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02.24.15

The EFF Back to Tackling Software Patents, Not Just Patent Trolls

Posted in America, Patents at 5:59 am by Dr. Roy Schestowitz

Summary: Electronic Frontier Foundation lawyers start targeting large companies that exploit patents for intimidation and extortion, not just patent trolling

WE are gratified to learn that, based on numerous reports such as this or that, “EFF Questions Whether Software Patents Should Exist” and the “Electronic Frontier Foundation group claims that the US patent system undermines innovation by allowing big companies to intimidate and punish small start-up firms.”

They are not talking about patent trolls (as some do) but instead they are now talking about the big bullies that want to divert the debate so as to focus on the wrong culprit and merely pass a reform that helps megacorporations. Microsoft is basically a target of EFF activism, Apple too to a degree. We commend the Electronic Frontier Foundation for this change in strategy.

Here is a recent action from EFF’s Nazer: “Nazer and his fellow EFF lawyer Vera Ranieri filed court papers seeking to invalidate a patent on photo competitions. US Patent No. 8,209,618, owned by a little-known video website called Garfum.com, was used to sue four small photo websites last September that dared to ask people about their favorite photos.”

Another new piece by Sid Venkatesan from AOL uses a copyright sign as the leading image for an article about patents, showing a common misunderstanding of the vast disparity between copyrights and patents (they have almost nothing at all to do with each other). Putting aside this nitpicking, the article is titled “Software Patents Are Increasingly Coming Under Fire In Court” and it says: “Last summer, the United States Supreme Court issued a decision in Alice Corporation v. CLS Bank International in which it directed lower courts to scrutinize computer-implemented abstract methods very closely. Alice’s impact was unclear at the time the decision was issued, but lower courts have since relied on the Supreme Court’s opinion to invalidate a number of software patents in the eight months since the decision.

“This legal trend has altered the cost benefit analysis for companies that are seeking software patent protection, enforcing their existing patents, or defending themselves in litigation.”

Further down Venkatesan says: “Federal trial courts and the Federal Circuit (the court that handles patent appeals) decisions since Alice have invalidated many patents using the two-part Section 101 test applied in Alice. For example, the Federal Circuit invalidated a patent dealing with the storage of device-specific profiles, a patent on a system that provided online purchase guarantees, and a patent involving an online system of delivering content with embedded ads in quick succession.”

This is the kind of stuff that patent lawyers have been trying to hide from the public, choosing to pretend that nothing at all has changed.

In a publication called “Entrepreneur” we saw the other day more of that propaganda which equates patents to innovation — a subject we last covered some weeks ago. “They say imitation is the highest form of flattery,” says the propaganda. “That may be true in fashion, but if you are an inventor, imitation can be bad for business.”

Well, how about collaboration? “As of Dec. 1,” continues the article, “Big Blue had been issued almost 7,000 patents in 2014. After IBM, the company with the second highest number of patents issued was Korean-headquartered technology giant Samsung, with more than 5,000 patents filed. Canon, Sony and Microsoft round out the top five, according to the infographic generated with United States Patent Office data by SmartUp, a legal startup that is building an online platform connecting attorneys and clients.”

“It is abundantly clear who software patents are good for.”So what? This basically shows which companies spend the most time doing paperwork. It doesn’t necessarily mean they are innovative.

Several years ago (if not decades ago) Adobe complained about software patents but now that it is a bigger company it patents software any single day, as Steve Brachmann serves to remind us. Microsoft did the same thing when it was a small company. As Bill Gates famously said: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

It is abundantly clear who software patents are good for. Just watch who is hoarding software patents and creating cartels with them. Here is some nice propaganda which glorifies patents and even makes these cartels and armament with patents seem like a wonderful thing:

Whether they’re coming up with a bright idea themselves, or purchasing smaller companies that have had those bright ideas, all the big guns are active in these two key areas. Apple, Google, Microsoft, Samsung – they’re all at it.

What do these companies have in common? Scale. But Google and Samsung (the two biggest Android players), unlike Apple and Microsoft, are not patent aggressors. They never sue rivals using software patents, they only react to lawsuits, the highest profile of which are from Apple, Microsoft, and their smaller proxies. The EFF will hopefully work to combat this.

Benoît Battistelli Thinks ‘President’ is Above the Law, Decides to Ignore the Court’s Ruling

Posted in Europe, Patents at 4:51 am by Dr. Roy Schestowitz

Battistelli has a Napoleonic interpretation of the word “President”

Benoît Battistelli

Summary: Staff of the EPO is given yet more reasons to protest tomorrow at the British Consulate, for the so-called ‘President’ of the EPO reminds everyone of the very raison d’être for the protest — a vain disregard for the rule of law

“Mr Battistelli issued today a communique in which he states that the Dutch judgement is wrong and announcing that the EPO, i.e. The President, will not follow it.

“From bad to worse,” said this one comment. The context of this comment is a Merpel update that says “Mr Battstelli’s letter comes only 3 days after a judgment by a Dutch court that criticised the EPO for limiting staff’s right to strike and for refusing collective bargaining. Under point 5.3 the Dutch court stated: “It lies in the nature of the activities of a Staff Union like SUEPO that they are allowed to criticise the (representatives of) the employer, also via internal channels.””

Battistelli, or “Batty-man” as some people call him (Batman in his own mind, if not just batty, which means “insane; crazy; eccentric.”), deserves much ridicule because he actually threatens people for exercising their rights. He seems to forget that he is subjected to European rules.

Staff that actually fears these remarks and the general behaviour from Battistelli ought to read this latest flier [PDF]. Battistelli knows he is on his way out, hence the aggression.

A dictator faces a trade-off between repression and building the support he needs. The problem is that the number of unhappy people increases as a function of the number of people being punished or killed, and, as Snyderwine puts it, “The ‘intimidation’ effect reduces the likelihood of a revolution while the ‘unhappiness’ effect increases it.”

”Severe censorship and the construction of firewalls is suggested as a countermeasure to avoid ‘unhappiness’ spreading via social media.”2 A further countermeasure is propaganda; dictators like to disseminate misinformation. They hope that “if censorship is strong and manipulative enough, people might not even know the things they are missing.” But this approach is doomed to fail. People talk to each other, read (foreign) newspapers and consult the internet. Sooner rather than later they will find out. And if people suffer severely enough under a dictator, they will revolt, as history has shown.

“When people lose faith in nearly everything … they are more likely to take the streets.” More [PDF]

02.22.15

The EPO’s Sham ‘Internal Investigation’ of EPO Vice-President Željko Topić’s Affairs

Posted in Europe, Patents at 10:04 am by Dr. Roy Schestowitz

Benoît Battistelli probing the Topić affair is akin to John Brennan probing CIA abuses

John Brennan

Summary: The EPO never investigated the Željko Topić affair, it only pretends to have investigated it (one small aspect, i.e. cherry-picking) using a Benoît Battistelli-controlled group

OUR ~70 articles about the EPO‘s management have so far shown misconduct and a lot of dark background when it comes to Željko Topić. They have demonstrated that EPO dissent is not to be attributed to few disgruntled employees but the institution as a whole, as well as outsiders, including some of the biggest stakeholders.

The so-called “internal investigation” of the EPO is worse than a sham. It’s a case of the EPO investigating itself, as the CIA has done after its staff had been cracking US Senate PCs — the same PCs used to investigate illegal CIA torture at the time. The EPO shows that it has become as unaccountable as the CIA. The “internal investigation” was more like a coverup and an attack on legitimate critics.

Let’s go back in time and see what this “internal investigation” actually involved. Here is Benoît Battistelli calling it “Defamation Campaign” [PDF] before the investigation even began! Way to go, Battistelli. You had given away your bias even before the “internal investigation” began. Here is what he posted internally:

Defamation Campaign against VP 4

26.02.2013

Note to All Staff

Over the past couple of days an obviously concerted effort has been made to attack the reputation and standing of the Vice-President of DG 4, Mr Topic. This has taken the form of anonymous letters being sent and/or made available to EPO employees.

In the face of this vicious campaign, I wish to make clear that the allegations are without any foundation. They have already been dismissed by the Croatian authorities. Furthermore, Mr Topic engaged legal proceedings some time ago in Zagreb, for criminal slander and defamation as well as for damages against parties who have published the allegations.

I believe that all EPO staff will deplore the events which have occurred and share my shock and sadness that the circumstances surrounding the anonymous letters – the postmarks, the forms of address and so on – clearly point to the involvement of persons with a connection to and precise knowledge of the EPO in Munich.

My duty is to defend every staff members by all legal means if they, through an attack to their dignity and integrity, become victims of harassment. But beyond this general principle, we cannot tolerate the behaviour of those who spread false and malicious rumours with impunity, the content of which clearly bears the mark of entrenched prejudice against our first Vice-President from a new member State.

Should any member of EPO staff be found to have played a role in the cowardly anonymous attacks against Mr Topic, he she or they will be called to account.

Benoît Battistelli
President

It was only 4 months later that there was an update on this, so one might think that a thorough investigation took place, probing Topić’s very notorious background in Croatia. But no. Look what took 4 months. Florian Andres wrote Communique PD 0/6 [PDF], stating:

The investigation demonstrated that all aspects of the allegations pertaining to an alleged falsification of academic credentials are baseless.

That’s it? It does nothing at all to dispel the allegations about the Vice-President and instead deals with just one dubious aspect relating to his academic degree, extrapolating this to imply that he is totally innocent just because he didn’t fabricate his diploma. It’s like a straw man.

Communique No. 29 [PDF] was published on the very same date. Repeating this, Battistelli did a “me too”post:

The investigation concludes that the accusations concerning Mr Topic’s academic qualifications are entirely without foundation.

Ah, all right! Topić is therefore a Saint. As if that was the only accusation against him.

“It’s like a straw man.”This actually goes deeper than this and thanks to an unnamed source we are now in possession of additional [PDF] documents [PDF]. Our source says: “We are informed that Dr. Peter Gauweiler a member of the German Bundestag (Federal Parliament) from the Bavarian CSU submitted a query to the German Ministry of Justice in October 2013.

“According to our information, he received the following response:

«Die gegen Herrn Željko Topić erhobenen Vorwürfe sind dem Bundesministerium der Justiz – aufgrund mehrerer anonymer Schreiben – bekannt. Im Ergebnis ist es dem Bundesministerium der Justiz jedoch nicht möglich zu klären, ob die Vorwürfe letztlich begründet sind. Nach Auskunft des Europäischen Patentamtes hat allerdings in dieser Angelegenheit der Präsident des Europäischen Patentamts interne Ermittlungen aufgenommen und sogar einen Vertreter nach Kroatien entsandt, um unmittelbar vor Ort Nachforschungen zu betreiben. Nach hiesigem Kenntnisstand haben diese Ermittlungen keine Anhaltpunkte für etwaige Verfehlungen ergeben.»

Translation:

“The Federal Ministry of Justice is aware of the allegations which have been raised against Mr. Željko Topić as a result of a number of anonymous letters. Ultimately, however, it is not possible for the Federal Ministry of Justice to determine whether or not there is any substance to these allegations. Nevertheless, according to information provided by the European Patent Office, the President of the EPO initiated internal investigations into the matter and even dispatched a representative to Croatia to carry out enquiries locally. According to the information currently available to us, these investigations did not yield any evidence of possible irregularities.”

But wait, they did nothing to address allegations about corruption by Topić. They cherry-picked just one aspect of many.

Our source’s observations are as follows:

1. The German Ministry of Justice seems to have a surprisingly poor level of geographical knowledge. The EPO investigators were sent to the University of Banja Luka which is actually in Bosnia & Hercegovina, not Croatia! This is because Topić who is apparently an ethnic Croat and pursued a career in the Croatian civil service, was originally born in Banja Luka in Bosnia & Hercegovina prior to the breakup of the former Republic of Yugoslavia. He studied at the University there before moving to Zagreb in the late 1980s or early 1990s. Thus allegations relating to his claim to have an MBA from the University of Banja Luka had to be investigated in Bosnia & Hercegovina – not Croatia.

2. The EPO’s internal investigation was restricted to just one specific aspect of the allegations against Topić, namely allegations concerning irregularities in his claimed academic qualifications. The various other allegations raised against Topić have never been subject to any investigation by the EPO.

3. The EPO’s internal investigation was carried out by the so-called “Internal Audit” department which is directly under Battistelli’s control. Given that Battistelli sponsored Topić’s candidacy as Vice-President, there is a clear conflict of interest here. This investigation cannot realistically be considered as an independent investigation.

4. In fact, in February 2013, Battistelli had already informed EPO staff that all allegations against Topić were completely baseless and without foundation. This claim was made by Battistelli before any internal investigation had been carried out! He also claimed that all of the allegations had been dismissed by the Croatian authorities. This is complete hogwash as a number of the alleged irregularities are the subject of pending court proceedings in Croatia.

5. The EPO’s Administrative Council was informed about Battistelli’s internal investigation at its meeting in June 2013. They apparently accepted these findings at face value and didn’t ask any questions.

The above assertions were made completely independently from Techrights, which, having received copies of these messages some time last year, reached the conclusions in (2) and (4) above, namely that it’s a biased ‘investigation’ with pre-determinded outcome of only one aspect among many. Any person with some knowledge of the Topić affair would have seen this charade for what it is because it is very shallow. Battistelli showed a very low degree of sophistication here; his attempt to whitewash Topić is self-undermining and misguided. It helps show just how corrupt this system of pseudo-oversight has truly become. If only Battistelli can invoke ‘investigation’ of his own cronies, then what kind of investigation can that ever be?

In one of the newly-presented exhibits (above) refer to the documents of “SUMMARY OF DECISIONS of the 136th meeting of the ADMINISTRATIVE COUNCIL”, specifically item 1.7 (emphasis added):

11. Meeting in restricted composition, without the observers and the staff and Office representatives (apart from the President), the Council

· took note of the results of an investigation recently conducted by the independent [sic] Internal audit. This investigation concerned the Vice-President DG 4, appointed by the Council.

· addressed broad issues pertaining to the social situation and the social dialogue. The Council reiterated its full support to the President in his endeavours to achieve reasonable and balanced measure.

The Internal Audit department is not “independent”, it is directly under the control of the EPO President. These inadequacies in the “internal investigation” carried out by the EPO were subsequently commented on in the Croatian press in an article published in October 2013 [PDF].

Putting aside the summary, see “MINUTES of the 136th meeting of the ADMINISTRATIVE COUNCIL Munich, 26 and 27 June 2013″ (the other new document) and refer to Item 1.7 on page 8/48 (emphasis added):

41. Meeting in restricted composition, without the observers and staff and Office representatives (apart from the President), the Council

- noted the outcome of a recent independent enquiry by Internal Audit concerning Vice-President DG 4, a Council appointee, and noted with great satisfaction that the enquiry had shown that all allegations against him were unfounded, and expressed every sympathy for him

- addressed various questions relating to the social situation and social dialogue, and reiterated its full support for the President in searching for reasonable and balanced measures.

Observations made by our source are as follows:

1. The minutes of the AC meeting refer to “a recent independent enquiry by Internal Audit”.

This is complete nonsense because, as we mentioned previously, the Internal Audit department is not “independent”. It is directly and exclusively under Battistelli’s control.

The appointment and replacement of the Head of Internal Audit lies completely within Battistelli’s discretion.

2. The AC “noted with great satisfaction that the enquiry had shown that all allegations against him were unfounded”.

More nonsense. The enquiry purported to have established that one specific allegation relating to Topić’s academic qualifications was unfounded. It made no attempt to investigate any other allegations against him.

There has been no further investigation of the matter by the AC since June 2013.

So, the above represents the official EPO position, i.e. an “independent” internal investigation has (allegedly) established that all allegations against Topić are unfounded.

So as far as the AC is concerned, the matter is closed.

The funny thing about all this is that before any investigation was ever carried out, Battistelli had already announced more or less the same result to EPO staff in a note issued on 26 February 2013:

“… I wish to make clear that the allegations are without any foundation. They have already been dismissed by the Croatian authorities.”

Unfortunately Battistelli never bothered to explain which “Croatian authorities” he was relying on for this assertion which appears to be incorrect.

According to in the formation which we have from reliable sources in Zagreb, a number of lawsuits, including both criminal and civil proceedings, are pending against Topić in Croatia.

In conclusion, Battistelli is a tyrant, a liar, and a revisionist. He is eager to deceive his own staff by protecting thugs whom he uses for ‘protection’.

We have a lot more coming about Topić. We received another large heap of documents and half a gigabyte of videos last night.

02.20.15

Benoît Battistelli Once Again Threatens EPO Staff That ‘Dares’ to Protest, Battistelli Exploits Terror Attacks to Pretend to Respect Free Speech

Posted in Europe, Patents at 8:43 pm by Dr. Roy Schestowitz

Terrorising his own staff

Benoit Battistelli

Summary: The European Patent Office (EPO) President, Benoît Battistelli, reportedly started threatening — as before — staff that decides to exercise the right to assemble and protest against abuses, including the abuses of President Battistelli himself

AS just about everyone in the EPO ought know by now, the British Consulate is about to find itself besieged by EPO staff (potentially thousands of staff) who will be there to protest an attack by non-scientists on the great scientists who work as examiners for the most part [1, 2]. These people are highly skilled (many have doctorate degrees and a long track record in their field), so they shouldn’t be taken for fools or radicals. Au contraire — these people can very easily recognise tyranny and injustice. They are eager to react to that even at personal cost or high risk. Greed does not motivate them to the degree that it motivates empty suits like Battistelli, who now surrounds himself in a crowd of bodyguards and other 'protection'/thugs (this so-called ‘security’ is costing taxpayers a lot of money and speaks volumes about paranoia or megalomania). Battistelli acts like a politician, not a manager. He leads by wielding fear and censorship, not charisma. It’s no wonder given his right-hand man. No wonder top staff is leaving over time. It is a long charade of embarrassments that only gets worse as time goes by, whilst managers get labeled “Putin” because they show arrogance and run a witch-hunt against staff, not vice versa.

“It is a long charade of embarrassments that only gets worse as time goes by, whilst managers get labeled “Putin” because they show arrogance and run a witch-hunt against staff, not vice versa.”According to some of these latest comments, Battistelli “had just issued a letter/threat to staff, directed at SUEPO Munich committee, that if there is a march to the British consulate next week, the organisers will be disciplined. So much for free speech. Is this his response to the Dutch court?”

This is a reference to the Dutch court's decision that we covered a couple of days ago. Quote from the message: “Those who take an active role in its organisation must know they ate infringing the standards of conduct expected from international civil servants. Should the planned demo actually take place, this would constitute a breach of the applicable legal framework and those concerned will be held liable for the beach of their obligations under the EPC and the Service Regulations.”

Actually, the rights of workers include the right to protest. In the face of tyranny, as in this case, protest is very much necessary. The rules imposed by Battistelli are seen as illegitimate at this stage. They’re designed to sustain his power, nothing else. It’s essential to demonstrate for justice and democracy — of which Battistelli is a sworn opponents, based on both actions and vain words.

“Well,” said one anonymous person, “I had been pondering whether or not to participate in the demonstration on 25 February, midday. BB [Benoît Battistelli] has just made up my mind for me: I’ll definitely be there to exercise my democratic rights (even in the unlikely event that I should be the only one there!)”

Another quote-worthy comment: “BB announces that any employee involved in organising a demonstration outside the UK Consulate in Munich will be “disciplined”. Do I see it right, that it is the act of organising that requires discipline (rather than the act of demonstrating)?

“I recall another regime that began its reign of discipline by going after union organisers. I wonder, how long is the AC going to continue to sit on its hands.”

Benoît Battistelli is digging himself deeper in the thin ice, to reuse a metaphor which was used the other day.

Battistelli has become a horrible pretender because only days ago, following the protest against an outpost of Denmark in Munich (targeting the AC, headed by Battistelli's mate) [1, 2, 3, 4], Battistelli published this in the EPO Web site:

Last week-end was marked by yet another tragic event in Europe as Denmark has been the victim of terrorist attacks in the centre of Copenhagen.

I am joined by the staff of the European Patent Office in expressing full solidarity with the Danish people. Europe is based on values among which freedom of expression and liberty are the most essential.

We must not be afraid, assume our responsibilities and stay united to reject these attempts against the basis of our plural society.

Benoît Battistelli

Well, what an unbelievable hypocrite, attacking free speech while claiming to defend it and squeezing terror attacks for his own spin.

“If 1000 staff members show up for that demonstration,” writes one person, “it will be very difficult to apply diciplinary [sic] actions. This situation is not sustainable, Examiners get on the baricades [sic] and walk for a more democratic organisation.”

Another person writes: “There must be a huge turnout at the GB consulate. As many staff, and Munich based attorneys, as possible. Strength in numbers. Enough with this authoritarian rubbish.”

Finally, said another person several hours ago: “I don’t live in Munich but this attempt to stop a fully democratic demonstration is so mind-bogglingly unacceptable that I think I shall take the day off and travel to Munich to be at the demo. Time for a strong signal, methinks.”

The more people attend to protest, the more trouble the tyrant will be in, not the staff. It’s collective strength.

“Staff at the European Patent Office went on strike accusing the organization of corruption: specifically, stretching the standards for patents in order to make more money.

“One of the ways that the EPO has done this is by issuing software patents in defiance of the treaty that set it up.”

Richard Stallman amid 2008 EPO protests

02.19.15

The Chartered Institute of Patent Attorneys Slams the European Patent Office for Structural Failings

Posted in Europe, Patents at 9:29 pm by Dr. Roy Schestowitz

All modern dictators fall – the question is when

The modern dictator walks on thin ice. And the ice is likely to get thinner and thinner as time passes. The dictator’s dilemma will usually lead to his downfall, which can be provoked either by a massive uprising when unhappiness becomes unbearable, or by the pressure exerted by external parties. Or both.

Suppressed people learn how to apply measures everyone can take, to chip away at the dictator’s authority and credibility: for example public demonstrations, strikes, caricatures, leaflets, boycotts, contributions to online debates, discussing with like-minded affected people, and sharing best practice one spots.

Knowing that every one of the dictator’s mistakes accelerates his fall, his opponents will try to create situations where the dictator fails. They will, for example, ensure that their dictator does not meet his objectives. Of course, a good dictator will always try to blame others when things go wrong. Perhaps one of his partners is at fault, perhaps an opposition leader, or a whistleblower. Or he just invents someone. In the end, though, he won’t get away with it:

“That is the problem for authoritarian leaders everywhere. Eventually, you run out of scapegoats.”

From the latest EPO-FLIER (#14) [PDF]

Summary: An important letter which we overlooked while writing yesterday’s 4 articles about the European Patent Office (EPO); yet another key stakeholder complains

THURSDAY was quite a heck (or hack) of a day for Techrights, which published three very important articles about very important developments.

“The European Patent Lawyers Association (EPLAW) has repeatedly complained as well, so this is part of a pattern”One very important item which we missed on that exceptionally busy Thursday was this letter.

Protest in the British Consulate over patent scope and Board 28 is planned for next week, as we first noted last week, but here is the new letter that should have been sent to Mr. Dennehey, not just Mr. Kongstad of the European Patent Office (the AC is more or less an inseparable part of it now). It comes from the UK-centric CIPA and it states:

6th February 2015  

Dear Mr. Kongstad,  

re: Independence of the Boards of Appeal 

On behalf of the Chartered Institute of Patent Attorneys I submit the following
comments on this matter of great importance.
The EPC set up a system with a rough separation of powers between:- 

  • a legislative/oversight body (the Administrative Council); 
  • an executive body (the Office through the President); 
  • a judiciary (the Boards of Appeal). 

The separation of the judiciary from the Office was intended to be ensured by disciplinary powers over the members of the Board of Appeal being with the Administrative Council (legislature) rather than with the President (executive). While not a complete separation of powers, this was thought by many to be sufficient to ensure the independence of the Boards of Appeal. [Indeed, some have complained that the members of the Boards of Appeal are too independent, in the sense that different strands of opinion are evident within the Boards, and references to the Enlarged Board of Appeal take place only when a Board decides or on a reference by the President.] 

The subject of judicial independence of the Boards of Appeal has been put into sharp focus by recent events, and in particular by: 

  • the exclusion of a member of the Boards of Appeal from the premises of the EPO pending investigation of alleged disciplinary offences; 
  • the decision R19/12 and its effect on the role of VP3.

The confusion that has resulted implies that the balances built into the EPC appear not to be functioning, and that strengthening of the separation of powers may be necessary.
There have been previous proposals to change the institutional framework of the Boards of Appeal to ensure their judicial independence. [For example see CA/46/04 and CA/103/03] These proposals, which would have required a diplomatic conference to amend the EPC to make the Boards of Appeal a clearly separate arm of the European Patent Organisation, were not carried through, even though they attracted wide support in principle (although not necessarily in detail). [NB CIPA does not necessarily support all aspects of that proposal, in particular the prospect of lifetime tenure without adequate safeguards for removing erratic members of the Boards of Appeal, and the determination of promotion in the hands of one person.]  

Given the experience with ratification of EPC2000, amendment to the EPC will take too long to deal with the immediate problem, but should not be ruled out, particularly given that the Article 4a EPC conference of ministers is long overdue and the above mentioned proposal for autonomy was made over 10 years ago. [A conference under Article 4a EPC to discuss “issues pertaining to the Organisation and to the European patent system” would appear particularly opportune given the imminent arrival of the unitary patent.]  

Amendment to the EPC Rules is within the competence of the Administrative Council and can be done relatively quickly.  

The EPC is explicit that disciplinary power concerning senior officials and the members of the Boards of Appeal shall lie with the AC. [Article 11(4) EPC; Article 23 EPC]  However, the recent events have highlighted a gap, in that the AC is not in a position to take immediate action if it appears necessary, and the President’s authority to intervene is controversial (CIPA take no position on the specific case in question).  

Complete financial independence is not necessary for judicial independence. Courts in most European countries are supported by the state, and court fees do not necessarily cover full costs. What is necessary is security of finance for the courts and the judiciary, which must be visibly independent from interference by the executive, so that the decisions in any case are based on the case itself and not on extraneous pressures.

 The European Patent Office does not have the resources of a state and is reliant on income from users and so users will suffer if costs are not appropriately controlled.
Establishing an independent judiciary does not necessitate a separate body, nor does it necessitate establishing a separate fee structure, building, and administration. All of the physical infrastructure requirements for an independent Board of Appeal are present in the current arrangements: what is missing is an appropriate reporting structure and assumption by the Administrative Council of its disciplinary role. It has been suggested that a degree of physical separation between the Boards of Appeal and the Office might assist in the appearance of independence: however this appearance would only be gained at considerable expense and loss of efficiency. 

To provide at least an interim solution to maintaining the independence of the Boards of Appeal it is suggested that some rule changes may assist while a long-term solution is sought, desirably through amendment to the EPC. Suggested rule changes include:  

A.    Amendment to Rule 9(1) EPC to place direction of the Boards of Appeal and Enlarged Boards of Appeal with a Director of the Boards of Appeal, who would not be a Vice President of the Office. He/she would have budgetary responsibilities and would report directly to the Administrative Council. This avoids the current blend of responsibilities to the executive and judiciary that led to R19/12. He/she might also be Chairman of the Enlarged Board;  

B.    The President’s supervisory authority over BoA members (Article 10(2)(f) EPC) to be delegated to the Director under Article 10(2)(i) EPC. This fills the gap highlighted by the recent events. If urgent action to exclude a BoA member appears necessary, pending disciplinary proceedings by the AC, then it can be taken by the Director. This is to the benefit of the President since there would be no reason why he need become mired in controversy.  

C.   Amendment to Rule 12(1) EPC by replacing reference to the VP with reference to the Director of Boards of Appeal.  

D.    Provision for the Director to be appointed by the AC on a proposal of the Enlarged Board (or for an extremely independent approach – by election from the Boards of Appeal subject to approval by the AC);  

E.    Introduction of Rules under Article 11(3) EPC concerning how and under what criteria the President will propose BoA members, in particular relating the number of Board members to demand and backlogs, and indicating how people may put their names forward;  

F.    Provision for a separate Chapter in the EPO budget relating to the Boards of Appeal to provide transparency as to costs; 

G.    If they do not exist, the AC to introduce and publish disciplinary rules for Board of
Appeal members and for others over whom it has disciplinary authority [The institutional secrecy of the EPO is damaging to its reputation and allows rumours to spread unchecked. The damage done is evident from recent events.];  

H.    Introduction of Rules or guidelines concerning under what circumstances (e.g. health, safety, public order), and for what duration, the President may temporarily exclude members of the Board of Appeal from the premises of the EPO without prior agreement of the Director of Boards of Appeal.

The above proposals only represent interim measures. CIPA is of the view that amendment to the EPC is necessary to give a secure guarantee of independence. When the EPC is next
amended CIPA will be ready to contribute to the debate on what specific changes are necessary.   

Yours sincerely,

J. C. Boff, Chairman of CIPA Patents Committee

There are plenty of anonymous comments there and here are some of Merpel’s own remarks:

The current ongoing controversy over the (mis)governance of the European Patent Office (EPO) Boards of Appeal is due to come before the Administrative Council (AC) when it next meets on 25 March. As this moggy recently reported, some groundwork has been done in advance of that meeting, with proposals apparently having been drafted by the members of the AC’s inner sanctum, Board 28. Jesper Kongstad, who chairs the AC, met with members of the Boards of Appeal, without sharing the details of the proposed reforms, but the topic will undoubtedly come before Board 28 when it convenes again on March 10.

[...]

Merpel thinks that the AC could do worse than take the template set out by CIPA below, and use this as a starting point for their reforms. It seems to deal with all the majors gaps in governance that have emerged in the last three months, and to suggest practical ways of plugging those gaps until the EPC is eventually amended (something that won’t happen during the tenure of Mr Battistelli, bets Merpel). In addition to the legal reforms required to separate powers, Merpel is interested to see that CIPA is also proposing fiscal changes, to give the Boards their own budget and financial independence.

The European Patent Lawyers Association (EPLAW) has repeatedly complained as well, so this is part of a pattern. Not only EPO staff complaint but stakeholders too.

We don’t expect the EPO to last in its current state for much longer.

EPO Staff Protests Against Benoît Battistelli’s Lowering of Patents Quality (Scope Expansion and Software Patents for Profit)

Posted in Europe, Patents at 10:10 am by Dr. Roy Schestowitz

The UK-IPO’s controversial stance on software patents won’t help the EPO, either

Royal Wedding reception British Consulate-General Munich
Source: Royal Wedding reception British Consulate-General Munich

Summary: A protest in Munich in less than 6 days will target Mr. Sean Dennehey, who has helped Battistelli cover up his abuses and crush legitimate critics, whom he deemed illegal opposition as if the EPO is an authoritarian regime as opposed to a public service which taxpayers are reluctantly (but forcibly) funding

A LOT is happening at the EPO today, or put another way, a lot is happening to EPO management today. The management must be scared. It’s used to scaring the staff (reign of terror), but these roles have been inevitably reversed. It’s a sort of “blowback”. EPO management is being taken to court (so that it cannot gag staff anymore) and earlier today we published our longest article (yet) about the Vice-President of the EPO, shedding light on why some people want him imprisoned.

“The management must be scared.”Now comes this report from Germany about an imminent protest in Germany, targeting the British Consulate as it did the Danish Consulate in Munich. To quote the first report we have found about this:

Since December, I’ve been following the labor and human rights conflict at the European Patent Office and the debate over judicial independence. I’m less concerned about particular people holding certain positions (TechRights’ Dr. Roy Schestowitz covers those issues in detail) than fundamental, structural deficiencies that have allowed judicial independence at the EPO to wither. And when patent examiners warn that patent quality is in jeopardy, I tend to listen carefully.

The Staff Union of the European Patent Office (SUEPO) has announced another demonstration. It will take place in Munich next Wednesday. EPO staff will march to the British consulate (on January 24 they went to the Danish consulate) and hope to meet the British Consul-General in Munich. It makes sense that SUEPO talks to the national governments that are ultimately responsible for what’s going on at the EPO. The British government has also just received a letter from the UK’s Chartered Institute of Patent Attorneys (CIPA) that IPKat reported on. That’s definitely an awareness-raiser.

[...]

I have the impression that the EPO staff is genuinely concerned about patent quality. It appears to me that these people really want to be able to do a good job (that they can be proud of), and their perspective on their job is that they have to serve the public interest by rejecting bad patent applications. I’m not saying that this is the only reason they oppose Mr. Battistelli’s reform agenda, but at the very least it’s a significant and credible part of the consideration, not just a pretext.

It sure sounds like EPO staff is opposing software patents in Europe because Battistelli does not care about quality of patents, only about money. The document published at Google’s Blogspot and Scribd states the following:

Ortssektion München . Local Section Munich . Section locale de Munich

12.02.2015

su15009mp – 0.2.1/0.3.2/0.2.2

NEXT DEMONSTRATION WEDNESDAY 25 FEBRUARY 2015

How many patents does Europe need?

At the beginning of 2015, staff of the EPO is faced with demands for massive increases in production (up to 20%) at the same time as a further worsening of their working conditions. The EPO receives some 150.000 patent applications a year, of which roughly one-third (35 %) come from the EPO member states and two-thirds (65 %) from outside Europe1. Despite the EPO’s very healthy financial situation2, Mr Battistelli’s main policy aim for the Office seems to be to make it more “efficient”. According to staff, efficiency is not an aim by itself: it is subordinated to the Office’s duty, as a public service, to examine patent applications thoroughly and to refuse any “bad” patents that would otherwise be a nuisance, in particular for the many European small and medium-sized enterprises that cannot afford expensive litigation. Mr Battistelli’s single-minded focus on “efficiency” and cost cutting is not in the interest of Europe!

March to the Danish consulate
On 24 January 2015 some 1000 colleagues braved the freezing cold for a demonstration in front of the Danish consulate in Munich. Staff reproaches the EPO’s Administrative Council headed by Mr Kongstad, a Dane, for its failure to exercise due oversight over the President of the EPO, its failure to fulfill its duty of care towards EPO staff by allowing unacceptable employment law to be imposed on staff, and its lack of transparency towards the EPO’s users and the general public. More information here 3.

The demonstration was reported in the Danish press. The Danish newspaper “Jyllands-Posten” published a rather critical article4 of 3 pages entitled “Raging war at the EPO”. An English translation can be found by scrolling through the document.

Wednesday 25 February 2015 – March to the British consulate
The next demonstration will be aimed at the British consulate. Mr Sean Dennehey5 (UK), member of the British delegation, is a major player in the Administrative Council. He was also recently re-elected6 chairman of the Patent Law Committee for a three-year term, starting on 30 March 2014. Like Mr Kongstad, Mr Dennehey is member of the “Board 28”,

________________________
1 http://www.epo.org/about-us/annual-reports-statistics/statistics/filings.html
2 In 2013 and 2014, the EPO had an operating surplus of over 300 million Euros.
3 http://munich.suepo.org/archive/su15006mp.pdf
4 http://www.suepo.org/public/ex15056cp.pdf
5 Biography of Mr Sean Dennehey: https://www.gov.uk/government/people/sean-dennehey
6 139th meeting of the AC: http://www.epo.org/news-issues/news/2014/20140328.html


the ultra-secretive think-tank of the Administrative Council. The Board 28 met this week to discuss and probably decide upon the future of DG3.7 Mr Dennehey actively supports and defends the reforms of Mr Battistelli, which increasingly deny EPO staff fundamental rights that are taken for granted by all other European citizens. Mr Dennehey also supports the Office in trying to suppress8 public discussion about the suspension of a Member of the Boards of Appeal while leaving space for Mr Battistelli to express his view of the events behind closed doors.

We wish to alert the British government to the problems in the EPO and the role played by the British delegation. We hope to be able to meet the British Consul-General, Paul Richard Heardman, to ask for his support.

What are our claims?

As with the previous march, we claim9 for

  • Rule of Law,
  • Freedom of Association and
  • Honest Negotiation of our work package.

But we do not forget the mission of the EPO as a public service created for the benefit of the citizens of Europe. That is why we continue to defend

  • quality in search and examination as well as
  • more transparency in the governance of the EPO.

The demonstration will start in front of the Isar building on Wednesday 25 February at 12.10h. We expect to arrive at the British consulate (Möhlstraße 5) at 13.15h.

We invite all staff to participate.

SUEPO Munich

“Mr Battistelli made it clear that, in his view, action is now expected and that academic models and debates, however interesting, are not enough to answer the priorities expressed by the Council. Ms Brimelow called for a measured approach in matters that are by essence of deep and long-term relevance.” [...]

“Both Mr Battistelli and Mr Kongstad stressed that the March Council conclusions were clear enough to enable the rapid development of proposals. Priority on increased output should be the leading consideration. It is no longer time for consultation, but rather for action and a real sense of urgency should prevail.”

Board 28 meeting of 6 May 2009 (B28/8/9)

________________________
7 139th meeting of the AC: http://www.epo.org/news issues/news/2014/20140328.html
8 http://www.cipa.org.uk/pages/whatsnew/article?B3DF31C2-BF7B-4885-831F-B4832AB5C690
9 What does EPO staff want? http://www.suepo.org/public/su14286cp.pdf

I will be in Singapore when the protest takes place, so sadly enough Techrights won’t be able to cover these protests until some time next month. We are sure that some British press will give it a good mention, accessible to English-speaking audiences all around the world. The demise of Battistelli’s tyranny is hopefully near; it seems unavailable and imminent.

Željko Topić’s History in SIPO Leaves a Legacy of Alleged DZIV Vehicles (Bribes), Authorship Abuses, and Intimidation Against Reporters

Posted in Europe, Fraud, Patents at 8:43 am by Dr. Roy Schestowitz

Summary: Another deep look at Željko Topić’s background in Croatia, preceding his very notorious appointment to the EPO where he now serves as Benoît Battistelli’s most controversial attack dog

OUR SECOND ARTICLE in this series (part of a much broader series) looks at the case of Rikard Frgacic and another of Ivan Kabalin. These cases help highlight the malicious conduct of the Croatian SIPO, which the current Vice-President of the EPO came from and also managed. Željko Topić does not want the European public to know about all this. He relies on much of this being accessible only to people who are fluent in Croatian. We strive to change this by providing translations, documents, and detailed explanations, having studied these cases for months.

“It is not possible for the EPO to just carry on when a thug and a cheater serves as Vice-President.”EPO matters will surely be impacted by this. It is not possible for the EPO to just carry on when a thug and a cheater serves as Vice-President. Today we present some background information about other Croatian cases that would be of interest to the European public.

“For your information,” told us a reliable source (we shall refer to our sources collectively for their protection), “[w]e have heard from our sources in Zagreb that some people in Croatia may try to contact you to provide information about other allegations of corruption against the Croatian State Intellectual Property Office during Topić’s tenure as Director-General (from 2004 to 2012).

“To try and help you to make some sense of all this let’s recap that so far the information which has been provided from our side has mostly related to the Vesna Stilin story and her conflict with Topić as an Assistant Director of the SIPO.

“It seems that a number of “external users” of the SIPO’s services also had problems. Two cases in particular have received journalistic coverage in Croatia. As far as we can work out, the people who might try to contact you to provide additional material are connected with those cases [and] the cases in question are as follows.”

This is a good point in time to clarify and strongly stress that in Techrights we have never let our sources down (and we have had many sources over the years). Those who have material to show to us can rest assured that they will be treated with utmost confidentially and material will be examined based on merit before publication (we ensure there is no identifying details in published documents, just in case). Today’s new documents are as follows:

  1. PRESS RELEASE 30-04-2012-EN [PDF] – Translation of a “Press Release” dated 30th of April 2012, which was published on the Web site of the Croatian SIPO (in Croatian only). The original version (i.e. in Croatian) can be found here [PDF].
  2. PLR-EN [PDF] – Translation of an article from dnevno.hr which includes a claim that Željko Topić was the author of the SIPO “Press Release” dated 30 April 2012; refer to the section entitled “Official or private website?”

Our first case deals with Mr. Rikard Frgacic.

“Mr. Frgacic is involved in a dispute with a subsidiary of Lufthansa in connection with a trademark “AirPlus”,” said a source to us. “Frgacic claims that the trademark registration in his name was mysteriously and improperly cancelled by the Croatian SIPO and re-assigned to Lufthansa (or, perhaps more precisely, a subsidiary of Lufthansa). He has been involved in litigation against the Croatian SIPO (in Croatia) and against Lufthansa and/or its subsidiary in Germany. As far as we can work out, he has also filed criminal charges against Topic in Croatia. At the beginning, Lufthansa offered him 1000 Euro to settle the trademark dispute but he refused the offer (as he considered that there was considerably more at stake).”

This is probably just one of many criminal charges against Željko Topić in his home country.

“According to what we have heard,” said our source, “he has had a partial victory in Croatia where a court issued an order for the SIPO to re-open the case of the trademark reassignment. However, the SIPO seems to be dragging its feet in the matter. It also looks like the litigation in Germany against Lufthansa and/or its subsidiary is stayed pending the outcome of the re-examination of the trademark re-assignment by the Croatian SIPO. From what we have understood, there seems to be a risk that if the SIPO blocks the re-examination of the case for long enough in Croatia, he may run into some kind of statute of limitations problem in Germany. But we only have this information via second-hand sources so we can’t say for sure what the exact state of play is.”

So, in summary, this case is not finished. Moreover, as we have explained before, there is a pattern of coverup for misconduct in SIPO. We wrote about that last week.

The second case involved Mr. Ivan Kabalin, whose letter we published some days ago (he too alleges coverup).

“Mr. Kabalin is a Croatian engineer who invented an improved type of safety razor and submitted a patent application for his invention to the Croatian SIPO,” our source explained. “Kabalin claims that his idea was subsequently pirated by Gillette and marketed as its “Gillette Sensor Excel” product. It seems that when he tried to pursue legal action against Gillette he found out that his patent application had not been properly processed by the SIPO. We are not sure of the exact details about this, i.e. whether they rejected the application or just left it hanging as a “pending application”. Whatever the exact story there, it turned out that he couldn’t obtain any effective legal enforcement against Gillette.”

Kabalin’s story has been covered in the Croatian press for many years now. NISTA_EN (published earlier this month) is a translation we have received of an article from 2013. Here is it as HTML. It’s a translation of an article from tjedno.hr which starts off with the Kabalin case before moving on to report about other matters relating to Željko Topić’s record.

“More recently it has received renewed coverage,” said our source, citing this page (publication date is 7th of November 2014, but no translation is available). The headline on that article, as we have been told, reads: “THE GILLETTE AFFAIR: One of the biggest heists in Croatian history is still continuing!”

Some older articles can be found here and here (no translations available) and in this interview with Kabalin from 2012 (again no translation available) the headline quotes him as saying that the whole of the SIPO “should be sent to Remetinec” (i.e. the main jailhouse in Zagreb).

We have heard something similar from Frgacic, who said in a recent interview that German authorities ought to arrest Željko Topić.

Our source added the following important disclaimer about the aforementioned cases: “We want to emphasise that we only know about the Frgacic and Kabalin cases from second-hand sources. These guys obviously have axes to grind with the SIPO but we are too remote from their cases to make any comments on the merits of their claims.

“However, the “David versus Goliath” aspect of these stories seems to have struck a chord with the popular imagination in Croatia and both cases have got a significant amount of media attention there. We also note that the ongoing controversy about Topić’s appointment at the EPO also seems to have regenerated interest in these “cold cases” in Croatia. Understandably, the people involved in these cases are interested in obtaining some exposure on an international level.

“As you might expect, the official “party line” of the SIPO (i.e. Topić) is to dismiss these people as disgruntled “cranks”. For example, the Frgacic case is mentioned in a press release from the Croatian SIPO dated 30 April 2012.” (see PRESS RELEASE 30-04-2012-EN and refer to the first paragraph on the last page).

Here is the full text of the press release, which is alleged to have been written by Topić:

REPUBLIC OF CROATIA

STATE INTELLECTUAL PROPERTY OFFICE

Zagreb, 30 April 2012

PRESS RELEASE

Following a series of articles in the media, among which “Jutarnji list” and the Internet portal Index.hr have been particularly prominent, and in which arbitrary allegations have been levelled in an outrageous manner against the former Director General of the State Intellectual Property Office, Mr Topić, and against the activities of the Office as an institution, the State Intellectual Property Office is publishing the following press release with the aim of objectively and truthfully informing the public and preventing further misrepresentation by the media.

The so-called “affair” relating to Director General Topić is nothing more than the product of unprofessional journalism which, in its search for a sensational story, publishes incomplete information, unverified information and even complete disinformation, to which a completely arbitrary and tendentious interpretation is applied.

The main source of accusations against the Office and against Mr Topić personally is the unprecedented campaign conducted by Ms Vesna Stilin, who was dismissed from service in the Office at the beginning of 1999 by the then Director due to unauthorised absence from duty for a duration of 34 consecutive days. For over 12 years she has been exerting unrelenting pressure on the competent government and judicial authorities in an attempt to realise her own unfounded ambitions and interests while trying to depict the matter as a struggle against illegal activities of the Office. We emphasise that from 1999 until the present day Ms Stilin has instituted dozens of court proceedings against several directors of the Office, the Office as an institution and the Croatian state in which inter alia she has claimed huge sums of money which are purportedly owed to her by the Office and the Croatian state. Ms Stilin’s arbitrary and malicious allegations concerning irregularities in the Office’s operations have, unfortunately, fallen on fruitful soil created by the current atmosphere of public distrust towards state institutions due to the intensified fight against corruption in recent years. In addition to this, arbitrary allegations by malicious individuals driven by questionable motives are published uncritically as facts by an unprofessional media and without any prior verification or objective analysis.

In the context of the aforementioned unprecedented campaign by Ms Stilin who, on an almost daily basis for the past 4 years, has been filing various absurd submissions, including criminal
charges, against Mr Topić and the Office with government and judicial authorities, a report relating to a budgetary inspection of the Office’s operations conducted in 2008 has been published. The contents of this report have provided the basis for media misrepresentation concerning alleged financial malpractices at the Office.

The aforementioned report has been interpreted in an arbitrary manner, without any appreciation of its contents and context, which we now elaborate upon with the aim of clarifying this matter.

Due to the monopolistic nature of intellectual property rights and the complex procedures for their protection, and in accordance with generally accepted global standards, it has been prescribed that not only the usual state duties are to be paid in connection with these procedures, but, additionally, fees for granting and maintaining the validity of these rights. In many countries, pursuant to the terms of international intellectual property agreements which in principle stipulate that the income from procedural fees for the granting and maintenance of such rights be used for the further development of the intellectual property protection system, this income is classified as the “proprietary revenue” of the competent intellectual property office. Such a practice also existed in Croatia from 1991, when the Office was established, until 2007, when the process of establishing the state treasury and the associated systematic regulation of revenue and expenditure in the central government budget led to a re-interpretation of the concept of “proprietary revenue” of government bodies. In other words, prior to 2007 the revenue from fees for intellectual property rights granting and maintenance procedures falling under the Office’s responsibility was remitted to a special sub-account of the government budget, from which the Office settled a part of its operating costs directly while unspent funds accumulated in the same sub-account and were visible in the prescribed financial reports of the Office.

That such operations were in conformity with the law is confirmed by an audit report from 2004 in which they were not called into question in any way whatsoever. However, according to the interpretation of the aforementioned budgetary inspection from 2008, the changes that had taken place in the meantime in relation to the definition of “proprietary revenue” of government bodies and in the context of the overall process of introducing a regulated government accounting system, resulted in a situation in which the Office’s revenue from fees for procedures for granting and maintaining the validity of intellectual property rights was henceforth to be considered as part of the general revenue of the central government budget. At this point it was requested that the funds which had hitherto been accumulated in the so-called “proprietary revenue” sub-account of the Office should be transferred into the central government budget account and that the planned expenditure from the central government budget for the operating costs of the Office be increased by a corresponding amount. The Office subsequently complied with this request. However, despite the detection of certain accounting irregularities in relation to the consistent management of expenditure between the so-called “proprietary revenue” sub-account and the central government budget account, the disputed budgetary inspection did not reveal any actual misuse of the financial resources.

The Office wishes to point out that the media reports concerning this matter and the allegations made by Ms Stilin systematically omit to mention that all detected irregularities were subsequently resolved and clarified, and that the competent authorities which had the disputed budgetary inspection report at their disposal evidently did not consider the established irregularities to merit further investigation. In every detailed audit of the operations of any legal entity a certain number of irregularities are almost always detected and the competent authorities subsequently undertake corrective measures depending on the objective gravity of the detected irregularities. It is emphasised that 8 identical copies of the disputed budgetary inspection report were compiled and submitted to the competent authorities in accordance with the applicable regulations on budgetary inspection.

The Office also wishes to draw attention to the misrepresentation concerning a “multi-million amount of fees” which the Director General allegedly paid out to himself and his “cronies”. The sum referred to corresponds to approximately 10% of the total amount that was paid out for the regular services of the Office employees over the same period, and it relates to payments made on various grounds to 42 of a total of 104 employees of the Office, including several months of full-time contract employment for a few individuals. It has also been omitted to explain that the only fee which was paid out to Mr Topić was for professional services on the examination committee for certified representatives in proceedings conducted by the Office and which was transparently and legally regulated and paid out in the same manner to all members of the examination committee. With regard to allegations about the fees for the committee members not being fully covered by the examination fees paid by applicants, we would like to point out that prior to the Decision of the Government of the Republic of Croatia in 2011 abolishing compensation due to civil servants for membership of expert committees, such fees paid to civil servants for services provided to expert committees in numerous state administration bodies were paid in full from the central government budget account, and that subsequent to the disputed budgetary inspection the Office aligned the examination fees with the level of compensation due to the examination board. The Office would also like to emphasise that in accordance with the results of the Feasibility Study on the Restructuring of the Office into a Self-Financing Organisation, which was carried out by independent experts, it was determined that the central government budget revenues arising from fees for the granting and maintenance procedures for intellectual property rights which were a direct result of the operations of the Office in 2007 and 2008 exceeded the total operating expenditure of the Office by approximately 800,000 HRK.

Concerning the fabricated “affair” about the allegedly illegal procurement of an official Mercedes vehicle and its “concealment” in the Office archives, all unfounded allegations based on malicious anonymous submissions by staff members were publicly refuted by the Office with counter-arguments immediately after their initial publication in 2009, a detail which the media now writing about this matter systematically omits to mention. They also fail to refer to a clear and unambiguous statement in the report of an administrative inspection conducted by the Ministry of Science, Education and Sports according to which it was established that there had been no irregularities in the procurement and usage of official vehicles at the Office.

With regard to the aforementioned criminal charges filed against the Director General of the Office, a key fact has been omitted: criminal charges can be filed by anyone, regardless of the merits of the case and the competent authorities are obliged to start investigative proceedings in relation to any criminal charges filed, no matter how unfounded they may prove to be after the investigation has been carried out. With regard to the specific criminal charges referred to here, the Office wishes to draw particular attention to the following facts.

The criminal charges brought by the employee Zdenko Haluza for the alleged forgery of an official document by Mr Topić are based on the date of entry into force of the Regulations on the Internal Organisation of the Office, which was incorrectly stated in the Decision concerning the transfer of Mr Haluza from an abolished position to a new position at the same level of competence and with identical associated rights. Mr Haluza has been trying to challenge the aforementioned transfer without success since 2008 and he refuses to carry out the duties associated with the new position to which he was transferred. After the legality of this transfer and the irrelevance in this regard of the incorrectly stated date were confirmed, Mr Haluza had exhausted the available means of redress in his proceedings against the Decision of the Office and he therefore resorted to the malicious filing of a criminal lawsuit for the forgery of an official document as the only remaining way of challenging the transfer. In the meantime, this lawsuit has been dismissed by the State Attorney’s Office. However, under the Croatian Criminal Code, a plaintiff can pursue the proceedings as a private plaintiff after the claim has been dismissed by the State Attorney’s Office, which is what Mr Haluza has done. In view of the evident absurdity of the criminal charges, it is more than certain that the outcome of the aforementioned proceedings will be in Mr Topić’s favour.

The second criminal charge against Mr Topić “by the employees of the Office” is the one filed by Ms Stilin as a private plaintiff which relates to the allegedly defamatory content of one of several proposals made by Mr Topić to relieve Ms Stilin of her duties as an Assistant Director. The alleged libel relates to a memorandum explaining the unsatisfactory performance of the duties of Assistant Director on the part of Ms Stilin due to which her dismissal from these duties was proposed. The media articles have systematically omitted mention of the fact, which Ms Stilin has confirmed in her public statements, that in the court proceedings in this criminal case Mr Topić has already been acquitted twice on the basis of two non-binding decisions, [i.e. first instance decisions that are not finally binding]. Based on previous experience it is certain that Ms Stilin will continue these proceedings until she has exhausted all available legal means, and thereafter by using other forms of pressure.

The third criminal charge is the one filed by Mr Frgačić in the so-called “Lufthansa-Affair”. The Office emphasises that it conducts more than 10,000 procedures a year in connection with requests to grant intellectual property rights, a significant part of which are terminated by a decision not to grant the requested right because the prescribed requirements have not been met. There thus exists the inherent possibility that an applicant will be dissatisfied with the decision of the Office no matter how well supported by arguments and based on law it was. The character of the dissatisfied party will determine which legal remedies they rely on to pursue their interests and this does not exclude filing arbitrary criminal charges and making accusations about the alleged corruption of officials.

It is also known to the Office that the obligatory investigative actions are being conducted as prescribed in relation to criminal charges the content of which makes it evident that they are based on malicious accusations originating from the habitual arsenal employed by Ms Stilin in the daily submissions with which she exerts pressure on the government and judicial authorities.

With regard to the so-called ZAMP-Affair (Protection of Music Copyright), the Office has already issued a press release and on this occasion emphasises once again that all allegations of irregularities concerning the collective management of these rights are completely unfounded and that this has been recognised in the meantime by a good part of the objectively-minded public.

From the fact that Mr Topić is portrayed by the media in turns either as a confidant of President Josipović or as “Sanader’s apparatchik”, the absurdity of all speculation about his appointment as Director General being due to some kind of political patronage becomes apparent.

Apart from a year-long break when he worked in the private sector, Mr Topic held various professional and managerial functions in the Office more or less from the time of its establishment until he left the position of Director General to take up his appointment as Vice-President of the European Patent Office. It is evident from this that he was appointed as Director General based solely on professional rather than political considerations. The only person who has invoked party membership in an attempt to secure her own interests has been Ms Stilin who in her numerous absurd accusations against Mr Topić stated inter alia that her dismissal was a consequence of his discrimination against her because of her membership of HDZ.

Mr Topić’s selection as a Vice-President of the European Patent Office has also been the subject of outrageous misrepresentation by the media. The aforementioned position is awarded solely on merit and it is not a political appointment. Moreover, Mr Topić obtained the position on the basis of a publicly advertised competition for which he applied along with three other candidates. Mr Topić was chosen following the presentation of his candidacy to the Administrative Council of the European Patent Organisation, of which the European Patent Office is the executive organ, and after he had received the votes of a majority of the representatives of the 38 member states during the first round of secret voting on the four candidates, and it was not due to any kind of political lobbying by Croatian diplomacy.

In conclusion, the Office wishes to express its grave concern about the fact that such extremely unprofessional media manipulation based on malicious accusations from a small number of people obviously driven by questionable motives can cause the reputation of a state institution and its Director to be called into question in such an outrageous manner, despite the notable results achieved by the Office and its professional reputation in the relevant national and international professional circles, which is incontrovertibly confirmed by the official reports of the European Commission, the international awards presented to Mr Topić and his appointment to a high executive function at the European Patent Office based inter alia upon the results achieved during his many years as the head of the Office. We particularly regret that the competent institutions have also succumbed to this unprecedented pressure and have subordinated their actions to individual interests rather than objective reasoning based on relevant facts.

This so-called ‘press release’ reads like an ad hominem blog post, throwing accusations mostly at Ms Stilin. Sadly enough for Topić, his lost as SLAPP case and Stilin not only won but Topić is liable to pay all her legal fees. The judge basically smashed Topić’s narrative to pieces. The EPO’s ringleader, Battistelli, probably hopes that his staff will never find out about that. Battistelli relied on this case when supposedly ‘dispelling’ ‘rumours’. But we have English and German translations of this recent ruling.

“Just for information,” added our source, “the Croatian media have claimed that Topić authored that press release himself (i.e. the original Croatian version) and ordered it to be published on the official website of the SIPO.”

That’s in itself a serious indication of Topić’s crooked mind.

Refer to the translation in PLR-EN — an article published by dnevno.hr in April of 2013. Here is the full translation of the text passed to us:

DISCLAIMER: The text which follows is a translation from the original Croatian. The accuracy of the translation is not guaranteed. The original article can be found at: http://www.dnevno.hr/vijesti/hrvatska/85582-bivsi-ravnatelj-dziv-a-zeljko-topic-zakinuo-jehrvatske-knjizevnike-za-milijune-kuna.html

Croatian writers claim that former DZIV Director Željko Topić cheated them out of millions of Kuna

SIPO article

Written by: Mladen Prenc
Sunday, 28 April 2013

“For the common good and in order to provide complete information to both the Croatian and international public, we have decided to speak out on the subject of the threatened existence of Croatian writers, and also journalists, publishers, illustrators and other related professions. Starting in 2007, writers were supposed to receive financial compensation from the state for the lending of their books in public libraries based on the so-called Public Lending Right, but to date they have not received a single cent”.

This appeal has been issued by anonymous sources from the Croatian Writers’ Association* [Društvo hrvatskih književnika / DHK] who have contacted the news portal Dnevno. After remaining silent for a number of years, the writers have finally decided to speak out about the alleged injustice done to them, and for which they blame the former long-time director of the State Intellectual Property Office (DZIV), Željko Topić, who now holds the position of Vice-President of the European Patent Office (EPO) in Munich. The writers ask the following question: Why didn’t the Copyright Act in Croatia become operational for writers and other artists in the same way as it did for musicians (within the framework of the Protection of Music Copyrights – ZAMP)?

Instead of including writers, only members of ZAMP were protected

They claim that the DZIV was appointed to act on behalf of the State as the coordinating body for the implementation of the above-mentioned Public Lending Right (PLR) based on the National Strategy for the Development of the Intellectual Ownership System in the period from 2005 to 2010. This Strategy was developed by DZIV itself, and the year 2007 was established as the deadline for PLR implementation. At the 4th European Public Lending Right Conference held in Budapest in April 2007, a proposal was made to hold the next European Conference in Croatia in order to provide writers in our country with support in relation to the implementation of the new right, which had already been introduced into Croatian legislation in 2003 by means of the Copyright and Related Rights Act which was based on the EU Directive 92/100/EEC.

The writers explain how Željko Topić continued to ignore all of the initiatives associated with the organisation of the European Public Lending Right Conference in Croatia for over a year, before finally turning down the request of the Conference organisers on 2 April 2008. His argument was that the Croatian state agency responsible for the matter, i.e. the DZIV, lacked the financial means to bear its share of the Conference costs – a ridiculously small sum of 100,000 HRK, or approximately 15,000 EUR. The balance was to be provided by the Conference organisers. However, the story of the DZIV’s empty coffers, which Topić used as a convenient excuse, is contradicted by the official remuneration disbursement schedule for the year 2007, which clearly shows that the DZIV had ample funds at its disposal. As evidence of this claim, we publish the 2007 disbursement schedule as an annex.

According to the schedule, additional remuneration was paid out to certain permanent employees of DZIV on top of their regular salary. It is interesting to note that this additional “contract work” appears to have been carried out by those employees during their normal working hours using the resources of the DZIV thereby effectively amounting to a form of illegal income. In any case, the former Director of the DZIV rejected the request of the Conference organisers because of an alleged lack of funds, while at the same time paying out generous additional remuneration to selected staff inside the DZIV. At this point it is necessary to emphasise that the aforementioned schedule does not include payments to external collaborators, travel expenses or other financial gems of the notorious crew resident at Vukovarska 78 in Zagreb [i.e. the DZIV]. Moreover, our sources from the Croatian Writers’ Association claim that in
parallel to the DZIV’s obstruction in the case of the Public Lending Right for authors, the development and monitoring of rights protection for certain other forms of copyright, in particular those relating to ZAMP [i.e. musical royalties], were receiving a completely different and privileged level of support from this state agency.

The DZIV Vehicle Fleet

Apart from generous additional remuneration for himself and certain favoured employees of the DZIV, the information available to us indicates that Željko Topić was also capable of financing the cost of six official DZIV vehicles: three older ones – an Audi 6, an Audi 4 and a Skoda – as well as three completely new ones – a Mercedes, an Audi 6 and a Skoda. The new Audi 6 was for the then Minister of Science Dragan Primorac, who was responsible for the DZIV at the time; the new Mercedes, i.e. “Merc” and the older Audi 6 for Topić himself, the older Audi A4 for his deputy Romana Matanovac, and the new Skoda for the assistant Director Ljiljana Kuterovac. All of this was in addition to the documented amount of 1,033,182.28 HRK, clearly visible in the schedule annexed to this article, which was paid out as additional remuneration for the year 2007 (on top of the regular salary) to around half of the DZIV employees, with the “duo” consisting of Željko Topić and Romana Matanovac topping the list of beneficiaries. In a Budgetary Audit Report relating to the DZIV dated 15 January 2008 and carried out by the Ministry of Finance, this amount is listed as improper expenditure in contravention of the Labour Act, the Collective Agreement for Civil Servants and Employees and the Budget Act. The aforementioned Report notes that Topić’s actions in this respect constitute an offence subject to sanction by a fine in the amount up to 100,000 HRK pursuant to the Budget Act. Notwithstanding a legal obligation to do so, for reasons known only to themselves neither the inspectors from the Ministry of Finance nor the Minister with responsibility for the DZIV at that time, Dragan Primorac, saw fit to initiate civil or criminal proceedings against Topić.

Are Croatian writers finally about to take action against the former DZIV director Željko Topić by way of a collective lawsuit or by alternative legal means, in an effort to call him to account for causing them significant financial damage by abusing his position and authority and neglecting his official duty to facilitate the implementation of the new Public Lending Right? Thanks to him they have still not received a single cent of financial compensation which is of existential importance for writers and for other related professions as mentioned above. To what extent Mr Topić and the socalled “clique of intellectuals” at the DZIV have forearmed themselves against the eventuality of legal action on the part of Croatian writers has yet to be ascertained.

Official or private website?

We would also like to remind our readers that Željko Topić made use of the official DZIV website last year to settle accounts with persons who had pressed criminal charges against him as well as with the media outlets that had drawn the attention of the public to his violations of the law. Although he had moved to Munich in the meantime after voluntarily handing in his notice at the DZIV to take up the position of Vice-President of the EPO in the Bavarian capital, in April 2012 he suddenly returned to Zagreb on the last day of the month. As the working day was drawing to a close he ordered a surprised employee of the DZIV IT department to publish a controversial exculpatory “press release” on the official DZIV website*. In other words, having no possibility to obtain publication of such a self-serving statement in the press or on the Internet portals that had reported piquant details about him, he abused his position and influence inasmuch as he effectively requisitioned the website of a state agency for a private purpose, i.e. to publish a rejoinder in his own defence.

In addition to that, as part of his efforts to discredit the published articles disclosing the illegal actions carried out during his time at the DZIV, Topić filed a complaint with the Croatian Journalists’ Association, accusing the journalists who had written the articles of violating the journalistic code of honour by publishing unverified and defamatory information about him. The Press Council of the Croatian Journalists’ Association rejected Topić’s accusations and published its reasoned findings on its official website **.

Whether by coincidence or not, the Croatian law firms that represent Željko Topić in the criminal proceedings pending against him were at the same time also representing those who had indicted him – at least until such time as this was inadvertently revealed. In this way, they had access to privileged information concerning the other party. The lawyers who represent Mr Topić in criminal legal matters in Croatian courts are the law firm Silvije Hraste and the law firm Gajski-Prka-Saucha and Partners d.o.o. Affidavits bearing stamps of these law firms have been deposited in all criminal cases concerning Željko Topić. Our editors are in possession of copies of these documents.

Finally, it should be pointed out that the aforementioned law firms are at the same time officially registered as the legal representatives of the DZIV in Zagreb. In this way the circle is closed.

Contentious appointment and DZIV audit

In the course of conducting an audit of the DZIV and its then Director Željko Topić in 2012, the Ministry of Science under the control of Minister Željko Jovanović omitted to analyse a key document of the Croatian Government from which it plainly follows that Romana Matanovac, who was at the time employed by the state agency DZIV, was ineligible to be appointed as a member of the Board of Experts for Copyright and Related Rights [due to a conflict of interest].

Matanovac’s transgressions include approving the payment of some 300,000 HRK by the DZIV in 2008 for the ALAI Congress [held in Dubrovnik], under the stewardship of Professor Igor Gliha otherwise known as a close friend of Ivo Josipović, the Croatian President, instead of providing funds for the Public Lending Right Conference, despite the fact that the DZIV had a whole year to prepare for the latter event and was under an official obligation to organise it. Out of approximately 110 permanent employees of the DZIV, the only ones who appear to have benefitted from the exclusive privilege of receiving multiple additional perks were Romana Matanovac and Ljiljana Kuterovac both of whom evidently enjoyed the special confidence of the former Director Topić.

In conclusion we note that Croatian writers are still searching for answers to a number of unsolved riddles. For example, why did Ms. Romana Matanovac not adopt the same professional approach to the implementation of the Personal Lending Right as she did in the case of Josipović’s ZAMP [i.e. music royalties]? And what exactly is it that makes Croatian musicians worth more than writers?

_______________________________________________
* The press release referred to is available on the DZIV website (in Croatian only):
http://www.dziv.hr/files/File/novosti/Priopcenje_za_javnost_30042012.pdf
** The findings of the Croatian Press Council in the case of Željko Topić vs. Slavica Lukić may be accessed here (in Croatian only):
http://www.hnd.hr/hr/Zakljucci7sjednice2012/show/66192/

Expenses

The writers explain how Topić continued to ignore all of the initiatives associated with the organisation of the European Public Lending Right Conference in Croatia for over a year, before finally turning down the request of the Conference organisers on 2 April 2008. His excuse was that the DZIV lacked the financial means to bear its share of the Conference costs. However, at the same time Topić was paying himself and certain favoured DZIV employees generous amounts of “additional remuneration” as evidenced by the official disbursement schedule.

Readers, including those outside of Croatia, are advised to read the above text, especially the parts about bribery using vehicles, intimidation by Topić using SLAPP litigation, and apparent misuse of his position in SIPO. It’s quite revealing and we are increasingly convinced that Topić knows damn well that he has done so much wrong, hence he is trying to silence those who speak out, even if this involves years in courts and much in lawyers’ fees (for both sides). Topić knows the abusive arts of litigation. It’s his field. It’s what he’s best at, based on his track record.

We asked a source if Topić is indeed likely to have turned SIPO into his blogging platform (sort of). “This sounds plausible to,” told us this source, “because, according to official government records, [it appeared] following his appointment to the EPO Topić’s term of office as Director-General of the SIPO expired on 30 April 2012 (i.e. the date of the “Press Release”). So according to official records, he was still the Director-General of the SIPO when the “Press Release” was published.”

In the coming days we are going to cover the sham ‘investigation’ from Benoît Battistelli and his cronies. They are not interested in finding out the truth about Topić, only in defending him (so as to cover their own behinds).

The Old Obsession With Patent Trolls Continues to Distract From Debate About Software Patenting

Posted in Law, Patents at 7:06 am by Dr. Roy Schestowitz

The root problem is monopolies on mathematics

Logic homework

Summary: A roundup of recent coverage about monopolies on algorithms in the United States

THE FIGHT against software patents (in the US in particular) is going quite well as courts combat this irrational phenomenon, which has come to dominate the patent system and now saturates the patents pool. Nike is now patenting software, showing us again that, demonstrably speaking, it is large corporations that typically rely on such patents. These almost always hurt the ‘small people’, unless they are patent trolls and opportunists.

“These patent lawyers continue to debate the patentability of software (usually if not always spinning in favour of software patents in the United States) while in another article by lawyer Rob Tiller (Red Hat) the wrong kind of approach is being floated, debating once again “patent trolling” rather than software patenting.”Software patents are typically being hoarded by evil companies (lots of abuses other than patent abuses) and Samsung, which is pressured by Microsoft using software patents extortion, is now the victim of yet another evil company. As a trolls expert put it, “Gordon Bremer didn’t invent Bluetooth 2.0. In fact, as he admitted on the stand last week in an East Texas federal court, he hadn’t even read the specification for it until 2007—three years after it was on the market.

“Despite that, Bremer may be getting paid a hefty royalty by Samsung, after a jury ruled that the Korean electronics company infringed Bremer’s patents. He stands to get 2.5 percent of the $15.7 million verdict [PDF] won by his employer, Rembrandt IP, one of the oldest and most successful “patent trolls.””

Until or unless the USPTO is ready to stop its horrible patent policy, patent trolls will continue to harm real companies with actual products. Microsoft, for example, uses patents to harm Android and force Android to play into the loser’s game (Microsoft).

Here are some new “Comments on USPTO’s Interim Patent Eligibility Guidance”, coming from the Bilski Blog (no connection to the Bilski case, just opportunism): “[t]he Interim Guidance made a slight change from the Preliminary Instructions to address this issue, by stating that “certain methods of organizing human activities” (emphasis added) are abstract ideas, to avoid suggesting that “all” such methods are ineligible. But that does not fully address the problem, and indeed may exacerbate it. The use of the adjective “certain” gives no useful instruction to the examiners—it says no more than “some methods” are ineligible, without saying how to identify which methods. As noted by the commentators, the only instruction from the Court is that it is those methods which are themselves already “fundamental building blocks” as in Bilski. As an example, a method of making ice cream sundaes by mixing ice cream and toppings on chilled blocks of granite is a method of organizing human activities that is not “fundamental” or “abstract.”

“The Office should revise the Guidance to specifically address the interpretation of “abstract ideas” as being fundamental, and advise examiners to demonstrate such fundamental status by proper citation to authoritative references. The Office should explain to examiners precisely how to establish which “certain” methods of organizing human activity are ineligible, and if it cannot, then it should remove the alleged category entirely.”

These patent lawyers continue to debate the patentability of software (usually if not always spinning in favour of software patents in the United States) while in another article by lawyer Rob Tiller (Red Hat) the wrong kind of approach is being floated, debating once again “patent trolling” rather than software patenting. Here is what he wrote a few days ago:

Patent reform is once again in the air. A few days ago, Congressman Bob Goodlatte and others re-introduced the Innovation Act, which was passed by the House in the last Congress but died in the Senate. It has several good ideas, including fee shifting, clearer pleadings, patent ownership disclosure requirements, combatting discovery abuse, clarity in ownership of patents, protection of downstream users, and others. Some of these could improve the chances for businesses facing attacks by patent assertion entities (PAEs, aka patent trolls).

But in preparing for a talk last week, I came upon an idea that could go as further than any pending legislative proposal towards undermining the business of patent trolling. Professor Mark Lemley of Stanford Law School titled his paper with becoming modesty: Why Do Juries Decide if Patents Are Valid?. This caught my eye, because I’ve long wondered the very same thing. The risk of a runaway jury is one that costs all patent defendants (including most every innovative technology company) some sleepless nights. Even when a patent claim seems clearly without basis, the possibility of a jury trial gives us pause.

What depresses us about Rob Tiller’s approach (he heads Red Hat’s work in this area) is that while Red Hat continues pursuing some of its own software patents it does virtually nothing effective to stop them; it mostly talks about “trolls”, neglecting to recognise that many of these trolls that harass Red Hat are Microsoft-connected and Microsoft itself acts no differently than patent trolls, it’s only bigger. To really combat this problem we must speak about patent scope, not the scale of the plaintiffs.

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