Summary: Another new development shows that more burden of proof is to be put on the litigant, thus discouraging the most infamous serial patent aggressors and reducing the incentive to settle with a payment out of court
THERE have been some victories recently against software patents. The patent lawyers have become either silent or rude. Well, the rude and shameless IP Watchdog is apparently upset by Steph, the patent trolls tracker who writes: “I don’t often get in fights on Twitter, but when I do, it’s with IP Watchdog because he’s a bully (only sometimes, but still) or with inventors who feel that any attempt at curbing patent trolls will adversely affect them and their ability to sue people who infringe on their ideas.”
As Pogson pointed out today, software patents are rapidly eroding in the US and last month there was an important development that Cory Doctorow draws attention to only now, spurring these remarks from Mike Masnick who wrote:
Judges Want To Make Life Harder On Patent Trolls: Want Them To Actually Have To Explain What Infringement Happened
I’d missed this one, but Cory Doctorow over at BoingBoing points our attention to the fact that, last month, the Judicial Conference voted to make a little-noticed change in patent lawsuits that should serve to make life more difficult for patent trolls. The details here are more complex than necessary, but the short version is that, under current rules, to file a patent infringement case, the initial complaint can be almost entirely bare bones: basically naming the plaintiff, defendant, patent and saying there’s infringement, but providing no real details on the infringement. That aids patent trolls, who often will file questionable lawsuits without even telling the defendant where the infringement occurs — leading defendants to have to go into the case a bit blind, and making it more appealing to just settle.
Earlier today IDG published an article by Simon Phipps. It relates to the above and days that “patent trolls have one fewer legal loophole to hide behind” (not just classic trolls, but also megatrolls like Microsoft, which often refuses to publicly disclose even patent numbers).
Things just keep getting better on this front. █
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Summary: Jesper Kongstad, Benoît Battistelli, and Zeljko Topić are uncomfortably close personally and professionally, so suspicions arise that nepotism and protectionism play a negative role that negatively affects the European public
THE scandals at the EPO are numerous and longstanding. Oversight is minimal if not inexistent and there is lots to be worried about. In this part of the series we wish to focus on Mr Jesper Kongstad. He is not quite what it seems on the surface. As we are going to show in later parts (weeks ahead), Kongstad became a target of interest in an ongoing investigation from the outside (Battistelli has already eliminated inside overnight).
“Oversight is minimal if not inexistent and there is lots to be worried about.”The Kongstad situation will today be mentioned in brief. It will be covered without yet mentioning that investigation (intentionally unnamed) as there are some ongoing developments that would be better off covered when it’s all finished and concluded. There is no longer a problem in mentioning the Kongstad situation as the information about earlier links to the Croatian SIPO is publicly accessible. Kongstad’s close links to Battistelli have also been mentioned on the IPKat blog which said three months ago: “Back in 2010, when Benoît Battistelli was first appointed as President of the European Patent Office (EPO), there was a certain lack of transparency in the election process. As a blog post by IAM Magazine reported at the time, mischievous rumours quickly emerged from the EPO staff union newsletter (PDF link) to fill the vacuum of information regarding the circumstances of Mr Battistelli’s appointment.
“Battistelli’s original contract was negotiated in secret with Mr Jesper Kongstad, the then Acting (and now actual) Chairman of the Administrative Council. It was rumoured, intriguingly, that the contract specified that Mr B’s place of employment was the Parisian suburb of Saint Germain-en-Laye (the town of which he was deputy major, the spiritual home of football team Paris Saint-Germain and the birthplace of Louis XIV, the Sun-King), and that it contained an annex granting him full pension rights at the end of his five-year contract. While Merpel, whose nine lives invariably make any sort of pension annuity unaffordable since the pension must last so much longer than expected, can see the attraction of having full pension rights after a relatively short employment stint, she wonders what advantage or reason could lie behind deeming Mr Battistelli’s place of employment to be 700 km west of where his office is actually located, if there is any substance behind that improbable rumour. The union newsletter, SUEPO Informs, also reported that Mr Kongstad refused to show the final contract negotiated with Mr Battistelli to the Administrative Council (‘AC’), despite repeated requests by its apparently quite powerless members.”
The EPO’s staff representatives have initiated contact with investigators by now. This was mentioned very briefly in the print version of the article published in “Die Welt” on the 24th of August (entitled “Stress at the Munich Kremlin”). We covered this before, so it’s not completely secret that outside investigators may be starting to show an interest in the EPO’s mysterious conduct (or misconduct).
Our sources have more to say about this. Their research indicates that the EPO President Benoît Battistelli, formerly the Director of the French INPI, and the Chairman of the Administrative Council, Jesper Kongstad, who is the current Director of the Danish Patent and Trademark Office, have long-standing professional connections with Topić. This gives rise to the suspicion that Battistelli and Kongstad are putting professional and/or personal loyalties before the public interest in this matter and are colluding to prevent any independent investigation of Topić’s appointment.
The 2009 annual report of the Croatian State Intellectual Property Office records details of a study visit of senior Croatian officials of the authorities for the enforcement of intellectual property rights to the partner Danish institutions in Copenhagen and a return visit by Danish officials to the partner Croatian institutions in Zagreb. It also includes this mention of a “twinning project” between the Danish Patent and Trademark Office and the Croatia SIPO which took place in the context of a European Union Assistance Project
The Web site of the Danish PTO confirms the existence of the Croatia twinning project. The Danish PTO website also provides evidence of co-operation between the Danish PTO and the Croatian SIPO going back as far as 2004.
A further spicy detail in this saga is the fact that Topić’s former deputy at the Croatian SIPO, Ms. Romana Matanovac Vučković, has been working as a consultant on an EU-funded project co-administered by the Danish PTO.
According to her personal Web site: “Since 2013, she has been cooperating with Pohl Consulting & Associates GmbH from Berlin and the Danish Patent and Trademark Office as a consultant in the project of legal assistance in the field of intellectual property at Kosovo, also funded by the European Union.”
The EU Kosovo project has a budget of ca. 1 million Euros [1, 2]. Ms. Matanovac Vučković was previously a deputy Director of the Croatian SIPO under Topić (ca. 2005-2008). During that period, she was also Croatia’s “alternate representative” to the EPO’s Administrative Council as confirmed by the following extract from the EPO Official Journal 2008: “During her time at the Croatian SIPO, Ms. Matanovac Vučković acted as head of an official body under the SIPO’s remit which was called the “Council of Experts on Remunerations for Copyright and Related Rights”. This appointment was controversial in Croatia and it was alleged to be unlawful due to a “conflict of interest” because Ms. Matanovac Vučković had previous worked for the Croatian Composers’ Society (HDS) and the private company “Emporion” which was involved in managing musical royalty payments. According to informed sources, her previous employment should have disqualified her from an appointment to the Council of Experts. It was claimed in the Croatian press that Ms. Matanovac Vučković only secured the position due to her connections with the Croatian President Ivo Josipović.”
Sources (in Croatian) can be found here and the English translation was published by us last week.
More information is to follow next week, reinforcing the allegation that the EPO’s abuse goes all the way to the very top. █
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Summary: It has become increasingly official that software patents are being weakened in the United States’ USPTO as well as the courts; will software leaders such as India and Europe stop trying to imitate the old USPTO?
YESTERDAY we wrote about the measurably huge decline in the number of patent lawsuits in the US. There is some more good news in the form of figures.
Andrea Peterson, writing for the Bezos-owned Washington Post, says that “Software patent approval rates sink in months following Supreme Court case”. The patent lawyers, understandably, are stressed about this. They spent so much time attacking the decision or trying to characterise it as anything but a game changer. We gave dozens of examples at the middle of this year. Here again are a couple of patent lawyers using a straw man: “it is doubtful that all software, computer-implemented and business method inventions will be affected by Alice. For example, software inventions that improve the functioning of a computer, or improve other technical fields, may still be eligible for patent protection. Still, while the full effect of Alice is yet to be determined, entities seeking to patent inventions directed to software, computer implementations, and business methods, need to ensure that inventions are sufficiently innovative and directed to concrete ideas.”
“The patent lawyers, understandably, are stressed about this.”Mike Masnick already caught the news from the morning and wrote: “The impact of the Supreme Court’s ruling in Alice v. CLS Bank continues to reverberate around the industry. We’ve already noted that courts have been rapidly invalidating a bunch of patents, and that related lawsuits appear to be dropping rapidly as well. And, now, a new analysis from a (pro-patent) law firm suggests that the US Patent Office is rejecting a lot more software patents as well.”
Software superpower India does not have software patents, but after meeting executives from Microsoft (which has enormous influence over the Indian government), Amazon, Facebook and other patent aggressors it looks like things may change. According to this article about Modi’s trip to the US:
The US-India Joint Statement signed during Modi’s visit to the US has opened the doors for two Indian laws that have been passed by the Indian Parliament. One is on patents – the Indian Patents Act – that contain some measures to keep drug prices low for the people, which the US and its pharmaceutical industries have been trying to change for the last decade. The second is on nuclear liability, again anathema to the US nuclear industry.
Here is a little something about privacy too: “The Modi visit is also important for what he did not raise with the US government. There was no mention of the NSA spying in India, which included the BJP as well. There were six political entities in the world that the NSA spied upon officially, and one of them was the BJP. India is also one of the 33 countries that have signed a 3rd Party agreement with NSA giving it access to our telecommunications and Internet infrastructure. That means India not only allowed NSA to spy on any entity or any person in India but also provided them the physical access required for such spying. Modi not only did not utter one word of protest against such spying against his own party, but also made clear his intention to continue such relationship under Defence and Homeland Security clauses of the Joint Statement.”
It is sad to say this, but India seems to be assimilating to the US system when it comes to patents and also when it comes to militarisation and surveillance.
As we showed before, the corrupt EPO is bringing Europe closer into alignment with the corporations-run USPTO while the USPTO itself is moving away from software patents these days. We covered this aspect of the situation several weeks ago.
Our next post will focus on some more scandals from the EPO. █
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Summary: Google takes its fight over API freedom to the Supreme Court in the Unites States and it also takes that longstanding patent harassment from the Microsoft- and Apple-backed troll (Rockstar) out of East Texas
“Google makes a series of compelling points in its petition,” writes Simon Phipps in relation to Google’s defence against Oracle (SCOracle, continuing the tradition of SCO’s copyrights misrepresentation). Google has found some material errors in interpretation of laws/cases, citing the corrupt CAFC with its utterly ridiculous ruling that we covered at the time. “These points alone seem strong to me,” says Phipps, “[b]ut Google also says CAFC has made a serious error that ignores the precedent of earlier SCOTUS decisions and violates the distinction between copyright and patent as monopolies.
“On the first point, Google refers back to the SCOTUS Lotus v Borland case in 1996. Google points out that “methods of operation embodied in computer programs are not entitled to copyright protection,” then asserts that the Java class APIs are a method of operating the Java class implementations. Since Android’s implementations of the Java APIs are Google’s original work, the company claims copyright does not apply.”
Oracle in the mean time is grabbing some talent from Google and it is not yet clear if there will be a SCOTUS case (the request for appeal may be denied). It is clear that CAFC does not understand software APIs or maybe it is just too corrupt (which becomes an accepted view these day), so this appeal has merit. As Pogson explained: “Copyright should not apply to other’s works. If you write software to work with some API, no other authour should be able to forbid that or to tax that. Yet, that’s what Oracle wants to do and they found a lower court that agreed with that despite that being an illegal extension of copyright to others’ work. Stranger still, Java is FLOSS…”
Here is some of the earliest coverage:
The legal fracas started when Google copied certain elements—names, declaration, and header lines—of the Java APIs in Android, and Oracle sued. A San Francisco federal judge largely sided with Google in 2012, saying that the code in question could not be copyrighted. But the federal appeals court reversed, and ruled that the “declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection.
This goes beyond patents and into copyrights on ideas/words. Oracle should not be allowed to win this as the is not just about Android but about software development in general.
Do remember that Oracle is in a pact with Microsoft and Apple when it comes to patents. They share control over CPTN, which is made out of Novell’s patents. There is a similar arrangement around Rockstar, which also involves Apple and Microsoft (Apple, Microsoft, Ericsson, RIM and Sony is the complete list). Joe Mullin says that Rockstar too is still harassing Google (Android) and Google has just managed to take the lawsuit of of the capital of trolls, East Texas:
It’s been nearly one year since Rockstar Consortium, a patent holding company owned in part by Microsoft and Apple, launched a major patent assault against Google. Now, the issue of where the case will be heard has finally been resolved—in Google’s favor.
Google took the case to the nation’s top patent court to get it out of East Texas and back to its home state, California. The matter of venue isn’t a mere sideline skirmish. East Texas courts are generally considered tough on patent defendants, with few cases resolving on summary judgment, stringent discovery rules, and last-minute scheduling decisions. Google’s Texas case was scheduled to be heard in front of US District Judge Rodney Gilstrap, who hears far more patent cases than any other district court judge in the nation.
The war against Android is a big deal for those of us who care about Free software and GNU/Linux. Let’s not lose sight of the fight against this kind of abuse. Public apathy helps crooked judges and abusive companies like Oracle, Microsoft, and Apple. █
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The “genius” behind the infamous “one-click shopping” software patent
Summary: The barrier for acceptance of software patent applications is raised in the United States and patent lawsuits, many of which involve software these days, are down very sharply, based on new figures from Lex Machina
While some software patents survive the SCOTUS ruling in the Alice v. CLS Bank case (notably in banking), many software patents are being invalidated and applications fail (not many software patents are being granted, despite 92% of all patent applications ending up being granted as rubber-stamped patents). Existing holders of software patents may be reluctant to sue, knowing that any lawsuit may deem these patents invalid and hence incapable of imposing the signing of patent deals or serve as deterrents. As Timothy B. Lee put it the other day:
The patent office is rejecting a lot more software patents
A June Supreme Court decision on the legality of software patents has been sending shockwaves through the legal system. The case, called Alice v. CLS Bank, has led to a bunch of lower court decisions invalidating software patents. It may also have been responsible for September’s sharp decline in patent lawsuits.
The decision appears to be having another effect that could be even more important in the long run: it’s causing the patent office to reject a lot more patents on “business methods,” a category of software patent that is notorious for its high litigation rate. While that might be bad news for the people seeking these types of patents, it means that there could be a lot fewer patent troll lawsuits over the next two decades.
Here are some new figures that indicate massive decline in patent lawsuits after the Alice case:
Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.
After reaching a record high of 675 new cases filed in April 2014, filings over the last five months have tailed off significantly (see Figure 1).
Month-over-month comparisons of 2014 and 2013 reveals lower 2014 monthly totals since May (see Figure 2).
Here is the former author, Timothy B. Lee, addressing this matter:
In a June decision called CLS Bank v. Alice, the Supreme Court called into question the validity of many software patents. Since then, there have been over a dozen lower-court decisions invalidating software patents.
New data from the legal analytics firm Lex Machina suggests that the newfound judicial hostility toward software patents is making plaintiffs gunshy:
Patent lawsuits in September were down 40% from last year
Here is the trolls expert writing about it.
“Months after Alice v. CLS Bank, patent litigation has hit a near-record low,” explains Joe Mullin. “The drop comes shortly after new patent rules came down from the Supreme Court. Most notably, the Alice v. CLS Bank decision made it clear that courts shouldn’t accept “do it on a computer”-type patents as valid. That’s resulted in nearly a dozen patents being tossed out in a short period of time, and some patent trolls with dubious patents aren’t bothering to fight it out anymore.”
One other site, a front group for corporations, focuses on patent quality when slamming an Apple patent that was used against Android (and Linux by extension). Levy asks, “remember that “pinch to zoom” patent that Apple tried using against Samsung? That was filed on January 7, 2007.”
He shows a video about it and he adds: “The Jeff Han video clearly discloses pinch to zoom, nearly a year before Apple filed its patent application. While it’s true that the patent was eventually invalidated, it should never have issued. (And I’m sure there are many more “gesture” patents that are disclosed in this video, too.)”
Finally, Levy says: “If we’re serious about patent quality, examiners need to be able to find everything that’s out there. There are software tools to screenshot videos, and people could be hired to transcribe them. But examiners don’t have that help, and, in fact, many patent examiners are using outdated, inefficient equipment and software. It’s no wonder patents like “pinch to zoom” get issued.”
It sure looks like things are changing when it comes to patent bar (not barristers but bar for quality), though apparently only in the area of software. █
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Summary: Patent propaganda and deception from patent lawyers (among other parasites such as patent trolls) continues to flood the Web, intersecting with reports that prove them totally wrong
Generalisations are never a good thing, but the vast majority of lawyers are greedy and self-centered. I can now say this based on personal experience (I will publish details later this year). The vast majority of them can only pretend to be something else (striving for ethics) and a small majority might actually be genuinely ethical. The typical lawyer’s goal it to maximise profit, nothing else (unless it brings publicity, hence profit at some future date). Anything he or she would say (often verging on lies) is designed to align with this goal but must be disguised as something else. They’re good with words. They love money. That’s why they decided to go to law school.
“They obviously don’t like to accept the reality that software patents are on the decline.”Patent lawyers are probably worse than most lawyers because they typically serve businesses and rich people. And look at what they do; they help acquisition of monopolies. It’s engagement in class war. They obviously don’t like to accept the reality that software patents (monopolies on algorithms) are on the decline. That is why they use straw man arguments, such as tackling bogus arguments that software patents are now “dead” (they are not) or as yet another lawyer put it, “Software Patents are Only as Dead as Schrödinger’s Cat”. Nowhere have we seen anyone claiming that software patents are dead, but this pro-software patents Web site finds such a straw man arguments useful. To quote: “The environment for patent applicants and examiners that has resulted from such inconsistent treatment of Alice by the USPTO is one in which neither examiners nor applicants have clear guidance about how the USPTO is interpreting and intends to apply the Alice decision. This makes it difficult for examiners to know whether and how to issue Alice-based rejections, and for applicants to know how to respond to such rejections. In this environment, software patents are not dead; instead, they are, like Schrödinger’s cat, in an indeterminate state, simultaneously dead and alive until examined by an observer.”
That is at least a more balanced article than previous ones from the same site, which take for instance just software patents in specific fields (like banking). It’s a lie by omission. They’re being selective to generate propaganda in their headlines and ultimately they bamboozle the world.
There is a lot of software patents propaganda following the SCOTUS decision and the large share it comes from patent law firms, as we demonstrated months ago (we gave dozens of examples). Do not let them win the information war as they did after In Re Bilski. They want to redefine what’s true.
Over in India, where software patents are definitely not legal, patent opportunists continue to pollute the press with ideas for patenting software patents and using them offensively, thanks to loopholes. Here is one ho says: “From both the cases, we can conclude that, patent rights may be enforced even though one of the elements in the claimed system or method is located outside the territory of the patent, provided that the beneficial use of the system occurs within the territory of the patent granted.”
Here is the messenger’s introduction:
About the author: Mr. Kartik Puttaiah has more than 17000 hours of experience in patent consulting.
On the other hand we have the strongly anti-software patents people, including Timothy B. Lee who published this long new series titled “Everything you need to know about software patents”. Here are the parts of this series:
What are software patents and why are they controversial?
Are software patents legal?
Why do so many patent lawsuits involve software?
Are software patents needed to promote innovation?
Could the patent office do more to scrutinize patents after they’ve been granted?
Do other countries allow patents on software?
You didn’t answer my question!
This is a good series and it helps explain where we stand. Sadly, however, Timothy B. Lee is being outweighed by a barraged of self-serving spam from law firms. That’s what the press is saturated with, maybe outnumbering writers like Timothy B. Lee by a factor of 1:5.
Meanwhile, reveals Mr. Levy (patent lawyer), there is a new lobbying group misleadingly named “Innovation Alliance”. It is actually a front for patent trolls and as Levy puts it, data does not back their claims, so they make stuff up:
The Innovation Alliance (an organization whose members include large patent trolls such as Tessera, InterDigital, and Qualcomm) has been pushing against patent reform in the name of the small inventor. They even have a Save the Inventor website set up. (And no, I’m not linking to it – you can find it easily enough.)
Patent reform does not make it harder for legitimate patent infringement suits. And should we really avoid helping 3,700 operating companies because about a dozen patent owners a year might be slightly worse off than they are now?
Seems to me it’s up to the Innovation Alliance to prove there’s really an invention-copying problem before we derail attempts to deal with patent trolls.
As Simon Phipps from OSI points out, patent trolls are now feeling the pinch because software patents (their typical ammunition) are on the decline, which of course helps the Free software world and empowers OIN, too. It definitely is very bad for patent lawyers. Whatever is bad for patent lawyers is usually good for society (if not always). What does that say about patent lawyers? █
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Summary: How the European Patent Office facilitated the inclusion of previously-connected elements that are best known for misconduct and dirty politics
WHEN we last wrote about the Battistelli-run EPO we provided evidence to show that the EPO had gone rogue. But just how rogue has it gotten? Let us recall who makes up the management in the EPO and look at some professional (or rather unprofessional) background, as we did in the first part of this long series.
We believe that readers will find the appended text useful, especially now that an English version exist and people can be brought up to date based on the original sources. First, here is some text prepared to summarise developments which occurred over the last year or so. Original (Croatian language) text is available online, but here is the English translation:
How Josipović protected Vojković:
Associate of Josipović who exercised supervisory control over HDS-ZAMP* on behalf of the Government was a former employee of ZAMP and EMPORION
The research associate of Ivo Josipović and former employee of HDS-ZAMP, Romana Matanovac Vučković, omitted information from her curriculum vitae concerning her employment in the company Emporion Ltd., owned by Marko Vojković, a friend of Josipović. In an interview with Index journalist, she confirmed that she omitted this information because she considered it to be irrelevant. It turns out, however, that it is precisely this information which is of crucial importance because it confirms the claims of Vesna Stilin, former employee of the State Intellectual Property Office (SIPO), that the appointment of Romana Matanovac Vučković to the position of head of the Council of Experts for Copyright and Related Rights was illegal.
The rules which applied to others did not apply to Josipović’s associate, Romana Matanovac Vučković
To remind our readers, Romana Matanovac Vučković was appointed to the aforementioned position in 2005, after leaving HDS-ZAMP, while in the meantime she worked at the Zagreb School of Law. According to the Law on Copyright and Related Rights an independent expert should be appointed to the position of head of the Council: “The Council of Experts is not a lobbying body to which representatives of interested parties or government bodies may be appointed, but only and exclusively independent experts.”
However, Romana Matanovac Vučković was given this position despite being a former employee of HDSZAMP and Emporion, which, at that particular moment, was under inspection by the Ministry of Finance and the SIPO because of suspicious payments.
In a letter from whistleblower Vesna Stilin, it was noted that prior to the appointment being made, in response to the publication of the vacancy notice for the position being the then director of HDS-ZAMP, Tomislav Radočaj, and Mirjana Puškarić, an official of the SIPO, submitted their applications.
What proved to be a stumbling-block for Tomislav Radočaj, did not prevent the appointment of Romana Matanovac Vučković.
In a petition which Stilin sent to the Ministry of Finance, the Office of the President, the Prime Minister and the Minister of Science this week, it is claimed that the SIPO turned a blind eye to this illegal practice. When warned about the impermissibility of Romana Matanovac Vučković’s appointment to the Council of Experts , the sole inspector in the SIPO responded laconically: “She is a special case!”
In her petition to the highest state officials Vesna Stilin, the former assistant director and one of the founders of the Croatian State Intellectual Property Office claims that “the Director General of the SIPO [i.e. Topić] misrepresented my aforementioned warning [about the Council of Experts appointment] as ‘seriously disturbed relations with the Deputy Director’ [i.e. Romana Matanovac Vučković]”.
French expert concluded that Matanovac must resign
It is noted that the appointment of Romana Matanovac Vučković was the subject of repeated discussions within the EU CARDS project for Copyright and Related Rights and the conclusion of Patrick Boiron, chief advisor for the aforementioned project, was that Romana Matanovac Vučković should resign as head of the Council of Experts because of the specified legal prohibitions, and in particular in view of the fact that she had once worked for HDS-ZAMP whose fee list is based on the Council’s advice, all of which raised reasonable doubt about her impartiality.
According to Vesna Stilin, Boiron argued that such an appointment would not have been accepted in France because in the case of Romana Matanovac Vučković not only was there was one legitimate reason for objection, but two [i.e. previous employment at both HDS-ZAMP and Emporion]. Apart from breaking the law by appointing an official subject to a conflict of interest, the SIPO turned a deaf ear to the suggestions from the EU to hire an increased number of official/inspectors (at least 5) for the Department of Copyright and Related Rights. Only one inspector was appointed, which according to the opinion of Vesna Stilin, continued the illegal practices concerning the appointment of SIPO officials. It seems that such appointments were intended to ensure that the supervision of HDS-ZAMP was kept under the control of a very small circle of people.
How did ZAMP obtain official documents?
In order to demonstrate the problematic nature of the connection between the SIPO and HDS-ZAMP, Vesna Stilin drew attention to the issue of illegal leaking of official data from the SIPO to ZAMP. In her petition she stated that a confidential SIPO letter relating to the “Emporion case” was recently published on HDS-ZAMP website as proof that business cooperation between ZAMP and EMPORION was legal. Vesna Stilin warns that this was a violation of the law because “HDS-ZAMP was not supposed to have been given this official letter at all!”
She recalls that “the correspondence between the two government bodies, the Ministry of Finance and the SIPO, according to which each conducts the inspection of HDS-ZAMP within its area of responsibility, should not be available to HDS-ZAMP, especially if one of the government institutions has expressed its doubts about operations of the association in question and requested the verification of their suspicions by another state institution.”
“I was bribed!”
In her petition to the Ministry of Finance, Vesna Stilin also expresses concerns about the possible corruption of the staff of the SIPO. She describes one example of this. In June 2006, during the visit of a Macedonian delegation to the SIPO in connection with HDS-ZAMP, in response to a question from the head of the Macedonian delegation Olga Trajkovska to the sole Office inspector asking “how was her cooperation with ZAMP”, the SIPO official gave the following cynical reply:
“Excellent, I was bribed and we have great cooperation!”, the petition states.
Vesna Stilin noted that this statement was uttered in front of several members of the Macedonian and Croatian delegations, so she informed the Director General of SIPO [i.e. Topić] about it, as well as the State Attorney’s Office and Prime Minister Jadranka Kosor. Despite the fact that she has written on more than one occasion to the Ministry of Finance, the State Attorney’s Office, President Josipović and Prime Minister Milanović, Vesna Stilin has received no response to her letters.
Željko Topić remains in office as Director General of the SIPO despite the fact that he was appointed as part of the HDZ contingent [i.e. under the previous HDZ government of Ivo Sanader], while Romana Matanovac Vučković has left her position at the SIPO in the meantime. Today she works as assistant professor at the Faculty of Law in Zagreb at the Department headed by Tatjana Josipović, the wife of the Croatian President.
* Croatian: Hrvatsko Društvo Skladatelja – Zaštita Muzičkih Autorskih Prava HDS-ZAMP (Croatian Composers’ Society – Protection of Musical Authors’ Rights) is a “collecting society”, i.e. a professional service that deals with the exercise and protection of music copyrights and royalty payments on the basis of the approval of the State Intellectual Property Office and in line with the Copyright Act.
In October 2013 the Croatian NGO Juris Protecta made a submission to the EPO’s Administrative Council (AC):
Ladies and Gentlemen,
Members the EPO Administrative Council
and Staff of the EPO,
As students of the “Arbeits- und Wirtschaftswissenschaftlichen Aufbaustudiums” (AWA) at the Technical University of Munich during the 1970s we followed the construction of the headquarters of the European Patent Office with respect and pride. This building was intended to be centre for the protection of intellectual property in Europe. Many of my colleagues subsequently became patent attorneys. Unfortunately, on the occasion of the 40th anniversary of the signature of the European Patent Convention, we are forced to conclude that our initial admiration no longer seems to be justified in view of the current composition of the senior management team of that institution.
It is our sincere belief that least one of the members of the senior management team does not properly belong there. That person is the former director of the Croatian Patent Office in Zagreb, Mr. Zeljko Topic. Unfortunately, it is common practice in Croatia that the leading positions in the state administration are reserved for people who have close links with the regime and connections to the mafia-like vested interest lobbies and it was in this manner that Mr. Topic, who comes from the provincial town of Banja Luka in Bosnia, began his career at the Patent Office in Zagreb.
Mrs. Vesna Stilin, a career civil servant, worked in the Croatian Patent Office since its inception in 1992 as Deputy Director General, later as an Assistant Director General until she was dismissed from her position in April 2008 by Mr. Zeljko Topic who at that time had risen to occupy the position of Director General of the Patent Office, again. At that time Mrs. Stilin had been on regular annual leave. Upon returning from vacation, she discovered that her office had been cleared so that she could not resume her work. The reason behind Mrs. Stilin’s expulsion appears to have been due to the fact that she had previously applied for the position of the Director General coupled with her attempts to draw attention to various breaches of duty and violations of the law alleged to have been committed by Mr. Topic, who had also been a candidate for the position of Director General. The alleged breaches of duty and violations of the law committed by Mr. Topic subsequently became the subject of several administrative and judicial proceedings. Mrs. Stilin has collected voluminous documentation about these matters and this documentation is available to anyone who is interested.
Under strong lobbying from the Croatian President, the newly elected socialist government decided to extend the mandate of Mr. Topic in 2012 despite that fact that the Croatian media had reported on numerous irregularities in which he was alleged to have been involved as Director-General of the Croatian Patent Office. There were reports of various official investigations, inter alia concerning allegations about the bribing of the Croatian Minister of sciece Dragan Primorac, whereby the Patent Office under the direction of Zeljko Topic provided the Minister and his wife with a brand new Audi A6 car free of charge. Mr. Topic was also alleged to have also taken possession of a new Mercedes Benz Limousine after the expiry of the lease agreement between the Patent Office and the leasing company.
It appears that various anonymous letters concerning these matters have been submitted to the German Ministry of Justice and the European Patent Office. However, so far the investigation of the circumstances surrounding the appointment of Mr. Zeljko Topic as Vice President of the EPO has only been carried out in a very superficial manner. According to internal and external reports, the current President of the EPO is protecting the disputed Vice President Topic. Against this background, the motives which induced the incumbent President to endorse Mr. Topic’s candidature as Vice-President must be questioned. Certainly it cannot have been due to his professional competence. It would also be necessary to examine whether or not sufficient research had been carried out into Mr. Topic’s previous activities prior to his appointment as EPO Vice-President. It seems that during the selection procedure for the Vice President Mr. Topic was considered as the clear favorite from the very start. If that is the case, it would amount to a serious error of judgement on the part of the incumbent President who will have to face the consequences.
We therefore propose that an independent investigation should be carried out under the direct supervision of the Administrative Council with the aim of clarifying the circumstances surrounding the selection and appointment of the disputed Vice President Topic. Such an investigation should include within its scope an examination of the role played by the incumbent President of the EPO in the affair.
The undersigned remains at your disposal should you have any further queries concerning the above matters.
JURIS Protecta e.V.
Association for the advancement of the rule of law in Croatia
Tel +385-98-212 449
Juris Protecta made a further submission to the AC in December 2013 and said: “It seems as if Balkan practices in appointing senior officials have now become an accepted European standard. ”
URGENT AND IMPORTANT!
Dear Ladies and Gentlemen,
We refer to our letter dated 14th October 2013 in which we have made submissions concerning the appointment of Mr. Zeljko Topic as a member of the senior management team of the EPO.
The letter can be read at http://jurpro.hr/pdf/TOPIC-mail_from_14-10-2013_Text_E.pdf (English) or http://jurpro.hr/pdf/TOPIC-mail_from_14-10-2013_Text_D.pdf (German).
The former Deputy Director General of the Croatian SIPO Mrs. Vesna Stilin has addressed the Administrative Council of EPO with her letter dated 4th December 2013 which can be read at: http://jurpro.hr/pdf/Vesna_Stilin_Letter_from_4-12-2013.pdf .
The copies of the relevant documents can be found at 1- I) http://jurpro.hr/pdf/Annex_1-I.pdf ; 1-II) http://jurpro.hr/pdf/Annex_1-II.pdf ; 2) http://jurpro.hr/pdf/Annex_2.pdf ; 3) http://jurpro.hr/pdf/Annex_3.pdf ; 4) http://jurpro.hr/pdf/Annex_4.pdf ;
It is further noted that no action in this regard appears to have been taken by any member state of the Organisation so far. It seems as if Balkan practices in appointing senior officials have now become an accepted European standard.
Zlatko Zeljko, President
At the same time, the former Assistant Director of the Croatian State Intellectual Property Office, Ms. Vesna Stilin, addressed a letter to the AC [PDF]. Here it is as HTML:
Biokovske stube 4, 10 000 Zagreb, HR
Zagreb, December 4th 2013
EUROPEAN PATENT ORGANISATION
Dear Ladies and Gentlemen,
Some time ago, I received a query from an anonymous source in Munich asking if I could provide any information as to whether or not there was any substance to accusations which had been published in the Croatian media concerning Mr. Željko Topić, the former Director General of State Intellectual Property Office of the Republic of Croatia (SIPO). Following his appointment by the Administrative Council of the EPO, Mr. Topić has occupied the position of Vice President DG4 of the European Patent Office since May 2012. In view of the evident public interest in the controversy surrounding his appointment, I hereby address these submissions to the Administrative Council of the EPO.
By way of introduction, I would like to inform you that I was previously a former Deputy Director General of the Croatian SIPO and later an Assistant Director General in charge of the Copyright and Related Rights Department.
To the best of my knowledge, apart from various civil proceedings, initiated by several persons (from SIPO and outside of SIPO), there were at least two criminal law cases pending against Mr. Topić prior to his appointment to the position which he now holds in the EPO. One of these cases concerned the circumstances surrounding my dismissal from the SIPO, and the other one concerned matters which the Ministry of Education, Science and Sport as the government department with supervisory authority over the SIPO had failed to properly investigate despite its statutory obligation to do so. Evidence to support these assertions is enclosed (Annex 1).
My dismissal from the post of Assistant Director General of the SIPO in 2008 was based on statements of an untruthful nature by Mr. Topic which prompted me to sue him for defamation. In appeal proceedings held before the County Court (Komitätsgericht) in December 2012, for the second time, a verdict was delivered in my favour(Annex 2). The case was remitted to the court of first instance. The case is still pending before the County Court for the third time. Additionally, I filed criminal charges against Mr. Topić with the Prosecutor’s Office (Annex 3). The latter case which includes a charge relating to bribery is likewise still pending. (Annex 3). A key accusation here is that Mr. Topić effectively „bought“ his re-appointment as Director General of the SIPO by bribing the former Minister of Education, Science and Sport, Mr. Dragan Primorac, who proposed to the Government that Mr. Topić be re-appointed for a second term in 2008 (Annex 4). There is extensive documentation about this matter, including a complaint which I filed with the European Court of Human Rights in Strasbourg. I can provide copies of this documentation on request. As a tactical manoeuvre in response to the legal actions which I had initiated against him, Mr. Topić belatedly filed a private action for defamation against me at the Municipal Crimial Court in Zagreb on 22 April 2013. However, Mr. Topić’s complaint was dismissed by the court which recently delivered its judgment in my favour (Annex 5).
I am also in possession of documentation which shows that Mr. Topić ignored the recommendation made by independent EU experts in field of Copyright and Related Rights in the context of the Community Assistance for Reconstruction, Development and Stabilisation (CARDS) Programme for South-Eastern Europe (Official Reference No. 96-022 and 60 343) where the EU provided Croatia with about 2 million € to assist the development of the SIPO, including its Copyright and Related Rights Department. At that time the number of legal staff in the Copyright and Related Rights Department was insufficient as there were only two persons at the SIPO, including me, responsible for dealing with these matters. However, instead of increasing the number of legal staff in accordance with the recommendation of French experts and as formally agreed in his own commitment given to the EU on behalf of the Republic of Croatia, Mr. Topić proceeded to effectively abolish the Copyright and Related Rights Department, by reducing the personnel dealing with these matters to a single person who was involved in the so-called HDS-ZAMP* affair. Mr. Topić’s actions in this regard were carried out without any coherent explanation and, according to my considered opinion, in an illegal manner.
It is a matter of record that the President of the EPO, Mr. Benoît Battistelli, sponsored Mr. Topić’s candidature for Vice President of DG4. Would he have done so if he had been fully informed about these matters, in particular the criminal proceedings pending against Mr. Topić prior to his appointment? It should be emphasised here that, in contrast to Mr. Topić, it appears unlikely that the other candidates for the position were the subject of criminal proceedings and such public controversy in their home countries.
I believe that it would be in the public interest for the Administrative Council of the EPO to initiate an impartial and objective investigation into the circumstances surrounding Mr. Topić’s appointment and, where appropriate, to exercise its disciplinary authority in the matter. On the face of it, it would appear that Mr. Topić abused the trust of the President of the EPO by concealing or misrepresenting important facts such as those relating to criminal cases pending against him in Croatia. Either that, or Mr. Battistelli was aware of the aforementioned matters and, despite this, supported Mr. Topić’s candidature. For the moment, it is only possible to speculate about these matters. The truth can only come to light if a proper independent and impartial investigation is carried out.
Some of the major political scandals in Croatia in recent times have been those relating to the prosecution of the former Prime Minister Ivo Sanader on corruption charges, accusations against the former Minister of Education, Science and Sport, Dragan Primorac (who Mr. Topić is alleged to have bribed), and the HDSZAMP affair relating to the collection of royalty payments for musicians. The details of these various political scandals may not be familiar to people who are not well acquainted with Croatian current affairs but I am willing to assist any impartial inquiry conducted under the auspices of the Administrative Council by providing a more detailed explanation accompanied by supporting evidence, including the documentation referred to above.
* The HDS-ZAMP affair relates to alleged irregularities and conflicts of interest in the area of musical copyright management. The name is derived from an acronym for the Croatian composers’ society – a „collecting society“ which is responsible for protecting the rights of of copyright holders on musical works and, in particular, for managing the collection and distribution of royalty payments.
Annex 1: Minutes of proceedings before the Criminal Court of Zagreb – May 4th 2010,
Letter from Ms. Stilin to the Ministry of Science – June 21th 2012
Annex 2: Court Judgment Kž-368/2012-5 from December 12th 2012
Annex 3: Criminal charges against Mr. Topić, from January 9th 2013
Annex 4: E-Mail correspondence betwen Croatian President Mr. Ivo Josipović and Ms. Stilin
Annex 5: Court Judgement 9.K-99/2013 from September 30th 2013
Copies of the annexes referred to in Ms. Stilin’s letter can be accessed above.
The EPO’s Administrative council failed to make any response to these submissions, so Juris Protecta proceeded to file a Petition with the European Parliament requesting it to carry out an independent investigation into the matter. The Petition is pending before the European Parliament and is expected to be discussed during one of the forthcoming sessions of the Petitions Committee in September or October of this year (that’s this month). The story was given some coverage earlier this year in May by the Geneva-based IP news service Intellectual Property Watch, as noted here before.
Our first Techrights article in this series included some Croatian press cuttings and our sources sent the most recent version (Croation press cuttings up to September 2014) for those who understand Croatian. It’s the same as before but further expanded. This now embodies the most recent version which includes a translation of this article.
The relevance of the material above is that it shows how corrupt people came to occupy positions of power in the EPO, in part thanks to nepotism and a corruptible process (more on that in future parts of this series). “The EPO’s Administrative Council,” say our sources, “is actively and improperly colluding with the EPO President Mr. Battistelli in protecting Mr. Topić’s appointment from any independent investigation.”
There is additional information indicative of long-standing professional connections between Messrs. Topić, Battistelli and Kongstad. We will present it separately in some future date (there is an ongoing investigation which we wait to see resolved).
“This causes us to suspect,” say our source, “that both the EPO President and the AC Chairman are placing personal and/or professional loyalties before the public interest in this case.”
Some of this covered in Part III about Battistelli, whose relations with Topić we will provide more proof of. There is a connections between the patent offices
[PDF], but also between these individuals (not just organisations they work for). The 2008 annual report of the Croatian State Intellectual Property Office records details of a visit to the Croatian SIPO by a delegation of the French National Intellectual Property Institute (INPI) headed by Battistelli and shows a photograph of Battistelli and Topić signing an Agreement on Bilateral Cooperation
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Summary: Microsoft is spreading the myth that Android is not free (and is in fact very expensive) while its staff and boosters continue to deceive the public in other ways
ANYTHING that is repeated often enough, especially by seemingly credible news networks, may in turn be treated as truth without much further scrutiny. Microsoft is an expert at doing that. We gave dozens of examples over the years. This is sometimes known as “reality distortion”.
Claims about Microsoft profit from Android are overstated and often reliant on just a single person (with Microsoft ties) along with folks who repeat his claims (usually Microsoft boosters). Even some FOSS-friendly sites like Muktware got bamboozled, whereupon we explained to them that this is just another divide-and-rule approach, much like Novell’s. Microsoft wants the industry to believe that GNU/Linux (or Android) is not free and that any company that sells devices with GNU/Linux will be punished severely by Microsoft. Behind the NDAs and behind the illegal extortion there is often lots of smoke but not fire. Microsoft may charge a few cents for something like FAT patents and then issue a face-saving press release (imposed on the victim) to pretend there was some massive patent deal that taxes “Linux”. For “Android” it’s usually something like Microsoft Exchange (ActiveSync). We spoke about this with OIN’s CEO, so we say this based on a professional opinion from one whose livelihood depends on it and one who knows what happens ‘behind the scenes’, so to speak.
“Microsoft may charge a few cents for something like FAT patents and then issue a face-saving press release (imposed on the victim) to pretend there was some massive patent deal that taxes “Linux”.”Yesterday we found an ugly piece that’s basically a Microsoft propaganda piece. It’s basically propaganda from Microsoft’s ‘former’ chief patent counsel. The crudest pro-software patents site (IAM) quotes the biggest patent troll in the world, Microsoft (by extension), as saying that “US has not come close to abandoning software patents”. That’s a straw man; nobody said that the USPTO (or the US) is “abandoning software patents”. It just gradually cuts down, both at the examination level and at the court level. Evidence of this is very extensive. It just seems like Microsoft is afraid of losing its last remaining ‘product’: patent racketeering.
There is currently an ugly whisper campaign in the corporate media. It claims that Samsung paid Microsoft a billion dollars for Android. It’s simply untrue. Thankfully, Swapnil Bhartiya has already written a strong rebuttal. He says that “some news outfits are projecting it as if Samsung paid Microsoft $1 billion solely for Android patents. Some headlines go like these – “Lawsuit reveals Samsung paid Microsoft $1 billion a year for Android patents” or “Samsung paid Microsoft $1 billion in Android patent-licensing royalties in 2013″. These claims start and end with the headlines, you won’t find a single mention of ‘Samsung paying Microsoft $1 billion for Android patents’ in any of those stories.
“Organizations like BloomBerg and ReCode are refraining from such misleading headlines. The court filing is available publicly which you can read on Scribd. Microsoft says in the document that Samsung paid Microsoft $1 billion in second financial year of their patent deal. From what I understand that is *the* total amount Samsung paid Microsoft under the deal. What we don’t know is what all is covered in these patents. The court document doesn’t specifically says that ‘Samsung paid Microsoft $1 billion for Android patents.’
“I didn’t find a single sentence making such a claim. Please correct me if I am wrong, I would appreciate that.”
Bhartiya correctly dubs this a “PR stunt” and he explains why: “It seems to be nothing more than a PR stunt. Every-time someone creates such a headline, Microsoft scores a PR point. Microsoft drops the keywords Android, Chrome and Linux every-time it signs a deal with a company even if the deal is about using ancient technologies such as FAT 32 in devices running Linux.
“We never heard of any other deal between the two companies (Samsung and Microsoft) so it can be logically concluded that the deal also covers the use of Microsoft technologies in non-Android or non-Chrome devices such as point-and-shoot cameras, DSLRs, music players, photo-frames, BD/DVD players, TV sets and dozen of other things that Samsung sells.
“Those crisp $1 billion bills are not just for the Android powered devices, right? Samsung does a lot of thing, in 2013 the company raked in over $54.95 billion in revenues. Only half of that revenue came from the IT and mobile division.”
Finally, adds Bhartiya: “It’s not a one way traffic. Microsoft also pays Samsung annual royalty for using Samsung’s patented technologies and this amount it credited against the amount Samsung pays to Microsoft.”
Yes, this is an old trick. Microsoft still uses it to flood the press with lies (or half-truths), which its booster are just too happy to spread. It’s like a tumbleweed of lies and it gathers momentum. Soon enough the lies become the equivalent of a reality; it’s an attempt to induce surrender. It’s an attempt at self-fulfilling prophecies. The time seemed right for Microsoft because it fights with Samsung in the courtroom. Microsoft knows it might lose and the defendant is the biggest possible target because Samsung sells the lion’s share of Android-powered phones.
The Microsoft booster Gavin Clarke is meanwhile warning that trolls may try to attack OpenStack. He uses OIN as a source:
A group established to shield Linux from patent trolls has warned OpenStack will be the next big target for intellectual property hoarders.
The Open Invention Network (OIN) reckons the open-source cloud is ripe for the plucking by trolls, who would easily be able to box off and claim core technologies as their own.
That would see developers and customers using OpenStack forced to hand over fistfuls of cash in royalties – following either cases or, more likely, closed-door deals that avoid the expense of court.
This may be a legitimised concern, but Clarke does not name Microsoft’s own behaviour. By these standards, Microsoft too is a troll, not just by proxy. In fact, Microsoft is perhaps the biggest threat here.
As a side note, Techrights is under DDOS attack )since yesterday). The attacks are all coming from Windows NT (various versions) machines and they are hammering on the site, sometimes to the point where the site is no longer available. This seems to have spread from Tux Machines, so these attacks are clearly personal. This was done to us also 5 years ago (see the report “Burying the truth? Boycott Novell hit by Denial of Service attack”). █
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