leaks came out (undoing the secrecy) that he had to respond like an angry brat, shooting the messengers rather than admit that he had lied.

It may sometimes seem like the corporate press helps raise scrutiny rather than help the corporations that own the media. Despite that, on the very same day IDG hosted (at ComputerWorld) a notable lobbyist these days for software patents (Martin Goetz). He is now treated as a guest author in this nonsensical piece denying the existence of patents on software, even if he’s just reposting there (plus some “NZ” added) what he very recently wrote for lobbyists of software patents in IP Watchdog (patent lawyers with an exceptionally big mouth). How dumb does he think the readers are?

The people who want software patents in New Zealand are basically blackmailing for changed laws, using sanctions in reverse. As Clare Curran (MP) put it the other day, “Will Groser trade NZ innovation 4 dairy? Software sector raises concern over patents 2 secure access 4 dairy products”

See this Australian article which supports what she wrote and take note of this article from New Zealand:

While not unanimous, there is strong consensus from the industry against software patents. “In a 2013 poll of over 1,000 New Zealand IT Professionals across the sector, around 94% of those with a view wanted to see software patents gone,” Taylor says.

“Following significant work by IITP and others, the Government agreed and modified the Patents Act to protect New Zealand technology firms from software patents in their home market.”

“The patent system doesn’t work for software. Research shows it’s near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, often for ‘obvious’ work.

The government is of course lying and misrepresenting the opposition. It just wants this deal sealed and done for the plutocrats, some of whom are not even based in New Zealand at all. As one author put it the other day, alluding to Groser: “The government is also running the line that those same hard core anti-TPP protesters have opposed every single trade deal that New Zealand has entered. This is willfully deceptive in that it assumes the TPP is a free trade deal – when in reality, several of its most noxious provisions are anti-trade in that they entrench existing corporate advantage.

“Also, regular protest is necessary because successive “trade” pacts have included the same objectionable elements for well over 20 years. Almost identical investor-state dispute settlement mechanisms (which enable corporations to sue sovereign governments when they pass laws that infringe on profit expectations) have cropped up in mooted trade deals ever since the MAI (Multilateral Agreement on Trade) proposals in the 1990s. Eventually, the MAI was defeated by a mass mobilization around the world very similar to the anti-TPP protests today. It can be done.”

New Zealand is under attack. It’s not just affecting software professionals but also countries outside of New Zealand, which is why we hope that citizens of New Zealand will get involved and help crush TPP. The assurances given by government officials are just lies and a shallow form of deception whose purpose it to sell the deal. Once it’s signed there’s no going back.


Software Patents Gradually Getting Crushed, Even in the United States

Posted in America, Asia, Law, Microsoft, Patents at 3:34 am by Dr. Roy Schestowitz

SCOTUS changed everything


Summary: A comprehensive look at the past week’s news, including new cases that serve to weaken software patents in their country of origin

THE very existence of software patents is troubling. Not everyone can understand that because not everyone is a software developer. If the notion of a global patent system ever becomes a reality, then we must ensure that this system does not have any software patents. Therein lies the importance of the fight in the United States, by far the most influential country in international politics.

A couple of days ago some Microsoft-friendly media (paid by Microsoft for a lot of advertising) published the post titled “Copyright is enough for software”. It is not a bad post and it helps echo the feelings of many software developers. To quote the opening part: “Now I will fully admit that software patents are getting more restrictive, and the patent office, working with members of the community, has offered up a few ideas to make software patents less offensive and broad. This is a good thing, as in the past we’ve had some truly horrendous software patents issued for utterly mundane things that every developer uses every day.”

As we are about to show later in this post, the US patent office is indeed narrowing down scope in some areas (such as software) and courts support such a move, which they quite likely motivated in the first place.

Patent lawyers are, quite understandably, nervous. They try to lure people into conducting patent searches and fall into the wasteful trap which is software patenting. See this new article from the technical press, suitably titled “Patents: Exercises in Futility and Incomprehensibility?”

They are a waste of time and they achieve nothing but collective fear, which slows down development. “Learning anything from patent documents has to be one of the world’s least productive endeavors,” explains the author. “But there are a few techniques by which you can squeeze out what useful information may be hidden there.”

Better yet, never look at any patents at all. It only increases liability in case of infringement. This isn’t an act of civil disobedience but a matter of setting priorities correctly. Software developers should write code, not read patents. Imagine patents on recipes and cooking, leading chefs to endless reading of patents (instead of cooking), whereupon some forms of cuisine will be deemed too risky to do, making food more expensive and stale. Who benefits? Certainly neither chefs nor the public. Such a system would result in cooking ‘conglomerates’ and hoarding by their facilitators like lawyers.

International Trends

In BRICS nations there is resistance to software patents, although based on this new article, China is allowing patents on software in some cases. China has been trying to artificially elevate the number of its patents for quite some time, even by lowering the threshold/bar of what’s patentable. It is, in part, a PR exercise. It’s part of the national agenda, seeking to rid this growing economy and great nation of the “knockoff” reputation.

Not many Western companies bother patenting their work in China (unlike, say, Korea and Japan, where companies also love to patent their stuff in Europe and the in US). Not many people or companies in China get sued over patents, at least not based on what we can see. Western companies very rarely get sued in China (over patents or anything else for that matter); there are only few cases that are seldom covered (on very rare occasions), usually involving some big brand like Apple because such stories ‘sell’ better.

Quoting the above: “The first [patent] is from the Chinese State Intellectual Property Office (No. 200880126543.0) entitled “Method, System and Computed Program for Identification and Sharing of Digital Images with Face Signatures”, while the second patent is from the Canadian Intellectual Property Office under the same title (No. CA 2711143).”

It is interesting that Chinese patents are sought by companies for the same ideas that are patented in Canada. Depending on which application was made first, we may be able to deduce or at least guess the intention. Not too long ago Apple was sued over patent infringement in China, where Apple is clearly losing to Android players like Xiaomi (now exceeding Apple in terms of sales). Before China was fighting back against patent aggressors like Microsoft Chinese companies like ZTE surrendered to Microsoft without a fight. It helped demonstrate the role of software patents in China. Microsoft can try to ban imports from China until or unless products are castrated (features removed), money gets paid to Microsoft, or Android is dumped in favour of Windows (or a Microsoft-centric version of Android, with a lot of Microsoft malware preinstalled). Overall, China has nothing to gain from software patents. It merely suffers from these. Thankfully, China isn’t falling for all these horrible ‘trade’ deals (misleadingly marketed to the public as “against China”), where increase in patents and their scope/range of applicability is paramount.

According to a new article from IAM, China’s ZTE is now fighting a battle with a US-based troll. It’s the Microsoft-backed Android/Google-hostile Vringo. Patent Buddy called this “ZTE’s Plan to Disparage Vringo and Change US Patent Law (to make it anti-patent)” (so again, US patent law is relevant here).

Over in India, another BRICS nation that does not in principle allow software patents, Google has just received a software patent. “Google has secured an Indian patent,” said the Financial Express, “for an invention regarding a method and system for transferring annotations associated with video files. ”

There seems to be some kind of confusion when Western companies come to BRICS nations and attempt to patent software. Are patent examiners aware at all of the fact that software is ineligible for a patent where they are? Perhaps we need to focus more on the source of this influence, which fools examiners into granting patents on software, gradually taking these global, even against the law.

USPTO Guidance ‘Reform’

The US patent office, the USPTO, is trying to keep up with the courts. It plays catchup with the law, keeping abreast of big judgments more than a year later (because the USPTO, like the court system, is far too slow). Here are the concerns of Barnes & Thornburg’s Intellectual Property Law Department (i.e. patent lawyers), among others. It’s about Alice and software patents (§ 101). This is again input from patent lawyers (Finnegan, Henderson, Farabow, Garrett & Dunner LLP), also echoed here. What we basically see here is a lot of responses from patent lawyers to changes that are happening at the USPTO, based on new guidelines for patent examiners. Snow Christensen & Martineau (more lawyers) chose the title “New examination guidelines from the USPTO on subject matter eligibility: what it means for the patentability of your inventions” (the most desperate headline came from the most shameless promoters of software patents).

For the uninitiated, software patents are gradually dying in the US, for the courts repeatedly rule against them, invalidating a lot of patents in the process (even by extension, through precedence). The USPTO is just trying to keep abreast here and refrain from granting more patents that would later get invalidated because 1) it damages the credibility/reputation of the USPTO (granting patents in error) and 2) it lowers, in due course, the incentive to file/apply for patents at the USPTO, for they may not be honoured by the court system, deeming them a massive waste of time and money.

Courts Continue to Crush Software Patents

As another week goes by, another case serves to show that software patents are not potent enough for winning a case, not even in the US. Invaliding patents on invisible things (like algorithms) is the big trend these days and here again is a reminder of that in lawyers’ media. “It is very important to provide adequate disclosure when using “means-plus-function” claims in a U.S. patent,” says the author, “particularly in the field of software.”

According to this same publication, more software patents are about to get invalidated. To quote the opening paragraph: “On July 9, a judge in the district of Oregon granted two motions for summary judgment finding that the claims of United States Patent Nos. 7,346,766 and 6,728,877 fail to state an inventive concept sufficient to satisfy the Supreme Court’s test for patentability of an abstract idea under Section 101, and are therefore invalid. The patents-in-suit involve technology related to the migration of user configuration settings from a source computing system to a target computing system. In granting defendant’s motions for summary judgment, the court followed the Supreme Court’s guidance in the landmark Alice Corp. Pty. Ltd. v. CLS Bank, Int’l, 134 S. Ct. 2347 (2014) decision.”

No wonder patent lawyers worry. Alice has been doing this time after time. “The Supreme Court has made changes to patent law and how it’s interpreted, he says, which makes the interpretation of patent laws more uncertain, particularly where software is involved,” corporate media wrote the other day.

Here is another new article about this. “To be granted a patent for software,” it says, “the patent application had to overcome objections based on a 2014 US Supreme Court case holding that the mere computer implementation of a business method is unpatentable. The US patent examiner has judged Arria’s “Method and Apparatus for Configurable Microplanning” to be an innovation that contributes to the field of computer science. The innovations underlying this and Arria’s two other US patents enhance the quality and authority of the plain English narratives being written by the Arria NLG Software Engine without human intervention.”

We gradually get to the point where most software patents are worth $0 and no new ones (or very few ones) actually get granted. In this trend broadens in the US, then software patents will be universally (globally) dead. It’s only a matter of time.

Lobbying Persists

The USPTO has been changed and perturbed over hundreds of years, with scope expanding to millions of patents on mere ideas (not physical, no mechanics), but some people live in the past and pretend that no correction is required. Martin Goetz, who has been making a career out of speaking in favour of software patents, is now enjoying support from patent lawyers who give him their platform. The man who started software patents (Martin Goetz got the first one) wants us to stop saying “software patents” as if trying to just dodge the debate by changing words will make these patentable again. CII? Computer-implemented inventions? That term never caught on. Just like “NPE” for trolls, or formerly patent sharks.

Patent lawyers are having an ‘ACTA moment’ right now, realising that what they tried so hard to defend has got a very bad name, so they try to rename. This basically means they lost.

It is going to be interesting to see how the rest of the world responds to the post-Alice status quo in the US. Software patents are in the process of rapid demise, but it may take half a decade for this plague to be totally eradicated. These systems are very slow to adapt to change.


People of New Zealand Must Rise Up to Defend Sovereignty and Stop Software Patents

Posted in Australia, Law, Patents at 6:42 am by Dr. Roy Schestowitz

Corporations rely on people remaining ignorant, apathetic and docile like sheep


Summary: The TPPA serves to override (launder) the law of New Zealand, allegedly legalising patents on software in the process

MUCH of the software patents debate in New Zealand happened 2 years ago and about 5 years ago. We also wrote about it the other day, having noticed revisionism in the media.

Well, software patents are now being pushed from the back door (bypassing public debate), as today’s ZDNet article serves to remind us:

Negotiations for the Trans Pacific Partnership Agreement appear likely to undo New Zealand’s ban on software patents.


The president of the New Zealand Open Source Society is “livid” that New Zealand’s Trans Pacific Partnership Agreement negotiating team appears to have already conceded the country’s newly-minted ban on software patents.


Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.

The implication is New Zealand’s new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.

“I think it would be fair to say that I haven’t seen any indication that there is anything positive for New Zealand in this at all,” Lane said. “The only motivation that I’ve been able to discern for taking part in the process is the somewhat dogmatic idea that if we are not part of this then we are going to miss out on something.”

It is clear that corporations and plutocrats always get what they want unless people fight back. We encourage people in New Zealand, not just software developers, to rise up and resist this injustice. It’s a nonviolent coup attempt.


Patent ‘Reform’ in US Congress Still Under Attack by Patent Lawyers and Corporate Lobbyists

Posted in America, Law, Patents at 3:42 pm by Dr. Roy Schestowitz

US Capitol

Summary: The latest instances of assault on changes to the US patent system, demonstrated through an elaborative survey of the media (two days’ worth)

THE futility of a so-called ‘reform’ in the US patent system and our dismissive attitude towards it is due to corporations-led watering down of bills. What’s typically left in bills is nothing of substance, or too little of substance, just enough for the corporate media to state that the system has been changed and is thus ‘fixed’.

“Corporations and the millionaires (or billionaires) who own them are totally dominating political platforms.”Blake A. Ilstrup, who describes himself as “general counsel and senior vice president of business development at Kineta,” does not want the current patent regime to change. “Congress must keep trolls away from medical patents,” heralds another headline from someone working in Kineta’s field (or very similar). It sure looks like there’s a battle between lawyers and everyone else. Remember that many lobbyists are themselves lawyers. AmeriKat, a strong proponent of more patents in the US (and a proud proponent of software patents, so we assume that it’s a patent lawyer from the US), happily speaks of “US patent litigation boom” (more business for lawyers), not to our surprise at all. Sen. Gerald Ortiz Y Pino’s piece about “frivolous patent suits” continues to circulate while former Rep. Ron Klink (D-Pa.) pretends that this out-of-control patent system is good for workers (he published this in a site where lobbyists are abundant). This former Representative sure seems to be fronting for corporations here, not workers. There is also a lot of pro-patents propaganda (more lawsuits wanted) from patent lawyers who celebrate this horrible patents-maximising system, hoping that it stays in tact [1, 2, 3, 4]. With an arrogant grin in the latter two examples, patent lawyers actively work to derail patent reform. They are succeeding so far because, as the first of these highlights right in the headline, “House vote on Innovation Act could be delayed until after August recess” (delay works well for them).

Where is opposition to software patents in the media? We’re massively outnumbered now by patent lawyers. The corporate media is currently reposting a biased article from Bloomberg (booster of patents and so-called ‘IP’ for a number of years), showing us all that no chance of a ‘reform’ — however small — is being tolerated by corporations. Corporations and the millionaires (or billionaires) who own them are totally dominating political platforms.


As Demise of Software Patents (and More) in Line With Alice/Section 101 Accelerates, Hashtag #AliceStorm Introduced to Highlight Examples

Posted in America, Law, Patents at 2:31 pm by Dr. Roy Schestowitz

In Lieu of Decades of Bad Practice

Bilski Blog chart
Credit: Bilski Blog

Summary: The so-called ‘AliceStorm’ is eliminating software patents (and other abstract patents) at an alarming (to patent lawyers) rate

LAST WEEK we wrote about Michelle Lee's remarks on patent law, conjoined with the report about the Alice case beating Microsoft's patent troll, Intellectual Ventures. Lee’s remarks were important because she is now the leading face of the USPTO (no matter her job title) and Alice is killing software patents very fast, impeding Microsoft’s attacks on Free software in the process. It was only four days ago that we last cited a new example where Alice slaughtered software patents, paving the way (by citation or argument/strategy) for future legal cases where software patents are at stake. This is one of the most fantastic developments that Techrights has seen in nearly a decade and if Groklaw was still active, it too would be jubilant (it partly celebrated the Alice ruling in News Picks, coming back to life after less than a year of total silence).

“Lee is finally recognising that everything has changed and therefore the USPTO needs somewhat of an examination overhaul, for courts almost always disagree on software patents granted by the USPTO.”Michelle Lee now claims that the USPTO needs more Section 101 guidance, based on this patent lawyers’ site. Lee is finally recognising that everything has changed and therefore the USPTO needs somewhat of an examination overhaul, for courts almost always disagree on software patents granted by the USPTO. Just look at the statistics.

According to Patent Buddy, this new ruling [PDF] is yet another victory. “Another case where application of Alice/101 to kill patents has jumped the fence from business methods to software,” to quote Patent Buddy, who added: “We are seeing 101/Alice rejections for everything from MRI devices to adhesives!” According to another new find from Patent Buddy, “US Pat. 6728877 and 7346766 Killed with 101/Alice in Summary Judgment in Lawsuit Against Lenovo by Tranxition in Oregon Dist. Ct.”

This isn’t being overlooked, except by patent lawyers who probably hope that nobody will pay attention. They cherry-pick the few cases where software patents somehow survive. Here is a software patents’ booster whining about this. He wrote: “Deals are still being done in the software patent world, but patent valuation is significantly less than even just a few years ago.”

It’s hardly shocking.

“The Alice/101 Kill Rate Is Accelerating,” Patent Buddy added, linking to a “MUST READ From Bilski Blog” where Robert R. Sachs coins (or advertises) the word/hashtag “AliceStorm”. To quote Sachs: “In just the first ten days of July, there have been ten decisions on patent eligibility—more decisions in first ten days of any month since Alice was decided last year. At this pace, we could see some twenty to thirty decisions this month. #AliceStorm is accelerating.”

It sure looks like even some of the most respected legal blogs (like Bilski Blog in this case) recognise that software patents are weakened by Alice orders of magnitude more often then they were weakened (or invalidated) by the famous Bilski case (it did happen albeit very infrequently).


When the European Patent Office Lost in Court and Refused to Obey the Law: An Analysis

Posted in Courtroom, Europe, Law, Patents at 6:58 am by Dr. Roy Schestowitz

Battistelli isn’t Napoleon

Arc De Triomph

Summary: Recalling the ruling which the EPO simply refused to accept, leading to heavy political backlash that is now mostly forgotten

THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law. He snubbed a court order against him, whereupon he and his apologists came under fire from Dutch politicians belonging to various political parties. Apparently the Hague (where the ruling was made) takes justice pretty seriously, whereas Mr. Battistelli views himself as above the law, immune from German law and by extension European law. “EPOnia” is what some people in IP Kat jokingly call this ‘magic’ jurisdiction (virtually immune or exempted from the rule of law, where only one man, the Napoleonic Battistelli, has the last word).

“THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law.”SUEPO has just said that “Nederlands Juristenblad, a Dutch legal magazine, published an article about the judgment of the Dutch Court of Appeal in the case SUEPO v EPO.” There is already a collection of translations [PDF], so we decided to manually turn into HTML the English translation. Here it is in full:

Nederlands Juristenblad – 08.05.2015

English translation

Fundamental labour rights and immunity

The case against the European Patent Organisation (EPO)

Cedric Ryngaert & Frans Pennings1

The Court of Appeal in The Hague has created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case, and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction not only erodes the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation adequately protects fundamental rights.

In preliminary relief proceedings on 17 February 2015 the Court of Appeal in The Hague declared itself competent to give an opinion on the merits in the case against the European Patent Organisation (EPO)2 brought by two trade unions. This organisation is charged with implementing the European Patent Convention (EPC). The EPO is not an agency of the European Union; even states that are not members of the European Union are member states of the EPO. It is therefore an independent intergovernmental organisation that has a secondary office in Rijswijk. The Court was of the opinion that the EPO was not entitled to any immunity from jurisdiction in this case, in spite of the relevant stipulations in the headquarters agreement between the organisation and the Netherlands, because the unions were unable to bring their claim before any arbitration body.3 The Court consequently deemed the restrictions the EPO

1 Prof. Dr. C.M.J. Ryngaart and Prof. Mr. F. Pennings are Professors of international law and social law respectively, at the University of Utrecht
2 Court of Appeal in The Hague, 17 February 2015, ECLI:NL: GHDHA: 2015:255. The EPO has its head office in Munich.
3 Art. 3, par. 1. Protocol in respect of the privileges and immunities of the EPO; Art. 8 of the Convention in respect of the Granting of European Patents, this is the Convention established by the EPO.

had imposed on trade union formation and communication, and on the right to strike, a violation of fundamental collective labour rights. It ordered the EPO to grant the trade unions unrestricted access to the internal e-mail system of the EPO and to allow them to attend collective negotiations, and prohibited the organisation from applying the stipulations in its employment rules and regulations that restrict the right to strike. However, the Minister for Security and Justice ultimately instructed the bailiff not to enforce the Court’s decision, because such enforcement would mean a violation of the immunity from enforcement protected by international law.

After an overview of (1.) the history prior to the decision of the Court we use this contribution to critically reflect on (2.) the non-granting of immunity from jurisdiction to the EPO pursuant to the right to access to the courts as documented in Article 6 of the ECHR; (3.) the evaluation of the conduct of the EPO in relation to collective actions against the principles of international labour law; and (4.) the Minister’s instruction to not enforce the decision. Our perspective is based on international law on the one hand (par. 2 and 4) and on labour law on the other hand (par. 3).

1. History
It is not the first time that the EPO has been summoned to appear before a Dutch court in relation to a labour law dispute, and that the court had to decide on the EPO’s immunity from jurisdiction. An individual employee, Bertrand, had previously started proceedings against the EPO. In that particular case the Supreme Court judged in 2009 that individual labour disputes relate to the activities of the organisation; based on the criterion of functional necessity such disputes are therefore, in principle, subject to immunity from jurisdiction.4 However, the Supreme Court also stated that this immunity applied only insofar as the EPO provided alternative procedures that gave legal protection in accordance with Article 6 of the ECHR. This is an application of a principle as documented in 1999 by the European Court for Human Rights (ECHR) in the Waite and Kennedy and Beer and Regan cases: the admissibility of the granting of immunity from jurisdiction to an international organisation is dependent on the availability of an alternative that effectively protects the individual’s right to access to the courts.5 The Supreme Court was of the opinion that this legal protection was in fact being provided because individual employees of the EPO had access to a jurisdictional procedure before the International Labour Organisation Administrative Organisation (ILOAT), even if they were not entitled to a public hearing.6

4 Supreme Court 23 October 2009, ECLI:NL:PHR:2009:BI9632, legal ground 3.3 (ratification of ruling by the Court of Appeal in The Hague, 28 September 2007, ECLI:NL:GHSGR: 2007:BB5865).
5 ECHR, application number 26083/94 (Waite and Kennedy vs Germany); ECHR 18 February 1999, application number 28934/95 (Beer and Regan vs. Germany, legal ground 68 (“For the Court, a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them a reasonable alternative means to protect efficiently their rights under [Article 6 of] the Convention.”)
6 The Supreme Court ruled that it had not been proven or made evident that the Court would reject substantiated requests for a public hearing – even if public hearings rarely ever occurred in practice. HR 23 October 2009, ECLI:NL:PHR: 2009:BI9632, legal ground 3.5

However, neither the Administrative Organisation nor any other international dispute settlement mechanism has any jurisdiction with respect to collective labour law matters between EPO and its organised grouping of employees. After the EPO had restricted the right to strike and had blocked collective negotiations it was therefore only a matter of time before the trade unions of the EPO employees (VEOB and SUEPO) would bring proceedings before the Dutch courts: in 2013 these trade unions, referring, among other things to Article 6 of the ECHR, asked the District Court of The Hague to order the EPO to stop violating the right to strike and the right of collective bargaining; they claimed an urgent interest.

On 14 January 2014 the District Court of The Hague, in preliminary relief proceedings, made a judgement rejecting the immunity of the EPO because the trade unions did not have alternative legal means available that would effectively guarantee their right to have access to the courts within the meaning of Article 6.7 However, at the same time the Court stated that granting (part of) the claims could result in fragmentation of the Patent Organisation, in the sense that in the Netherlands different regulations must be applied than in other participating member states; according to the Court the essence of the immunity would therefore be affected, contrary to the immunity stipulation in the Convention in respect of the granting of European patents (Article 8 of the EPC), which guarantees the functioning of the Patent Organisation as a whole, including the application of organisation-wide and uniform regulations.8 The Court subsequently stated that the trade unions would have to take their claims to the central organisation of the EPO.9 Consequently, the District Court of The Hague first rejected the immunity of the EPO pursuant to incompatibility with Article 6 of the ECHR, and subsequently did confirm it based on the principle of functional necessity. The reasoning of the Court was not very convincing, and the trade unions therefore appealed to the Court of Appeal in The Hague.

In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague

2. EPO’s immunity from jurisdiction: a critical interpretation of the ruling of the Court of Appeal in The Hague
In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague; it stated that the trade unions did not intend the ‘fragmentation’ the Court was concerned about, even though the measures they appealed against were adopted for the entire organisation. With this statement the Court appeared to reject the argument that the absolute immunity, as documented in Article 3 of the Protocol in respect of Privileges and Immunities of the EPO,10 is functionally necessary for an

7 District Court of The Hague 14 January 2014, ECLI:NL:RBDHA: 2014:420.
8 Ibid legal ground 3.11.
9 Ibid.
10 Protocol in respect of Privileges and Immunities associated with the Convention in respect of the Granting of European patents of 5 October 1973, Treaty Series 1976, 101.

international organisation like the EPO to exercise its powers, at least insofar as there are no cases before courts in other states.11

If the immunity of the EPO is not absolute but only relative, the question obviously arises how relative it is, and particularly: under what conditions can the EPO’s immunity from jurisdiction still be compatible with the right to access to the courts as guaranteed by Article 6 of the ECHR.

This compatibility assessment had come under some pressure in the Netherlands in the Mothers of Srebrenica case. In this case the ECHR had approved the granting of immunity to the United Nations in 2013, even though the UN had not provided alternative legal protection. Nonetheless, it was obvious right from the start that this decision did not have a general scope but only applied to the UN in view of its special status as a collective security organisation.12 In a recent labour law immunity case relating to the EPO itself (Klausecker v. Germany, 2015), the ECHR once again confirmed the Waite and Kennedy requirement that international organisations must, in principle, provide alternative legal protection13; in this case the EPO had met this requirement by suggesting an arbitration procedure for the complainant – a man who was not being hired because he did not meet the physical requirements needed for the job.14

However, none of this means that the absence of alternative legal protection per se necessarily leads to the rejection of the immunity of the organisation. After all, in Waite and Kennedy the ECHR determined that the availability of an alternative is only a ‘material factor’.15 In that sense the Court of Appeal in the case in question was of the opinion that the absence of an alternative judicial process, in combination with the granting of immunity, does not ipso facto lead to a violation of Article 6 of the ECHR.16 According to the Court such a violation only occurs in the case of ‘additional circumstances’, in particular the systematic and far-reaching violation of the fundamental principles of the democratic state under the rule of law.17 However, this restrictive interpretation of the protection supposedly offered by Article 6 of the ECHR is not supported by the jurisprudence of the ECHR. After all, Klausecker already shows that, at least in labour law cases, the presence of an alternative is conclusive if the organisation wishes to invoke immunity18, without the ECHR having imposed qualitative requirements in the case in question with respect to the nature of the underlying violation the organisation has allegedly committed. For that matter, in the light of the accountability of international organisations the availability of a

11 In this case one of the trade unions had in fact initiated legal proceedings in Germany, but it was a main action rather than preliminarily relief proceedings. If both court cases had been of the same nature one of the cases could have been deferred.
Compare Court of Appeal The Hague 2015 (EPO), legal ground 4.5. However, this deferment arises from the doctrine of lis pendens rather than the principle of functionally necessity informed immunity.
12 ECHR 11 June 2013, application number 65542/12 (mothers of Srebrenica vs. the Netherlands), legal ground 152,
13 ECHR, 6 January 2015, application number 415/07 (Klausecker vs. Germany), legal ground 64
14Ibid., legal ground 76
15 ECHR, (Waite and Kennedy vs Germany), legal ground 68
16 The Court refers to legal ground 164 of ECHR 2013, (Mothers of Srebrenica), (Court of Appeal The Hague 2015,(EPO), legal ground 3.4), although this consideration of the ECHR apparently only related to the special position of the United Nations
17 Court of Appeal The Hague 2015, (EPO), legal ground 3.10
18 ECHR, (Klausecker), paragraph 69 (‘Having regard to the importance in a democratic society of the right to a fair trial, of which the right of access to court is an essential aspect, the Court therefore considers it decisive whether the applicant had available to him reasonable alternative means to protect effectively his rights under the Convention.’).

judicial process for every possible dispute between an individual or association and an international organisation is highly advisable.

Whatever the case may be, the Court of Appeal did in fact qualify the alleged violations of the right to strike and the right to collective bargaining as violations of fundamental rights (see also below – par. 3).19 Furthermore, in the opinion of the Court, the legal protection offered by the EPO with respect to potential violations of the right to collective action and bargaining was ‘manifestly deficient’, as the procedure for ILOAT is reserved for individual employees (see above)20, and because the EPO had not provided its own judicial process to guarantee collective labour rights.21 It is not entirely clear whether procedures that are ‘deficient’ but not ‘manifestly deficient’ do meet the requirements of article 6 of the ECHR. The ‘manifestly deficient’ standard does in any case not originate in the jurisprudence of the ECHR with respect to the immunity of international organisations, but in the jurisprudence relating to the liability of member states for the unlawful acts of international organisations.22 Furthermore, in this latest jurisprudence the ECHR primarily uses the requirement of ‘equivalent protection’; the ‘manifestly deficient’ standard is, in principle, only used to hold the member state liable for the actions of the organisation if the legal protection offered by the organisation in a concrete case is truly inadequate, even if the organisation generally provides ‘equivalent’ protection.23 By upgrading the relevance of the ‘manifestly deficient’ standard the Court appears to imply that only in cases of serious shortcomings there is a violation of article 6 of the ECHR, although the standard of equivalence does require that the legal protection provided by the proposed procedures must, although not necessarily identical to the protection provided by national legal procedures, at least be of a sufficiently high level and therefore definitely not deficient.24 Once again, whatever the case may be, the Court found the legal protection procedures relating to collective action offered – and especially not offered -by the EPO to be ‘manifestly deficient’, and subsequently considered the appeal for immunity on the part of the EPO with respect to these prima facie claims in the absence of any judicial process a disproportional restriction of the right to access to the courts documented in Article 6 of the ECHR.25

It is interesting in this context that the Court discovered a norm conflict between the Protocol regarding the Privileges and Immunities of the EPO and the ECHR, and was of the opinion that

19 Court of Appeal The Hague 2015, (EPO), legal grounds 3.7 and 3.10.
20 Ibid., legal ground 3.8
21 Ibid., legal ground 3.9
22 ECHR 30 June 2005, application number 45036/98 (Bosphorus vs. Ireland). The Court also cites this case in legal ground 3.6.
23 ECHR, (Bosphorus), legal ground 155-156
24 This is not in any way an academic discussion. One can imagine that an international organisation, other than the EPO, which is not provided any legal access, would still make a rudimentary dispute settlement system with respect to collective action claims available. It is quite possible that such a system is not ‘manifestly deficient’, even if it only provides relatively limited legal protection. In an extreme interpretation even the mere existence of a dispute settlement mechanism meets the guarantees provided by Article 6 of the ECHR, irrespective of the exact procedures used by this mechanism. For a particularly ‘light touch’ assessment of the compatibility of the procedures of the Appeals Board for NATO employees with article 6 of the ECHR see also: ECHR 5 March 2013, application number 39619/06 (Chapman vs. Belgium), (only available in French).
25 Court of Appeal The Hague 2015, (EPO), legal ground 3.10

the latter instrument took priority.26 However, the question on exactly which grounds the ECHR has priority over the Protocol remains unanswered. After all, both instruments are Conventions that the Netherlands is bound by, and there is no fundamental hierarchy between individual Conventions. By propounding this hierarchy regardless – Human Rights Conventions can suspend stipulations from other Conventions – the Court of Appeal creates the impression that the Netherlands has committed an internationally unlawful act by signing, or at least maintaining, the aforementioned Protocol. In this context it is perhaps better to talk about the ‘balancing of standards’27, for which purpose Article 6 of the ECHR, and particularly the interpretation given to this Article by the ECHR, provides information on the scope of Article 3 of the Protocol.28

3. The case considered in the light of international labour law
After the Court of Appeal had rejected the immunity of the EPO it granted a number of claims of the trade unions. Although the trade unions had based their claims on various international Conventions the Court – with one exception (see below) – did not include these in its review. However, those references to international Conventions and principles are useful, as they serve not only as essential criteria for the functioning of the EPO, but can also provide an extra argument to reject the invocation of immunity (see above – par. 2). An important source is the Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Organisation during the conference on 18 June 1998, which stipulates that all member states, even if they have not ratified the Conventions in question, have an obligation to respect, promote and realise the principles relating to fundamental rights that are the subject of the Conventions in question, including freedom of association and the active recognition of the right to collective bargaining, in good faith and in line with the constitution of the International Labour Organisation (ILO) (italics added by authors).29 This means that the right to trade union organisation is a very fundamental right that no ILO member state can evade. Therefore, the states that have established the EPO, and consequently the intergovernmental organisations they have founded, are also bound by these principles. In view of the fundamental character of the right in question it is not permissible for the EPO to invoke its immunity. With their initial claim the trade unions asked that the ability to make unobstructed use of internal e-mail facilities to enable them to communicate with EPO employees in relation to trade union-related matters be restored to them. The Declaration on Fundamental Rights, which is

26 Ibid. legal ground 3.11
27 In that sense see Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal grounds 30 and 32, in which the Court indicates that the application of Article 6 of the ECHR in immunity cases against international organisations comes down to balancing two standards, and that Belgium did not commit an unlawful act by joining the instrument that provides immunity (the headquarters agreement).
28 Inspiration may be drawn from Article 31 (3)(c) of the Vienna Convention on Treaties (1969), which stipulates that in the interpretation of a Treaty ‘every relevant rule of international law that can be applied to the relationships between the parties’ must be taken into consideration. In that sense Article 6 of the ECHR must be taken into consideration in the interpretation of Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO.
29 Art. 2 of the ILO Declaration on Fundamental Principles and Rights at Work, adopted during the International Labour Conference during its 86th meeting, Geneva 18 June 1998 (www.ilo.org)

elaborated further in Conventions 87 and 98, requires freedom of association and the active recognition of the right to collective bargaining. Article 11 of the ECHR also constitutes a
fundamental right; this Article stipulates the right of association and the right to establish trade unions. Accordingly, these principles and stipulations give trade unions the right to perform their tasks, which include communicating with members and non-members, as the freedom of collective industrial organisation becomes illusory without this possibility. However, the Court does not refer to these stipulations, but, in concurrence with them, does consider that it is in the nature of the activities of trade unions that they are allowed to criticise (the representatives of) employers, also via the internal communication channels.30

The right to trade union organisation is a very fundamental right that no ILO member state can evade

A number of other claims related to the right to strike. The first related to Article 30a of the Employment Rules and Regulations. Although these Rules and Regulations give all employees the right to strike, they define striking as an interruption of the work during a certain period related to the employment conditions. The Rules and Regulations stipulate that the President of the branch can lay down further stipulations and conditions for the application of this Article, and among other things these must stipulate the maximum duration of the strike.

The question arose whether these conditions are compatible with the right to strike. With respect to the European Council this right to strike is documented in Article 6, paragraph 4, of the European Social Charter (ESH). With the exception of the situations documented in the Charter, only restrictions that are prescribed by law and are necessary in a democratic society to protect the rights and freedoms of others and to protect the public order, national safety, public health or common decency can be imposed on the rights in this Charter (Article G of the ESH). The stipulation that the President can determine the duration of the strike goes far beyond that which is permitted by Article G. Without referring to this stipulation the Court is also of the opinion that a strike of which the duration is not known in advance is wrongly rendered impossible.31 After all, the option to organise a strike of which the duration has not been determined in advance is an essential part of the right to strike, otherwise an important effect of this weapon would be lost.

The definition in the Employment Rules and Regulations also refers to an interruption of the work and according to the Court the trade unions justifiably objected to this as well. The Court is of the opinion that other forms of industrial action are also possible, such as go-slow actions.32 Article 6 of the ESH refers to collective actions, including strikes, so we feel that this standpoint is correct. The trade unions also asked that the stipulation in the Employment Rules and Regulations, to the effect that actions must relate to employment conditions, be declared unlawful, as the right to collective actions is not by definition limited to the employment

30 Court of Appeal The Hague, (EPO), 2015, legal ground 5.3
31 Court of Appeal The Hague, legal ground 5.7
32 Court of Appeal The Hague, legal ground 5.8

conditions of employees. For example, it could also relate to the admission of a trade union into negotiations, safer working conditions, increased workers’ participation or the dismissal of employees. This also comes under Article 6, paragraph 4, of the ESH, which addresses collective actions in the event of conflicts of interests. These are distinguished from political conflicts; however, conflicts of interests are not limited to employment conditions.33

Finally, the request to allow the trade unions into the negotiations and to oblige the EPO to consult about new collective negotiations was granted. In this context the Court did refer to an international stipulation, the aforementioned Article 11 of the ECHR, and particularly the Demir ruling of the ECHR, in which the ECHR ruled that ‘having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions’.34 This means that civil servants cannot be excluded from this right either.

Within the confines of this article we can only briefly look at the relevant standards. However, it does become clear that the quoted standards are fundamental principles that the member states associated with the EPO, and therefore the organisations they have established, must endorse. Consequently the EPO must apply them in its activities. Furthermore, in view of the fundamental character of these rights the EPO cannot invoke its immunity in order not to have to defend itself on the basis of the merits with respect to claims made against it.

4. The Minister’s instruction – immunity from enforcement

Ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory

However, ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory for the unions. By letter of 19 February 2015 the EPO notified the Minister of Foreign Affairs that it had been served with the ruling with enforcement order. Consequently, on 23 February 2015, the Minister of Security and Justice instructed the bailiff that, pursuant to Article 3A, paragraphs 2 and 5, of the Bailiffs Act, the service as the enforcement measures instructed in the service conflict with the obligations of the Dutch State pursuant to international law and that their implementation must be refused.35

This Article stipulates that the Minister can instruct a bailiff that an official act he has been ordered to perform, or has already performed, conflicts with the obligations of the State pursuant

33 See also Supreme Court 30 May 1986, Dutch Law Reports 1986/688, (NS ruling)
34 ECHR 12 November 2008, application number 34503/97, (Demi rand Baykara vs. Turkey), legal ground 154
35 Ministry of Security and Justice, Directorate General of Justice and Enforcement, Legal and Operational Affairs Department, Instruction ex Article 3a, paragraph 2, of the Bailiffs Act, 23 February 2015

to international law. As a result of this instruction the bailiff is not authorised to perform the official act. To the extent that the act has already been performed it is void. In this instance the obligations pursuant to international law relate to the EPO’s immunity from enforcement. Pursuant to Article 1 of the Protocol in respect of the Privileges and Immunities of the EPO the office spaces of the European Patent Organisation in all the associated member states enjoy inviolability, and pursuant to Article 3, paragraph 2, properties and assets of the Organisation cannot be subjected to requisition, seizure, expropriation or attachment.

Article 3a of the Bailiffs Act combined with the aforementioned Protocol enables the Minister to not enforce judgements and rulings of the Dutch Courts and Courts of Appeal, insofar as they are made against internationally protected persons or entities, such as international organisations (e.g. the EPO), States, or diplomats. With respect to international organisations the Court of Appeal in The Hague has confirmed this practice in a decision from 2007 with respect to the Organisation for the Prohibition of Chemical Weapons (OPCW).36 In this decision the Court implied that the literal meaning of a judgement in respect of the continued payment of wages conflicts with the principle of immunity from enforcement as documented in Article 4, paragraph 2, of the headquarters agreement between the Netherlands and the OPCW. The Court stated that, in principle, the immunity from enforcement is separate from any immunity from jurisdiction37, and that the immunity from enforcement guarantees ‘that the goods and possessions of the OPCW can be used unhampered by any enforcement measure’.38 A fortiori it may be said that imposing a penalty conflicts with the principle of the immunity from enforcement, even more so because a penalty can be imposed without further judicial review, as the Court of Appeal in the Hague decided in 2011 in another case against the EPO.39

In view of the different nature and purpose of the immunity from jurisdiction and enforcement – which is also confirmed in the right of State immunity40 – it is therefore possible that an international organisation does not enjoy immunity from jurisdiction but does enjoy immunity from enforcement. Certainly with respect to the right of State immunity it may happen that a State, in light of the many exemptions from the principle of immunity of jurisdiction41, may not enjoy immunity from jurisdiction but still enjoy immunity from enforcement, because the designation of the seized claims or goods is public.42 As there are fewer exemptions from immunity from jurisdiction of international organisations in place, relatively few judgements and

36 Court of Appeal The Hague 15 March 2007, ECLI:NL:GHSGR: 2007:BA2778
37 Ibid. legal ground 4
38 Ibid. legal ground 6
39 Court of Appeal The Hague 21 June 2011, ECLI:NL:GHSGR: 201:BRO188
40 Compare parts 2-3 to part 4 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004, UN doc. A/59/508. Although this Convention has not yet come into effect it is assumed that it largely reflects existing customary law. For a comprehensive commentary see: R. O’Keefe, C.J. Tams & A. Tzanakopoulos (ed.), The United Nations Convention on Jurisdictional Immunities of States and Their Property, A Commentary, Oxford University press, 2013
41 For the principles see Article 5 of the UN Convention (see footnote 40) and for the exemptions part 3.
42 For a recent District Court case see 9 September 2014, ECLI:NL:RBAMS: 2014: 6028, in which the Court, with respect to an enforcement procedure against Iraq, determines that ‘at this point it [can] not be determined with any degree of certainty which part of the attached claims has a public and which part has a non-public designation’ (legal ground 4.13).

rulings are made against international organisations that are eligible for enforcement.43 If enforcement is being considered it will, in principle, only be implemented if this has been provided for in the headquarters agreement between the Netherlands and the organisation in question; with regard to the EPO this is insofar as the international organisation has expressly waived its immunity, insofar as it concerns a civil suit in respect of accidents involving motor vehicles, or insofar the/an arbitral decision is being enforced.44

However, the question arises whether the list of exemptions in the headquarters agreement is exhaustive, or whether the immunity from enforcement can also be evaluated against Article 6 of the ECHR. With respect to the EPO the Court of Appeal in the Hague did, after all, evaluate the rather absolutely worded immunity from enforcement of the organisation, as stipulated in Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO (this is the same Article that also provides for the immunity from enforcement), against Article 6 of the ECHR. A lot can be said in favour of the dynamic interpretation of Article 3 of the Protocol – an interpretation in light of later evolutions in respect of the application of Article 6 of the ECHR at the level of the ECHR – also being applicable to the immunity from enforcement. In 2009 the Belgian Court of Cassation, for example, decided, in a labour law case against the ACP (an international organisation of African, Caribbean and Pacific States), that Article 6 of the ECHR also applies to enforcement procedures, and subsequently terminated the immunity of the organisation because it could not envision an alternative enforcement procedure that would protect the complainant’s right to remedy at law.45 After all, any other decision would erode the effective protection offered by Article 6 of the ECHR, and would make it possible for Court decisions that reject the immunity of an international organisation to remain dead letters. From both a national and international constitutional point of view such an outcome would be undesirable.

Article 3a, paragraph 7, of the Bailiffs Act stipulates that the provisional relief judge can revoke the consequences of the instruction. If, in the EPO case or any future case, he evaluates the Minister’s instruction in the light of international law, it is indicated that this Court evaluation should not only relate to the stipulations of the headquarters agreement, but also of Article 6 of the ECHR. In practice this should result in the judgement or ruling of the judge who rejects the immunity from enforcement of the international organisation having to be enforced as well, unless the organisation proposes an alternative form of enforcement that nonetheless provides equivalent legal protection. It is not immediately evident which form of enforcement the EPO

43 However, see interim judgement District Court the Hague 15 February 2010, ECLI:NL:RBSGR:2010:BL 4892, which rejects immunity from jurisdiction of the EPO in a tendering case with respect to a catering facility run by the EPO, based on the consideration that a catering facility for employees does not manifestly contribute to the fulfilment of the specific tasks the organisation is charged with, and that immunity from jurisdiction is therefore not functionally necessary. However, the Court of Appeal in the Hague considered the penalty the court had imposed on the EPO to be in conflict with the organisation’s immunity from enforcement (see footnote 39)
44 See Article 3, paragraph 1, (a-c) of the Protocol in respect of the Privileges and Immunities of the European Patent Organisation
45 Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal ground 26-27 (with note by C Ryngaert). See also J. Wouters, C. Ryngaert & P. Schmitt, ‘, and Western European Union v. Siedler; General Secretariat of the ACP Group v. Lutchmaya; General Secretariat of the ACP Group v. B.D., American Journal of International Law, vol. 105, no. 3 July 2011, p. 560-567

could suggest that is different from the form stipulated in the ruling of the Court of Appeal in The Hague (providing unrestricted access to the internal e-mail system of the EPO, the admission to collective negotiations, and the ban on applying the stipulations of the Employment Rules and Regulations that restrict the right to strike), and that would still do justice to the international labour law obligations the organisation is subject to.

5. Closing remarks
The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.

To repeat the closing words, for those to whom the above is too long to follow: “The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.”

The minister who defended Battistelli ended up in a major scandal and is permanently out as a consequence of that. Is Battistelli too going to be out this year? We shall see… Battistelli has already threatened to resign.

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