EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

07.14.17

“EPO Enlarged Board of Appeal Has Brought an Unprecedented Level of Certainty to the Law,” But Benoît Battistelli Crushes It

Posted in Europe, Law at 2:37 am by Dr. Roy Schestowitz

A shocked Battistelli
Context: The Boards of Appeal Openly Complain (in the EPO’s Web Site) About Battistelli, But Don’t Tell Battistelli About It…

Summary: The systematic erosion of patent quality at the EPO, including attacks on the appeal boards, means less patent justice in the rest of Europe, even in the Supreme Court of Britain

YESTERDAY, only a few days after shaming strikers, the EPO released a pile of lies (warning: epo.org link) that we already debunked in many articles several months ago. These were paid-for lies — a hallmark of the Battistelli regime. They try to pretend that everything is OK and that things are improving. The reality is, many people are leaving (management also) and patent quality declined so fast that even applications the USPTO would reject are being accepted by the EPO.

“They try to pretend that everything is OK and that things are improving. The reality is, many people are leaving (management also) and patent quality declined so fast that even applications the USPTO would reject are being accepted by the EPO.”Yesterday morning we used the term “Gold Standard” and someone later used it as well, essentially by asking, “where is the EPO’s Gold Standard now?” As Mr. Battistelli basically turned the EPO into rubbish (in many respects, ranging from working conditions to patent quality), calling the EPO “gold” anything would make no sense, except maybe the gold diggers that Team Battistelli became.

We’ve gone though the comments thread at IP Kat and highlighted the relevant bits below:

I too am worried about the Art 54(3) point. If a claim defining “sodium” now encompasses in its scope “potassium”, how should an applicant formulate his claim to be clear of Art 54(3) art disclosing potassium, but not sodium? Or now does the test of “disclosure” have now to encompass that which is directly and unambiguously disclosed and also Improver equivalents thereto? Or, put another way, where is the EPO’s Gold Standard now?

How do the Germans sort this out, with their DoE?

MaxDrei?

I would agree with LordBeefBurger and the GuestKat that this judgement is quite surprising.

When considering that the original disclosure only relates to disodium, stating that dipotassium also falls under the scope of the claims, would mean that actually in such a situation the applicant/proprietor could amend its specification after filing in order to envisage any other salts which were not specifically disclosed in the original application.

Even if one would not adopt the strict approach of the BA of the EPO, there is no doubt that such an amendment would plainly offend Art 123(2) EPC.

When one looks at the contribution to the art, the proprietor has only disclosed the association of permetrexed disodium with vitamin B12 or a pharmaceutical derivative thereof, and nothing else. There is well a general statement in § [0005] and [0022] of the patent referring to antifolates as a class associated with a methylmalonic acid lowering agent as vitamin B12. But that’s it.

All further statements in the patent refer exclusively to permetrexed disodium. See for example § [0010], [0011], [0016], [0034], [0039], [0045] or [0047] of the patent specification. The judgement refers to some of those §, but then takes a different route.

The limitation to permetrexed disodium is thus a clear choice of the proprietor. Why the proprietor should then be allowed to obtain protection for something he has not invented? I fully agree with LordBeefBurger “that “disodium” is not a term amenable to variation in practice”. It cannot be compared with “vertical” in Catnic.

The problem with Art 2 of the Protocol on Art 69 in EPC 2000 is that, although it mentions equivalents, the diplomatic conference was not able to reach an agreement on the definition of what is an equivalent. The EPO had made proposals to this effect, but no agreement could be reached. Taking pretext of this new article in the Protocol to go as far as here is quite daring and certainly not enhancing certainty in UK.

One gets the feeling that the mistake done in the Epilady case had to be corrected and a more lenient stance adopted. And for this it was convenient to rely on Art 2 of the Protocol.

The judgement might look interesting, but it should remain a one-off, as in my opinion it totally disregards the actual contribution to art by the proprietor.

I think that now we are Brexiting we can return to formulating our own unique case law and making our purposive construction doctrine broader, without needing to worry about the way Europe or the EPO look at claim language.

The EPO have increasingly viewed the ‘invention’ as the literal claim scope since getting rid of the Snackfood test (https://www.epo.org/law-practice/case-law-appeals/recent/t880073ep1.html)

At least the UK can now go back to reconsidering claims and inventions based on essential and non-essential features, and not let limitations relating to non-essential features get in the way of catching infringers using the same the invention.

Still not had time to read through the decision but let that not stop me indulging myself with a rant.

Through the second half of my long career as a patent agent/attorney, I have defended “purposive construction” against the notion of “infringement by equivalent”. The notion that the claim means the same, whether for validity or infringement, is precious to me. You know, the notion that “What comes after, and infringes, if coming before, anticipates”. You know, the notion that the Act provides only one sort of infringement and there is no justification to debate whether any given act of infringement is “direct” infringement or infringement “by equivalent”.

I remember at a Seminar about 20 years ago, when discussing not Improver but HILTI, speaker Nick Pumfrey cautioned me that such a notion might seem to me unassailable while being simultaneously given no houseroom at all, on The Continent.

What chance does the UK SC have, of getting to the right result, when both sides are represented by professional litigators for whom, the more legal uncertainty there is, the more money they can make? Who is there to point out to the judges the perils and unwisdom of overturning a century of established patent law? One would like to think that the wisdom of the vastly experienced patent judges in the High Court and Court of Appeal would carry more weight. But no, weight is instead given to the jurisprudence of non-specialist, indeed generalist, judges in the civil law jurisdictions of Continental Europe, for whom Binding Precedent is what you find on a Different Planet, but not on grounded Earth.

There are ways and means, in civil law jurisdictions, to live with legal uncertainty. See how the EPO Enlarged Board of Appeal has brought an unprecedented level of certainty to the law of novelty, obviousness, clarity, added matter, sufficiency, Convention priority. Poisoning an English law jurisdiction with a near fatal dose of it though and what do you get? Litigate like in America? Do you know over there how to construe a claim, or what is or is not definite, enabled, enjoys sufficient written description, entitled to priority, old or obvious?

Somebody asked me about Germany. I’m not qualified to advise. But here is a thought to play with, nevertheless. Take the claim, construe it (purposively, if you will) assess validity, assess if there is “direct” infringement. You are nearly done.

Just one more thing, equivalence. Is it “fair” to go outside the claim scope, to nail the infringer? Would it do un”reasonable” damage to “legal certainty” so to nail the infringer? If not, nail him.

But what if he has a Gillette Defence, that his act, whether or not it touches validity of the claim as you have construed it, is nevertheless no more than an obvious variant of the prior art. In Germany, it works. They call it their “Formstein” defence.

HILTI by the way was the case in which a Swiss patentee litigated its patent all over EPC-land. It lost in every jurisdiction bar one. But the reasons were different in each jurisdiction. Which was the one jurisdiction in which it prevailed. Go on, you can probably guess: their home jurisdiction CH.

There is a lot wrong with Europe. We should harmonise. I suppose that’s what the SC in this case has in mind. but was the sacrifice worth it?

BTW, does any reader remember the Chef America case about the bread-making oven. The claim recited heating the dough “to” 400°F when they meant baking it “at” 400°F, that is, an oven temperature of 400°F. How to construe that claim then, to be “fair” to its owner. With purposive construction, no problem. But how does one apply a “Doctrine of Equivalents” to such a claim element? I for one lament the sacrifice of purposive construction on the international altar of the appalling DoE.

It needs to be remembered that one purpose of Supreme Court decisions in all jurisdictions is for basic principles of case law to be invented or substantially changed, and then the lower courts and patent offices need to deal with the fallout on individual future cases. The take home message here is that it is time to reconsider how we are going to deal with equivalents.

As the previous comments have pointed out the present decision will cause issues in validity, and the next 10 years will be a sort of experiment as to how the patent system deals with that. Perhaps validity does need to get stricter in some way, and if that leads to narrower (literal) claim scope on granted patents that might benefit the system in the long run.

This means that the scope of protection for infringement goes beyond the meaning of the claim, but the test for novelty uses only the meaning of the claim without the extra scope provided for infringement. So a granted patent covers more than what it had to overcome in order to be granted.

It’s not the judgement’s fault – the problem is with paragraph 2 of the Protocol to Art 69 which sets up this situation. The judge has simply applied what it says rather than trying to come up with a way to ignore it (as in Kirin Amgen).

I would argue that “a fair protection for the patent proprietor with a reasonable degree of legal certainty for third parties” (from paragraph 1 of the Protocol) can only be achieved by NOT having a doctrine of equivalents, as having a different scope of protection for infringement than for interpretation of novelty is not fair. But that makes the “due account” to be taken of equivalents from paragraph 2 of the Protocol be “no account” of equivalents! That interpretation is clearly unreasonable so we must take some account of equivalents when considering infringement and must therefore allow patents to cover more than what the claims state.

It’s a sad place to be but that’s the law our country has signed up to with EPC 2000.

The Protocol only relates to the scope of protection conferred by the claims, and it does not apply to the issue of validity. The law therefore accepts that a patent claim may encompass what has gone before. It is valid, but infringed.

Had the Lilly case been an example of such a situation (i.e. the prior art disclosed the potassium salt) the judges may have been more aware of the implications of their poor judgement, and may have tread more wearily. In the present case, a claim literally covering the potassium salt (i.e. the claim used the word ‘potassium’ in big bold letters with flashing lights and dancing nubile naked dancers pointing at it) would have been valid on the grounds of novelty and inventive step and sufficiency, but such a claim would have been rejected for added matter.

When watching sections of the Supreme Court hearing, I got the impression that most of the judges had no grasp of the issues or understanding of patent law. A couple of judges, including Neuberger, fared better, but still they showed a dangerous ignorance in many of their questions.

Re Snackfood’s comment: Brexit doesn’t come into it. You sound like one of the Supreme Court judges.

I am, myself, looking forward to some more original insight from the Beefburger. Copy and Paste, M’Lud? Can you advise us to follow the US attorney strategy in future? “Draft narrow, claim broad”? Is ‘Observer’ correct that the judgement should remain a one-off? Or would my Learned Friend advise that a decision of the Supreme Court is no such thing? Pray tell!

I am going to go against the grain of the earlier comments and say that this decision seems to make sense. There has long been a disconnect between Article 69 and UK law. This decision seems to address it, without going through the intellectual hooplah of Kirin-Amgen. While Kirin-Amgen is superficially beautifully simple as Lord Neuberger says here, it does not answer the question of equivalents which fall outside any reasonable interpretation of the claim.

As for “file wrapper estoppel” (note, it isn’t even called that) the judgement is clear: it can only be useful when it is useful.

We expect a lot more to be said about this decision in the coming days. We wrote about it yesterday and not so many people have read the decision yet.

07.03.17

India Has No Software Patents “Per Se” Just Like Europe Has No Software Patents “As Such”

Posted in Asia, Law, Patents at 2:05 pm by Dr. Roy Schestowitz

And it’s similar in New Zealand after a lot of lobbying for such loopholes

India logoSummary: India’s software industry is at risk due to revisions which act as provisions to software patenting loopholes

WE frequently write about — and commend — India and its de facto ban on software patents in the country. It’s one of those things where India found the right balance that better serves the interests of the Indian people (the same goes for generics and a plethora of other policies).

“Sadly, India too is being muscled and manipulated into similar policies. Lobbyists constantly try to interject changes which — to their clients — may mean millions if not billions of dollars (in ‘protection’ money).”Over here in Europe we often hear from patent examiners who are pressured to grant software patents. It got a lot worse under Brimelow, not Battistelli, who took it to a whole new level at the EPO which he rapidly reduces to rubble. Since the “as such” loophole we have reached the point where large law firms openly state that it’s easier to get software patents at the EPO than at the USPTO. That’s just how bad things have become.

Sadly, India too is being muscled and manipulated into similar policies. Lobbyists constantly try to interject changes which — to their clients — may mean millions if not billions of dollars (in ‘protection’ money). Lobbyists like these work for foreign companies and their interests are clearly subversive to the indigenous population.

After our article from yesterday we found that Indian media still talks about the subject (e.g. [1, 2]). Some good folks from India got in touch with us (e.g. [1, 2]) and some told us about this response from technical people. “In the new proposed clause (k),” it says, “the words ”per se” have been inserted…”

How familiar…

“Know thy enemy, India. There are a bunch of so-called ‘publishers’, so-called ‘trade’ groups (lobbyists), patent lawyers and firms like IBM that attempt to subvert and/or hijack your laws so as to enable legalised looting of the Indian industry and Indian people.”It’s that classic loophole we saw in Europe and in New Zealand. The “revised software patent guidelines are a disaster,” Anubha Sinha is quoted to us as saying, and “will harm Indian industry…”

Obviously!

India makes software, not litigation.

Earlier today we were rather disgusted to see the London-based IAM, a front for patent trolls which had shamed and bullied India on this matter many times so far this year (e.g. [1-7] below) along with other front groups, saying that the changes “appear” to be good (to trolls). To quote: “The new standards appear to lower the bar for securing protection in the field. But for many IP owners, the real killer isn’t the still-strict standards on software patent eligibility, but rather the uncertainty created by what seem to be annual shifts towards and away from CRIs.”

Know thy enemy, India. There are a bunch of so-called ‘publishers’, so-called ‘trade’ groups (lobbyists), patent lawyers and firms like IBM that attempt to subvert and/or hijack your laws so as to enable legalised looting of the Indian industry and Indian people. This isn’t even beneficial to the West; it’s beneficial to very few people in the West, notably the patent microcosm that comprises patent law firms, trolls, and bullies. In the interests of software developers (globally-speaking) we need Indians to rebel against all that lobbying and restore sanity. Copyrights already cover the work of software developers and they know it’s sufficient.
_________

  1. China Adopts Software Patents and IAM ‘Magazine’ (Lobbyists) Continues to Shame India Into It
  2. IAM Just Can’t Stop Pushing for Software Patents in India
  3. IAM ‘Magazine’ as Megaphone for Chamber of Corporates (CoC), Which Tries Shaming India Into Software Patenting
  4. IAM Helps Enemies of India’s Interests Lobby for Software Patents in the Country
  5. IAM ‘Magazine’ in a Campaign to Destroy India’s IT Industry and Help Patent Trolls There
  6. IAM is a Think Tank for Patent Trolls, Software Patents, the EPO, Microsoft, and Whoever Else is Willing to Pay
  7. The Patent Microcosm’s Failed Push for Software Patents Resurgence in the US and Similar Attempts in India and China

06.25.17

The Supreme Court Can Reassert the Legitimacy of the Patent Trial and Appeal Board (PTAB) Later This Year or Next Year

Posted in America, Courtroom, Law, Patents at 12:39 pm by Dr. Roy Schestowitz

Making Patent Quality Great Again

PTAB

Summary: What lawyers-centric media characterises as a risk to PTAB may actually be an opportunity to silence critics of PTAB and help it carry on squashing bogus patents

THE Patent Trial and Appeal Board (PTAB) is one of the best aspects of AIA, which the current chief of the US patent system played a role in.

We wrote about the Court of Appeals for the Federal Circuit (CAFC) just earlier today (a couple of hours ago), noting the rather bad CAFC record on justice. When it comes to patents, it almost always gets it wrong, judging at least by cases that SCOTUS grabs to reassess. As a reminder to readers who don’t know this yet or simply forgot, CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice. CAFC and SCOTUS are often opposites when it comes to patents.

“…CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice.”What about PTAB and CAFC? Well, statistics from this year and last year suggest an 80% rate of concurrence, i.e. cases where both PTAB and CAFC agree on the in/validity of patents. As for some newer statistics, shared recently by Managing IP: “Patent Trial and Appeal Board filing in May was below average for the year, but included a record amount of PGR petitions.”

So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).

One patent maximalist clings onto the exceptions, noting a “small ray hope 4 #patent practitioners PTAB judge says “significant, important invention” that helps people read is NOT “abstract idea”” (but how often does this happen really? See image in tweet).

“So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).”PTAB, for the uninitiated, is consistently reviled by patent maximalists. They’re terrified of it. Some of them openly insult it (or the judges). IAM, for example, has just called PTAB judges “death squads” in an effort to demonise those who apply Alice (§101) and invalidate software patents. To quote: “With the PTAB’s forthcoming anniversary in mind, the data analytics team at Lex Machina crunched the numbers and this morning released a comprehensive five-year report which digs down into topics like the most common resolutions of board trials, the top petitioners, most targeted patent owners and the leading law firms.”

Lex Machina’s numbers are often the ones Managing IP — not just IAM — goes by. It’s a good service which is provided by a trolls-hostile academic (who is behind Lex Machina). Writing about pharmaceutical aspects of PTAB, IAM just ranted again, whereas Patent Progress was optimistic. “The differences,” it said, “continue after institution. When you look at the final written decisions, there are significant differences between IPRs as a whole and drug patent IPRs.”

In simple terms, the ability to invalidate patents at PTAB (through IPR/s) varies across sectors. When it comes to software patents, PTAB can seem merciless. An IPR alone can herald the death knell of a patent.

Written some days ago by the above patent maximalist was this tweet: “PTAB says @uspto §101 guidelines r NOT RELEVANT 4 determining patentability https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005945-06-20-2017-1 … use when Examiner cites only guidelines?”

“…the ability to invalidate patents at PTAB (through IPR/s) varies across sectors.”Well, §101 and Alice are not exactly the same thing. They are only related and a powerful lobby is attempting to change §101 rather than the SCOTUS decision (Alice), which is final and immutable.

There is a growing danger, however, that not only §101 will be changed but also PTAB itself. PTAB’s decision on some patents (but not software patents on the face of it) will go to SCOTUS for consideration quite soon. There have been many articles about this so far. This one from Managing IP has a very misleading headline, suggestive of existential threat to PTAB. Here is a more balanced article from Managing IP, another one from Patently-O, and an even better one from Joe Mullin, who wrote: “The US Supreme Court will soon weigh the constitutionality of “inter partes reviews,” a procedure that has been hailed by many in the tech sector as one of the most effective ways of weeding out bad patents.”

“There is a growing danger, however, that not only §101 will be changed but also PTAB itself.”Even the more mainstream media wrote about it some days ago. To quote: “From the start, some patent-holders have questioned the constitutionality of these new ways to invalidate patents. Now the Supreme Court has finally agreed to hear a case that addresses this question. In Oil States Energy Services LLC v. Greene’s Energy Group LLC, Greene’s Energy used one of these procedures to challenge the Oil States patent on a lockdown mechanism for equipment used in the oil industry. In 2015, the PTAB struck many of Oil States’ claims, and in 2016, the Federal Circuit Court of Appeals affirmed the decision. At the Supreme Court, Oil States is arguing that this is wrong. Oil States says that its patent is private property (like a land grant), which, once granted, can be revoked only through a decision of a court, where the patent-holder basically has a right to a jury. Greene’s Energy, on the other hand, would classify patents as essentially public rights, like rules of the road. As such, it claims that Congress was within its authority when it established these procedures and allowed the PTO to revisit the merits of the Oil States patent.”

Patently-O‘s Dennis Crouch (who worked hard to delegitimise PTAB or CAFC's handling of PTAB appeals) took a closer look and Managing IP published a third article to say: “The Supreme Court has granted cert to Oil States Energy Services v Green’s Energy Group to assess whether inter partes review violates the Constitution by not providing a jury trial. It is the third PTAB case the court will hear…”

Well, herein we have an important case which is going to look into an essential tool for crushing bogus software patents. Even though the patent in question is not a software patent, the authority is being questioned. To put it more gently, it is being reconsidered and PTAB can, as a result, be sort of enshrined into law if Justices are on its side. So it can be seen as an opportunity for legitimacy.

“…herein we have an important case which is going to look into an essential tool for crushing bogus software patents.”“Supreme Court agrees to hear constitutional challenge to the PTAB, against wishes of Trump administration,” said this headline from IAM.

Finally, another new article from Managing IP spoke of institution rates at PTAB, based on a study from a generic company.

There is a lot at stake in this case, for various sectors other than software in fact. Will SCOTUS defend PTAB? We believe that it will. As we shall show in our next post, SCOTUS has just reversed yet another CAFC decision (Sandoz v Amgen).

Speaking of PTAB, it is worth taking note of this case where “PTAB in Fujifilm Corp. v. Sony Corp. (IPR 2017-01267 & 2017-01268) granted permission to the patentee to file a motion to disqualify an expert for the petitioner. APJ Kokoski, after a teleconference, granted permission to file the motion.”

Whatever removes or discredits allegations of foul play or mistrial will serve PTAB better in the long run.

Systemic Injustice at the International Labour Organisation (ILO) Causes Serious Harm to Complainants’ Health, Including EPO Complainants

Posted in Europe, Law, Patents at 7:32 am by Dr. Roy Schestowitz

If the International Labour Organisation (ILO) does not get its act together, it will find itself facing a storm of criticism too

Guy Ryder
Guy Ryder, Director-General of ILO

Summary: The high human cost of ILO’s failure to fulfill its stated mission while pretending that it has things under control (that is clearly no longer the case, especially as far as EPO cases go)

IN only a few days from now ILO will release judgements regarding EPO staff, but as we recently demonstrated, ILO is increasingly complicit [1, 2] and is consistently failing to deliver justice, not even enforce justice. It’s a farce!

“Do Dutch authorities care to realise that ILO is not a recourse to justice?”ILO is, in my personal view (based on a lot of documents seen but not published), defunct. It is in many ways in an implicit allegiance with Team Battistelli. They cover each other’s backs. ILO does absolutely nothing to stop the regime at this stage. If anything, it occasionally compliments this regime. It almost attempts to legitimise the regime. SUEPO attempted to respond to this in a diplomatic fashion (maybe too amicable), but ILO deserves scrutiny if not public shaming.

Over the years I’ve seen (but never published) ILO mistreating complainants. Do Dutch authorities care to realise that ILO is not a recourse to justice? It’s a joke, it’s a placeholder if not mere varnish on a system of systemic injustice — an entrapment to those who work in international organisations. All ILO leads to is drainage of one’s personal savings (on legal fees that are typically paid in vain, characteristically with unemployment in the interim).

“It’s harmful to people’s morale and detrimental to their health.”ILO’s failures have more severe consequences than financial. It’s harmful to people’s morale and detrimental to their health.

A recent diagnostics, explained one reader to us, is “aggravation of my known chronic occupational disease.” By giving the complainant a very short amount of time to respond to a massive document, the complainant suffered a lot, as the following letter explains:

ILO causing health issues

“I did not find a lawyer for my case against the state until now,” we got told, and “unlikely that I will find one still.”

In the meantime, the complainant explained, the “illness worsened during my last 30-days term with the ILOAT” and there has been no reply from the ILOAT until now.

So much for looking after labour…

What is ILO good for anyway?

Apparently, the cryptic rules of the EPO are known to too few lawyers in order for them to help. Can Dutch politicians still pretend that ILO excuses the EPO’s abuses by providing some kind of effective oversight?

05.18.17

Patent Laws — and Especially Eligibility of Software Patents — Are Being Hijacked by Large Corporations and Their Front Groups

Posted in America, Asia, Europe, Law, Patents at 6:51 am by Dr. Roy Schestowitz

Almost literally buying the laws and/or buying politicians

Assocham

Summary: Intervention by large multinational corporations and their lawyers, front groups, etc. (like the classic lobbying model) gives room for concern in multiple continents where most software development is done

The patent microcosm, led by IBM again, wants to bring back software patents to the USPTO and as we noted here some days ago, they play a dirty political game, now aided by AIPLA, Microsoft, IBM and a panel stacked with patent parasites. It’s obvious what they want to accomplish and who for. It’s obvious at whose expense. As we predicted, it didn’t take Microsoft too long to push for software patents along with IBM. They want to blackmail smaller, vulnerable software businesses. They want to make money out of nothing.

At the same time in India Assocham (friend of Microsoft) lobbies for software patents in spite of the ban. This was posted some days ago:

Associated Chambers of Commerce & Industry of India (ASSOCHAM India) in a recent letter has urged Prime Minister Modi to amend the 2016 Guidelines on Computer Related Inventions (CRI Guidelines) to allow for software patents to be granted in India. The letter raises concerns that the present CRI Guidelines which do not permit patentability of software adversely affect innovation by start-ups and also hit investments in the ICT sector. It further argues that software patents are granted in countries abroad, and by not permitting software patents, the CRI Guidelines are not aligned to the Digital India initiative. At present, the Indian Patents Act and the CRI Guidelines prohibit patents on software. However, software patents have in fact been granted recently by Indian Patent Offices to companies like Google, Apple and Facebook. This leads one to question whether patents on software are indeed denied in India (as argued by ASSOCHAM) or are patent offices in India inclined to grant software patents in spirit.

The point of the matter is, patent bullies are very eager to overturn the trend and spread software patents all around the world. The same is happening at the EPO. Earlier this week we learned that: “A trade agreement that says anything about the patent-eligibility of “computer-implemented inventions” (= software) would go beyond EU law.”

“These corporations are totally out of control. They inflict great pain and do damage to software developers.”So they try to overcome the law itself. These corporations are totally out of control. They inflict great pain and do damage to software developers.

Exposure to the sad reality of patent trolls and hearing the stories of their tormented casualties can really motivate one to not only pour all energy into reactionary activism but even lose sleep over it. I have, over the years, seen lives almost literally ruined or destroyed by EPO management and sometimes the same is true for victims of patent trolls — people to whom mere concepts have become a paralyzing experience which drains all energy and also any hope. There is a lot of under-appreciated suffering underlying or surrounding this system of protectionism — suffering that no words can easily express. People lose their minds over it and occasionally suffer mental breakdowns. The burden of justification herein is on those who unconsciously ignore the consequences of their actions. Patent maximalism has a profound human toll.

05.14.17

IBM and Its Revolving Doors Lobby Are Plotting to Undermine Supreme Court Rulings to Restore Patentability of Software

Posted in IBM, Law, Patents at 4:22 pm by Dr. Roy Schestowitz

Truly malicious company that seeks to thwart democracy

IBM and the Holocaust
Yes, it’s a real book based on a true story

Summary: IBM has become so evil that it is now trying to steal democracy, label programmers “thieves”, and basically attack the rule of law by extra-judicially overturning a Supreme Court decision

THE previous post reinforced the trend of software patents dying in the US, irrespective of what the USPTO does (because the courts have the final word and the highest court said “no” to software patents in Alice).

“It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law.”A few days ago we became aware of a new push to pressure politicians into undoing Alice. It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law. As usual, IBM, Microsoft etc. (acting via their front groups) are trying to rob us all and undermine patent progress. There were some tweets about it, which triggered a flurry of communications with us about 4 days ago. It quickly started to become clear what was happening around that time.

“Apparently,” wrote a patent reformer (whom we respect), “it is already being heavily lobbied even though there is no bill yet. A successful bill would have to focus on bio, not software…”

This is “not a good sign,” Benjamin Henrion responded. “The big guys have already written the bill.”

Yes, this is how they operate. They did this in other countries too, e.g. in New Zealand. We wrote about that at the time.

“They did this in other countries too, e.g. in New Zealand.”So basically, a bunch of patent parasites and patent trolls want to maximise their damage to the industry and in order to achieve this they are trying hard to change the law. Looking for some earlier context we found this: “Congressional staffers at Stanford PAE conference: patentable subject matter reform will be the first patent bill introduced this Congress…”

Amazing? Yes. Surprising? No. We saw that coming.

Henrion responded, “the great return of a software patent bill written by the patent industry?”

Not if we raise awareness of this and fight back.

“Amazing? Yes. Surprising? No. We saw that coming.”Then came the “Swamp” friends of Watchtroll and his ilk, with tweets like this: “@USinventors proposal on subject matter eligibility is also shaping the Congressional discussion. Depends on TC Heartland & non judiciary” (TC Heartland is due soon).

Someone asked: “Any discussion about proposed legislation (i.e., what might be the definition of patent eligible matter)?”

“If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).”Well, it didn’t take long for Watchtroll to advertise this, with IBM taking the lead, as usual. In fact, for IBM to associate with such people says a lot about IBM. If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).

Don’t forget the role played by David Kappos, the former Director of the USPTO. David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).

“David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).”It’s not too expensive buying policy in the US. Corporations such as IBM, together with an IPO “task force” (that’s what they call it) do this right now. David Kappos — now bankrolled by IBM, Microsoft etc. — tries to make software patents legally enforceable again, using old euphemisms such as “clarity” (to make it seem like they don’t steal democracy and stomp on the Justices).

It didn’t take long for this to be promoted by IBM

As Henrion told the IBM manager, “it would show that Congress members are lackeys of large corporations, but that’s not new.”

“IBM is very, very evil now.”IBM is now aided by a lobbyist (revolving doors in USPTO, also paid by IBM before and after his time at the USPTO). It is purchasing (or at least trying to purchase) new laws so as to override the highest court.

What does that tell us about IBM? Has it ever gotten more benign than it was back in the days of extreme patent aggression, notorious help to the Nazi regime, and so much more? IBM is very, very evil now. IBM links to this puff piece from Patently-O, which said this: “According to at least one hearsay report, members of Congress are working toward a new patent reform bill on subject matter eligibility – likely partially following the models prepared by the IPO and pushed by Dave Kappos (among others). There is some chance that it will be introduced this month.”

Yes, “Dave Kappos”… he refers to him as though it’s a close friend. Dave…

“To IBM, it stops nowhere. They’re bullies. They have become huge parasites again.”IBM continues advocating software patents, saying just a short while ago: “If one can #patent a process implemented in circuits, the same should be true for a process implemented in #software”

No ambiguity here. IBM is an enemy of Free/Open Source software.

Henrion responded with, “then if it is implemented in software, mental acts should also be patentable. Where does it stop?”

To IBM, it stops nowhere. They're bullies. They have become huge parasites again.

“They once again hijack the word “fix” to mean break. They want to undo the fix.”Watchtroll, who has been working alongside IBM for a while, says: “Read (and sign) the U.S. Inventor petition to Congress to fix the U.S. patent system. http://www.usinventor.org/petition/”

So they already have a site up and Henrion says that “patent madness it means.”

They once again hijack the word “fix” to mean break. They want to undo the fix. We have noted this deceptive pattern for over a year. How misleading a hijack of words.

“Software patent bill [are] being written by IBM coming to Congress,” Henrion keeps warning this weekend. “Every programmer engaging in some form of logic for a living,” he writes, “needs to think about buying patent insurance…”

“It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again.”Henrion has already been the victim. He is a programmer like myself.

We are deeply and utterly disgusted to see a sort of alliance between Watchtroll, IBM, and Patently-O too, promoting the attack on software developers. The other day Patently-O once again promoted old myths about patents, which are neither a right nor property. Using their misleading words, they keep calling those whom they rob “thieves”, alleging that people who write their own code are “stealing” (as opposed to trolls who shake them down for ‘protection’ money).

It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again. Keep an eye on “MicrosoftIP” in Twitter (in the coming days, maybe even as early as tomorrow).

05.08.17

The European Convention on Human Rights (ECHR) Against the European Patent Office (EPO), Lower House to Debate the Issue Today

Posted in Europe, Law, Patents at 8:37 pm by Dr. Roy Schestowitz

The House of Representatives in the Netherlands, along with top European courts, to imminently tackle the chronic abuse?

House of Representatives (Netherlands)

Summary: Things are getting hot and heavy at Eponia, as the truly urgent matters escalate upwards and threaten to shake up the entire European Patent Organisation, whose head has just announced that he is stepping down [1, 2]

SOMETHING rather big is happening at the EPO. It’s truly a turning point. A few days ago we saw Battistelli’s ‘boss’ walking away and hours ago someone told us that big legal action is coming, apparently involving the Dutch government (not long after all Members of the European Parliament got notified). Maybe not a bad time for people who protected Battistelli to walk away (to avoid deposition and so on)? For background, here is what happened some months ago:

  1. Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says
  2. EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses
  3. Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s
  4. Leaked: Team Battistelli, Exploiting a Controversial Decision From the Netherlands, is Trying to Squash SUEPO
  5. The EPO’s Freedom to Disregard the Law and Abuse Employees is “Being Taken up by the Council of Europe”
  6. The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English
  7. “Team Battistelli Continues With Intimidation Tactics”
  8. The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine
  9. Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity

The latest development is very major and was covered by Dutch media earlier on. It certainly seems like timing is critical here, as based on a purely automated translation (unedited):

The Lower House talks about the situation at the patent office on Tuesday.

Petra Kramer,a Dutch speaker who is supportive of the cause, kindly produced the following translation of the entire article:

RIJSWIJK (ANP) Are employees of the European Patent Office allowed to resist the repression of their right by taking the case to the Dutch court? (Please note that previous verdicts said their rights were not imposed upon because they could always go to court in Geneva. PK.) The High Council recently ruled that they don’t because EPO is granted immunity. But two unions do not agree and are now taking the case to the European Court of Human Rights in Strasbourg.

The complaint is directed against the Dutch state because it has actively strengthened to maintain the immunity of the EPO, Liesbeth Zegveld, the lawyer of the unions, says. According to her, the government has a diplomatic interest because they want international organizations to settle in the Netherlands.

EPO staff suffers under the leadership of topman Benoît Battistelli, who is accused of terrorizing the office. The government is concerned about it and urged previously to improve the conditions at the organization in Rijswijk, where about 2700 people work.

Lower House

International organizations are granted immunity, but there must be an internal court to solve disputes according to Zegsveld, and that is not the case. (This again contradicts the High Council that basically said go to the court in Geneva. PK.) As a result, the trade unions and employees can not use their right to strike, their right to negotiate or their freedom of expression.

According to the Supreme Court, the Netherlands, according to Zegveld, now violates the right of access to justice, as enshrined in the European Convention on Human Rights (ECHR).

The Lower House will debate the situation at the patent office on Tuesday.

Wow. We didn’t know they would really take it this far. Zegveld did mention this as a possibility, but it wasn’t clear whether she and her clients would actually pursue this (SUEPO receives outside help here). But they do! This could soon become a very serious issue and a topic in the mainstream media, not just in the Netherlands. It’s truly a shame that sites like IP Kat cover none of these developments.

03.17.17

The EPO’s Abuses and Claims of Immunity From Prosecution Increasingly Fracture the Dutch Establishment

Posted in Europe, Law, Patents at 8:16 am by Dr. Roy Schestowitz

An embarrassment to Holland as host country of serious abuses of labour law, suicides, and blatant autocracy outside the Rule of Law

Immunity from prosecution (international law)
Reference: Wikipedia

Summary: Pressure is growing for Dutch politicians to end the immunity of the European Patent Office (EPO), which has become a liability rather than a privilege of the Netherlands (urgent need to step in and take action)

“Report of the written consultation from the House of Representatives on the situation in the European Patent Office,” SUEPO explained some days ago, had been produced in the Netherlands and sent by Battistelli's Nemesis. SUEPO has just published a number of translations, including the following in English. We decided to highlight (in yellow) key bits of it because it is very long:

Ministry of Economic Affairs

> Return address PO box 20401 2500 EK The Hague

The Speaker of the Second
Chamber of the States General
Binnenhof 4
2513 AA THE HAGUE

Date 2 March 2017
Re. Response to questions in Written Consultation on the Situation at the European Patent Office

Dear Chair,

In the appendix you will find, also on behalf of the Minister of Foreign Affairs, the answers to the questions asked in the Written Consultation on the Situation at the European Patent Office.

(signed)
Martijn van Dam
State Secretary for Economic Affairs


Report on a written consultation

Answer / response of the State Secretary to

the questions and comments of the VVD

(People’s Party for Freedom and Democracy)

group

The members of the VVD request clarification on the situation at the European Patent Office in Rijswijk. Are there significant differences between this and the other branches?

The European Patent Office (EPO) has five branches (in order of size: Munich, Rijswijk, Berlin, Vienna, Brussels). The same working conditions apply at all branches. However, the situation at Rijswijk has attracted more attention as three disciplinary cases have been completed there.

The members of the VVD request clarification on the strategy debate that took place in December. What is the state of affairs in this area? Can the State Secretary clarify whether decisions have now been made about this?

With regard to the strategic debate the VVD group is asking for information about, I can report that in its meeting of 14 and 15 December 2016, among other things, the Administrative Council looked back at the social audit and the social conference that took place on 11 October 2016. The decision was taken to now prioritise working on the proposals relating to internal investigation procedures and disciplinary measures. A number of countries (including the Netherlands) are now actively cooperating to improve these proposals. Work is also being carried out on an improvement to the internal appeal procedures, as also recommended in the social study.

The members of the VVD ask how the State Secretary will continue to hold the EPO to account regarding its responsibility and how he aims to achieve these good intentions, taking into account the reputation of the Dutch business climate as well as the ruling of the Supreme Court on 20 January 2017 that the EPO is immune as an international organisation in the Netherlands. What can the State Secretary do, in connection with the Dutch role as a good host country and what could be better handled through the Administrative Council of the European Patent Organisation?

The government attaches great importance to maintaining a good business climate for international organisations in the Netherlands and actively contributes to this with a balanced package of advantages and facilities that, if necessary, are also defended legally. The Dutch joinder in the Supreme Court proceedings,


in which the immunity of the European Patent Organisation was subject to discussion, must be seen in that light. The government is also in conversation with the international


organisations established in the Netherlands on a structural basis. The latter also offers the opportunity to raise Dutch wishes and concerns in relation to the social climate.

The Netherlands is also an active member of the European Patent Organisation and in that context takes the necessary measures to improve the social situation, both formally and informally. Given the position of the EPO as an international organisation, this is also the focus of the Dutch involvement.

The questions and comments of the PvdA (Labour Party) group

The members of the PvdA request a report on the conversation that the Minister of Foreign Affairs held with the head of the Rijswijk branch of the EPO.

This conversation took place on 30 January 2017. You were informed about this separately by the Minister of Foreign Affairs.

The members of the PvdA request insight into the consequences of the ruling of the Supreme Court on 20 January 2017.

The ruling of the Supreme Court confirms the fact that the European Patent Organisation and its bodies, such as the EPO, enjoy immunity under the Dutch legal system. The ruling of the Supreme Court is in line with the State’s position regarding the immunity to which the organisation is entitled. The ruling will therefore have no concrete consequences. The Netherlands will continue to work for improvement of social relations within the organisation in the Administrative Council.

These members ask how the ruling of the Supreme Court that there are sufficient alternative mechanisms available to the staff of the EPO for the settlement of internal disputes compares to the recent judgment of the International Labour Organisation (ILO), which ruled that, in the current situation, the EPO staff have no functional first legal authority available for a fair legal process.

The legal remedies available to staff at the EPO also include the ILO tribunal (ILOAT) as an appeal body, which ultimately assessed the complaint. The Supreme Court ruled that “concerning the staff and staff representatives of the EPO, the EPO has provided a judicial process that meets the relevant requirements with the judicial process at ILOAT” (r.o. 5.7). The fact that the ILO tribune made a judgment confirms the fact that a reasonable alternative legal remedy has been provided.

On 30 November 2016, the ILO tribunal ruled in a case involving a staff member who challenged an internal work instruction with documents


concerning the subject of patent applications. In the internal appeal case that resulted from the objection, the objection was declared inadmissible (manifestly irreceivable). The decision on the objection was taken as a basis for the recommendation of the Appeals Committee, with regard to staff representation, which was composed of two chosen staff representatives that had taken up voluntary positions in the committee that ruled on the objection. The ILO tribunal ruled that this was not consistent with the staff regulations, which at that time stipulated that staff representatives should be appointed by the staff committee. As a result of this ruling, the staff regulations have since been adjusted.

The members of the PvdA ask whether the Netherlands will be proposing additional measures to improve the social situation in the Administrative Council. How will it be ensured that the recommendations in the social study by PricewaterhouseCoopers (PWC) are implemented here? Is it correct that the measures previously proposed in the Administrative Council have been postponed and the situation has therefore not yet improved?

As is commonly known, the Netherlands is striving to improve the social situation within the EPO and regularly discusses this within the Administrative Council. In its meeting of 14 and 15 December 2016, the Administrative Council looked back on the social audit and the social conference that took place on 11 October last year. In order to implement the recommendations from the audit properly, ongoing proposals for change to the internal investigation and appeal procedures were temporarily halted. The decision was taken to now prioritise working on the proposals relating to internal investigation procedures and disciplinary measures. A number of countries, including the Netherlands, are now actively cooperating to improve these proposals. Work is also being carried out with priority on an improvement of the internal appeal procedures, as also recommended in the social study.

The members of the PvdA group ask what the response of the State Secretary is to the reports on a proposed weakening of the staff representation. 1

The accuracy of these reports cannot be confirmed.

These members ask in what way the State Secretary is implementing the Gesthuizen/Kerstens motion (Parliamentary Paper 21501-30, no 368), which called for legislation to close the legal loophole on industrial disputes.

__________
1‘King Battistelli tries again to break Euro Patent Office union’, The Register, 31 January
2017
(https://www.theregister.co.uk/2017/01/31/battistelli_tries_again_to_break_epo_union/).


Along with other countries, the Netherlands is actively engaged in drawing up new legislation in the field of internal investigation procedures, disciplinary measures and appeal procedures and is implementing the Gesthuizen/Kerstens motion in this way.

The members of the PvdA Group note that, in the European Convention of Human Rights and Fundamental Freedoms (ECHR), it is stated that the Netherlands has a duty to protect the fundamental rights of European and other citizens who work on Dutch soil. How does the situation at the EPO relate to this duty? How will the Netherlands meet this obligation?

As the Supreme Court confirmed, the EPO is entitled to immunity and the granting of this immunity is not contrary to obligations under the ECHR, since the organisation provides a reasonable alternative legal remedy. The granting of immunity is part of international law.
Immunity does not mean that the international organisation has no obligations under international law or the national law of the host state. It comes down to a balance between the international obligations of the Netherlands, which require respect for the immunity of execution enjoyed by international organisations and the obligations of the same organisations under international and national law.

This does not affect the fact that the Netherlands continues to draw attention to the social climate at the organisation within the Administrative Council.

The questions and comments of the SP (Socialist Party) group

The members of the SP group have read in the response of the State Secretary to the social study that the working conditions can be described as more than competitive. These members would like to know on what basis this conclusion can be reached and what factors were taken into account here. They would also like to know why these competitive working conditions have not prevented the existing deteriorated situation.

The researchers conducted a comparative study into the working conditions at the EPO and seven other large international organisations. This revealed that the EPO scores above average on both salary and other benefits. The EPO also scores well in comparison with the private sector, with the exemption from national taxes playing a significant role here. The study covered a large number of other factors too, such as salary, bonus, pension scheme, employment protection, parental leave, right to strike, sick leave and flexible working hours. The researchers saw room for improvement in particular in a more performance-focused pay system, where there is also space for non-financial rewards and a


different system for internal appeal procedures. Proposals for change have been or are being implemented in this area.
It is important to also note the observation that the generous working conditions cannot compensate for the lack of shared values between the management and staff and a culture of opposition.

The members of the SP group have read that the practical application of the regulations within the EPO, the way in which communication on this is carried out and how the application of these regulations takes place on the work floor require attention. These members would like to know whether a good legal structure can still be considered good if the practical application leaves something to be desired. They would also like to know whether there is or has been an arbitrary nature to the application of the regulations and, if so, what effect the State Secretary believes this has or has had on the culture within the EPO.

Although in general the legal structure can be considered good, there is room for improvement. The proposed adjustment to the internal investigation procedure and disciplinary measures and the appeal system are good examples of this. This does not mean that the merit of each legal structure depends entirely on its application in practice. As is commonly known, the Netherlands also sees room for improvement in this area. The question of whether there is a level of arbitrariness is impossible to answer without knowledge of individual cases. The government does believe, however, that for the creation a meaningful social dialogue, it is not conducive for a significant number of union leaders to be involved in disciplinary investigations and procedures.

The members of the SP group have read that, according to PWC, the internal appeal procedure at the EPO needs to be adjusted, including the introduction of independent judges. The members would like to know what steps the EPO has now taken in this direction, what regulations would be used in this internal appeal procedure and whether the staff would be involved in the development of these regulations, for example through the unions.

In the meeting of the Administrative Council that took place in December 2016, it was agreed that work would be carried out with priority on regulations through which adjustments – also strongly desired by the Netherlands – could be achieved. These adjustments are currently being prepared, so that decision-making can begin on that this year. The staff will be consulted on legislative proposals through a body known as the General Consultative Committee.

The members of the SP group have read that the State Secretary talks of a “shared task for management, staff and staff representatives to get the social dialogue at the EPO off the ground. At the same time, the State Secretary writes that the largest union was not invited to the social conference. These members are curious about how a good social dialogue can get off the ground with such relations,


why staff representatives are also responsible if they are not involved in the process and what responsibility he attributes to himself in this process, as supervisor of the management of the EPO. They ask the State Secretary whether he has carried out consultation with the staff representatives and/or the union leaders over the past year, whether he has done this regularly and what his impressions on this are. Does the State Secretary, like the members of the SP group, recognise that the distress among staff is very high?

The management of the EPO and the trade unions have already been engaged in a discussion about the recognition of trade unions and the conditions under which this must take place for some time. An agreement was reached on this with a (smaller) union but not with the largest union. It was against this background that the latter union was not invited. The government regrets the fact that parties cannot reach an agreement on this and that a meaningful social dialogue currently seems a long way off. Seen in this light, the Netherlands could have proposed a different invitation policy.
The Dutch representatives regularly discuss the situation at the EPO, with all those involved, including the management, other member states, stakeholders, staff members and their representatives and union leaders. This gives the impression of an organisation where the conflict model rules. Meaningful and good modernisation seems to be coupled with a restrictive management style. With all the respect that the government has for the former, it continues to appeal strongly to the management of the EPO on the latter. The initiative for the adoption of a resolution by the Administrative Council and the organisation of a social audit are examples of this. The Netherlands also takes an active approach in the pending legislative proposals.

The members of the SP group have read that the State Secretary regrets the fact that ongoing proceedings against union leaders have not been halted until the internal social norms procedure and disciplinary procedures have been reformed. These members would like to know what consequences this will have in the Administrative Council of the EPO, how the president of the EPO will be addressed on this and what disciplinary possibilities the Administrative Council has against the current president. They inform the State Secretary that the current president of the EPO and the EPO itself have received a very poor evaluation by customers of the EPO in various studies. In one study, more than half of the respondents stated that the president should step down. 2

The Netherlands has repeatedly and insistently called for improvement to the social situation. An important touchstone in this is the resolution adopted by the Administrative Council, in which, among other things, the wish was expressed to put a stop to

____
2 ‘King Battistelli tries again to break Euro Patent Office union’, The Register, 31 January 2017
( https://www.theregister.co.uk/2017/01/31/battistelli_tries_again_to_break_epo_union/).


the proceedings initiated against union representatives. The Netherlands will work towards this, within the limits of what is realistic and effective, seeking support from other countries wherever possible.
The President of the EPO is appointed by the Administrative Council. He is accountable to the Administrative Council and he is subject to disciplinary control exercised by the Administrative Council.

The members of the SP group have learnt that the Supreme Court has overturned the judgment of the Court of Justice in The Hague, reconfirming the immunity of the EPO. These members are curious about the vision of the State Secretary on the resulting situation, in which, on Dutch territory, Dutch residents cannot be protected against (gross) violations of labour law applicable in the Netherlands and in which they have little or no opportunity to appeal against disciplinary decisions.

As the Supreme Court confirmed, the EPO is entitled to immunity and the granting of this immunity is not contrary to obligations under the ECHR, since the organisation provides a reasonable alternative legal remedy. The granting of immunity is part of international law.
Immunity does not mean that the international organisation has no obligations under international law or the national law of the host state. It comes down to a balance between the international obligations of the Netherlands, which require respect for the immunity of execution enjoyed by international organisations and the obligations of the same organisations under international and national law.

The Netherlands nevertheless continues to call attention to the social climate within the organisation in the Administrative Council.

They are also curious about which opportunities the Netherlands has to intervene and carry out research into the suicides that have occurred in recent years. 3

As the Supreme Court has confirmed, the Netherlands cannot take enforcement action against the EPO due to the immunity granted to the European Patent Organisation. The Netherlands will continue discussions with the organisation on the improvement of the social conditions.

The members of the SP group are also curious about how the State Secretary sees the risk of hosting international organisations on the basis of the ruling of the Supreme Court and what the Dutch policy is in terms of risk assessment concerning the hosting of international organisations to which Dutch labour law does not apply. These members also ask the

____
3 ‘Alarm om schrikbewind bij Europees patentbureau na vijfde zelfmoord’, De Volkskrant, 10 September 2015
(http://www.volkskrant.nl/binnenland/alarm-om-schrikbewind-bij-europees-patentbureau-na-vijfde-
zelfmoord~a4138939/).


State Secretary to indicate which legislation in the Netherlands the EPO is immune to (in addition to labour law) and what consequences this could have for safety and maintaining order.

The ruling of the Supreme Court was in line with the positions expressed by the state concerning the immunity of the EPO. When new international organisations are established in the Netherlands, the Netherlands underlines that they must provide adequate internal legal processes so that complaints, including complaints in the area of labour law, can be addressed. The immunity of the EPO is focused primarily on the enforcement powers of the host country, in this case the Netherlands. Immunity does not mean that the international organisation has no obligations under international law or the national law of the host state. It comes down to a balance between the international obligations of the Netherlands, which require respect for the immunity of execution enjoyed by international organisations and the obligations of the same organisations under international and national law. For the EPO, for example, Dutch authorities can act in the case of fire and other emergencies that require immediate action. In all other cases, action by the Dutch authorities is only allowed with permission from the organisation.

The members of the SP group have read in the response of the State Secretary that he is implementing the Gesthuizen/Kerstens motion (Parliamentary Paper 21501-30, no 368) by critically monitoring the situation at the EPO and by working for improvement of the social situation. This motion also asked the State Secretary to discuss with other member states how legislation could be drawn up to close the legal loophole for labour disputes. The members would like to know how the State Secretary is implementing or has implemented this. These members would also like to hear what possibilities the State Secretary has to further intervene in the problems at the EPO and how he is going to use these.

As is clear from the answers to the previous questions, the Netherlands is working with other member states regarding both monitoring of the functioning of the EPO and improvement of the legal framework.

There is a lot to be said about the above, including the fact that EPO apologists keep referring to an EPO-funded ‘study’ which we repeatedly wrote about in the following past articles:

All in all, the debate is ongoing, ministers Gesthuizen and Kerstens are on the case, and Dutch Minister of Foreign Affairs Bert Koenders has issued a strongly-worded letter on the subject as he prepared to take further action (we broke the news). Regarding the immunity of the EPO in the Netherlands, we published the following articles on the subject earlier this year:

Dutch officials need to recognise that the EPO has become a liability to the nation and failure to intervene right now can increasingly be construed as complicity (by inaction/passivity/apathy/neglect).

« Previous Page« Previous entries « Previous Page · Next Page » Next entries »Next Page »

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts