Summary: Vesna Stilin speaks about her confrontation with EPO Vice-President Željko Topić, who has criminal lawsuits against him in Croatia
THE Croatian link in the EPO is causing some serious problems for the EPO, based on E-mails that we have received and will say more about in the future. The corporate media has joined the campaign to reform the EPO (potentially by letting heads roll) and people who are the victims of Željko Topić, the man faces criminal charges in Croatia, also speak out. This is important because he is the EPO Vice-President and simultaneously he is in the midst of very serious abuses that can potentially land him in prison.
Writing to IP Watch under the heading “Right of Reply”, Vesna Stilin, a famous victim of Topić, published the following item. To quote IP Watch and to give Stilin a voice that she deserves:
I refer to the article “EPO Internal Strife Spills Over Into European Parliament, Human Rights Court”, published by Intellectual Property Watch on 15 May 2014 (IPW, European Policy, 15 May 2014) and hereby request to exercise my right of reply by way of publication of the following statement:
Although the article is to be commended for giving a useful overview of the controversy surrounding Mr. Topić’s appointment as Vice-President of the EPO, several of the statements attributed to Mr. Batistelli and to Mr. Topić contain factually incorrect and/or misleading information. Moreover, in at least some cases it appears to me that these statements are damaging to my reputation and good name.
The claim attributed to Mr. Batistelli and Mr. Topić in the published article to the effect that the allegations which I have raised about Mr. Topić amount to a “smear campaign” is incorrect. My efforts in this regard represent a legitimate attempt to obtain legal redress, inter alia by means of judicial review, with respect to matters concerning my statutory rights as a citizen and as a former employee of the Croatian State Intellectual Property Office (SIPO). The legal actions which I have initiated in this regard have been widely reported on in the Croatian media in recent years and as far as can be determined, Mr. Topić has not made any request for a correction of the aforementioned Croatian media reports which he would clearly have been entitled to do under Croatian law if the allegations contained in these reports amounted to nothing more than a baseless and unfounded “smear campaign”.
The statement attributed to Mr. Topić according to which “Vesna Stilin was dismissed by the government of Croatia, not by me, from her position as my assistant at SIPO” is formally correct in so far as the power of appointment and dismissal of Assistant Directors of the SIPO lied with the Croatian Government. However, the statement is grossly misleading insofar as it obscures the key role which Mr. Topić played in the process of my dismissal from the SIPO. The fact of the matter is that the Government took its decision to dismiss me from my position based on Mr. Topić’s recommendation as set forth in two letters which he wrote to the former Croatian Prime Minister, Mr. Ivo Sanader: one of which was placed on the official record (abolishing Copyright and Related Rights Department, without any explanation, with less employees which has been contrary to the recommendation made by independent EU experts in field of Copyright and Related Rights and contrary of Topic’s statement in CARDS program No. 96022 and No. 60343 ) and a further version which was treated as “strictly confidential” with the evident aim of preventing disclosure of its contents to me (contrary to the Law on Access to Information) and which led to me filing a lawsuit for criminal defamation against Mr. Topić.
The statement attributed to Mr. Topić concerning my unsuccessful candidacy for the position of Director-General of the SIPO and his comments concerning the legal proceedings which I subsequently initiated in relation to this matter, including the remarks referring to “absurd complaints” with the ECtHR, amount to an unacceptable misrepresentation and trivialization of the facts of the matter which may be summarized as follows:
I applied for the position of Director-General of the SIPO in 2008. My application was submitted after Mr. Topić had unilaterally, contrary to the legal procedure, abolished the SIPO’s Copyright and Related Rights Department and thus my post as Assistant Director in charge of that Department. If Mr. Topić had not engineered the abolition of my previous post – which was used to justify my dismissal from the SIPO – I would have had no reason to apply for the position of Director-General.
In the decision Us-4201/2008-6 from September 24th 2008, the Administrative Court rejected my complaint against Mr. Topić’s re-appointment as Director General stating inter alia that I could not apply for the position because there had been no public vacancy notice. In subsequent proceedings concerning the same matter before the Constitutional Court, I submitted evidence that the lack of a public vacancy notice, in concrete situation was contrary to the applicable statutory requirements and the practice followed by the previous Government.
In the same complaint filed with the Administrative Court (Us-4201/08 from April 21th 2008), I pointed out inter alia that, at the time of Mr. Topić’s re-appointment, the Government had not been properly informed about certain actions on the part of Mr. Topić which prima facie appeared to constitute criminal acts under Croatian law, including a covert agreement with the former Minister of Science (in charge of inspection under SIPO, who suggests appointment/dismissal of Director General of SIPO to the Government), for whose benefit Mr. Topić had apparently arranged provision of an Audi 6 vehicle at the expense of the SIPO.
Following the various allegations which I raised in this regard, the Government demanded an official inspection of the SIPO in January 2009. However, this official inspection was never carried out as has since been confirmed in writing by the competent Ministry of Economy and Enterprise to which supervisory responsibility for the SIPO had been transferred. In an official Memorandum of February 3th 2012 which was signed by Mr. Topić himself, the nonexistence of the inspection of SIPO since 2008 was confirmed. In the absence of a proper independent official inspection into these matters by the competent Government Ministry, the assertion attributed to Mr. Topić according to which the allegations which I raised “have been rejected after examination as entirely unfounded” does not stand up to scrutiny.
Following the dismissal of my complaint by the Croatian Constitutional Court, which is the final domestic instance, I proceeded to submit an application to the European Court of Human Rights in Strasbourg (filed August 20th 2011) in accordance with my statutory entitlement as a citizen of a signatory state to the European Convention on Human Rights. This action is still pending before the European Court of Human Rights.
The article also contains a statement attributed to the EPO President Mr. Battistelli according to which neither the AC nor Battistelli knew of the allegations against Topić at the time of his appointment “but since the charges have been made public they have all been cleared” and a further statement attributed to Mr. Topić according to which “There are no civil proceedings or criminal charges against Topić in Croatia, and he has provided a required certificate showing no criminal record”. These statements are misleading because prior to Mr. Topic’s appointment to the EPO a second criminal lawsuit against Mr. Topic was pending in Zagreb. The evidence relating to this fact was communicated to the President of the EPO and the Administrative Council by the end of 2013 (Minutes of proceedings before the Criminal Court of Zagreb, May 4th 2010, No. K 163/09). This second criminal lawsuit against Mr. Topic was mentioned in two judicial decisions before the Criminal Court of Zagreb (May 31th 2010 No.K-163/09 and May 23th 2011 No.K-238/10) concerning the “defamation” version of my dismissal. Furthermore I also communicated the evidence of further criminal charges against Mr. Topić filed with the Croatian Public Prosecutor (January 9th 2013) to the President of the EPO and the Administrative Council. Under Croatian law, a criminal record is not registered until after a final court judgment has been made. As the aforementioned cases against Mr. Topić are still pending and have not yet reached that stage, this is the reason why he was in a position to provide the EPO with a certificate showing no criminal record.
The statement attributed to Mr. Topić according to which a private lawsuit which I initiated against him for alleged slander was dismissed with an order that I should pay all costs and legal fees is incorrect because suggests the issues underlying this lawsuit have been finally resolved before the Croatian courts which is not the case. The fact of the matter is that although the lawsuit in question was dismissed by the Appeal Court after being two times remitted back to the first instance from the Appeal Court, the decision of the Appeal Court forms the subject of a pending complaint which I submitted to the Croatian Constitutional Court on April 14th 2014. I have also lodged an appeal concerning the matter of costs which is likewise pending. Finally, there is a pending criminal complaint in which I challenged the veracity of the testimony provided by a witness who gave evidence in Mr. Topić’s favour and on which the impugned judgment relied. From these facts it should be evident that legal proceedings in relation to the above lawsuit are still ongoing before the Croatian courts and have not yet been resolved in a final manner contrary to what is implied by the above-mentioned statement of Mr. Topić.
I would be grateful if you could arrange for my response to be published in a suitable format and linked to the original article.
Stilin’s letter is framed as a rebuttal, but it actually serves to reinforce some of the other things published in the original article. Stilin preceded her article with the following words: “this letter is published under the legal right of reply of an individual referenced in a previous article published in Intellectual Property Watch. It is published upon her request.”
Being a statement from Stilin herself, we deem it quite an accurate representation of the Željko Topić affair. In the coming weeks we are going to publish more material highlighting what happened in SIPO and the role played by Željko Topić. █
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Summary: The abuses of Željko Topić, who has gained notoriety in his home country, are rapidly becoming public knowledge across all of Europe
THE trend changes for the better as blind support for the EPO is ending. People now realise just how rotten the EPO has become and there are various actions being taken by the public and even EPO staff (more on that in the coming weeks). Quite importantly, evidence is now coming to light so as to bolster the stories we have broken over the past few months.
The latest Croatian press article on this topic (of Topić), published by tjedno.hr on the 18th of October 2014, says quite a mouthful. Our sources have been working on getting an English translation which we now have. The photo in the article shows Topić on his way to attend a recent hearing at the Municipal Criminal Court in Zagreb and the last paragraph contains a mention of “articles published on Internet portals across Europe during the last month,” which our sources understand to be a reference to the recent series of publications by Techrights.
For readers’ information we finally have an English translation of this most recent article from tjedno.hr
[PDF]. Here it is in full, as plain text with rudimentary formatting:
ŽELJKO TOPIĆ AND HIS LIES IN MUNICH
Date: 18 October 2014
Six criminal lawsuits are pending in Croatia against the EPO Vice-President
Text: Portal Tjedno Research Team
Photography: Markus Wolf
According to publicly available information, “Master” Željko Topić, was appointed as Vice-President in charge of the EPO’s General Administration Department on 28 March 2012 with the vigorous support of the EPO President, Benoît Battistelli. At the time of his appointment, it is claimed that neither the EPO’s Administrative Council nor its President Battistelli were informed about certain interesting facts which have emerged in relation to Mr. Topić.
Nevertheless, according to an official statement by the EPO President, after the charges had become publicly known they were all clarified. Judging by the published photograph of Željko Topić accompanied by his lawyer from the Zagreb law firm Gajski – Prka – Saucha & Partners Ltd. which was taken in front of the Municipal Criminal Court in Zagreb on the morning of 29 September 2014, it would appear that things are not quite so clear.
A COURT APPEARANCE IN ZAGREB
In one of his recent public statements, published in May 2014 by a Geneva-based Internet portal specializing in intellectual property matters (www.ip-watch.org), “Master” Topić officially declared that there were no legal proceedings or criminal charges pending against him in Croatia. At the same time he claimed that he had presented the EPO with the required certificate of good conduct confirming there are no criminal convictions against him. Mr. Topić’s statements are, however, misleading for his employer. From the foregoing, it can be concluded that for whatever reason Željko Topić has grossly deceived his European employer in Munich by knowingly giving false information designed to obscure the truth.
We do not know how Željko Topić justified his absence from his workplace at the EPO in Munich on the day when he was caught by the photographic lens in Zagreb. We can only speculate as to whether he decided to take annual leave, sick leave or whether he may even have misled his employer perhaps by deliberately submitting a duty travel request for an official business trip to a meeting in Zagreb financed by EPO, knowing full well that his attendance was required at the Municipal Criminal Court. Judging by his publicly expressed claims that he is not subject to any criminal proceedings in Croatia, it is difficult to avoid the impression that he may have been economical with the truth concerning the real reasons for spending time in Zagreb on the Monday in question. Or, perhaps, he relied on the concept and plot of the movie “When Father Was Away on Business” by the famous director Emir Kusturica.
AT LEAST SIX CRIMINAL OFFENCES
For the time being we have no idea what the Municipal State Attorney General in Zagreb, Željka Pokupec, thinks about all this as she has been busy dealing with another matter falling under her jurisdiction, namely bringing a final indictment for the illegal procurement of a VW Touareg V6 against the person directly responsible for the supervision of the State Intellectual Property Office (SIPO), Mr. Dragan Primorac, one of Ministers in the then Government of Mr. Sanader. In connection with criminal charges filed with Office of the State Attorney, a reasonable suspicion was expressed in the criminal complaint to the Bureau for Combating Corruption and Organized Crime (USKOK) in Zagreb that Željko Topić may have bribed the former Minister Primorac with an Audi A6 vehicle in order to secure the renewal of his mandate as Director of the SIPO. In the course of this state-funded “re-parking” of official cars, Željko Topić “re-parked” a Mercedes for his own personal use as has been previously reported on by many media. The aforementioned and third pending criminal charge against Topić in the Mercedes case, has been gathering dust for several years on the desk of Željka Pokupec’s deputy, Sunčica Blažević.
The fourth known criminal charge against “Master” Topic which has been filed with the District Attorney’s Office in Zagreb has proceeded from the stage of “pickling” into the “fermentation” phase and is currently in the hands of Sineva Vukušić. The criminal charges filed with the District Attorney’s Office in Zagreb relate to the matter of allegedly unlawful changes to the structure of the state administration in the field of Copyright and Related Rights. Under the Criminal Code of the Republic of Croatia, the charges against Željko Topić in this particular case carry a maximum possible sentence of five years in prison.
According to the latest information from the state administration of the Republic of Croatia, a preliminary investigation has been conducted into another potentially very serious criminal case dating from 2005 which concerns the “disappearance” of a significant amount of financial assets and which involves a feasibility study from a Swedish* foundation relating to the strengthening of institutions entitled “A Feasibility Study for Restructuring the SIPO as a Self-Financing Organization”. We have learnt unofficially that this appears to have been an attempt at project financing for the private advantage of the former SIPO Director with the ultimate aim of separating this institution from the Treasury of the State Administration and attaching it directly to the financial “udder” provided by the WIPO and EPO. All those who have seen the document referring to the planned privatization of the SIPO under the direction of Željko Topić have noted its similarity to the HDS-ZAMP scheme of President Ivo Josipović. This document is currently being withheld by four Ministries of the Republic of Croatia which are said to be ignoring written requests for its release [under the Freedom of Information Act].
[* Translator’s Note: The reference to a “Swedish foundation” seems to be incorrect because reliable sources have indicated that the document referred to is in fact a feasibility study carried out by the Danish Patent and Trademark Office in the context of an EU twinning project.]
Thus, along with two further criminal charges against Topić by private plaintiffs, there are at least six criminal proceedings pending against him in Croatia as our portal has already reported. However, according to other sources, the number of criminal charges which have been filed against “Master” Topić may in fact be significantly higher.
THE OUTCRY AT THE EPO IS GETTING LOUDER
As we learned from our sources in Munich, Topić’s suitability for the office of Vice-President is “a fairly contentious issue” within the EPO. Taking into account various outstanding allegations and apparently uncontested newspaper reports, the general opinion of EPO staff is that there are many unanswered questions about Topic’s appointment. As we learned unofficially, EPO employees are also extremely frustrated about the situation because they feel that there is no adequate official response and they believe that “some kind of independent investigation” is required.
The EPO’s Administrative Council has remained completely silent until now and has taken no official position with regard to Topić’s case, which is very strange because it carries direct responsibility for the appointment and it is also the sole official EPO body which is competent to carry out investigations and disciplinary proceedings against the President and Vice-Presidents.
In addition, the relationship between staff and senior management of the European Patent Office (EPO) which has already been badly strained due to conflict with the President Benoît Battstelli, has been further complicated by the continuing presence of Vice-President Topić in Munich. In the meantime the controversy about Topić’s suitability for his current position has also reached the European Court of Human Rights (ECtHR) in Strasbourg and the Croatian NGO Juris Protecta (Association for the Promotion of the Rule of Law) has filed a petition with the European Parliament in Brussels.
Furthermore, it has emerged that when his first term of office as SIPO Director was due to expire in 2008, Topić had allegedly been involved in a number of unlawful actions leading to the expectation that his mandate would not be renewed.
Professional experts close to the case claim that Željko Topić should not have been reappointed because of previously observed “irregularities” in his management of the SIPO. However, the relevant information appears to have been suppressed and was not properly taken into account, because if it had been, it would have resulted in him being deemed ineligible for public office in the Republic of Croatia and beyond. Allegedly unlawful actions during his two terms of office as Director of the SIPO in Zagreb have never been fully and transparently investigated, and the Croatian Government appears not to have been duly informed in accordance with the statutory requirements. His penultimate term of office at the SIPO was renewed by the former “anti-corruption” Prime Minister of Croatia, Ms. Jadranka Kosor, despite the fact that before signing the decision of her Government to re-appoint “Master” Topić she had been warned about his allegedly corrupt practices.
Moreover, during the term of office of the convicted former Prime Minister Ivo Sanader, Jadranka Kosor had served as the Minister in charge of the government department responsible for supervising the SIPO and its former Director, Željko Topić.
WAS MINISTER JOVANOVIĆ SACKED BECAUSE OF TOPIĆ?
Using the same corrupt templates as Sanader’s government, the final disputed re-appointment of “Master” Topić as Director of the SIPO was approved by the Government of Zoran Milanović [in 2012] on the recommendation of the then competent Minister, Željko Jovanović. Moreover, the official procedure relating to his final re-appointment as Director of the SIPO was tainted by a series of deliberate legal deficiencies and unlawful acts and a lack of proper institutional supervision. Based on the limited information available from government circles, there are reasonable grounds for suspecting that the “Topić Affair” may have been one of the factors which contributed to the recent dismissal of the outspoken Minister Željko Jovanović. It can be concluded from the above that the HDZ and SDP have been playing the same long-standing personnel game in the civil service using the same deck of previously “marked” cards.
Whether by coincidence or not, the chef de cabinet of the Croatian Prime Minister – Tomislav Saucha – is the husband of one of the attorneys from the law firm of Gajski – Prka – Saucha and Partners Ltd. which represents Željko Topić in the pending criminal lawsuits in which he is involved. In addition to this detail, it is worth noting that an official of the Croatian Government – Mr. Milan Sentić, adviser to the Prime Minister for Co-operation with the Public – comes under the direct remit of Tomislav Saucha. Mr. Sentić would hardly have merited any attention here if it hadn’t been recently discovered that, instead of having been duly forwarded to the Prime Minister Milanović, citizens’ complaints concerning the case of Željko Topić have remained buried somewhere in the filing cabinet of this government advisor. It seems that the only person competent to determine whether or not the petitions against “Master” Željko Topić were hidden by Mr. Sentić on the orders of Tomislav Saucha (perhaps in response to verbal instructions coming from his wife – a lawyer on the team of legal “avengers” which represents the Munich-based “Master”) is the Prime Minister Zoran Milanović himself.
To conclude, the actions of Željko Topić referred to above appear to fulfil the definition of criminal acts under Croatian law. Who – and for what motive – has been successfully preventing his prosecution in Croatia for many years now? Answers to these serious and unresolved questions will hopefully be provided in the near future by some of the high-level EU institutions as has been suggested by numerous articles published on Internet portals across Europe during the last month.
Shortly after the above article we were contacted by Zagreb-based (Croatia) people who are familiar with this saga and sent us further information and some photos. These people were mentioned here before in a somewhat different context but a similar subject and they claim to be “an independent association called “No Corruption” [that] perform[s] monitoring of Croatian journalism.” These are real people with real names and they have shared their information with selected European groups, the European Commission, and journalism watchdogs. “Tracing your posts on the website techrights.org,” they said, “we are submitting you the following link [as above] from the Croatian Internet portal that talks about the same topic. However, what is more interesting than the text itself is the cover photo. On it, there is the incriminated person from your texts along with his lawyer who is from Zagreb. Why is this photo interesting? Let’s analyze this in the following order…
“Last year (2013) in June, the journalist Zeljko Peratovic published an article in English about Zeljko Topic entitled “A wrong man sitting at the EPO?” But the article has disappeared in March/April 2014 from the 45lines.com Web site.”
The reason, according to “No Corruption”, is that “Journalist Zeljko Peratović and corrupted Željko Topić was represented by attorney Mr. Janjko Grlic.
“There is a serious doubt that Mr. Željko Topić by the means of his lawyer Mr. Janjko Grlic had influence on his other client, journalist Zeljko Peratovic to delete (remove) the previously published article from the portal he is editing. There also remains a doubt with a very clear closed circle of indications that for the job of removing the article from the portal he received money, or a service of some kind in the form of past or future legal services by Mr. Janjko Grlic which were paid for by Mr. Zeljko Topic. The above-described actions can be considered corruptive, meaning it is a criminal offense.
“Given that this mentioned member of the Croatian Journalists’ Association is also a member of other international journalists’ associations, we are sending this letter to them as well because we believe that he should be dismissed from the ranks of professional journalists. At the same time we will ask for the whole of the EU and worldwide journalistic profession to be informed about this. It is interesting that Mr. Zeljko Peratovic in his work as a journalist presents himself as a great fighter for human rights and as an anti-corruption activist!?
“To conclude, the actions of Željko Topić referred to above appear to fulfil the definition of criminal acts under Croatian law.”“In addition, it is suspected that journalist Zeljko Peratovic by the means of the same lawyer for the purposes of corrupt Mr. Željko Topić “briefed”, meaning gave professional advice, on how to sue his colleague Mrs. Slavica Lukic at the Croatian Journalists’ Association Court. She is a journalist (“Jutarnji list”) who wrote very critically about Mr. Željko Topić’s criminal activity. The lawsuit was dismissed. It was observed also that on two occasions that journalist Zeljko Peratovic on his portal www.45lines.com, in a twisted and questionable manner, criticizes journalist Mrs Slavica Lukic. This negative writing by the mentioned journalist about Mrs. Slavica Lukic has a political background, and is the act of shallow and see-through retaliation against her husband, Mr. Milorad Pupovac.
“Finally, we wish to inform you about the perfidious way in which Mr. Željko Topić corrupts parts of the Croatian Justice (Commercial and High Commercial Court in Zagreb) where there are trials of high financial value within the scope of the rights of commercial property. We are enclosing photos with the names of judges. The photos were shot during the last year’s conference in EPO in Munchen. The invitation to the conference was sent by Mr. Željko Topić by means of EPO. The names of judges from the photos are associated with several lawyers and make up a sophisticated network of corruption in Croatia.
“Based on this, we believe that any further comment is superfluous.”
All the photographs are presented below for readers’ assessment. █
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CAFC may finally be seen as regaining some sanity
Summary: After SCOTUS gets involved in the Ultramercial case, the CAFC finally decides to actually serve justice rather than dogma
The Court of Appeals for the Federal Circuit (CAFC) has been by far the most zealously pro-software patents court, perhaps in the entire world. It’s where software patents originally came from.
Dennis Crouch, who is himself somewhat of a patents booster, sees the significance of a new ruling from CAFC. See his article titled “Federal Circuit: Novelty in Implementation of an Abstract Idea Insufficient to Overcome Alice”. This actually relates to a ruling from SCOTUS then (‘Alice’ to be specific), overriding a previous ruling from CAFC.
This is potentially a to-be-widely-cited decision that can be huge for software patents (or against them rather). There is lots of coverage in the press about it [1, 2, 3]. Here is one introduction to the case:
In tech, patent trolls do not settle for small victories; they tend to go big, claiming that their one vague patent gives them the rights over gigantic swaths of the digital world. One troll insists that it owns the patent that covers all podcasting. Another claims it can lord over the maker of any app that asks users to submit data. And a particularly bold troll has spent years claiming it owns the rights to the very concept of playing advertisements before a free online videos—and it has tried shaking down YouTube and Hulu for royalty payments.
As the EFF put it:
On September 9, 2009, a patent troll called Ultramercial sued a bunch of Internet companies alleging infringement of U.S. Patent 7,346,545. This patent claims a method for allowing Internet users to view copyrighted material free of charge in exchange for watching certain advertisements. Yes, you read that correctly. Ultramercial believed that it owned the idea of showing an ad before content on the Internet.
TechDirt did the best kind of coverage by being bluntly honest. “It looks like the Ultramercial saga may finally be ending,” it said. “As we’ve been covering for many years, Ultramercial held a patent (7,346,545) on watching an ad to get access to content, and it sued lots of companies. While a lower court rejected the patent, CAFC (the appeals court for the Federal Circuit, which handles all patent cases) overturned that ruling. The key issue: is something patentable if you take a common idea and just add “on the internet.” CAFC said yes. The Supreme Court asked CAFC to try again following its own ruling in the Mayo case (which said you couldn’t patent medical diagnostics). But CAFC still found the patent to be valid. Finally, earlier this year, following the Alice ruling, the Supreme Court gave CAFC a third try to get it right.”
It’s actually SCOTUS which deserves some credit here. The Ultramercial-friendly CAFC has ultimately wasted so much money of innocent people and businesses, showing the great harm of software patents. It’s only when Ultramercial faced the wrath of SCOTUS that the CAFC had to rule based on actual law, which to CAFC would be the exception (it is a very corrupt court in general, with plenty to show for it). █
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Summary: The corporations-serving GOP says that it wants a patent reform, but another reminder is needed of the futility of the suggested changes
THE WALL STREET JOURNAL, a GOP-leaning News Corp-owned paper, says that “Leading GOP Senator Says More Patent Reform on the Horizon”, but as we explained before, this is not an effective reform. Being on the GOP’s agenda, one can expect it to serve large corporations rather than public interests (which GOP is neither sympathetic nor apathetic towards because public interests often conflict with business/rich people’s interests). “The bill,” says the paper, “will likely add new responsibilities on plaintiffs filing patent-infringement suits. Among the possible additions: a provision requiring plaintiffs who lose their infringement lawsuits to pay the defendants’ litigation costs.”
This would be effective in preventing poor people or small businesses from suing, irrespective of their nature (e.g. trolls, startups, individuals). It hardly deters large corporations with a large budget; for them, legal costs are typically slush funds.
“It hardly deters large corporations with a large budget; for them, legal costs are typically slush funds.”This is of course better than no amendments to existing laws, but does it go far enough? It might not be enough to discourage big trolls like Nokia, which the paper above indicates is likely to use software patents for profit (article behind paywall). Nokia is already patent-trolling, with Microsoft’s help, by proxy, e.g. through MOSAID (now renamed “Conversant” because of its bad reputation). The European authorities have already been made aware of this and they warned Nokia.
Nokia seems to be following the footsteps of companies like Qualcomm, which got the attention of some pro-software patents the other day. █
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Summary: A look at highly dubious moves by EPO President Battistelli and his right-hand man Topić, whose abuses are becoming hard to oversee or even report
EARLIER this month we asked European readers lodge complaints about EPO management that continues a long tradition of abuse. Some new sources have since come forward and provided us with more information about corruption, so this series will go on and on, lasting until next year. We welcome more whistle-blowers and informed sources to come forward if they know something that we have not yet covered and we, in return, promise anonymity.
Staff that has been involved in rogue practices would obviously like to prevent colleagues (and the public) from finding out about it. Today we would like to present Topić’s letter regarding data protection
[PDF] and the accompanying body of text
[PDF], signed by Benoît Battistelli, who himself has a lot to hide (for reasons we covered beforein numerous parts). An annotated document
[PDF] is added, with highlighted text that reveals how Topić and Battistelli worked to prevent investigation of the EPO, essentially banning people from speaking to the press, conducting an audit, investigation, etc. Clearly, the Data Protection Guidelines at the EPO are of interest if one wishes to understand the lack of scrutiny and the lack of communication with the press. The corporate media largely abstained from covering very serious issues that are known but nobody really wishes to talk about. The EPO is corrupt. It’s a secretive institute, by design. Staff are actively discouraged from informing the public. Now, let’s dig a little deeper.
First of all a little bit of legal background.
Under Article 33(2)(b) EPC, the legislative competence to amend the EPO Service Regulations (i.e. the set of rules governing conditions of employment etc.) lies with the Administrative Council (AC). To quote The European Patent Convention: “The Administrative Council shall be competent, in conformity with this Convention, to adopt or amend: [...] (b)the Service Regulations for permanent employees and the conditions of employment of other employees of the European Patent Office, the salary scales of the said permanent and other employees, and also the nature of any supplementary benefits and the rules for granting them”
In plain English, this means that any changes to the Service Regulations are supposed to be subject to the oversight and scrutiny of the AC.
What Battistelli has done during his presidency is an introduction of certain wide-ranging internal measures by means of “Circulars” which are basically unilaterally-enacted Presidential decrees that have never been subject to any scrutiny or oversight by the AC. Not surprisingly, Battistelli is again imposing an authoritarian code of conduct inside the EPO.
One of these measures was Circular No. 342, the so-called “Investigation Guidelines” which effectively give the EPO President dictatorial powers to unilaterally initiate so-called “investigative processes”. He can even initiate “investigative processes” against senior EPO employees who have been appointed by the AC under Article 11 EPC.
Refer to the European Patent Convention which covers this in more details. In such cases he doesn’t even have to inform the individual concerned or the appointing authority (i.e. the AC) that an investigation has been initiated.
Circular 342 was never presented to the AC for approval. It was unilaterally enacted by Battistelli. This is again the hallmark of authoritarian reign. Of course this action on his part is completely illegal or “ultra vires” to use the appropriate legal jargon. The fact of the matter is that the AC no longer exercises any effective oversight over the President.
Whether this is due to stupidity or corruption, or maybe a combination of both, is an open question which we will not attempt to answer. Furthermore, challenges to these measures by EPO staff have to go to the ILOAT in Geneva which is completely clogged up. The current time required to process a case at the ILOAT has been estimated as 12-15 years. So staff can complain all they like about what Battistelli does but there is no longer any effective legal redress available to challenge unlawful acts by the EPO President.
The system of legal redress has become completely dysfunctional.
This state of affairs has led to some national courts starting to call the EPO’s jurisdictional immunity into question.
New DPGs at the EPO
Now let’s get back to the DPGs.
The most recent amendment of the EPO DPGs was announced by Mr. Topić on 2 April 2014 (see the PDF above). By a curious twist of irony, these Guidelines entered into force on 1 April 2014.
Although the EPO DGs pay lip-service to EU Data Protection Regulations, they are in fact much weaker. Under the EPO DPGs, all power is ultimately concentrated in the hands of the President.
For example look at Article 8, “Transmission to recipients outside the European Patent Organisation”. According to Article 8(4): “In cases of doubt, the President decides on the adequacy of the protection afforded by the relevant country or international organisation.”
According to the DPGs there is a Data Protection Officer (DPO) who enjoys “independence”. But this “independence is only nominal, i.e. it only exists on paper, because the DPO is a normal member of EPO staff appointed by the President and thus de facto under the control of the President.
There is no independent supervisory entity such as the European Data Protection Supervisor which exists under the EU Data Protection framework.
But there is an even more sinister aspect to the new DPGs which doesn’t get any mention in Topić’s announcement.
The new DPGs include a number of clauses which state that they do not apply in the case of “investigative processes”.
What this means in practice is the following:
- The President can at any time – unilaterally and subject to no oversight whatsoever – launch an “investigative process”.
- The practical effect of this is to override the DPGs.
In other words, the DPGs are subordinate to the “Investigation Guidelines”.
We think that this doesn’t require further comment or explanation on our part. █
Credit: anonymous source.
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Summary: A quick roundup of news of interest regarding software patents
THE SO-CALLED ‘Alice’ case has proven to be much more effective than Bilski because although In Re Bilski was sometimes used to eliminate a software patent here and there (examples exist) it happened nowhere as often as after ‘Alice’.
Dozens of law firms threw pieces of misinformation at the media shortly after the ‘Alice’ determination (we covered a large number of examples at the time), trying to deny that it had any impact on software patents. These were attempts at a self-fulfilling prophecy, but they were proven wrong. Now that ‘Alice’ is cited and used — successfully — in elimination of software patents in the United States the lawyers’ sites take another defensive approach such as this or that. Being lawyers’ sites, the headline “Section 101 Attack” (implying that the attackers are those who are against monopoly on algorithms) is not too shocking. They are trying to advise patent lawyers how to circumvent the new restrictions, with an introduction such as the following: “On November 3, 2014, in Cal. Inst. Of Tech. v. Hughes Communications., 2014 U.S.. Dist. LEXIS 156763 (C.D. Cal. 2014), Judge Mariana Pfaelzer penned the most thorough defense of software claims attacked under s. 101 that I have seen since State Street Bank. The opinion is also useful since it both continuously cites – and often distinguishes or explains Mayo—and because it is very critical of the analytical framework employed by the same court in McRO (Planet Blue) v Namco, a September decision on which I posted earlier. (A copy of this decision can be found at the end of this post.)”
If you are against software patents, then the patent lawyers view you as “attacking” them. Yes, it’s not those who monopolise and sue who are the attackers, but those who are trying to defend themselves. This wording is found in some of the highest tier legal papers, which probably shows just what level of contempt patent lawyers have for society at large.
Here is another legal publication writing not only about patenting software but also copyrighting it (applicable by default). It refers specifically to India, en ever-growing software giant where imperialistic lawyers (whose clients are rich multinationals) would just love to impose monopolies nf software (it’s usually non-Indian companies that can afford to file for patents and file lawsuits there, obviously against Indian people and businesses). India will hopefully never follow the trajectory of the US by embracing patents on algorithms.
Pay attention to this new Apple patent on a trivial software idea:
Apple has a new patent granted today by the USPTO (via AppleInsider) that details a method by which it can detect and keep track of mobile network dead zones via crowdsourced information. The technology is designed to give device makers and network operators a way to easily identify and counter low signal zones, by building out their network where it needs the most work.
Apple is increasingly becoming a software patents-wielding parasite, not a producing company. Thankfully, the US seems to be tackling the practice of patent trolling right now and Steph just got “a tip from an anonymous source that a certain company received a request from an NPE to permit disclosure of a license agreement to the FTC.”
We do not really believe that the FTC will be effective at tackling patent trolls, but at least it’s trying. There are signs of improvement and it’s not too delusional to allege or predict a wide-ranging patent reform, even with GOP majority. █
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Summary: The Grand Corporations Party, or the political party which serves large businesses that are funding it, continues to just focus on a mirage of a ‘reform’ rather than tackle the real issues where culprits include very large businesses such as Microsoft and Apple
THE GRAND CORPORATIONS Party (GOP), which is more pro-corporations than the Democrats, would have us believe that it will make the patent system better. Well, better for who exactly? Large corporations? It’s obvious that patent trolls harm large corporations, but what about the interests of individual people and what about massive corporations that are patent parasites? We have written so much about this subject for years and we nearly got sick of it when the corporate press only ever spoke about patent trolls as the issue but never about patent scope.
Here we have a new example of corporations that manufacture drugs that they sell at about a thousand times the production cost, having pretended to have done so much to deserve this while asking governments for protectionism. Here is the good find from TechDirt, which got a snapshot of the evidence before it vanished:
Yesterday afternoon, the twitter feed for “LillyPad,” which is Eli Lilly’s “policy” blog and Twitter feed, excitedly tweeted out a quote from Stefan Oschmann, an executive at pharmaceutical competitor Merck, who was just elected as the new head of the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) — basically, the big pro-pharma lobbying group. The tweet is no longer there, because LillyPad deleted it, but here’s a screenshot I took apparently seconds before it disappeared…
But it appears that Eli Lilly (and IFPMA) have no interest in being intellectually honest or having such a discussion. No, they’ve decided to stick to the ridiculous and bogus corporate line that patents are all butterflies and roses, and do no harm at all. What a wasted opportunity — even if it helped show the true colors of the current leadership of the pharmaceutical industry.
See the comments in there as well. Patents on drugs are probably some of the patents that are even more nasty and evil (they kill people) than software patents.
The Grand Corporations Party (“Republican”) is now shaping the USPTO and patent law to better suit large corporations, based on numerous reports such as these:
A Republican takeover of the U.S. Senate has brightened prospects for an effort to fight frivolous patent litigation, although the path to success is far from clear, sources close to the lobbying effort said on Wednesday.
The House of Representatives easily passed a bill in December to cut down on abusive litigation brought by patent assertion entities, or “patent trolls”: companies that buy or license patents, then aggressively pursue licensing fees or file infringement lawsuits.
That legislation, backed by technology companies like Cisco Systems Inc and Google Inc, stalled in the Senate amid opposition from drug companies and, crucially, lack of backing from Democratic Senate Majority Leader Harry Reid.
A centerpiece of the effort was a provision that encouraged judges hearing patent cases to award fees to the winners of infringement lawsuits.
Stop talking about “patent trolls” and talk more about patent scope. Here is another relevant report:
On the plus side for tech, with the GOP taking over the U.S. Senate, patent reform efforts received new life, as Mike Allen of Politico noted this morning.
“Now we’ll find out if Washington can move on patent reform, drone use and other big issues,” says the business press of News Corp. (owned by a billionaire to serve his and GOP-leaning agenda and Wall Street’s interests, i.e. the very top of the top 1% of earners). What kind of patent reform? All they ever talk about is “patent trolls”. They seem to mind the problem with patents only when theose benefiting are not funding (i.e. bribing) Senate/Congress. █
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Summary: Reports about patent trolls and scope of patents serve to show what the foes of Free software are up to right now
WE HAVE spent almost half a year covering analyses of the Alive case because it may signal the demise of software patents in the United States (home of software patents). Lawyers were consistently denying it would have an impact on granting/rulings, but facing the real facts they must now admit that they were wrong. One patent-wielding parasite, a law firm called Barnes & Thornburg LLP, wrote an article in a few sites of lawyers, concluding: “For patent litigation, the data are not as clear as the USPTO data, but data suggest that § 101 challenges to issued patents are becoming more common—as well as more likely to succeed. New patent litigation filed in September 2014 (329 cases) was a 40% reduction compared to September 2013 (549 cases).7 Over the past few years, new patent litigation cases are reduced over the summer but increase again in September. However, a post-summer increase did not happen this year. Although correlation does not equal causation, the Alice decision may make patent holders hesitant to file new litigation due to not wanting to proceed with possible invalid claims under § 101. However, Alice is not the only factor. The America Invents Act provided an alternative pathway to challenge patents–2003 inter partes reviews (IPRs) and 240 covered business method reviews (CBMs) have been requested since September 16, 2012.8 In the first two years, the PTAB has found all challenged claims invalid in 65% of the 126 final decisions. Thereby, there are most likely several contributing factors leading to the decrease in patent litigation, whereby Alice is probably one of several factors.”
What’s nice about this analysis is that it very much contradicts what many law firms foresaw or turned into what was their failed self-fulfilling prophecy. Things are not working out too well for them now. The incentive to patent software is now decreasing and based on this new analysis, even the government is now trying to stop the parasites:
Scanner Patent Troll Slapped On The Wrist By FTC; Told To Stop Misleading Behavior.
For a few years now, the FTC has talked about taking on patent trolls. In 2011, 2012 and 2013, we heard stories about the FTC putting patent trolls “on notice” and getting ready to crack down on them for deceptive practices. Last year, it finally “launched an investigation” into certain patent trolls, starting with notoriously crazy patent troll MPHJ, famous for its rather aggressive form of trolling, using a questionable patent on “scan-to-email” technology, sending out thousands of demand letters from a range of shell companies, telling lots of small businesses that they had to pay between $900 to $1200 per employee if they had a scanner with the “scan-to-email” function (most modern scanners).
Another troll and parasite, the Microsoft-connected MOSAID, is now mentioned in the site of one of the few patent lawyers who early on warned — correctly to his credit — that Alice would do a lot to harm software patents. Check out this part:
John Lindgren, President and CEO of Conversant (formerly MOSAID Technologies), was also on the first panel. He concurred that “the calculus has changed.” He and others on the panel recognized what everyone in the industry has been speaking about, namely that the market for acquiring patents is dead, at least from the point of view of the patentees. The agreement on the panel was that well run non-practicing entities are in a particularly good position to start accumulating patents at a steep discount. Lindgren also predicted that we will see consolidation of the industry both with respect to private and public companies in the NPE or patent monetization space. I concur completely. Recently I wrote about the inevitable rise of super trolls, or super patent trolls. The market is not going away and the actions of Congress and the Supreme Court, which have made individual patents worth far less, and portfolios likewise worth far less, will ultimately work to create the monster that all of this anti-patent activity was intended to prevent. But that is always what happens when politicians attempt to regulate an industry that they don’t understand and Judges are more interested in playing the part of super legislators.
Notice that they have renamed. Conversant is probably an attempt to dodge the bad publicity.
MOSAID is of interest to us because Microsoft has been trying to use it as a proxy, a bit like SCO. Microsoft arranged for MOSAID to receive many of Nokia’s patents, whose optimal and expected target would of course be Android/Linux. Our goal should be to eliminate such patents, not only such nasty trolls, as we are already seeing, as pointed out in the previous post, how protectionism is pursued in the courts, especially corrupt ones like CAFC. █
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